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Like hundreds of thousands of Americans, I am closely following the "airport cases" around the country. In order to keep abreast of the latest developments in one of the fastest-moving cases, Washington v. Trump, I built a Twitter bot that scrapes the public docket mirror hosted by the Ninth Circuit and tweets about new documents and links as soon as they're added. This case leads a legal push that has attracted incredible amounts of public attention. There have been tens of thousands of protestors, dozens of organizations and companies that submitted amicus briefs (including Techdirt's think-tank arm, the Copia Institute), and over 135,000 people who tuned into the audio-only livestream of the Ninth Circuit oral arguments (which was also broadcast live on multiple news channels). Those numbers reveal a public demand to be informed and to participate in the law. But they also show the limitations on the kind of transparency that can satisfy that demand. Most notably, any attempts to make court proceedings more accessible to the public has to contend with the expense and overhead of dealing with PACER. My bot is only possible because the Ninth Circuit provides a public docket mirror for individual "cases of interest," essentially duplicating the existing system outside the paywall. Those mirrors are manually updated, which means they are labor-intensive, error-prone, and not always up to date. By contrast, look at the @big_cases bot run by USA Today reporter Brad Heath. It monitors a set of district court cases, selected by hand, and posts new documents as they get filed. These district court cases don't have public docket mirrors, so @big_cases accesses PACER directly -- and for that, it needs user credentials and ultimately to pay for the documents it downloads. For a journalist whose job is reporting on legal developments, paying these costs makes sense -- and sharing the documents further is a valuable public service. Without institutional backing, though, it's hard to justify the PACER expenses. The costs go beyond the financial. These bots represent an experiment in meeting members of the public where they are, and those efforts are less likely if they come with a pricetag. Worse, it means these experiments will be limited to cases of widespread general interest. To pick a trivial example: Techdirt readers might be interested in a bot that tweets updates from privacy or copyright dockets. If those public documents were freely accessible, anybody could build a tool like that without worrying about subsidizing the ongoing PACER costs. At a time when the president and his press secretary are calling into question the legitimacy of factual news reporting, an informed public requires more than ever access to primary sources. Moreover, they need to be confident in the integrity of those sources. Journalists reporting on court proceedings increasingly post the original source documents. Without a free and public government source file, though, most readers can't see the context of the case, and they have to trust that they're getting the full and unmodified documents in question. The procedural stance of Washington v. Trump is unclear. A Ninth Circuit judge has made a request that both sides brief whether a larger panel should re-hear the question. The White House has issued conflicting reports about whether or not it will appeal Thursday's order to the Supreme Court. And the District Court has indicated that a new briefing schedule might be appropriate. These paths offer various levels of transparency, and it's frustrating to know my bot may not be able to keep up with, say, district court proceedings simply because of the antiquated PACER system. Meanwhile, the issue continues to attract attention from lawmakers. The House Judiciary Committee will hold a hearing on Judicial Transparency and Ethics on Tuesday, February 14, and is expected to include testimony on PACER. Hopefully, the Committee uses this to recognize that a truly transparent judiciary requires rethinking how PACER functions. Permalink | Comments | Email This Story

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PayPal is ubiquitous. And that's unfortunate. Over the years, the payment platform has earned a reputation for acting in a way that can charitably be described as "hellishly inconsistent." For little to no reason, users have found their accounts shut down or suspended. And, thanks to US laws meant to prevent the PayPal-ing of material support to foreign terrorists, PayPal has been suspending accounts for innocuous payments containing certain trigger words in the descriptions. The latest victim of PayPal's inscrutable policies and unapproachable customer service is a small Canadian newspaper. As the CBC reports, the small paper's attempt to enter a few of its stories for consideration for national newspaper awards resulted in the bricking of both the sender's and the receiver's accounts. A community newspaper's payment to enter a feel-good story about a family of Syrian refugees in an awards competition prompted PayPal to freeze the account of a national media organization after flagging the suspicious transaction, The Canadian Press has learned. [...] The weekly Flin Flon Reminder entered the article — titled "Syrian family adapts to new life" — last month as part of its submissions to the annual Canadian Community Newspaper Awards. The feature story from July 2016 outlines the challenges and triumphs as the family settled in the Manitoban town of 5,100 and the community's willingness to make them feel welcome. The word "Syrian" set off PayPal's auto-monitor, which blocked the Flin Flon Reminder's $240 in entry fees. (To be considered for the awards, submitters must pay $60 per article submitted -- and it would appear Flin Flon submitted four of them.) It would be one thing if the payment was flagged and then reviewed. But nothing in the story suggests PayPal took a second look at this until a larger media outfit -- the CBC -- started asking questions. PayPal didn't limit itself to killing the sender's account. It suspended the receiver's account as well. This week, Durnin called News Media Canada — formerly Newspaper Canada — to find out what had happened. They realized PayPal had frozen the News Media Canada account, said Nicole Bunt, who processes the awards entries. PayPal supposedly reviews flagged payments within 72 hours. No one involved heard anything from PayPal until after the CBC's inquiries. The belated response from PayPal: "Um... US law mumble mumble mumble." "You may be buying or selling goods or services that are regulated or prohibited by the U.S. government," PayPal said in an email to News Media Canada. Oh, really? This is some spectacular review work by PayPal, considering both the sender and the receiver are located entirely in Canada. While US law may govern US transactions processed by the company, they should have little to no effect on completely extraterritorial transactions. And the sole reason for PayPal's dual account nuking? The word "Syrian" being in the submission to the newspaper awards. The note also requested a "complete and detailed explanation of the transaction" and the purpose of the payment, which identified with the story's headline. That's the problem with keyword flagging. All it's ever going to do is produce false positives and inconvenience hundreds of non-terrorists. The algorithms deployed by PayPal are looking for terms no terrorist is going to use when transferring funds to allies. It works on the stupidest of assumptions: that memo lines are going to filled with suspicious keywords when actual nefarious transactions are taking place. If you're going to build a US law-compliant service that relies on tragically flawed logic, the least you can do is actually review flagged transactions in a timely manner and provide actual people customers can talk to, to sort out these issues. Instead, PayPal appears to have left this payment-vetting process to the machines and made it all but impossible to speak to someone who might be able to derive something from context. And it makes it worse by subjecting other countries to US law, whether or not the flagged transaction violates laws in the country where the funds are changing hands. Then there's this kicker at the end of the CBC article. PayPal did not immediately explain its process. Yeah. Or EVER. That's the other problem. Go ahead and CYA by flagging keywords and keeping your Terms of Use vaguely-written and open to often-baffling interpretations. But do your customers a favor and at least answer questions about the specifics of their flagged transactions. At the very least, it would show some human has eyes on the process. If you can't be proactive, at least be usefully reactive. Permalink | Comments | Email This Story

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Despite the rising competitive threat of T-Mobile, Verizon Wireless has spent the last few years simply refusing to seriously compete on price. That stubbornness has extended to the company's refusal to match T-Mobile's unlimited data plans, eliminated by Verizon back in 2011. In a truly competitive market, you're supposed to listen to your customers and try to provide whatever they're clamoring for. But Verizon's tack has been the exact opposite; the company spending the last few years trying to tell consumers they don't really want simpler, unlimited data options -- and that these plans are unnecessary and unviable. For most of this time, Verizon Wireless' excuse du jour was that it didn't have to compete on price or service because its network was just that phenomenal. But a report last week by Open Signal found that T-Mobile, once considered an under-cooked upstart, was finally fielding a network that nearly matches Verizon in terms of both speed and overall coverage: "Our testers were able to find a Verizon LTE signal 88.2% of the time, cementing Big Red's place at the top of our 4G rankings. But T-Mobile has been systematically closing the gap. In the fourth quarter its 4G availability was less than two percentage points below Verizon's, the closest we've seen that difference." Initially Verizon tried to downplay the results, insisting that because Open Signal uses crowdsourced data, that the results souldn't be taken seriously. That didn't go over particularly well over at T-Mobile: Typical @Verizon to say they (and their well-paid consultants) know better than 4.5 BILLION customer experiences. 🤔 https://t.co/bSO2HOLvNz — John Legere (@JohnLegere) February 10, 2017 But Verizon then did a 180, announcing late last week that the company would finally be offering unlimited data again, and without throttling video, music or games as a result (which is now standard practice at both T-Mobile and Sprint). Of course the industry's definition of "unlimited" remains as murky as it has always been, with Verizon quick to note that by "unlimited," they actually mean somewhere around 22 gigabytes per month, after which your connection will likely be throttled: "On all Verizon Unlimited plans you get our fast LTE speeds. To ensure a quality experience for all customers, after 22 GB of data usage on a line during any billing cycle we may prioritize usage behind other customers in the event of network congestion. While we don’t expect to do that very often, network management is a crucial tool that benefits all Verizon customers." Still, a good move is a good move. And Verizon's decision will likely push AT&T (which currently only sells you unlimited data if you bundle your wireless connection a with DirecTV service) to follow suit. Granted competition in telecom is fickle and inconsistent, and non-price competition -- where theatrics trump actual value -- is generally the rule of thumb. And should rumors of a new Sprint, T-Mobile merger be accurate, we could very quickly be facing three large carriers with, once again, little to no incentive to actually give consumers what they want. Permalink | Comments | Email This Story

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Keep your skills sharp and stay up to date on new developments with the Virtual Training Company Unlimited Single User Subscription for $89. With courses covering everything from MCSE certification training to animation, graphic design and page layout, you'll have unlimited access to the entire catalog. They have over 1,000 courses, add more each week, and each course comes with a certificate of completion. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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Part of the reason asset forfeiture is such a problem is the lack of transparency. The funds obtained through this process are frequently hidden from the public and used to purchase everything from margarita makers to Stingray devices. The procedure through which the government takes control of citizens' assets is also shrouded in secrecy. Cases are filed against property, not the persons formerly in possession of them. The process for retrieval is purposely impenetrable, designed to make it almost impossible for petitioners to reclaim their assets. Law enforcement officials claim that all parts of this opaque process are there to prevent drug dealing and/or terrorism, hence their reluctance to divulge the inner details of this particular mean/method. Legislators in New Jersey were hoping to end this unofficial tradition with a bill that would have demanded far more transparency from agencies involved in asset forfeiture. S2267 passed with unanimous support in both houses of the State legislature and would have instituted the following information be submitted to the state Attorney General's office every year. [I]nformation on the seizure of the property, including a description of the seized property; the date of seizure ; the market value of the seized property; the alleged criminal offense associated with the seizure; a description of the location at which the property was seized, including whether the property was seized from a private residence or business or during a traffic stop; if the property was seized during a traffic stop, the name of the highway, street, or road on which the property was seized and whether the vehicle was traveling northbound, southbound, eastbound or westbound;    (2)   the disposition of any criminal action related to the seizure;    (3)   information on forfeiture of the seized property, including:    (a)   whether the forfeiture involved prima facie contraband or was enforced by civil action pursuant to N.J.S.2C:64-1 et seq., the forfeiture was a result of racketeering activity pursuant to N.J.S.2C:41-1 et seq., or the forfeited funds or property were obtained from an action involving financial facilitation of a crime pursuant to P.L.1994, c.121 (C.2C:21-23 et seq.); and    (b)   whether a person with a property interest in the seized property was represented by counsel at the forfeiture proceeding, if applicable;    (4)   information on the final disposition of the seized property, including whether the property was returned to the owner, destroyed, sold after forfeiture, or retained after forfeiture; and the date of disposition;    (5)   information on the value of 1the1 forfeited property, including the gross amount received from 1the1 forfeiture, the total expenses deducted as part of the forfeiture action, and the net amount received from the forfeiture;    (6)   whether the forfeiture resulted from an adoptive seizure; and    (7)   any other information the Attorney General requires. This information would have provided the public with valuable insight into state law enforcement's use of asset forfeiture. And there are several reasons law enforcement wouldn't want to have to turn over these details. The dirty secret of asset forfeiture is that it's not being used to take down the biggest and baddest criminals. It's far more frequently used to nickle-and-dime average citizens, with a majority of an agency's take being made up of seizures valued at well below $10,000. Vehicles are seized from grandmothers because their grandchildren drove drunk. Any cash on anyone who smells like marijuana to a police officer usually ends up being forfeited even if the person is free to go. These details would have made the state's asset forfeiture programs looks exactly as bad as they are. New Jersey holds a D rating from the Institute for Justice, which performs annual reviews of states' forfeiture programs, rating them for damage done to citizens' rights and property. One of the aspects of forfeiture that aided in the state's D rating is the lack of transparency and almost-nonexistent reporting requirements. County prosecutors across the state collected $72 million in forfeiture proceeds from 2009 to 2013, including more than $57 million in cash and vehicles worth $9 million, according to the report. In addition, the report found county agencies received an average of $7 million a year from federal "equitable sharing" programs that give state and local agencies a cut when they serve on federal task forces. But the millions tallied by the institute "are a vast undercount for what's going on in New Jersey," according to Dick Carpenter, the group's director of strategic research and one of the authors of the report. Carpenter said it's difficult to get the whole picture in New Jersey because while the state does collect some data, it was not able to provide the group with comprehensive figures for local and state law enforcement agencies. "The transparency in New Jersey is pretty poor," he said. "The ability for average folks -- or even elected officials -- to know what's going on in their state or municipality just isn't there." None of this matters now, at least not for the foreseeable future. Governor Chris Christie has decided the public isn't on the "need to know" list as far as asset forfeiture is concerned. Gov. Chris Christie on Monday vetoed a bill that would have required county and state prosecutors to publish information about how they use civil courts to seize property from criminal investigations. In order to fend off any attempts at a veto override, Christie has proposed his own law enforcement-friendly "fixes" to the rejected legislation. Christie instead recommended a quarterly report in which prosecutors identify seized assets and detail the legal proceedings by which they were seized. Under Christie's proposal, prosecutors also would not have to disclose why they seized an asset or for what purpose it would be used. Christie's "compromise" does nothing. Quarterly reports are already filed with the attorney general, but they're withheld from the public. The details included are minimal and provide no useful insight into law enforcement's forfeiture activities. And it's not as though the AG's office goes after agencies for incomplete or nonexistent reporting. There appears to be no consequences for agencies that fail to comply with these minimal reporting requirements. Of course, Christie's "compromise" is predicated on a ridiculous pretense. The governor said his proposed changes would "strike a balance between government transparency and protecting law enforcement operations and personnel." Protect law enforcement from what exactly? Transparency? Accountability? Criticism? There's nothing in the information the bill demanded that would make it anything more dangerous for law enforcement. It might inform the public where law enforcement likes to go diving for dollars, but the only negative thing likely to happen to law enforcement is an increase in informed criticism. In Christie's mouth, the words "government transparency" are meaningless -- as meaningless in his buzzword jumbling, bootlicking excuse for kicking the legislature's unanimously-supported bill to the curb. Permalink | Comments | Email This Story

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As was widely expected, back in October, Oracle announced its appeal of Google's big fair use win, concerning its reuse of certain Java API components in Android. If you've been following this (long, long, long) case, you'll recall that Google has won twice at the district court level. The first time, Judge William Alsup correctly noted that APIs were not subject to copyright, because copyright law clearly states that copyright protection does not apply to "any idea, procedure, process, system, method of operation, concept, principle, or discovery" and an API is a process, system or method of operation. However, the Court of Appeals for the Federal Circuit (CAFC), who only had jurisdiction over the case because it initially involved a patent issue, seemed unable to understand that an API is different from software and overturned the lower court's sensible ruling. That resulted in the second case which was weird, because everyone had to tiptoe around the fact that basically everyone had assumed that APIs were not covered by copyright, in order to instead make a fair use argument, which ultimately succeeded. Oracle then tried to play some games to get that ruling overturned, but that failed miserably, when the judge pointed out that Oracle's argument was almost entirely based on a failure to read what Google had actually given them (Oracle had claimed that Google failed to disclose something important, when the reality was that Oracle's lawyers failed to read the material that Google had given them). Anyway, now that things are back at CAFC, we have to hope and pray that the court doesn't muck things up any worse than it already has (and, trust me, it's mucked things up badly to the point that it's impacting a bunch of other cases. On Friday, Oracle filed its 155-page opening brief. Feel free to dig in, if you must, but the arguments are (mostly) basically what we expected. Oracle argues that Google's use is not fair use (basically saying the jury got it wrong). It further argues that the case should be sent back to the district court because it was prevented from presenting key evidence that would have undermined the fair use claim. And then, somewhat incredibly, at the end, Oracle continues to try to argue that Google concealed its plans to expand Android into PCs -- the very issue that Judge Alsup smacked Oracle down for when it was revealed that Google had shared that info, and Oracle just hadn't read it. In the filing, Oracle whines that Judge Alsup "blamed the victim" for not having read what Google actually gave them, saying that it was impossible to have read everything Google gave them because there was just too much stuff and this was a "needle in the haystack." That... seems pretty weak. Amusingly, at the same time that Oracle is complaining that Google gave Oracle too much in discovery, it also complains that Google clearly withheld more info. Throw any argument at the wall and see what sticks, I guess. Frankly, this opening brief seems to really lean in to CAFC's notorious ignorance of how software works, and the fact that last time around it couldn't tell the difference between an API and software. It just keeps focusing on the agreed upon point that Google copied some of Java's APIs, but keeps calling it "copyrighted code." It's impossible to predict how CAFC will rule, because CAFC is frequently hilariously confused when it comes to how technology (and software in particular) actually work. But hopefully someone over there will take the time to figure it out. After all, there have been a few, somewhat shocking, signs of enlightenment in the past few months at CAFC. Hopefully that continues. Permalink | Comments | Email This Story

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The state of Ohio has had its problems with speed cameras. Back in 2010, the city of New Garfield refunded $100,000 in fines collected in violation of its speed camera policy. The city told the public that drivers would only be ticketed for driving more than eleven mph over the speed limit [... which makes one question the purpose of its speed limits]. Plenty of drivers got dinged for exceeding the speed limit by less than the arbitrary cutoff, resulting in the mass refund. Not that this will necessarily keep anyone from being ticketed, speeding or not. In the same year, an Ohio court ruled that an officer's guesstimate of someone's speed is just as reliable as radar or speed cameras when it comes to testimony. Given how many speed cameras have ticketed parked cars and brick walls, this is somewhat of a "close case" when it comes to testimonial accuracy. The Newspaper -- which stays on top of every speed/traffic cam-related development [note: they really HATE traffic cams in France…] -- reports that New Miami, Ohio, is being forced to hand back every cent of its speed camera take as the result of a court decision. New Miami, Ohio broke the law, it was caught, and now it will have to repay $3,066,523 worth of tickets. That was the judgment rendered Wednesday by Butler County Court of Common Pleas Judge Michael A. Oster Jr. "If the government has created an unconstitutional law/ordinance that has taken people's money without affording them the necessary due process protections, should not justice demand, and the law require, restitution of that money to the people?" Oster asked at the opening of his ruling. "Once the complexities of the law are analyzed, the answer is simple: Yes." As the court sees it, the system set up by the town eliminates a crucial Constitutional right. It's very likely the town knew its actions were unconstitutional, but it probably never assumed it would have to refund $3 million in ill-gotten revenue. New Miami, Ohio, is more speed trap than town, as the court order [PDF] explains: The Village of New Miami is in St. Clair Township located just north of the city of Hamilton. New Miami is less than one square mile in size (.95 square miles) and has a population of 2,249 people based on the 2010 United States Census Bureau. US. 127, a major north-south highway, runs through the Village and is the primary location where the speed cameras were located. Despite its blink-and-you'll-miss-it size, the village still issued an incredible amount of tickets, thanks in part to its freebie contract with camera provider Blue Line Solutions (BLS). The contract it signed required the cameras (of which there were at least two) to be in operation for a minimum of 100 hours a month. This isn't unmanned time, as the camera system requires an officer to pull a trigger and capture an image of the speeding driver to send to the processing company that issues the tickets. BLS gave the town the cameras for free, under the assumption the investment would pay off with operating times of 100 hours per month minimum per camera. After review by a Village of New Miami police supervisor, the ticket is mailed to the registered owner and a fine of $95 is included. The village and Blue Line Solutions, LLC split each $95 fine with one another. The village keeps 65 percent of the $95 fine while the private camera company keeps 35 percent. The speed cameras as free for the village, provided to the village by the private contractor under the five year deal. To ensure the revenue flow wasn't disrupted by angry drivers and/or insurance companies, the town rewrote its statutes to cut both the criminal justice system and insurance companies out of the equation. Village of New Miami records show the small Butler County village created its own speeding law in 1991, allowing the village to charge speeding violations under a civil ordinance instead of under the state’s uniform traffic statute. Under the village ordinance, drivers caught speeding in New Miami would not be subjected to the state’s point system, which would suspend a driver who accrued 12 point violations in a two year period. As a result, insurance companies would not know the conduct of the drivers they cover. None of that matters now that the court has found the village's system unconstitutional and the town responsible for paying back members of this class action lawsuit. And this $3 million will all be coming from New Miami. The camera manufacturer has no liability if the cameras are deployed unlawfully. That's all on the municipality, which will probably have to screw its own residents to issue refunds on the hundreds of bogus tickets as the money it's unlawfully collected over the years hasn't just been sitting around collecting interest. Permalink | Comments | Email This Story

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The Christian Science Monitor has posted an interesting article detailing some (but certainly not all) of the ways the US Secret Service can obtain data from locked phones. In all the cases discussed in the article, the data itself wasn't encrypted, but was otherwise inaccessible without the password. In addition to using third-party forensic software and hardware (like that of recently-hacked Cellebrite), the Secret Service also engages in a lot of manual labor to recover phone data. In one instance, the Secret Service was able to pull out the phone's flash memory and grab data from it -- although this process took it nearly a week. A Huawei phone obtained by the agency called for a very unique brute force approach. In another case, involving a password-locked Huawei H883G phone, agents bought multiple copies of the same model and practiced carefully polishing off material from the back of the device with an automated sander. Often, agents can apply heat to phones to open them up. But Huawei built this particular model in a way that applying too much heat could damage its memory. So, agents sanded off material from the back of the Huawei H883G device to excise sexually explicit images for a case involving a different New Hampshire man. What's not contained in the article are complaints about encryption. Either the Secret Service doesn't encounter that much of it, or it just doesn't find it to be that much of an obstacle when it does. Dave Aitel, a former NSA research scientist, is the only person quoted in the article who says anything about encryption -- and even he believes the Secret Service's combination of hardware and software is a better approach than giving government agencies encryption backdoors. Watering down encryption on phones is "not a good path," says Dave Aitel, a former National Security Agency research scientist who currently runs the cybersecurity firm Immunity. "The path of hacking is much nicer – from a policy perspective." [...] "If a device is using encryption at rest ... that could be problematic, especially if the implementation of the encryption is good,” he said. It could be problematic, but encryption keeps bad guys out the same way it keeps the good guys out. And there's nothing covered here that suggests the Secret Service is as opposed to encryption as FBI Director James Comey is. Granted, the Secret Service probably runs into fewer encrypted phones than the FBI does, but even in its more-limited selection, it seems to be making the progress it needs without suggesting the government force companies to give them all-access backdoor keys. One other somewhat surprising revelation contained in the piece is the fact that small phone manufacturers might (inadvertently) be making more secure phones than the Apples and Samsungs of the world. Why? Because the limited market draws less interest from government contractors who develop cell phone-cracking tools. If there are fewer government buyers interested in cracking Brand X, no company is going to expend research resources trying to find a way around the phone's built-in protections. "A cheaper phone that might be less popular, it seems like it'd be easier for the vendors to get into it," says [James] Darnell of the Secret Service phone lab. "But it's actually quite the opposite." What's covered here indicates James Comey's "sky is falling darkening" proclamations are pretty much his alone. Law enforcement at large isn't demanding encryption backdoors. It's just the same handful of holdouts, albeit ones with inordinately-large soapboxes. Permalink | Comments | Email This Story

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This week, after Elizabeth Warren was blocked from reading a letter by Coretta Scott King in the Senate, we noted the extreme Streisand Effect that resulted. Chris ODonnell won most insightful comment of the week by summing it up nicely: "She Persisted" And thus turtle faced KY Senator Mitch McConnell did hand Elizabeth Warren the greatest campaign slogan for her 2020 run for President. In second place on the insightful side, we've got an anonymous commenter who offered a very interesting angle on the DHS' plans to demand social media passwords at the border: Isn't the sharing of passwords a violation of every website's Terms of Service? And isn't that (at least in the eyes of the DOJ) a violation of CFAA, and a felony? So every non-citizen who visits the USA will be required to commit a felony before they will be admitted? The CFAA doesn't seem to grant an exemption for this kind of activity, so any government agent who logs in to another person's account violates that website's TOS, and they also commit a felony? Wonderful. For editor's choice on the insightful side, we start out with a comment from rytyshy highlighting one of the many noteworthy lines in the appeals court's decision not to overturn the injunction against Trump's immigration order: The judges also point out that the President's comments (and tweets) are relevant to the intent of this ban. This is important in that it underlines that his words now matter in a legal sense. Something he seems to still not understand. Next, we've got a comment from That responding to the notion that Trump is just a natural next step after Obama and Bush: No. As I've said before, I absolutely agree that each President builds on the powers and policies taken on by his predecessor. But there is nothing normal or natural about what is happening now. Yes, you can absolutely criticize the bad precedents set by Obama and Bush (and Clinton and Reagan and Nixon and Johnson and on down the line). But stop talking about what's been happening these past few weeks as if it were just politics as usual. Over on the funny side, first place goes to Roger Strong for offering a bizarre but amusing comparison in response to the silencing of Elizabeth Warren: 1994 - The first piece of spam appears in USENET newsgroups. After much uproar, it is quickly removed and an apology is issued. "Well, that should be the last of THAT", say users. 2017 - The GOP use their new Senate majority to silence Elizabeth Warren on civil rights. "Well, that should be the last of THAT", say Republicans. In second place, we've got a response from PaulT to one of the many ranting comments about the crazy things that straw-men liberals think (it really doesn't matter which one or on which post): Yeah, it's amazing what those people who only exist in your head believe. For editor's choice on the funny side, we start out with a response to the ongoing legal fight in Iowa over police abusing warrant exceptions. TechDescartes expertly co-opted a piece of Star Wars culture and gave it a brand new meaning: Instead of telling friends to "drive safe" when they leave, maybe we should be saying, "May the Fourth be with you." Finally, we've got a fantastic observation from Oblate regarding Trump's vague executive order on crime: Trump's task force is charged with "Crime Reduction And Public safety". Pretty much what we've come to expect. At least they're correctly labeling what they're giving us now. That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago This week in 2012, as congress sat in the wreckage of SOPA, 70 different groups put together a letter telling lawmakers to halt all other efforts to expand intellectual property. Despite this, a number of elected representatives were still inexplicably backing the dead bill, while Lamar Smith was trying to declare all anti-SOPA data as invalid. At the same time, he was being trashed by Politifact for his claims about the impact of piracy, and styling himself as an enemy of the internet by continuing to push a data snooping bill. The RIAA was also on the warpath, attacking Google and Wikipedia and hypocritically complaining about 'misinformation'. Ten Years Ago This week in 2007, we were digging deeper into Viacom's takedown of 100,000 YouTube videos, and noticing that some were short, innocent home movies that were clearly not infringing. They weren't alone, of course: people were starting to realize how the RIAA's DMCA notices were slapdash and flimsy, and we even saw a bizarre push from the supposed creator of the Electric Slide to get videos of "his" dance off of YouTube. Meanwhile, Steve Jobs personally spoke out against the recording industry's DRM demands, prompting a rather strange response from the RIAA (which was also ludicrously calling for higher prices on CDs). Fifteen Years Ago This week in 2002, congress was all over the internet with its "dirty dozen" crop of digital regulation bills. Apple and Sony were battling over the future of home entertainment and what the technology would look like, while other companies were avidly pushing home networking to a mostly-uninterested public that didn't really understand what the benefits would be or why they'd want such a setup. Broadband was still failing to gain a real foothold, but spam was going strong and people were trying to figure out how to create the next Silicon Vally. One thing was clear though: the dot-coms that dropped big bucks on Superbowl ads weren't seeing much return on investment. One-Hundred And Eight Years Ago There are lots of big milestones in the history of consumer electronics and communication technology, and many involve the invention of critical components like the transistor. But this week we celebrate one that gets discussed less often: the invention on February 5th, 1909 of of Bakelite, one of the first synthetic plastics. It was useful for a huge range of applications, but quickly became a critical material in the world of electronics where it formed insulating and non-conducting components like telephone and radio casings, lightbulb sockets and bases, automobile distributor caps and more. Though it began to be replaced in the 1940s, it is still manufactured today. (Fun side fact: Bakelite also became a tool for advanced art forgery, because it could be used to harden paint and make it appear much older than it really was.) Permalink | Comments | Email This Story

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The UK's top spy agencies have been known to place journalists under surveillance. Leaked Snowden documents showed GCHQ collected emails from news organizations such as the New York Times, BBC, and Washington Post. More accusations of spying were raised by UK journalists, detailing what appeared to be a clear abuse of the country's anti-terror laws -- laws particularly prone to exploitation thanks to generous loopholes and a minimum of oversight. It wasn't just spy agencies doing the spying. In the case of the UK journalists, it was also local law enforcement digging through their emails and phone calls in hopes of identifying sources and leakers. More evidence of police surveillance of journalists has come to light, as reported by the Associated Press. Once again, it's law enforcement looking to uncover sources and whistleblowers, rather than terrorists or criminals. British journalist Julia Breen's scoop about racism at her local police force didn't just get her on the front page, it got her put under surveillance. In the months that followed Breen's exclusive, investigators logged her calls, those of her colleague Graeme Hetherington and even their modest-sized newspaper's busy switchboard in an effort to unmask their sources. The two were stunned when they eventually discovered the scale of the spying. "It just never even crossed our minds," Breen said in a recent interview in the newsroom of The Northern Echo, in the English market town of Darlington. "I don't know if I was quite naive, but on a regional newspaper you don't expect your local police force to do this." Mark Dias, a Cleveland Police officer, came forward and admitted he was the source for Breen's story, but that didn't stop the department from obtaining three days worth of calls to the paper's switchboard, along with logs of calls to and from three of the journalists who worked for the paper. Once the police were tapped in, they just kept collecting call records. Although none of the seized records included the content of the individuals' conversations, collectively the length, timing and nature of hundreds of phone calls can be extraordinarily revealing. It was later calculated that the surveillance covered over 1 million minutes of calling time. And for what? The whistleblower the police were interested in had already outed himself. (And placed under investigation by his department.) Anything beyond that point was purely a fishing expedition for new sources/whistleblowers -- presumably in hopes of heading off more negative press. In addition to the journalists and Dias, Cleveland Police gathered information on communications with a police union official, and a lawyer that Dias and the union official were working with. Since this came to light, the department has apologized to all of its snooping targets. It has also promised to perform an internal review of its last six years of policework to see if other surveillance abuses have taken place. This was more likely prompted by a court decision calling the surveillance unlawful than the department's innate desire to do the right thing. It will be doing it now, but only after being caught doing things it shouldn't have been doing. Permalink | Comments | Email This Story

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Joe Mullin over at Ars Technica has the story of a patent troll, Blackbird Technologies, which was founded by (of course) two patent attorneys to buy up patents and shakedown companies with legal threats. Blackbird Technologies has now sued Netflix, Soundcloud, Vimeo and a variety of other companies over US Patent 7,174,362, issued in 2007 (filed for in 2000) on a "method and system for supplying products from pre-stored digital data in response to demands transmitted via computer network." Specifically, the lawsuits are targeting various "download to consume offline" features on various content websites. Netflix, of course, just famously launched that long-requested feature, which is useful in cases where people have slow or no internet access (e.g., taking your laptop on an airplane without internet access). If anyone thinks that this kind of feature was developed because of this patent, they're being delusional. And that's especially true because the patent itself isn't even about downloading content from the network for offline viewing. Instead, it's actually about someone ordering some content over the internet, having that content automatically burned to a CD-ROM and having that CD-R shipped off to the person. As Mullin notes, the true irony here, is that the guy who got the patent in the first place, Sungil Lee, may have been inspired by Netflix, which already had a very popular business shipping DVD's ordered online to customers: Context is important when looking at Lee's patent. It's extremely unlikely an inventor writing up the idea of a web-based system for creating and shipping CD-Rs, in the year 2000, was not acutely aware of Netflix—whose DVDs-in-the-mail business had begun blowing up. If there was any copying at all, it was Lee copying Netflix's idea. But in the upside-down world of patent trolls, it's Blackbird who gets to claim the mantle of defending innovation, while it accuses Netflix of being the copycat. And the thing is, even the idea of having content written automatically to CD-Rs was hardly new in 2000. This patent never should have been granted. I remember back in 1998, when I was working for a company that did electronic distribution of software being pitched by multiple companies that were working on similar solutions, and even seeing a demonstration of one such company at COMDEX in the fall of 1998 (if I remember correctly, to demonstrate how it worked they burned me a copy of Internet Explorer 5) which had just been released. So this patent never should have been granted in the first place. On top of that, to sue companies for doing the obvious thing of offering downloads for offline viewing is a clear abuse of the patent system. The lawsuits were filed in Delaware, which has become the "new East Texas" in recent years due to a series of patent troll friendly rulings. Every time we hear stories about how patent trolling is on the decline, we see stories like this, suggesting patent trolling is still a huge problem and still a huge cost on innovation, rather than a boon to innovation. Permalink | Comments | Email This Story

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We've made the point for several years now that the way class action lawsuits are handled in America is flawed in fundemental ways. What was supposed to be a method for enabling large groups of the aggrieved to pool resources against much larger and better-funded entities has instead devolved into a procedure that appears almost perfectly designed to enrich unscrupulous lawyers while the class itself gets a laughable percentage any monetary damages. We get to see these flaws in practice yet again, this time in an update for the story that simply will not die: the legal action over Sony removing the PS3's ability to run Linux, which it advertised when the console launched. The class action suit had reached a proposed settlement, only to have the presiding judge nix it, essentially over concerns that the class was being victimized all over again, this time by its own lawyers. The California judge presiding over the litigation is now killing the proposed settlement amid concerns the lawyers representing the class haven't explained why they should get $2.25 million for their legal services, especially considering that the deal has made it burdensome on gamers to get their cash. Of the gamers who tried to get their $55 refund, 25 percent have been rejected. "The Court has concerns, based upon how the notice and claims process preceded, the results it produced, and the disproportionality of the attorneys’ fees versus the class recovery, that the settlement agreement is not fair, reasonable, and adequate." Judge Yvonne Gonzalez separates her concerns into two categories: the cut taken by the class's lawyers and the burden on the class in attempting to collect on the settlement. For the question about the lawyers' fees, the numbers are pretty ridiculous. The maximum the class would be compensated under the settlement would be just over $600,000. For this award, the class's lawyers would be compensated $2.25 million. In submitting the settlement to the court, there was apparently no attempt to justify this fee, which is perhaps because any justification would be difficult to formulate for a case that the court notes never got further than discovery and a grand total of two motions before the court. This lack of evidence is all the more concerning in light of the fact that the litigation here never progressed beyond a motion to dismiss and an appeal of that motion. While some discovery was apparently conducted, that discovery does not nearly approach the level that would have been required to take the case to class certification, or beyond. Without billing records or some more detailed explanation of the basis for the fee request, the Court is without sufficient information to determine whether the request is reasonable. And then there are the hoops members of the class would have to jump through should they attempt to collect. The same lawyers happy to take four-times the money as the entire class had apparently agreed to settlement conditions including the following: Here are some of the hoops that were required for both groups to get the refund: proof of purchase, a console serial number, and the Playstation Network Sign-in ID used with the Fat PS3 between November 1, 2006 and April 1, 2010. Class A members were also required to prove use of the Other OS functionality and a statement under the penalty of perjury that the Linux operating system was installed and used. Consumer Class B members had to provide a statement under the penalty of perjury that they knew about the Other OS functionality and relied upon the Other OS functionality in making the decision to purchase a Fat PS3, "and intended at the time of your purchase to use the Other OS functionality." There were also other hurdles, including forcing gamers to obtain a "temporary ID" from the settlement administrator that Sony would use to check against its own records to verify purchase of a Fat PS3. So, claimants would have to provide all kinds of proof of all kinds of everything in order to collect on the settlement...and obtain a temporary ID so that Sony could verify much of that same information in its own records. If that seems like the settlement was designed to throw up as many annoying barriers as possible to collecting the maximum $55 per claim, it's likely because that's exactly what occurred. The court notes that this kind of circular runaround is likely to discourage claims. Class action lawsuits: great in theory, brutally corrupt in practice. It's nice to see a court recognize this and look out for the public to keep them from being victimized all over again. Permalink | Comments | Email This Story

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When we talk about pacemakers here at Techdirt, the focus is usually on how the devices have paper-mache grade security, allowing anybody to assassinate the cardiac-challenged with relative ease. In fact we've reached the point where the FTC had to recently issue its first ever warning against a pacemaker vendor when it announced that hackers could comprmise pacemakers made by St. Jude Medical, sending "commands to the implanted device, which could result in rapid battery depletion and/or administration of inappropriate pacing or shocks." But your pacemaker may just betray you in other ways, too. In Ohio a man was indicted this week on arson and insurance fraud charges after his Pacemaker data contradicted the story he was telling authorities. When the man's home burned down on September 19, Middletown resident Ross Compton told authorities he quickly packed some belongings in a suitcase and some bags, broke a window with his cane, and quickly fled through the window before carrying his belongings back to the car. The man also acknowledged at the time that he had a pacemaker. So police obtained a warrant for the data stored on the device, and doctors quickly concluded that the story the man's heart was telling didn't match the narrative coming out of his mouth: "A cardiologist determined that it was "highly improbable," due to his medical conditions, that Compton could do all the collecting, packing and removal of items from his house and then carry them in the short period of time he indicated, according to court records. Police have said statements they received from Compton were "inconsistent" with the evidence they gathered. They also have said that he gave statements conflicting with what he had told a dispatcher, the Hamilton-Middletown Journal-News reported." Obviously there are numerous privacy questions at play here, since we're living in an era when your car, home, phone, and implant data can not only be used to support criminal charges, but will increasingly be used by giant corporations to determine everything from your insurance rates to your qualification for health care. As such, the Electronic Freedom Foundation was quick to warn the AP about the slippery slope of having your own body's data used against you in such a fashion: "Stephanie Lacambra, a criminal defense staff attorney with the San Francisco-based foundation, said in an email Tuesday that Americans shouldn't have to make a choice between health and privacy. "We as a society value our rights to maintain privacy over personal and medical information, and compelling citizens to turn over protected health data to law enforcement erodes those rights," Lacambra said." Internet-of-things devices are not only poorly secured, the privacy policies affixed to most of them are a dumpster fire. So remember folks: the next time you intend to commit a crime or apply for health coverage with a pre-existing condition, remember to wipe the data from all of your cybernetic implants -- and get the latest firmware update for your cerebral and coronary firewalls and intrusion detection systems. Permalink | Comments | Email This Story

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More Executive Orders have been issued by Donald Trump. The latest skew heavily in favor of Trump's recent conversational partners: members of law enforcement. Earlier this week in a meeting with several sheriffs, Trump voiced his support for asset forfeiture and made an off-hand comment about ruining the careers of legislators engaged in reform efforts. Great fun was had by all… mostly Trump and perhaps a sheriff or two. One order does nothing more than what large bureaucracies do best: institute task forces. Trump's task force is charged with "crime reduction and public safety." The DOJ will head this up and ask for cooperation from local law enforcement agencies. The public safety priorities are definitely Trump's, though. A focus on law and order and the safety and security of the American people requires a commitment to enforcing the law and developing policies that comprehensively address illegal immigration, drug trafficking, and violent crime. Illegal immigration is apparently the most dangerous of the three listed, presumably because it's the only one that justifies the erection of a Mexico-funded wall and the existence of a previous, possibly-unconstitutional executive order banning visitors from certain Muslim countries. The scary part is a few paragraphs deep: identify deficiencies in existing laws that have made them less effective in reducing crime and propose new legislation that could be enacted to improve public safety and reduce crime If there's anything this country has too much of, it's laws. The president wants more laws, or existing ones patched up, to better reduce criminal activity. Given the state of mind of many in law enforcement, any perceived "deficiencies" in existing laws are likely concessions made to Constitutionality. You know, the sort of things cops and prosecutors call "technicalities" -- like the Fourth through Sixth Amendments. Arriving alongside the Task Force order is one directing law enforcement agencies to get a better grip on "transnational criminal organizations." In short, Trump wants to reboot the Drug War and do all the things that have failed for the past 40 years harder, faster, and with more of a focus on foreigners. To kickstart this new War, Trump has declared public safety and national security to be the same thing. It shall be the policy of the executive branch to: (a) strengthen enforcement of Federal law in order to thwart transnational criminal organizations and subsidiary organizations, including criminal gangs, cartels, racketeering organizations, and other groups engaged in illicit activities that present a threat to public safety and national security and that are related to, for example: (i) the illegal smuggling and trafficking of humans, drugs or other substances, wildlife, and weapons; (ii) corruption, cybercrime, fraud, financial crimes, and intellectual-property theft; or (iii) the illegal concealment or transfer of proceeds derived from such illicit activities. Just like that, RICO violations, drug dealing, IP "theft," and depositing money in a bank in a certain way are all now considered threats to national security. The lessons not learned in the aftermath of 9/11 attacks continue to pay dividends for those seeking increased government power. And once again, Trump makes sure non-US citizens are singled out for their inherent criminal nature/national security threatening. ...pursue and support additional efforts to prevent the operational success of transnational criminal organizations and subsidiary organizations within and beyond the United States, to include prosecution of ancillary criminal offenses, such as immigration fraud and visa fraud, and the seizure of the implements of such organizations and forfeiture of the proceeds of their criminal activity. US persons' data and communications already being shared by the NSA with at least 16 federal agencies will also be shared with foreign law enforcement. work to increase intelligence and law enforcement information sharing with foreign partners battling transnational criminal organizations and subsidiary organizations, and to enhance international operational capabilities and cooperation And Trump's promise to ease restrictions on asset forfeiture appears to get a nod here: identify Federal agencies' practices, any absence of practices, and funding needs that might hinder Federal efforts to effectively combat transnational criminal organizations and subsidiary organizations Because forfeiture has always been defended with claims that it's used to dismantle criminal cartels, even when it's just being used to take cars away from drunk drivers and tuition money from college students. The last order appears to call for a federal "Blue Lives Matters" law: pursue appropriate legislation, consistent with the Constitution's regime of limited and enumerated Federal powers, that will define new Federal crimes, and increase penalties for existing Federal crimes, in order to prevent violence against Federal, State, tribal, and local law enforcement officers. More specifically, the order says that the federal government will explore new definitions of criminal activity if it appears to be directed at law enforcement officers and implement harsher sentences for these crimes. ...make recommendations to the President for legislation to address the protection and safety of Federal, State, tribal, and local law enforcement officers, including, if warranted, legislation defining new crimes of violence and establishing new mandatory minimum sentences for existing crimes of violence against Federal, State, tribal, and local law enforcement officers, as well as for related crimes The "for related crimes" shows this won't just be used to punish direct attacks on law enforcement officers. It could be expanded to turn any number of "contempt of cop" charges (obstruction, resisting arrest, failure to identify, etc.) into criminal acts punished by extra-long jail sentences and hefty fines. Also in this order: a nod to the 1033 program, which -- until (briefly) curtailed by the Obama administration -- distributed used (and new) military gear to local PDs for little to no cost. (f) thoroughly evaluate all grant funding programs currently administered by the Department to determine the extent to which its grant funding supports and protects Federal, State, tribal, and local law enforcement officers; and (g) recommend to the President any changes to grant funding, based on the evaluation required by subsection (f) of this section, including recommendations for legislation, as appropriate, to adequately support and protect Federal, State, tribal, and local law enforcement officers. If this goes ahead as planned, small town cops will once again be riding high in armored vehicles, toting grenade launchers, and picking up Stingray devices without having to break the budget. It was clear during his campaign that Trump was going to offer unconditional backing to the law enforcement community. And here it is, in three executive orders. They're all predicated on something Trump keeps repeating but that simply isn't true: law enforcement officers are not in more danger than they've been in years. The opposite is true. While there was an increase in officer deaths last year, it followed several years of steep declines. [Image via Reason] And our cities aren't the crime-filled nightmares Trump insists they are. The national crime rate is still at historic lows. There are a few outliers on the scale, but that's the case every year, no matter where the national average sits. On the other hand, there has been zero appreciable decline in the number of citizens killed by police officers. While crime rates remain low, this brand of killing hasn't. Through February 9th, 137 people have been killed by law enforcement, which puts this at 1,250 for the year if this pace continues. Last year, officers killed somewhere between 1,092 and 1,153 people (depending on whose count you go with). So, while crime rates remain low and officer safety remains high, people are being killed by officers at a faster pace than last year. But these orders have no place for facts. And they indicate a willingness to for this president to institute policies reflecting his own misconceptions, rather than the nation's reality. Permalink | Comments | Email This Story

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As the world moves more and more data and communications to the Internet, the demand for ethical hackers and penetration testers is higher than ever. The $45 Ethical Hacking For Beginners is a demo-heavy and comprehensive course. You'll be immersed in the basics of ethical hacking, from installing the preferred penetration testing OS, Kali Linux, to the many varieties of network threats. Today is also the last day to get an additional 70% any of the courses in the Deals store with the code LEARN70. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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New Gear From Techdirt: I Invented Email » Okay, it's been a long time since we ran some t-shirt campaigns around here, and we've been hard at work on some new designs that we think you'll enjoy. First up, we've got one that we've had a few people asking for: our brand new I Invented Email gear, allowing you to express your opinion on certain events. Separate from that, we've got some brand new Techdirt logo gear in two styles. Check 'em out. The email t-shirts are only available for a limited time, so get them while they're here. Permalink | Comments | Email This Story

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Thanks to FOIA requests (and lawsuits), the ACLU has gathered enough documents to provide a comprehensive report [PDF] on the worthlessness of the TSA's "Behavioral Detection" program. Meant to give the agency a better way of proactively thwarting acts of terrorism, the program instead opts for lazy profiling, dubious readings of behavioral cues, and junk science. The documents show the evolution of the behavior detection program and make clear the extent to which it is a program of surveillance of unsuspecting travelers based on unreliable indicators. “Behavior detection officers,” some of them dressed in plain clothes, scrutinize travelers at airports for over 90 behaviors that the TSA associates with stress, fear, or deception, looking for what the TSA calls signs of “mal-intent.” The reliability of these so-called indicators is not supported by the scientific studies in the TSA files. The behavior detection officers may then engage travelers in “casual conversation” that is actually an effort to probe the basis for any purported signs of deception. When the officers think they perceive those behaviors, they follow the travelers, subject them to additional screening, and at times bring in law enforcement officers who can investigate them further. The TSA has repeatedly claimed that the behavior detection program is grounded in valid science, but the records that the ACLU obtained show that the TSA has in its possession a significant body of research that contradicts those claims. The records include numerous academic studies and articles that directly undermine the premise of the program: the notion that TSA officers can identify threats to aviation security with some reliability based on specific behaviors in an airport setting. In fact, the scientific literature in the TSA’s own files reinforces that deception detection is inherently unreliable, and that many of the behaviors the TSA is apparently relying on are actually useless in detecting deception. The documents further show that the TSA either overstated the scientific validity of behavior detection techniques in communications with members of Congress and government auditors, or did not disclose information that discredited the program’s scientific validity. There's nothing good in the ACLU's findings. In addition to the contradictory lists of "behavioral indicators" that would make pretty much every traveler suspicious, the documents also include a "Behavioral Detection" presentation [PDF] that shows the compiler's inherent bias. For no appropriate reason, the presentation includes the following images: Right above these questionable images is something just as questionable: a profile of "female suicide bombers" that pretty much encompasses the entirety of the female gender. If you can't read/see the picture, the female suicide bomber profiles reads as follows: Single, married, mothers or grandmothers High school and college students Working professionals such as lawyers, journalists, or medical practitioners Devout or non-devout in religious beliefs Intelligent, charming, and attractive Very active in their cause The cost of this program -- which simultaneously caters to biases while providing little in the way of useful targeting -- runs in the billions. In exchange, US taxpayers have received almost nothing that makes air travel safer. What they have obtained is the "opportunity" to be questioned without being detained, as TSA agents attempt to apply contradictory non-science to "casual" conversations most travelers feel compelled to engage in. Engaging in mock-casual conversation with TSA agents is guaranteed to result in some level of suspicion, as it would be almost impossible not to. The TSA’s list of behavioral indicators—long held secret but leaked to the press in March 2015—deepens our concerns about the program and calls into question whether it could ever be implemented neutrally and objectively. The list includes conduct as commonplace as being late for a flight, yawning, whistling, or rubbing one’s hands together. Other “indicators” are unavoidably subjective: appearing confused, “wearing improper attire,” “appearing not to understand questions,” or displaying “exaggerated emotions.” In some cases, the TSA indicators place travelers in the difficult position of seeming deceptive to the TSA no matter what they do—whether they “give[] non-answers” to questions or they are “overly specific with answers”; whether they are “gazing down” or “constantly looking at other travelers or associates”; whether they have “no or little direct eye contact” or they have “widely open staring eyes.” Putting agents in the position of sussing out potential terrorists with a long list of contradictory indicators does travelers and their safety no favors. When nothing can be reconciled against the TSA's disproven "science," agents are more likely to fall back on their own biases when vetting travelers. Hence the large number of non-white fliers "randomly" selected for additional screening. The program hasn't made the TSA smarter or more nimble. All it's done is made flying even more unpleasant, especially for those that fit the "profile" the TSA provides… which is damn near everyone attempting to board a plane. Permalink | Comments | Email This Story

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One of several service providers to sue the government over its gag orders, Microsoft received some good news from a federal judge in its lawsuit against the DOJ. Microsoft is challenging gag orders attached to demands for data and communications, which the DOJ orders is statutorily-supported by the Electronic Communications Privacy Act (ECPA) and, if not, by supposed national security concerns. As Microsoft pointed out in its lawsuit, the government rarely justifies its secrecy demands and frequently issues gag orders with no endpoint. Microsoft received nearly 2,800 of these gag-ordered requests over an 18-month period, with over two-thirds of them demanding silence indefinitely. The good news is a federal judge has (partially) waved away the DOJ's motion to dismiss and will allow Microsoft to proceed with its lawsuit, as Politico's Josh Gerstein reports. U.S, District Court Judge James Robart issued a 47-page opinion [PDF] Thursday allowing Microsoft to proceed with a lawsuit claiming a First Amendment violation when the government restricts internet providers from notifying subscribers about requests for their data. "The orders at issue here are more analogous to permanent injunctions preventing speech from taking place before it occurs," Robart wrote. "The court concludes that Microsoft has alleged sufficient facts that when taken as true state a claim that certain provisions of Section 2705(b) fail strict scrutiny review and violate the First Amendment." Section 2705(b) refers to the Stored Communications Act, which allows the government demand notice be withheld under certain circumstances, unless otherwise forbidden to by another section of the same law (Section 2703). Microsoft is looking to have both sections declared unconstitutional, especially given the severe upheaval the communications landscape has undergone in the thirty years since the law was passed. Microsoft contends that Section 2705(b) is unconstitutional facially and as applied because it violates the First Amendment right of a business to “talk to [the business’s] customers and to discuss how the government conducts its investigations.” Specifically, Microsoft contends that Section 2705(b) is overbroad, imposes impermissible prior restraints on speech, imposes impermissible content-based restrictions on speech, and improperly inhibits the public’s right to access search warrants. Microsoft also alleges that Sections 2705(b) and 2703 are unconstitutional facially and as applied because they violate the Fourth Amendment right of “people and businesses . . . to know if the government searches or seizes their property.” Microsoft contends that the statutes are facially invalid because they allow the government to (1) forgo notifying individuals of searches and seizures, and (2) obtain secrecy orders that “prohibit providers from telling customers when the government has accessed their private information” without constitutionally sufficient proof and without sufficient tailoring. The DOJ argued Microsoft didn't have standing to bring this complaint, as its Fourth Amendment rights aren't implicated. Only its customers' are. But the court points out that, if nothing else, the company does have standing to pursue its claims of First Amendment violations. The court finds that Microsoft has sufficiently alleged an injury-in-fact and a likelihood of future injury. Microsoft alleges “an invasion of” its “legally protected interest” in speaking about government investigations due to indefinite nondisclosure orders issued pursuant to Section 2705(b)... The court concludes that Section 2705(b) orders that indefinitely prevent Microsoft from speaking about government investigations implicate Microsoft’s First Amendment rights. The court goes on to point out that frequent use of indefinite gag orders certainly appears to be unconstitutional, given that they act as a "forever" application of prior restraint. The court also concludes that Microsoft's assertions of further civil injuries aren't speculative, as the DOJ claimed. Judge Robart points to the government's own actions as evidence of continued harm to Microsoft's civil liberties. Microsoft bolsters its prediction by alleging that over a 20-month period preceding this lawsuit, the Government sought and obtained 3,250 orders–at least 4504 of which accompanied search warrants—that contained indefinite nondisclosure provisions. In addition, Microsoft alleges that in this District alone, it has received at least 63 such orders since September 2014. Because these orders have been frequent and issued recently, the Government will likely continue to seek and obtain them. Accordingly, Microsoft’s “fears” of similar injuries in the future are not “merely speculative.” Unfortunately, the court won't grant Microsoft the standing to represent its users for Fourth Amendment purposes. Judge Robart points to a whole bunch of precedential decisions declaring otherwise, but at least takes a bit of time to discuss how denying Microsoft this opportunity likely means denying several of its users any sort of redress. The court acknowledges the difficult situation this doctrine creates for customers subject to government searches and seizures under Sections 2703 and 2705(b). As Microsoft alleges, the indefinite nondisclosure orders allowed under Section 2705(b) mean that some customers may never know that the government has obtained information in which those customers have a reasonable expectation of privacy... For this reason, some of Microsoft’s customers will be practically unable to vindicate their own Fourth Amendment rights. Expect the government to make heavy use of its "national security" mantra as it defends itself in this case. Those magic words have allowed all sorts of civil liberties violations in the past and still tend to move courts to the government's side when deployed in DOJ motions. If the court does side with Microsoft when this is all said and done, it's likely the remedy won't be a restriction on gag orders, but more likely something analogous to the rules that now govern National Security Letters -- periodic review of gag orders by the government and better avenues for raising challenges for companies affected. Then again, the court could simply punt it back to legislators and push them to fix the 30-year-old law whose dubious constitutionality is the source of numerous lawsuits against the federal government. Permalink | Comments | Email This Story

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The Texas legislature's proposed cyberbullying bill is gathering more opposition. As we covered here last month, the "for the children" bill was meeting resistance from groups actually concerned about the welfare of the state's children. According to the Texas branch of the National Association of Social Workers, the bill would put more students in harm's way by trimming back counseling and other resources in favor of dumping the problem in the lap of law enforcement. Not only that, but the bill would expand the jurisdiction of school disciplinary procedures to cover actions taken by students off-campus. The bill has additional problems that need to be addressed before it's passed, as the EFF points out. One of the more dangerous aspects of the proposed legislation is its presumptive stripping of anonymity. Rather than let a court decide whether the party bringing charges has earned the right to uncover the identity of an online commenter, the law hands that power to the aggrieved person before any legal proceedings have commenced. The bill authorizes subpoenas to investigate potential legal claims arising from any undefined “injury” to a minor before a lawsuit is ever filed. This new process would threaten the First Amendment right to communicate anonymously on the Internet. This right is especially important for people who belong to unpopular groups or who express unpopular messages, who might otherwise stay silent rather than risk retaliation. In the hypothetical above, suppose the second student anonymously blogged about the classroom comments of the first student, and concluded, “only a jerk would say this in class.” The first student might try to use the bill’s pre-suit subpoena process to unmask the anonymous blogger, based on the pretext of a highly dubious defamation claim. The risk of unmasking would silence many anonymous speakers. Courts have allowed these efforts to proceed, but this has usually happened after the injured party has made its case for unmasking. This is the "for the children" aspect of the proposal getting in its own way. By presuming the normal legalities of pursuing the identity of anonymous speakers don't apply when the victim is a minor, the law's unintended consequences would harm a greater number of minors who would either be unmasked prematurely or discouraged from participating in online speech. The EFF has sent a letter [PDF] to the state's legislature opposing the bill as written. It points out other flaws in the bill's language that would either chill speech or severely damage the future of minors caught up in its broad language. If the bill passes unaltered, it's highly unlikely it would survive a constitutional challenge. Too much is left to the discretion of administrators and law enforcement officers employed by schools. The bill says vague things about "rights," but gives these entities the power to decide whose rights are more equal than others. The Texas bill would expand the power of school officials to discipline youths for “cyberbullying.” The bill’s vague and overbroad definition of that term would include a single email from one student to another that “infringes on the rights of the victim at school.” Those “rights” are not defined. School officials might use this new power to silence unpopular speech by the very students that some legislators may wish to protect. Suppose that in a current events class, one student said they oppose gay marriage or Black Lives Matter protesters. Suppose further that in response, the leader of that school’s Gay-Straight Alliance or NAACP chapter sent the first student a critical email that concluded, “I wish you would keep your opinion to yourself.” School officials might determine that the second student’s email infringed on the first student’s right to speak in class, and thus impose discipline for sending the email. Those who support this sort of legislation like to believe no one involved in enforcing the law would interpret the language in such a ridiculous fashion. But as we've seen time and time again, far too many school administrators are capable of interpreting policies and laws in the most unreasonable way possible. Permalink | Comments | Email This Story

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Despite repeated warnings from security experts about their problems, biometrics are gaining in popularity for all kinds of applications, many of them inappropriate. Here's another group that is so enamored of the technology it seems it hasn't thought things through: Rail passengers could be charged for journeys by fingerprint or iris scans, according to the industry's plan for coping with growing demand. Biometric technology would enable fares to be automatically charged, the Rail Delivery Group (RDG) said. As the Guardian article explains, the RDG is the main organization representing the UK railway industry. It sees the move to biometrics as a continuation of current experiments: [RDG] claimed such a system could follow on from the use of smartphones' Bluetooth signals to open station barriers, which will be trialled on Chiltern Railways' route between London Marylebone and Oxford Parkway over the coming months. At least Bluetooth signals have the virtue of operating quite quickly, and from a certain distance. It's hard to see how fingerprints or iris scans will be so slick in practice. As we've noted before, there are serious problems with getting fingerprint scans for the general public to work on a large scale, and those difficulties are likely to be exacerbated when people are in a hurry to catch a train. Iris scans typically require the subject to stand on a certain spot and to keep still while their eye is checked. As anyone who has been through some airports around the world knows, iris scans often take several attempts to recognize someone, and may fail altogether, which requires a manual check elsewhere. In the context of a busy station, this seems a recipe for disaster. But there's a possible solution to these problems. Instead of using the rather unreliable fingerprints or iris scans, why not move on to facial recognition? Unlike the other forms of biometrics, facial recognition systems seem to be getting better all the time. It can't be long before the rail operators suggest that deploying this technology in stations would be a great way to allow people to pay without needing to buy physical tickets or even stop as they head off for their train. But that would effectively create a huge surveillance database of everyone moving through the rail system -- including those who prefer to travel using anonymous means like cash. And once that database existed, it would only be a matter of time before the authorities point out that it would be ridiculous not to use this valuable information in order to capture bad people who might harm society. As it happens, it was revealed last week that the UK government is already using that argument to access confidential records held on a national health database in order to track down "immigration offenders." Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
Let's start this out by being quite clear: this is still the beginning of a fairly long legal process. But, the 9th Circuit appeals court has just unanimously ruled that the lower' court's injunction barring Donald Trump's executive order on immigration should remain in place. In short: the federal government remains barred from actually carrying out the order. This does not mean, as our President has wrongly suggested, that people are free to randomly enter the country in droves. They still have to go through the already thorough vetting and visa process. It just means that the blanket ban that caused so much havoc cannot be used to bar entry into the country. We were among those who signed onto an amicus brief for the wider tech industry, asking the court to rule this way, so we're happy they did. The court is pretty clear, and it's somewhat surprising that the ruling was unanimous. While it's always difficult to tell how judges are going to rule based solely on oral arguments, it certainly felt like two judges were leaning towards the states' argument and one towards the federal government's. But when it was time to write an opinion, all three came down on the side of the states. Not only that, but they did it per curiam, meaning that the entire panel "wrote" the opinion (rather than singling out the specific judge who wrote it). This can be seen as the three judges showing a united front, and also a pre-emption towards the likelihood of our thin skinned President picking directly on one of the three as somehow being responsible (as he did in earlier tweets about the case). Either way, the judges stood together, noting that the federal government's argument was weak: To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay. Again, this is far from over. There will still be a fight at the lower court over a permanent injunction, and then numerous appeals (not to mention the other cases around the country). As for the opinion, it's good to see that the court went as far as it did. It really could have just punted the issue on a number of grounds, including that the appeals court has no grounds to overturn a temporary restraining order. But, instead, it went further and suggested that the federal government's position here is weak. There were a few different issues in the case, and the court wasn't very impressed by any of the federal government's arguments. One was that the states (Washington and Minnesota) didn't have standing to challenge the executive order. Not so, says the court, pointing to a number of cases where state universities had standing to sue on actions related to the rights of their students: Most relevant for our purposes, schools have been permitted to assert the rights of their students.... As in those cases, the interests of the States’ universities here are aligned with their students. The students’ educational success is “inextricably bound up” in the universities’ capacity to teach them.... And the universities’ reputations depend on the success of their professors’ research. Thus, as the operators of state universities, the States may assert not only their own rights to the extent affected by the Executive Order but may also assert the rights of their students and faculty members. We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement. The Government does not argue otherwise. On that procedural question of whether or not the court can even review a temporary restraining order (TRO), the court says it's fine: We are satisfied that in the extraordinary circumstances of this case, the district court’s order possesses the qualities of an appealable preliminary injunction. The parties vigorously contested the legal basis for the TRO in written briefs and oral arguments before the district court. The district court’s order has no expiration date, and no hearing has been scheduled. Although the district court has recently scheduled briefing on the States’ motion for a preliminary injunction, it is apparent from the district court’s scheduling order that the TRO will remain in effect for longer than fourteen days. In light of the unusual circumstances of this case, in which the Government has argued that emergency relief is necessary to support its efforts to prevent terrorism, we believe that this period is long enough that the TRO should be considered to have the qualities of a reviewable preliminary injunction. On the question of whether or not courts even have the authority to review this executive order, the court says of course it does and it's patently silly for the federal government to suggest otherwise. The Government contends that the district court lacked authority to enjoin enforcement of the Executive Order because the President has “unreviewable authority to suspend the admission of any class of aliens.” The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches—an uncontroversial principle that is well-grounded in our jurisprudence. See, e.g., Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (recognizing that “the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control” (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977))); see also Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010) (explaining that courts should defer to the political branches with respect to national security and foreign relations). Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one. There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. The court further notes that the federal government's desire to run around screaming "NATIONAL SECURITY" as if that means the courts are powerless to do anything is also completely bogus. Indeed, federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict. On to the key question of whether or not the court should lift the TRO and allow the executive order to be in effect again. The court here basically rips up the federal government and notes that it has no real argument. The Fifth Amendment of the Constitution prohibits the Government from depriving individuals of their “life, liberty, or property, without due process of law.” U.S. Const. amend. V. The Government may not deprive a person of one of these protected interests without providing “notice and an opportunity to respond,” or, in other words, the opportunity to present reasons not to proceed with the deprivation and have them considered.... The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause. And while I've seen a bunch of people (mainly on Twitter) telling me that there's no due process issue because non-US citizens have no Constitutional rights, the court reminds them that they're wrong: The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982). The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens. For example, the Government has failed to establish that lawful permanent residents have no due process rights when seeking to re-enter the United States. See id. (“[T]he returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.” (quoting Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963))). Nor has the Government established that the Executive Order provides lawful permanent residents with constitutionally sufficient process to challenge their denial of re-entry. See id. at 35 (“[T]he courts must evaluate the particular circumstances and determine what procedures would satisfy the minimum requirements of due process on the re-entry of a permanent resident alien.”). Separately, the court notes that the federal government's own claims are not trustworthy -- specifically the rapidly-changing claims about whether or not greencard holders are covered by the exec order: At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely. Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. TheWhite House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. The court also rejects the argument from the DOJ that a more limited TRO could be used instead, such as one just focusing on previously admitted aliens. No go: First, we decline to limit the scope of the TRO to lawful permanent residents and the additional category more recently suggested by the Government, in its reply memorandum, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well. Zadvydas, 533 U.S. at 693. That would also omit claims by citizens who have an interest in specific non-citizens’ ability to travel to the United States.... There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do. The court also refuses to restrict the TRO so that it doesn't apply nationwide, basically saying the government failed to explain why it should: Second, we decline to limit the geographic scope of the TRO. The Fifth Circuit has held that such a fragmented immigration policy would run afoul of the constitutional and statutory requirement for uniform immigration law and policy.... At this stage of the litigation, we do not need to and do not reach such a legal conclusion for ourselves, but we cannot say that the Government has established that a contrary view is likely to prevail. Moreover, even if limiting the geographic scope of the injunction would be desirable, the Government has not proposed a workable alternative formof the TRO that accounts for the nation’s multiple ports of entry and interconnected transit system and that would protect the proprietary interests of the States at issue here while nevertheless applying only within the States’ borders. The court then notes that the federal government failed to convince the court that it has any "likelihood of success" in prevailing in support of the executive order, though it's open to changing its mind at a later date, when more fully briefed (i.e., when things come back on appeal down the road). Finally, there's the question of the "balance of hardships and the public interest" and again the court notes that the DOJ failed to show any evidence of real harm in blocking the executive order, because the DOJ has no actual evidence to support the reasons for the order in the first place. And, again, just screaming "NATIONAL SECURITY" is no excuse: The Government has not shown that a stay is necessary to avoid irreparable injury. Nken, 556 U.S. at 434. Although we agree that “the Government’s interest in combating terrorism is an urgent objective of the highest order,” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010), the Government has done little more than reiterate that fact. Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years. The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree, as explained above. In a footnote on that, the court calls bullshit on the idea that there's some super secret info that only the President can see that shows why this ban is necessary, noting that the federal government regularly shares confidential information with judges under seal or in camera to avoid it being seen by others. Meanwhile, the court notes that the plaintiff states have shown pretty strong evidence of harm: By contrast, the States have offered ample evidence that if the Executive Order were reinstated even temporarily, it would substantially injure the States and multiple “other parties interested in the proceeding.” ... When the Executive Order was in effect, the States contend that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad. These are substantial injuries and even irreparable harms. And, finally the court notes that the public interest simply does not warrant a stay. Again, this is just the beginning of a long process, but as an early victory it's a big one. The court could have punted and did not. And in the meantime, our somewhat confused President is angry and doesn't seem to realize he's already in court over this (and losing, badly): SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE! — Donald J. Trump (@realDonaldTrump) February 9, 2017 Of course, if that were true, it would help to have the federal government actually lay out some evidence to support that. What the 9th circuit pretty clearly said here is "we've seen none whatsoever." Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
We've repeatedly noted how for some stupid reason, net neutrality is treated as a partisan issue in Washington -- with Democrats (generally) in support, and Republicans (generally) opposing the idea. It's an absurd, myopic paradigm given the fact that net neutrality has broad, bipartisan consumer support. Most people want the internet to function as a relatively-level playing field. Everybody wants to be able to access the content and services of their choice without interference from the likes of Comcast and AT&T, who seem hell bent on using their monopoly over the last mile to their anti-competitive advantage. With the looming specter of a net neutrality rule repeal under Trump, the GOP, and new FCC Boss Ajit Pai, a number of Democratic Senators (including Ron Wyden and Ed Markey) held a press event (video) warning that if the GOP and FCC try to repeal net neutrality, it will result in a "political firestorm" they may not be entirely prepared for. The Senators were quick to recall that roughly 4 million consumers reached out in support of the FCC's net neutrality rules a few years ago, a number Markey proclaimed would look "miniscule" in comparison to the looming backlash against the rules' repeal. Markey's office also issued a statement saying that he'd fight tooth and nail against repeal of the rules, in whatever form that arrives: "Despite what the cable companies and Republicans say about net neutrality, there is nothing broken that needs fixing,” said Senator Markey, a member of the Commerce, Science and Transportation Committee. “I will oppose any regulatory efforts, including repeal, forbearance, interpretative rule, or refusal to enforce existing rules, as well as any legislative efforts to undo or roll back the Open Internet Order. We stand united in this fight to ensure that all Americans have access to a free and open Internet." While it's true that the backlash to an attack on net neutrality could make SOPA and PIPA look like a beach-side picnic, the repeal won't arrive in the way the agency's rules first arrived. With the process of repealing the rules within the FCC's existing regulatory framework a giant bureaucratic headache that would require another very public comment process, the ISPs (and the politicians that love them) likely have another tactic in mind -- at least based on my 20 years, ten hours a day, of watching the telecom sector (and every other industry) dominate both parties of Congress. At first, that will involve having Pai simply refuse to enforce the rules as they exist now (which we already saw with Pai's decision to scrap the FCC's zero rating inquiry). Pai's job in this stage play will be to pay empty lip service to things like the digital divide, while generally keeping the FCC focused on bland, non-controversial policies until the real hangman (a campaign-contribution soaked Congress) arrives. From there, the GOP has quietly been making it clear they want to push a Communications Act rewrite that will focus on rolling back the FCC's classification of ISPs as common carriers under Title II, therefore obliterating not only net neutrality -- but the FCC's ability to act as broadband watchdog entirely. This being a new, charming post-truth era, this assault on net neutrality, broadband provider oversight and accountability will most likely be dressed up as a massive boon to job creation, broadband expansion, and the nation's puppies. Expect it to be named something along the lines of The Making Broadband Great Again Act of 2017. This bill, whether it comes as a Communications Act rewrite or some other bill, will also probably claim to put the net neutrality debate to bed by including a few net neutrality restrictions even large ISPs don't actually care about (like banning them from outright blocking websites). What it won't do is address any of the hot-button areas where the net neutrality debate is occurring right now, like zero rating, interconnection, or the use of usage caps and overage fees. Given it will certainly be written in part by AT&T, Verizon, Comcast and Charter lawyers, it will just as certainly contain other loopholes to ensure their satisfaction. Whatever this bill winds up looking like or is called, it will be (and already is on some fronts), portrayed as a "compromise" that Democrats will be told they must support if they're to be considered "serious" in their pledge to protect net neutrality and the public at large. But given the goal of removing oversight from the likes of Comcast, the bill itself will likely hurt more than it helps, and if these Democratic Senators actually want to show they have anything resembling a spine, they'll need to stage fierce opposition to the bill to prove their dedication to a healthy internet is more than just smoke and mirrors. In light of a Congress that long ago made it clear that it prioritizes telecom cash contributions over consumers, the best "solution" for net neutrality at this juncture would be leaving the existing rules -- and the FCC's authority over broadband providers -- intact. Permalink | Comments | Email This Story

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The ongoing digitization of the vast wealth of material sitting in museums and archives around the world is one of the greatest projects of the digital age — a full realization of the internet's ability to spread knowledge and culture to all. Or it would be, if it weren't for copyfraud: for every museum genuinely embracing open content and the public domain, there's another claiming copyright on public domain images and being backed up by terrible court rulings. And so it's fantastic to see The Metropolitan Museum of Art joining the former camp with a new Open Access policy that is putting images of 375,000 works online with a CC0 public domain declaration. The Met actually partnered with Creative Commons, Wikimedia, Pinterest and others to help make this happen, and has even announced its first Wikimedian-in-residence who will head up the project to get these images into Wikimedia Commons and onto Wikipedia. This is all great, but here's the annoying thing: it should be totally unnecessary. These are digitizations of public domain works, and there's no reasonable basis for granting them any copyright protection that would need to be divested with a CC0 mark in the first place. They are not creative transformative works, and in fact they are the opposite: attempts to capture the original as faithfully and accurately as possible, with no detectable changes in the transfer from one medium to another. It might take a lot of work, but sweat of the brow does not establish copyright, and allowing such images to be re-copyrighted (in some cases hundreds or even thousands of years after their original creation) would be pointless and disastrous. Instead of the CC0 mark, the Met should be able to use a lesser-known Creative Commons tool: the Public Domain Mark, which indicates that something you are sharing is already in the public domain (whereas CC0 declares that you have rights in it, but are relinquishing them and releasing it to the public domain). And while the Met probably could have done so (and likely discussed this with CC since they were partners in this project), it's understandable why they decided not to: the statutory public domain is so damn weak and vulnerable that it can't be trusted, and a CC0 license is actually a much stronger way of ensuring nobody tries to exert control over these works in the future. As Creative Commons points out on their information page for the Public Domain Mark, they don't recommend it for works where there is any doubt, in any jurisdiction, that they are in the public domain — a category that is virtually empty when all factors are considered. Though efforts to establish copyright on digitizations of PD works have mostly failed in the US, they have gained ground in Germany and the UK among other places. And attacks on the public domain are creative and frequent in the US too. Though it's somewhat hard to envision how another party could swoop in to attempt to take copyright control of the Met's digitizations, there would also be the possibility of the museum changing its stance in the future — and any such uncertainty creates a chilling effect where everyone who wants to make use of the images has to think twice. The CC0 mark is the strongest available statement that something is in the public domain. Sadly, even CC0 is not completely waterproof, and it's a problem in the first place that the only way to release something into the public domain in most jurisdictions is via a third party's special licensing tools, not an official legal mechanism under copyright law. That's how you end up with a museum needing to partner with international copyright experts just to be able to make it absolutely clear that they don't own any rights to an unknown copyist's 100-year-old painting of a 4000-year-old Egyptian relief, which frankly should have been obvious. Kudos to the Met for doing everything it possibly could in a world that sometimes seems determined to snuff out as much of the public domain as it can. Permalink | Comments | Email This Story

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As Techdirt readers know, the copyright industry has almost no means to tackle infringement, or to demand that pirated materials are removed from Internet sites. At least, that's the impression you would get as a result of the constant whining you hear from the entertainment companies that they are doomed and terribly neglected by the lawmakers. Indeed, not content with the copyright ratchet that constantly makes copyright laws longer, stronger and broader, the film, music and publishing industries are always pushing for "voluntary" agreements with the Internet industry that don't require anything so tiresome as actual laws to be passed... or pesky things like "due process." One example of this approach is the "six strikes" scheme in the US. As Techdirt noted recently, the approach was a complete failure, and has just been dropped. Unfortunately, the idea lives on around the world -- the EFF has an entire section on its site about what it calls "shadow regulation," and it has just published a global review of copyright enforcement agreements. Particularly troubling are the EU's proposals for a new copyright directive, which would require: large user-generated content platforms to reach agreements with copyright holders to adopt automated technologies that would scan content that users upload, and either block that content or pay royalties for it. As the EFF notes, the reason why these would be "voluntary" deals is pretty clear: The Commission is likely taking that approach because that it knows that it can't directly require Internet platforms to scan content that users upload -- an existing law, Article 14 of the Directive 2000/31 on electronic commerce (E-commerce Directive), expressly prohibits any such requirement. That is, it would be impossible to make this a legal requirement, because it is forbidden by another key EU directive, but "voluntary" agreements can skirt that law, which is another reason they are so insidious. The EU's revised copyright directive is still at an early stage of discussion, so there is some hope that this harmful proposal can be fought and removed. Sadly, that's not the case in the UK, where it seems that search engines have had their arms twisted to sign up to another "voluntary" agreement, with the threat of new laws being brought in if they don't. As a post on TorrentFreak explains: Google and other search companies are close to striking a voluntary agreement with entertainment companies to tackle the appearance of infringing content links in search results. Following roundtable discussions chaired by the UK's Intellectual Property Office, all parties have agreed that the code should take effect by June 1, 2017. TorrentFreak quotes a revealing comment made by the UK government minister that has been leading the talks, Baroness Buscombe: "The search engines involved in this work have been very co-operative, making changes to their algorithms and processes, but also working bilaterally with creative industry representatives to explore the options for new interventions, and how existing processes might be streamlined," she said. The fact that the talks were "bilateral," involving only entertainment companies and search engines, exposes one of the worst features of these so-called "voluntary" agreements: that there is no open debate of the kind that would be standard when actual legislation was involved, nor any opportunity for ordinary people to contribute. Instead, closed-door discussions produce deals that may be satisfactory for the copyright industry, and bearable for the Internet companies, but which are uniformly bad for the general public, whose views are simply not considered relevant. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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