posted 5 days ago on techdirt
For a while now, Techdirt has been tracking the continuing efforts of the Russian government to rein in the Internet, at the cost of squeezing much of the life out of it. As an article on Global Voices reports, this has now reached ridiculous levels: Russian censors have determined that one of the most popular forms of Internet meme is illegal. According to Roskomnadzor, the Kremlin's media watchdog, it's now against the law to use celebrities' photographs in a meme, "when the image has nothing to do with the celebrity's personality." Roskomnadzor's statement is the result of a decision by a court in Moscow, which decided that a particular photo meme violated the privacy of Russian singer Valeri Syutkin -- the Global Voices post has the fascinating details. Although no new law is involved, Roskomnadzor's power is such that it is able to make these kinds of rule changes -- and enforce them. Along with a ban on the use of celebrities' photographs in what are termed "image macros", the new ruling also forbids the creation of parody accounts or sites (original in Russian.) The key problem with the image macro part is the following: Roskomnadzor's vague new policy threatens to do more than crack down on potentially defamatory juxtaposition, however. By saying it is illegal to add celebrities' images to memes that "have nothing to do with the celebrity's personality," the Kremlin could be opening the door to banning a whole genre of absurdist online humor. Even if the policy is not rigorously enforced, it could have a chilling effect on the Russian online space, already under pressure because of previous censorship moves. And that's probably precisely what the authorities are seeking to achieve here. After all, when it comes to Russian celebrities' photographs with witty captions, what name springs to mind? Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Thanks to The Wire, Baltimore is where many people first learned what a Stingray device was — but the revelation that the real Baltimore PD has deployed them thousands of times and hidden that information from the courts goes far beyond the wiretap-misuse by its fictional equivalent. Mason Wheeler won most insightful comment this week with his reaction to the department's troubling instructions to the FBI: “Does it instruct you to withhold evidence from the state’s attorney and the circuit court of Baltimore city, even if upon order to produce?” asked defense attorney Joshua Insley. “Yes,” Cabreja replied, saying he spoke with the FBI last week about the case. This is the thing that mystifies me about all this. An NDA is a contract. How can anyone--and particularly an expert whose professional specialty is the law--think that a contract between two specific parties can somehow trump a generally-applicable law? And more specifically, how can anyone think that a contract can trump obligations to a court, when a court's authority is obviously greater by the simple fact that a court has the power to declare a contract unenforceable? As it happens, The Wire was just added to Canada's Netflix this year. Prior to that, plenty of Canadians used a VPN to watch the show from the US collection, in an act that big media companies are now saying violates copyright law (actually they were talking about New Zealand, which has it even worse in terms of access). Second place for insightful this week goes to pixelpusher220, who pointed out that this is really getting ridiculous: I do like how now even PAYING for content is being classified as infringement. It's not like Netflix provides content for free. Wouldn't it be fraud to take customers money and then not provide them the service they paid for? For editor's choice on the insightful side, we'll stick around on that post for an anonymous comment that beautifully (with one notable typo) lays out how tragic the bigger picture is in conflicts like this: It baffels me still... that so many people want to ruin the best opportunity the world has ever had. I am not just talking about money here, but the worlds greatest library. The greatest opportunity for understanding each other across borders. The internet is probably the single greatest global achievement the world has ever made, and we made it together. Yes, there is violence, trolls, arguments and silly pictures a plenty... but this is also the best insight into different cultures and people that we have ever had. The internet is not just the 8'th wonder of the world, it is greater than the others combined... and still some people are only interested in tearing it down. How sad these people are. Next, we've got a long comment from Socrates providing a piece-by-piece response to some criticism of the EFF's dealings with the USPTO: Knowing full well that once more what I have to say will be met with the blunt force of TD's lack of experience in matters of practicing before the USPTO Yes, serial applicants have more experience in practicing before the USPTO than Techdirt. The implication that only those who profit from a malpractice should be allowed to criticize it is borderline funny though. , I am disappointed that once more this site is coming to the defense of EFF staff who choose to engage the USPTO on substantive matters that implicate prosecution practice without having demonstrated any substantive knowledge of the rules governing such practice. And yet EFF proves it understands Alice, and show a "patent" rejected by a federal court under Alice and does a side-by-side comparison of the refiled "patent" proving that the USPTO either doesn't understand it or perhaps even flout the Supreme court. I find it interesting that neither of the EFF's supposed experts is even admitted to practice before the USPTO, and yet they seem not to have the slightest reluctance to mock the office when it raises issues with which such experts disagree. The side-by-side comparison shame the USPTO for all to see. Perhaps that is why the USPTO invoke the Streisand effect? The purely fact based analysis is not mocking, or indeed opinion at all. The silliness is all the USPTOs. Obviously the EFF has found a home at TD, but given its reaction as outlined in this article it is no wonder why its effectiveness in patent matters is presently marginal at best. Neither EFF nor TD is a failed serial applicant. EFF and TD is simply not serial applicants at all. Their effectiveness in patent matters is thus not relevant. Perhaps they choose to have morals instead? If you intended to say effectiveness in limiting malpractice in patent matters, by informing decision makers and bring about such decisions as Alice, there is ample evidence that you are mistaken. Few if any have had such a positive effect. Even if one disagrees with the USPTO, there are ways to present such a disagreement without resort to approaches such as the infantile one utilized in this instance. Proving that a serial litigant, serial aplicant, refile a rejected "patent" and USPTO approve it, is not infantile. Perhaps you ment infallible? Over on the funny side, we start out on the story of YouTuber Angry Joe, who has sworn off Nintendo videos after the company blocked him from monetizing one. One commenter very reasonably asked how such a video wasn't fair use, and another anonymously responded: Let's Play ad revenue: $250 Lawsuit to defend Let's Play ad revenue: $8,000,000 explicit fair use law: priceless There are some things money can't buy. For everything else, there is the Supreme Court. In second place, we head to our post asserting that the patent system is faith-based and ignores all the data. It's hard to argue with that, but if anyone's going to try, it's someone we all (unfortunately) know, who demanded an example of someone who ignores the data. Well, that's an easy one, and DogBreath quickly provided it, with a mirror: antidirt. For editor's choice on the funny side, we start out on a post that provides a perfect example of the kind of rituals the USPTO's faith requires: shuffling things in the system to make sure the notable nine-millionth patent wasn't an embarrassing one. Dfed guessed what came next: Patent #9000001, however, was a "Method for practically gaming the USPTO patent system to achieve numerical synergy." Finally, we head to our post about Comcast and its pleas that it has most certainly not paid anyone to support its merger with Time Warner Cable. Karl suggested that anyone who believes that shouldn't be put in charge of anything, including your lawn care, but one anonymous commenter smartly pushed back on that last point: I most certainly would put them in charge of lawn care. Do you know how much high-quality composted manure costs? That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago This week in 2010, the patent office hired an economist in a move we hoped would help bring some reason to the patent system. Meanwhile, we wondered if you could save software patents with a team of "obviousness" developers, and one IP lawyer was telling people to stop wasting money on patents. We also took a closer look at how bogus patents get approved, and witnessed a patent fight over the Dominos pizza tracker. Over in the UK, the house of commons hatched a plan to rush through the Digital Economy Bill, and then did just that. One ISP quickly said it would not follow the rules while a member of the UK Musician's Union (which supported the bill) wrote an excellent open letter about his disappointment. All told, it was a bill proposed by the unelected, debated by the ignorant, and voted on by the absent. Ten Years Ago Back in 2005, technology was rapidly changing life in sometimes-unexpected ways. Watchmakers looked on in horror as their once-widespread devices were replaced by smartphones, while plumbers capitalized on a booming new business in retrieving phones from toilets. Online groceries were catching on in NYC, and kids were buying (crappy) homework online. Of course, not all trends were entirely true: Pew admitted that it pumped up the numbers on the prevalence of podcasting, and the creator of the idea of "toothing" (finding sex hookups via Bluetooth) admitted it as all a hoax. We were already noting the fact that copy protection was not the issue faced by the entertainment industries, and that there were lots of opportunities to sell music the way people want it, especially since sharing music is a cultural thing and the newfound ease of content creation was already making its mark. Fifteen Years Ago Let's all say happy birthday to Verizon, I guess. It was this week in 200 that Bell Atlantic and GTE announced that, in their merger, they would abandon both brands and operate as the shiny new "Verizon". Meanwhile, we also learned of another big merger negotiation between BellSouth and SBC. Also in 2000: the Microsoft antitrust ruling came out, leading some to wonder just how much it meant; Mattel dumped The Learning Company that it had bought only a year before; Dot Coms were struggling to find events to sponsor, while we noticed some were being run by kids who were hiring their parents; it turned out the question of deep linking wasn't quite closed; and we pointed to an article saying something that has been a guiding principle of Techdirt for a long time: that you need to understand the legal system to understand the goings-on in technology. Three-Hundred And Five Years Ago Most of you probably know that basically all modern copyright descends from the Statute of Anne, an early 18th-century British law that created the first ever government-run copyright system. Well, it was on April 5th, 1710 that the bill passed and received royal assent, and the Statute of Anne became law. Permalink | Comments | Email This Story

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For this week's awesome stuff, we're looking at some devices that help you monitor, track and control things that are useful to monitor, track and control. WEZR Most people's knowledge of the weather is limited to forecasts, the thermostat, and looking out the window. The savvy may check live atmospheric maps and other data, but few people are able to build their knowledge based on the full synthesis of information available to them. WEZR aims to change that: it's a weather monitor that combines forecasts with a variety of live data and its own array of sensors to derive specific, hyper-local and constantly-updated weather conditions and pipe them to your smartphone. It then shares sensor data to help improve accuracy for all users. Planty Anyone who's kept houseplants has also, at some point, let one die — while some of us have given up the endeavour entirely after minor massacres. Planty aims to make the task of caring for plants a little easier and smarter: it's a wi-fi connected planter pot that monitors soil, temperature, light and water levels and sends you alerts when upkeep needs to be done. Even better, it includes an automatic watering system that you can remotely control to feed plants exactly what the amount of water they need from anywhere. Meld Home appliances are getting smarter and smarter, but not everyone has the funds or even the desire to replace all of their stuff just to get access to some time-saving features. That's why devices like this are so cool: they add some of those features without requiring a complete upgrade or even significant alterations. Meld is an automated range knob that simply clips onto your existing stove and communicates with a wireless sensor that goes inside the oven. It can be programmed to make automatic, on-the-fly adjustments throughout cooking according to the needs of the specific dish. Not only does this make life easier, it vastly improves the accuracy of cooking temperatures since the average range is poorly calibrated. Permalink | Comments | Email This Story

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Remember Personal Audio? That's the company that claimed it had a patent (8,112,504) from years ago that covered all podcasting and then sued a bunch of top podcasters over it. The company got itself lots of attention, including from EFF, who filed with the UPSTO to invalidate the patent. In response, Personal Audio tried to intimidate EFF's donors. Eventually, Personal Audio realized that podcasters don't actually make that much money and settled a bunch of its lawsuits -- even with Adam Carolla (which actually does make a bunch of money) who had insisted he wasn't going to settle. Most of those settlements were for no money, but the company did win its lawsuit against CBS (in Eastern Texas, of course). However, the EFF's initial effort to invalidate the patent at the USPTO (which is a separate process from the lawsuits) has now resulted in the Patent Office invalidating the key claims in the patent. You can read the USPTO's decision, in which it notes that the key parts of the claim were clearly obvious to practitioners skilled in the art at the time of the patent and that the prior art invalidates the patent as well. We are persuaded by a preponderance of the evidence that Petitioner’s rationale for obviousness is supported by rational underpinnings. Kudos to the team at EFF, who have been doing some great work on patents lately (contrary to one of our grumpy commenters who insists that the EFF lawyers will never be seen as "serious professionals" by the US Patent Office, and will remain "marginal players at best"). Can't wait to see what patent projects they take on next...Permalink | Comments | Email This Story

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FOIA clearinghouse MuckRock has scored another revealing document, this time from Customs and Border Protection. As we're well aware, the US border isn't technically considered to be part of the United States, at least not as far as the Constitution is concerned. All bets are off, 4th (and others) Amendment-wise. If you're traveling with anything -- whether its a vehicle, suitcase or laptop -- expect it to be searched. What MuckRock has obtained is the DHS's Privacy Impact Assessment of the CBP's search policies. The only thing seen of this near-mythical document to this point has been a two-page summary of the report's contents, released nearly three years after its border search policy went into effect.The assessment basically says privacy will be severely impacted… and not much else. To do otherwise is to open the borders to terrorists, illegal immigrants, drug runners, child porn traffickers... at least according to the talking points. If you're none of the above, you're not exempt from in-depth warrantless searches of your person and belongings, including laptops and other electronic devices. Based upon little more than the opinion of a single US Customs and Border Patrol (CBP) officer, any device can be searched and its contents read. With approval from a supervisor, the device can be seized, its contents copied in full, or both. These opinions, also known as "gut feelings" and "mental coin tosses" (the latter extremely popular with the TSA's Behavioral Detection Officers), are all it takes to initiate a very intrusive search. Part of this we can blame on the courts and their deference to national security fears. Under DHS authorities to conduct border searches, travelers' electronic devices are equally subject to search as any other belongings because the information contained in them may be relevant to customs and immigration inspection processes and decisions. While the terms "merchandise" and "baggage" are used, the courts have interpreted border search authorities to extend to all of a traveler's belongings, including electronic devices and the information in such devices. Beyond the hunches that trigger warrantless searches of electronic devices, the CBP also has the authority to demand travelers translate foreign languages and/or decrypt files. Demand for Assistance: During a border search, ICE and CBP have specific statutory authority to demand assistance from any person or entity. For searches of electronic devices, CBP or ICE may demand technical assistance, including translation or decryption or specific subject matter expertise that may be necessary to allow CBP or ICE to access or understand the detained information. In some cases, travelers will be notified that their device has been searched. In others, the CBP and ICE will withhold this information from the person who owns the searched device. This includes cases where the agents image the entire contents of the device in order to perform a search later. In fact, in most cases where this is done, the person is cut out of the informational loop. Instead of detaining the electronic device, CBP or ICE may instead copy the contents of the electronic device for a more in-depth border search at a later time. For CBP, the decision to copy data contained on an electronic device requires supervisory approval. Copying may take place where CBP or ICE does not want to alert the traveler that he is under investigation; where facilities, lack of training, or other circumstances prevent CBP or ICE from performing the search at secondary inspection; or where the traveler is unwilling or is unable to assist, or it is not prudent to allow the traveler to assist in the search (such as providing a password to log on to a laptop). And, again, this sort of detainment/search can be triggered by nothing more than an agent's feelings about the person being vetted. And while a CBP officer may have to check with a supervisor before imaging a device, ICE agents are able to self-approve intrusive searches and seizures. As federal criminal investigators, ICE Special Agents are empowered to make investigative decisions based on the particular facts and circumstances of each case. The decision to detain or seize electronic devices or detain, seize, or copy information therefrom is a typical decision a Special Agent makes as part of his or her basic law enforcement duties. However, although no additional permission is required at this stage, Special Agents must comply with precise timeframes and supervisory approvals at further stages throughout each border search. While there are oversight guidelines in force, they aren't set in motion until after the copying/searching has already been performed. As the PIA notes later, the DHS's agencies don't care whether it's papers in a briefcase or the entirety of your digital life housed within a smartphone. Either way, it claims to have the right to search, seize and copy data without probable cause. Or so it did until recently. The 9th Circuit Court's 2013 decision on border searches of electronic devices undercuts a lot of the assertions in this 2009 DHS document. Most importantly, the decision forces the government to stop pretending the contents of a laptop or cellphone are no different than the contents of a briefcase or suitcase. (h/t to Daniel Nazer for pointing out this superseding decision) The amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler’s luggage or automobile. That is no longer the case. Electronic devices are capable of storing warehouses full of information. The average 400-gigabyte laptop hard drive can store over 200 million pages—the equivalent of five floors of a typical academic library.... Even a car full of packed suitcases with sensitive documents cannot hold a candle to the sheer, and ever-increasing, capacity of digital storage. The nature of the contents of electronic devices differs from that of luggage as well. Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails. This type of material implicates the Fourth Amendment’s specific guarantee of the people’s right to be secure in their “papers.”.... The express listing of papers “reflects the Founders’ deep concern with safeguarding the privacy of thoughts and ideas—what we might call freedom of conscience—from invasion by the government.”... These records are expected to be kept private and this expectation is “one that society is prepared to recognize as ‘reasonable.’” This decision partially restores the Fourth Amendment to the Constitution-free Zone -- at least the portion covered by the Ninth Circuit. The decision doesn't forbid these searches. It just holds them -- and the CBP/ICE -- to a higher standard than agents' hunches. So, in all the principles (transparency, minimization, information safeguards) listed in the DHS's 2009 Privacy Impact Assessment of warrantless border searches, there's not a single one devoted to warrants, warrant requirements or establishing reasonable suspicion. It took a court to reach that obvious conclusion and it took a court's explanation as to why a laptop isn't a briefcase to force the CBP to stop behaving like a law unto itself in the Ninth's jurisdiction. A privacy impact assessment that doesn't mention Fourth Amendment implications is a waste of 50 sheets of paper. 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It's difficult to keep a good thing going without changing and adapting to the times. McDonald's is a national icon -- and it basically represents America to certain parts of the world. There's even a Big Mac Index to gauge currency exchange rates and global purchasing-power parity. McDonald's business has had some challenges in the last year, and the brand is the default whipping boy for activists. If you're still lovin' it, though, maybe you can get your favorite McBreakfast any time of the day now. McDonald's breakfast menu seems to be the key to maintaining its fast food dominance. Getting an Egg McMuffin after 10:30 am appears to be an important menu option, but it might not be as easy as it sounds. [url] It might sound simple to serve breakfast all day (since plenty of other places seem to do it), but McDonald's optimizes the space in its kitchens in a way that makes it difficult to expand its menu significantly during a lunch rush. Perhaps pancakes in the Age of Enlightenment will be a bit longer of a wait, but customers will learn to handle it. [url] McDonald's faces increasing competition from more fast food joints in the US, and its reputation around the world is inconsistent and influenced by politics. This fast food giant could try a few different strategies to correct its course, so it'll likely try to experiment with operational changes in selected markets before changing its entire franchise network. [url] After you've finished checking out those links, if you have some spare change (or more) and would like to support Techdirt, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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Nova Scotia's supremely awful cyberbullying law is finally receiving a much-needed tweak, but it took a trip to the Supreme Court to do it. (As noted by a commenter below, the Supreme Court is just Nova Scotia's first level of trial court, rather than the province's highest court.) The law's original wording was so broad it had the potential to "make bullies of us all," as MacLean's Jessie Brown put it when the law went into effect. The law -- hastily pushed through the legislative system in response to a cyberbullying victim's suicide -- contained this passage, which was open-ended enough to criminalize all sorts of previously-protected speech: …any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably [to] be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way. As attorney Karen Bennett-Clayton explains, this wording eliminates nearly every form of defense against cyberbullying allegations. (via Barry Sookman) This definition of cyberbullying captures a wide range of communication, from the truly insidious statements calculated to cause fear and intimidation to statements that are simply embarrassing or somehow harmful to the recipient’s emotional well-being. The definition contains no requirement to show motive or intent, nor does it require that the communication be false or misleading. On a plain reading of it, true statements could be considered cyberbullying so long as they are repeated and are distressing or harmful to someone’s self-esteem. Moreover, and as it includes those who “assist” in such communications, the definition is also arguably broad enough to include those who publish the electronic communication, such as web hosts or internet service providers (ISPs). Safeguards that are typically seen in defamation and harassment laws are completely missing from Nova Scotia's cyberbullying law -- which would explain why a person who felt himself a victim of defamation or harassment might take the easier route and use the badly-written cyberbullying law to shut down his "bully," instead. And that's true, even though much of what was said had not risen to the level of defamation, and much of what was contested occurred before the law went into effect. The court examined the law and the protective order issued by a lower court justice of the peace and found both wanting. As for the law's wording itself, the Supreme Court found it too inclusive to be anywhere near reasonable and, in fact, a threat to normally protected speech. While the law is in place to address cyberbullying, the definition is vague enough to cover far more than internet communications. This has the potential to stymie news reporting through traditional channels, as well as cover "communications" never intended to be included in the cyberbullying law. Both the ordinary meaning of “electronic” and the inclusive definition capture uses of electricity for communication that were common long before cyberspace (1984). Here are a few examples from the old days: cylinder phonograph records (1877); disc gramophone records (1894) including 78s (1898), long plays (1948), singles (1949), and extended plays (1952); studio cast recordings (1943 or before); broadcasting by way of commercial radio (1920s), commercial television (1928), walkie-talkie (1940), and citizens’ band (1948), and, of course; telegraph (1834) and telephone (1876), including fax (1964). All of these are within the definition of “electronic”, at least when it is read literally. The Supreme Court continues, providing examples of how this badly-written law could be twisted to cover nearly every form of communication imaginable, so long as the communication itself causes "fear, intimidation or distress." The first thing to note in the definition of cyberbullying is the disconnect between the ordinary meaning of the word and the literal definition. One who communicates electronically, whether it be by text message or telephone, and says something reasonably expected to cause fear, intimidation, humiliation, or distress is a cyberbully. The next thing to note is the absence of conditions or qualifications ordinarily part of the meaning of bullying. Truth does not appear to matter. Motive does not appear to matter. Repetition or continuation might (“repeated or with continuing effect”) or might not (“typically”) matter. A neighbour who calls to warn that smoke is coming from your upstairs windows causes fear. A lawyer who sends a demand letter by fax or e-mail causes intimidation. I expect Bob Dylan caused humiliation to P. F. Sloan when he released “Positively 4th Street”, just as a local on-line newspaper causes humiliation when it reports that someone has been charged with a vile offence. Each is a cyberbully, according to the literal meaning of the definitions, no matter the good intentions of the neighbour, the just demand of the lawyer, or the truthfulness of Mr. Dylan or the newspaper. As the court sees it, the law demands the inclusion of a motivation -- malice -- and yet, its hurried passage failed to include this key element. Adding in that factor goes against the lower court's finding justice of the peace's decision and nullifies the issued protective order. The evidence does not malice as required, according to my interpretation, for a finding of cyberbullying after August 6, 2013. Firstly, the events after that date, except for the mikemacdonald1975@hushmail.com e-mail, are relatively mild. Secondly, the full correspondence between Mr. Baha’i and Mr. Fraser about removal, which Justice of the Peace Gass did not see, shows efforts by Mr. Baha’i, an unanswered request for suggestions, and statements of Mr. Fraser’s assessment of Mr. Baha’i’s liabilities closing the discussion. This correspondence is inconsistent with malice on Mr. Baha’i’s part. [...] Mr. Self chose his forum. It is one in which Mr. Baha’i is entitled to disclosure and discovery, to fully test the many allegations. Unlike Cyber-safety Act proceedings, it is one in which the parties can find out who is behindmikemacdonald1975@hushmail.com, rather than speculate. It is also a forum in which serious risk of defamatory repetition could be controlled by interim injunction, without the ex parte one-sidedness of the Cyber-safety Act. Despite this, the cyber protection order prevents Mr. Baha’i from communicating with the very person who is suing him. The evidence satisfies me that malicious repetition by Mr. Baha’i is unlikely. Unlike Justice of the Peace Gass on the ex parte application, I have a full picture of the attempts to satisfy Mr. Fraser’s demands on behalf of Mr. Self. Whether he can force Mr. Baha’i to expunge what is not in his control, and whether he can recover damages against Mr. Baha’i for third party reproductions, risk of repetition by Mr. Baha’i is not in issue. Also, unlike the justice, I take into account that the Cyber-safety Act was not law when Mr. Baha’i was active on the present subject. Summing up, the Supreme Court finds Nova Scotia's cyberbullying law -- as written -- to be a threat to protected speech. In my assessment, the damage caused by the cyber protection order to Mr. Baha’i’s constitutional right to free speech and to his property right to use his own equipment outweighs the potential harm to Mr. Self if Mr. Baha’i is able to communicate freely. Justice requires that the order be revoked. This fixes one of the major holes in the law, and restores much-needed protections for uninvolved third-parties (social media platforms, ISPs) who can't, by definition, show malice by hosting or transmitting communications made illegal by this law. Unfortunately, it doesn't address another of its major flaws -- the wholly ex parte accusation process, which can result in severe penalties for the accused (loss of internet connection or access to electronic devices, gag orders, etc.) without being allowed to present their side of the issue in court. Permalink | Comments | Email This Story

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Nova Scotia's supremely awful cyberbullying law is finally receiving a much-needed tweak, but it took a trip to the Supreme Court to do it. The law's original wording was so broad it had the potential to "make bullies of us all," as MacLean's Jessie Brown put it when the law went into effect. The law -- hastily pushed through the legislative system in response to a cyberbullying victim's suicide -- contained this passage, which was open-ended enough to criminalize all sorts of previously-protected speech: …any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably [to] be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way. As attorney Karen Bennett-Clayton explains, this wording eliminates nearly every form of defense against cyberbullying allegations. (via Barry Sookman) This definition of cyberbullying captures a wide range of communication, from the truly insidious statements calculated to cause fear and intimidation to statements that are simply embarrassing or somehow harmful to the recipient’s emotional well-being. The definition contains no requirement to show motive or intent, nor does it require that the communication be false or misleading. On a plain reading of it, true statements could be considered cyberbullying so long as they are repeated and are distressing or harmful to someone’s self-esteem. Moreover, and as it includes those who “assist” in such communications, the definition is also arguably broad enough to include those who publish the electronic communication, such as web hosts or internet service providers (ISPs). Safeguards that are typically seen in defamation and harassment laws are completely missing from Nova Scotia's cyberbullying law -- which would explain why a person who felt himself a victim of defamation or harassment might take the easier route and use the badly-written cyberbullying law to shut down his "bully," instead. And that's true, even though much of what was said had not risen to the level of defamation, and much of what was contested occurred before the law went into effect. The Supreme Court examined the law and the protective order issued by a lower court and found both wanting. As for the law's wording itself, the Supreme Court found it too inclusive to be anywhere near reasonable and, in fact, a threat to normally protected speech. While the law is in place to address cyberbullying, the definition is vague enough to cover far more than internet communications. This has the potential to stymie news reporting through traditional channels, as well as cover "communications" never intended to be included in the cyberbullying law. Both the ordinary meaning of “electronic” and the inclusive definition capture uses of electricity for communication that were common long before cyberspace (1984). Here are a few examples from the old days: cylinder phonograph records (1877); disc gramophone records (1894) including 78s (1898), long plays (1948), singles (1949), and extended plays (1952); studio cast recordings (1943 or before); broadcasting by way of commercial radio (1920s), commercial television (1928), walkie-talkie (1940), and citizens’ band (1948), and, of course; telegraph (1834) and telephone (1876), including fax (1964). All of these are within the definition of “electronic”, at least when it is read literally. The Supreme Court continues, providing examples of how this badly-written law could be twisted to cover nearly every form of communication imaginable, so long as the communication itself causes "fear, intimidation or distress." The first thing to note in the definition of cyberbullying is the disconnect between the ordinary meaning of the word and the literal definition. One who communicates electronically, whether it be by text message or telephone, and says something reasonably expected to cause fear, intimidation, humiliation, or distress is a cyberbully. The next thing to note is the absence of conditions or qualifications ordinarily part of the meaning of bullying. Truth does not appear to matter. Motive does not appear to matter. Repetition or continuation might (“repeated or with continuing effect”) or might not (“typically”) matter. A neighbour who calls to warn that smoke is coming from your upstairs windows causes fear. A lawyer who sends a demand letter by fax or e-mail causes intimidation. I expect Bob Dylan caused humiliation to P. F. Sloan when he released “Positively 4th Street”, just as a local on-line newspaper causes humiliation when it reports that someone has been charged with a vile offence. Each is a cyberbully, according to the literal meaning of the definitions, no matter the good intentions of the neighbour, the just demand of the lawyer, or the truthfulness of Mr. Dylan or the newspaper. As the court sees it, the law demands the inclusion of a motivation -- malice -- and yet, its hurried passage failed to include this key element. Adding in that factor goes against the lower court's finding and nullifies the protective order it issued. The evidence does not malice as required, according to my interpretation, for a finding of cyberbullying after August 6, 2013. Firstly, the events after that date, except for the mikemacdonald1975@hushmail.com e-mail, are relatively mild. Secondly, the full correspondence between Mr. Baha’i and Mr. Fraser about removal, which Justice of the Peace Gass did not see, shows efforts by Mr. Baha’i, an unanswered request for suggestions, and statements of Mr. Fraser’s assessment of Mr. Baha’i’s liabilities closing the discussion. This correspondence is inconsistent with malice on Mr. Baha’i’s part. [...] Mr. Self chose his forum. It is one in which Mr. Baha’i is entitled to disclosure and discovery, to fully test the many allegations. Unlike Cyber-safety Act proceedings, it is one in which the parties can find out who is behindmikemacdonald1975@hushmail.com, rather than speculate. It is also a forum in which serious risk of defamatory repetition could be controlled by interim injunction, without the ex parte one-sidedness of the Cyber-safety Act. Despite this, the cyber protection order prevents Mr. Baha’i from communicating with the very person who is suing him. The evidence satisfies me that malicious repetition by Mr. Baha’i is unlikely. Unlike Justice of the Peace Gass on the ex parte application, I have a full picture of the attempts to satisfy Mr. Fraser’s demands on behalf of Mr. Self. Whether he can force Mr. Baha’i to expunge what is not in his control, and whether he can recover damages against Mr. Baha’i for third party reproductions, risk of repetition by Mr. Baha’i is not in issue. Also, unlike the justice, I take into account that the Cyber-safety Act was not law when Mr. Baha’i was active on the present subject. Summing up, the Supreme Court finds Nova Scotia's cyberbullying law -- as written -- to be a threat to protected speech. In my assessment, the damage caused by the cyber protection order to Mr. Baha’i’s constitutional right to free speech and to his property right to use his own equipment outweighs the potential harm to Mr. Self if Mr. Baha’i is able to communicate freely. Justice requires that the order be revoked. This fixes one of the major holes in the law, and restores much-needed protections for uninvolved third-parties (social media platforms, ISPs) who can't, by definition, show malice by hosting or transmitting communications made illegal by this law. Unfortunately, it doesn't address another of its major flaws -- the wholly ex parte accusation process, which can result in severe penalties for the accused (loss of internet connection or access to electronic devices, gag orders, etc.) without being allowed to present their side of the issue in court. Permalink | Comments | Email This Story

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There have been a bunch of these lately, but today the FBI gleefully announced that it had stopped a terror plot in Topeka, Kansas -- inspired by ISIS. Here's how the FBI describes its big arrest: John T. Booker Jr., 20, of Topeka, Kansas, was charged in a criminal complaint unsealed today with one count of attempting to use a weapon of mass destruction (explosives), one count of attempting to damage property by means of an explosive and one count of attempting to provide material support to the Islamic State of Iraq and the Levant (ISIL), a designated foreign terrorist organization. Booker is expected to make an initial appearance this afternoon before U.S. District Judge Daniel Crabtree of the District of Kansas in federal court in Topeka. Booker was arrested this morning near Manhattan, as he completed his final preparations to detonate a vehicle bomb targeting U.S. military personnel. There have been a bunch of these arrests lately of random people supposedly planning to do something big to join ISIS. But, looking at the details in the actual complaint, it quickly becomes clear that this is yet another of the FBI's own plots. Yes, Booker appears to be an idiot who publicly proclaimed that he wanted to blow stuff up to join in the whole jihad thing, but his actual ability to do anything was basically non-existent until the FBI gave him two helpers who presented the details of the plan. First, Booker did try to do something himself, but blabbed so much about it that the FBI came and spoke to him, ruining his original plan (though they didn't arrest him then): John T. Booker, Jr., a/k/a “Mohammed Abdullah Hassan,” (“Booker”) is a 20-year-old United States citizen who is currently living in Topeka, Kansas. In or around February 2014, Booker had been recruited by the United States Army in Kansas City, Missouri, and he was scheduled to report for Basic Training on April 7, 2014. On March 15, 2014, Booker publicly posted on Facebook: “I will soon be leaving you forever so goodbye! I’m going to wage jihad and hopes that i die.” On March 19, 2014, Booker publically posted on Facebook: “Getting ready to be killed in jihad is a HUGE adrenaline rush!! I am so nervous. NOT because I’m scared to die but I am eager to meet my lord.” That same day, the FBI became aware of Booker’s postings based on a citizen’s complaint. The FBI was able to identify Booker based on the publically available content on his Facebook account. On March 20, 2014, Booker was interviewed by FBI agents related to his Facebook postings. After being advised of and waiving his Miranda rights, Booker admitted that he enlisted in the United States Army with the intent to commit an insider attack against American soldiers like Major Nidal Hassan had done at Fort Hood, Texas. Booker stated that if he went overseas and was told to kill a fellow Muslim, he would rather turn around and shoot the person giving orders. Booker stated that he formulated several plans for committing jihad once enlisted, including firing at other soldiers while at basic training at the firing range or while at his pre-deployment military base after completing his initial military training. Booker clarified that he did not intend to kill “privates,” but that he instead wanted to target someone with power. Booker also said that he did not intend to use large guns, but instead a small gun or a sword. Booker was subsequently denied entry into the military. Okay, so we've established that Booker is not the sharpest knife in the drawer, but at least was willing to state his idiotic plans publicly and then admit them to the FBI. But other than denying him entry into the military, they didn't do anything else... other than try to set him up for a big arrest later. That's because a few months later, they sent an FBI informant to befriend Booker and urge him to move forward with his "blow shit up" plans: Since on or about October 8, 2014, Booker has engaged with an individual who is, unbeknownst to Booker, an FBI Confidential Human Source (CHS 1). Booker has repeatedly expressed to CHS 1 his desire to engage in violent jihad on behalf of ISIL. For example, during a face to face conversation on October 10, 2014, Booker told CHS 1 in relevant part, that he: “was in jihad before, okay. I got captured. Okay, a long story short the people at the Masjid don’t like me because I support al Qa’ida openly. I’m not afraid, I was captured before . . . I was captured by FBI before . . . because I was with al Qa’ida.” Booker stated that he “joined the United States Army” and he “hadn’t really completed, I hadn’t really started . . . I was going to go in there and kill the American soldier.” Booker told CHS 1 that he dreamt of being in the Middle East, and then he showed CHS 1 a video on his phone of Muslims fighting American forces in Iraq. Booker said he dreamt about going with the fighters and wished he was with them. Booker told CHS 1 that he had heard about Americans joining ISIL and that Booker wanted to join, but he didn't know anyone who could help him do so. So, here we have Booker admitting that he doesn't actually have the capabilities to join ISIS or do anything really. But, have no fear, because the FBI informant is there to help: That same day, CHS 1 told Booker that he had a “cousin” (who is also a FBI Confidential Human Source, hereinafter referred to as CHS 2) who could get people overseas and asked Booker what he wanted to do. Booker answered, “Anything. Anything you think is good. I will follow you.” So, now we've got a plot in which two of the plotters are actual FBI informants, while the only other guy is a guy who clearly has no idea what he's doing: On or about March 9, 2015, while under FBI surveillance, CHS 1 introduced Booker to CHS 2, who he explained was a high ranking sheik planning terrorist acts in the United States. Then, the plan is set in motion, with the informants basically directing Booker in what he should do -- saying that they would give him the equipment needed to build explosives, and that he should rent a storage space to keep the stuff: Previously, CHS 1 told Booker that he (CHS 1) may send him some items for Booker to hold until the next time CHS 1 visited – perhaps a package or something in the mail. Booker told both CHS 1 and CHS 2 that his house was not safe to store things because he shares it with his cousin. At that point, CHS 2 suggested that Booker may want to rent a storage locker. [....] On or about March 25, 2015, CHS 1 met with Booker. During this meeting, CHS 1 told Booker that he had been “selected” to accompany Booker on his suicide mission. CHS 1 provided Booker with a list of supplies that they needed to purchase in order to build the bomb. Booker even relied on the two FBI informants to build the (totally fake) bomb he was going supposedly going to use, and to give him a map of where he was to set it off: The second storage unit held a large amount of inert explosive material that Booker understood was to be used to build their Vehicle Borne Improvised Explosive Device (“VBIED”). Pursuant to Booker’s plan, Booker understood that CHS 1 and CHS 2 would build the VBIED, Booker and CHS 1 would eventually deliver it to Fort Riley, and Booker would detonate the VBIED in a suicide attack. CHS 1 and CHS 2 then provided Booker with a map of the area of Fort Riley at Booker’s request. And then, just this morning, one of the FBI informants was needed to tell Booker how the device worked so he could "blow it up." On or about April. 10, 2015, Booker and CHS 1 drove to a location near Junction City, Kansas where they met CHS 2. CHS 2 met Booker and CHS 1 in the van in which CHS 2 had purportedly constructed the VBIED. CHS 2 explained the function of the inert VBIED to Booker and demonstrated how to arm the device. CHS 1 and Booker then drove the VBIED to an area near Fort Riley that Booker believed to be a little used utility gate that would allow them to enter Fort Riley undetected so that they could find an area to detonate the VBIED that would kill as many soldiers as possible. While Booker was making final connections to arm the inert VBIED at the gate, he was taken into custody without incident by members of the FBI. And thus, he's been arrested. It seems pretty clear that he's not a fan of the US, but this story matches many previous stories of the FBI stopping its own plots, in which the people they arrest tend to be hapless individuals with no ability to carry out any sort of terrorist attack on their own... until the FBI shows up and provides them with the fake tools to do so.Permalink | Comments | Email This Story

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We all know that in the land of mobile applications, Apple has long seen itself as the keeper of the moral compass, gently navigating humanity towards the City upon a Hill one rejected phone-game at a time. The reasons for refusal have varied, from the inclusion of fictional narcotics, to the slight chance somebody somewhere might see a breast or a penis, all the way up to a moral stance against comic books, because this is apparently the nineteen-twenties. And through it all, those of us that use Android devices have held up Google's Play store as a nanny-free alternative, free of censorship and hypocrisy. Well, no more. Google, it appears, has rejected a mobile version of the infamous game Postal over the violent content within the game. Postal won't be making it to Android devices. Why? Because apparently it has been rejected from the Google Play Store because it contains "GRATUITOUS VIOLENCE." Oh, dear. It appears a second nanny has entered the game, as though we poor gamers were somehow caught in between a vice constructed of Mrs. Doubtfire and Mr. Belvedere, each pressing in on us for the high crime of simply wanting to play a damned game. We're adults, after all, or at least many of us gamers are these days. Thirty-five or so, that's the average age of a gamer today. We don't need to be coddled and protected from gaming violence, it's what we want. Or, again, some of us do, but that's a choice for the consumer, not the platform. And specifically not for a platform whose decision plunges it into the depths of hypocrisy. As the original forum post over at Running With Scissors notes, it's not as though keeping Postal out of Google Play preserves some violence-free app-Utopia. "We know many of you have been excited that POSTAL is going to be made available on Android devices, but it seems we have hit a bit of a snag. Unfortunately it appears POSTAL has been rejected from Google Play due to it containing "GRATUITOUS VIOLENCE". Sadly this means it won't be welcomed alongside the Grand Theft Auto series, Carmageddon and horde of Zombie games on Google Play." It's a point well-made and a point not designed to take aim at GTA or zombie games. The sights are set on Google's hypocrisy instead. I imagine the looks of surprise on the faces of the game designers were severe when the rejection notice came. The Play store was our alternative to this kind of nonsense. Perhaps we'll have to go elsewhere in the future. Permalink | Comments | Email This Story

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Dashcams can catch some pretty amazing footage. A dashcam in Taiwan captured dramatic and frightening footage of a plane crashing into the river. Some of the videos posted from Russia show just how crazy drivers and pedestrians can be. But sometimes these dashcams can also capture some awe-inspiring moments, like when the Chelyabinsk meteor exploded over the Ural Mountains in February 2013: Today's Daily Deal on the GT-ZO1 Touchscreen Dashcam could be what you need to capture your own amazing videos, while also helping to protect yourself from insurance fraud and legal disputes. For $165 (36% off of the original price), you get a compact camera that attaches to the windshield with a suction cup, which can record location, speed, and date information into video clips using the GPS-enabled mapping system. This deal ends soon. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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For years now, we've been talking up the importance of open access to scientific research. Big journals like Elsevier have generally fought against this at every point, arguing that its profits are more important that some hippy dippy idea around sharing knowledge. Except, as we've been trying to explain, it's that sharing of knowledge that leads to innovation and big health breakthroughs. Unfortunately, it's often pretty difficult to come up with a concrete example of what didn't happen because of locked up knowledge. And yet, it appears we have one new example that's rather stunning: it looks like the worst of the Ebola outbreak from the past few months might have been avoided if key research had been open access, rather than locked up. That, at least, appears to be the main takeaway of a recent NY Times article by the team in charge of drafting Liberia's Ebola recovery plan. What they found was that the original detection of Ebola in Liberia was held up by incorrect "conventional wisdom" that Ebola was not present in that part of Africa: The conventional wisdom among public health authorities is that the Ebola virus, which killed at least 10,000 people in Liberia, Sierra Leone and Guinea, was a new phenomenon, not seen in West Africa before 2013. (The one exception was an anomalous case in Ivory Coast in 1994, when a Swiss primatologist was infected after performing an autopsy on a chimpanzee.) But, as the team discovered, that "conventional wisdom" was wrong. In fact, they found a bunch of studies, buried behind research paywalls, that revealed that there was significant evidence of antibodies to the Ebola virus in Liberia and in other nearby nations. There was one from 1982 that noted: "medical personnel in Liberian health centers should be aware of the possibility that they may come across active cases and thus be prepared to avoid nosocomial epidemics." Then they found some more: Three other studies published in 1986 documented Ebola antibody prevalence rates of 10.6, 13.4 and 14 percent, respectively, in northwestern Liberia, not far from its borders with Sierra Leone and Guinea. These articles, along with other forgotten reports from the 1980s on antibody prevalence in neighboring Sierra Leone and Guinea, suggest the possibility of what some call “sanctuary sites,” or persistent, if latent, Ebola infection in humans. So why did the conventional wisdom continue to insist that Ebola wasn't likely to be the issue when Liberians started getting sick and dying? Well, a big part of it may have been the fact that the research was locked up: Part of the problem is that none of these articles were co-written by a Liberian scientist. The investigators collected their samples, returned home and published the startling results in European medical journals. Few Liberians were then trained in laboratory or epidemiological methods. Even today, downloading one of the papers would cost a physician here $45, about half a week’s salary. Yes, it still would have required the knowledge to be passed along to Liberian doctors and health officials, and one can argue that that might not have happened. But it seems a lot more likely that the information would have been more easily accessible and the knowledge passed around if it didn't cost half a week's salary just to download decades old research warning of just such a threat. And, of course, the results were catastrophic. Even once people started dying, doctors had a tremendous amount of difficulty figuring out what the issue was: ...it was months before Ebola was identified as the culprit pathogen. That made it impossible for the region’s few doctors and nurses to deliver effective care. Open access isn't just some "free culture" refrain. It really matters and can save lives.Permalink | Comments | Email This Story

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If you've read Techdirt for any length of time, you'll have noticed that intellectual property laws have been decoupled from logic for several years now. Because the entities heavily-reliant on IP protections (and who mostly serve as gatekeepers and middlemen, rather than perform any creative work of their own) have trouble producing evidence that extended copyright terms or increased enforcement efforts are actually instrumental to the creation of future artistic works, they have tended to fall back on assertions that various governments have a "duty" to protect their interests. It's not an assertion borne of data or extensive research. It's a statement of faith. Record labels and movie studios spend millions every year issuing takedowns and lobbying for favorable laws. And every year, they fail to point out where these efforts have added to the bottom line. When confronted with this lack of evidence, they'll often declare this is only because we're not doing the things that aren't working hard enough or often enough or with enough severity. Mark Lemley, whose work -- especially that focused on the broken patent system -- has been featured here before, has just published a paper examining this thought process: Faith-based Intellectual Property. Lemley opens by noting that we supposedly live in an "age of reason," with a wealth of information and powerful data tools at our fingertips. But when the data fails to produce the desired evidence for increased IP protections, reason is swiftly abandoned and replaced with nothing more than unfounded beliefs. This isn't just a post-file sharing phenomenon. This dates back more than a half-century. Fritz Machlup, commissioned by Congress in the 1950s to evaluate the patent system, came to the strikingly wishy-washy conclusion that if we didn’t have a patent system, the evidence wouldn’t justify creating one, but since we had one the evidence didn’t justify abolishing it. There's more evidence available now than there was 60 years ago, but nothing's improved. The upshot of all this evidence is something rather less than a complete vindication of the theory of IP regulation... This doesn’t mean that we are no better off than we were in Fritz Machlup’s day. The problem isn’t that we don’t have enough evidence, or the right kind of evidence. The problem is that the picture the evidence paints is a complicated one. The relationship between patents and innovation seems to depend greatly on industry; some evidence suggests that the patent system is worth the cost in the biomedical industries but not elsewhere. Copyright industries seem to vary widely in how well they are responding to the challenge of the Internet, and their profitability doesn’t seem obviously related to the ease or frequency of piracy... Money doesn’t seem to be the prime motivator for most creators, and sometimes it can even suppress creativity. And an amazing number of people seem perfectly happy to create and share their work for free now that the Internet has given them the means to do so. Despite the lack of clear indicators that strengthened IP laws result in more creativity, or at least, more profitability for industries which rely heavily on IP protections, the push for expanded terms and more draconian IP-enforcement penalties hasn't let up. When the available data doesn't support held beliefs, there are options. Shoot the messenger: A lesson I learned early in my academic career is that while people will dispute, ignore, or shrug off policy arguments they disagree with, they get really incensed when the data disagrees with them. And one way they can justify ignoring that data is to persuade themselves that the source of that data must be biased in some way and so their numbers cannot be trusted. The most vitriolic attacks I have experienced in more than twenty years as a law professor were directed at the most innocuous-seeming papers—papers that presented data that revealed some uncomfortable facts about the status quo. Someone can be paid to produce data that agrees with held views. A second reaction to data you don’t like is to try to go out and buy some of your own. Companies with a vested interest in a system that empirical evidence calls into question have been spending a great deal of money to fund studies written (sometimes preposterously) to lead to the conclusion they support. Or, you know, 'find God," as it were... Participants on both sides of the IP debates are increasingly staking out positions that simply do not depend on evidence at all. That is, their response to evidence that doesn’t accord with their beliefs is not to question their beliefs, or even to question the evidence, but to retreat to a belief system that doesn’t require evidence at all. Lemley quotes Berkely's Rob Merges, a leading patent scholar -- one who turned to faith when the data didn't support his predispositions. After decades at the forefront of economic analysis of the patent system, Merges threw up his hands: “Try as I might, I simply cannot justify our current IP system on the basis of verifiable data showing that people are better off with IP law than they would be without it.” While one might think that the logical thing to do if the evidence doesn’t support one’s theory is to question the theory, Merges instead observes that “through all the doubts over empirical proof, my faith in the necessity and importance of IP law has only grown.” With adherents like these, who needs evidence? What were once a limited rights, granted for the betterment of all, are now an expansive rights, benefitting only a select few. Any lack of supporting evidence is no longer germane to the argument. IP rights are now being controlled by those who "feel" or "believe" in the fundamental "rightness" of their arguments. Data need not apply. The adherents of this new religion believe in IP. They don’t believe it is better for the world than other systems, or that it encourages more innovation. Rather, they believe in IP as an end in itself—that IP is some kind of prepolitical right to which inventors and creators are entitled. There's a reason why religions and governments shouldn't be allowed to intermingle. This adherence to the "moral" rights of creators plays hell with the system. It intervenes in the market to interfere with the freedom of others to do what they want in hopes of achieving the end of encouraging creativity. If we take that purpose out of the equation, we are left with a belief system that says the government should restrict your speech and freedom of action in favor of mine, not because doing so will improve the world, but simply because I spoke first. When the faithful guide the creation of legislation, bad things happen -- things that undermine the societal benefits of limited rights for a limited amount of time. Those limits are no longer in place, and supposed protections like "fair use" give more value to intellectual property than freedom of expression. The system is broken and those exploiting it the most don't want it fixed. Trademark rights extend to prevent uses that would happily have coexisted fifty years ago. We have added a slew of new copyright statutes, expanding the term as well as the scope of protection, increasing penalties, and reaching conduct further and further removed from actual infringers. We issued six times as many patents in 2014 as we did three decades before, and most of the patent suits filed are brought by patent trolls, a category of plaintiffs that didn’t even exist forty years ago and that one might think has a weaker moral claim on IP than people who actually make products. Unfortunately, Lemley realizes the ultimate futility of his research. While small factual misconceptions can often be corrected, adherents to any form of faith-based system (whether they be pro- or anti-IP) are almost impervious to arguments that run contrary to their beliefs -- no matter how much data is provided. If you are a true believer, we have nothing to say to each other. I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others. Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong. This where we are today: subject to laws written to accommodate true believers. The faithful that have been indulged in their expansion efforts even while a whole host of supposed "industry killers" have risen and fallen with little to no discernible damage done to entrenched IP-reliant industries. Permalink | Comments | Email This Story

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posted 8 days ago on techdirt
As I'm sure you were carefully anticipating, on Tuesday, April 7th, the US Patent and Trademark Office issued patent 9,000,000. As you of course are already aware, over the past few decades, the USPTO has been rapidly ramping up the number of patents it approves. That's why, even though patents only have a lifetime of 20 years from the date of application, 1/3 of all issued patents are still in force today. Think about that. So, if you're wondering if patent 9,000,000 is a bad, trollish patent, you'll be happy to note that it's not a software or business method patent, but rather a kind of windshield washer system. Not only that, but there's a real company behind it that appears to be making a real product. Well, phew. The USPTO must be happy about that... Or, actually, the USPTO probably went through all the damn patents scheduled to issue on Tuesday to find one that wasn't controversial and magically named it number 9,000,000, though in any other week it would have been in a different batch. As patent blog 1201 Tuesday notes: Because patents issue at discrete, weekly intervals, the PTO has time generally to group patents of the same “class” together in contiguous blocks of numbers. That’s why you usually don’t see a floor wax patent immediately next to a dessert topping patent. (Unless, of course, it's for both.) Patent 9,000,000 today is in class 210, “Liquid purification or separation”. Yet, it interrupts a block of patents from class 514, “Drug, bio-affecting and body treating compositions”: One of these patents is not like all those others... and it just so happens to be patent 9,000,000. Oh, and in case you're wondering, there were a bunch of other patents from class 210 "Liquid purification or separation" issued on Tuesday as well -- it's just that they're patents 8,999,153 to 8,999,176, all in a row. So it looks like the USPTO found that one nice, non-controversial patent and plucked it out of the 8,99,160ish range and plopped it directly in the middle of all of those "drug, bio-affecting and body treating compositions" and declared it, magically, 9 million, knowing that it might get a bit of attention.Permalink | Comments | Email This Story

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Last year Time Warner Cable and the Los Angeles Dodgers struck a twenty-five year, $8.35 billion deal giving Time Warner Cable the exclusive broadcast rights to all Dodgers games in Los Angeles via its creatively-named regional sports network, Time Warner Cable SportsNet LA. Time Warner Cable then immediately turned around and demanded massive price hikes (rumored to be around $5 per subscriber) for any other pay TV provider that wanted to offer the channel. All of the regional cable operators (including AT&T, Cox, Dish and DirecTV) balked at the hike, resulting about 70% of fans in Dodgers territory being unable to watch the final six games of last season. All sides had ample opportunity during the offseason to negotiate a fair price, but by all accounts Time Warner Cable simply refused to move on the price tag (though the fact it's in a holding pattern over a Comcast acquisition also likely played a role). As such, the new baseball season kicked off this week and Dodgers fans remain unable to watch their favorite team's games. Making matters worse, Time Warner Cable has refused to seriously answer questions about the logjam, offering some variation of the same statement over and over again:"We want all Dodger fans to have access to SportsNet LA. Despite our repeated attempts, other providers are unwilling to engage in any discussions. If Dodger fans want to enjoy SportsNet LA this season, we encourage them to switch to a provider that carries the network."The problem with that logic? Time Warner Cable is the only cable operator offering access to its own sports network, and 70% of Los Angeles lives in an area where they can't get Time Warner Cable. As such, Time Warner Cable's recommendation is not only useless, it's insulting. When that's pointed out, the company just refuses to comment. When asked why it refuses to compromise on the price, the company provides similarly epic non answers:"SportsNet LA is available on fair terms consistent with its value. We know that the rates for the network owned by this iconic franchise are in line with what other RSN’s around the country charge, including DirecTV’s own regional sports networks."While it's understandable that Time Warner Cable wants to recoup its investment, the total inflexibility here is pretty well in character for a company that actually has worse customer satisfaction ratings than even the much-hated Comcast. The growing cost of sports programming and the steady increase in annoying retransmission fee dispute blackouts usually help drive cord cutting, but in this case there's absolutely nowhere else to go to watch the content in question. Even over the air broadcasts aren't an option thanks to the nature of the Time Warner Cable, Dodgers arrangement. So far, regulators have chosen to treat these kinds of programming rate standoffs as just "boys being boys," but it's unclear how much longer they're going to be willing to stand on the sidelines given how much politicians love to earn cheap, sports-related political brownie points. Last year FCC boss Tom Wheeler sent a letter to Time Warner Cable claiming that "inaction is no longer acceptable" and the FCC was "monitor(ing) this situation closely in order to determine whether intervention is appropriate and necessary." But the FCC has said little since. Given that three of the companies involved in the standoff (AT&T, DirecTV and Time Warner Cable) are awaiting merger approval, conditions might be used to force the issue over the next few weeks.Permalink | Comments | Email This Story

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Space travel isn't easy. It's risky and involves quite a bit of preparation if the trip is going to last more than a few minutes or hours. But if humanity is really going to commit to space exploration, there are a few problems to solve. Life support systems are obviously going to need to protect our fragile bodies from radiation and the vacuum of space. On top of that, we also need to counteract the negative effects of microgravity on our health. Some people are thinking about these problems, but it's likely that we won't have solutions until at least 2030. NASA officially forbids pregnancy in space due to the unknown hazards it presents to the unborn. If humans are going to colonize other worlds, we're going to need to figure out how to procreate in different environments -- and bring along 10,000-40,000 astronauts to keep the genetic diversity high (unless space explorers opt to do far more genetic engineering experiments than we do on earth). [url] Plenty of people have volunteered for the Mars One mission -- a one-way trip to the red planet. A short documentary of a few of the people willing to die on Mars (or on the way) shows that these folks are a bit weird, but that they're not so crazy, either. [url] Astronauts haven't been to the moon in a while, so we've almost forgotten all of the things they've done and left behind on the moon. Astronauts have slept for 8 hours on the moon. They've left behind all kinds of waste -- but not bags of vomit, apparently. [url] After you've finished checking out those links, if you have some spare change (or more) and would like to support Techdirt, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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If you've spent any time on social networking sites like Facebook or Twitter, you can appreciate the hazards of the digital jungle. And even if you can fend for yourself out there, what about your kids? As well as I know the jungle's safe paths, I constantly worry about my three sons as they begin to navigate social platforms. The alternate world of our social media identities – profiles, handles, accounts, "friends" – has ruined reputations and ended careers, even lives. Adolescents and teenagers see this daily in the form of online bullying. For adults, the harassment usually comes from the anonymous vitriol spewed across the web. The question becomes then: Will it get better? Or is this simply the new normal of our increasingly all-digital world? The Supreme Court recently heard arguments in the case of a man convicted of threatening on Facebook to kill his wife. The defendant argues that he never meant what he wrote online. The prosecution argues, in effect, that intent is not the issue. Rather, a reasonable person would have felt threatened and that should be standard for a crime committed. What would you – or did you – think if someone dropped a death threat on your profile page? How the Court decides Elonis v. United States could lead the way toward stemming online abuse. The Justices may uphold the conviction, but as Justice Sonia Sotomayor said during oral arguments, "We've been loathe to create more exceptions to the First Amendment." It's a comment that might leave the floodgates wide open for online abuse, granting online bullies and trolls even greater latitude under the cover of the First Amendment. No matter what the Court decides, it still would be exceedingly hard to prosecute online offenders whose abuse doesn't include physical threats. Ask any teenager or adolescent if online attacks like, "You're so ugly; you should kill yourself," hurt any less than verbal assaults. The Court's decision won't stem the online harassment of adult victims either, whose tweets, posts or pictures done in poor taste can cause serious digital backlash. The fact is social networks have changed the way we see ourselves, just as email once changed the way we communicated. Whether it's bullying or harassment, there still exists a sense of comfortable anonymity in the digital-social world. We have our "offline" selves, who would never say such things to someone's face, and our "online" selves, who can't stop from piling on our targets. In many ways, it's no different than the violent mobs of yesteryear – people in a mob find themselves doing things they would never contemplate on their own. But Court cases like Elonis are helping to erode this digital wall between our online and offline identities. Since its foundation, the Internet has revealed its unique place in society – a place where people are free to be whoever they want. As the classic New Yorker cartoon featuring two canines puts it, "On the Internet, nobody knows you're a dog." This freedom has found its purest expression in social network sites. Yet the nature of the Internet is changing. We hardly even talk about "being online" anymore, because we're always online through our smartphones and mobile devices. And today, more and more of our cars are online. Our televisions are online. Even our clock radios are online. There will be a time in the not-so-distance future when most of our household appliances will be connected to the web – and not in the way we now know them: using the Internet for one application, such as navigation for cars. They will be "communicating" with other connected devices, constantly gathering data through sensors on us, the users, and on our surroundings. As the Internet evolves, so too will the way in which we see ourselves. Social networks will no longer be confined to our screens – laptops, tablets or smartphones. They will be as seamlessly integrated into our daily lives as the Internet itself. In this digital future, it will be much harder to cyberbully and torment people online, because the anonymity of the Internet will give way as we circle back to a world of singular identity – online and off. The chasm that once existed between our online selves and our offline selves is shrinking. Given the trends of digital devices and the ubiquity of the Internet we see today, Facebook, Twitter and other social networks will no longer be separate places where our actions live without consequence. They will be as real as our brick-and-mortar reality, where civility and restraint still govern. "Welcome to the jungle" will no longer be a dire warning, but a digital whisper. Shawn DuBravac, Ph.D., is the chief economist at the Consumer Electronics Association and the author of the forthcoming book, "Digital Destiny: How the New Age of Data Will Transform the Way We Work, Live, and Communicate" (Regnery, 2015). Follow Shawn on Twitter @ShawnDuBravacPermalink | Comments | Email This Story

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Most people would agree that cops slapping a GPS device on a suspect's vehicle for months or years at a time would have Fourth Amendment implications. It's often the length of the intrusion that has bothered courts the most (and mostly at state level, not federal), not the initial surreptitiousness of the GPS placement. Once it starts resembling a long-term tracking of a person's movements, some courts (including the Supreme Court) have declared a warrant requirement should be in place. When it comes to tracking recidivist sex offenders for the rest of their lives, most people -- and most courts -- don't see this as much of an issue. Both involve the long-term tracking of individuals, but more people can stomach the idea of permanent tab-keeping on known sex offenders than on people only suspected of criminal activity. The context matters -- at least in terms of how much of the population views the potential intrusion. But context doesn't matter when it comes to the Fourth Amendment, as the US Supreme Court recently ruled. If the government puts a GPS tracker on you, your car, or any of your personal effects, it counts as a search—and is therefore protected by the Fourth Amendment. The Supreme Court clarified and affirmed that law on Monday, when it ruled on Torrey Dale Grady v. North Carolina, before sending the case back to that state’s high court. The Court’s short but unanimous opinion helps make sense of how the Fourth Amendment, which protects against unreasonable search and seizure, interacts with the expanding technological powers of the U.S. government. What's interesting about this recent unanimous ruling is that it extends Fourth Amendment protections to convicted criminals, rather than just to suspected criminals. It's also a very short opinion -- partially due to the lack of dissent -- that gets straight to the heart of why the lower court's decision was wrong, starting with its rejection of the ruling in US v. Jones. The only explanation provided below for the rejection of Grady’s challenge is the quoted passage from State v. Jones. And the only theory we discern in that passage is that the State’s system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment. That theory is inconsistent with this Court’s precedents. The State further argued that the Jones decision did not apply because the monitoring program is civil in nature, rather than criminal. The Supreme Court corrects this misconception. It is well settled,” however, “that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations,” Ontario v. Quon, 560 U. S. 746, 755 (2010), and the government’s purpose in collecting information does not control whether the method of collection constitutes a search. A building inspector who enters a home simply to ensure compliance with civil safety regulations has undoubtedly conducted a search under the Fourth Amendment. More ridiculously, the State tried to claim that a lifetime monitoring program may not actually collect information about the subject's movements and whereabouts -- a non-conclusion it reached by dumping the burden of proof on the plaintiff. This, too, is treated harshly by the Justices. Without evidence that it is acting to obtain information, the State argues, “there is no basis upon which this Court can determine whether North Carolina conducts a ‘search’ of an offender enrolled in its SBM program.” Ibid. (citing Jones, 565 U. S., at ___, n. 5 (slip op., at 7, n. 5) (noting that a government intrusion is not a search unless “done to obtain information”)). In other words, the State argues that we cannot be sure its program for satellite-based monitoring of sex offenders collects any information. If the very name of the program does not suffice to rebut this contention, the text of the statute surely does: “The satellite-based monitoring program shall use a system that provides all of the following: “(1) Time-correlated and continuous tracking of the geographic location of the subject . . . . “(2) Reporting of subject’s violations of prescriptive and proscriptive schedule or location requirements.” N. C. Gen. Stat. Ann. §14–208.40(c). The State’s program is plainly designed to obtain information. And since it does so by physically intruding on a Cite as: 575 U. S. ____ (2015) 5 Per Curiam subject’s body, it effects a Fourth Amendment search. While the Supreme Court didn't go so far as to rule all such tracking programs as Fourth Amendment searches, it did vacate the state Supreme Court's decision and makes it clear that lower courts are to address this issue, rather than gloss over potential Fourth Amendment ramifications. Permalink | Comments | Email This Story

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Assuming you have a passing interest in politics and were awake for the past week or so, you've likely already heard all about Indiana's recently passed Religious Freedom Restoration Act. Designed similarly to laws in several other states, including my home state of Illinois, the bill was designed to confer religious expression rights (further than the federal protection that already exists for individuals) onto business owners and the companies they operate. Depending on what you read and where you read it, there has been a great deal of confusion over what this law does and where it departs from similar laws in other states. The one distinction that appears to really matter, should you be interested, is that most of these kinds of laws include language that forbid their invocation as a defense at trial for discrimination in which the government is not a party, whereas Indiana's law didn't make that distinction. Indiana has since amended the law to protect the LGBT community, which has been particularly vocal in its opposition. Since the right of refusal on religious grounds to serve that community was really the impetus for this law to begin with, that pretty much leaves us where we were before the law was in place at all. Whether you agree with the law or think it legalized bigotry is a discussion for another place. What interests me is whether now, in the age of a democratized message available via the internet, the outcry to change the law was the most efficient course of action at all. When discussing the benefits of the First Amendment, free speech, and the right to freely express ideas, most often the focus is placed on the value of protecting speech for the sake of the speakers. After all, should we begin to allow censorship of some speech, we might some day find that speech we wish to use has become censored. It's a perfectly valid argument, but an incomplete one, because the other benefit of free speech is that, assuming it's exercised, we don't have to wonder about the stances and positions people take. What Indiana's law did, in its original form, was offer business entities the same right to expose their opinions in the same way. And, in the age of Yelp reviews and online activism, are we really better off taking actions that push free speech, even speech we detest, underground, or are we better off giving companies an avenue for exposure. Think again about Yelp reviews and recall the general trend for the stories we cover about them at Techdirt. Those posts tend to be of a couple varieties. Many are the sort that involve business owners suing over negative Yelp reviews. A couple of things to note about this when framed by a discussion on the Indiana law: First, this reaction to Yelp reviews means that online reviews matter to businesses, and with good reason. Customer reviews are often a first-stop on the consumer's road to deciding where to spend their dollar. Online reviews are a powerful thing, in other words. As for suing over negative reviews, I think the case that such actions are valid would be diminished by a law that confers more expression rights to companies than not. After all, either you're for free speech or you aren't, Mr. Indiana Company. The road is traveled in both directions. The other kind of Techdirt post you see concerning online customer reviews is of the activist sort, where a company has acted positively or poorly in one way or another and the general public took to review sites, such as Yelp, Google Plus, or Facebook pages, to express their support or disgust. You may recall the the whole Amy's Baking Company fiasco that started with some crazy customer stories on Yelp, spun out of control on the show Kitchen Nightmares, and then exploded all over social media and review sites shortly thereafter. There, too, the owners of the establishment blamed Yelp reviews and "haters" for their misery, showing the power of the platform. If activism is a valid tool at all, it's perhaps at its most powerful in the online world, where connections exist everywhere and activism can be democratized across city, state, and national lines. So, in light of all that, the question for both sides of the argument on the Indiana law is whether either side was best served by amending the law and responding to the backlash, or if we would have all been better off trusting that enough information is shared at this point, and our country has made enough progress, generally speaking, to simply trust the combination of market forces and online speech and let the law stand as it was originally written. It feels strange to argue this, I'll admit, but I think the latter might be true. Were I the one making these decisions, I would be tempted to let Indiana's companies have their way and all the speech and rights to refuse service they might choose to take advantage of. Not because I would agree with their theology or their politics, but because I would trust the general public and the internet to work as a market force and solve the problem without further legislation.Permalink | Comments | Email This Story

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We all know we should be backing up our important files and memories from our hard drives, but how many of us remember to do so regularly? With today's Daily Deal of 67% off of the SOS Online Infinite Cloud Backup: 2 years subscription you can back up your data with limitless space. The subscription is good for 1 computer (Mac or PC) and unlimited mobile devices (iOS or Android) and includes all program updates. SOS Online runs in the background, encrypts all data with UltraSafe, SOS’s triple-layer privacy technology, can geo-locate and remotely wipe lost/stolen devices, and can even back up old print photos & home movies with its Scan-to-Cloud service. Taking advantage of this deal could start you down a path to digital peace of mind. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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Late in 2013, Paul Hansmeier, formerly of Prenda Law's Legal Buffoonery on Wheels Copyright Death Suicide Squad, realized that participating in a multi-jurisdictional legal train wreck had left him oddly unfulfilled. If the promise contained in his law degree was ever to be fulfilled, he would need to reassess his shakedown-focused lawyering. After an indeterminable amount of thought, Hansmeier apparently arrived at the conclusion that -- unfulfilled promise or no -- he was really only good at one thing: shaking people down. And, sadly, he wasn't even all that great at that. But "sue what you know," as they say, and Hansmeier went about rebranding himself as a Champion of the Weak and Underprivileged. No longer would he be throwing shaky demand letters and even shakier lawsuits at Household Members Voted Most Likely To Download Porn by the loose confederation of shakedown artists d/b/a An Actual Law Firm ("Come see our letterhead!"). That was the old Paul Hansmeier. The new Paul Hansmeier would instead be throwing shaky lawsuits and demand letters at any company whose towel racks were located more than 32" above the ground or whose entry threshold was a ¼" above the legally-mandated height. The smaller the company the better, as they rarely even bothered to show up in court and would instead settle for a small fee. The new Paul Hansmeier's operations were so efficient he could barely keep himself stocked in A4. Filings were submitted so fast not even the plaintiffs were aware they were listed as plaintiffs. And it was working, to a limited extent. Hansmeier was able to knock over a few mom-and-pop businesses for a few grand each. But now he's run into Kahler Hotels, which not only isn't interested in his ADA shakedown claims, but is countersuing him for $50,000+. (h/t to Dan Browning of the Minneapolis Star-Tribune) In its response to Hansmeier's complaint, Kahler denies a majority of the allegations before moving on to its own complaints. COUNT I - ABUSE OF PROCESS 1. Defendants are owners of real property located in Rochester, Minnesota. 2. Plaintiffs filed and served the instant action alleging violations of the Americans with Disabilities Act, violation of the Minnesota Human Rights Act and unfair discrimination. 3. Plaintiffs have an ulterior purpose in pursuing the claims set forth in their Complaint. 4. Plaintiffs’ Complaint misuses and perverts the purpose of a civil action. 5. As a direct and proximate result of Plaintiffs’ abuse of process, Defendants have sustained damages in excess of $50,000. COUNT II - CIVIL CONSPIRACY 6. Defendants incorporate in this paragraph the allegations set forth in Paragraphs 1 through 5 as though they were fully set forth herein. 7. The Plaintiffs are engaged in a civil conspiracy to accomplish some concerted action, which injures Defendants. 8. The Plaintiffs did commit, and executed certain acts in pursuance of certain torts as previously delineated against the Defendants. 9. That as a result of the Plaintiffs’ tortious conduct alleged herein, Plaintiffs did conspire and agree to commit such acts. 10. As a direct and proximate result thereof, Defendants have sustained damages in excess of $50,000. WHEREFORE, Defendants pray for entry of judgment as follows: 1. Plaintiffs take nothing by their Complaint as alleged; 2. Defendants are awarded damages in excess of $50,000 together with interest, costs, disbursements and attorney’s fees; and 3. The court order such further relief as it deems just and equitable. Whether or not the counterclaims (which are really, really vague) hold up remains to be seen, but this motion should give Hansmeier second thoughts about trolling this particular venue for easy ADA cash. Permalink | Comments | Email This Story

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Say what you will about the Baltimore PD and its cell tower spoofers (like... "It would rather let accused criminals go than violate its [bogus] non-disclosure agreement with the FBI…" or "It hides usage of these devices behind pen register/trap and trace warrants and then argues the two collection methods are really the same thing…"), but at least it's making sure the hundreds of thousands of dollars it's spent on the technology isn't going to waste. On Wednesday, Baltimore police Det. Emmanuel Cabreja said the department has deployed the device, called Hailstorm, and similar technology about 4,300 times since 2007. As the AP notes, the number of deployments admitted to here is the largest ever made public. This doesn't necessarily mean the rate of usage (more than once a day, on average) is out of the ordinary, however. Thanks to the very restrictive non-disclosure agreement the FBI forces law enforcement agencies to sign (while falsely claiming "the FCC made us do it!"), information on cell tower spoofers has very rarely been disclosed. Det. Cabreja confirmed the ultra-restrictive terms of the FBI's NDA, which forbids law enforcement agencies from producing any information on Stingray devices, no matter who's asking for it. Cabreja said under questioning from defense attorneys that he did not comply with a subpoena to bring the device to court because of a nondisclosure agreement between the Baltimore police and the Federal Bureau of Investigation. “Does it instruct you to withhold evidence from the state’s attorney and the circuit court of Baltimore city, even if upon order to produce?” asked defense attorney Joshua Insley. “Yes,” Cabreja replied, saying he spoke with the FBI last week about the case. There's nothing quite like hearing confirmation that two law enforcement agencies worked together to withhold information from a party being prosecuted by directly violating a court order. But it gets even better. The Baltimore PD's NDA was made public, and it shows the State's Attorney's office signing off on withholding Stingray information from judges and defendants, as well as agreeing to toss cases if exposure seems unavoidable. In contrast, the Erie County Sheriff's Department's agreement obtained by the NYCLU only contained signatures from law enforcement officials. The courts -- at least in Baltimore -- seem to be tiring of this secrecy. Baltimore judge Barry Williams has previously questioned the Baltimore PD's citation of its non-disclosure agreement with the FBI, with one memorably pointing out that the PD "doesn't have a non-disclosure agreement with this court." Unfortunately, if the Baltimore PD prioritizes its NDA over its obligation to obey court orders and turn over requested evidence, then it does actually have an NDA "with the court," albeit one the court never agreed to. If the FBI says Stingray info isn't going to be turned over -- no matter who's asking for it -- that information will remain hidden, even if it means tossing criminal cases. Permalink | Comments | Email This Story

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As the pressure is finally on over renewing Section 215 of the PATRIOT Act (and the mass surveillance programs enabled by the law), there are some interesting questions being raised: such as why doesn't the intelligence community seem to care about whether or not its programs work. That link takes you to a great article by former FBI agent (and now big time defender of civil liberties) Michael German, investigating the issue in the context of cybersecurity legislation. Here's just a snippet in which he notes that basically everyone agrees that these programs won't help at all, and yet some are still pushing for them: There is a strong argument for ending these programs on the basis of their high cost and lack of effectiveness alone. But they actually do damage to our society. TSA agents participating in the behavioral detection program have claimed the program promotes racial profiling, and at least one inspector general report confirmed it. Victims unfairly caught up in the broader suspicious activity reporting programs have sued over the violations of their privacy. The Privacy and Civil Liberties Oversight Board concluded the telephone metadata program violated the Electronic Communications Privacy Act and raised serious constitutional concerns. The Cybersecurity Information Sharing Act passed by Senate Intelligence Committee last week is yet another example of this phenomenon. Experts agree that the bill would do little, if anything, to reduce the large data breaches we’ve seen in recent years, which have been caused by bad cyber security practices rather than a lack of information about threats. If passed by the full Congress, it would further weaken electronic privacy laws and ultimately put our data at greater risk. The bill would add another layer of government surveillance on a U.S. tech industry that is already facing financial losses estimated at $180 billion as a result of the exposure of NSA’s aggressive collection programs. He also details some of the over-inflated claims of other surveillance programs in the past -- all of which were later shown to be false. But, the article doesn't really attempt to answer the question -- just raise it. In the past, we've noticed that the entire concept of a cost-benefit analysis seems antithetical to the way the surveillance state does business. But why is that? There are a few theories. The most obvious one is the one put forth by the ACLU's Kade Crockford a few months ago, highlighting a statement by former FBI assistant director Thomas Fuentes in a documentary about the FBI's fake plots, The Newburgh Sting, in which he basically admits that keeping the public scared is how you get your budgets approved: If you’re submitting budget proposals for a law enforcement agency, for an intelligence agency, you’re not going to submit the proposal that ‘We won the war on terror and everything’s great,’ cuz the first thing that’s gonna happen is your budget’s gonna be cut in half. You know, it’s my opposite of Jesse Jackson’s ‘Keep Hope Alive’—it’s ‘Keep Fear Alive.’ Keep it alive. In other words, it's the bureaucratic momentum that leads the surveillance state to just keep pushing the "fear" story, and never wants anyone to look at whether or not that story is true or if the cost related to it makes sense. That's certainly supported by the fact that many of the earliest hypers of "cybersecurity" were those who stood to profit handsomely from it (and have done so). In our recent podcast with Barry Eisler (himself a former CIA agent), he suggested a similar, but slightly different rationale, pointing to the "streetlight effect" based on the old joke of a drunk man searching for his lost keys under a streetlight, while admitting they were actually lost somewhere else. When questioned about this, he notes that he's searching under the light because "that's where the light is." In other words, the surveillance state collects all this useless data because they can -- and the costs associated with it (not just the direct costs, but all the damage done to US companies, trust in government and more...) don't really matter. There's probably a combination of both of those factors at work here, but I'll toss another one on the list which may be at work as well: the CYA theory. That is, most of the people in the surveillance state know pretty damn well that these programs are useless. But they don't want to be the one left holding the bag when the music stops on the next big attack, and the press and politicians are pointing to them and asking why they didn't do "X" to prevent whatever horrible thing just happened. So those officials need to "cover their ass" in being able to claim that they did everything possible -- and that always means more surveillance, because they don't want to be told that they could have gotten some information but didn't (even if having more information obscures finding the important information.) In other words, many of those involved are doing a cost-benefit analysis, not for the safety of the country or national security but for their own reputations. And that's how bad policy gets made. They don't do the right thing because no one wants to stand up there after there's some sort of attack or problem, and say "well, we didn't know those bad people were doing this because we didn't want to violate everyone's rights." That just doesn't play well, unfortunately. That's why the point that Bruce Schneier has been trying to make for years is so important: we need to bring society back to a place where people accept that there's some risk involved in everything. That's the nature of being alive. If we can rationally come to terms with that fact, then people don't need to freak out so much. But, unfortunately, it doesn't seem like that societal shift is going to happen any time soon.Permalink | Comments | Email This Story

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Back during the SOPA fight, in a discussion with someone who was working with the politicians pushing SOPA, I pointed out that such a law would encourage much more encryption -- and the response was "that's no problem, because we'll just ban encryption next." As stupid and impossible as such a statement is, it shows the mindset of some copyright extremists. Thus, it should be no surprise that they're actually starting down just such a path in New Zealand. As we noted last year, Kiwi ISPs, frustrated that their users kept running up against geoblocks, have started offering VPN services that get around geoblocks as a standard feature there. Basically, this is nothing more than a recognition that the internet really is global and attempts to pretend otherwise are pretty fruitless. However, the big media companies are not happy about this turn of events. A week or so ago, a bunch of them (Lightbox, MediaWorks, SKY, and TVNZ) teamed up to threaten New Zealand ISPs that if they didn't stop offering "global mode" VPN services to customers, that the media companies would sue -- arguing that merely offering such a service was copyright infringement. The letter is full of the usual bluster: “Offshore providers, such as Netflix US, Hulu, Amazon Prime and BBC iplayer do not have the right to exploit the copyright works in New Zealand,” the letter says. Licenses they hold apply only to specific overseas locations and prohibit customers from circumventing geo-blocking measures and other content protections. That may be true, but whether or not those companies are operating in New Zealand is not an issue that is of concern to the ISPs, who are providing internet access to the entire internet. If Netflix US, Hulu, Amazon and the BBC were the ones sneaking around the geoblocks, the companies might have a point. But arguing that merely offering a VPN service to users somehow violates the law seems like a crazy interpretation of copyright laws. But, of course, crazy interpretations of copyright laws are the norm these days, and there are always some lawyers who will insist the media companies have a case, such as the lawyer quoted in that article. The basic argument seems to be a variation on felony interference of a business model: The four are claiming that Global Mode, offered by Slingshot and Orcon, and similar services offered by other providers, are ‘unlawful’ for several reasons. Top of the list is infringement of the Copyright Act 1994, ‘either directly or as a joint tortfeasor’. The four are also claiming the services are unlawful in providing ‘misleading representations’ in stating or implying ‘without a proper basis’ that it is lawful for New Zealand based users of the services to access content from the offshore providers, and that ‘circumvention of geo-blocking measures in this way is permitted by New Zealand law (just like parallel importing of DVDs)’. The four are also claiming that use of the services constitutes a clear breach of the terms and conditions of the offshore providers – being the likes of Netflix, Hulu and Hulu Plus, Amazon Prime and BBC iPlayer. From a loose reading of this it seems like they're really arguing three things: (1) that offering such a service is a form of "inducement" to infringement, (2) that this is a form of circumvention of restrictions, which violates anti-circumvention clauses and (3) that this violates the terms of those video services. The third argument is meaningless since that's an issue between those services and the ISPs, not the media companies and the ISPs. The first one seems like a stretch but probably depends on a few factors, including how the services are marketed and whether or not merely viewing geoblocked content is a form of direct infringement (which seems like a stretch to me). The circumvention issue also seems like a stretch, but may depend on the specifics of New Zealand's Copyright Act, which I'm not as familiar with. You can read it here though to see which sections might apply. Either way, with the threat looming, at least one ISP has caved, saying it's not worth the fight: Unlimited Internet director Ben Simpson says that while his company doesn’t necessarily agree with that assertion, it has taken down the service nonetheless. “Geo-unblocking services are a direct result of consumer demand for access to content that is not made available to the New Zealand market,” Simpson says. “To be on the safe side, we have taken legal advice on this matter and I have made a firm call that we will sit on the sideline until a legal precedent has been set.” Of course, whether or not offering such a service technically violates copyright law is kind of besides the point, as the very idea that offering such a service should be against the law is crazy. Such services provide real value to consumers not just in getting around pointless geoblocks, but also in protecting privacy. Trying to outlaw VPN services like that just to protect obsolete business models of media companies pretending the world is not global these days, just seems like yelling at the tide. But, given that it's big old media companies we're dealing with, they still haven't figured out that going with the tide is much easier than ordering it not to come in...Permalink | Comments | Email This Story

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