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A couple of weeks ago, we wrote about a victory in the courts for Creative Commons licenses, noting that such judgments were still rather few and far between. That's unfortunate, in the sense that some people still think CC licensing is weird, rarely-used or even invalid. The situation regarding Wikipedia is similar. Even though it has been around for 15 years -- just like Creative Commons -- it too suffers from continuing doubts about its aims and methods, and a relative dearth of legal cases helping to clarify the status of both. Here's one from Brazil, which has recently been settled in favour of Wikipedia's parent organization, the Wikimedia Foundation. It concerns the Brazilian musician Rosanah Fienngo, who had brought a lawsuit objecting to information about her personal life being included on her Portuguese Wikipedia page. Wikimedia pointed out: The Portuguese Wikipedia article about Ms. Fienngo contained information about her as a notable public figure in Brazil. This information included some details of her personal life, but this information was derived from public sources, most of which Ms. Fienngo had provided herself, such as an interview Ms. Fienngo gave to the gossip website O Fuxico. You would have thought that someone who had provided details about her personal life to a gossip website would (a) realize that people might pass on that public information -- that's how gossip works -- and (b) be grateful to those who spread details she herself had chosen to make public. Fortunately, the judge seems to have understood the situation: The court stated that although the information available on her Wikipedia page concerned her private life, Ms. Fienngo had already disclosed that information to the media herself, so its inclusion on Wikipedia was not an invasion of her privacy. It's ridiculous that it required a court case to establish that, but the good news is the judgment should help to discourage others from bringing more such suits. Well, probably. Unfortunately, another similarity between the Brazilian Wikipedia case and the earlier Creative Commons one is that Ms. Fienngo could make an appeal, although Wikimedia notes: We believe that the decision was strong enough that community members should feel free to make editorial decisions to write articles like the one about Ms. Fienngo. Let's hope they're right. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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We've talked about online electronics retailer Newegg quite a few times here on Techdirt, usually in the context of its noble fight against patent trolls. I, personally, have a lot of respect for Newegg's Chief Legal Officer, Lee Cheng. So it surprised me a bit to see that Newegg is suing another lawyer for copyright infringement on one of its briefs. And, so far Newegg is winning, as the judge has ruled that using the brief is not fair use. The details here do matter. The defendant, lawyer Ezra Sutton, had worked alongside Newegg in one of the many patent troll lawsuits. Sutton was representing another company sued in the same lawsuit as Newegg by a patent troll, Adjustacam. They had won the case against the troll, and both Newegg and the company Sutton represented, Sakar International, filed motions seeking attorneys' fees. Here's where things get iffy on Sutton's part, as described by Alison Frankel via the Reuters link above: As Newegg general counsel Lee Cheng recounts the story, he told Sutton early on that Newegg would be willing to file a joint brief with Sakar if Sakar paid a share of the legal fees. Sutton said no thanks, but, as the filing deadline approached, he came back to Newegg. Cheng agreed to show Sutton a draft of the brief Newegg intended to submit to the Federal Circuit to help him write a complementary brief for Sakar. Instead, the day before Newegg’s brief was due, Sutton filed a brief that was largely copied from Newegg’s draft. When Newegg realized what he’d done and protested the filing, Sutton withdrew the brief and subsequently filed a shorter version focused on Sakar’s argument. So, first off, what a shitty thing to do by Sutton. I think that's pretty clear. At the very least it potentially would have made a mess for Newegg who would have looked bad filing a nearly identical brief as Sutton after he did (especially considering he wrote it). But, then there's the question of what to do about it. Newegg decided to sue Sutton for copyright infringement -- and this is where I'm a lot less comfortable with Newegg's decision. I think it's the wrong move. We've actually discussed the question of whether or not legal briefs should be subject to copyright before. A few years ago, some lawyers sued the big legal publishing companies, Westlaw and LexisNexis, for republishing briefs when they published compendiums of cases. That was ridiculous, and thankfully the court tossed out the lawsuit, finding that the republishing in this case was easily fair use. Admittedly the facts in Newegg's case against Sutton are very different. This isn't republishing dockets for lawyers and scholars to access and review. The situation here seemed more like plagiarism, with Sutton more or less trying to take credit for Newegg's work (which had the knock on effect of potentially making Newegg look bad). And I get all of that, but it still troubles me that copyright was the tool here. It feels inappropriate. Copyright is supposed to be about the incentives to create. And no one needs a copyright incentive to create a legal brief -- something that Newegg's Cheng agreed about when I reached out to him about this case. He more or less admits that they're just using copyright here for a clearly non-copyright purpose. As he told me: "We didn't file this case for profit or money. It's for principle and justice (corny but those values truly motivate me). However, we do believe that Sutton's action did cause us monetary harm and that we are entitled to remedies, but it clearly wasn't the focus of this suit. This suit was to send a message, strictly directed at unethical and lazy lawyers, to do what they learned in the first year of law school in terms of properly crediting others' work, and to do what anyone with common decency would do. Lawyers should be held to, and should hold themselves to, higher rather than lower standards." I don't disagree with any of that -- but it's still troubling to me that copyright is the tool here, because that's a decidedly non-copyright thing that it's being used for. In fact, this seems to be one of those situations where the complaint is really about plagiarism rather than copyright, but where there's enough overlap that the legal mechanism of copyright is enabled to come into play. I fear that this will then be used by others in even more abusive ways -- though Cheng seems confident that the specific facts of this case would likely limit such a potential result. I'm even bothered a bit by the fair use analysis here where the judge denied Sutton's fair use claims. I would think that the question of whether or not a legal brief should be covered by copyright would be a pretty big factor here. And the judge does agree that this point weighs somewhat in Sutton's favor (and points to that earlier case). The judge also finds, correctly, that the 4th factor -- the impact on the market -- weighs in favor of Sutton since Newegg doesn't have a market for selling its legal briefs. But while many courts often point to that 4th factor as a key one, this court basically just decides that it doesn't matter as much: Upon consideration of all four factors, with more weight given to the first and third factors based on the facts, circumstances and particular nature of this case, Sutton did not meet his burden of establishing a prima facie case that his copying of Newegg’s draft brief was fair use. So, yes, he's saying because of the specific facts in this case, but it does feel like -- as is all too often the case in fair use cases -- the judge has basically determined what result he wants, and then weighs the four factors accordingly. Admittedly, this might not be a huge deal. The facts are pretty specific, and plagiarizing is sleazy. But, I'm still troubled with the use of copyright to punish even sleazy behavior if it's not related to the reasons for copyright existing.Permalink | Comments | Email This Story

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Back in February the FCC voted to use its Congressional mandate to ensure speedy broadband deployment to dismantle protectionist state laws intentionally designed to hinder broadband competition. But the FCC recently found itself swatted down by the courts, which argued the agency lacks the authority to pre-empt even the worst portions of these laws. As a result municipal broadband providers continue to run face first into protectionist provisions written by incumbent ISP lawyers and lobbyists solely concerned about protecting the current broken broadband market. The impact of the FCC's loss is very real. Ars Technica notes that one of the broadband ISPs that originally asked for help from the FCC, Wilson North Carolina's Greenlight, has had to disconnect one neighboring town or face violating state law. With state leaders tone deaf to the problem of letting incumbent ISPs write such laws, and the FCC flummoxed in its attempt to help, about 200 home Internet customers in Pinetops will thus lose access to gigabit broadband service as of October 28:"We must comply with our state law," Agner said. But city council members were very vocal in their opposition to the law and regret having to disconnect the service, she said. "We have not identified a solution where Greenlight can serve customers outside of our county," Wilson City Manager Grant Goings told The Wilson Times earlier this week before the city council vote. “While we are very passionate about reaching underserved areas and we think the laws are atrocious to prevent people from having service, we’re not going to jeopardize our ability to serve Wilson residents."Greenlight's fiber network provides speeds of 40Mbps to 1Gbps at prices ranging from $40 to $100 a month, service that's unheard of from any of the regional incumbent providers (AT&T, CenturyLink, Time Warner Cable) that lobbied for the protectionist law. Previously, the community of Pinetops only had access to sluggish DSL Service from CenturyLink:"Wilson already had fiber in Pinetops, which has been an electric customer of Wilson's for more than 40 years. Before deploying Internet access to Pinetops, Wilson was laying fiber in the town to support smart grid initiatives. After the FCC voted to let city Internet services expand outside their boundaries, Wilson extended the fiber network to pass the roughly 700 homes in Pinetops, Agner said. Prior to this, Pinetops residents' only option was CenturyLink DSL, she said."That's the same CenturyLink that's currently using the lack of competition in its markets to begin saddling already slow and expensive DSL service with usage caps and overage fees. ISPs have been very successful in sowing partisan discord by framing municipal broadband as a partisan issue (pesky government interfering in private enterprise!). In reality, most municipal broadband networks have been built in Conservative areas and see broad, bi-partisan support. Disliking the local phone and cable company (and the market failure that built them) is actually something that tends to bring bickering partisans together. Still, with the FCC's loss there's nothing really stopping ISPs from continuing to use state legislatures as their personal playthings. Currently there's twenty such laws protecting broadband duopolies in place, and despite growing attention to the practice, new protectionist laws are being passed each year.Permalink | Comments | Email This Story

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If you're going to argue against YouTube, Spotify, etc. and the supposed wholesale screwing of artists, it helps if: A. You're not a former member of an entity with decades of experience in screwing artists, and B. You have some grasp of basic economic concepts. Paul Young, a former director of licensing for Universal Music Group, has an op-ed posted at The Hill decrying the unfairness of streaming services and the wrongness of the DMCA. But any point he's trying to make is buried under ignorance and the demand that some artists be treated more equally than others. The music community’s grievances are the following: (1) The DMCA allows internet service providers to build ad-based businesses built upon infringing content that the artists cannot effectively police through “notice and take down” procedures; (2) If and when service providers pay the artists, it’s on the providers’ hopelessly complex terms, resulting in payments that offer fractions of pennies per view; (3) Service providers offer “free” teaser music to the public when copyright owners should have the absolute right to control distribution of their music. (1) The DMCA sucks, but it sucks the way studios and labels wanted it to. Now they don't like it and they want to change it to suck in a different way. They're also arguing for "notice and STAY down," which works out great for labels/studios… unless they're inadvertently targeting their OWN site with unvetted DMCA notices. (2) "Hopelessly complex terms" are included in almost every royalty agreement. Service providers don't have a monopoly on this behavior. (3) If copyright owners want "absolute control," they're free to pull their music, movies, etc. from services they don't like. Not many have, because not many are willing to give up this revenue stream they constantly claim isn't paying enough. As for the artists themselves, they have no "absolute control" -- not if they're signed to a label. Young may be writing about screwed artists, but he's really only interested in protecting the "rights" of gatekeepers. He confirms this by claiming major labels deserve to be treated better than other copyright owners. Free music streaming is fair only for original, home-based music. However, what the public streams mostly comprises of premium, professional content. This content is expensive to create, risky to market and requires many behind-the- scene professionals. It's OK for service providers to screw the little guy. But don't mess with the majors. They have oh-so-many mouths to feed -- mouths that are more deserving of revenue than creators that don't cut them in on the deal. Young wants a better deal for artists, but with a caste system attached. Here's more: Every minute, 400 hours of footage is uploaded to YouTube, much of it synched to copyrighted music. [Note: citation needed.] This gives YouTube a distinct advantage over Spotify, Tidal, Apple Music and other services that do not offer user-generated streaming of works they do not control. Much of this YouTube footage is monetized with paid ads. YouTube retains a minimum of 45 percent of this revenue, at prices it sets (but does not reveal), irrespective of the content’s creation costs. Major label music should "pay" more -- whether it's a premium in subscription fees or a larger cut of advertising revenue payouts. Why? Because it costs more to make. But production costs have little to do with pricing -- and that includes advertising revenue. If we lived in Young's world, tickets to "Paranormal Activity" (production budget: $450,000) would be $5 and tickets to "Avatar" (production budget $425,000,000) would be $4,700. [Productions costs taken from here.] Buying My Bloody Valentine's "Loveless" would bankrupt music fans just as certainly as it nearly financially destroyed the label that released it, while Owl City's basement-produced hit album could presumably be had for a handful of pocket change. Young -- and the label he worked for -- appear to believe the internet owes them a living. But just them. Not the rest of these shabby artists the labels are unwilling to gatekeep for. Once Young has finished deliberately misunderstanding how markets work, he moves on to the point of his op-ed, which begins with him recycling the stupid "built on the backs of artists" trope that presumes no service provider could ever become successful without engaging in copyright infringement. Then he goes right off the rails. I would argue for stronger, industry-wide measures: a complete repeal of the safe harbor provisions of the DMCA and a prohibition on any unauthorized uploading of the property of others. The first part is insane. Young actually wants service providers to be fully responsible for the actions of their users. Like the ongoing attacks on Section 230 of the CDA, this is a very lazy, very dangerous attempt to paint targets on the backs of those who have money, rather than perform the more difficult work of targeting the users who actually commit copyright infringement, make defamatory statements, etc. This line of thinking says labels and studios need do nothing more than bitch loudly and expect everyone else to solve their problems -- whether it's websites, legislators, or internet service providers. This is how they "protect" their artists. By complaining stupidly and demanding the internet be torn apart and rebuilt to their specifications, damn the collateral damage. The second part is just moronic. Every site prohibits unauthorized uploadings. Active efforts are made to police uploaded content and any site that wants to stay alive for long sets up a DMCA agent to respond to takedown notices. But it's never enough. Young apparently feels current prohibitions just aren't prohibitive enough, as though there were a magical tech solution somewhere that might prevent any unauthorized uploading from taking place ever again, if only service providers weren't so busy raking in billions on the backs of major label artists. The whole op-ed is an embarrassment. But, unfortunately, it's par for the course in major label/studio arguments. It's worse than the blind leading the naked. It's the ignorant leading the angry. It's short-sighted rent-seeking by people who somehow think they can force more revenue out of service providers by destroying the protections that have allowed them to prosper. Permalink | Comments | Email This Story

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So, last week, I wrote up a long analysis of the House Intelligence Committee's ridiculous smear campaign against Ed Snowden, highlighting a bunch of misleading to false statements that the report made in trying to undermine Snowden's credibility as he seeks a pardon from President Obama. The Committee insisted that it had spent two years working on the report, but it seems like maybe they just needed all that time because they couldn't find any actual dirt on Snowden. In my analysis, I pointed to some of Snowden's public responses, highlighting how the House Intel Committee was either completely misinformed or lying about Snowden. But Barton Gellman, one of the four reporters who Snowden originally gave his documents to, and who has done some amazing reporting on the Snowden leaks (not to mention, who is writing a book about Snowden) has responded to the report as well, and highlights just how incredibly dishonest the report is. Gellman focuses on just one section -- the weird section that tries to make out Snowden as a "serial exaggerator and fabricator." Here's that paragraph again: Fourth, Snowden was, and remains, a serial exaggerator and fabricator. A close review of Snowden's official employment records and submissions reveals a pattern of intentional lying. He claimed to have left Army basic training because of broken legs when in fact he washed out because of shin splints. He claimed to have obtained a high school degree equivalent when in fact he never did. He claimed to have worked for the CIA as a "senior advisor," which was a gross exaggeration of his entry-level duties as a computer technician. He also doctored his performance evaluations and obtained new positions at NSA by exaggerating his resume and stealing the answers to an employment test. In May 2013, Snowden informed his supervisor that he would be out of the office to receive treatment for worsening epilepsy. In reality, he was on his way to Hong Kong with stolen secrets. As we noted on Friday, Snowden disputed almost everything in this paragraph, saying that it would be "extremely unwise" for them to say he didn't have a GED, and (more importantly) pointed out that it wasn't shin splints that kept him out of the Army, and that the "doctored performance evaluation" was actually him showing (as requested by his managers) a "proof of concept" of a vulnerability in the CIA's computer system. Gellman takes all of these points even deeper and debunks the House Intelligence Committee's findings with checkable facts. The "shin splints" claim? Gellman has reviewed Snowden's Army paperwork. It wasn't shin splints. This is verifiably false for anyone who, as the committee asserts it did, performs a “close review of Snowden’s official employment records.” Snowden’s Army paperwork, some of which I have examined, says he met the demanding standards of an 18X Special Forces recruit and mustered into the Army on June 3, 2004. The diagnosis that led to his discharge, on crutches, was bilateral tibial stress fractures. A shin splint comes from the muscles and bone tissue around the tibia being overworked, often by repetitive injury. It's true that tibia stress fractures are sometimes confused with shin splints, but an actual fracture is much more serious (and doctors will sometimes check to see if shin splints are really a stress fracture if they're not going away). If Snowden was in the hospital and on crutches with bilateral tibial stress fractures, that's way past shin splints. The House Intel Committee was either lied to or is lying here to the public -- ironically in the section they claim is about Snowden's fabrications and exaggerations. How about the claim that he never got his GED? It turns out that Gellman actually has the evidence: I do not know how the committee could get this one wrong in good faith. According to the official Maryland State Department of Education test report, which I have reviewed, Snowden sat for the high school equivalency test on May 4, 2004. He needed a score of 2250 to pass. He scored 3550. His Diploma No. 269403 was dated June 2, 2004, the same month he would have graduated had he returned to Arundel High School after losing his sophomore year to mononucleosis. In the interim, he took courses at Anne Arundel Community College. So, again, in the section on fabrications and exaggerations, the House Intel Committee appears to be the one fabricating stuff. It again raises the question of whether or not they were lied to or just failed to do basic due diligence into the truth of the claim. What about the claim about his level in the CIA? Again, Gellman to the rescue with evidence: Judge for yourself. Here are the three main roles Snowden played at the Central Intelligence Agency (CIA). (1) His entry level position, as a contractor, was system administrator (one among several) of the agency’s Washington metropolitan area network. (2) After that he was selected for and spent six months in training as a telecommunications information security officer, responsible for all classified technology in U.S. embassies overseas. The CIA deployed him to Geneva under diplomatic cover, complete with an alias identity and a badge describing him as a State Department attache. (3) In his third CIA job, the title on his Dell business card was “solutions consultant / cyber referent” for the intelligence community writ large—the company’s principal point of contact for cyber contracts and proposals. In that role, Snowden met regularly with the chiefs and deputy chiefs of the CIA’s technical branches to talk through their cutting edge computer needs. Gellman also has more detail on that whole "doctoring his performance evaluation" claim, noting how the House Intel Committee was clearly exaggerating the truth: Truly deceptive, this. I will tell the story in my book. Suffice to say that Snowden discovered and reported a security hole in the CIA’s human resources intranet page. With his supervisor’s permission, he made a benign demonstration of how a hostile actor could take control. He did not change the content of his performance evaluation. He changed the way it displayed on screen. Gellman has a few more in his post as well, but the short version is that "four of the six claims are egregiously false, and a fifth is hard to credit." Oh, and the one "true" claim? That he lied to his bosses saying he was going for epilepsy treatment when he was really heading off to hand over the files to reporters. And so we're left with the question: how the hell did the House Intelligence Committee spend two years... to get everything so incredibly wrong? And will anyone actually call them on this?Permalink | Comments | Email This Story

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Last week there was a big copyright ruling in India, where a court ruled against some big academic publishers in ruling that a photocopying kiosk that sold photocopied chapters from textbooks was not infringing on the copyrights of those publishers. We wrote about this case over three years ago, when it was first filed. It's actually fairly similar to a set of cases in the US that found college copyshops to be infringing -- leading to a massive increase in educational material for college students. The Indian court went the other way. The full ruling takes a fair use-style look at the question, and recognizes that educational purposes are more important than padding the bank account of some big publishers. The ruling is pretty long, but there are a number of good points in there. Here's the one that a bunch of people have been quoting, noting that copyright is not inevitable, divine or a natural right: Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public. Now that's a damn good quote on copyright law. The court also talks a lot about how technology has changed over time, and that it shouldn't be held back by copyright. Today, nearly all students of the defendant no.2 University would be carrying cell phones and most of the cell phones have a camera inbuilt which enables a student to, instead of taking notes from the books in the library, click photographs of each page of the portions of the book required to be studied by him and to thereafter by connecting the phone to the printer take print of the said photographs or to read directly from the cell phone or by connecting the same to a larger screen. The same would again qualify as fair use and which cannot be stopped. The German Federal Supreme Court in Re. the Supply of Photocopies of Newspaper Articles by Public Library [2000] E.C.C. 237 held that in a modern technologically highly developed nation like Germany, an extensive fast functioning and economic information exchange was vital; that is why the libraries were given the freedom to operate and the reproduction rights of authors were restricted in favour of freedom of information; that it was sufficient to escape liability for copyright infringement if the customer of the library could claim the benefit of the exemption which allowed the copying for personal use, of articles published in a periodical; whether or not the library charges for its service is immaterial; The court similarly notes the hypocrisy of lawyers who regularly photocopy things now complaining about students doing the same: What the defendant no.2 University is doing is not different from what is being done in the Bar Association library in the premises of this Court. With the advent of photocopying, the advocates of this Court, instead of carrying books from their residences / offices to this Court for citing judgments therefrom during the course of arguments and instead of giving in advance the list of such books to the Restorer of this Court and the Restorer of this Court also taking out the court's copies of the same books for the Judges to read, and all of which was cumbersome and time consuming, started having the photocopies of the relevant judgments made from the books in the Bar Association Library of this Court. Initially the said photocopying was got done by having the book issued from the library and carrying the same to the photocopier who had, for the convenience of the advocates, been granted a licence to operate from the premises of this Court. Subsequently, for expediency and to avoid the books being taken out of the library, the Bar Association library itself allowed the photocopier to install his machine within the library premises and any advocate could get the photocopy done by having the relevant judgment photocopied within the Bar Association library by paying the cost of photocopy as is fixed by the Bar Association. It's always nice to see a good copyright ruling -- especially one that will make it easier for the dissemination of knowledge and learning in an academic setting.Permalink | Comments | Email This Story

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The FBI's impersonation of an AP journalist during an investigation raised some serious questions about what the agency considered to be acceptable behavior when pursuing suspects. The outing of this tactic led to a lawsuit by the Associated Press, which was naturally unhappy its name was being used to deliver malware to a teenaged bomb threat suspect. The FBI performed its own investigation of the matter (but only after it had become public knowledge -- seven years after the incident actually occurred) and found that rules may have been broken by this impersonation of a news agency. Certain approval steps were skipped, making the investigatory tactic not exactly by the book. But in the end, the report congratulated the FBI on using the ends to justify the means. The DOJ's Inspector General [PDF] has now reviewed the incident as well and, uncharacteristically, is even more supportive and less critical of the FBI's actions. We found that Department and FBI policies in effect in 2007 did not prohibit agents from impersonating journalists or from posing as a member of a news organization, nor was there any requirement that agents seek special approval to engage in such undercover activities. The only policies in effect at the time that might have required elevated consideration regarding the FBI’s plans turned on whether the undercover activity involved a “sensitive circumstance.” We concluded, given the lack of clarity in the policy language, that making a determination whether a situation was a “sensitive circumstance” was a challenging one and that the judgments made by the agents were not unreasonable given the lack of clarity. Basically, the OIG has granted the FBI a "good faith" exception. The report also notes that an interim policy eliminated much of the vagueness previously present in the FBI's policies. That being said, the OIG's recommendation doesn't want for vagueness. Recommendation 2: The FBI should consider the appropriate level of review required before FBI employees in a criminal investigation use the name of third party organizations or businesses without their knowledge or consent. "Consider the appropriate level of review" sounds a lot like something that could be interpreted as "roll the dice and see what happens" or "it's always easier to ask for forgiveness than permission." Fortunately, the OIG has additional guidance on this recommendation, which makes it less vague than it first appears. After reviewing a draft of this report, the FBI provided comments explaining that the heightened level of review and approval required for FBI employees to pose as members of the news media was introduced because such activity potentially could “impair news-gathering activities” under the First Amendment, but that such constitutional considerations do not apply to businesses and other third parties. Our recommendation, however, does not rely on equating the reputational interests of some third party organizations and businesses with the constitutional interests of others. We believe that reputational interests, and the potential impact FBI investigations can have on those interests, are themselves sufficiently important to merit some level of review before FBI employees use the names of third party organizations or businesses without their knowledge or consent. As is pointed out by Marcy Wheeler, the FBI is arguing that it shouldn't have to seek special approval to imitate non-journalistic entities. It could impersonate any number of companies without additional oversight because there are fewer Constitutional concerns. It could -- in the hypothetical Wheeler proposes -- pretend to be Apple and issue a software update. That's one way to ensure a phone's crackable once the FBI gets its hands on it. So, the change in policy will only affect the FBI's ability to impersonate journalists or their employers. It won't prevent the FBI from doing this. It will only require additional signatures on the paperwork. Another OIG finding of note is that the FBI is the worst at impersonating journalists. Fortunately for it and its terrible imitation skills, it was only up against a 15-year-old bomb threat suspect. Grant identified himself in the e-mail as “Norm Weatherill,” an “AP Staff Publisher.” At 2:55 p.m. Jenkins responded, “leave me alone.” Grant replied at 3:21 p.m.: I respect that you do not want to be bothered by the Press. Please let me explain my actions. I am not trying to find out your true identity. As a member of the Press, I would rather not know who you are as writers are not allowed to reveal their sources. The school has continually requested that the Press NOT cover this story. After the School Meeting last night, it is obvious to me that this needs coverage. Readers find this type of story fascinating. People don’t understand your actions and we are left to guess what message you are trying to send. . . . Nothing says "competent journalist" like random capitalization and referring to the Associated Press as "the Press..." if that's even what's happening here. It could very well be that "the Man" assumes everything is "us vs. them" and that "the Press" is just another key player in a larger conspiracy to subvert "School Meetings" and the administrators that oversee them. Whatever this mess of words is, "competent" it certainly isn't. On top of that, the FBI couldn't even nail down a writing style that has its own, frequently-updated guidebook, as Ryan J. Reilly points out at the Huffington Post. Despite the fact that the “entire investigative team was present” and “consulted together about what to say before the message was sent,” none of them apparently thought to follow AP Style. Neither did the fake news story the FBI posted to its fake website -- the link used to serve the suspect with malware. It's just offensive that the FBI would impersonate the Seattle Times and not follow proper AP style. pic.twitter.com/qSf7zdHgYj — Mike Baker (@ByMikeBaker) October 28, 2014 All joking aside, the policies the FBI had in place before this blew up were plainly inadequate. The policies replacing them aren't much better. The agency is already given plenty of leeway in terms of investigative tactics. Limiting its impersonation to those that don't implicate First Amendment rights won't stop it from impersonating any other private entity that might serve its purposes. Permalink | Comments | Email This Story

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This week, we noticed that despite Hollywood's constant insistence that it should be easy to use technology to block infringement, they couldn't even manage to secure their own screener copies of movies. Our first place winner for insightful was an anonymous commenter who summed it up pretty simply: You'd be amazed at what feels easy if you're not the guy doing it. Meanwhile, it appears Univision wasted no time in going full-corporate with its new Gawker property, by deleting six stories from the site over legal threats. Nate won second place for insightful by hatching an evil plan: So basically I could silence all Gawker sites simply by writing a bot which threatened a lawsuit over each and every post? That's scary. P.S. It occurs to me that I wouldn't even need to code a bot; I think I could pull this off using only IFTTT. Relatedly, our first editor's choice on the insightful side goes to IP Lawyer for pointing out something important about Gizmodo's bizarre attempt to declare cord-cutting over: Gizmodo, now owned by television giant Univision. Next, we've got a harsh-but-true anonymous response to the campaign to get the president to pardon Snowden: If Snowden was a bankster, a torturer or a war criminal then he might have a chance. Obama hunts down whistleblowers. He doesn't pardon them. Over on the funny side, we start out on our post about the latest DMCA takedown misfire, which this time saw Paramount shutting down a totally legitimate Ubuntu torrent as part of a bunch of takedowns for Transformers: Age of Extinction. Another anonymous commenter won first place for funny by musing on a possible explanation: Maybe there's a lesser known Transformer by the name of "Ubuntu" that's made from open source car materials? In second place, we've got Dheneb expanding on the notion that mandating encryption backdoors is like mandating holes in body armor: That's OK. All you have to do is label those holes on the outside with something like "HOLE FOR LAW ENFORCEMENT USE ONLY" so that the bad guys will know not to aim there. For editor's choice on the funny side, we start out with a response from Roger Strong to John McCain's shaming of Twitter at a Senate cybersecurity hearing: Old Man Yells At Cloud (Services) And finally, after a commenter suggested that lawyers should be outlawed, TechDescartes served up a classic rejoinder: Yes, but then only outlaws will have lawyers. That's all for this week, folks! Permalink | Comments | Email This Story

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posted 9 days ago on techdirt
So, each week we usually look back at what happened on Techdirt five, ten and fifteen years ago. It's a fun little way to look back at things. But, of course, the "fifteen years ago" this week includes September 11th, 2001. We actually had published five short stories earlier in the morning, before the attacks happened. I know lots of people have their "where were you" on September 11th story -- but mine is pretty simple. I was home in California, asleep in bed. A good friend (who also grew up in NY, but also lived in California at the time) called me and woke me up in the morning to tell me that planes had flown into the towers. I turned on the old TV I had in my bedroom at the time and just lay in bed and watched it for a few hours in horror. I eventually decided I had to write something... but it was just a short post saying that we wouldn't be posting anything else that day. I included a few links on how to donate blood, a site tracking news and a site for people to report if they were okay. The rest of the day I was just numb, wondering what was going on and if everyone I knew back in NY was okay (two of my high school classmates -- one of whom I'd actually gone to school with since 1st grade, and whose early birthday parties I remember attending -- were killed in the attacks). The rest of that week, I wasn't quite sure what to publish. Being snarky about tech news didn't really seem appropriate or reasonable. We had something debunking a stupid "Nostradamus predicted this" story and then just more posts with basic information about what was happening and how/where some people could help. On the afternoon of September 12th, I finally started to come to terms with my feelings about what happened -- and my initial fears of what was coming next: Let me be clear. I am angry. The few people who have spoken to me know this. I am angry that there are people in this world who could contemplate, let alone organize, plan, and carry out such a horrendous event. However, I am now scared. Scared about our priorities. Right now our priorites should be helping those who are suffering because of this mess. We should then work on ways to prevent this from ever happening again. Then we can talk about justice. The folks concentrating on revenge right now have their priorities screwed up. I am scared of the reports I am hearing. I am scared of people jumping to conclusions. I am scared of stereotyping. I am sickened by the numerous people I've heard or read blaming the US or their allies for causing this as well. There were some absolutely insane and mad things behind this. I cannot call them human beings. There are some sick and ignorant people cheering these events. They are ignorant. They don't deserve to be destroyed either. Instead, I'm hearing ridiculous reports of people threatening and targeting completely innocent people. I understand that people are looking for folks to blame. That's understandable. But, it's not something that we need to focus on now. And, when we do look for those answers, it only creates additional harm and danger to generalize and stereotype any group of people. As one New Yorker stated, "In Manhattan, we aren't in a state of war, we're in a state of mourning". There is no "right" solution on what to do about this. However, jumping to conclusions and making assumptions is only going to make the situation worse. And by the very next day, I was (rightly so!) concerned about how this would lead to increased surveillance of the internet. At the same time, I was impressed with how useful the internet had been as a tool for people to communicate during the attack, and enabling people to come together and mourn together. We were also interested in using technology to prevent hijackings. In other words, the same stuff that we often talk about: happy about the power of innovation, but worried about government surveillance and abuse of the technology. Some things never change. There were a bunch of other posts, as well, many just trying to come to terms with what had happened -- and what it would mean for the future. Much of what we feared did come true. As we now know, the government immediately pushed through a series of bad laws (starting with the PATRIOT Act) while expanding all sorts of surveillance programs. And let's not even start talking about the seemingly random wars, with weak justifications loosely linked back to that one day, 15 years ago. And where has it gotten us? The cool and innovative technology stuff that we talk about is still progressing, but now more and more we need to use it to protect ourselves against the prying eyes of "collect it all" intelligence officials. We take off our shoes and can't bring water into airports any more. We're constantly told that we're "at war." And I don't feel any safer today than I did that week, 15 years ago. We had a moment -- just a chance -- to rethink how we did things, how we approached the world, and to come together. And instead, we went with the most primal, simplistic response of "let's attack" and "let's spy on everyone." And what has it gotten us? At the end of each year, I like to write about all the things I'm optimistic about. And, for the most part that sentiment is present during the rest of the year as well. But this week is a depressing reminder of (1) how some people can do amazingly cruel and unthinkable things and (2) how badly we seem to react whenever that happens. It seems like a cycle that only progresses. It would be nice if we could stop it from repeating over and over again.Permalink | Comments | Email This Story

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posted 9 days ago on techdirt
Last chance this year to get Nerd Harder, Takedown, and more Techdirt gear! » Want to get someone some Techdirt gear for Christmas? I know, I know — you probably don't want to think about that yet. But since Teespring fulfillment sometimes takes a few weeks, we wanted to give everyone a nice big window to get their holiday orders in — or to snag some gear for themselves this fall. So why not get some holiday shopping out of the way early? Four of our classic designs plus one new one are available from now until October 3rd. Among them is the popular Nerd Harder line, which is now available on hoodies, mugs and t-shirts. It's the last time this year we'll be offering any of these designs, and your last chance ever to get some Vote2016() gear! Order now and get it just in time for the election. Hurry up and get your gear before it's too late. Permalink | Comments | Email This Story

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posted 9 days ago on techdirt
Lots of people have expected President Obama to push for a Congressional vote on the Trans Pacific Partnership (TPP) ratification in the "lame duck" session after the election, but before the new administration takes over. Last week, the President made it pretty clear that he was planning to do exactly that, and magically a bunch of "business groups" that make up the "President's Export Council" are suddenly pushing for a lame duck TPP vote, and lots of old school business lobbying groups are out talking to the press about how totally amazing the TPP is. Meanwhile, on the flip side, TPP opponents are (not surprisingly) gearing up to oppose a lame duck vote. It's still not clear if there are enough votes in Congress, but of course, no one wants to talk about it before the election, because there's so much populist anti-TPP feelings from the public on both parties that speaking up in support of TPP now may harm election chances. Of course, after the election, when elected officials can go back to ignoring the will of the people, things may miraculously shift back to the way they were before. Meanwhile, the other big "trade" plan that was supposed to be a part of Obama's legacy is the deal with the EU, known as the TTIP (Transatlantic Trade & Investment Partnership). That's run into lots of trouble as well, and there are serious concerns on both sides of the Atlantic about how it will work. With time running out on the clock, apparently the USTR is now pushing for a "light" version of the agreement so that something is accomplished: The U.S. and EU countries supporting free trade are increasingly worried that the landmark Transatlantic Trade and Investment Partnership will collapse if they do not secure a preliminary accord before U.S. President Barack Obama leaves office in January. They now accept that a full agreement will not be possible by the end of 2016 because of an impasse over agriculture and public procurement, but they don’t want to surrender what they regard as concrete progress made in other fields over the past three years of negotiations. So to "lock in" something, they are looking at taking the pieces they have agreed on, and coming up with a simplified deal. What's interesting here is that the agreed upon parts are the ones that are normally used as the example of why we need TTIP in the first place. In the past, we've joked about how frequently those defending TTIP point to the single example of different automobile standards, such that automakers need to build different cars for each market. And it looks like that issue might make it in TTIP-lite: U.S. and Italian officials are now weighing the option of a “Step 1” deal to lock in elements that can be finalized by December, possibly including joint testing regimes and mutually agreed upon standards for cars, pharmaceuticals and medical devices. So, uh, that sounds good. Why do we need the rest of the crap that they're debating, around corporate sovereignty ISDS provisions -- especially since the entire basis for those kinds of agreements was supposed to be to encourage investment in developing countries. The EU and the US have perfectly decent court systems, so any dispute shouldn't need a special tribunal. But, of course, those who have relied on shoving all sorts of pork and special interest protectionism through trade deals do not like the idea of a "lite" agreement that covers the officially discussed reasons for a trade deal. Why, that would be horrible! How could they continue to hide all the sneaky stuff they want to get in? The idea has sparked immediate skepticism in the European Commission and in some EU member countries, which argue that any form of a downgraded deal will be very hard to sell politically, particularly after French Trade Minister Matthias Fekl and German Economy Minister Sigmar Gabriel turned hostile on the negotiations. And, of course, anything that's "rushed" through may have problems on its own, so there are legitimate reasons to be wary of a "lite" deal anyway. But it is kind of amusing that they might dump all the "good" reasons for TTIP into a deal, and then have to continue to try to justify the rest of the stuff.Permalink | Comments | Email This Story

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posted 9 days ago on techdirt
I'm always super interested in new ideas for hacking the patent system to get around just how broken it is -- and the fact that Congress still seems to have no real desire to fix things -- mainly because some of the largest patent system exploiters are standing in the way of necessary reform. So it's always cool to hear of new ideas to try to fix things without having to bother with changing the law. The latest interesting idea: Unpatent -- a combination crowdfunding/crowdsourcing platform with the goal of invalidating stupid patents. Each stupid patent gets its own crowdfunding campaign, in which Unpatent looks to raise at least $20,000. This money does two things: it is used to pay for a legal challenge (a so-called "ex parte" challenge) of the patent at the Patent Office and to pay out rewards to those who find the compelling prior art to invalidate the patent. As you've likely figured out by now, that's where the crowdsourcing comes in. Individuals can submit their own prior art examples, and if their examples are used in invalidating the patent, they can share in some of the money raised. They're kicking it off by challenging a patent on customizing stuff on the internet. It's US Patent 8,738,435 on a "method and apparatus for presenting personalized content relating to offered products and services." If that sounds familiar, it's because it was EFF's "Stupid Patent of the Month" back in February. The company holding this patent, Phoenix Licensing, has filed a bunch of troll lawsuits in (of course) the Eastern District of Texas. I have no idea how well this will work, but it's good to see experiments like this. It does remind me of two other projects. A few years back, StackExchange and Google teamed up to crowdsource prior art at AskPatents, which is still getting some use today, if not a tremendous amount. The other thing it reminds me of, is that way back in 2000, after Jeff Bezos faced a ton of criticism for Amazon's "one-click" patent, Bezos and Tim O'Reilly teamed up to form BountyQuest, a system in which they would pay people who found prior art to destroy bad patents -- with the one-click patent being the first one offered up. Unfortunately, basically nothing happened with BountyQuest, and just two years later it had basically faded away. Luis Cuende, the founder of Unpatent, says that he thinks both the world has changed since Bezos and O'Reilly did BountyQuest, and that the overall setup of Unpatent may work better. It's definitely an interesting approach -- and they've got the support of Lee Cheng, Newegg's Chief Legal Officer, who has made destroying patent trolls something of a personal hobby (he's really, really, really good at it). Anyway, check out Unpatent, especially if you've got some good prior art on that customization patent...Permalink | Comments | Email This Story

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posted 10 days ago on techdirt
In all of our coverage of copyright trolls, those rent-seeking underdwellers that fire off threat letters to those they suspect of copyright infringement with demands designed to extract cash without having to actually take anyone to court, it's quite easy to become somewhat numb to the underhanded tactics they employ. Between specifically targeting folks over pornography in order to minimize the chance that anyone might want to actually go to trial, to the privacy invading tactics occasionally used when a court case actually commences, it becomes easy to simply shrug at the depravity of it all. But there is a special place in hell for copyright trolls who falsely inform students that failure to pay on receipt of threat letters, or who falsely inform foreign students that deportation could result from a failure to pay. According to at least one university in Canada, this is apparently a new favored tactic among some copyright trolls. According to the copyright office at the University of Manitoba, mainly US-based rightsholders are writing on a regular basis to students demanding cash settlements for alleged infringement. Noting that the university forwards copyright infringement notices to students as they’re required to under the country’s ‘notice and notice‘ regime, the copyright office says some of the letters are “tantamount to extortion.” In addition to cautioning over the potential for multi-million dollar lawsuits, some notice senders are stepping up their threats to suggest that students could lose their scholarships if fines aren’t paid. For visiting students, things become even more scary. According to the university’s copyright office, some porn producers have told foreign students that they could face deportation if an immediate cash settlement of hundreds of dollars is not forthcoming. Just so everyone is clear, loss of scholarship and/or deportation is not a thing that can actually happen as a result of failure to pay a copyright threat letter. I'm unclear on the implications of these letters coming from the US to Canada, but it sure sounds a hell of a lot like wire fraud to me. The point of wire fraud laws is to prevent one entity from gaining another's possessions under false pretenses. Threats of consequences that will not occur sure seem to fit the description, and I would think the Canadian government would want to say something about the claim that a foreign company could influence its immigration oversight on the basis of downloaded pornography. Fortunately, the school is not simply taking this without action. Joel Guenette is the Copyright Strategy Manager for the university and he regularly educates students on the true nature of these threats. “None of these are real consequences that could ever happen in the Canadian scheme of things, but we hear from students all the time – especially international students – who are really freaked out by this,” Guenette says. While being scared is understandable in such situations, Guenette’s department is keen to educate students on what these notices really mean. Particularly, they’re keen to stress that notice senders have no idea who notices have been delivered to, so students shouldn’t believe that copyright holders already know who they are. Given how flimsy the evidence for any infringement tends to be in these cases, as well as how these accusations have been shown to be wrong in the past, the idea of subjecting this kind of terror to students, particularly foreign students, as purely a business tactic is about as slimy a thing as I can imagine. Hopefully more schools are doing as much as the University of Manitoba to educate their students on the pure BS of the majority of these troll letters. Permalink | Comments | Email This Story

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posted 10 days ago on techdirt
John McCain -- fighting for the government's right to get all up in your everything -- has decided to embrace the "grumpy" part of his "grumpy old legislator" personality. Back in July, McCain expressed his displeasure with Apple declining his invitation to show up and get yelled at/field false accusations at his hearing on encryption. He dourly noted that he was "seeking the widest variety of input," but his invited guests included Manhattan DA Cy Vance, a former Bush-era Homeland Security advisor and former NSA deputy director Chris Inglis. Not having Apple to kick around peeved McCain, who finished off the "discussion" with subpoena threats. Another encryption hearing hosted by McCain devolved into the senator ranting about something no one cares about but him: a tech company not immediately prostrating itself in front of an intelligence agency. Here's Marcy Wheeler's summation of McCain's "contribution" to the discussion. His tertiary point seems to have been to attack Apple and Twitter for making efforts to protect their customers. After getting a witness to comment about Twitter’s long-term refusal to let Dataminr to sell Twitter data to the CIA, he suggested perhaps the response should be to “expose” the company. "Expose" how? This was "exposed" already, with the aftershocks of the exposure being "so what?" and "who cares?" Twitter simply enforced a pre-existing policy, pointing out to a third-party data mining company that it wasn't allowed to sell Twitter data to the government for surveillance use. This blocked the CIA from drinking from the Dataminr/Twitter firehose, which made the CIA sad and Twitter look stalwart and -- generally speaking -- didn't prevent the government from using any number of other methods to scoop up public tweets for surveillance purposes. It also made McCain mad and he's still aching about it three months later. So, Wheeler has decided to help McCain out by publicizing Twitter's decision to hold a third-party social media data miner to the terms of its agreement with the government. Two more headlines have been added to her post, both breaking the news that was broken months ago and did little to appreciably nudge surveillance/outrage needles in any direction. But it's still a big deal to McCain. He spent a little over two minutes (starting about 46:50 in the recording posted here) crafting his molehill into a mountain before cajoling NSA director Michael Rogers into answering what should have been a hypothetical question. While Admiral Rogers uncomfortably admitted he "didn't understand" why Twitter would enforce a pre-existing policy, McCain was unable to get anyone in the room to say anything on the record about "exposing" Twitter for its apparently nefarious decision to enforce the rules of Dataminr's agreement. Wheeler has a better question: Of course, you might ask why McCain is demanding that our tech companies to make money off of surveillance of you. And why he considers Twitter such an exception. Permalink | Comments | Email This Story

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posted 10 days ago on techdirt
USA Today, the Associated Press, and Vice News have joined forces to sue the FBI over its refusal to release even the most minimal amount of information on the hack it purchased to crack open the iPhone seized during its San Bernardino shooting investigation. The DOJ certainly seemed adamant that Apple disclose all sorts of inside info to the government during the heated litigation. It turned down offers of assistance from hackers and security researchers before finally shelling out an unknown amount of money to an Israeli firm to gain access to the phone's contents. It also ensured it would never have to discuss the technical details of the hacking by not demanding this information be included in the purchase price. Now, it refuses to even discuss the purchase price. Educated guesses that put it north of $1 million are based on a James Comey comment in which he said it was several times his annual salary. Somehow, the actual amount paid -- if revealed -- would somehow prevent the FBI's investigation from reaching its conclusion. This FOIA lawsuit [PDF] targets other innocuous information the FBI refuses to release: contractor info on the party used to open up the seized iPhone (and discover nothing of investigative use on it). This action is brought pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. §§ 552, et seq., for basic contracting information from the Federal Bureau of Investigation (“FBI”) regarding one of its most publicly-discussed and controversial acquisitions: a technological tool openly purchased from a third-party vendor that was used to circumvent the need for a court order to access the locked iPhone of Syed Rizwan Farook, one of the perpetrators of the mass killings in San Bernardino, California. As the lawsuit cleverly points out by using FBI director James Comey's own words against him, the public's interest in this information should easily outweigh the FBI's stated reasons for withholding it. [T]he News Organizations seek to compel the FBI to provide records of the publicly-acknowledged business transaction that resulted in the purchase this March of the so-called iPhone access tool. The public interest in receiving this information is significant. The FBI’s purchase of this tool allowed government access to Mr. Farook’s phone, providing new information about one of the deadliest attacks on American soil in recent years, but also apparently failing to reveal any evidence of links between Mr. Farook and foreign terrorists or terrorist organizations... FBI Director James Comey has himself stressed the essential importance of a nationwide “adult conversation” about whether and when law enforcement should be able to access encrypted devices because, “‘We’ve got to get to a point where we can reach [wrongdoers] as easily as they can reach us and change behavior by that reach-out.’” Mr. Comey also noted the need for increased information sharing with the public, an acknowledgment particularly critical given the potential of future legislative action on this issue, noting, “‘We need to understand in the FBI, how is this exactly affecting our work, and then share that with folks.’” Moreover, the FBI’s purchase of the technology – and its subsequent verification that it had successfully obtained the data it was seeking thanks to that technology – confirmed that a serious undisclosed security vulnerability existed (and likely still exists) in one of the most popular consumer products in the world. And in order to exploit that vulnerability, the FBI contracted with an unidentified third-party vendor, effectively sanctioning that party to retain this potentially dangerous technology without any public assurance about what that vendor represents, whether the vendor has adequate security measures, whether the vendor is a proper recipient of government funds, or whether it will act only in the public interest. The complaint points out the FBI has offered up zero information on this mysterious contractor, leaving several questions unanswered. The agency has refused to turn over anything on the vetting process used to select this vendor, raising the possibility that the FBI's chosen hacking entity may also be aiding blacklisted governments, terrorist groups, or criminals with accessing communications and data. The news agencies participating in the lawsuit have been seeking this info since the All Writs Order was vacated back in March. Every request has been denied. The lawsuit seeks an order compelling the release of this information. The DOJ will obviously fight this but it should be an interesting case to watch… if there's anything to be seen from the outside. Despite the hack being specific to one iPhone make running one specific version of iOS -- and there being nothing of interest found on the cracked phone -- the DOJ is sure to claim that any disclosure, however minimal, will do serious damage to national security and law enforcement means and methods. Permalink | Comments | Email This Story

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posted 10 days ago on techdirt
For quite some time now, we've been following an odd case through the German and then EU court system, concerning whether or not the operator of an open WiFi system should be liable for copyright infringement that occurs over that access point. Back in 2010, a German court first said that if you don't secure your WiFi, you can get fined. This was very problematic -- especially for those of us who believe in open WiFi. The EU Court of Justice agreed to hear the case and the Advocate General recommended a good ruling: that WiFi operators are not liable and also that they shouldn't be forced to password protect their access points. The ruling, unfortunately, says that WiFi operators can be compelled to password protect their networks. It's not all bad, in that the headline story is that WiFi operators, on their own, are not liable for actions done on the network, but that's completely undermined by the requirement to password protect it if a copyright holder asks them to. In today’s judgment, the Court holds, first of all, that making a Wi-Fi network available to the general public free of charge in order to draw the attention of potential customers to the goods and services of a shop constitutes an ‘information society service’ under the directive. Next, the Court confirms that, where the above three conditions are satisfied, a service provider such as Mr Mc Fadden, who providers access to a communication network, may not be held liable. Consequently, the copyright holder is not entitled to claim compensation on the ground that the network was used by third parties to infringe its rights. Since such a claim cannot be successful, the copyright holder is also precluded from claiming the reimbursement of the costs of giving formal notice or court costs incurred in relation to that claim. However, the directive does not preclude the copyright holder from seeking before a national authority or court to have such a service provider ordered to end, or prevent, any infringement of copyright committed by its customers. Lastly, the Court holds that an injunction ordering the internet connection to be secured by means of a password is capable of ensuring a balance between, on the one hand, the intellectual property rights of rightholders and, on the other hand, the freedom to conduct a business of access providers and the freedom of information of the network users. The Court notes, in particular, that such a measure is capable of deterring network users from infringing intellectual property rights. The details here are especially troubling. As legal experts are noting, this ruling basically says that the times when an injunction can be ordered for password protection, the reason is for the sake of identifying users: In McFadden the CJEU appears to have decided that password protection would be effective only if the user is required to provide identity details to the service provider so that the user cannot act anonymously. Now that should raise some very serious concerns about anonymity and privacy -- things that we thought the EU supported. Instead, the CJEU basically seems to be saying you have a right to anonymity in connecting to the internet up until the point a major copyright holder doesn't like it any more, and they can now force WiFi operators to lock up their WiFi and/or demand identification to use it. Yikes. This also punches a HUGE hole in the previous day's announcement by the EU Commission that there would be open WiFi across Europe. Under this new CJEU ruling, that may no longer be possible. It's fairly incredible how, between the European Court of Justice and the EU Commission, they seem so oddly confused about copyright and related issues that they seem to be messing absolutely everything up in just a few short weeks.Permalink | Comments | Email This Story

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Lauri Love, the British hacker the DOJ has been dying to get its hands on, has just been handed over to the US by his own government. The decision issued today [PDF] basically states that honoring extradition agreements is more important than any concerns issued about Love's health and well-being once handed over to US federal agents. Mr Love’s Article 8 rights are clearly engaged. In balancing the factors for and against extradition I am satisfied that the very strong counter-balancing factors required to find extradition would be disproportionate are not found in this case. Mr Love faces extremely serious charges for offences of computer hacking over a period of one year from October 2012 to October 2013. I accept Mr Love suffers from both physical and mental health issues but I have found the medical facilities in the United States prison estate on arrival and during any sentence if he is convicted available to him, are such that I can be satisfied his needs will be comprehensively met by the US authorities. I am satisfied Mr Love’s extradition would be compatible with his Convention rights and I send this case to the Secretary of State for her decision as to whether or not Mr Love should be extradited. Once in the US, authorities have promised to address Love's mental and physical health concerns by placing him in "segregated housing" while determining if he's capable of being housed in the general population. As anyone who's followed prosecutions of whistleblowers and hackers knows, "segregated housing" is just a colorful term for "solitary confinement" -- not generally known to improve the mental well-being of people who've already expressed suicidal thoughts. On top of a trip to solitary, Love will be facing charges from three jurisdictions related to the alleged hacking of multiple government/government contractor websites and databases. Mr Love is accused in three indictments in three districts as follows: (i) Southern District of New York – Mr Love faces two counts on Indictment, one of computer hacking (maximum sentence of 10 years imprisonment) and one of aggravated identity theft (maximum sentence of 2 years imprisonment to be imposed consecutively to the sentence for count 1). (ii) The New Jersey request details two counts on one indictment. One count is conspiracy to access a computer without authorisation and obtain information from a department or agency of the United States (maximum sentence of 5 years imprisonment) and one of accessing a computer without authorisation and obtaining information from a department or agency of the United States (maximum sentence of 5 years imprisonment). (iii) The Eastern District of Virginia request contains nine counts on an Indictment, count 1 – conspiracy to cause damage to a protected computer and to commit access device fraud (maximum sentence of 5 years imprisonment); counts 2 -7 – causing damage to a protected computer and aiding and abetting (maximum sentence of 5 years imprisonment); count 8 – access device fraud and aiding and abetting (maximum sentence of 10 years imprisonment) and count 9 – aggravated identity theft and aiding and abetting (maximum sentence of 2 years imprisonment). There's little to be gained by adding up the maximum possible jail sentence facing Love. Rest assured, if convicted, it will likely be over a decade. Consolidation of the cases and charges is likely, but more than one of the charges carry possible 10-year sentences. Meanwhile, back in the UK, Love has managed to escape being jailed for refusing to turn over passwords and encryption keys to law enforcement. UK investigators fought hard to force Love -- who they've never formally charged -- to crack open multiple seized devices for them. This attempt was shot down in May by a judge who viewed this as an end run around protections built into RIPA, the laws governing law enforcement's investigatory powers. The final decision on Love's extradition is in the hands of Elizabeth Truss, the recently-appointed Secretary of State for Justice. Truss' previous government work doesn't really provide much guidance on which side she'll come down on this, but her voting record tends to indicate she's more sympathetic to national security/law enforcement interests than those of her constituents. Considering the UK and US have a very cozy surveillance relationship, it stands to reason Truss will likely decide to appease the DOJ, rather than overturn the court's decision. Permalink | Comments | Email This Story

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Earlier this year, New York City undertook one of the biggest free city WiFi efforts ever conceived. Under the plan, an outfit by the name of LinkNYC is slated to install some 7,500 WiFi kiosks scattered around the five boroughs that will provide free gigabit WiFi (well, closer to 300 Mbps or so), free phone calls to anywhere in the country (via Vonage), as well as access to a device recharging station, 311, 911, 411 and city services (via an integrated Android tablet). The connectivity and services are supported by a rotating crop of ads displayed on the kiosks themselves. The only problem? As part of the initiative, the city and LinkNYC attached an Android-powered tablet that lets anyone browse the internet for as long as they wanted. This, as you might expect, has resulted in some people camping out for long periods of time actually using the free service. That includes, unsurprisingly, New York City's ample homeless population. As Motherboard notes in a report, after spending much of August tracking usage of the kiosks, a snapshot view of daily use doesn't make for shiny marketing fodder:"My small sample of Link users that Saturday afternoon suggests these kiosks are indeed mostly used by the city’s least privileged. Of the 15 people I saw using a Link, only two or three of them would be likely to appear on LinkNYC promotional materials (i.e., one well-dressed woman making a phone call, or one middle aged, casually-dressed tourist waiting for his phone to finish charging).Again, this shouldn't really be surprising, especially since the city has consistently claimed that one of its goals is to close the digital divide. Since June there has also been a lot of breathless hysteria about the fact that some of the homeless users have been using the tablets to watch porn. In response, LinkNYC began implementing internet filters that, as internet filters tend to do, didn't seem to work. Responding to public complaints, LinkNYC announced this week that it would be discontinuing tablet browsing functionality at the kiosks:"...Some users have been monopolizing the Link tablets and using them inappropriately, preventing others from being able to use them while frustrating the residents and businesses around them. The kiosks were never intended for anyone’s extended, personal use and we want to ensure that Links are accessible and a welcome addition to New York City neighborhoods.The announcement notes that the internet browsing will be disabled, but other services will still work:"Starting today, we will be removing web browsing on all Link tablets while we work with the City and community to explore potential solutions, like time limits. Other tablet features—free phone calls, maps, device charging, and access to 311 and 911—will continue to work as they did before, and nothing is changing about LinkNYC’s superfast Wi-Fi. As planned, we will continue to improve the Link experience and add new features for people to enjoy while they’re on the go."While countless news stories suggest that the move was primarily in response to overwhelming porn consumption, there's no real evidence that this was an epidemic of any real scale. While there have certainly been documented instances of public masterbation at the kiosks (this is NYC after all, and occasionally viewing a homeless person's gentials is not a new concept), LinkNYC has suggested that people camping out around the kiosks (sometimes bringing chairs, couches and crates with them) was the larger source of complaints by locals. The real problem appears to be that the service put the city's homeless population on stark display, making them more difficult for city residents to ignore. On one hand it's understandable that homeless populations camping around the kiosks isn't great "optics" or olfactory ambiance for the city and local business owners, but at the same time it's not clear what one expects to happen when you provide the city's 60,000 homeless residents with free access to technology they otherwise lack access to. LinkNYC says it's working with the city on a solution, and may restore public browsing at a later date with tougher filters and access limitations in place. Given the fact that filters historically don't work, it seems more likely that the free browsing will be gone for good.Permalink | Comments | Email This Story

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As you probably heard, the ACLU and other have launched a massive campaign asking President Obama to pardon Ed Snowden. You can check it out here and sign the petition. There have also been a bunch of high profile op-eds and endorsements from a wide variety of people -- from former intelligence officials to human rights groups and more. The campaign was obviously timed to coincide with the release of Oliver Stone's new movie, Snowden. Apparently also timed with the release of the movie, the House Intelligence Committee has released a "report" that they claim they spent two years writing, detailing why they believe Snowden is no whistleblower. They've released an unclassified three page "executive summary" that is, at best, laughable. Honestly, if this is the best that the House Intel Committee can put together to smear Snowden, they must have found nothing bad. I mean, it's the stupidest stuff: like that he once got into a dispute with his boss over some software updates at work and (*gasp*) emailed someone higher up the chain, for which he got reprimanded: If you can't read that, it says: Third, two weeks before Snowden began mass downloads of classified documents, he was reprimanded after engaging in a workplace spat with NSA managers. Snowden was repeatedly counseled by his managers regarding his behavior at work. For example, in June 2012, Snowden became involved in a fiery e-mail argument With a Supervisor about how computer updates should be managed. Snowden added an NSA senior executive several levels above the supervisor to the e-mail thread, an action that earned him a swift reprimand from his contracting officer for failing to follow the proper protocol for raising grievances through the chain of command. Two weeks later, Snowden began his mass downloads of classified information from NSA networks. Despite Snowden's later claim that the March 2013 congressional testimony of Director of National Intelligence James Clapper was a "breaking point" for him, these mass downloads predated Director Clapper's testimony by eight months. First of all, the inclusion of the email dispute is just... weird. I mean, people have email disputes with co-workers all the time. Is that really a sign that you're not a whistleblower, or that you're just "disgruntled?" If that's really the "dirt" that they dug up on Snowden after two years of research, they really must have nothing that actually sticks. Oh, and also, as Snowden himself notes, this all kinda works against their point, because it shows that trying to blow the whistle up the chain is... met with reprimands. @Snowden That doesn't say good things about going through "proper channels" at NSA. Not sure they understand how this hurts their case. — Edward Snowden (@Snowden) September 15, 2016 Of course, the point that they're really getting at is the second half of that paragraph -- where they claim that he began the downloads way before James Clapper's infamous lie to Senator Ron Wyden. But, again, Snowden points out that they're being totally misleading here (and it must upset the House Intelligence Committee to no end that Snowden is free and able to use Twitter to debunk their claims), because, as has been previously reported in great detail, Snowden was assigned to move a bunch of documents between systems. The "downloading" they're talking about was his job. @Snowden HEARTBEAT, which seems to be the source of their 1.5m number, was explicited authorized by two levels of my management. I built it. — Edward Snowden (@Snowden) September 15, 2016 In other words, yes, he touched 1.5 million documents. Because he was told to as a part of his job. It's been more than two years since James Clapper himself admitted that Snowden didn't actually take all of those. That's just the number he "touched" because his job was to move those documents to a different system. Snowden took a much smaller subset, and now they're claiming that him doing his job was him taking the docs. The report also trots out the usual "harm to national security." We've been hearing this ever since the first leak... and yet no one ever has any evidence to support this. It's the bogeyman argument. And yet, here it is again: If you can't read that, it says: First, Snowden caused tremendous damage to national security, and the vast majority of the documents he stole have nothing to do with programs impacting individual privacy interests-they instead pertain to military, defense, and intelligence programs of great interest to America's adversaries. A review of the materials Snowden compromised makes clear that he handed over secrets that protect American troops overseas and secrets that provide vital defenses against terrorists and nation-states. Some of Snowden's disclosures exacerbated and accelerated existing trends that diminished the IC's capabilities to collect against legitimate foreign intelligence targets, while others resulted in the loss of intelligence streams that had saved American lives. Snowden insists he has not shared the full cache of 1.5 million classified documents with anyone; however, in June 2016, the deputy chairman of the Russian parliament's defense and security committee publicly conceded that "Snowden did share intelligence" with his government. Additionally, although Snowden's professed objective may have been to inform the general public, the information he released is also available to Russian, Chinese, Iranian, and North Korean government intelligence services; any terrorist with Internet access; and many others who wish to do harm to the United States. The full scope of the damage inflicted by Snowden remains unknown. Over the past three years, the IC and the Department of Defense (DOD) have carried out separate reviews--with differing methodologies--of the damage Snowden caused. Out of an abundance of caution, DOD reviewed all 1.5 million documents Snowden removed. The IC, by contrast, has carried out a damage assessment for only a small subset of the documents. The Committee is concerned that the IC does not plan to assess the damage of the vast majority of documents Snowden removed. Nevertheless, even by a conservative estimate, the U.S. Government has spent hundreds of millions of dollars, and will eventually spend billions, to attempt to mitigate the damage Snowden caused. These dollars would have been better spent on combating America's adversaries in an increasingly dangerous world. Note that after a lot of hand-waving, the only actual damage they can even come close to quantifying is the amount of money the US government spent trying to close the barn doors -- i.e., investigate what Snowden had taken and make sure that others couldn't do the same. That's not Snowden's fault. That's very much blaming the messenger. Also, if the US government wasn't illegally spying on Americans, it wouldn't have been an issue. It seems worth noting that key point. And, again, the report continues to point to the 1.5 million number, despite the fact that it's already been debunked. Again, the reason Snowden moved 1.5 million docs was because that was part of his job -- that wasn't the amount taken. The reason that the Intelligence Community isn't investigating all of those docs is because it has said that Snowden didn't take all of them. Why is the House Intelligence Committee bitching about that? As for the Russian Parliament member claiming that Snowden shared secrets with Russia, Snowden himself notes that they're misquoting what was said, and that the guy had prefaced his statement by nothing that it was speculation on his part, rather than confirmed fact. You'd think that the House Intel Committee wouldn't go around trading in mere speculation. As for the claims that "the information he released is also available to Russian, Chinese, Iranian, and North Korean government intelligence services" is also pretty ridiculous. I mean, the documents that have been released (not all of them, and the ones that have been have included redactions) have been placed on the internet, where anyone can read them. The statement about the Russians, Chinese, Iranians, North Koreans and terrorists having access to them is basically the equivalent of "these people have the internet." Yeah, so? Next on the docket, the House Intel Committee claims that Snowden's not a whistleblower because he (1) didn't go through proper channels (2) he left the country and (3) the NSA surveillance program was all perfectly legal. If you can't read that, it says: Second, Snowden was not a whistleblower. Under the law, publicly revealing classified information does not qualify someone as a whistleblower. However, disclosing classified information that shows fraud, waste, abuse, or other illegal activity to the appropriate law enforcement or oversight personnel--including to Congress--does make someone a whistleblower and affords them with critical protections. Contrary to his public claims that he notified numerous NSA officials about what he believed to be illegal intelligence collection, the Committee found no evidence that Snowden took any official effort to express concerns about U.S. intelligence activities--legal, moral, or otherwise--to any oversight officials within the U.S. Government, despite numerous avenues for him to do so. Snowden was aware of these avenues. His only attempt to contact an NSA attorney revolved around a question about the legal precedence of executive orders, and his only contact to the Central Intelligence Agency (CIA) Inspector General (IG) revolved around his disagreements with his managers about Let's stop right there to respond to this load of nonsense. First of all, hiding behind the very technical, narrow legal definition of whistleblower is pretty ridiculous compared to the actual definition that most people use. Snowden revealed a program that involved mass surveillance on nearly all Americans, a program that the intelligence community had directly and officially denied existed. It was, in fact, a program that, from a plain reading of the law, should not exist, and the only way in which it did and could exist was if the government reinterpreted the law, in secret, to mean something completely different. That's pretty clearly whistleblowing. And the fact that the public has spoken out in support of him so much suggests that many people believe this as well. And that doesn't even mention the fact that after this Congress changed the law to further clarify what the NSA could actually do. In other words, Congress seems to agree that what Snowden did was in the public interest. Even former Attorney General Eric Holder has admitted as much. And, of course, the claims about "the proper channels" is ridiculous as well. We've written many, many times on what happens to individuals who go through the "proper channels." It often ends with them being put in jail on trumped up charges. Oh, and Snowden, as a contractor rather than gov't employee, had no whistleblower protections under the law anyway. Going through the "proper channels" gets you marked as a troublemaker, and that often leads to more scrutiny and questionable raids... and jail time. And, as if to confirm all this, the guy that Snowden could have reached out to as the "proper channel" had already mocked Snowden and attacked him, so it's not as if that would have been a useful route. The Committee tries to brush off this concern with the "proper channels" but fails in doing so: Despite Snowden's later public claim that he would have faced retribution for voicing concerns about intelligence activities, the Committee found that laws and regulations in effect at the time of Snowden,s actions afforded him protection. The Committee routinely receives disclosures from IC contractors pursuant to the Intelligence Community Whistleblower Protection Act of 1998 (IC WPA). If Snowden had been worried about possible retaliation for voicing concerns about NSA activities, he could have made a disclosure to the Committee. He did not. Nor did Snowden remain in the United States to face the legal consequences of his actions, contrary to the tradition of civil disobedience he professes to embrace. Instead, he fled to China and Russia, two countries whose governments place scant value on their citizens' privacy or civil liberties-and whose intelligence services aggressively collect information on both the United States and their own citizens. Again, this is wrong. The Whistleblower Act does not actually extend its protections to contractors, and given how the Committee is reacting to Snowden to this day, does anyone actually think they would have done anything if he had approached them -- other than maybe alerting top intel community officials that they had a troublemaker in their midst? As for the claim that Snowden didn't stay in the US to face the "legal consequences," again, is it any wonder why? He knew what had happened to people like Thomas Drake, who the feds tried to put in jail for 35 years because he had a (mistakenly) classified meeting agenda at his home -- a home that was only raided because Drake had blown the whistle on another program. He'd seen what happened to Chelsea Manning, held in solitary confinement for leaking documents to Wikileaks. He'd seen what happened to countless others. The very fact that Snowden is free today and able to tweet responses to this ridiculous smear campaign shows exactly why he didn't choose to stay in the US where they would have locked him up and thrown away the key. To gather the files he took with him when he left the country for Hong Kong, Snowden infringed on the privacy of thousands of govemment employees and contractors. He obtained his colleagues, security credentials through misleading means, abused his access as a systems administrator to search his co-workers, personal drives, and removed the personally identifiable information of thousands of IC employees and contractors. From Hong Kong he went to Russia, where he remains a guest of the Kremlin to this day. And yet, magically, none of that has ever become public. So, uh, it seems like maybe the major worries here were overblown. It is also not clear Snowden understood the numerous privacy protections that govern the activities of the IC. He failed basic annual training for NSA employees on Section 702 of the Foreign Intelligence Surveillance Act (FISA) and complained the training was rigged to be overly difficult. This training included explanations of the privacy protections related to the PRISM program that Snowden would later disclose. Now this seems to just be the Intelligence Committee scraping the bottom of the barrel again for anything to make Snowden look bad. Oooh, he failed the training program on PRISM. And, yet, that doesn't respond to the fact that there were all sorts of legitimate privacy concerns about PRISM and how it operates, and the program was kept entirely secret. From there, the Committee goes into full scale playground taunting of Snowden, saying he's a "serial fabricator" because he may have exaggerated a few points: If you can't read that, it says: Fourth, Snowden was, and remains, a serial exaggerator and fabricator. A close review of Snowden's official employment records and submissions reveals a pattem of intentional lying. He claimed to have left Army basic training because of broken legs when in fact he washed out because of shin splints. He claimed to have obtained a high school degree equivalent when in fact he never did. He claimed to have worked for the CIA as a "senior advisor," which was a gross exaggeration of his entry-level duties as a computer technician. He also doctored his performance evaluations and obtained new positions at NSA by exaggerating his resume and stealing the answers to an employment test. In May 2013, Snowden informed his supervisor that he would be out of the office to receive treatment for worsening epilepsy. In reality, he was on his way to Hong Kong with stolen secrets. So, yeah. I mean, considering how much "fabricating" and "exaggerating" the House Intel Committee does in this whole report, it's a bit weak to argue that him exaggerating his leg problems is somehow proof of being a "serial fabricator." And, I'm sure that none of the members of the House Intel Committee has ever been caught "exaggerating" or "fabricating" information in their quest to get elected, right? And, of course, Snowden claims they're mostly wrong about all of this anyway. The claim that he doctored a performance evaluation? Snowden notes that he actually reported a vulnerability. The claim I "doctored performance evaluations?" This one is amazing: I reported an XSS (hacking) vulnerability in CIA annual review system. — Edward Snowden (@Snowden) September 15, 2016 The shin splints v. broken legs? Army held me for weeks in a special unit for convalescence before separation. I left on crutches. They don't do that for "shin splints." — Edward Snowden (@Snowden) September 15, 2016 The claim that he never got his GED? Snowden hints that if that's what the Intel Committee is really saying, they should get ready to be embarrassed: @astepanovich That would be extremely unwise. — Edward Snowden (@Snowden) September 15, 2016 The fact that he lied about why he was taking time off? I mean, come on. They must really be stretching for something to include that as a "lie." It was a deliberate move as part of his already determined plan to blow the whistle on these programs, not evidence of a pattern of lying. In the end, the only proper way to read this report is in the context that Glenn Greenwald pointed out: if the House Intelligence Committee had done its oversight job of preventing mass surveillance on Americans, rather than acting as an enabler for the NSA, Snowden wouldn't have been a problem. The Committee's anger seems driven more by Snowden showing how complicit they were in failing to actually oversee the NSA: If you don't want leaks, don't build a secret, illegal system of mass surveillance and then hide it and lie about it to the public. — Glenn Greenwald (@ggreenwald) September 15, 2016 Of course, along with this report, the Intel Committee has also sent the White House a letter saying that it should not pardon Snowden, saying "Mr. Snowden is not a patriot. He is not a whistleblower. He is a criminal." It goes on to repeat many of the false claims from the report. I get the feeling that history will treat Ed Snowden much more kindly than it will treat the cowardly members of the House Intel Committee who are now trying (and failing) to cover up their own failures as overseers.Permalink | Comments | Email This Story

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Mishandling classified material can result in a variety of punishments, depending on who you are. If you're a presidential candidate, the routing of hundreds of sensitive documents through an unsecured, private email server might result in a few conversations with the FBI, but not in any criminal charges. If you're a retired general, routing classified material to your biographer/mistress might result in criminal charges, but not any time served. If you're a whistleblower taking your complaints to the press, you'll likely see some jail time to go along with your destroyed career. And if you're a Marine Corps officer trying to warn others of trouble headed their way, you're more likely to be treated like Jason Brezler than Hillary Clinton, Gen. David Petraeus, or even former CIA Director Leon Panetta. Brezler is facing dismissal from the Marine Corps for mishandling a classified document -- one containing information about an allegedly corrupt Afghan police chief who had already been kicked off a US base by Brezler himself. [T]he local police chief, Sarwar Jan, turned into a problem. "Sarwar Jan, he was a threat to not only the Afghans but our own Marines," Brezler says. The chief was maybe linked to the Taliban. He was also alleged to be a pedophile who preyed on local boys — something alarmingly common among Afghan warlords. Recently there's been a debate about whether U.S. forces should tolerate Afghan allies who keep kids at their barracks. Back in 2010, there was no policy. Brezler couldn't fire Sarwar Jan, but he could kick him off the base. "We put Sarwar Jan on the next helicopter. And, once he left, we could have probably had a parade the next day through the bazaar. The Afghans were absolutely elated," he says. After returning stateside, Brezler received an email from an officer located in Afghanistan informing him that Sarwar Jan was once again residing in the base Brezler had kicked him out of -- and had brought a group of underage boys with him. Brezler attached a classified report detailing the allegations against Jan and hit "Reply All." The allegations about Jan weren't all that unusual. The sexual and physical abuse of minors is considered standard operating procedure by many Afghans in powerful positions. Rampant sexual abuse of children has long been a problem in Afghanistan, particularly among armed commanders who dominate much of the rural landscape and can bully the population. The practice is called bacha bazi, literally “boy play,” and American soldiers and Marines have been instructed not to intervene — in some cases, not even when their Afghan allies have abused boys on military bases, according to interviews and court records. In some cases, Marines have been told to ignore the behavior. In other cases, they've been punished for trying to prevent it. Brezler's concerns about Jan's arrival at another base were never addressed. Instead, the Marines chose to go after him for sending a classified document to other Marines. Brezler even went through the proper channels, reporting himself for mishandling sensitive information. He was told it was just "minor spillage" -- something that happened occasionally but generally without serious repercussions. Less than three weeks after Brezler's warning went out (and was apparently ignored), a 17-year-old Afghan male who had been living in Jan's quarters stole a weapon and killed three unarmed Marines. When the Marine Corps resisted turning over information to the victims' families, Brezler sought the help of Rep. Peter King. King took this info to the media and that's when things got worse for Brezler. And that's when the U.S. Marine Corps got serious — about investigating Jason Brezler. "Almost a year had gone by from the time, he had moved on, the Marine Corps had moved on," says lawyer Mike Bowe. "A news story comes out that reveals that he's talking to Congressman King about these murders, and three days later he is sent to a Board of Inquiry to be kicked out of the Marine Corps." The inquiry was retaliation, Bowe says, for embarrassing the Marine Corps brass. He says there were hundreds of similar cases of "spillage" the same year, and only two were punished. A Pentagon inspector general's report concluded it was not retaliation. At this point, the Marine Corps is offering him an honorable discharge -- a "thanks, but no thanks" for his attempt to warn his fellow soldiers about the long list of allegations against police chief Sarwar Jan. Brezler sued for full reinstatement as a Marine and the discharge has been put on hold pending a possible jury trial later this year. There are a handful of disturbing aspects of the Marine Corps' dismissal of Brezler, not the least of which is its decision to ramp up its efforts to rid itself of him after it had been publicly embarrassed by a US congress member. It also highlights the absurdity -- and danger -- inherent to the military's weirdly-selective non-interventionist policy: one deployed by an outside force playing World Police within its borders (decidedly interventionist) that draws the line at preventing the sexual abuse of minors on its bases by local officials. The decision to go after the messenger -- one that self-reported his mishandling of sensitive information -- shows the government, by and large, cares more about protecting itself from embarrassment than solving its problems. Permalink | Comments | Email This Story

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Representative Jason Chaffetz, fresh off his bombshell report on the OPM hacking, is promising to drop another explosive report in the future. This one will deal with law enforcement's dirty little secret -- one that's not that much of a secret anymore. The Stingray, a controversial cellphone tracking device used by the U.S. government and law enforcement, will be the subject of a forthcoming investigation from the House Oversight Committee, according to Committee Chairman Jason Chaffetz (R-Utah). "You will be shocked at what the federal government is doing to collect your personal information," Chaffetz said on Wednesday morning. "And they can't keep it secure, that's the point." It's a good point, one fresh in the mind of millions thanks to the just-delivered OPM report. The government appears willing to take security seriously if it means doling out tax dollars to dozens of agencies with cyberstars in their eyes and crafting bad legislation, but not so much when it comes to actually ensuring its own backyard is locked down. Chaffetz was one of the legislators behind the 2015 attempt to turn the DOJ's Stingray guidance into law, laying down a warrant requirement for US law enforcement. Unfortunately, the bill went nowhere. Presumably, a thorough investigation into law enforcement use of this repurposed war tech might prompt more legislative cooperation in the future. Chaffetz has done little to endear himself to security and law enforcement agencies since his arrival on the Hill. In addition to the failed Stingray warrant bill, Chaffetz also partnered with Ron Wyden to attempt to add a warrant requirement for law enforcement GPS tracking -- something the Supreme Court almost addressed in its US v. Jones decision. He also made new friends with the Secret Service while grilling officials over an incident where drunken agents arrived on the scene of a "suspicious package" report in spectacular fashion, crashing the vehicle they were driving into a White House barricade. Almost as soon as the hearing had begun, Secret Service employees were accessing Chaffetz's personal info (generated by his attempt to join the Secret Service in 2003), hoping to find something embarrassing they could use to discredit him. This new report will further alienate law enforcement agencies and personnel, starting with the FBI -- which has acted as Stingray Overlord since the introduction of the equipment -- and trickling all the way down to the local level, where agencies have relied on secrecy, lies, and case dismissals to keep information about the cell phone-tracking devices from being made public. Permalink | Comments | Email This Story

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It's football season again, which means some significant portion of America is routinely spending some significant chunk of its weekends watching some significant portion of male college students give some significant portion of each other irreparable brain damage. It's an American thing, I suppose. Also, an American thing is the acquisition of overly broad trademarks that border on the laughable. Intersecting these two bastions of American pride is Boise State, with a recent NY Times article discussing how the school managed to trademark athletic fields that include grass that is blue, with attorneys working with the school suggesting that any non-green colored field might result in trademark action. For those not inclined towards watching college football, a quick piece of background. Several decades ago, the folks that run Boise State University didn't want to pay to resod their football field. So, instead, the school laid down blue turf in its stadium. Now real-life football players play on this: Oy, it looks like the field has been cleansed with the blood of a hundred thousand smurfs. And, admittedly, the pure ugly of the field of play has become something of an icon for Boise State, gaining it national attention it might otherwise not receive, which translates into a recruiting tool for the school to lure players to its team. The school became so enamored with this attention that it sought to trademark simply having a field of athletic play that is blue, and was successful. To do this, the school hired an attorney that previously specialized in music licensing, because of course. That attorney's name is Rachael Bickerton, who both acquired the trademarks in question and now goes about enforcing them. Her first priority was to register Boise State's trademarks, including the one for the blue turf. To do that, the staff had to prove to the USPTO that when consumers thought "blue field", they thought of Boise State. To make the University's case, Bickerton submitted articles, travel guides and marketing materials -- 141 pieces of evidence in all. The trademark office rejected the application in 2008, citing a "lack of distinctiveness", but approved the second attempt one year later after Bickerton argued that the previous year, Boise State had spent $2.2 million on advertising that singled out the field. Now, we could sit around and argue whether or not having a blue football field was a thing fit to be trademarked. Personally, considering the specific color the school used, I could buy an argument that fans that see the field do indeed think of Boise State. I certainly do. But the school expanded the trademark in 2010 to fields not just blue, but fields that are "non-green." And that's crazy. Bradlee Frazer, an IP attorney working with the school, has stated that any non-green athletic field carries with it the risk of confusion pertaining to Boise State. He can say that all he wants, but such a stance likely wouldn't survive a challenge from another school. But those challenges have never come, mostly because Boise State is quite liberal with freely licensing the ability to have non-green fields to other schools. Boise State approves most requests "as long as it doesn't prevent Boise State from getting the best students and the best student-athletes that we're looking for," Bickerton said. Those schools that are approved receive the licenses at no cost. The only stipulation is that they cannot in any way liken themselves to Boise State. So, to be fair, the school isn't behaving particularly badly as far as these trademark stories tend to go. Which doesn't change the fact that such an overly broad trademark on non-green athletic fields is pure crazy-pants. So if you're watching college football this weekend and see a colored football field, just know that even in your weekend escape, intellectual property law haunts you. Permalink | Comments | Email This Story

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We've written quite a lot for years about the massive problems with "corporate sovereignty" provisions in trade agreements -- so-called "investor state dispute settlement" (ISDS) provisions -- that allow companies to "sue" countries for regulations they feel are unfair. These aren't heard by courts, but rather by "tribunals" chosen by the companies and the countries. Some supporters of these provisions claim that there's really nothing wrong with them because they help encourage both investment in different countries and more stable and fair regulations. If that's the case, though, why are over 200 economics and law professors signing a letter to Congress telling them to reject any trade agreements with these provisions? Through ISDS, the federal government gives foreign investors – and foreign investors alone – the ability to bypass that robust, nuanced, and democratically responsive legal framework. Foreign investors are able to frame questions of domestic constitutional and administrative law as treaty claims, and take those claims to a panel of private international arbitrators, circumventing local, state or federal domestic administrative bodies and courts. Freed from fundamental rules of domestic procedural and substantive law that would have otherwise governed their lawsuits against the government, foreign corporations can succeed in lawsuits before ISDS tribunals even when domestic law would have clearly led to the rejection of those companies’ claims. Corporations are even able to re-litigate cases they have already lost in domestic courts. It is ISDS arbitrators, not domestic courts, who are ultimately able to determine the bounds of proper administrative, legislative, and judicial conduct. This system undermines the important roles of our domestic and democratic institutions, threatens domestic sovereignty, and weakens the rule of law. In addition to these fundamental flaws that arise from a parallel and privileged set of legal rights and recourse for foreign economic actors, there are various flaws in the way ISDS proceedings are meant to be conducted in the TPP. In short, ISDS lacks many of the basic protections and procedures of the justice system normally available in a court of law. There are no mechanisms for domestic citizens or entities affected by ISDS cases to intervene in or meaningfully participate in the disputes; there is no appeals process and therefore no way of addressing errors of law or fact made in arbitral decisions; and there is no oversight or accountability of the private lawyers who serve as arbitrators, many of whom rotate between being arbitrators and bringing cases for corporations against governments. Codes of judicial conduct that bind the domestic judiciary do not apply to arbitrators in ISDS cases. The letter appears to have been organized by famed law professor Laurence Tribe and famed economist Joseph Stiglitz -- as an update to a very similar letter they sent last year -- with many fewer signatories. Many of the people who signed are really well-respected (including some I consider friends), but both Tribe and Stiglitz are fairly well-known for where they come from on the political spectrum -- and it would have been nice to have found equal weight from other parts of the political spectrum to balance this letter out a bit. It's still a good letter, and one whose message I agree with, but I fear that many in Congress will just dismiss it as "another Tribe/Stiglitz letter." That's too bad, because it really is a good letter.Permalink | Comments | Email This Story

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