posted 4 days ago on techdirt
So you may have seen reports last week charging CloudFlare and some other tech companies with "aiding" internet malware pushers. The "report," called "Enabling Malware" was announced in a press release last week from the Digital Citizens Alliance -- a group that describes itself as representing consumer interests online: Digital Citizens is a consumer-oriented coalition focused on educating the public and policy makers on the threats that consumers face on the internet and the importance for internet stakeholders – individuals, government and industry - to make the Web a safer place. And while the story wasn't picked up that widely, a few news sources did pick it up and repeated the false claim that DCA is a consumer advocacy group. TorrentFreak, FedScoop and Can-India also picked up the story, and all simply repeated DCA's claim to represent the interests of "digital citizens." But that leaves out the reality: DCA is a group mostly funded by Hollywood, but also with support from the pharmaceutical industry, to systematically attack the internet and internet companies, for failing to censor the internet and block the sites and services that Hollywood and Big Pharma dislike. DCA has been instrumental in pushing false narratives about all the "evil" things online -- "counterfeit fire detectors! fake drugs!" -- in order to push policy makers to institute new laws to censor the internet. DCA buries this basic fact in its own description, merely noting that it "counts among its supporters... the health, pharmaceutical and creative industries." The organization was formed in late 2012, partly as a response to the MPAA's big loss around SOPA. Recognizing that it needed to change tactics, the MPAA basically helped get DCA off the ground to push scare stories about horrible internet companies enabling "bad things" online, and how new laws and policies had to be created to stop those evil internet companies. Much of this was merely speculation for a while, based on the fact that every DCA report seemed to wrongly blame internet companies for other people using those tools to do bad things online. However, it became explicit thanks to the Sony Hack, which revealed that a key part of the MPAA's anti-Google plan, dubbed Project Goliath, involved having the DCA pay Mississippi's former Attorney General Mike Moore (who mentored its current AG, Jim Hood), to lobby Jim Hood to attack Google. That doesn't sound like a project of organizations just interested in "digital safety." It sounds like a project designed to attack internet companies. And, thus, it should be no surprise that every time DCA's name pops up, it's attacking internet companies. It was the organization that put out a report getting a variety of state Attorneys General (sense a pattern here?) to attack YouTube, because some criminals posted videos on YouTube. Rather than recognizing that this is a way to gather evidence and go after actual criminals, DCA decided that YouTube should be blamed for not taking those videos down fast enough. It was also the organization that put out a laughable report declaring the cloud storage site Mega a "haven" for piracy, where the methodology made no sense. Mega encrypts its content, but DCA and its researchers didn't seem to understand that, so they simply found a few links inbound to infringing works, and extrapolated out that a huge percentage of files on Mega were infringing. DCA's boss, Tom Galvin, magically was chosen to present to the National Association of Attorneys General back in 2013, just months after the organization was founded, and in timing that (coincidentally, I'm sure) lines up almost exactly with the MPAA's decision (as revealed in the Sony emails) to focus on state Attorneys General to attack Google. DCA's Twitter feed regularly retweets the MPAA and various other front groups set up by the legacy copyright industries, such as the Copyright Alliance. In short, the Digital Citizens Alliance is not an alliance of "digital citizens" at all. It's a front group set up by the MPAA and some big pharmaceutical companies to pressure policy makers into getting internet companies to censor the internet. Don't buy it.Permalink | Comments | Email This Story

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As you almost certainly know by now, on Friday Wikileaks released a bunch of hacked DNC emails just before the Democratic Presidential convention kicked off. While Wikileaks hasn't quite said where it got the emails, speculation among many quickly pointed to Russian state sponsored hackers. That's because of the revelation last month of two sets of hackers breaching the DNC's computer system and swiping (at the very least) opposition research on Donald Trump. Various cybersecurity research firms, starting with CrowdStrike, which was hired by the DNC to investigate, pointed the finger at the Russians. Of course, whether or not you believe that may depend on how credible you find the big cybersecurity firms like CrowdStrike, FireEye and Mandiant (the big names that always pop up in situations like this). For what it's worth, these guys have something of a vested interest in playing up the threat of big hacks from nation-state level hackers. For a good analysis of why this finger-pointing may be less than credible, I recommend two articles by Jeffrey Carr, one noting that these firms come from a history of "faith-based attribution" whereby they are never held accountable for being wrong -- and another highlighting serious questions about the designation of Russia as being responsible for this particular hack (he notes that some of the research appeared to come pre-arrived at that conclusion, and then ignored any evidence to the contrary). Still, the claim that the data came from the Russians has become something of a story itself. And, of course, who did the hack and got the info is absolutely a news story. But it's an entirely separate one from whether or not the leaked emails contain anything useful or newsworthy. And yet, because this is the peak of political silly season, some are freaking out and claiming that anyone reporting on these emails "has been played" by Putin and Russia. Leaving aside the fact that people like to claim that Russia's behind all sorts of politicians that some don't like, that should be entirely unrelated to whether or not the story is worth covering. And yet, we already have stories arguing that "Putin weaponized Wikileaks to influence" the US election. That's ridiculous on multiple levels. Wikileaks releases all kinds of stuff, whether you agree with them or not. And the idea that this will actually impact the election seems... unlikely. Is the (not at all surprising) fact that the DNC is fully of cronyism and favoritism really suddenly going to shift voters to Trump? Of course, Wikileaks implicitly threatening someone with legal action for saying there's a connection between Russia and Wikileaks is pretty ridiculous as well. To some extent, this reminds me of some people who freaked out over the Sony Pictures hack, a while back. There the culprit blamed was North Korea, a claim that at least many people remained skeptical of. But, even so, there were some (including Sony) who tried to argue that no one should report on the contents of the emails because it would somehow support the North Korean regime's goals. That's laughable. Yes, whoever is behind such hacks is a story. But it does nothing to lessen or impact whether or not the leaked emails themselves are newsworthy. Arguing against anyone publishing stories about them just because they may have begun with Russian hackers is just a way of desperately trying to block embarrassing stories about the DNC from getting published.Permalink | Comments | Email This Story

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Protip: maybe don't laugh off accusations that you're bad at cybersecurity in emails on a network that has already been infiltrated by hackers. That message did not make it through to one Eric Walker, deputy communications director for the Democratic National Committee. As you've heard by now, the DNC got hacked and all the emails were posted on Wikileaks. An anonymous user in our comments pointed us to a now revealed email from Walker brushing off a story in Buzzfeed, quoting cybersecurity professionals arguing that both the RNC and the DNC are bad at cybersecurity, mainly because they're handing out USB keys at their conventions. Reporters who registered for the Republican and Democratic National Conventions were given tote bags by convention organizers filled with instructions and logistical information. Buried inside the totes were thumb drives, also known as USB flash drives, with information on the upcoming events. “Who does that anymore? It’s just asking to get infected with any variety of malware,” said Ajay Arora, CEO of VERA, a cybersecurity firm. “Those thumb drives are the number one way to infect a computer… It is borderline stupidity to give them out to people, or for people to even think of using them.” Thumb drives are known within the cybersecurity world for their fundamental security weaknesses, because when someone plugs a thumb drive into their computers they are opening up their system to anything on that drive — from the best hotels to stay in during the Republican National Convention to a virus that silently uploads itself onto the hard drive. Neither the Republican or Democratic National Committees replied to a BuzzFeed News inquiry about the thumb drives. That's a reasonable assessment. It's dumb to hand out USB keys these days and anyone should be aware of that by now. But Walker's email sarcastically mocked this: The thesis: we hand out thumb drives at events, which could infect the reporters/attendees' computers. So that means that we're bad at cybersecurity. Okay. Well, truth be told, there are many reasons why you may be bad at cybersecurity, including the fact that you apparently let a group of hackers sit on your network for a year or more. But also, handing out USB keys is a super bad idea too. Permalink | Comments | Email This Story

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Yahoo's in the middle of another national security-related courtroom battle, albeit somewhat inadvertently. Its response to a discovery order in a drug dealer's trial has left the defense wondering exactly how the hell it complied with it. Joseph Cox of Motherboard has more details. Defense lawyers in the case claim that six months of deleted emails were recovered—something which Yahoo's policies state is not possible. The defense therefore speculates that the emails may have instead been collected by real-time interception or an NSA surveillance program. United States Magistrate Judge Maria-Elena James, from a San Francisco court, granted the defense's motion for discovery in an order filed on Wednesday. Russell Knaggs, the accused drug dealer, apparently utilized a Yahoo email account to hook up suppliers in Colombia with buyers in Europe. To add to the difficulty level, Knaggs did this while serving time for another drug bust. The method used was not all that uncommon. Everyone shared a single email account and composed draft messages. Each party would log into the account, read the draft message left for them, and compose a draft of their own in response. No emails were sent. All drafts were then deleted from both the "Draft" folder and the "Trash." According to Yahoo, there was no way for Yahoo to retain these messages. Except that it did and turned them over to law enforcement, suggesting ongoing surveillance, rather than the recovery of communications from the account. After receiving requests from UK police and the FBI in September 2009 and April 2010, Yahoo created several “snapshots” of the email account, preserving its contents at the time—and revealing the messages. But the defense alleges there should have been nothing for law enforcement to find. Yahoo's explanation is that the recovered emails were copies created by the email service's “auto-save” feature, which saves data in case of a loss of connectivity, for example. The company has filed several declarations from a number of its staff, but the defense said some of those contradicted each other, and it wants more information. Here's what the defendant's tech expert had to say in his testimony [PDF]. With regard to Yahoo‟s “snapshot” and its process of “retriev[ing emails] from the servers because their auto-save function systematically preserved edits made over time,” Abramson says the descriptions Yahoo gives of its auto-save feature are inconsistent, contradictory, and furthermore “do[] not align with [Abramson‟s] understanding of such programs.” Abramson contends Yahoo‟s statements “do not in fact agree with common technical principles. The timing of e-mail data saved between 2 minutes and several seconds is not consistent.” Abramson Rpt. at 8. He asserts that “[a] more plausible explanation for the e-mail information provided to law enforcement is that the e-mail account of Mr. Knagg‟s [sic] was under surveillance and through the immediate efforts of surveillance, Yahoo was able to capture the email information and provide it to law enforcement.” The defense wants several things from Yahoo, including source code, in hopes of sussing out the methods used to capture and preserve these draft messages. Yahoo would rather not give this information up. The judge, while somewhat sympathetic to Yahoo's arguments, also notes it's the company's own inconsistent explanations that have led to this situation. The Court agrees with Yahoo that Petitioner's requests are somewhat broad; however, the Court also agrees that Yahoo‟s seemingly conflicting responses up to this point create a situation where Petitioner cannot be certain he understands the process of information gathering he seeks to challenge. While Yahoo believes that Petitioner seeks information that is cumulative given its interrogatory responses, it would appear that the requested discovery would not necessarily be cumulative, but might instead provide clarity to Petitioner regarding Yahoo‟s data-gathering methods. Additionally, since the documents Petitioner requests are potentially the same ones that helped Chan “clarify” her previous statement and better understand the data-gathering process, it would appear that these documents could help Petitioner gain a better understanding of the system as well, and could help to prove or disprove one of the grounds of his appeal, as is the purpose of his discovery request. The Court also notes that Chan‟s responses up to this point do not provide the sort of personal knowledge or foundational information for the Court or Petitioner to be able to adequately assess her responses. Consequently, Petitioner's request for documents and a 30(b)(6) deposition is appropriate rather than ordering further interrogatory responses. The list of items the defense wants has been scaled back by the judge, but what remains will still provide a glimpse into Yahoo email's inner workings, including any evidence of targeted or bulk surveillance methods put into place by the company. Whether or not we'll get to see it is another matter, as the judge will consider instituting a protective order if the information produced is deemed too sensitive. What it sort of looks like is possibly illegal surveillance being covered up with parallel construction. The problem with this theory is that Yahoo has been more than a little resistant to broad surveillance requests. That doesn't completely rule out complicity, but it would definitely be a risky move for a private company to cover for government wrongdoing. When (and if) more details are provided, we'll know more. If nothing else, it may indicate draft messages are indiscernible from sent messages, at least when it comes to Yahoo's servers. Permalink | Comments | Email This Story

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One of the biggest stories this week was the shutdown of Kickass Torrents and the arrest of its owner, all of which we pointed out had questionable basis in actual law. That One Guy won most insightful comment of the week with the theory that this doesn't matter at all: The fact that the charges don't line up with what's actually in the law doesn't matter really, as that would be distantly secondary at best. The purpose isn't so much to enforce the law regarding copyright infringement as to show what happens to those that annoy the USG and those buying politicians. Site destroyed, owner arrested, message sent. Much like MU winning the legal case would be something they'd like to be able to crow about, but they've already accomplished what they set out to do, and if all it cost them was some 'creative' interpretation of the law that's a price they're more than willing to pay. Meanwhile, after Donald Trump threatened his disloyal ghostwriter with defamation claims, eaving won second place for insightful by drawing a comparison: Erdogan, American Edition? For editor's choice on the insightful side, we start out with some thoughts from PaulT on China's plan to ban ad blockers: The more interesting thing would be to see if anyone exploits the rules to distribute malware that does real harm or has other unintended consequences that causes real problems for the Chinese government. With malicious ads being increasingly common, security is one of the larger reasons people are using these things. I mean, I wouldn't want to be the person trying to exploit the opportunity even I were that way inclined. But an extra 159+ million people being added to a pool of targets, where the entire pool is barred from defending themselves against you, must be very tempting for certain people. Next, we head to our post about the court that has offered no remedy to someone whose vehicle was illegally searched and then subjected to civil forfeiture after drugs were found. One commenter suggested that there's no way the alternative — returning all the property — is acceptable either, but Uriel-238 questioned that premise and its assumptions: "I don't think they should just give the drugs, or the vehicle used to transport them back.. full fucking stop." I do. The state is way out of jurisdiction once they have conducted an illegal search, and -- how shall we say it: it imposes a substantial social cost for there to be any impetus for the police to engage in unreasonable search and seizure, since the temptation to do so is so great on its own. The police are not even trustworthy holding contraband in their evidence lockers or destroying it. Once we allow law enforcement to gain actually profit from overreach, they're going to do so. Excessively. There are number historic examples of how this goes down. No, the proper order in this case is for the police to return to him his belongings (including any contraband) in recognition that the state and its agents are not above law either. The suspect should be compensated for time lost due to the police overreach and then let to go about his business We need to stop thinking of the police as a caste with a moral high ground over the rest of us. Indeed, if anything they have clearly proven that human beings are incapable of holding that elevated level of power without corruption and indulgence. They just aren't. The US police is supposed to operate under the principles of policing by Sir Robert Peel (at least they still teach Peelian Principles in cop school and say these are our foundational principles. The police is the people. The people are the police. It's still supposed to be that way. It's not. Rather, our law enforcement agents are so removed from common civilians now that they regard common civilians as the enemy, they defend their own corruption openly and plainly. They prey commonly on innocent civilians as highwaymen and brigands. They act as nothing more than yet another street gang, merely one backed with state funding. Over on the funny side, we start out with the news that the German government is suing the US government over copyright infringement by the Navy. First place for funny goes to Machin Shin, who couldn't resist the simple joy this story provides: I saw this on another site as I wandered around the net. I still think the best part in all this is that we can now call our Navy a bunch of pirates. Meanwhile, after Turkey blocked Wikileaks, Mason Wheeler won second place by noting the irony in the source of some of the criticism of Turkey's censorious regime: Wait, wait... a European high court talking about censorship laws breaching the fundamental human right to information? That's incredibly ironic. I know there's a good reason to say so, but I must have... forgotten. For editor's choice on the funny side, we start on our post about Nick Denton joining the ranks of people fighting to defend comments on blogs and news websites. TechDescartes registered his self-invalidating disapproval, the only way he could: I disagree You shouldn't let people comment on stories. And finally, because every advertising algorithm is bound to cough up amusing results from time to time, Mason Wheeler spotted something fun on our post about Apple declining the invitation to be Senator McCain's punching bag: In today's episode of Techdirt Advertising Theatre... That's all for this week, folks! 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Five Years Ago This week in 2011, the battle over the PROTECT IP bill continued, with the MPAA utterly failing to address the concerns of experts and the creators of the internet and the Copyright Alliance vaguely trying to "set the record straight" by responding to an un-linked, un-cited post written against the bill. We pointed to a variety of examples showing why we shouldn't rush to approve PROTECT IP, but it seemed like the lawmakers were pretty confused about what it was to begin with — one senator thought it was about an internet kill-switch, and another had it all confused with net neutrality. Also this week in 2011, we saw the beginning of what we now know to be a very sad story: federal prosecutors filed felony charges against Aaron Swartz for downloading documents from JSTOR. We couldn't help but notice that, despite so much rhetoric about theft and infringement, there was no mention of copyright in the indictment. Indeed, there didn't seem to be any legal or moral basis for the charges whatsoever. But that didn't stop the Copyright Alliance from throwing their hat into the ring with a post full of terrible analogies — nor did it stop lots of people from uploading JSTOR research to file-sharing sites in protest. Ten Years Ago It's easy to forget that once upon a time YouTube was new — and that was the case this week in 2006, when it was still independent and so young that its very first copyright lawsuits were just beginning to materialize. Interestingly, this same week, the MPAA was getting hyped about new technology for detecting infringing video (though perhaps they should have focused more on innovations that aren't designed to fail). We were also pleased to see a very rare beast: an honest debate about net neutrality. Not just that — there was also a great John Hodgman-helmed explainer segment on the Daily Show, and a creative reimagining of the debate that made it all about sidewalks instead of networks. Fifteen Years Ago This week in 2001, though Napster was basically dead, it didn't seem to have helped the recording industry very much (and who could have predicted that?) Over in the UK, they decided the best way was to start young, and began teaching kids about the evils of file sharing in elementary school. Meanwhile, the high-profile arrest of a Russian programmer for breaking encryption was shaping up to be a major test to copyright law. And amidst all this, copy-protected CDs were starting to show up in record stores. Also this week in 2001: Microsoft was discovered stopping a charity from distributing computers over licensing issues; the top-ranked legal advisor on an advice website was a fifteen-year-old kid; Fandango made the first brave foray into the now-normal practice of printing movie tickets at home; and people were still trying to figure out how (and why) to get video onto cellphones. One-Hundred And Seventeen Years Ago NEC isn't a big trendy consumer name — at least not outside Japan. But its a gigantic supplier of the network equipment that powers so much of our digital world — and it was on July 17th, 1899 that it was launched as the first ever Japanese joint-venture with foreign capital. Permalink | Comments | Email This Story

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Did you hear? Yesterday, we launched our latest t-shirt on Teespring. It's a re-vamped version of our classic DMCA tee: the Takedown T-Shirt. In addition to men's and women's t-shirts for $20 each, we've reduced the price of hoodies to $35 and added some new color options including royal blue and forest green! This initial run is available until Monday, August 1st, after which point your only choice will be to reserve one and wait until the campaign reboots — so if you want to get your hands on one soon, don't delay and order yours now! Permalink | Comments | Email This Story

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You may recall, last month, that a hacker (who many have accused of working for the Russian government) got into the Democratic National Committee's computers and copied a ton of stuff. All of the emails that were obtained (a little over 19,000, from seven top DNC officials) are now searchable on Wikileaks, so there are tons of stories popping up covering what's been found. The Intercept, for example, appears to be having a field day exposing sketchy behavior by the DNC. But one point that hasn't received as much attention: the DNC appears to have flat out lied right after the hack happened. In its statement on the hack, the DNC had insisted that no personal donor info got out: The hackers had access to the information for approximately one year, but that access was wiped clean last weekend, The Washington Post reported, noting that the DNC said that no personal, financial or donor information had been accessed or taken. Except, well, no. There had been reports, driven by the hacker, that the files absolutely did include personal donor info, and now you can see some of that for yourself. For example, it took me all of about 5 minutes to find a list of donors and their email addresses, which I won't be sharing here, but I'm sure others can find as well. And, then, of course, you can find things like this discussion about a potential donor, Niranjan Shah, with "ties" to disgraced and convicted former Illinois Governor Rod Blagojevich, noting that there were "pay to play" accusations associated with him. The DNC noted that they "could be ok" with Shah donating to the DNC, but that the administration might not want him to show up at their events. And, of course, there are emails detailing specific donations by specific people. There are claims that some emails contain credit card data, though I haven't seen that myself. Either way, it certainly appears that in the rush to "nothing to see here" the leak of the info, the DNC simply lied about what was leaked.Permalink | Comments | Email This Story

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Judge Alex Kozinski pointed out the obvious in a Ninth Circuit Appeals Court decision: There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it. Brady evidence -- possibly exonerating evidence that prosecutors are required to turn over to the defense -- is far too frequently withheld and/or buried. The punishments for violating this requirement are almost nonexistent. The prosecution hates to see wins become losses. And the government in general -- despite declaring fair trials to be the right of its citizens -- hates to play on a level field. A federal judge withdrew from a forensic evidence committee because the government told him it wasn't his job to point out the severely-flawed pre-trial forensic evidence discovery procedures deployed by prosecutors. Judge Rakoff called the government out in his resignation letter. The notion that pre-trial discovery of information pertaining to forensic expert witnesses is beyond the scope of the Commission seems to me clearly contrary to both the letter and the spirit of the Commission’s Charter… A primary way in which forensic science interacts with the courtroom is through discovery, for if an adversary does not know in advance sufficient information about the forensic expert and the methodological and evidentiary bases for that expert’s opinions, the testimony of the expert is nothing more than trial by ambush. "Trial by ambush" will continue unabated. Prosecutors will shrug off the minimal punishments for withholding evidence. The DOJ will continue to argue that it's allowed to erect as many roadblocks as it wishes in front of defendants. The DC Appeals Court has allowed the DOJ to retain another aspect of its "trial by ambush" strategy, as reported by Mario Machado of Fault Lines. The D.C. Court of Appeals declared that the federal government will not have to disclose the contents of a guide that determines when its prosecutors should disclose evidence to the accused. The Department of Justice’s “Blue Book” stays in-house, at least for the time being. The "Federal Criminal Discovery Blue Book" was crafted after DOJ prosecutors were blasted by a judge for their actions in the prosecution of Senator Ted Stevens. In nearly 25 years on the bench, I have never seen anything approaching the mishandling and misconduct I have seen in this case. Brady material was withheld from the defense, something that would have never been discovered without an FBI whistleblower stepping forward. The new guidelines were supposed to make things better. Very little seems to have changed since its introduction. And no one on the defense side of the fight has any idea what prosecutors are required to do under these guidelines. The National Association of Criminal Defense Lawyers (NACDL) tried asking the government for a copy. This was denied. So, it filed a FOIA request for the "blue book." This, too, was denied, with the government claiming its internal guidelines for ensuring a fair fight were not subject to FOIA requests. From the DC Appeals Court decision [PDF]. The Department refused to disclose the Blue Book, invoking the Freedom of Information Act’s Exemption 5, which exempts from disclosure certain agency records that would be privileged from discovery in a lawsuit with the agency. The Department maintained that the Blue Book fell within the attorney work-product privilege, and therefore Exemption 5, because it was prepared by (and for) attorneys in anticipation of litigation. This claim is laughable. Of course it's for litigation. But it's not for any specific litigation. It's for use in all DOJ prosecutions, which makes it more aligned with general information, rather than a narrow slice of "attorney work-product." The NACDL pointed this out. The NACDL argued that the Blue Book fell outside the work-product privilege because it had a non-adversarial function, to wit: the training and education of the DOJ’s vaunted prosecutors. It also argued that its disclosure was fair game because it was not drafted with a specific litigation in mind, but ultimately the Court sided with the federales, who fought tooth and nail to keep the book under wraps. One part of the judicial system has seen the contents of the "blue book" (other than DOJ prosecutors): the district court. An in camera presentation to both the lower court and the appeals court has allowed both to reach the decision they have. But will it result in the courts holding the DOJ to their own super-secret standards? Of course not. Judges are presented with evidence obtained through discovery. They have no idea whether all of it is present or if the DOJ followed its own instructions for handing over Brady material to the defense. The judges' viewing of this internal document will not result in greater accountability. Handing these guidelines over to defense lawyers, however, would give them more avenues to challenge withheld evidence and other perceived violations in disclosure. The government doesn't like this idea and claims that a more level playing field would severely hamper its prosecutions. One is inclined to agree with the DOJ's claim about hampered prosecutions, although not for the reasons it states. DOJ thus argues that disclosing the Blue Book would “essentially provide a road map to the strategies federal prosecutors employ in criminal cases.” Id. It contends that disclosure would afford anyone who wanted to read the Blue Book (including opposing counsel) “unprecedented insight into the thought processes of federal prosecutors.” Disclosure thus would “undermine the criminal trial process by revealing the internal legal decision-making, strategies, procedures, and opinions critical to the Department’s handling of federal prosecutions.” In addition, it would “severely hamper the adversarial process[,] as DOJ attorneys would no longer feel free to memorialize critical thoughts on litigation strategies for fear that the information might be disclosed to their adversaries to the detriment [of] the government’s current and future litigating positions.” In other words, the fight might be slightly fairer, and the government won't be having any of that. The DC Circuit is now completely complicit in the government's "trial by ambush" plans. Permalink | Comments | Email This Story

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If you want to see what the U.S. broadband market really looks like, you should take a close look at West Virginia. Historically ranked close to dead last for broadband access and quality, the state has been a perfect example of what happens when you let the incumbent telecom monopoly incestuously fuse with state regulators and politicians. For years now the state has been plagued by news reports of unaccountable broadband subsidies, money repeatedly wasted on unnecessary hardware, duplicate consultants overpaid to do nothing, and state leaders focused exclusively on ensuring nobody is held accountable. Frontier acquired Verizon's phone and broadband networks in the state back in 2010, and while jumping from an entirely apathetic incumbent monopoly ISP to a barely competent one netted some slight improvements initially for users, the lack of competition continues to keep serious advancement at bay. In an attempt to improve access to neglected areas of the state, Frontier that same year received $126.3 million in federal stimulus funds to provide high-speed Internet to such areas, including 1,064 public facilities such as schools, courthouses and first responders. Roughly $40 million of that money was supposed to be used to build an "open-access middle-mile network" intended to help multiple, competing West Virginia ISPs improve last-mile connectivity to roughly 700,000 homes and 110,000 businesses. But it didn't take long for allegations to surface that Frontier had used that money solely to shore up its broadband monopoly in the state, building fiber connections that only benefited itself. Allegations also surfaced that Frontier had manipulated just how much fiber was actually laid, with state investigations and audits, as they're wont to do, going nowhere fast. Fast forward to this week, when the courts unsealed a 2014 lawsuit (pdf) by competing West Virginia ISP Citynet, shining a little more light on the claims, while also naming a number of government officials as defendants alongside Frontier. Among other allegations, the lawsuit claims that Frontier artificially inflated fiber deployment metrics in ways that weren't even particularly creative and shouldn't have been difficult for regulators or auditors to uncover: Citynet claims that Frontier “double-counted” fiber to 58 buildings in 32 counties, and “used excessive maintenance coil to make up for fiber not constructed.” “Frontier also misrepresented the proposed distances for many of the community anchor institutions by simply inputting the same number for several projects,” the lawsuit alleges. “Incredibly, there were 36 [buildings] in seven different counties that each required the exact same 4,390 feet of new fiber.” Not only did Frontier deliver less fiber than actually promised in a way no competitor could access (again, the state and Frontier repeatedly promised this would be an open access network), the company charged significantly more than originally estimated. With the help of a former Verizon executive turned state Technology Officer, the lawsuit alleges that Frontier inflated its invoices using something called "loadings fees": Citynet claims on July 1, 2012, Given, the former president of Verizon, was appointed as the new State Technology Officer and immediately took exclusive control over approving Frontier’s invoices for the BTOP project. Within one month, every one of Frontier’s invoices that were submitted for payment contained a “loadings” charge, which, per the invoices, was for “allocated indirect costs such as vehicles, accounting, administration, etc.” In many instances, the indirect cost fee was higher than the original total cost estimate for the fiber build and there were 365 separate invoices with loadings fees, totaling $4,553,387.31, according to the suit. “Even though Frontier often ended up building much less fiber than was originally estimated, its final charges were substantially higher than the original estimate,” the complaint states. FCC data ranks West Virginia 48th in terms of broadband availability. After the project was completed, the lawsuit claims West Virginia ranked 53rd among 50 states, Guam, Puerto Rico and the District of Columbia. It's unfortunate in that broadband stimulus subsidies really have helped a number of communities where the private sector failed, just not in states where incumbent monopolies have excessive control over state players that should be policing this kind of behavior. Should West Virginia's dysfunction follow the historical tendency of other boondoggles of this type by the likes of AT&T and Verizon, absolutely nothing will come of this case or any subsequent investigation, audits (in the rare case they actually occur) will magically conclude no wrong doing by any participant, and the entire sordid affair will magically be forgotten the next time Frontier is in line to receive additional taxpayer handouts.Permalink | Comments | Email This Story

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The administration's brief flirtation with converting occupying forces back into police departments is apparently over. In the wake of the Ferguson protests, the administration announced its plan to rein in police departments which had been availing themselves of used military gear via the Defense Department's 1033 program. This itself was short-lived. A year later, the administration mustered up enough enthusiasm for another run at scaling back the 1033 program, but it has seemingly lost some steam as Obama heads for the exit. The images of police greeting protesters with assault rifles, armored vehicles, grenade launchers, and officers who appeared to mistake the Midwest for downtown Kabul apparently was a bit too much. It looked more like an occupation than community-oriented policing -- something every administration has paid lip service (and tax dollars) to over the past few decades while simultaneously handing out grants that turned police officers into warfighters. That's all off the table now. Two recent shootings of police officers have effectively dismantled the dismantling of militarized police forces. The White House will revisit a 2015 ban on police forces getting riot gear, armored vehicles and other military-grade equipment from the U.S. armed forces, two police organization directors told Reuters on Thursday. Shortly after the recent shooting deaths of police officers, President Barack Obama agreed to review each banned item, the two law enforcement leaders said. That could result in changes to the ban imposed in May 2015 on the transfer of some equipment from the military to police, said Jim Pasco, executive director of the Fraternal Order of Police, and Bill Johnson, executive director of the National Association of Police Organizations. The law enforcement lobbyists met with the President and Vice President, and it appears Obama has sent the administration's chief legal counsel to "review" the ban. The law enforcement organizations claim police need greater protections now, even though the recent clustering of officer deaths doesn't put the nation on track for anything more than an average year of on-duty deaths. But, while the chance of being killed in the line of duty remains steady, agencies are pushing for a return to pre-2015 levels of military gear, including tracked vehicles and grenade launchers "to deal with riots." It doesn't appear that any words were wasted discussing the underlying causes of the protests officers are now facing -- none of which will be resolved with increased police militarization. Put someone in war gear and they're going to be pretty sure they're in a war, rather than serving the public as a trusted member of the community. Permalink | Comments | Email This Story

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Yet another politician can be added to the list of people who think police officers just don't have enough protections as is. Following in the footsteps of legislators in New Jersey and Minnesota -- along with Rep. Ken Buck (CO) -- Texas governor Greg Abbott has decided it's time to treat attacking officers as a "hate crime." Texas Gov. Greg Abbott (R) wants the targeted killing of a police officer to be deemed a hate crime in Texas and urged lawmakers to send him such a bill to sign during next year’s legislative session. Abbott announced Monday his plan to lobby for adding his Police Protection Act to Texas law. Along with extending hate-crime protections to law enforcement, the measure would also increase criminal penalties for any crimes in which the victim is a law enforcement officer and “create a culture of respect for law enforcement by organizing a campaign to educate young Texans on the value law enforcement officers bring to their communities,” according to a statement from Abbott’s office. Nothing "creates a culture of respect" like handing beneficiaries of a host of "extra rights" even more protection in the form of stiffer penalties just because the victim was wearing a certain uniform. As Fault Line's JoAnne Musick points out, "hate crime" laws are generally enacted to provide greater protections for historically underprotected classes, not those already in positions of power. Are police an otherwise vulnerable group? Is violence against an officer intended to hurt or intimidate the entire police community? Are crimes against officers underreported and in need of encouragement to prosecute them? Plain and simple, the answers are no. Police are not particularly more vulnerable. In fact, they are better trained and greater equipped to protect each other and themselves. Crimes against police are rarely underreported. They are most definitely heavily prosecuted – as they should be. So, why is there a need to create a special class? The Dallas shooting that left five officers dead is the only reason this call for legislation even exists. It's a kneejerk reaction that shifts even more power to the powerful. It's sure to gather support from legislators because who could possibly be opposed to punishing cop killers? Add to that the further consolidation of power it represents and there's very little chance someone won't run this up the legislative flagpole. After all, the governor himself is calling for legislation, so it's guaranteed to become law if it hits his desk. That's an easy win -- something legislators like almost as much as jingoism and "tough on crime" posturing. Rather than address the issues that have led to this (seeming) flashpoint (despite the recent murders of police officers, numbers are still on track for another "normal" year in on-duty officer deaths), politicians like Abbott have decided to give law enforcement yet another tool to use to significantly harm anyone who doesn't immediately comply with their commands. And this is in a state that already adds years to sentences if the crime victim is a police officer. [A] simple assault is a class A misdemeanor carrying a punishment of up to one year in jail; however a simple assault against a police officer is a third degree felony punishable up to 10 years in prison. That's the current law. Abbott wants something above and beyond this. Simple assault, under current Texas law, includes simply threatening someone or "provocatively" making physical contact. Push back when being arrested? That's assault. Accidentally bump an officer's elbow while attempting to comply with a frisk? Assault. The law already encourages prosecutors to pile on. This would make it even worse. The underlying issues, which have prompted a horrifically violent reaction, aren't going to be mitigated by giving law enforcement and prosecutors even more leverage. Greg Prickett -- a 20-year veteran of law enforcement -- points out that the current miserable state of affairs can't be blamed on anything other than law enforcement's own actions over the past few decades. According to Prickett, this is what's prompted the shooting of law enforcement officers. It’s simple, really. It is militarization of the police coupled with a lack of accountability for their actions. Law enforcement has shifted away from being an integral part of the communities they serve and opted instead to view themselves as an occupying force in a war zone. The weapons and vehicles are repurposed military gear. Officers' training goes heavy on force deployment. Very rarely are tactics like de-escalation or actual community-oriented policing given any priority. While there's no condoning the actions of people who kill cops, the reality is that law enforcement itself has shown over the years that its preferred method of communication is violence. It's the only thing it truly understands. Governor Abbott may think he can reverse this course by throwing more prison time at certain criminals, but it's not going to stop people from killing cops. All it's really going to do is give officers and prosecutors a way to inflict maximum pain for the most minimal injury or perceived slight. Permalink | Comments | Email This Story

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Limited time offer: Support Techdirt and get a Takedown t-shirt or hoodie! YouTube's ContentID system has left many creators in a tough spot, with their videos whisked away by the questionable copyright claims of big media companies — and many a would-be viewer has been met with a disappointing takedown message instead of the content they hoped to enjoy. Now you can remind everyone of the problems with this arrangement with this update of our classic DMCA tee: the Takedown T-Shirt (also available as a hoodie). This initial run is available until Monday, August 1st, so don't wait! In addition to a basic tee, it's also available as a women's tee and a high-quality hoodie. The t-shirts are $20 and the hoodies have a new reduced price of $35. Get yours today! Permalink | Comments | Email This Story

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Last week's one-sided "hearing" on encryption -- hosted by an irritated John McCain, who kept interrupting things to complain that Apple hadn't showed up to field false accusations and his general disdain -- presented three sides of the same coin. Manhattan DA Cyrus Vance again argued that the only way through this supposed impasse was legislation forcing companies to decrypt communications for the government. The other two offering testimony were former Homeland Security Advisor Ken Wainstein and former NSA Deputy Director Chris Inglis. Not much was said in defense of protections for cellphone users. Much was made of the supposed wrongness of law enforcement not being able to access content and communications presumed to be full of culpatory evidence. But one of the more surprising assertions was delivered by a former government official. Wainstein's testimony [PDF] -- like Vance's -- suggested the government and phone makers start "working together." "Working together" is nothing more than a euphemism for "make heavy concessions to the government and prepare to deliver the impossible," as Patrick Tucker of Defense One points out. Wainstein says phone manufacturers must do more than theorize that weakened encryption would harm them or their companies. They must hand over "hard data" on things that haven't happened yet. Kenneth L. Wainstein, a former assistant attorney general for national security at the Department of Justice, told lawmakers that the burden is on technology companies and privacy advocates to show how backdoors would harm user security, rather than on law enforcement to prove that altering the encryption scheme would be safe. “For the tech industry and civil liberties groups, this means laying out technically specific support for the contention that a government accommodation would undermine the integrity of default encryption. They should provide hard data that demonstrates exactly how—and how much—each possible type of accommodation would impact their encryption systems. It is only when Congress receives that data that it can knowledgeably perform its deliberative function and balance the potential cybersecurity dangers posed by a government accommodation against the national security and law enforcement benefits of having such an accommodation in place,” he said. The only thing harder than proving a negative is proving how badly things might go if backdoors are inserted or companies are required to retain encryption keys. As usual, the "smart guys" are ahead of the curve on this bizarre demand. Last year, multiple encryption experts collaborated on a research paper [PDF] that laid out the problems that would result from government-mandated access. In this report, a group of computer scientists and security experts, many of whom participated in a 1997 study of these same topics, has convened to explore the likely effects of imposing extraordinary access mandates. We have found that the damage that could be caused by law enforcement exceptional access requirements would be even greater today than it would have been 20 years ago. In the wake of the growing economic and social cost of the fundamental insecurity of today's Internet environment, any proposals that alter the security dynamics online should be approached with caution. Exceptional access would force Internet system developers to reverse forward secrecy design practices that seek to minimize the impact on user privacy when systems are breached. The complexity of today's Internet environment, with millions of apps and globally connected services, means that new law enforcement requirements are likely to introduce unanticipated, hard to detect security flaws. So, if Wanstein is looking for answers, he already has them. So does James Comey. So does Cyrus Vance. (Although, to be fair, Vance hasn't really feigned much concern for tech companies or their customers.) They just don't like the answers they've received. This is why they continue to claim that a perfectly safe, government-mandated encryption backdoor is just a "smart guy" breakthrough away. Any day now, someone at Apple or Google will shout "Eureka" and hand over the unicorn Comey, et al insist must exist. Permalink | Comments | Email This Story

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It seems the USOC is just getting started with its bullying bullshit this Olympic season. Fresh off the heels of threatening Oiselle, a corporate sponsor of an Olympic athlete (but not a sponsor of the Olympics themselves), over trademark concerns because the company posted a congratulatory tweet for its sponsored athlete that included the Olympic bib she was wearing, the USOC is now sending out a helpful little reminder to other companies that have sponsored athletes but not the games. And by helpful, I mean that it's helpful in seeing just how blatantly the USOC will outright lie in order to continue its bullying ways. ESPN got its hands on the letter the USOC sent around. "Commercial entities may not post about the Trials or Games on their corporate social media accounts," reads the letter written by USOC chief marketing officer Lisa Baird. "This restriction includes the use of USOC's trademarks in hashtags such as #Rio2016 or #TeamUSA." It's the kind of blanket statement that the USOC likes to make, even as it avoids any of the pesky nuance that might call its claims into question. Certainly, as part of trademark law, a company's Twitter account could not claim to be an Olympic sponsor, or attempt to confuse followers into thinking it had some kind of affiliation. And this might translate into that company not including trademarked hashtags themselves. But what about retweets? What about posts that mention the sponsored athlete but not the hashtags? What about informing followers of the success of the athletes the company sponsors? Well, for that last one at least, the USOC has boldly claimed it owns the rights to facts. The letter further stipulates that a company whose primary mission is not media-related cannot reference any Olympic results, cannot share or repost anything from the official Olympic account and cannot use any pictures taken at the Olympics. Yeah, that's not actually true. Like, at all. As we've pointed out in the past, several times, there is no applicable part of trademark law that applies to facts, such as the factual results or stats of a sporting event. And there's no line in the sand to draw between the average Twitter user and a corporate Twitter account when it comes to this, meaning that corporate sponsors of athletes are absolutely free to mention the results of their sponsored athletes at the Olympic Games or trials. Beyond that blatant lie, claiming that a company's account can't retweet an Olympic account misunderstands the very nature of social media (make your damn account private then!), while blanket claims about what types of pictures of the games can be used completely ignores any Fair Use arguments that could be made, of which there are many. But this is SOP for the USOC, even as they further lie about the necessity for all of this bullying. While the USOC argues that money from sponsors and licensees who pay for the rights allow them to support athletes to go to the Games, Bergesen says the stringent rules hurt the athletes because companies that can't support them during the Games can't afford to pay them because of lack of promotion. "It costs $300,000 to send an Olympian to the Games, and for our athletes, the USOC has reimbursed them about 1 percent of that cost," Bergesen said. "Is that supporting them?" Well, no, but of course that isn't the point of the Olympics, which long ago transitioned into a money-making machine rather than any kind of international sporting competition. The corruption is so bad, few countries even want to bid to host them anymore. But, sure, keep focusing on corporate sponsors that want to congratulate their athletes, as though that was the problem. Permalink | Comments | Email This Story

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Welcome to Bordertown, USA. Population: 200 million. Expect occasional temporary population increases from travelers arriving from other countries. Your rights as a US citizen are indeterminate within 100 miles of US borders. They may be respected. They may be ignored. But courts have decided that the "right" to do national security stuff -- as useless as most its efforts are -- trumps the rights of US citizens. Wall Street Journal reporter Maria Abi-Habib - a US-born citizen traveling into the States with her valid passport -- discovered this at the Los Angeles International Airport. Her Facebook post describes her interaction with DHS agents who suddenly decided they needed to detain her and seize her electronics. The DHS agent went on to say she was there to help me navigate immigration because I am a journalist with The Wall Street Journal and have traveled to many dangerous places that are on the US' radar for terrorism. It's generally a good idea to be wary when government employees suddenly offers to "help." But after pushing me to the front of a very long line at immigration, she then escorted me to the luggage belt, where I collected my suitcase, and then she took me to a special section of LAX airport. Another customs agent joined her at that point and they grilled me for an hour - asking me about the years I lived in the US, when I moved to Beirut and why, who lives at my in-laws' house in LA and numbers for the groom and bride whose wedding I was attending. Abi-Habib was very cooperative. She answered all of the agent's questions and remained calm despite this interaction being far from ordinary. It didn't matter. The DHS decided to flex its "our border, our rules" muscle. [T]hen she asked me for my two cellphones. I asked her what she wanted from them. "We want to collect information" she said, refusing to specify what kind. "Collect information." That's intrusion and surveillance that serves no discernible purpose. The DHS was obviously hoping Abi-Habib would remain as cooperative as she had during the previous questioning. But Abi-Habib disappointed the DHS agent by suggesting she should talk to the phones' owner about her search plans, rather than just hope a lengthy, suspicionless detention would prompt Abi-Habib to relinquish consent. "You'll have to call The Wall Street Journal's lawyers, as those phones are the property of WSJ," I told her, calmly. She accused me of hindering the investigation - a dangerous accusation as at that point, they can use force. I put my hands up and said I'd done nothing but be cooperative, but when it comes to my phones, she would have to call WSJ's lawyers. She said she had to speak to her supervisor about my lack of cooperation and would return. Obstruction is an actual crime. This wasn't an empty threat. I mean, it was an empty threat in the way that government officials hand out threats they have no intention of following through with as a means of coercion, but it was not empty as in "without enforceable consequences." It was meant to make Abi-Habib more receptive to granting the DHS permission to search the phones. But behind the threat is an actual criminal statute that could have turned this from a detention to an arrest. And all because the DHS didn't want to obtain consent for its search from the phones' actual owner. Abi-Habib called the DHS agent's bluff. The DHS relented. The female officer returned 30 minutes later and said I was free to go. Abi-Habib's post closes by noting she doesn't fit any terrorism profile and offers security tips for those traveling in and out of the US -- like leaving everything behind that could be searched/seized, or travel with a recently-wiped phone. The DHS's actions here are disturbing. It suggests agents dig through devices on a regular basis, even when there's a complete lack of suspicion. Laws and court rulings confirm there is a lowered expectation of privacy at US borders, but the agency's refusal to follow through with a search of the devices makes it clear agents are looking to hassle people they think won't fight back -- either during the detention, or after the fact with lawsuits and/or public discussions of their treatment. It's incidents like these that show many public security efforts by government agencies are almost entirely ornamental. It's the illusion of security, rather than an actual protective effort. Border agents dig around in people's stuff just because they can, not because they need to. Permalink | Comments | Email This Story

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Last week we noted how copyright has once again become a straw man, this time as part of an attempt to kill the FCC's plan to bring competition to the cable box. Under the FCC's plan, cable providers would have to provide their programming to third-party hardware vendors -- using any copy protection of their choice -- without forcing consumers to pay for a CableCARD. The plan has little to actually do with copyright, but cable providers have tried to scuttle the effort by trying to claim more cable box competition will magically result in a piracy apocalypse (stop me if you've heard this sort of thing before somewhere). The cable industry's attack on the FCC's plan has been threefold: hire sock puppets to make violently misleading claims in newspapers and websites nationwide; push industry-loyal politicians (who have no real clue what the plan does) to derail the plan publicly as the worst sort of villainy, and present a counter proposal packed with caveats that makes it all but useless. This counter proposal involves the cable industry delivering its programming via apps (much like it already does), but forces consumers to continue renting a cable box if they want to record programs via DVR. Given the cable industry's plan is little more than a press release, that's only the caveat we know of. But anybody thinking the cable industry's going to just give up $21 billion in set top rental fees and their walled garden control over the user experience is utterly adorable. Numerous companies with feet in both streaming hardware and TV (Google, Amazon, TiVO) obviously support the FCC's original proposal. A regulatory filing from Amazon back in April (pdf) applauded the FCC's plan, and while it raised some questions about copyright and copy protection, it also argued that most of the modern protection systems already at play on streaming hardware should be more than effective at protecting programming:"Amazon Fire TV 4K, nVidia Shield TV, Roku4, and numerous televisions from Sony, Vizio, and other manufacturers are already trusted by movie studios to deliver high-quality ultra HD movies with theater quality sound. These devices use hardware protections that assure that content delivered to these devices can only be decrypted and played back by devices authorized to play back that content. Furthermore, the technological solutions that exist today are much more advanced and robust than they were even when CableCARD was created. As the proliferation and success of OTT services (including those offered by Amazon) demonstrate, modern content protection technologies are both in use today and highly effective."Given the fact that most DRM is almost always bypassed and generally only succeeds at making the end-user experience difficult and annoying, that's debatable. Still, it should again be noted that copyright itself isn't really the issue here. As the EFF rather eloquently noted back in April, this fight is about control of the end-user experience and, for cable, protecting cable box rental revenue and keeping its customers firmly ensconced within the traditional cable walled garden. That said, it's interesting to watch how the nebulous term "copyright" morphs and shifts meaning as both sides try to use the concept as a malleable weapon. For example the Washington Post this week pointed to a another Amazon filing with the FCC (pdf) in which Amazon complains that it's the cable industry's app-based "compromise" solution that violates copyright and would be a piracy nightmare (despite cable delivering current content via apps with no problem):"The parties also discussed the recent submission from NCTA of an alternative method using an app-based approach. The Amazon representatives said that it was hard to comment specifically on the short submission since it lacked important details. However, some aspects of it warrant attention. The Amazon representatives stressed that hardware-based digital rights management (“DRM”) is the gold standard for content protection. A native application has no impact on the robustness of properly implemented hardware-based DRM with regards to content security. Thus, the NCTA submission does not in fact address the security concerns MVPDs have identified as one of the central reasons to oppose the proposals set forth in the NPRM.In short, the cable industry says it can't possibly support real cable box competition because... copyright! Amazon argues this is nonsense, but in its own way is perpetuating the straw man by claiming that only a hardware-based solution will work because... copyright! As we noted last week the very definition of copyright is being molested for argument's sake; a giant ugly red herring distracting observers from the fact that this is about control, not copyright. And obviously if you've used Amazon's own locked down, walled-garden products, the negative impact of DRM is very often a distant afterthought -- not entirely unlike traditional cable. It should be noted that the Amazon-owned Washington Post first gives way too much credence to these copyright claims, then mistakenly tells readers that the FCC's proposal and the cable industry's proposal are effectively the same thing, both efforts ultimately saving consumers money:"Critics say requiring companies such as Comcast to make their TV content freely available to any other box maker poses copyright risks, raising the possibility of theft by content pirates. Both the FCC approach and the cable industry proposal could reduce the cost of renting set-top boxes — in some cases, by potentially eliminating the need for them altogether.Well, no. The FCC's effort is a well-intentioned (though possibly doomed) attempt to bring real competition to the cable box, driving down costs for consumers. The cable industry's counter-proposal is a page of ambiguous promises with the clear intent of delivering programming via app, but forcing users to either still rent a cable box -- or pay their cable provider a premium if they want to record and store content (either on physical DVR or cloud-based DVR system). One effort is trying desperately to make the cable box more open and PC like, the other is a show pony designed to retain control in the face of evolution.Permalink | Comments | Email This Story

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Broadband ISP CenturyLink this week confirmed it's following on Comcast's heels and starting to impose usage caps and overage fees on the company's already pricey DSL services. As we've long noted, there's no reasonable defense for what's effectively a glorified rate hike on uncompetitive markets, but watching ISP PR departments try to justify these hikes has traditionally been a great source of entertainment (at least until you get the bill). According to a new CenturyLink "excessive usage policy (pdf) being circulated by the company, customers in early trial markets will soon face monthly usage caps of 300 GB for connections 7 Mbps or slower, and 600 GB monthly caps on connections 7 Mbps or higher. Exceed that usage allotment and you'll face overage fees of $10 per each additional 50 GB, up to a monthly maximum of $50 per month. The trial is starting in Yakima, Washington and is expected to expand into other CenturyLink territories later this year. As data has increasingly shown usage caps to be little more than a cash grab (and not really an effective way to manage congestion should it even exist anyway), many ISPs have stopped giving any justification whatsoever for their rush to cap customers. CenturyLink's PR department, however, does some yeoman's work in its new FAQ, first proclaiming that they're just nobly trying to improve customers' "internet experience":"Data usage limits encourage reasonable use of your CenturyLink High Speed Internet service so that all customers can receive the optimal Internet experience they have purchased with their service plan."Yes, charging your customers more money for the same (or less) service sounds like a lovely experience indeed, on par with a day of camping or swimming in the lake! Note that there are people who do consume an "excessive" amount of bandwidth, but traditionally those users can simply be pushed toward business-class tiers. No, these restrictions aren't about determining what's reasonable in terms of bandwidth consumption, they're about saddling all broadband customers with usage restrictions to protect legacy TV revenues from the rise of Hulu, Netflix, and other streaming services. After the story first broke this week CenturyLink took this narrative a bit further, issuing a press statement to all news outlets claiming that charging more money for the same service is an act of consumer empowerment:"CenturyLink is conducting usage-based billing trials in Yakima, WA, to allow customers to control their Internet usage. This gives our customers proactive management of their usage and ensures they are being billed fairly. Very few customers will see any change in what they pay for Internet service, as customers will only be billed an additional amount if they exceed the Internet usage limit for the High-Speed Internet plan they purchased. CenturyLink will analyze the data from this trial to determine next steps and make decisions regarding further rollout of usage-based billing."As we've noted with Comcast's caps, large ISPs like to suggest these price hikes are a "trial" where customer input matters. This lets them argue to regulators that they're not aggressively penalizing users in captive markets, they're just engaged in "creative price experimentation." It also gives consumers the false impression that their feedback matters, when ISPs know perfectly well that consumers loathe being charged more money under what's a highly punitive and often confusing new billing system. As for usage caps and overage fees giving consumers "proactive management of their usage" while ensuring "they are being billed fairly," keep in mind that unlike traditional utilities, no regulator checks the accuracy of ISP meters. That has historically resulted in ISPs billing consumers for phantom usage, or even charging them for consumption when the power is out or the modem was off. ISPs want to bill like utilities, but the faintest mention of them being regulated as such results in no limit of histrionics and hand wringing from the sector. Meanwhile, CenturyLink knows full well that customers can't do a damn thing about this glorified rate hike, because they either have no other broadband option -- or their alternate option (usually Comcast) is imposing usage restrictions as well. Behold the competitive glory of a broken broadband market few in government -- and even fewer in the telecom sector -- are actually interested in fixing.Permalink | Comments | Email This Story

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As we noted last week, China continues to find new ways to bring the online world under control. A post on the Adblock Plus blog has spotted yet another sector the Chinese authorities are bringing to heel: Internet advertising. Last week, China's State Administration for Industry and Commerce issued "Interim Measures for Internet advertising" (original in Chinese.) As the Adblock Plus blog post explains, the rules seek to pin down what exactly Internet advertising is, what is allowed, and what isn't: Among other things the rules seek to target false or misleading online advertising for prescription medicine and tobacco; require government approval to run ads for health products, medical supplies, veterinary medicine and pesticides; necessitate that paid search results be clearly differentiable from organic results; and oblige advertisers to be responsible for the authenticity of their ad content. That's all sensible stuff. But Article XVI (B) says that the following are prohibited: the use of Internet services, network devices, applications etc. to disrupt normal advertising data, tampering with or blocking reasonable advertisements from third-party businesses, unauthorized loading of advertisements; The Adblock Plus post points out that the ban on ad blocking is likely to have a major impact on Chinese users when it comes into force: There are apparently 159 million people who block ads on their mobile devices in China. Desktop numbers are relatively low by comparison. All of them, though, are going to have a fundamental right snatched from them come September, when their government will take away their right to block ads. Since it's hard to see the Chinese government really caring too much about the problems that ad-blocking software causes for online publishers, there is presumably another motivation behind this particular move. One possibility is that the Chinese authorities use the tracking capabilities of online ads for surveillance purposes, and the increasing use of ad blockers in China is making that harder. That clearly runs against the current policy of keeping an eye on everything that online users do in China, which is perhaps why the authorities want ad blockers banned in the country, despite the inconvenience and risks for users of doing so. It remains to be seen how successful the Chinese government will be in stamping out such popular software, or whether this will be another regulation that is largely ignored. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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With all the trademark actions we've seen taken these past few years that have revolved around the craft beer and distilling industries, it seems like some of the other folks in the mass media are finally picking up on what I've been saying for at least three years: the trademark apocalypse is coming for the liquor industries. It's sort of a strange study in how an industry can evolve, starting as something artisan built on friendly competition and morphing into exactly the kind of legal-heavy, protectionist profit-beast that seems like the very antithesis of the craft brewing concept. And it should also be instructive as to how trademark law, something of the darling of intellectual properties in its intent if not application, can quickly become a major speed bump for what is an otherwise quickly growing market. All of this appears to have caught the eye of Sara Randazzo, blogging at the Wall Street Journal, who notes that the creatively-named craft beers that have been spewing out of microbreweries across the country may be running out of those creative names. As today’s Wall Street Journal explores, legal disputes in the beer world are becoming the norm as new craft breweries spring up at a rate of roughly two per day. Trademark lawyers have gotten so used to the beer disputes that they are now turning on each other. Some dozen lawyers are contesting San Diego lawyer Candace Moon’s attempt to trademark the term “Craft Beer Attorney,” which she says she rightfully deserves. Within the rest of the post, Randazzo highlights one dispute between craft brewers in order to give a sense of just how small these belligerent parties are. It's a dispute that escaped even my radar, despite what has become something of my "beat" around Techdirt. Three professionals with day jobs decided to make a go at brewing craft beer and named their company Black Ops Brewing, the pun resting upon "hops" used in their beer, while also serving as a nod to their family members that served in the military. Three guys making beer, but the trademark dispute came almost immediately. Within months of launching, Mr. Broussard and his partners heard from Brooklyn Brewery clear across the country. The message: They needed to stop using the name Black Ops Brewing, because the New York brewery already had a beer named Brooklyn Black Ops. Three months of litigation and one preliminary injunction later, and the Fresno business is now called Tactical Ops Brewing Inc. “They probably spent four to five times what our company is worth in legal fees,” fellow co-founder Justin Campagne said. Now, we could spend some time analyzing whether or not there would be any real customer confusion to consider between the two names, whether the two companies were operating in the same market, or whether Brooklyn Black Ops had to initiate all of this in order to retain its trademark. Those would be worthy discussions to have, but there is a more fundemental question: is trademark law in this instance doing more to help or hurt the craft brewery industry? It's not a simple question to answer in the present, though I do think the trend of increased trademark actions in the industry should tell us something important. As the industry becomes more crowded, trademarks are serving as a method to push out new players, or at least making entry into the market more difficult. After all, there are only so many hop-puns specifically, and creative ways to name a specific brew more generally. With new craft breweries springing up every day and those breweries each pushing out multiple different brews, at some point we'll get to a place where there are so many breweries producing so many brews with so many names that having a trademark on all of them could render the entire industry in trademark molasses, with legal actions all over the place and nobody knowing for sure whether just putting out a new product will result in crippling lawsuits. Whatever trademark should be, it should certainly not slow down burgeoning and explosive industries. It's becoming quite clear that craft brewing has a trademark problem. Permalink | Comments | Email This Story

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An interesting ruling out of Georgia states that an unconventional method to determine a cell phone's owner is not a search under the Fourth Amendment. The appeals court decides [PDF] that the information obtained has no expectation of privacy. Because Hill had no reasonable expectation of privacy in the information at issue – his own name, date of birth, and phone number – we agree with the state there was no search under the Fourth Amendment, and accordingly we reverse. The background is this: James Brandon Hill exited a taxi cab without paying, leaving his phone behind. The cab driver reported this to the police and an officer dialed 911 to obtain the owner's info. The court doesn't touch the issue of abandonment -- which would likely have made the search legal. But its decision that the method used to obtain this info isn't a search seems to be a bit off. While the information received may have had no expectation of privacy, an officer accessing a cell phone without a warrant is questionable under the Supreme Court's Riley decision. As noted above, the warrantless search still likely would have survived a motion to suppress as the phone was abandoned in the cab. In fact, Hill does not challenge the seizure of the phone -- only the search. The Third Party Doctrine is in play here, what with this information being handed over to a service provider in exchange for phone service. The opinion quotes Orin Kerr in support of its Third Party Doctrine assertions. Consistent with this distinction, we have held in a case involving a landline phone that the Fourth Amendment “protects only the content of a telephone conversation and not the fact that a call was placed or that a particular number was dialed.” Stephenson, supra, 171 Ga. App. at 939 (citation and punctuation omitted). See generally Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1019 (II) (A) (2010) (originating telephone number is non-content information analogous to return address on envelope). But that applies only to phone call routing info, not the user's personal information. It's a good thing this citation isn't a direct comparison because Orin Kerr doesn't agree with the court's decision on the search issue. Held: Calling 911 from a phone is not a “search” because it only obtains non-content information about the phone that is not protected under Smith v. Maryland. I don’t think that reasoning works, as it’s mixing up two different questions: (1) whether calling from the phone is a search of the phone, and (2) whether, once the call is placed, receiving the number dialed at 911 is a search of the number. I think calling 911 is a search because of (1), not because of (2). Calling 911 pushes out the number from the phone, and I think that forced revealing of the number should count as a search of the phone. The decision's implications go much further than this one-off case where an abandoned phone was discovered and "forced" to reveal user info by a law enforcement officer. Think Stingrays. From the opinion: The fact that it was a law enforcement officer, rather than Hill, who placed a call from the phone does not change our conclusion that the information obtained was not subject to Fourth Amendment protection. Cases from other jurisdictions illustrate this point. In United States v. Skinner, 690 F3d 772, 777-778 (II) (A) (6th Cir. 2012), for example, the United States Court of Appeals for the Sixth Circuit held that law enforcement agents could take action to cause a cellular phone to emit information from which they could track it without running afoul of the Fourth Amendment, because the defendant did not have a reasonable expectation of privacy in the location data emitted from the phone. If this isn't a search, then the use of an IMSI catcher isn't a search, even though it involves the manipulation of a person's phone by law enforcement to obtain information otherwise not immediately obtainable. As for the Riley decision, the court decides use of the phone is not the same as accessing the phone's contents. Here, in contrast to Riley, the officer did not access any files on Hill’s phone, which was protected by a passcode. He “did not attempt to retrieve any information from within the phone,” United States v. Lawing, 703 F3d 229, 238 (II) (A) (ii) (4th Cir. 2012), but instead used the phone in a manner that caused it to send Hill’s telephone number to a third party, the 911 dispatcher. We do not construe Riley to prohibit an officer in lawful possession of a cellular phone from placing a call on that phone in an attempt to obtain identifying information about its owner. Moreover, we do not construe Riley to recognize a legitimate expectation of privacy in identifying, non-content information such as the person’s own phone number, address, birthdate, simply because that information was associated with a cellular phone account rather than a landline phone account or a piece of physical mail. While historical cell site location info is generally considered to be free of expectations of privacy under the Third Party Doctrine, real-time access of this same information is still under discussion in several courts. Making the argument that law enforcement manipulation of a person's cell phone to extract information not otherwise immediately obtainable suggests that this particular court would look favorably on the use of Stingray devices to locate cell phones. After all, the phone's location is a third-party record, even though it's not a third-party record that isn't normally obtainable as it's being generated. It's a limited ruling from a state appeals court, but it still shows advances in surveillance tech will be granted a lot of leeway by judges because of a decision nearly four decades old at this point (Smith v. Maryland, 1979). Had the court come to the conclusion it was a search, it wouldn't have saved Hill (because he abandoned his phone), but it at least would have recognized it's one thing to obtain third-party records from a third party. It's quite another when the government uses a closed loop to obtain the same info. Permalink | Comments | Email This Story

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Bunnie Huang is having quite a day -- and it's a day the US government perhaps isn't too happy about. Huang has worked on a number of interesting projects over the years from hacking the Xbox over a dozen years ago to highlighting innovation happening without patents in China. This morning we wrote about him suing the US government over Section 1201 of the DMCA. And now he's teamed up with Ed Snowden (you've heard of him) to design a device to warn you if your phone's radios are broadcasting without your consent. Basically, they're noting that your standard software based controls (i.e., turning on "airplane mode") can be circumvented by, say, spies or hackers. But their tool is designed to actually determine if the radios are broadcasting for real: The aim of that add-on, Huang and Snowden say, is to offer a constant check on whether your phone’s radios are transmitting. They say it’s an infinitely more trustworthy method of knowing your phone’s radios are off than “airplane mode,” which people have shown can be hacked and spoofed. Snowden and Huang are hoping to offer strong privacy guarantees to smartphone owners who need to shield their phones from government-funded adversaries with advanced hacking and surveillance capabilities—particularly reporters trying to carry their devices into hostile foreign countries without constantly revealing their locations. They've published a paper describing the product and it's a good read. Front-line journalists risk their lives to report from conflict regions. Casting a spotlight on atrocities, their updates can alter the tides of war and outcomes of elections. As a result, front-line journalists are high-value targets, and their enemies will spare no expense to silence them. In the past decade, hundreds of journalists have been captured, tortured and killed. These journalists have been reporting in conflict zones, such as Iraq and Syria, or in regions of political instability, such as the Philippines, Mexico, and Somalia. Unfortunately, journalists can be betrayed by their own tools. Their smartphones, an essential tool for communicating with sources and the outside world–as well as for taking photos and authoring articles–are also the perfect tracking device. Legal barriers barring the access to unwitting phone transmissions are failing because of the precedent set by the US’s “third-party doctrine,” which holds that metadata on such signals enjoys no legal protection. As a result, governments and powerful political institutions are gaining access to comprehensive records of phone emissions unwittingly broadcast by device owners. This leaves journalists, activists, and rights workers in a position of vulnerability. Reporter Marie Colvin’s 2012 death is a tragic reminder of how real this vulnerability can be. A lawsuit against the Syrian government filed in 2016 alleges she was deliberately targeted and killed by Syrian government artillery fire. The lawsuit describes how her location was discovered in part through the use of intercept devices that monitored satellite-dish and cellphone communications. Of course, at this point, all that exists is the paper explaining how this will work. They haven't yet built the actual system. But given Huang's history of hardware hacking and his relationships in Shenzhen, it seems likely that he could get it made pretty quickly if there was demand. Huang, who lives in Singapore but travels monthly to meet with hardware manufacturers in Shenzhen, says that the skills to create and install their hardware add-on are commonplace in mainland China’s thriving iPhone repair and modification markets. “This is definitely something where, if you’re the New York Times and you want to have a pool of four or five of these iPhones and you have a few hundred extra dollars to spent on them, we could do that.” says Huang. “The average [DIY enthusiast] in America would think this is pretty fucking crazy. The average guy who does iPhone modifications in China would see this and think it’s not a problem.” Again, who knows if people will actually end up using this, but it's still good to see solutions like this being explored and tested.Permalink | Comments | Email This Story

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We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt. We've long argued that it's pretty ridiculous that creative artists and entrepreneurs sometimes find themselves at odds with one another, as there are a ton of similarities. It's why, a few years ago, we hosted an Artists & Entrepreneurs branstorming workshop, bringing together a bunch of content creators along with the entrepreneurs building platforms for those artists. A part of our thesis was that the two had a lot more similarities than differences. Both types were trying to be creative and innovative. Both were trying to run a business of sorts as well. There were some obvious areas where things were slightly different, but the similarities certainly outweighed the differences. And that's just part of the reason it's nice to see the new book from New Media Rights' Art Neill and Teri Karobonik called Don't Panic: A Legal Guide (in plain english) for Small Businesses & Creative Professionals. New Media Rights does some really great work on the legal side helping content creators out, such as when big companies abuse copyright to censor creative works of artists. This new book is a super useful (plain English!) legal guide to a variety of issues that face both creative artists and small businesses. Besides being super understandable for the non-lawyer artist or developer, it also reinforces that the issues both face are fairly similar.Permalink | Comments | Email This Story

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Earlier this week there was a fascinating piece in the New Yorker by Jane Mayer, interviewing Tony Schwartz, who is credited as the co-author to Donald Trump's first and most famous book, The Art of the Deal (Schwartz is interchangeably referred to as the ghostwriter or co-author -- his name appears on the book as the much smaller type-faced co-author, which is unlike most ghostwriters -- but Schwartz claims he really wrote the book after just following Trump around for a bit and getting some ideas from him). The interview with Schwartz is great storytelling and focuses on his belief that Trump would be a disastrous President (and the fact that The Art of the Deal was exaggerated reality). Despite the fact that the Republican National Convention happened this week, where Trump was officially nominated as the Republican Party candidate for President, Trump apparently found the time to have his lawyer dash off a ridiculously stupid cease and desist letter. It's the kind of cease and desist letter that we tend to see from complete cranks, rather than serious businessmen, let alone the official nominee for President from a major political party. Everything about the letter is flat out ridiculous (and at points, contradictory). Throughout it, Trump's Chief Legal Officer, Jason Greenblatt, keeps saying that Schwartz's statements are defamatory, but fails to name a single one. As has been pointed out many times, if you're screaming "defamation" but fail to point to a factual statement that is defamatory, you're just making noise. The letter also claims that Schwartz is attempting to "rewrite history" and even starts out suggesting that Schwartz's claim of writing the book is an exaggeration, because the contract was merely to "provide certain services." But, rather than actually follow through on that line of argument, Greenblatt then more or less admits it, while arguing something totally different: that the book was successful because of Trump's association with it, not because of Schwartz. But Schwartz never argued otherwise, and that's completely besides the point. Mr. Trump hired you to provide certain services in connection with the preparation of the Book. Although it has long-suited you to dramatically overstate your work on the Book in order to further your own career, (for example, telling George Stephanopoulos on Good Morning America that, "I wrote every word of [the Book], Donald Trump made a few red marks when I handed him the manuscript, but that was it."), let me set the record straight about the origin of the Book: Mr. Trump was the source of all of the material in the Book and the inspiration for every word in the Book. You would not have had access to any of the information that appeared in the Book without Mr. Trump. He was the mastermind behind the deals described in the Book, and he provided you with the facts and facets of each of these deals in order for you to write them down. What's more, Mr. Trump is wholly responsible for the great success of the Book, not you. It was his ingenuity that made the deals described in the Book happen, and it was his promotion of the Book that made it a runaway success. Again, so what? That's got nothing to do with Schwartz's point and is nowhere near defamatory. Greenblatt also goes on to weirdly attack the one claim from Schwartz that he's pretty sure that many of the things in The Art of the Deal are false. Greenblatt wastes many perfectly good English words arguing that the book contract gave Schwartz the right to make changes to the book to make sure it was accurate, and somehow suggesting that his failure to change things proved that he didn't actually believe things in the book were false. Of course, again, this is not what Schwartz was arguing. He was saying that the stuff Trump told Schwartz, which Schwartz then crafted into the narrative of the book, were lies told by Trump. That should be obvious to anyone with basic reading comprehension skills. Also, the above accusation is doubly weird, because just a page earlier in the letter, Greenblatt was arguing that Schwartz was a mere conduit and was basically just hired to scribble down Trump's words of wisdom. If he played such a minor part, then isn't that more or less admitting that Schwartz would have no say in correcting falsehoods in the book? The letter also tries to claim that Schwartz has been begging Trump for more work for decades and recently signed an agreement for royalties on the audiobook version of it. Schwartz, for his part, denies ever asking Trump for more work and says he actually turned down the offer to work on the sequel. The agreement on the audiobooks may be true, but it's difficult to see how that matters. Schwartz now speaking out against Trump, if anything, would likely diminish the interest in the book, and would impact Schwartz's own royalties (for which Schwartz has pledged to charity for any works purchased this year). Even more hilariously, Greenblatt ends the letter by demanding Schwartz not only shut up, but also return all the royalties earned over the years from the book, including his half of the $500,000 advance. Thankfully, Schwartz had lawyer Elizabeth McNamara at Davis Wright Tremaine respond to the letter, calling bullshit on it. The whole thing is worth a read (it's really only two pages), but here's a snippet: Your letter alludes vaguely to "defamatory statements," "outright lies" and "downright fabrications," but you do not identify a single statement by Mr. Schwartz that is factually false, let alone defamatory. Instead, it is self-evident that Mr. Trump is most concerned with Mr. Schwartz's well-founded expressions of his own opinion of Mr. Trump's character, as well as Mr. Schwartz's accurately taking credit for the writing of The Art of the Deal, which you pointedly do not contest. Also, in Mr. Trump's eyes, Mr. Schwartz has been "very disloyal" in speaking out on these issues, as he is quoted saying to Mr. Schwartz in the recent New Yorker article by Jane Mayer. The fact that Mr. Trump would spend time during the week of the Republican National Convention focused on settling a score with and trying to censor his co-author on a thirty-year-old book is, frankly, baffling, but only further underscores the very basis for Mr. Schwartz's criticisms. In any event, the demands you make in the letter are without any foundation in law or fact. Mr. Schwartz will not be returning any of the advance or royalties from the Book, and he has no intention of retracting any of his opinions about the character of the Republican nominee for the presidency, nor does he have any obligation or intention to remain silent about this issue going forward. Of course, as we've noted in the past, this is kind of par for the course for Trump. When people say mean things about him, his lawyers tend to go ballistic, threatening (and sometimes suing for) defamation, even when there clearly is no defamation at all. This is why it's so ridiculous when Trump talks about "opening up" libel laws to go after those who write or say mean things about him. Being so thin skinned and willing to at least threaten to drag an author to court for stating his opinion hardly seems particularly Presidential.Permalink | Comments | Email This Story

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