posted 10 days ago on techdirt
In an open letter to Apple, two of its major shareholders, Jana Partners and the California State Teachers' Retirement System, have raised concerns about research that suggests young people are becoming "addicted" to high-tech devices like the iPhone and iPad, and the software that runs on them. It asks the company to take a number of measures to tackle the problem, such as carrying out more research in the area, and providing more tools and education for parents to help them deal with the issue. The letter quotes studies by Professor Jean M. Twenge, a psychologist at San Diego State University, who is also working with the shareholders in an effort to persuade Apple to do more: Professor Twenge's research shows that U.S. teenagers who spend 3 hours a day or more on electronic devices are 35% more likely, and those who spend 5 hours or more are 71% more likely, to have a risk factor for suicide than those who spend less than 1 hour. Other quoted research found: The average American teenager who uses a smart phone receives her first phone at age 10 and spends over 4.5 hours a day on it (excluding texting and talking). 78% of teens check their phones at least hourly and 50% report feeling "addicted" to their phones. According to the letter, at least part of the solution needs to come from Apple: we note that Apple's current limited set of parental controls in fact dictate a more binary, all or nothing approach, with parental options limited largely to shutting down or allowing full access to various tools and functions. While there are apps that offer more options, there are a dizzying array of them (which often leads people to make no choice at all), it is not clear what research has gone into developing them, few if any offer the full array of options that the research would suggest, and they are clearly no substitute for Apple putting these choices front and center for parents. The Apple shareholders behind the letter admit that it is not entirely altruistic: we believe that addressing this issue now will enhance long-term value for all shareholders, by creating more choices and options for your customers today and helping to protect the next generation of leaders, innovators, and customers tomorrow. Building on this, they also shrewdly point out that Apple has little to fear from moves to give parents more control over their children's use of Apple products: Doing so poses no threat to Apple, given that this is a software (not hardware) issue and that, unlike many other technology companies, Apple's business model is not predicated on excessive use of your products. In fact, we believe addressing this issue now by offering parents more tools and choices could enhance Apple's business and increase demand for its products. That's in contrast to Facebook or Google, for example, both which want people to use their respective products as much as possible so as to maximize the opportunities for advertising. Apple has already responded with a fairly generic reply, published on the iMore site: we are constantly looking for ways to make our experiences better. We have new features and enhancements planned for the future, to add functionality and make these tools even more robust. Unless that functionality goes well beyond the perfunctory, it is unlikely to satisfy the shareholder groups, who presumably want the "full array of options" they mention. The danger for Apple is that a limited response might lead to it being swept up in the growing backlash against Silicon Valley and its products, evident in a number of recent articles. One thing Apple could do is to make it easier for third parties to write apps that address the problem in a thoroughgoing way -- something its tightly-controlled ecosystem may make harder than for Android. A broader issue is how serious the problem of gadget "addiction" in children really is -- and how it should be tackled. Clearly, the parents play a key role here, but what about the hardware and software companies who profit from it? To what extent should they provide fine-grained parental controls -- should social media, for example, offer parents the capability to limit the number and timing of daily posts made by their children, and would that even help? Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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The Supreme Court's decision in The Slants' trademark case is already beginning to pay off for trademark seekers whose applications were determined to be a bit too racy for the Trademark Office's (subjective) taste. Section 1052(a) of the US Code used to forbid the registration of trademarks that "disparaged" other persons or groups or anything the USPTO found to be "immoral or scandalous." That's all gone now, thanks to the Supreme Court, which found this restriction to registrations unconstitutional. The Supreme Court struck down the language limiting "disparaging" trademark registrations. The Federal Circuit Court of Appeals has just struck down the remaining limiting language ("immoral or scandalous"), allowing clothing brand FUCT to finally secure federal trademark protection. Marc Randazza breaks down the entire ruling at Popehat. Here are some of the highlights of the decision [PDF]: The Brunetti court [rejected] the government’s argument that the “immoral or scandalous” prohibition of Section 2(a) was aimed at commercial speech. The primary test for determining whether a mark is “immoral or scandalous” is if the general public would find the mark “shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable; . . . giving offense to the conscience or moral feelings; . . . or calling out for condemnation.” In re Fox, 702 F.3d 633, 635 (Fed. Cir. 2012). The court noted that this restriction is aimed solely at the expressive content of trademarks, rather than their commercial source-identifying function, and necessarily involves moral value judgments. (Decision at 27.) The court could have stopped after this determination, since the government agreed that the “immoral or scandalous” portion of Section 2(a) could not survive strict scrutiny, but it went on to find that the restriction could not survive even intermediate scrutiny. The decision takes even more pointed shots are the government's unavailing arguments later in the ruling. The government’s interest in protecting the public from profane and scandalous marks is not akin to the government’s interest in protecting children and other unsuspecting listeners from a barrage of swear words over the radio in Pacifica. A trademark is not foisted upon listeners by virtue of its being registered. Nor does registration make a scandalous mark more accessible to children. Absent any concerns that trademark registration invades a substantial privacy interest in an intolerable manner, the government’s interest amounts to protecting everyone, including adults, from scandalous content. But even when “many adults themselves would find the material highly offensive,” adults have a First Amendment right to view and hear speech that is profane and scandalous. [...] Even if we were to hold that the government has a substantial interest in protecting the public from scandalous or immoral marks, the government could not meet the third prong of Central Hudson, which requires the regulation directly advance the government’s asserted interest. 447 U.S. at 566. As the government has repeatedly exhorted, § 2(a) does not directly prevent applicants from using their marks. Regardless of whether a trademark is federally registered, an applicant can still brand clothing with his mark, advertise with it on the television or radio, or place it on billboards along the highway. In this electronic/Internet age, to the extent that the government seeks to protect the general population from scandalous material, with all due respect, it has completely failed. This doesn't end the battle. The government may decided to appeal this decision, lining up this portion of Section 2(a) for a review by the Supreme Court. Or, as Randazza points out, legislators could decide to ruin the registration of bad words for everyone with "for the children" legislation altering the contours of language eligible for trademark protection. But, for the moment, the First Amendment triumphs over USPTO prudery. Let the F-bomb gold rush begin! Permalink | Comments | Email This Story

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Mike Wendy is an interesting guy. He's ever present on Twitter attacking pretty much anyone who is in favor of net neutrality and has a bit of a following. In his day job, he operates something called "Media Freedom" which is one of an astoundingly long list of astroturf operations parroting telco interests (nearly all of Wendy's prior career was spent working for telco industry groups). Over the last two years, Wendy has been one of the most vocal attackers of the Tom Wheeler's net neutrality rules -- and he had a pretty strong go to line about just how much of a "regulatory" burden the rules were. Let me see if I can find it... Oh, right. Yes, as Wendy's repetition was designed to point out, over and over again, those old rules simply must be extra burdensome, because it's 400 pages and over 1700 footnotes. Of course, that's bullshit, and Wendy knows its bullshit -- but he wanted to misrepresent the rules and make them seem like a giant regulatory burden. The actual rules were just 8 pages. There were 392 other pages of legally required information including discussions of the various public comments and the various statements from the Commissioners, including lengthy dissent statements from the disagreeing commissioners. In the Wheeler ruling, Ajit Pai's dissent took up 64 pages and Michael O'Rielly's was another 15 pages. Yet, somehow, Wendy and others didn't bother letting people know that 89 pages of the 400 pages were explaining why the rules were (apparently) bad. When the draft rules came out, at 210 pages, I wondered why Wendy and others were suddenly silent on the page length. Last week, as you may have heard, Pai's actual final rules were released... and the full document weighs in at 539 pages. Again, those are not the actual rules. Those are just the rules, the legally required (and very detailed) explanation of the rules and all the Commissioners' statements. And guess who's suddenly angry about people misrepresenting why the new document is so long? Why, it's our old buddy, Mike Wendy: Wendy is correct that a big chunk of the new document is Clyburn's appendix, which are Wheeler's original order (including all the required explanatory text), but remember, Wendy didn't bother to discount similar text appended to Wheeler's order at all. Instead, he used it repeatedly to falsely imply that the rules were a complicated 400 pages of burdensome regulations. Remember "400 pages, 1777 footnotes of "simple" Title II. Sure, Kev" from Wendy? But now, suddenly, it's nitpick, nitpick, nitpick about which parts are in favor and which parts are dissent. Fascinating. To be fair, Fight for the Future similarly should not be playing up the "539 pages" for the same reasons that Wendy and other anti-neutrality folks shouldn't have played up the 400 pages. But at least unlike Wendy and others, Fight for the Future is just complaining about how bad the new rules are, not suggesting totally incorrectly, that the (false and misleading) length of the rules is somehow an indication of how "burdensome" and "complicated" the rules are. Again, it's fine to make arguments about the actual rules (8 pages in the Wheeler order and 2 pages in the Pai order), but it should be quite clear that those who actually understand this stuff (like, say, someone who's worked in the telco policy space for decades) should acknowledge that they were absolutely full of shit in repeatedly arguing that the Wheeler rules were 400 pages. Or, if they're not willing to admit that, then why aren't they similarly complaining about the "539 pages" of the Pai "rules"? Maybe -- and I'm just spitballing here -- it's because they're total hypocrites who were happy to misrepresent the length of the rules when they didn't like them, but are now going to nitpick the specifics because using their very same argument against them would, I don't know, make them look ridiculous? Permalink | Comments | Email This Story

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There ought to be a law, say many people opposed to revenge porn. And so they craft laws with an eye on prosecution but not so much on the First Amendment, tending to treat collateral damage as acceptable so long as revenge porn site operators are criminally charged. But the proposed laws are more than bad, they're extraneous. Existing laws are still taking down revenge porn purveyors, as we've covered previously at this site. The FTC has taken down another revenge porn site and secured a judgment against one of its operations, all without having to having to hack away at protected speech or undermine Section 230 immunity. MyEx.com -- a site "dedicated solely to revenge porn" -- has been targeted in an FTC complaint. According to the complaint, visitors to MyEx.com can rate the videos and pictures they see and post comments about the victims. At various times, the site included victims’ full date of birth, personal email address, telephone number, and links to social media profiles, along with the intimate images. The FTC alleges that the defendants were aware that many of the individuals did not agree to having their intimate images and personal information posted to MyEx.com. As of December 2017, there were approximately 12,620 entries on the site, according to the complaint. The complaint [PDF] contains extensive documentation of the site runners' activities, including charging people anywhere from $499 up to $2,800 for removal of pictures and information, as well as the site's operator creating a wholly (and admittedly) fictitious business entity to hide behind. Defendant Applegate registered the domain MyEx.com through domain name registrar GoDaddy from November 2011 through at least June 2013. He provided GoDaddy the email address [email protected] as his contact address. In May of 2013, GoDaddy informed Defendant Applegate of reports of child exploitation and underage content on MyEx.com. GoDaddy also informed Defendant Applegate that an investigator from an internet-crimes-against-children taskforce and a police detective were attempting to get in touch with the website operators. Also in May 2013, Defendant Applegate changed the contact name provided to GoDaddy for the MyEx.com website to “Eun Kim” and changed the contact address to Singel 540, 1017 AZ Amsterdam, Netherlands, while leaving the contact email address as [email protected] for a period of time. After GoDaddy inquired about this change, Defendant Applegate told GoDaddy in a message, “its [sic] not a company it’s a made up name for the address & [sic]; phone number in the Netherlands. The [expletive] domain is in my godaddy [sic] account.” Defendant Applegate then moved MyEx.com to a different registrar, Eurodns. He provided Eurodns the contact name “Eun Kim” and changed MyEx.com to be associated with the fictional business entity, Web Solutions B.V. He provided a contact address of Singel 540, 1017 AZ Amsterdam, Netherlands, which was the same address he told GoDaddy that he made up. This fictitious address was also used to ignore DMCA complaints and other requests for removal of content. Under the “Contact Us” page, the site stated, “Myex.com has no removals [sic] policy. If you are an adult who has been submitted to this site tough luck [sic].” The page went on to state, “If you have the need to send mail please address it to MyEx.com c/o Web Solutions B.V. Attn Legal Department DMCA Complaints. Websolutions Netherlands, Singel 540 1017 Amsterdam The Netherlands Attn: Legal Department.” Paid removals were handled in a similarly shady fashion. The site's operators made those seeking content removal wire money to someone named "Shelly Mae Garcia" who supposedly lived in the Philippines. Those who refused to pay the extortion were invited to send snail mail to the fake address in the Netherlands. The FTC finds the site owners to be in violation of the FTC Act, which prohibits unfair or deceptive acts or practices by business entities. As is detailed in the complaint, there's no shortage of evident harm created by the site's posting of intimate photos without the consent of those depicted, along with as much personal info (names, addresses, social media accounts) as the site could harvest. The settlement [PDF] with one of the site's owners, Neil Infante, prohibits him from posting intimate photos with the explicit, written consent of the photo's subject. It also subjects Infante to 20 years of FTC monitoring and a $205,000 fine. (It appears the FTC will only be able to collect $15,000 of this fine. The FTC's press release states the rest of the fine will be suspended as Infante has shown "an inability to pay more.") Infante is also prohibited from charging takedown fees for any content whose removal is requested. The FTC is still seeking to obtain judgments against the other participants in the revenge porn operation and is ordering Infante to turn over as much info as he has on his revenge porn colleagues. This revenge porn operation is effectively dead. The nonconsensual part of the operation is blocked by the FTC judgment and the inability to charge removal fees pretty eliminates the most profitable revenue stream. It's unclear what the future holds for Neil Infante, but it appears the Republican Senate race in Ohio (Infante's home state) is suddenly in need of a new frontrunner. Perhaps FTC judgment recipient and former revenge porn site operator Craig Brittain could send his colleague a few ideas on to how to MAGA the hell out of the nation as a Senate race bottom-feeder. Permalink | Comments | Email This Story

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As discussed this morning, the House voted a few hours ago on a bill to reauthorize Section 702 of the FISA Amendments Act that did not reform the widely abused surveillance rules -- other than to codify some of the power allowing them to continue to abuse it for warrantless surveillance on Americans. There was a vote on an important Amendment from Reps. Justin Amash and Zoe Lofgren that would have allowed the reauthorization of the underlying program, but (importantly) required a warrant (as per the 4th Amendment) for spying on Americans. And, unfortunately, the amendment was voted down (183-233) and the awful reauthorization passed, 256 to 164. The fight over this bill was... weird in so many ways. There was the expected bullshit: politicians outright lying to the public, arguing that the Amash/Lofgren amendment (which again, just said that the program had to be conducted in accordance with the 4th Amendment) would somehow stop the intelligence and law enforcement community from finding terrorists (it wouldn't). Again: everyone expected that. What was weird was (1) having some of Donald Trump's loudest detractors in Congress... then argue against the Amash amendment and in favor of giving the Trump administration more power to warrantlessly spy on Americans and share that data widely among law enforcement. And (2) having President Trump tweet a series of confused tweets this morning that demonstrated that he clearly didn't know what the debate is actually about... and suggesting he was against the reauthorization, despite the fact that the White House (his White House) had issued a statement strongly supporting the reauthorization. So despite the White House (which, last I checked is supposed to represent the views of the President) tweeted in support of Section 702, here's what the President himself tweeted early this morning: “House votes on controversial FISA ACT today.” This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others? — Donald J. Trump (@realDonaldTrump) January 11, 2018 Not surprisingly, this came just minutes after Trump's besties at Fox & Friends had complained about Section 702, and even directly said "Mr. President, this is not the way to go." During the segment, after claiming that Trump's "woes began" with "surveillance of him," Andrew Napolitano literally turns to the camera and says, "Mr. President, this is not the way to go." pic.twitter.com/W8NrtDDP3I — Matthew Gertz (@MattGertz) January 11, 2018 That resulted in Trump's tweet which freaked out supporters of the bill, and even had a few members of Congress suggesting delaying the vote. Of course, while Trump later when on to tweet about some other topic, hours later, he added another tweet to the original tweet above, suggesting that he was now in favor of the reauthorization: With that being said, I have personally directed the fix to the unmasking process since taking office and today’s vote is about foreign surveillance of foreign bad guys on foreign land. We need it! Get smart! — Donald J. Trump (@realDonaldTrump) January 11, 2018 You will be unsurprised, of course, to learn that in the hours between those tweets, Rep. Paul Ryan (who was soon to go on the floor and completely misrepresent the bill) had spoken to the President. It's worth pointing out, of course, that both of Trump's tweets totally misrepresent the 702 program and the vote today. While there are many, many examples of abuse of Section 702 surveillance powers, there has yet to be any evidence that it was abused to do surveillance on the Trump campaign. But the second tweet is also wrong. The issue was not "foreign bad guys on foreign land" but the fact that the new bill authorizes surveillance of totally innocent people -- including American citizens at home in America -- without a warrant. As for the other oddity: some of Trump's biggest critics in Congress -- Adam Schiff and Nancy Pelosi -- just helped to give Trump much greater surveillance powers on Americans without a warrant... despite regularly complaining that he has abused his powers. ...the most powerful member of the Democratic Caucus, House Democratic Leader Nancy Pelosi, was notably silent on the bill. If Pelosi had whipped Democrats to vote against the bill and supported the USA RIGHTS Act instead, there’s a good chance that Trump and Ryan would have failed to get their full extension. Yet, just before the floor vote today she said she would not support the USA Rights Act and shamefully voted to hand Trump exactly what he wanted. Almost worse than Pelosi's willingness to go along with the NSA was Rep. Adam Schiff's, D-Calif., who has seen his star rise over the last year being the Democrat’s go-to voice on the Russia investigation. On CNN with Jake Tapper this weekend, Schiff talked at length how he thought Trump was abusing his power and misusing the Justice Department to go after his political enemies. Nonetheless, Schiff was a leading driver in the House to extend the NSA's surveillance powers, and has been undercutting the more robust reforms proposed by other Democrats, like longtime Senate Intelligence Committee member Sen. Ron Wyden, for months. So, in summary: this bill that effectively expands the power of US intelligence and law enforcement communities to spy on Americans without warrants... was supported, then opposed, then supported again by the President while demonstrating he had no idea what was in the bill... then supported by Democrats who keep warning that the President will abuse the wider surveillance powers that they are voting to give him... and then the bill passed just as expected. This is all kinds of fucked up. Either way, this now moves on to the Senate. And while there are some Senators who are speaking out against the reautorhization -- mainly Senators Ron Wyden, Rand Paul and Mike Lee -- it's widely believed that there's not enough 4th Amendment supporters in the Senate to stop the bad bill from getting passed as well. And, at that point, it's quite likely that the President will sign the bill, despite his own tweet complaining about the program this morning. Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
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posted 11 days ago on techdirt
Senator Rob Portman, one of the authors of a terrible piece of legislation in SESTA, has gone on the offensive in trying to get the bill passed. He gave a rousing speech on the Senate floor, in which he (1) misrepresented his own bill, (2) misrepresented CDA 230, and (3) threatened to pass even worse legislation if more tech companies don't support SESTA. I may not be an expert on how to legislate... but this does not seem like a good way to legislate. Let's start with the most incredible part: the threat to pass even worse legislation if the tech industry can't support SESTA more broadly (and, remember, many of the biggest tech companies already support the bill). And, really, the main thing blocking the bill at this point is the fact that the House decided to go in a different direction with the bill, recognizing the myriad problems with SESTA. But, to Portman, it's all tech's fault, and thus this bizarre nonsensical threat: If you don’t start cracking down on this obvious crime against humanity, which is what I believe trafficking is, I think you’re going to see much, much broader legislation to deal with the internet. But, of course, all of the big tech companies ALREADY do "crackdown" on sex trafficking, whenever they're aware of it happening via their platforms. Notice that Portman doesn't actually name any of the tech firms as facilitating this -- he just insists they do. The only company he names, naturally, is Backpage. But he fails to mention that Backpage shut down its adult ads section due to lots of political pressure, and that the company is not immune from lawsuits for content it actually creates, and that the company is not immune from the DOJ filing a federal lawsuit, and that there's a still ongoing grand jury investigation into Backpage. In short -- existing law seems to be working just fine. So why is Portman saying tech companies need to crack down on sex trafficking or he'll help pass an even worse law? It makes no sense, and is no way to competently legislate. It's a way to vindictively legislate in a manner that will have disastrous consequences for the internet, innovation and for free speech -- including the free speech of those who are actually working to stop sex trafficking, or who are victims who need help. SESTA makes the problem worse. Blaming intermediaries doesn't help anyone stop sex trafficking. It doesn't provide any new tools for law enforcement to go after sex traffickers. It does create incentives for tech platforms to not look to clean up their sites -- the exact opposite of what Portman is talking about above -- because it includes a "knowledge" standard. And what's the best way to avoid having knowledge? By NOT LOOKING. It's a bad bill that will make the problem of sex trafficking worse, not better. The rest of Portman's talk is filled with other misleading or simply wrong statements. Here’s the tragic part of this. Not only are more and more lives being ruined, more and more heartbreaking stories, but it’s because of a federal law that provides immunity to these websites. So it comes right back here, right to these desks, right to this Congress, right to us as legislators to fix this problem—not try to smooth it over, but to actually fix the problem, which is that some of these online trafficking sites are immune from prosecution because of a federal law. It was a well-intended law. It was written 21 years ago—the Communications Decency Act. No. It's because horrible human beings are engaged in sex trafficking, and the focus should be on tracking them down and arresting them. SESTA doesn't help with that, and in fact makes it more difficult. Also, more importantly, the immunity provided to websites by CDA 230 is limited. It doesn't apply to federal crimes (remember that federal grand jury mentioned above?). It doesn't apply to content created by the website. It doesn't apply to the people actually creating the content (i.e., the sex traffickers themselves). Why doesn't Portman admit to any of this? Because it destroys the rationale for the bill. Ironically it was put in place, in part, to make it a crime to send pornography to kids online, but it’s been twisted and used by these trafficking sites to provide them the ability to say ‘you can’t touch us. You can’t go after us.’ Uh, Senator Portman is leaving out a key piece of all this: which is that while it's true that the CDA was put in place to make it a crime to send pornography online, that whole part of the law was thrown out as unconstitutional and a First Amendment violation. It's not that the law was "twisted." It's just that the part he's talking about was BLATANTLY A VIOLATION OF THE CONSTITUTION that Senator Portman has sworn to uphold. The part that remained of the CDA -- Section 230 -- is the part that actually encourages sites to filter, moderate or remove content by limiting liability. SESTA changes that equation and actually removes much of the incentive to moderate the content. It creates incentives for the companies not to even look. Part of what the law says in trying to promote the internet is that if you post somebody else’s material on your site, you’re not liable. This wasn't to "promote the internet," it was to correctly apply basic principles of liability. You don't blame the tool. You blame the user. If a platform hosts content, you blame who created the content. Also, Portman is misprepresenting CDA 230 in the sentence above. While it's true that it does protect platforms that "post somebody's else's material," that's not the key part of it. That implies that CDA 230 is designed to protect the deliberate action of "posting somebody else's material." But the law is even more about content posted by users. In most cases, it is not the site "posting somebody else's material," it's users posting their own material. And NOTHING in the law says that those users can't be prosecuted if the material violates the law. It just says you don't blame the tool, who is the service provider hosting the material. All we’re saying is if you know that this involves trafficking, and Senator Blumenthal talked about his experience as a prosecutor, I mean this is a high bar—the knowing standard, then you can’t get away with this. Except the standard, as written, is not actually that high. It was improved from its even worse initial draft, but is still quite broad, and would leave tons of sites completely at risk of frivolous lawsuits. By the way, the other side of the argument is by the tech community, some of whom support this legislation, some of whom do not. But for the people in technology who are concerned about this, I just have to tell you, I don’t get it. This is very narrowly crafted to this issue. We’re not trying to affect the freedom of the internet, just the opposite. IT IS NOT NARROWLY CRAFTED. That's what people keep trying to explain to Portman. He can repeat "it's narrowly crafted" over and over again, and people who actually have experience with attacks on internet platforms know that, as written, it will lead to a lot of frivolous litigation and fishing expeditions -- and widespread censorship to avoid liability, along with LESS activity by platforms to moderate the content. THAT is the concern. No one who is fighting SESTA is arguing that we shouldn't go after those responsible for sex trafficking. We're explaining how this bill DOES NOT DO THAT and not only will very likely MAKE THE PROBLEM WORSE, but it will also have massive collateral damage -- including damage that will make it harder to stop sex trafficking. And for those in the tech community who continue to oppose this legislation, I ask you to look into your hearts and think about the impact this is having on families all across the country. Yes. That's why Portman can't name a SINGLE site other than Backpage that he claims is responsible here (and he never mentions that Backpage stopped adult ads). Because these sites do care about this issue and they don't allow or encourage sex trafficking on their platforms. So why is he asking them to "do more" when the only things in his bill will encourage these sites to "do less"? And why is he threatening to pass even worse legislation? Is this really how Senator Portman legislates? By misrepresenting facts? By misrepresenting existing law? By misrepresenting his own bill? By misrepresenting what companies currently do? And then by threatening to pass even worse legislation if companies don't do the thing they've always done already? Permalink | Comments | Email This Story

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So we've noted repeatedly how the attack on net neutrality is just one small part of a much larger, dumber plan by major ISPs to neuter nearly all federal and state oversight. A plan that involves gutting all meaningful FCC authority over broadband ISPs, then shoveling any remaining authority to the FTC. An FTC (surprise surprise) the broadband industry is currently in court arguing has no authority over broadband providers. Ajit Pai's FCC (at Verizon and Comcast lobbyists' request) also included provisions pre-empting states from trying to protect consumer privacy or net neutrality. So far individual states aren't listening. New York, Washington, Minnesota, Massachusetts and California are all pushing their own net neutrality rules. And since the FCC's net neutrality repeal prohibits states from passing such laws, many of these states are creatively eyeing provisions that require ISPs adhere to net neutrality if they want to win government contracts, or if they want to keep getting taxpayer subsidies for those fiber networks they always tend to leave half built anyway. ISP lobbyists have already begun trying to argue that these individual state efforts create a discordant patchwork of regulations that may be difficult to adhere to. But that's the sort of thing said lobbyists should have thought about before rushing mindlessly to destroy federal net neutrality rules. Rules that were actually among the more modest of any of the developed nations that have passed such protections (see The Netherlands, India, Japan, Canada, Germany). Nebraska has now added itself to the list of states stepping up to the plate in the wake of federal consumer apathy. State Senator Adam Morfeld has introduced LB 856 (pdf), which would restore the federal net neutrality rules on the state level, and prevent ISPs from "limiting or restricting access to web sites, applications, or content." Speaking to his hometown newspaper, Morfield expressed surprise at the volume of bipartisan feedback he received in the wake of the FCC's decision: "For me, this is an economic development and consumer protection bill,” Morfeld said. “The internet drives the economy now and it’s critical people have open and fair access to the internet. I knew I was passionate about it, but I was shocked at the support I received from Republicans, from Democrats and Libertarians," he said. He shouldn't be surprised. Survey after survey (including some from the industry itself) show that net neutrality has broad, bipartisan support among consumers. One recent poll indicated that 83% of Americans opposed the FCC's handout to the telecom sector. The fact that the FCC ignored this support in its rush to repeal the rules will be playing a starring role in the looming lawsuits awaiting the agency later this year. Whether Nebraska's law will be preempted by FCC authority is something else the courts will have to hash out, especially since the FCC has had its wrist slapped for overreach in the past when it has tried to preempt state authority on matters of broadband. ISP lobbyists (and the countless think tankers, lobbyists, consultants and academics paid to love them) express breathless adoration of "states rights" when states are criticized for passing anti-competitive state laws, but when those same states actually try to protect consumers and small businesses, you'll notice that this adoration of states rights magically disappears. Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
The Congressional showdown on Section 702 reforms/renewal continues to generate little actual debate or reform -- but plenty of bad proposals. Both the House and Senate Intelligence Committees have decided there should be a renewal -- preferably an extended one -- with zero actual reform. Members of the House offered up some tepid reforms in the USA Liberty Act, only to find this offering blocked by the House Permanent Select Committee on Intelligence (HPSCI), which offered a zero-reform package at the last minute. Fortunately, no one was able to tack a lousy non-reform bill to the tailend of the annual budget bill, thereby dodging reform discussions and giving the NSA a surveillance blank check for the next 5-10 years. Having been stiff-armed for a few weeks, the HPSCI has put together another Section 702 "reform" bill that does nothing to change the status quo and actually has the possibility of making things worse. Sharon Franklin discusses the many, many problems with the House Committee bill at Just Security. What the committee offers up as reforms is language that can (and will) be read as allowing the NSA (and other agencies) to conduct themselves as they have for years -- this time with the explicit statutory authority granted to them by their supposed oversight. Proponents of the Intelligence Committee’s bill contend that it presents a compromise approach to addressing both of these privacy risks, and that recent modifications to the bill address the concerns of privacy advocates. In reality, the bill includes no meaningful reform on either issue – or any other real reforms to Section 702. Instead, the Intelligence Committee’s bill would codify these two practices and risk expanding the government’s surveillance authority. Codification would include the NSA's abandoned "about" email collection. The NSA voluntarily ditched this program because it couldn't stop collecting US persons' communications with this untargeted collection. This bill would allow the NSA to turn the collection back on, provided no introduced legislation specifically demanding the permanent shutdown of this collection method within 30 days of the NSA's notice. Worse, it would possibly allow the NSA to expand the scope of an already vaguely-targeted collection. First, it could be interpreted by the government to permit unintentional “about” collection, such as where the Intelligence Community knows a certain technique results in “about” collection, but since that technique is not specifically intended to collect “about” communications, it engages in that collection nonetheless. Second, because the bill defines an “abouts communication” as “a communication that contains a reference to, but is not to or from, a target,” there is a risk that the bill could be interpreted to allow the government to collect communications that merely reference a target, such as mentioning a target’s name. Currently, the government may only collect communications that include a target’s “selector,” such as a target’s email or phone number. The bill would also leave the backdoor search loophole wide open. The FBI (and other agencies) query NSA collections for information not necessarily related to national security investigations through this backdoor search, allowing them to use ostensibly foreign-facing collections for domestic policework. The bill does add a warrant requirement for these sorts of non-national-security-related searches, but this would only apply to "predicated investigations." This would allow the FBI to make use of NSA databases in other forms of investigations, including preliminary investigations -- all of which are based on less probable cause than "predicated" investigations. In other words, the FBI would be required to get a warrant during the final stages of a criminal investigation but need nothing to engage in fishing expeditions using NSA collections. The HPSCI is also on the attack, trying to prevent other reform legislation from gaining supporters. It has gone so far as to portray support for competing bills containing actual reforms as threats to national security. Ron Wyden's office has issued a debunking of the HPSCI's outlandish claims. HPSCI Majority allegation: USA RIGHTS will recreate a pre-9/11 “wall” preventing the Intelligence Community and law enforcement from sharing terrorism information. Fact: Nothing in the USA RIGHTS Act prevents sharing of terrorism information. HPSCI Majority allegation: USA RIGHTS prevents the IC from “uncovering plots against the United States and saving potential hostages via limitations on the ability to conduct U.S. person queries…” Fact: USA RIGHTS, which requires a warrant for U.S. person searches of 702 data, includes an exception to rescue hostages, as well as an emergency provision that allows the government to search first and seek a warrant later. In addition, the government has other FISA tools, such as Section 215, that would allow it to swiftly “connect the dots” between suspects and terrorists without a probable cause warrant. HPSCI Majority allegation: USA RIGHTS limits the government’s ability to obtain terrorism information by “unnecessarily restricting when the Government may ask for technical assistance from electronic communication service providers.” Fact: Recent statements from the government indicate that it interprets Section 702 to allow it to direct electronic communication service providers to alter encryption. Even supporters of government-mandated weakening of strong encryption have argued for court orders. USA RIGHTS merely requires that the FISA Court oversee any such directives and ensures that those directives are tailored to the surveillance at issue. HPSCI Majority allegation: USA RIGHTS would prevent NSA from “understanding foreign threat networks by permanently ending NSA’s ‘abouts’ collection.” Fact: The “abouts” collection, which could include communications to and from innocent Americans on whom there is no suspicion, was suspended by the government due to significant compliance problems. If the government wishes to resume the “abouts” collection, it can always seek those authorities from Congress. HPSCI Majority allegation: USA RIGHTS allows terrorists and spies to sue the U.S. government. Fact: It is a basic tenet of the rule of law that surveillance authorities can be challenged in court. USA RIGHTS merely ensures that the government cannot abuse the secrecy of Section 702 to keep it from ever being challenged by anyone. This is only a small part of the many claims the HPSCI has made in hopes of heading off any real challenge to its zero-reform Section 702 legislation. It's pretty sickening this is coming from legislators charged with subjecting surveillance efforts to intense scrutiny. The HPSCI has never held up any of the NSA's dubious claims as examples of untrustworthy behavior or as a threat to Americans' privacy. Instead, it focuses its attention on those who won't grant the NSA a pass it hasn't earned. Either way, this issue is coming to a head today. House leadership tried to "appease" those who actually support the 4th Amendment by allowing just one amendment to be voted on -- good amendment by Reps. Justin Amash and Zoe Lofgren. House leadership apparently expects the amendment to fail, and then their awful bill to squeak across the finish line. In response, there's been a pretty frantic effort on both sides to garner support -- leading to the HSPCI's misleading attacks on the amendment. If enough Reps in the House actually grasp what's at stake, and vote for the Amash/Lofgren amendment, it would be a pretty big game changer, and perhaps push the Senate away from its own bad proposals. If not, it will mean that a majority of our elected officials think that the 4th Amendment and the privacy of Americans is not particularly important. So right about now might be a good time to contact your representative to see where they stand on this. Permalink | Comments | Email This Story

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For the last few years, the trend du jour in online media has been to demonize, vilify, then shutter the traditional news comment section. Usually these closures come with all manner of disingenuous nonsense about how websites are banning comments for the sake of "building relationships" or because the website in question just "really loves conversation." Usually, on-site users are then shoved toward social media silos at Twitter and Facebook we're told are "just as good" as an active, on-site community (read: doing this is cheaper and makes it somebody else's problem). Traditionally, readers of these websites are told that news comments simply had to die because it's impossible to cultivate healthy discourse in the post-truth, mega-troll era. But as Techdirt and countless other websites have made clear for more than a decade, that's simply not true. And while being lazy, cheap and actively hostile to on-site community is any website's prerogative, this ignores the fact that online news comments are an excellent avenue for transparency and a tool to hold websites, and authors, accountable. With so many websites muzzling community speech because they just so adore conversation, it's good to point out when websites swim upstream against this trend. For example the Intercept last month announced that the news outlet would be partnering with the The Coral Project at Mozilla to make their news comments system better via a myriad of changes to their commenting platform. The Coral Project interviewed some 300 individuals from 150 newsrooms in 30 countries as part of an effort to improve online discourse. Informed by this research, The Intercept's changes include the ability to mute annoying users, the ability to track comment edits, a new offensive comment reporting feature, the "featuring" of exceptional comments by website staff, and the expanded ability of staff to interact with users that pose particularly important questions. Again, none of this is particularly revolutionary. Most of it involves treating readers like human beings. But in this day and age -- doing so is apparently now a revolutionary act. As the Intercept's Glenn Greenwald and Rubina Madan Fillion note, lost in the vilification of comments sections as little more than troll gardens is the fact that on-site comments are a great way to hold journalists accountable: "Journalists often tout their responsibility to hold the powerful accountable. Comments are a way to hold journalists themselves accountable. Unlike posts on social media, comments occupy the same space as the stories and travel with them as they’re shared across platforms. Comments also make it possible for people to share their reactions without having to connect them to a social media account. That’s why we continue to be strong proponents of comments and encourage our colleagues at The Intercept to read (and respond to) them." Again, for better or worse news in the modern era is a conversation. Muting your on-site audience may feel good to editors on tight budgets, tired of trolls, and wistful for the bygone days of carefully-chosen letters to the editor, but it's doing your community (and the news industry at large) a disservice. As such, the Intercept's moves are a welcome change of pace for an industry that has spent the last few years insisting that muzzling your readership somehow represents a breathless dedication to quality online discourse. Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
The Ninth Circuit Court of Appeals has upheld a 2015 decision finding Idaho's "ag-gag" law unconstitutional. Despite the protestations of legislators and the state itself, the court finds the law prohibiting people from obtaining access to farms and other agricultural entities under false pretenses a violation of protected speech. As the lower court pointed out, the law would have made Upton Sinclair's expose of the meatpacking industry illegal. The upshot of Sinclair's book was significant changes to food and employee safety laws. Without the efforts of whistleblowers this law clearly targeted, the safety of the public -- both consumers and employees -- would be negatively impacted. The Appeals Court finds little to like about the state's arguments the law is meant to protect the privacy of agricultural entities. Instead, it points out statements made by legislators -- as well as the law's wording -- indicates the state intended to block speech critical of these entities. The decision [PDF] highlights comments made by legislators during the passage of the law which show the true impetus for the law's creation. Lawmakers also discussed damage caused by investigative reporting: “One of the things that bothers me a lot about the undercover investigation [at the dairy], and the fact that there’s videos, well, we’re being tried and persecuted and prosecuted in the press.” Other legislators used similar language demonstrating hostility toward the release of these videos, and one supporter of the legislation dubbed animal rights groups as “terrorists” who “use media and sensationalism to attempt to steal the integrity of the producer and their reputation.” One legislator stated that the dairy industry’s reason behind the legislation was “[t]hey could not allow fellow members of the industry to be persecuted in the court of public opinion.” Another described these videos as used to “publicly crucify a company” and “as a blackmail tool.” Finally, one legislator indicated that if the video had not been published, she did not “think this bill would ever have surfaced.” The video mentioned here was released in 2012 by a group called Mercy for Animals. An activist involved with the group obtained a job at a dairy farm and secretly filmed employees abusing livestock. As a result of the video's release, the dairy fired the abusive employees and instituted animal welfare protocols. Legislators -- pushed and prodded by dairy lobbyists -- went a completely different route, deciding the exposure of animal abuse should result in punishment of those documenting the abuse, rather than the abusers themselves. As the Appeals Court points out, the law was narrowly crafted to prevent whistleblowing and criticism of activities performed by employees of a certain industry. As such, there's no way the law can even be considered a close call in terms of the Constitution. Guided by Alvarez, we conclude that subsection (a)’s misrepresentation provision regulates speech protected by the First Amendment. The targeted speech—a false statement made in order to access an agricultural production facility—cannot on its face be characterized as “made to effect a fraud or secure moneys or other valuable considerations.” Alvarez, 567 U.S. at 723 (plurality opinion). Nor can the misrepresentation provision be characterized as simply proscribing conduct. Like the statute in Alvarez, subsection (a) “seeks to control and suppress all false statements [related to access] in almost limitless times and settings. And it does so entirely without regard to whether the lie was made for the purpose of material gain.” Id. at 722–23 (plurality opinion). Unlike lying to obtain records or gain employment—which are associated with a material benefit to the speaker—lying to gain entry merely allows the speaker to cross the threshold of another’s property, including property that is generally open to the public. The hazard of this subsection is that it criminalizes innocent behavior, that the overbreadth of this subsection’s coverage is staggering, and that the purpose of the statute was, in large part, targeted at speech and investigative journalists. Idaho’s argument that “the material gain to the person telling the lie is the entry to the property,” is not supported by any authority and does not establish how entry onto the property and material gain are coextensive. Under the statute, any misrepresentation to gain entry could net a criminal prosecution. Take, for example, a teenager who wants to impress his friends by obtaining a highly sought after reservation at an exclusive pop-up restaurant that is open to the public. If he were to call the restaurant and finagle a reservation in the name of his mother, a well-known journalist, that would be a misrepresentation. If the restaurant offers up a reservation on the basis of the mother’s notoriety, granting a “license” to enter the premises and sit at a table, the teenager would be subject to punishment of up to one year in prison, a fine not to exceed $5,000, or both. The court then goes on to point out the fallacy of the state's argumentative logic: if the state desired only to protect private business owners from unwanted intrusion, it already has a law on the books to handle this. Even assuming Idaho has a compelling interest in regulating property rights and protecting its farm industry, criminalizing access to property by misrepresentation is not “actually necessary” to protect those rights. If, as Idaho argues, its real concern is trespass, then Idaho already has a prohibition against trespass that does not implicate speech in any way. If instead, as a number of the legislators made clear and the dairy lobby underscored, the statute was intended to quash investigative reporting on agricultural production facilities, then the speech aspect of the statute prohibiting misrepresentations is even more problematic. The focus of the statute to avoid the “court of public opinion” and treatment of investigative videos as “blackmail” cannot be squared with a content-neutral trespass law. Allowing the law to stay on the books would encourage selective prosecution. Whistleblowers capturing evidence of abusive behavior by farm employees would be targeted for fines and jail time while the proverbial teenager described in the court's analogy would be left unperturbed. The state hardly even pretends the restriction is content-neutral -- an argument that might have been more successfully raised if legislators hadn't undercut it so severely while debating the bill. The court also notes the law is broadly-written, which could lead to even more criminalization of First Amendment-protected activity. We are also unsettled by the sheer breadth of this subsection given the definitions of “agricultural production facility” and “agricultural production.” Id. § 18-7042(2)(a), (b). Applying these definitions, the subsection reaches misrepresentations not only in the context of a large-scale dairy facility or cattle feedlot, but also grocery stores, garden nurseries, restaurants that have an herb garden or grow their own produce, llama farms that produce wool for weaving, beekeepers, a chicken coop in the backyard, a field producing crops for ethanol, and hardware stores, to name a few. [...] The reach of subsection (a) is so broad that it gives rise to suspicion that it may have been enacted with an impermissible purpose… Our suspicion is not eased after reading the legislative history. The record reflects that the statute was partly motivated to protect members of the agricultural industry from “persecut[ion] in the court of public opinion,” and journalists who use exposés to “publicly crucify a company.” Although, for Equal Protection Clause purposes, we need not decide whether animus motivated this subsection, we do not ignore that a vocal number of supporters were less concerned with the protection of property than they were about protecting a target group from critical speech, which adds to our skepticism that the provision survives the “exacting scrutiny” required under Alvarez. The court then dismantles the state's argument that creating recordings is not First Amendment-protected activity because it is (somehow) "not speech." We easily dispose of Idaho’s claim that the act of creating an audiovisual recording is not speech protected by the First Amendment. This argument is akin to saying that even though a book is protected by the First Amendment, the process of writing the book is not. Audiovisual recordings are protected by the First Amendment as recognized “organ[s] of public opinion” and as a “significant medium for the communication of ideas.” [...] As with the Misrepresentation Clauses, Idaho asserts that the Recordings Clause protects both property and privacy interests. Even assuming a compelling government interest, Idaho has not satisfied the narrow tailoring requirement because the statute is both under-inclusive and overinclusive. This is what happens when you craft a bill specifically designed to target one type of speech legislators (and their favored industries) don't like: you create a law soaked in cognitive dissonance. The court digs further into the law's inconsistencies: Prohibiting only “audio or video recordings,” but saying nothing about photographs, is suspiciously under-inclusive. City of Ladue v. Gilleo, 512 U.S. 43, 51 (“[T]hat a regulation of speech may be impermissibly underinclusive is firmly grounded in basic First Amendment principles.”). Why the making of audio and video recordings of operations would implicate property or privacy harms, but photographs of the same content would not, is a mystery. This distinction defies the old adage that “a picture is worth a thousand words.” Nor has Idaho explained how limiting the filming of operations, but nothing else, effectuates its interests better than eliminating all audio and video recordings at agricultural production facilities. Presumably, for example, an unauthorized recording of the agricultural production facility’s buildings would still implicate Idaho’s concerns about property, and the unauthorized filming of an employee birthday party would implicate concerns about privacy. Without some legitimate explanation, we are left to conclude that Idaho is singling out for suppression one mode of speech—audio and video recordings of agricultural operations—to keep controversy and suspect practices out of the public eye. Reed, 135 S. Ct. at 2229 (content-based laws lend themselves to use for “invidious, thought-control purposes”). The district court aptly noted that “[t]he recording prohibition gives agricultural facility owners veto power, allowing owners to decide what can and cannot be recorded, effectively turning them into state-backed censors able to silence unfavorable speech about their facilities.” The entire law isn't overturned, however. The Appeals Court finds two aspects of it are still acceptable. It is still illegal to gain access to company records under false pretenses as well as to gain employment through misrepresentation. The court doesn't find these to be violations of rights, but rather a sensible way to allow companies to protect proprietary information that might benefit competitors if released to the public. Whistleblowers already employed by agricultural companies are still protected under the Constitution. Investigative reporters who film agricultural operations while undercover are still protected as well, although they won't be able to seek employment under false pretenses to obtain recordings. This may make it more difficult to perform investigative journalism, but it won't make it impossible. The law as written did nothing more than give one industry an easy way to prevent criticism of its actions, policies, and employee behavior. Too bad the legislators it prodded into action undercut the state's arguments before it even had a chance to make them. Unfortunately, the only lesson the ag industry may have learned from this courtroom debacle is to buy a better brand of politician -- one that won't immediately out the law's intent during legislative discussions. Permalink | Comments | Email This Story

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Last summer, we wrote about an important Supreme Court case, Packingham v. North Carolinia, which made the fairly important ruling that the internet was so central to everyday life that courts could not ban people from the internet, even if they were convicted of a horrific crime. It was an important ruling -- but almost immediately, some people worried that some would interpret the ruling in a way to suggest that online service providers, themselves, could not kick people off of their service. That's not what the ruling actually says, but it's possible to quote it out of context to suggest as much. And, indeed, we've started to see such cases brought against internet companies. The case Dennis Prager brought against YouTube, for example, cites Packingham to argue that it's somehow unconstitutional to filter his videos with warning labels. And now we can add famed internet troll Chuck Johnson to the list, as he's filed a lawsuit against Twitter, long after the site permanently banned Johnson from using their platform. As we noted with the Prager/YouTube case, it's unlikely this case will go anywhere. Courts have held out, repeatedly, that platforms have the right to operate however they want regarding letting people use their services or not (the big distinction with Packingham was that was the government denying individuals access to the internet, not private operators). And there is extensive case law around Section 230 of the CDA as well, which states in fairly plain language that sites not only can filter and moderate however they want without liability, but actually encourages them to do so. There is, of course, at least some amount of irony that it was conservatives who were complaining about "bad stuff" (mainly porn) online who pushed for incentives in the CDA to get internet services to censor via filtering... and now it's "conservative" commentators like Prager and Johnson, who are suing because those sites are filtering, as is explicitly encouraged by the law. In short, I imagine that Johnson's lawsuit against Twitter will go about as well as his lawsuit against Gawker, which didn't go very well. The arguments in Johnson's case are the same ridiculous arguments in the Prager case. And I mean that... they're almost verbatim. Here's from the first cause of action in the Prager case: Article I, section 2 of the California Constitution protects the liberty of speech and association, especially in public, quasi-public, and limited public spaces. In YouTube, Defendants created and maintain a public forum or its functional equivalent for the public to express and exchange views and ideas, or in the alternative at least a quasi- or limited public forum. Defendants further act as state actors because Defendants and the YouTube site perform an exclusively and traditionally public function by regulating free speech within a public forum. And from the Johsnon case: Article I, section 2 of the California Constitution protects the liberty of speech and association, especially in public, quasi-public, and limited public spaces.... In Twitter, Defendant created and maintains a public forum or its functional equivalent for the public to express and exchange views and ideas, or in the alternative at least a quasi- or limited public forum. They're not identical, and each case fleshes out more specifics about the platform in question they're suing, but the arguments are remarkably similar (and, no, they're not using the same lawyers). Johnson's lawsuit gets particularly silly. You can read the whole thing yourself if you'd like, but it's based on the preposterous notion that Twitter has to allow everyone on their platform and can't kick people off. As with the Prager suit, this complaint makes strong reliance on the idea that Johnson was banned for his political views, rather than because he was a troll who regularly went on the attack, often accused of promoting false information or making trollishly outrageous claims. But, even if he was banned for his political views (and, again, he wasn't), Twitter actually has the legal right to put in place just such a ban. It would be stupid and counterproductive -- which is why Twitter does not actually ban people over such things -- but it would be legal. Johnson's lawsuit even points out that Twitter's current terms of service state: "We may suspend or terminate your accounts or cease providing you with all or part of the Services at any time for any or no reason." And then immediately whines that they had "no valid business reason" for banning him. First off, that's not true. There were lots of valid business reasons for banning him -- in the form of lots of users complaining about his behavior and tons of people threatening to quit Twitter if the site didn't get rid of certain trolls. Again, though, even that doesn't impact the legal analysis here. Twitter is within its clear legal rights to remove any user from its service. Like with the Prager case, we expect the courts not to allow this case to go very far at all. And, unlike in the Packingham case, this really is a situation where if one social media site doesn't want you, there are lots of other alternatives. Johnson told Buzzfeed (who broke the news of the lawsuit) that this was an important First Amendment case: “This is going to be a very serious case over the freedom of the internet,” Johnson told BuzzFeed News. “And whether people have the right to say what they mean and mean what they say.” Except... that's not what the case is actually about. Johnson is free to say whatever he wants. He is not free to force private companies to host that speech. If there is any First Amendment argument here at all, it is on Twitter's side, in that the First Amendment gives it the right to present its own site the way it wants to -- and that includes kicking off people it feels are behaving badly. Permalink | Comments | Email This Story

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For reasons only known to the plaintiff, an American psychiatrist offering unlicensed services in Japan is suing a whole bunch of Redditors for defamation. The underlying reason for this lawsuit is obvious: searches for Dr. Douglas Berger or psychiatrists in Japan tend to return lots of links presumably owned by Dr. Berger, but more prominently, a bunch of warnings from Redditors at Japan-focused subreddits to steer clear of his psychiatric services. So much is Dr. Berger hated by denizens of Japanese-oriented subreddits that one subreddit has even made an annual tradition of warning Americans in Japan (or looking to relocate there) away from Berger. This post also notes Berger himself has tried to make negative posts disappear from Reddit, sometimes with the assistance of reputation management firms. It appears none of this has worked. Dr. Berger -- living and working in Japan -- has filed a defamation suit in Florida. This doesn't make much sense, but I assume the court will sort out jurisdiction once the case gets underway. So far, there's nothing more on the docket than Berger's first and second complaint, the latter stripping out Microsoft and Google as defendants to focus solely on Reddit and Redditors. Berger at least focuses his lawsuit on the Doe Redditors, naming Reddit as a party solely for the purpose of obtaining identifying info. As his filing [PDF] states, he makes no assertions of liability as to Reddit. That being said, there's a lot not to like about this lawsuit. There seems to be plenty of critical opinions listed but very little actual defamation. Some statements could be construed to have crossed that line, but for the most part, we're dealing with statements of opinion which cannot be treated as defamatory, no matter how negative they are. Here are some of the many, many statements Dr. Berger would like to see sued into nonexistence [with my commentary in brackets]: [t]he false and defamatory statements about Plaintiff Berger include but are not limited to the following: that he is a 'fucking maniac' [opinion] he is a 'piece of shit' [opinion] 'gives patients the creeps' [opinion] that 'he is not a medical professional' [Depends on the definition. He is not licensed in Japan but is licensed in the States.] 'he was disinterested in patients' [opinion] 'incompetent in actually giving therapy' [opinion -- and a layman's opinion at that] that he overprescribes drugs [questionable, but still looks like an uninformed opinion, not an assertion of fact] that he 'was always distracted on the computer while with a patient' [even if an assertion of fact, still not defamatory] that he said sexist comments to a patient' that he told a female patient she will 'be basically worthless after [she] lost her looks' [this is borderline, but truth is an absolute defense, so if it can be shown that it happened…] he misdiagnoses patients [borderline] harasses patients online [this can be likely be proven one way or another if true] takes advantage of patients [opinion] scams patients [borderline] that he is a 'scam artist with a doctorate' [borderline, but closer to opinion than the previous one] that he is 'incompetent or negligent in both' (referring to [Dr. Douglas Berger's] mental health services) [possibly defamatory] that he is unstable [opinion] he bilks clients out of their money for services that do not meet even the most basic professional standards [borderline] he uses Paypal to avoid paying taxes [leans towards defamatory] he is 'deeply unprofessional, insulting and derogatory' [opinion] he is a 'cast-iron racist' [borderline, likely can't be proven or disproven] that he is a charlatan [opinion] that another mental health service provider gets a lot of his angry ex-clients [possibly defamatory if false, but would possibly have to prove person knew this wasn't true when it was posted] that he is pushy [opinion] that he is manipulative [opinion] and that he disrespects clients and makes them feel like it is their fault they are depressed or stressed [opinion]. For the most part, we're dealing with opinion. The borderline cases might make the lawsuit a worthwhile pursuit for Berger, but a large number of these statements are going to be tossed as they don't clear the bar for defamation. And some of this will hinge on whether or not the court decides Berger is a limited-purpose public figure for the purposes of this suit. If so, the bar goes even higher and is likely to give Berger very little return on investment. Berger's contributions to several major publications on the subject of providing psychiatric services in Japan are likely to make him a public figure of sorts, even if only in the small arena of ex-pats providing unlicensed services in a foreign country. Another problematic aspect of this lawsuit is the amount of information Berger wants Reddit to hand over so he can proceed with his suit. Join Date Last login First Name Last Name Email Address Phone Number Email notification address for follow up comments Zip Code Date of Birth Gender Location Originating IP address for each and every connection by each user to your service, including the initial account establishment Remote port number for each user connection The date & time for each session The time zone used by your log file system User agent detail of the user's computing devices for each session Any other such information available that includes basic subscriber information and non-content records about the user. Hopefully Reddit will fight this demand for info, pushing back on the request until the judge narrows the list down to those who have made arguably defamatory statements (and limits the scope of what can be compelled from Reddit). The court should also be hesitant to grant unmasking requests like these prior to weighing the suit's validity. Online anonymity -- especially that related to public commentary on issues of public interest -- should be given as much protection as possible, no matter how badly a plaintiff might want to clean up his search results. Then there's the question of jurisdiction. The only connection to Florida is the existence of property owned by Dr. Berger. He has no residence there, nor does he provide services in Florida. Reddit -- a non-party for all intents and purposes -- is headquartered in San Francisco. It's not like Berger is dodging an anti-SLAPP law by filing in Florida as opposed to California -- something his legal representation should be aware of. It may be Berger simply had no idea where to file it and picked a place nominally linked to him, rather than for some legal advantage not present in California. While there may be some actionable statements in the Reddit-Berger dogpile, a majority of the comments are critical opinions. The problem is the suit targets everything Berger doesn't like, rather than just the edge cases where defamation may have occurred. Given his past attempts to silence critical Redditors, this looks like an escalation meant to deter future negative comments, rather than seek retribution for the few times he may have been legally wronged. The problem with this tactic is it so very rarely works. If Berger doesn't like the current state of Reddit, he's going to find it much more unbearable once the backlash begins. Reputation management begins at home -- or rather, at the office. Unless all of these Redditors are lying, Berger's psychiatric offerings seem to have been consistently subpar. Seems like the smarter move would have been providing better service rather than seeking to silence unhappy patients after the fact. Permalink | Comments | Email This Story

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You have probably noticed by now that the biggest problem in the U.S. broadband market is a lack of vibrant competition in many areas. This lack of competition over the "last mile" is the core reason for the majority of the problems in the sector, from privacy violations to net neutrality infractions. And while lawmakers from both parties adore paying empty lip service to making broadband faster, cheaper, and more available, very few have the courage to stand up to AT&T, Verizon, and Comcast and actually implement policies that improve our competitive options. More often than not, government's "solution" for the broadband market involves first ignoring that there's any real competition problem whatsoever, then hyping "broadband expansion" efforts that fail to truly address the underlying problems. That's usually accomplished via programs with "goals" that would have been accomplished anyway. Like when Obama promised in 2011 to ensure wireless broadband reached 98% of the public (ignoring the problem of high prices and usage caps, or the fact this coverage was going to occur anyway), or when Obama's former FCC boss Julius Genachowski promised a gigabit ISP in each one of the fifty states (also something that would have happened without government involvement). Such efforts usually comically ignore how limited competition and high prices are the biggest problem. Keeping this proud tradition alive, President Trump this week held a rally to hype his purported dedication to the nation's forgotten rural areas. This dedication, according to a breakdown by Reuters, will involve "making it easier for the private sector to locate broadband infrastructure on federal land and buildings": "U.S. President Donald Trump was expected on Monday to sign an executive order to make it easier for the private sector to locate broadband infrastructure on federal land and buildings, part of a push to expand high-speed internet in rural America. Faster internet speeds in rural areas have long been seen as key to addressing the economic divide between rural and urban America, but the costs have so far been prohibitive." But if you bother to read the actual order, the "new efforts" cited within are nothing new. They're simply part of a concerted effort to speed up construction and placement of cellular towers and other essential gear on government property at the behest of AT&T and Verizon, a priority at the FCC for several years now. In Trump fashion however, the President took ample time to insist this looming surge in "great, great broadband" was exclusively thanks to his leadership and the creation of this new executive order: "Those towers are going to go up and you’re going to have great, great broadband,” Trump told the annual convention of the American Farm Bureau Federation. "Farm country is God’s country,” he declared..."Oh, are you happy you voted for me,” he added. “You are so lucky that I gave you that privilege." While faster cellular tower placement is great and all, it doesn't solve the real problem in the sector: a lack of competition. FCC data indicates that two-thirds of American homes lack access to modern broadband (25 Mbps) from more than one ISP. Instead of addressing that problem, the Trump FCC has been actively working to undermine how broadband is measured in a blatant attempt to hide coverage and competition gaps. Trump's FCC has also started taking a hatchet to programs that help bring broadband to the poor, an increasing problem given that incumbent providers refuse to upgrade countless poor or rural markets. Reuters' and other mainstream coverage of Trump's EO also ignores the countless problems that will be caused by the Trump administration's attack on net neutrality, elimination of consumer broadband privacy protections, or industry-backed efforts to gut nearly all meaningful oversight of entrenched telecom duopolies, something that history repeatedly tells us only makes service worse and more expensive. Unsurprisingly, reports fail to note the fact that the Trump FCC has taken steps to protect the entrenched monopoly at the heart of the cellular backhaul and business data services (BDS) markets, ensuring competition there remains tepid and cellular connectivity remains expensive. Here's a tip: you'll know a politician's "broadband plan" is worth anything if it makes Comcast, AT&T and Verizon lawyers, lobbyists and lackeys angry. Any plan worth its salt would drive competition to the sector, eroding revenues for duopolies all-too-comfortable nursing the status quo. If they approve of it, it likely doesn't actually tackle the heart of the dysfunction that is the American broadband market. Permalink | Comments | Email This Story

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The DHS made two significant announcements late last week, both dealing with the CBP's warrantless searches of electronic devices at the border. The first was a bit of info, showing the exponential increase in device searches in 2016 (jumping from 5,000 in 2015 to 20,000 in 2016) is part of a trend, rather than an anomaly. Searches increased another 59% in 2017, rising to 30,200 total. The DHS and CBP also released statements justifying the ongoing increase in warrantless searches. "In this digital age, border searches of electronic devices are essential to enforcing the law at the US border and to protecting the American people," John Wagner, a deputy executive assistant commissioner at Customs and Border Patrol, said in a statement. [...] CBP's authority for the border search of electronic devices is and will continue to be exercised judiciously, responsibly, and consistent with the public trust," he added. These statements are empty and useless. We had just as much of a "digital age" in 2015 and yet searches occurred far less frequently. There seemed to be no less law enforcement happening and no less "secure" as a nation than we are now. In fact, we may have been more secure with fewer searches as we hadn't yet shifted towards a more antagonistic relationship with the rest of the world, starting with our southern bordering neighbor. It's also difficult to square claims of "judicious, responsible" use of device search authority with the exponential leap in number of devices searched and the DHS's open admission it lacks legal authority for some of the searches its agencies perform. Accompanying the release of 2017's search numbers, the DHS released updated guidelines on border device searches. The guidelines roughly align with answers delivered by the DHS to Sen. Ron Wyden in response to questions about its warrantless device searches. The CBP still has carte blanche access to devices of foreigners entering or leaving the country. Its ability to access devices carried by Americans is only slightly more limited. Anything residing on a device can be accessed by CBP officials without a warrant or even reasonable suspicion. From the CBP's search guidelines [PDF]: Border searches of electronic devices may include searches of the information stored on the device when it is presented for inspection or during its detention by CBP for an inbound or outbound border inspection. The border search will include an examination of only the information that is resident upon the device and accessible through the device's operating system or through other software, tools, or applications. Officers may not intentionally use the device to access information that is solely stored remotely. To avoid retrieving or accessing information stored remotely and not otherwise present on the device, Officers will either request that the traveler disable connectivity to any network by placing the device in airplane mode), or, where warranted by national security, law enforcement, officer safety, or other operational considerations, Officers will themselves disable network connectivity. Officers should also take care to ensure, throughout the course of a border search, that they do not take actions that would make any changes to the contents of the device. CBP officers can also perform "advanced searches." These involve imaging device contents and possible access of remote storage. Again, the CBP claims it needs no warrant to perform these searches, only reasonable suspicion. The guidance makes no mention of the Supreme Court's Riley decision, likely interpreting the decision to apply only to searches incident to arrest, rather than border inspections of "containers" and their "contents" under multiple court-granted warrant exceptions. Yes, the CBP still equates phones and laptops to suitcases and personal effects. One of the statutes listed in its defense of warrantless access to electronic device contents refers to the CBP's right to search "persons, baggage, and merchandise" entering or leaving the country. On top of that, the CBP continues to insist all travelers must unlock or decrypt devices/accounts so contents can be inspected. The CBP says it can use external hardware to crack devices and/or detain locked devices indefinitely if travelers aren't compliant. None of this requires a warrant. Nor does it even require reasonable suspicion. All the CBP needs to justify these seizures and searches is a traveler's refusal to hand over passwords or PINs. Unbelievably, this new guidance is an improvement. Prior to this, the DHS and CBP weren't even limiting their searches to the low bar of reasonable suspicion. So, while the new guidance is earning limited praise from privacy and rights activists, it's also gathering plenty of criticism. Ron Wyden, who was instrumental in getting the DHS to concede its social media account searches had no legal basis, offered up a golf clap for the DHS's new guidance, along with a warning he would continue seeking a legislative end to the "Constitution-free" zone in which the CBP does all of its intrusive work. “I’ve said it before and I’ll say it again: Americans’ Constitutional rights shouldn’t disappear at the border. By requiring ‘reasonable suspicion’ before conducting forensic searches of Americans’ devices at the border, Customs and Border Protection is beginning to recognize what the Supreme Court has already clearly stated that ‘digital is different.’ It is my view that Americans will be safer when time and resources are spent on searching people with an actual cause...” “However, there’s more work to do here. Manually examining an individual’s private photos, messages and browsing history is still extremely invasive, and should require a warrant. I continue to believe Americans are entitled to their full Constitutional rights, no matter where they are in the United States. That’s why Senator Paul and I last year introduced the Protecting Data at the Border Act, which would end the legal Bermuda Triangle at the border and require warrants for law enforcement officials to search Americans’ phones and laptops at the border.” Permalink | Comments | Email This Story

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If you remember a few years ago, there was ample hysteria and hand-wringing in Congress regarding Huawei's plan to compete in the American cell phone and network hardware business. But despite near-constant claims by certain lawmakers that Huawei was an intelligence proxy for the Chinese government, numerous, multi-year investigations found absolutely no evidence to support this conclusion. That of course didn't stop certain parties from repeatedly insisting that Huawei was a Chinese government spy, since we all know that in the post-truth era, what your gut tells you is more important than empirical evidence. Never mind that almost all U.S. network gear is made in (or comprised of parts made in) China. Never mind that obviously NSA allegations show the United States spies on almost everyone, constantly. Never mind that reports have emerged that a lot of the spy allegations originate with Huawei competitor Cisco, which was simply concerned with the added competition. Huawei is a spy. We're sure of it. And covert network snooping is bad. When China does it. Fast forward to this week. A new report in the Wall Street Journal indicates that AT&T and Huawei were about to announce a new cellphone sales partnership at CES. While Huawei phones are available unlocked in the States (and Huawei has helped Google build its own smartphones already), the deal would have marked the first major partnership between the company and a major cellular provider. But the deal was scrapped at the last second for reasons neither company wanted to disclose to the Journal: "It was unclear why AT&T, the country’s No. 2 carrier by subscribers, changed its mind. An AT&T spokesman declined to comment. A Huawei spokesman declined to comment on conversations with AT&T, saying only that “Huawei has proven itself by delivering premium devices with integrity globally and in the U.S. market." A paywalled report over at the Information appears to offer the real reason for the last-minute scuttling of the partnership: namely a letter sent to the Trump FCC by members of the Senate and House Intelligence Committees again claiming that Huawei is a spy for the Chinese government: Huawei's U.S. smartphone deal with AT&T was killed just days ago due to political pressure, according to a person close to the deal. pic.twitter.com/elQennsmWW — Juro Osawa (@JuroOsawa) January 9, 2018 While it's certainly not impossible that Huawei is aiding Chinese government surveillance, the fact remains that there have been numerous, lengthy investigations into this claim (one of which was eighteen months long), none of which have actually resulted in the slightest bit of evidence proving the allegations. And again, what has been proven so far is that lobbyists for companies like Cisco have spent ample time pouring fire on these concerns in the minds of cash-compromised lawmakers, simply because they don't want to have to face another deep-pocketed competitor in the US hardware market. That is, as some guy named Mike Masnick noted on Twitter, something we've long enjoyed criticizing China for: And then American companies complain when China blocks competition from American firms... And just watch as China points to this case as evidence for why America does the same thing. https://t.co/e7pRlacZf7 — Mike Masnick (@mmasnick) January 9, 2018 AT&T, no stranger to domestic spying (bone grafted as it is to the United States own intelligence-gathering aparatus) may have been willing to kill the deal out of blind "patriotism" or the belief it could help gain regulatory approval for the company's $86 billion acquisition of Time Warner (currently being challenged by the DOJ in court). Nobody in this chain has much in the way of integrity or a history of truth-telling, and until evidence emerges that Huawei is the nefarious spymaster allegations have long alleged, a dash of skepticism seems warranted. Permalink | Comments | Email This Story

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A jury has shrugged its shoulders in response to a farcical effort by local publicity hounds/drug warriors to score a 4/20 marijuana bust, only to end up with a handful of garden supplies and violated rights. The lead-up to the bungled raid of Robert and Addie Harte's house included a law enforcement agency hoping to bury the previous year's 4/20 raid failure (in which tomatoes were seized), a state trooper compiling a freelance database of garden store visitors, two field drug tests that identified tea leaves as marijuana, and a whole lot of might-makes-right drug warrioring. By the time it was over, the Hartes had been held at gunpoint for two hours while the sheriff's department desperately tried to find something illegal in their home. Nothing was found and the Hartes sued the law enforcement agency. The district court said this was fine: officers should be able to rely on the results of field drug tests, even when said field drug tests are notoriously fallible. The Appeals Court, however, disagreed entirely with the lower court's "ignorance = immunity" theory. The defendants in this case caused an unjustified governmental intrusion into the Harte's’ home based on nothing more than junk science, an incompetent investigation, and a publicity stunt. The Fourth Amendment does not condone this conduct, and neither can I. It's of little comfort to the Hartes, however. While the Appeals Court may have stripped the immunity, it was still up to a jury to decide how much this debacle was going to cost taxpayers footing the bill for law enforcement malfeasance. I guess taxpayers can breathe a little easier, even if it means the sheriff's office no longer faces much of a deterrent effect. Jacob Sullum at Reason has the disappointing details. This week a federal jury declined to award any damages to Adlynn and Robert Harte, the Leawood, Kansas, couple whose home was raided in 2012 based on a field tests that supposedly identified wet tea leaves in their trash as marijuana. The verdict is not very surprising, since the only claim the Hartes were allowed to pursue required them to show that Johnson County sheriff's deputies lied about the results of the tests. Limited to that one claim, it's unlikely the Hartes will ever see monetary damages awarded, even on appeal. As for the sheriff's office, its claims of infallible field drug tests will continue to be held up as another example of just how ignorant courts allow law enforcement officers to be. [D]eputy Mark Burns confessed that he had never seen loose tea before but thought, based on his training and experience, that it looked like marijuana leaves. A lab technician consulted after the raid disagreed, saying the leaves didn't "appear to be marijuana" to the unaided eye and didn't "look anything like marijuana leaves or stems" under a microscope. Burns himself did not deem the leaves suspicious the first time he pulled them out of the Hartes' garbage. But he thought they were worth testing when he returned a week later, 10 days before the raids demanded by Operation Constant Gardener. Sheriff Frank Denning, who authorized the search of the Hartes' home without laboratory confirmation of the field test results, claimed he had never heard such tests could generate false positives, despite four decades in law enforcement and despite the warning on the label. Maybe Burns and Denning were both lying, but it is at least as easy to believe they were simply uninformed, incompetent, and careless. The Appeals Court tore this useful ignorance apart, allowing the Hartes' case to proceed. The lack of awarded damages -- and the reduction of the case to a single assertion almost impossible to prove -- reinstates the shield of willful ignorance. The less cops know about the tools they use, the better. You can't perjure yourself if you don't read the warning label or educate yourself about field test failure rates. Not knowing stuff makes the job so much easier. In law enforcement, ignorance is better than bliss. It's a Get Out Of Litigation Free card. Permalink | Comments | Email This Story

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We had just been talking about the brewing trademark civil war set to break out across the country in the comics conventions space, with Yakima Central City Comic Con choosing not to react to the fiasco of a court case that saw San Diego Comic-Con enforce its trademark against a convention in Salt Lake City. Their decision, publicly revealed relatively soon after the court case outcome, indicated that some comic conventions take the view that SDCC's trademark is invalid for any number of reasons and that they can simply wait for the Salt Lake Comic Con's attempt to invalidate SDCC's trademark to shake out. These would be conventions deciding not to freak out just because one bully got one win. But of course that stance could never be universal among all comic conventions in America and now we have our first convention deciding to show everyone what a chilling effect trademark bullying can have. The previously-named Phoenix Comicon has announced it will be rebranding as the Phoenix Comic Fest, with the company behind the convention, Square Egg Entertainment, providing only the thinnest of veils over its reasoning for the change. “In recent months, the use of the word Comic-Con, and its many forms, has become litigious. We would prefer to focus on creating the best events and experiences for our attendees. Therefore, effective immediately, our event held annually in Phoenix in the spring will be rebranded as Phoenix Comic Fest.” Square Egg also said that they will change the event’s website and other assets over the next week to reflect the new name. As of this writing, they’ve already updated the event's Facebookand Twitter accounts and have posted an updated logo for the event. This, necessarily, must be considered a win for the San Diego Comic-Con folks. The whole point of the lawsuit that kicked all of this off was that they didn't want anyone else using their plainly generic and descriptive, yet now enforced, trademark. Still, the obvious question is exactly what sort of win is this? If anything, this move by the now-named Phoenix Comic Fest seems to indicate that even the fearful out there will simply rebrand. With no actual customer or public confusion to seriously be worried about, it seems to me that the only real incentive in all of this for SDCC is licensing and partnership agreements. A simple name change does away with those potential rewards. Still, it's worth keeping in mind that there are over 100 conventions in America alone using some flavor of the "comic con" mark. What percentage will undertake the very real costs in rebranding and what percentage will stand their ground carries some importance, but so long as the latter number is sizable SDCC will have quite a bit in the way of court costs and lawyers' fees to pay for the pleasure of eking out five-figure jury awards. Permalink | Comments | Email This Story

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Last week, in writing about how this should be the last year (for forty straight years) that no old works have moved into the public domain in the US due to repeated copyright term extensions, I noted that there did not appear to be much appetite among the usual folks to push for term extension. Part of this is because the RIAAs and MPAAs of the world know that the fight they'd face this time would be significantly more difficult then when they pushed through the Sonny Bono Copyright Term Extension Act 20 plus years ago. Not only do they know it would be more difficult, they know that they'd lose. Unlike last time, this time the public is paying attention and can mobilize on the internet. Indeed, we were surprised a few years back when then Copyright Office boss, Maria Pallante -- who has long pushed for copyright maximalism in many different areas -- suggested one tiny aspect of potential copyright reform could be to make the last twenty years (the life plus 50 to life plus 70 years) sort of optional. Even this very, very minor step back from the idea of automatic life plus 70 years (or more!) was fairly astounding for what it represented. Copyright interests have never been willing to budge -- even an inch, and here was a tiny inch that they indicated they were willing to give up. Tim Lee, over at Ars Technica, has now (incredibly) got three of the biggest copyright maximalist organizations on the record to say that they will not lobby for copyright term extension, and (even more incredibly) got the Authors Guild (the perpetually pushing for crazy new expansions of copyright law freaking Authors Guild!) to even say that they think maybe we should scale back to life plus 50 again: The Author's Guild, for example, "does not support extending the copyright term, especially since many of our members benefit from having access to a thriving and substantial public domain of older works," a Guild spokeswoman told Ars in an email. "If anything, we would likely support a rollback to a term of life-plus-50 if it were politically feasible." The RIAA and MPAA were slightly more muted, basically saying they "are not aware" of any efforts or proposals and it's not something they're pushing: "We are not aware of any such efforts, and it's not something we are pursuing," an RIAA spokesman told us when we asked about legislation to retroactively extend copyright terms. "While copyright term has been a longstanding topic of conversation in policy circles, we are not aware of any legislative proposals to address the issue," the MPAA told us. Of course, those statements are kind of funny, because they both know damn well that the only way such proposals would even be a topic for discussion is if they were pushing for them. That won't mean some nutty copyright holder won't push for an extension, but the RIAA and MPAA's recognition that they would lose (and lose spectacularly and embarrassingly) means that no such proposal is going to go anywhere. Now, let's see what it will take to get them on board with the Authors Guild plan to start to move copyright terms in the other direction. Permalink | Comments | Email This Story

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If you've been reading Techdirt for more than five years, you probably remember the conclusion of Mattel v. MGA — and if you've been reading for more than thirteen years, you might even remember when it started. This epic legal battle over intellectual property went through nearly a decade of rulings and reversals, and the resulting story is a fascinating one that ties in a lot of the topics we discuss here at Techdirt. It's also the subject of the new book You Don't Own Me by law professor Orly Lobel, who joins us on this week's episode to revisit this particular law opera and what it says about the wider world of IP. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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Not sure how leaky our nation is, but it would appear those guarding it from outside attacks seldom gaze inward to see how their internal security is holding up. Harold Martin III, a government contractor, spent 20 years exfiltrating top secret documents before the NSA caught on. Given that some of this happened after the NSA's "oh shit" moment -- Snowden walking away from the NSA and towards journalists with an untold number of documents -- one has to wonder how seriously the NSA takes its own security. Martin has now pled guilty to one charge of "willful retention of national defense documents." He's still facing twenty charges in total, including the belated addition of an espionage count. Fifty terabytes of documents were lifted by Martin -- not just from the NSA, but from the CIA, US Cyber Command, National Reconnaissance Office, and the Defense Department. That one count could net Martin 10 years in prison. But he could be facing more time than that, thanks to this being only a plea, rather than a plea deal. Martin pleaded guilty to one count of willful retention of national defense information, which carries a maximum of 10 years in prison, followed by three years of supervised release and fines up to $250,000. However, since the guilty plea did not include a deal of any kind and there are other extenuating circumstances—such as the abuse of a position of public trust and another 19 counts charged in the original indictment—the judge will have additional leeway during sentencing. The other 19 charges are still in play, Martin's plea notwithstanding. The DOJ may try to make an example of Martin as a deterrent for future contractors who can't seem to stop taking their work home with them. Unfortunately, the internal controls on contractor access don't appear to be receiving the same amount of attention. As the White House continues to loosen restrictions on federal agency access to NSA collections and tools, the likelihood of sensitive information that can be accessed or taken by contractors increases. The expanded surveillance apparatus is too big to be handled in-house and will likely never be scaled back to the point where controlled access is anything more than a theory. This is the end of one contractor's twenty-year run on supposedly ultra-secure systems. Martin cannot possibly be the only contractor whose work has made its way out of the office. The Intelligence Community's oversight has pointed out the half-assed job being done to secure things post-Snowden. Martin is just an embodiment of the IC's ideals: more focused on collecting data than making sure the collected info remains secure. Permalink | Comments | Email This Story

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From January 9-12, thousands of tech experts, innovators, media professionals, politicians and business leaders from around the world pour into Las Vegas for CES 2018. It’s an incredibly exciting time: Attendees get to see the most innovative technologies and trends that will change the face of industries across the globe, from health care and entertainment to automobiles and home appliances. I’m always proud of CES – proud of the innovators who have traveled a long road to get to the floor; proud of all my behind-the-scenes colleagues who dedicate months to putting the show together; and proud the show inspires thoughtful conversations and partnerships that lead to life changing products, new businesses and jobs. But CES also makes me proud to be an American. Our nation’s tech industry is the envy of the world. When you combine induced, indirect and direct impact, the U.S. tech sector accounts for over ten percent of our GDP and 15.3 million jobs. It has produced brands and companies that are known and needed all over the world. And nowhere is that more obvious than at CES. The reason our country can host a show like CES is because we have a legal and policy framework designed to allow our tech industry to flourish. From our education system that encourages originality and ingenuity, to our openness to immigrants and their innovative ideas, to a pro-business regulatory framework that lowers barriers to entry for entrepreneurs, to the First Amendment and its protection of ideas, no matter how controversial, our system rewards those who have the creativity to solve a problem and the courage to make their idea a reality. If policymakers want to preserve our global leadership and support this vital industry, they must act at this crucial moment. With the start of the new year comes the start of a new legislative session, and the opportunity to prioritize policies that can strengthen the framework that has allowed the tech industry to flourish. As Washington gets down to business in 2018, here are some ways they can do this: Promote fair and free trade. We can’t mistake American ingenuity for isolationism. For instance, threats to impose tariffs on Chinese goods or hinder trade with China – a crucial trade partner of the U.S. tech industry – would harm, not help, tech innovation. Our supply chain is global and must be kept open. Protect innovative tech companies from crushing liability costs. One of the cornerstones of internet freedom are the “safe harbor” and “fair use” principles in domestic law. These laws allow users and entrepreneurs to innovate, free from ruinous nuisance lawsuits and should be added to the North American Free Trade Agreement (NAFTA). But Congress is questioning these principles and considering changes that would seriously compromise the free, open flow of information these companies now help to sustain. This in turn would hurt small businesses across the country, many of whom rely on the internet to market their products internationally. By upholding these safe harbor laws and other copyright protections, federal leaders can maintain a strong economy and secure a stable internet for future innovators. Not only should these principles be enshrined and protected in domestic law, they should become a template for our trade agreements. We have a chance to do so now with a digital chapter in NAFTA that embodies these principles. Pursue immigration reform that opens our borders to the world’s best and brightest. Right now the future of immigration policy is unclear, but it is obvious that we need to attract the best and brightest if we want to maintain our global lead in innovation. More than 50 percent of our country’s billion-dollar startups were created by immigrants according to the National Foundation for American Policy. While we are closing our borders, other countries are copying our strategy of attracting the best and brightest. Invest in infrastructure. The rise of the Internet of Things, smart cities and self-driving vehicles means that the world as we know it will change significantly over the course of the next several decades. By getting a head start on infrastructure investments, including 5G broadband and highway construction, federal leaders can help smooth this transition and pave the way for new levels of connectivity. Simply allowing utility companies to lay broadband in every federally funded roads project is an easy bipartisan start. Focus in on patent reform. Many of the startups at CES have horror stories about patent trolls – companies that threaten patent lawsuits in hopes of collecting money out of court. Patent trolls are undermining the strength of our patent system and bleeding $80 billion annually from our economy. Too many businesses are dragged down by their lawsuits and threats. Congress must act to protect innovators and ensure we maintain the best intellectual property protection system in the world. Pursue a business-friendly regulatory framework. President Trump has taken the lead on this, spearheading major reform soon after his inauguration. Congress must continue his efforts, creating policies that encourage innovation and lower barriers to entrepreneurship. Protecting freedom of speech across the board. We’ve seen many attacks on freedom of speech this year from all across the political spectrum. Financial freedom is important for innovators, but low taxes and limited regulatory interference mean nothing if innovators don’t have the intellectual freedom to try out new ideas without fear of legal repercussions. It’s high time we act to protect this first and most vital of our freedoms. There’s no denying it’s been a challenging year politically, no matter your perspective. But with the new year comes a renewal of opportunity. Washington must put aside petty partisan arguments and work together to protect the framework that has led to our flourishing. And by doing this, we can protect the creativity and ingenuity of American innovation for generations to come. Gary Shapiro is president and CEO of the Consumer Technology Association (CTA), the U.S. trade association representing more than 2,200 consumer technology companies, and author of the New York Times best-selling books, Ninja Innovation: The Ten Killer Strategies of the World's Most Successful Businesses and The Comeback: How Innovation Will Restore the American Dream. His views are his own. Connect with him on Twitter:

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Last week we wrote about Donald Trump having a lawyer send out threatening letters to former top advisor Steve Bannon, author Michael Wolff and publisher Henry Holt & Co. over the publication of Wolff's new book, Fire and Fury about the Trump administration. The letter to Wolff and the publisher were notable for lacking a single statement that was actually claimed to be defamatory. As we've noted, that's often the hallmark of a completely bullshit defamation threat letter. Late yesterday, the publisher responded. John Sargent, the CEO of Macmillan -- the publishing giant that owns Henry Holt & Co. -- first sent a strong letter to employees noting that the company would not back down, and then lawyer Elizabeth McNamara, representing Macmillan, from legal powerhouse Davis Wright Tremaine sent quite the impressive letter responding to Trump's demand. It's worth reading in full. The summary: My clients do not intend to cease publication, no such retraction will occur, and no apology is warranted. There's so much more worth quoting in the letter. It points out that Trump has the largest platform in the world to respond to anything he actually believes is false in the book. While the letter does not directly state this, the point is pretty clear. The point of defamation law is to be able to protect the powerless from having no recourse should they be defamed -- yet the President has plenty of power and can respond to anything that's actually wrong. But, tellingly, he has not done so. As President Trump knows, Mr. Wolff was permitted extraordinary access to the Trump administration and campaign from May 2016 to this past October, and he conducted more than 200 interviews with President Trump, most members of his senior staff, and with many people they in turn talked to. These interviews served as the basis for the reporting in Mr. Wolff's book. We have no reason to doubt -- and your letter provides no reason to change this conclusion -- that Mr. Wolff's book is an accurate report on events of vital public importance. Mr. Trump is the President of the United States, with the "bully pulpit" at his disposal. To the extent he disputes any statement in the book, he has the largest platform in the world to challenge it. Generalized and abstract threats of libel do not provide any basis for President Trump's demand that Henry Holt and Mr. Wolff withdraw the book from public discourse. Though your letter provides a basic summary of New York libel law, tellingly, it stops short of identifying a single statement in the book that is factually false or defamatory. Instead, the letter appears to be designed to silence legitimate criticism. This is the antithesis of an actionable libel claim. The response also points out that the letter misrepresents what Wolff claimed in order to suggest actual malice (kind of funny to see a misrepresentation being used to argue a defamatory misrepresentation...). Oh and also this: To briefly address a few of the additional substantive claims identified in your letter, we note that you understandably cite to New York as the governing law, yet we were surprised to see that President Trump plans on asserting a claim for "false light invasion of privacy." As you are no doubt aware, New York does not recognize such a cause of action. Messenger ex rel. Messenger v. Gruner Jahr Printing and Pub., 94 436, 448 (2000); Hurwitz v. US, 884 F.2d 684, 685 (2d Cir. 1989). Not only is this claim meritless; it is non-existent. In any event, it is patently ridiculous to claim that the privacy of the President of the United States has been violated by a book reporting on his campaign and his actions in office. As for the claims that Wolff was "inducing" Steve Bannon and others to breach their contract: Next, your letter focuses on alleged claims for tortious interference with contractual relations and inducement of breach of contract. Yet, as your client will no doubt appreciate, timing is everything when it comes to these claims. And there is no dispute that Mr. Bannon had already communicated with Mr. Wolff freely and voluntarily well before the "notice" you have provided. Mr. Bannon plainly needed no cajoling or inducement to speak candidly with Mr. Wolff. And an after-the-fact lawyer's letter putting my clients "on notice" does not put the genie back in the bottle, much less subject Henry Holt or Mr. Wolff to liability. The law treats sources like Mr. Bannon as adults, and it is Mr. Bannon's responsibility -- not Henry Holt's or Mr. Wolff's -- to honor any contractual obligations. Indeed, your attempt to use private contracts to act as a blanket restriction on members of the government speaking to the press is a perversion of contract law and a gross violation of the First Amendment. No court would support such an attempt to silence public servants and the press. The letter to employees is also worth reading as it talks up the importance of the First Amendment -- with citations and quotes from key important cases having to do with free speech and the First Amendment. As the letter concludes: There is no ambiguity here. This is an underlying principle of our democracy. We cannot stand silent. We will not allow any president to achieve by intimidation what our Constitution precludes him or her from achieving in court. We need to respond strongly for Michael Wolff and his book, but also for all authors and all their books, now and in the future. And as citizens we must demand that President Trump understand and abide by the First Amendment of our Constitution. Your move, Trump. Permalink | Comments | Email This Story

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