posted 11 days ago on techdirt
On Tuesday, Twitter sued the US government for the right to be more transparent about how many National Security Letters (NSLs) and FISA court orders it had received (even if the answer was zero). On Wednesday the appeal on last year's district court ruling saying that gag orders on NSLs were unconstitutional was heard in California, and the judges sounded quite skeptical of the government's argument. You can hear the ~1 hour hearing on the Court's website (it was supposed to livestream, but then didn't). The case involves a still unnamed service provider who challenged the gag order, represented by the EFF. While questions from judges during oral arguments can often be misleading in terms of where the court eventually lands, at a first pass, the judges certainly sounded fairly skeptical of the DOJ's extreme claims. The idea that it would be impossible for the DOJ/FBI to review the gag order on every NSL? Really? The judges certainly seemed to recognize the general problem with a gag order with no end, and how that could be a very serious restriction on free speech. The government did its usual song and dance about how if it doesn't have this gag order power, people are put in danger, but at least from the hearing, it sounded like the government was skeptical. Of course, now we have to keep waiting, to see what the panel decides. Hopefully it won't take all that long. Some of the judges certainly seemed to express concern about the length of time even this process has taken, so hopefully they will be more efficient in issuing a ruling. From there, it's likely that whoever loses may appeal (either for an en banc hearing by the entire 9th Circuit Appeals Court or to the Supreme Court). This process is still far from over, but it will be important to keep tabs on what happens in this case -- and it will likely impact Twitter's case, and other companies' attempts to be transparent about requests for information from the government.Permalink | Comments | Email This Story

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The government has filed another document in response to discovery requests in the Ross Ulbricht/Silk Road case. Again, it argues that there's no Fourth Amendment concerns here, so Ulbricht's legal team isn't entitled to receive any more information about how the FBI accessed the servers central to the government's case. Assistant US Attorney Serrin Turner, speaking for the DOJ, basically states that intelligence agencies can hack into foreign servers without obtaining a warrant. If Ulbricht can't successfully argue that his rights were violated, then he can't argue for the suppression of evidence, no matter how it was actually obtained. The government's arguments [pdf link] put Ulbricht in an uncomfortable position -- explain why he has an interest in these servers or stop challenging the government's submitted evidence. [T]he burden is on Ulbricht to allege facts that, if proven, would establish a violation of his Fourth Amendment rights. The Horowitz Declaration manifestly fails to satisfy that burden. As a threshold matter, the declaration does not establish that Ulbricht had a reasonable expectation of privacy in the SR Server, as required for him to have standing to move for its suppression in the first place. Indeed, a declaration from a member of Ulbricht’s legal team such as Mr. Horowitz would be insufficient for this purpose anyway. To establish standing, a defendant must submit an “‘affidavit from someone with personal knowledge demonstrating sufficient facts to show that he had a legally cognizable privacy interest in the searched premises at the time of the search...’” Ulbricht’s counsel would not have any personal knowledge of Ulbricht’s privacy interest in the SR Server; presumably, only Ulbricht would. Ulbricht’s assertion that he is not required to submit such an affidavit and that the issue of standing “must . . . be resolved through an evidentiary hearing,” (Reply Br. 18), is flatly wrong. Again, to merit a hearing, a defendant must first allege facts that, if proven at a hearing, would establish a violation of his personal Fourth Amendment rights – including facts sufficient to show the defendant had a protected privacy interest in the property searched. Without competently asserting such an interest, a defendant has no standing to bring a suppression motion at all, let alone demand a hearing on the motion. Basically: admit the servers are yours and we can start discussing your Fourth Amendment rights. This is the DOJ asking Ulbricht to do its work for it. These servers are only allegedly Ulbricht's at this point. Then the DOJ's lawyer moves on to say, "Actually, we don't really care what you do or don't assert. You have no Fourth Amendment rights to anything kept in that location." Even if Ulbricht were to demonstrate that he has standing, which he plainly has failed to do, the Horowitz Declaration still would not warrant a hearing because it fails to allege facts that, if proven, would establish a violation of Ulbricht’s Fourth Amendment rights. The Horowitz Declaration nowhere alleges that the SR Server was either located or searched in a manner that violated the Fourth Amendment. It merely critiques certain aspects of the Tarbell Declaration concerning how the SR Server was located. The Horowitz Declaration fails to allege any alternative explanation of how the SR Server was located that, if proven, would establish that Ulbricht’s Fourth Amendment rights were somehow violated. Turner dismisses claims that the NSA was involved or that illegal wiretaps were used, simply stating that the government would have turned over the applicable evidence if these accusations were true. (Which is highly doubtful -- especially in the NSA's case -- but theoretically true.) But then he goes on to say that even if hacking were involved, it simply doesn't matter. In any event, even if the FBI had somehow “hacked” into the SR Server in order to identify its IP address, such an investigative measure would not have run afoul of the Fourth Amendment. Because the SR Server was located outside the United States, the Fourth Amendment would not have required a warrant to search the server, whether for its IP address or otherwise. There's the message the DOJ is sending, at least in this case: if anything of yours resides in a foreign country, all protections are waived. All the government needs is to prove is that its search was "reasonable" and prompted by "legitimate governmental interests" -- not exactly the high bar the DOJ presents it as. Nothing is off-limits anywhere outside of this country. If the NSA hasn't already hoovered it up, the FBI's coming through the back door -- not exactly heartening news for citizens whose everyday lives heavily with extraterritorial entities like Internet services and cloud storage. Permalink | Comments | Email This Story

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In case you thought the stream of complaints from former and current Comcast customers and employees had ceased, they haven't. With all the fallout surrounding several customer service flops, you'd think that the company would be particularly on its toes in terms of building up good will and avoiding more such stories. The latest story, however, is quite a doozy: it is alleged that Comcast contacted a complaining subscriber's place of business, which resulted in him being fired. Let's get the service issues out of the way first. Over the course of a year, a man named Conal had had near-constant issues with his Comcast service: everything from being charged for hardware he'd never ordered, sent hardware he never wanted, not getting bills because Comcast misspelled his last name, service visits that failed to activate set-top boxes, and increases in pricing. He attempted to work with Comcast's customer service, at one point asking to cancel service, but instead being sold on free upgrades to keep his business (AKA, the Comcast customer service MO). Eventually, fed up, he returned all the equipment that had actually been delivered to him and, because he is an accountant, prepared a spreadsheet with all the incorrect charges and service issues. Instead of rectifying the charges, Comcast immediately sent his account to collections, despite the fact that the charges weren't past due. When customer service failed to address any of the above, he decided to go above them entirely and called the office of Comcast's Controller. After getting a call back from another customer service rep instead, he called the Controller's office again. During this call, he says that he mentioned that Comcast’s billing and accounting issues should probably be investigated by the Public Company Accounting Oversight Board (PCAOB), a private-sector oversight operation. This ultimately led to two service calls where no one ever showed up and no explanations were given. But something did happen. Just not anything good. That not good action by Comcast was for someone to put a call into a partner at Conal's accounting firm. The Comcast employee suggested that Conal had name-dropped the accounting firm as a way to get better service, since the accounting firm had done some minor work for Comcast in the past. This led to the company investigating the situation for ethical violations by Conal and ultimately firing him due to, according to his exit interview, a summary of his communications with Comcast provided directly by Comcast. Conal was never allowed to see the summary, nor were his requests for recorded conversations ever honored. Comcast even acknowledges calling the employer. In response to a letter from Conal’s lawyer — he has not filed a lawsuit, but it’s not out of the question — Comcast’s Senior Deputy General Counsel admits that the company did contact Conal’s employer but says that Conal “is not in a position to complain that the firm came to learn” about his dispute with Comcast. Well, okay then. Look, this is a one-sided report form a clearly-jilted ex-customer of Comcast's, so it might be quite easy to dismiss it as unreliable. And, hey, there's a chance we're not getting the whole story here. On the other hand: Comcast. The way the company has conducted business, particularly over the past few years, lends itself to being criticized and to the assumption that these kinds of stories are more true than false. Does anyone really believe the company is incapable of doing exactly as Conal accuses? I sure don't, because I've been paying attention to the Comcast stories we've written about in the past. And the company's tone-deaf responses to these issues don't help either. We reached out to Comcast to ask whether it’s company policy to contact customers’ employers. No one answered that question, but a rep for Comcast did give a brief statement. “Our customers deserve the best experience every time they interact with us,” reads the statement. Comcast says it has previously apologized to Conal, but adds “we will review his lawyer’s letter and respond as quickly as possible.” Yawn. Thanks Comcast. I'm sure we'll be seeing you again in a future post. Finally, after the story started to go viral, Comcast put up a public apology blog post: What happened with Mr. O’Rourke's service is completely unacceptable. Despite our attempts to address Mr. O’Rourke’s issues, we simply dropped the ball and did not make things right. Mr. O’Rourke deserves another apology from us and we’re making this one publicly. We also want to clarify that nobody at Comcast asked for him to be fired. We’re also determined to get to the bottom of exactly what happened with his service, figure out what went wrong at every point along the way, and fix any underlying issues This is from Comcast's brand spanking new VP of Customer Experience. Perhaps the title they should have given him is Chief Apologizer. Permalink | Comments | Email This Story

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Back in February, we wrote about the European Union office of Ombudsman, whose job is to hold the EU administration to account, telling the European Parliament to try harder in its efforts to bring some transparency to the TAFTA/TTIP negotiations. A few months later, the Ombudsman took on the Council of the European Union and the European Commission, urging them to publish more TTIP documents: The European Ombudsman, Emily O'Reilly, has called on the Council of the European Union to publish the EU negotiating directives for the on-going Transatlantic Trade and Investment Partnership (TTIP) negotiations with the US. She has also proposed to the European Commission a range of practical measures to enable timely public access to TTIP documents, and to details of meetings with stakeholders. She has opened investigations involving both institutions. Emily O'Reilly explained: "The EU institutions have made a considerable effort to promote transparency and public participation concerning TTIP. I agree that not all negotiating documents can be published at this stage, there needs to be room to negotiate. However, concerns have been raised about key documents not being disclosed, about delays, and about the alleged granting of privileged access to TTIP documents to certain stakeholders. Given the significant public interest and the potential impact of TTIP on the lives of citizens, I am urging both these EU institutions to step up their proactive transparency policy." Now she's at it again, calling out the European Commission for refusing to share some requested documents relating to GCHQ spying. Here's the background, as explained by the Ombudsman's draft recommendations for the case: On 25 June 2013, the complainant, a German journalist, asked the Commission for access to documents in its possession in connection with the surveillance of the internet by UK state agencies (mainly the intelligence service 'Government Communications Headquarters', otherwise known as 'GCHQ'), in accordance with EU rules on access to documents. It's a fairly involved story, well explained by the Ombudsman in her recommendation. One element concerns a letter written by the UK Foreign Secretary. Here's what happened: The Commission's position is, in essence, that disclosure could negatively impact on the atmosphere of confidence between itself and the Member state concerned, as the EU courts acknowledged in the Petrie and Technische Glaswerke cases. However, the Commission itself admitted that the Member State concerned, that is to say, the United Kingdom, agreed to the disclosure of the said letter. In these circumstances, the Ombudsman is at a loss to understand how the disclosure of this letter could have the negative consequences to which the Commission has referred. In the Ombudsman's view, it is thus clear that the Commission cannot invoke the above-mentioned general presumption in order to refuse to grant access to this letter. That is, the Commission persisted in claiming that releasing the letter in question would affect the relations with the UK, even though the UK had said that it wouldn't. Here, the Ombudsman rightly calls out the ridiculous position that the Commission has taken. Perhaps more important for the future is the second element of her recommendations: The Commission should grant access to all the other documents requested by the complainant concerning the mass surveillance of the internet by UK state agencies, or properly justify why, in its view, disclosure has to be refused. That's a fine slap on the wrist for the Commission, which is being told to follow the rules here -- either by releasing the documents, or by giving a proper reason why not. The details of the case don't really matter; what's important is that O'Reilly is emerging as a powerful force for transparency within the European Union, seriously trying to hold the powerful to account. As one of the few people daring to do that, she deserves the thanks of not just the European public but also of all those elsewhere affected by EU policies. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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In January, we wrote about Dow Jones suing Ransquawk, a UK-based service that sends out news alerts to clients. Dow Jones used the antiquated and obsolete concept of "hot news" misappropriation, since there was no actual copyright claim to be made. For years, we've discussed the problematic nature of the hot news doctrine, which some news companies just can't let go of using. In May, we noted that Ransquawk basically ignored the legal process (though it had publicly commented on the lawsuit), leading to a default judgment against Ransquawk. That's what happens when you don't show up in court. This week, the judge officially awarded Dow Jones $5 million in the case, which is again fairly meaningless. In theory, Dow Jones can go after Ransquawk for the money, but it doesn't appear that it has any US-based assets to attack. While some who don't follow the details and don't understand the nature of a default judgment may make a bigger deal of this, the ruling is kind of meaningless since there was no actual adversarial process here. But, really, the bigger issue is that hot news is just a concept that needs to go away. In an age of social media sharing, retweeting, forwarding, reposting, etc., the idea that someone can claim some sort of exclusive ownership over "breaking" news is just silly and pointless. If your entire value is wrapped up in being a few minutes ahead of the competition, and you can't stand someone repeating the news that you were still first in getting out, you've got other, much more serious problems with your business model.Permalink | Comments | Email This Story

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Organizational behavior can be a complex subject, and the fruits of research on the topic can range from curious phenomenon like the Hawthorne Effect to abolishing stack ranking (or instituting stack ranking). If you're interesting in trying to avoid becoming a pointy-haired boss, you can brush up on some HR experiments and check out these links. What's it like working at a company where everyone's salary is known to everyone else at the company? Apparently, it can lead to some difficult discussions when employees change roles or take on new responsibilities, but it's not as crazy a policy as it might sound. [url] The annual performance review may not be as effective as encouraging managers to have more frequent "check-ins" for more informal coaching and feedback. Adobe seems to be experimenting with this strategy, but replacing a formal system with an informal system may simply hide the problems behind closed-door discussions. [url] There are lots of pitfalls to managing a new venture at a large company. Far more than six mistakes, but careless staffing and picking the wrong metrics to assess performance should definitely be on the short list of things to avoid. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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Last month, Rep. Anna Eshoo warned the FCC to be careful in coming up with its new net neutrality/open internet rules, and to make sure that its new rules didn't just end up back in court: Rep. Anna Eshoo (Calif.), the top Democrat on the House Energy and Commerce subcommittee on Technology, seemed to warn the Federal Communications Commission (FCC) on Thursday against making a move that could land it back in a courtroom for years. “We’ve been caught on the ropes for a long time,” she said during an event at the Hudson Institute. “I think a lot of time has been wasted. At this stage of the game ... ten years or more in the 21st century is too long on one thing,” she added. And while Eshoo has been supportive of stronger net neutrality rules by the FCC, the big broadband players who are against such rules have regularly used this same argument against net neutrality rules, arguing that if the FCC decides to reclassify under Title II, that it will mean "years in court" as the telcos fight over this. But that's ridiculous because of one simple fact: Whatever rules are put in place, it will lead to a years-long legal fight. That was a point that we made in our public comments on the proposed rules, and it's about the only thing a bunch of lawyers agreed on at an FCC roundtable this week. Everyone disagreed on what the best solution was, but everyone agreed that any solution will end up in court. The big broadband guys have been pretending that only reclassification will end up in court, with Comcast and AT&T claiming (somewhat disingenuously) that they'd be fine with proposed rules under Section 706. However, Verizon was a bit less enthusiastic, arguing that no new rules are needed at all, and implying, strongly, that it might challenge basically any new rule. And this would not be unprecedented. After all, the 2010 open internet rules were basically written in part by Verizon, and then Verizon challenged them anyway (and won). This is partly why stories recently appeared about how ISPs are now angry at Verizon because challenging those (very, very weak) rules and winning may lead to much stricter rules. But the simple fact remains that any rules are going to lead to lawsuits. And, given that, any claim that the FCC needs to put in place one particular solution to avoid lawsuits is misleading. No matter what rules are put in place, there will be legal uncertainty for the next few years. If anything, that suggests that the FCC shouldn't consider "which rules will avoid being dragged to court," but rather it should take that question off the table. Instead, the FCC should focus on "what's the right thing to do."Permalink | Comments | Email This Story

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We've heard complaints that warrant requirements for searches are an obstacle to efficient crime fighting. Here's a timeline of an incident that led to the death of a homeowner during a SWAT team raid in search of drugs it never found. (via PoliceMisconduct.net) Late Sept. 22nd/early A.M. Sept. 23rd: David and Teresa Hooks' home was burglarized. Among the items stolen was their SUV. Sept. 23rd, 3:45 pm: After a brief investigation, the Laurens County Sheriff's Dept. issues an arrest warrant for suspect Rodney Garrett. Sept. 24th, 3:45 pm: 24 hours later, Garrett is in police custody, turning himself in after becoming "fearful for his life" when he realized a bag he stole from the Hooks' home contained crystal meth. He confessed to the burglary, vehicle theft and "other crimes." (It must be noted that this version of events comes from the warrant application. Hooks' attorney's statement merely says Garrett was "taken into custody.") Sept. 24th, 9:56 pm: Six hours, later the Laurens County "drug task force" has its warrant application for a search of Hooks' house signed by Judge Snell, based almost solely on the statements made by an admitted felon in their custody. From a statement by the Hooks' attorney, Mitch Shook: The facts submitted to Deputy Magistrate Snell to convince her that probable cause existed to issue the warrant consisted of the statement by Rodney Garrett a confessed burglar, thief, and a meth addict who was under the influence at the time of his arrest that the approximately 20 grams of methamphetamine, a digital scale, and 2 firearms found on him at the time of arrest had been stolen by him out of another vehicle at the Hooks home. The warrant application also lists an investigation from 2009 as more "probable cause." In the warrant application, Laurens investigator Chris Brewer wrote that he knew Hooks and his home address from a previous investigation. Brewer said a suspect claimed he had been supplying "multiple ounces" of methamphetamine to Hooks, who re-sold it. Shook says that investigation was done in 2009. Neither Shook or the Sheriff's department stated the outcome of that investigation. The timeline continues. One hour later -- at 10:55 PM -- Hooks' home is raided and David Hooks is shot dead. Here's the police version: The Laurens County Sheriff's office says Hooks was shot after he got out a firearm and started showing aggression. Here's his wife's version: He says Teresa Hooks, David's wife, looked outside and saw people with hoods during the evening of the drug search. He says she woke her husband up, thinking the burglars were back. He says Hooks then armed himself. Which seems plausible. Less than 48 hours had passed and Hooks would have had no idea he was on the receiving end of a drug task force "investigation." The word "investigation" receives the scariest of scare quotes, considering it mostly consisted of a multiple felon trying to explain away the gun, scale and meth in his possession. If the suspect had claimed he didn't rob Hooks' house, the police wouldn't have believed him. But when this same suspect starts blabbering about finding meth during his robbery, the cops are all ears, as though he were Abraham Lincoln himself, swearing on a stack of Bibles. How do we know all of this is bullshit? Because the police spent almost as much time searching Hooks' house -- nearly two days -- as it did between the point Hooks' house was invaded the first time (by confessed burglar Rodney Garrett) and the second time (by the SWAT team). [A]fter taking over the scene at around 11:55 p.m. on the 24th of September the GBI conducted a thorough search of the property that lasted until approximately 8:00 p.m. Friday, September 26th. That search of some 44 hours conducted by numerous agents with the GBI resulted in not one item of contraband being found! This has been confirmed to the family by the GBI and is evidenced by the return of the original search warrant which was finally filed in court on September 29th and indicates that nothing was seized pursuant to the search warrant. In between these two periods of 40+ hours was a flashpoint: the raid itself. The task force shot Hooks dead in his own home, pursuing the self-serving pipe dreams of a meth addict. The SWAT team broke down the back door and fired "no less than 16 shots" at David Hooks, some blindly through an adjacent wall. Hooks had every right to pick up his weapon and investigate this second home invasion. But in doing so, he gave every raiding officer all the justification needed to shoot first -- and shoot often. He's too dead to be charged with forcing law enforcement weapons to discharge (because they fire themselves so often in official police statements), and he died as the result of a speedy judge-jury-executioner process that hinged on the arbitrary credulity of the Sheriff's Department and its drug task force. To call this willing suspension of disbelief an "investigation" is to strip the word of all meaning. (And beat it. And send it naked and bruised into the harsh winter, etc.) A late-night raid has all sort of deadly implications that could have been avoided by an actual investigation. Now, the department has blood on its hands and a lawyer on its trail -- all because a burglar told some law enforcement officers whatever came to mind during his interrogation. Permalink | Comments | Email This Story

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Asset forfeiture is back in the news again. No sooner had it been recommended that Canadian visitors to the US do everything they can to avoid interactions with law enforcement officers (i.e, drive super-carefully, don't consent to searches, avoid long conversations with officers by continually asking if you're free to go, etc.) in order to prevent any large amounts of cash being seized, then an incident occurs that throws all that semi-useful advice out the window. The Des Moines Register highlights an Iowa forfeiture case, the subject of a federal lawsuit filed this week, in which state troopers took $100,000 in winnings from two California poker players traveling through the state on their way back from a World Series of Poker event in Joliet, Illinois. Driving carefully and obeying traffic laws? Mostly worthless. More than 10 minutes after he began following the car, [State Trooper Justin] Simmons initiated a traffic stop, claiming Newmerzhycky failed to signal while passing a black SUV. However, attorneys have now argued that a dash camera video taken from Simmons' patrol cruiser — which was several car lengths behind the Altima — shows Newmerzhycky using his turn signal, contrary to the troopers' report. Don't just take the attorneys' word for it. Go view the video yourself at the Des Moines Register website (where it will "conveniently" AUTOPLAY). Around the 30-second mark, you can clearly see the left-hand turn signal being used. Bad news is: the courts pretty much don't care whether or not any infraction actually occurred, as long as an officer claims it happened, as Reason's Jacob Sullum points out: In the absence of such contrary evidence, cops are free to invent minor traffic infractions to justify a stop they want to conduct for other reasons. Although it does not condone such prevarication, the Supreme Court has said any valid legal reason makes a stop constitutional, even if it's a pretext for a more ambitious investigation. In this case, there's "contradictory evidence," but all that really means is a person subjected to this is facing a long, expensive legal battle to reclaim his or her funds. Iowan "interdiction teams" have made the most of this loophole -- as well as a civil asset forfeiture program that has netted local law enforcement nearly $7 million over the last three years -- targeting non-Iowan drivers 86% of the time. As for avoiding long conversations with law enforcement by pressing the "am I free to go?" question… that didn't exactly work either. The two gamblers nearly got away with leaving with their legally-obtained funds, but the trooper extended the detainment by asking for favors. All he wanted to do was "ask a couple of questions." And bring in a drug dog. John Newmer­zhycky (who I'll be referring to by his first name should the need arise) asks if he can decline this extra attention. The officer agrees he can, but then asserts that John seems too "nervous." Who wouldn't be, knowing that law enforcement officers aren't generally inclined to believe the cash stashed in your rented vehicle was legally obtained? In fact, who could possibly avoid triggering any of these signs of suspicion, which are presented in drug interdiction training as indicators of guilt? From the federal lawsuit [pdf link]: Defendant Desert Snow and Joe David’s training taught Trooper Simmons that completely innocent behaviors were indicators of criminal activity, including: Dark window tinting Air fresheners or their smell Trash littering a vehicle An inconsistent or unlikely travel story A vehicle on a long trip that is clean or lacks baggage A profusion of energy drinks A driver who is too talkative, or too quiet Signs of nervousness, such as sweating, swallowing or redness of face Designer apparel or other clothing that seems inappropriate Multiple cellphones The list of contradictions is all the justification interdiction officers need to turn baseless traffic stops into full-blown search-and-seizures. Talk too much or too little while standing outside your too clean or too dirty vehicle and you too could be relieved of your cash, electronics -- even the vehicle itself. Shortly thereafter, the drug dog arrived and John gave the officers permission to search the vehicle, performing the alert everyone expected to happen, albeit off-camera. (It would have been captured on camera had Officer Simmons not switched his off upon his arrival at the scene.) The officers opened the trunk and found the $100,000 in cash and the one thing it needed to justify taking it all: a grinder with bits of marijuana in it. This minor paraphernalia charge was the only charge brought against the two men. Because John had previously denied the vehicle held "large amounts of cash" during the trooper's roadside fishing expedition, it was presumed that the grinder was simply a small part of a much larger drug operation. And, to add the last little dig at the two men whose $100,000 they had seized, an interdiction agent called in a tip that resulted in police searching both men's residences in California. Marijuana was found in their homes, but it was for legal, medicinal purposes. Felony charges were briefly pursued but were dropped once the California prosecutors viewed the traffic stop video. But these two didn't give up. They fought back, finally forcing the state to return $90,000 (apparently there's some sort of surcharge/skim that automatically comes out of "forfeited" funds), one-third of which went directly to reimbursing their lawyers for their efforts. Now, they're hoping to take a bit more back from the state via a lawsuit. John claims to have lost his home and his business due to the expenses and stress incurred as a result of this battle. The other plaintiff, William Davis, said the loss of funds prevented him from entering other tournaments -- something he does for a living. He was also kicked out of his apartment by his landlord, who presumed that a search by police officers was actually an indicator of criminal activity, which is (like anywhere) a violation of lease conditions. In addition, the searches by Humboldt County (CA) officers triggered the freezing of both men's bank accounts. Despite having charges dropped by the local prosecutor and despite having the money returned to them by the state of Iowa, these accounts remain frozen to this day. So, not only did Iowan law enforcement lift $100,000 from these men, they also effectively made them jobless and homeless. Civil asset forfeiture affects much more than your cash on hand. It can destroy your life. And all many officers need to start this ball rolling is a contradictory checklist and the presence of cash or drug paraphernalia. At that point, you may only be a suddenly luckless poker player just 'passing through,' but in the eyes of interdiction teams, you may as well be Pablo Escobar himself. 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Rightscorp, the supposed new face in copyright enforcement, is currently trying to shake down alleged infringers for $20/infringement, using smaller ISPs (or those not signed up for the Six Strikes program) as middlemen for its small-time settlement services. Rightscorp issues scary-looking settlement letters to internet subscribers, informing them that they have been caught torrenting movie or music files and giving them a chance to pay for their (allegedly) illicitly-obtained goods through its website. Each settlement letter (forwarded from the ISP to the customer) contains a unique link to a $20 settlement offer, which can be paid online. Techdirt reader Andrew Jenson informs us that Rightscorp's "secure" settlement site isn't all that secure. Rightscorp posts variables using hidden form elements rather than sessions, cookies, or something similar. This sort of lax security policy could lead to someone easily gaining access to and having a field day with the Rightscorp database which contains confidential and personal information. Rightscorp lets Google index secure pages for anyone to find. Simply Google “rightscorp miramax” and you will find the following indexed. https://secure.digitalrightscorp.com/settle/TC-2f9d25d6-a153-4f03-a774-f9490bac66b4 If anyone's posted a link from a settlement letter on the web, anyone else can access it. Down at the bottom of the form, you'll see some more false assurances about your data. There's a pretty little picture of a lock by the fields for your credit card info, but it doesn't link anywhere or signify anything. In fact, Chrome has to block content from the non-secure Digital Rights Corp. website (there are links back to the corporate website all over the "secure" site) in order to call the site "secure." Loading this script kills the security. Verified here by "Inspect element." Jenson notes that Rightscorp uses a "cheap GoDaddy SSL certificate with no extended validation," not exactly the sort of thing you want to hear when being asked for credit card information. Jenson adds: Imagine if someones personal details had been entered. They would be open for the world to see. You don't have to imagine it. It's acutally happening. While digging around for URLs to verify Johnson's claims, I soon discovered that if someone has actually paid a settlement fee to Rightscorp, it allows the settlement receipt, along with the subscriber's name and address, to sit there openly available to anyone who comes looking. I found four different settlements involving four different people simply by searching for publicly-posted settlement URLs using "https://secure.rightscorp.com/settle" as the search term. Some results linked to pending settlement offers but others led directly to the terms of paid settlements, which included the name and address of the accused infringer. I informed Rightscorp of this security issue, giving the company a chance to fix this before we published. I received a response from Robert Steele, the president of the company, stating: The name and address at that URL will be redacted in about 15 minutes. Thank you for bringing this to our attention. That Rightscorp responded to an issue within an hour of it being raised is a good sign. Unfortunately, Steele and his IT team seemed to have missed the point of my first email. I sent an email back re-informing him that it's not a single URL that's affected. It's every single URL it's issued to alleged infringers. Any one of these can be accessed by anybody. I received this from Robert Steele about a half hour later: They have all been redacted. There are no live links providing this information. Thank you again for bringing this to our attention. Our system is not providing any names and addresses to the public as you now assert. So, this leak has been fixed (or at least, redacted -- the pages are still publicly available). And anyone can still access open settlements, which still makes it appear as though Rightscorp cares little for the privacy and security of the internet users it's targeting. Remember, this is a company with grand designs on controlling the internet activities of repeat infringers (via browser hijacking) who aren't swayed by its $20/per file offers. It also appears to be bullying smaller ISPs into handing over user data, using a supposed "loophole" in the DMCA to send tons of subpoenas without actually filing lawsuits. This is the same company that claims to have a revolutionary new way to track repeat infringers, even across multiple IP addresses. But for all of its supposed technical prowess and "revolutionary" shakedown techniques, it seemingly can't be bothered to provide actual security for settlement payments or subscriber data. The worst part is that it's those who have paid Rightscorp that were being protected the least. Their names and addresses were publicly available and linked to infringing activity. Just because Rightscorp managed to convert IP addresses into subscribers by abusing subpoenas and bullying ISPs doesn't mean it can simply leave that information laying around in the open. Maybe it felt those subscribers deserved to be named and shamed. Maybe it just didn't care as long as there was an easy way for infringers to pay up (direct link, accessible by anyone). Or maybe it just half-assed together its payment processing as cheaply as it could in order to maintain a healthier profit margin. Either way, it's more evidence that Rightscorp runs a shoddy (and shady) business, one whose success relies greatly on the ignorance of others.Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
The "Washington Legal Foundation" claims to be a legal shop filing lawsuits to protect "free enterprise" and to fight needless government regulation. In the past, the organization has been closely associated with funding from Big Tobacco, and if you look at it's recent litigation efforts, it's almost all in support of Big Pharma and Big Copyright. They helped out on the Aereo case, for example, and sided with Monsanto in its (victorious) case arguing that planting your own seeds can be infringing patents. For a group that claims to be about getting government off your back and supporting free enterprise, it seems somewhat ironic that it appears to so strongly support centralized, government-granted monopolies in the form of copyrights and patents. Either way, WLF's Glenn Lammi recently wrote a piece for Forbes (which, these days, lets basically anyone with an agenda publish), arguing that cyberlockers are evil because they're all about raking in the big bucks from infringement. The article is sloppy and not particularly well argued, in part because it relies heavily on two recent studies (funded by the industry) that have already been debunked. Lammi ignores that part, because it doesn't fit with his narrative. You know it's going to be a bad argument when it trots out this classic trope: “Information wants to be free” is a standard rejoinder to criticism of online entertainment piracy Except, no, it's not the standard rejoinder. These days, it's mainly used as a strawman by people like Lammi who don't want to deal with actual arguments that are being made. Lammi goes on: Such a sentiment may motivate some copyright thieves, but profit, not ideology, drives the proprietors of “ cyberlockers” whose business is trafficking pirated entertainment content. A recent study by the Digital Citizens Alliance (DCA)—”Behind the Cyberlocker Door“— has laid bare that reality. These websites generate profit margins that lawful businesses can only dream of, and they do so on the backs of countless workers in the music, movie, and television industries. Of course, as we've noted for years, if cyberlockers were really so profitable, then shouldn't the response from the entertainment industry be to offer up such services themselves? Lammi, of course, leaves out that the DCA study was commissioned by the industry and that the methodology was so ridiculous that at least one company branded a "piracy haven" has already demanded a retraction of the report and an apology, claiming the report is defamatory. The methodology is clearly bogus. For example, it called Mega.co.nz a piracy haven because the researchers apparently have no idea how it works: For Mega the researchers looked at 500 files that were shared online. However, the overwhelming majority of Mega’s files, which number more than 500,000,000, are never shared in public. Unlike some other sites in the report, Mega is a rather traditional cloud hosting provider that’s frequently used for personal backup, through its desktop client or mobile apps for example. The files that are shared in public are the exception here, probably less than one percent of the total. And yet, DCA's bogus methodology insisted that the majority of files on Mega were infringing. Because they don't even understand how it works. That does not give confidence in the study -- or the fact that WLF is relying on it. Then there's the second study: A recent KPMG study found that nearly all of the most popular TV shows and movies of the past three years (which are, not surprisingly, also the most pirated), are available through video-on-demand services. Except, as discussed, that's totally misleading. What the study found was that all of those works were available on at least one of 34 different services. Of course, if you don't use all of those services, you might not be in luck. In fact, buried deep in the report was the more telling stat that if you used the most popular movie/TV service out there, Netflix, less than 20% are available. So, uh, no, contrary to Lammi's attempt to argue that the industry has done it's part, it has not. A vigorous debate has developed in recent years over numerous aspects of copyright protection. There can be little doubt, however, that cyberlockers are profitably inducing copyright infringement on a massive scale. The discussion should thus not be over whether infringement is occurring, but what measures legitimate businesses can take to deter and stop it. Actually, there can be plenty of doubt over that claim. Many of those sites rely on advertising, and anyone in the ad business knows that online ad rates are dropping precipitously, and many ad systems rely on clickthroughs. The folks surfing cyberlockers for free movies aren't exactly the kind of folks who click on ads. In fact, a lot of them likely use ad blockers. Yes, some cyberlockers make money from membership fees, but that just shows why the industry should be supporting authorized services like Netflix that provide a better service. And yet they don't. There are reasonable debates to be had here, but if you're basing your arguments off of debunked studies, don't expect to be taken seriously.Permalink | Comments | Email This Story

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"Erotic romance" publisher Ellora's Cave doesn't like the way a certain writer has portrayed its business woes. Rather than attempt to address the theories advanced by Jane Litte at Dear Author, Ellora's Cave has decided to sue her for defamation. Ellora's Cave has a problem with the post Jane Litte published Sept. 14th, entitled "The Curious Case of Ellora's Cave." In it, Litte questions the financial stability of EC. As she notes, EC is a powerhouse publisher in the erotic fiction world but its growth seems to have slumped at a time when it should have been expanding. As the world began to catch on to digital books and the Kindle was launched creating a second wave ebook revolution, Ellora’s Cave seemed poised to launch itself into publishing super stardom. It had thousands of backlist titles and it had launched many of the bestselling authors today–Bella Andre, Lora Leigh, Christine Warren, Beth Kery, Lauren Dane, Jaci Burton, to name a few. Yet something strange happened. Growth stagnated. In 2010, it was revealed that EC’s revenues were $5 million but a reported $6.7 million in 2006. How on earth was a digital publisher’s income declining in the biggest boom period of digital books? Litte entertains a few theories. Word of [Ellora's Cave co-founder Tine] Engler’s increasingly erratic behavior surfaced on odd places on the internet and then came the lawsuits. In 2008, former employee Christina Brashears iled suit for unpaid monies against EC. EC countersued. Brashears, Publisher and Chief Operating Officer, left and formed Samhain. Bad blood existed which culminated with EC agreeing to a settlement of undisclosed amount. The damages were alleged to be in the high six figures to low seven figures. EC’s behavior during this lawsuit was so egregious, the judge commented on it in his ruling ordering damages to be paid to Brashears... In the Brashears lawsuit, EC was accused of inappropriately diverting funds to Tina Engler through overpayment of rent. In 2009, the prevailing market rent for the space EC was occupying in Akron Ohio was around $40K but EC was paying Engler close to $100K per month. EC was providing loans to various officers at no interest and there was no indication those loans were ever repaid. Emails to EC authors seem to confirm the bad news. Ellora's Cave is struggling. Some authors have reported late or completely missing royalty payments. EC is now saying that no partial work will be paid for and has shut down its authors' portal where writers (but only a certain number of them) could check on royalty payments. The most damning evidence that something's wrong at Ellora's Cave comes in the form of public records. According to Litte, these documents show that Tina Engler (the EC founder who had been receiving the allegedly diverted funds mentioned above) has had a tax lien placed against her by the state of Ohio for 5 of the last 6 years, ranging from $26,000 to $105,000 (nearly $400,000 total to this point). The lawsuit filed against Jane Litte claims (of course) that none of Litte's allegations are true and that the post itself is libelous. [PDF link] It mainly has a problem with this paragraph, which encapsulates most of the claims it refutes. A report from Ohio business record places Ellora’s Cave revenues at $15 million last year. So why is it that tax liens go unpaid as well as the salaries or royalties of creative individuals? It is unknown but it sounds like the money is being mismanaged at best and improperly diverted at worst. What’s the result? Many people believe that EC will close its doors before the summer is over but at least by the end of the year. If it enters bankruptcy, author’s intellectual property rights are part of the estate and can be sold off to the highest bidder. EC's attempt to stifle criticism (the suit asks for $25k in damages as well as a permanent injunction prohibiting Litte from publishing any further "libelous" content as well as demanding the removal of her Sept. 14th post. Litte has chosen to fight back, gaining not only the support of many authors and bloggers, but the valuable legal assistance of a name familiar to Techdirt readers. Jane Litte, the pseudonymous editor of Dear Author, announced this morning that she had hired the big guns to defend her in this lawsuit, noting that: "she has retained the services of Marc Randazza, and he and an Ohio colleague will provide the defense in this case. You can find out more about Randazza at his firm’s website, and in this piece at Popehat, Marc Randazza: First Amendment Badass." That's possibly the worst news anyone filing a dubious defamation suit could hope to receive. Now EC will have to face Randazza on top of possibly having to do something it clearly doesn't want to: turn over its financial records. As Litte noted above, a previous lawsuit filed against EC over owed monies resulted in a judicial smackdown of Tina Engler and her various legal representatives -- specifically related to their failure to produce requested information. EC refused to give up documents such as tax returns and ledgers during the litigation.   The failure to respond the request for documents impaired Brashear’s ability to proceed with her claim.   EC blamed it on their first lawyer who they fired.   EC retained new counsel but the pattern of delay and duck continued.   Brashear filed a motion for sanctions (a request asking the court to punish EC for its delinquent behavior).   The court granted the motion after EC and its counsel failed to show up for a hearing.   EC asked the court to set aside the sanction and promised it would deliver the documents requested by Brashear.   EC never did. The judge had this to say after both defendants and their new attorney failed to materialize for the hearing. Defendants willfully evaded the production of discovery, resulting in unnecessary delays of this case and increased legal fees.   Defendants’ actions in this case have crossed the line from a zealous defense to malingering, malfeasance, sabotage and delay. If Ellora's Cave wishes to demonstrate that Litte's claims are libelous (most of which appear to be delivered as opinions rather than statements of fact), it will have to present documentation of its royalty payments, as well as some detailing of Engler's discretionary spending. It wasn't interested in turning these documents over in 2009. There's no reason to believe (especially considering the ongoing tax liens against Engler) it's any more interested in doing so now. This suit, despite being fairly articulate about what it disputes, still looks like an attempt to silence criticism. If Ellora's Cave wanted to take Litte to court over speculations about financial mismanagement, it had several opportunities to do so in the past. Litte's coverage of the 2009 lawsuit uses the same Forbes stats as her recent post and asks the same question: why is Ellora's Cave struggling at a time when it should be showing record growth? This 2010 post also speculated that EC didn't have the cash on hand to pay damages, much less pay the funds contractually obligated to the complainant. The only new wrinkles here are the questions about EC owner Tina Engler's spending habits and the (documented) tax liens against her. Given the fact that EC likes to withhold documentation, it probably the last part being made public (so to speak -- tax liens are public records) that irks Engler the most. In asking for damages to be awarded, the lawsuit claims that this post is harming its relationship with its current writers and damaging its future earnings by warning authors away. Undoubtedly this is true, but a business owner with a half-decade of high-dollar tax liens would warn them away just as well, even without Litte's additional research and commentary. You can withhold royalties indefinitely (give or take a lawsuit) but you can't hold out on the government. If you do, your business is repo'ed and auctioned. and the slight possibility of this happening means authors' copyrights could end up in the hands of someone who feels even less obliged to pay off owed royalties, if they're even obligated to pay them at all. Those who were happy with EC may find themselves working for someone they don't like, but will be able to do very little about it. Another troubling aspect of the lawsuit is the request to unmask anonymous commenters, delivered by this slightly ominous sentence. Additionally, Plaintiff request that Defendants disclose the name of the anonymous commenters on the blog so that the spreading of the defamatory content can be stopped. Not only is this request another attack on speech, but it's unlikely to do anything more than subject other people to EC's litigious efforts. The "spreading" has already begun and getting a list of commenters' names isn't going to change that. EC's decision to sue has already caused more harm to its reputation than Litte's post could have done on its own. The news that EC wants to target commenters will only generate even more negative coverage. Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
Yesterday, we mentioned the reports kicked off by Nate Hoffelder's research that Adobe was spying on your ebook reading efforts and (even worse) sending the details as unencrypted plaintext. Adobe took its sweet time, but finally responded late last night (obnoxiously, Adobe refused to respond directly to Hoffelder at all, despite the fact that he broke the story). Here's Adobe's mealy-mouthed response that was clearly worked over by a (poorly trained) crisis PR team: Adobe Digital Editions allows users to view and manage eBooks and other digital publications across their preferred reading devices—whether they purchase or borrow them. All information collected from the user is collected solely for purposes such as license validation and to facilitate the implementation of different licensing models by publishers. Additionally, this information is solely collected for the eBook currently being read by the user and not for any other eBook in the user’s library or read/available in any other reader. User privacy is very important to Adobe, and all data collection in Adobe Digital Editions is in line with the end user license agreement and the Adobe Privacy Policy. Some of the research into what's going on contradicts the claims of it only looking at books "currently being read," but even if that's true, it doesn't make the snooping any less disturbing. And while it may be true that Adobe has not violated its privacy policy (though, that's arguable), it really just highlights the stupidity of the concept of privacy policies. As we've noted in the past, the only way you get in trouble on privacy is if you violate your own privacy policy. And thus, the incentives are to write a policy that says "we collect absolutely everything, and do whatever we want with it, nyah, nyah, nyah," because that way you won't ever violate it. Since no one reads the policy anyway, and most people assume having a "policy" means protecting privacy (even if it says the opposite), privacy policies (and laws that require them) are often counterproductive. This situation appears to be a perfect example of that in action. Either way, the response is tone deaf in the extreme. Even if it's "in line" with the privacy policy, does that make it right or acceptable? Adobe makes no effort to respond to the concerns about this snooping on reading habits -- which can be quite revealing. It makes no effort to respond to the serious problems of sending this info in plaintext, creating a massive security hole for private information. While Adobe has told some that it is working on an update to "address" the issue of transmitting the data in plaintext, it's a bit late in the process to be recognizing that's an issue. The Ars Technica article notes that this may, in fact, violate New Jersey's Reader Privacy Act. EFF wonders about the similar California Reader Privacy Act and whether or not Adobe's efforts here completely undermine that law. Since Adobe's Digital Editions are commonly used by libraries (my local library uses it, which I've used to take out ebooks), it really raises some serious questions for those libraries. Librarians have a history of strongly standing up for the protection of reader privacy. In fact, for all the talk we've had recently about Section 215 of the PATRIOT Act and how the NSA abuses it, when it was first passed, the people who protested the loudest were the librarians, who feared that it would be used to collect records on what books people were reading! Some people even referred to it as the "library records" provision (even though it was eventually twisted into much more). And yet, here we are, a decade or so later, and Adobe has completely undermined this kind of trust and privacy which libraries pride themselves on. And, even worse, it's all in the name of some crappy DRM that publishers demand. Librarians and readers should be up in arms over this, and looking for alternatives. Adobe should stop with the bullshit crisis PR response and admit that they screwed up and that the product needs to change to better protect the privacy of individuals and their reading habits.Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
We discuss moral panics, past and present, pretty frequently to make a key point: for all the fears you hear about today's technologies, there were similar (almost always unfounded) fears for new technologies in the past. And, in retrospect, almost all of them look silly. Among my favorites were when chess or the waltz were going to undermine society. However, the NY Times' archivist, Evan Sandhaus has an amusing example (via Mathew Ingram) concerning that time, back in 1878, when the NY Times editorialized against Thomas Edison's phonograph and aereophone, for the fact that they could destroy everyone's privacy. Here's just the beginning: You can read the rest at the link above or embedded below (oh yeah: and this was written in 1878, so contrary to the NY Times' totally bogus copyright claim on the PDF below, the content is public domain). The whole thing is hilarious, first railing against Edison (who has apparently "invented too many things") and then against the phonograph for destroying privacy and making it impossible for anyone to talk to anyone any more: THE AEROPHONE. Something ought to be done to Mr. EDISON, and there is a growing conviction that it had better be done with a hemp rope. Mr. EDISON has invented too many things, and almost without exception they are things of the most deleterious character. He has been addicted to electricity for many years, and it is not very long ago that he became notorious for having discovered a new force, though he has since kept it care- fully concealed, either upon his person or elsewhere. Recently he invented the phone- graph, a machine that catches the lightest whisper of conversation and stores it up, so that at any future time it can be brought out, to the confusion of the original speaker. This machine will eventually destroy all confidence between man and man, and render more dangerous than ever woman's want of confidence in woman. No man can feel sure that wherever he may be there is not a concealed phonograph remorseless gathering up his remarks and ready to reproduce them at some future date. Who will be willing, even in the bosom of his family, to express any but most innocuous and colorless views and what woman when calling on a female friend, and waiting for the latter to make her appearance in the drawing-room, will dare to express her opinion of the wretched taste displayed in the furniture, or the hideous appearance of the family photographs ? In the days of persecution and it was said, though with poetical exaggeration, that the walls had ears. Thanks to Mr. Edison's perverted ingenuity, this has not only become a literal truth, but every shelf, closet, or floor may now have its concealed phonographic ears. No young man will venture to carry on a private conversation with a young lady, lest he should be filling a secret phonograph with evidence that, in a breach of promise suit, would secure an immediate verdict against him, and our very small-boys will fear to express themselves with childish freedom, lest the phonograph should report them as having used the name of "gosh," or as having to "bust the snoot" of the long-suffering governess. The phonograph was, at the time of its invention, the most terrible example of depraved ingenuity which the world had seen; but Mr. EDISON has since reached a still more conspicuous peak of scientific infamy by inventing the aerophone--an instrument far more devastating in its effects and fraught with the destruction of human society. Yes, now we move on to the aerophone. The true worry of the moralists at the NY Times. For the aerophone, you see, can make voices louder. Fear the innovation: The aerophone is apparently a modification of the phonograph. In fact, it is a phonograph which converts whispers into roars. If, for example, you mention, within hearing of the aerophone, that you regard Mr. HAYES as the; greatest and best man that America has yet produced, that atrocious instrument may overwhelm you with shame by repeating your remark in a tone that can be heard no less than four miles. Mr. EDISON, with characteristic effrontery, represents this as a useful and beneficent invention. He says that an aerophone can be attached to a locomotive, and that with its aid the engineer can request persons to "look out for the locomotive" who are nearing a railway crossing four miles distant from the train. He also boasts that he will attach an aerophone to the gigantic statue of "Liberty." Which France is to present to this country, provided we will raise money enough to pay for it, and that the statue will thus be able to welcome incoming vessels in the Lower Bay, and to warn them not to come up to the City in case Mr. STANLEY MATTHEWS is delivering an oration on the currency, or Mr. Cox is making a comic speech at Tammany Hall. Were the aerophone to be confined strictly to these uses, it prove a comparatively unobjectionable intstrument; but no man can loose a whirlwind and guarantee that its ravages shall be confined to Chicago, or to some other place where it may do positive good. There is some talk about the threat of this horrible invention on "dumb wives" and "dumb husbands" which we will skip over here, and then it gets to the next fear: the public being overwhelmed with everyone blasting their speech for four miles with aerophones. Oh the cacophony. Our present vocal powers are always used to their full capacity. Everybody talks with about the same volume of voice, and when the aerophone comes into use, people will universally talk as loudly as the instrument will permit. When ninety-nine people out of a hundred converse with the aerophone, there will be such a roar of conversation that the hundredth person, who may speak in his natural voice, cannot be heard. We can only faintly imagine the horrible results of the general introduction of the aerophone. Wives residing in suburban Jersey villages will call to their'husbands at their places of business in the City, and require information as to subjects of purely domestic interest. Mothers whose children have wandered out of sight will howl over a four-mile tract of country direful threats as to the flaying alive which awaits James Henry and Ann Eliza unless they instantly come home. From morning till midnight our ears will be tortured with the uproar of aerophonic talk, and deaf men will be looked upon as the favored few to whom nature has made life tolerable. I love the fear of having to hear talk of "purely domestic interest." And, in the end, could anything less that the entire destruction of society follow as a result? The result will be the complete disorganization of society. Men and women will flee from civilization and seek in the silence of the forest relief from the roar of count- less aerophones. Business, marriage, and all social amusements will be thrown aside, except by totally deaf men, and America will retrogade to the Stone Age with frightful rapidity. Better is a dinner of raw turnips in a damp cave than a banquet at DELMONICO'S within hearing of ten thousand aerophones. Far better is it to starve in solitude than to possess all the luxuries of civilization at the price of hearing every remark that is made within a radius of four miles. It may be too late to suppress the aerophone now, but at least there is time to visit upon the head of its inventor the just indignation of his fellow-countrymen. Frankly, the whole thing is so over the top and outrageous that it almost feels like parody of similar moral panics, but it does seem to be legit. Consider this when comparing it to today's moral panics, like Google Glass, mobile phones in general, autonomous cars, personal drones and a variety of other technologies. Perhaps one day we'll learn not to pre-freak out, but it doesn't appear to be happening just yet.Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
We've talked plenty about the near total failure of the NSA and others in the intelligence community to consider the costs associated with their "collect it all" mentality. Much of the intelligence community's views seem based on the idea that the surveillance efforts would always remain totally secret. The NSA, in particular, appears to have never thought it possible that something like the Snowden revelations might happen, and the intelligence community still seems to be scrambling to figure out what to do in response. In the meantime, however, the impact on the internet has been very real and ongoing. Senator Ron Wyden -- who was one of very, very, very few politicians in DC to be talking out (loudly) about this prior to Snowden -- is coming to Silicon Valley tomorrow for what looks to be quite a discussion with some top execs from the tech industry about the "impact of mass surveillance on the digital economy." With Senator Wyden will be Google chairman Eric Schmidt, Microsoft General Counsel Brad Smith, Facebook General Counsel Colin Stretch, Dropbox General Counsel Ramsey Homsany and Greylocks' John Lilly (former Mozilla CEO). In other words, it's a pretty high level gathering -- and it's open to the public. I'll be there to cover it for Techdirt, but for anyone in Silicon Valley, feel free to register to attend.Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
Cloaking devices have been a part of science fiction and fantasy for ages, but so far, no one has really developed an invisibility cloak that works "like magic" without using some tricks that limit the effect to novelty illusions. Researchers are working on the problem, and there have been a few significant advances that are definitely getting better. Check out these videos to see how advanced physics is creating things that aren't quite indistinguishable from magic (yet). You can achieve some pretty nifty optical illusions with just a few standard lenses, such as this cloaking setup that looks almost too simple to work. There are also some simple things you can do with mirrors, but they're not quite as impressive because they only work under certain narrow conditions. [url] Metamaterials are getting some attention for their ability to create curious optical effects. Some metamaterials are nanocomposites that have been known since ancient times, but newer materials (with a negative index of refraction and other artificial properties) can be designed to create more controlled optical illusions. [url] Controlling light refraction can create a "cloaking" device of sorts that doesn't rely on lenses or mirrors or strange metamaterials. Simple prisms can be set up like mirrors and lenses, but the drawback for these kind of devices is also a limited range of viewing angles. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
If anything, the anonymous student should have been investigated for the egregious use of outdated slang. There’s no danger at Snow College after an anonymous former student threatened the school on Facebook, state officials said. No danger, because there was no threat. So, the past tense usage by "state officials" is completely wrong. Police believe the out-of-state male author of the post did not plan to hurt anyone, said Derek Walk, a campus police officer. Here's what was posted: Let's just say, homecoming weekend is gonna go out with a bang. And the football game is gonna be one no one is ever gonna forget. If you're like me, you're probably picturing lots of heavily drinking, possibly culminating in some gametime streaking. If you're like a lot of the commenters in this screenshot, you're apparently picturing a DHS-suspicion-raising shopping trip for pressure cookers and other fine explodables, followed by the opening scene of "The Last Boy Scout." Ultimately, no one was charged and locked up with insurmountable bail. Officers did serve a warrant to Google, which coughed up the IP address and ultimately tracked down the suspect. (Yes, I was also confused by this turn of events, but apparently one of the few roads to Facebook anonymity leads directly through Google Docs.) The only thing noticeably different was a larger police presence during that week, which went as routinely un-bombed as the countless weeks preceding it. No charges have been filed, nor does it appear there will be. Attorney General Sean Reyes praised the work of local officers. "We are pleased to have been part of this successful outcome," Reyes said in a prepared statement. Snow College President Gary Carlston added he’s happy no one was harmed over the weekend and is grateful for the officers’ quick response. Presumably, the student was fully cleared of any potential wrongdoing and mocked gently for his use of the phrase "going out with a bang" by an officer drawing the shape of square with his opposing index fingers. As usual, the thought process is: you can never be too careful. And while I appreciate the fact no one wants to be the one who ignores a potential threat because it doesn't sound scary enough, there's something to be said for not allowing a perpetual fear of rare, highly-isolated incidents to govern your official responses, much less your Facebook interactions. I personally think the anonymity aspect of the posting made it seem more threatening than one made by someone easily identifiable by other students -- something that would have allowed the use of context to frame the "confession." (And while we're on the subject, these same students don't seem too moved to report anonymous comments containing an actual specific threat, admissions of criminal behavior or use of slang even more outdated than "out with a bang.") I am, however, pleased that this incident didn't turn out like others have -- with someone arrested and/or facing excessive bail -- simply because panic has become the default mode in all school settings. Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
As you may recall, in the wake of the Snowden revelations, various tech companies got into a bit of a spat with the US government over the right to disclose FISA orders received under Section 702 of the FISA Amendments Act. These orders are what made up the PRISM program that got so much early attention, with some early reports implying, incorrectly, that the tech companies had given the NSA full access to their systems under the program. The reality is that the 702 program includes specific FISA court orders for access to specific information, not blanket access. What's unknown is just how narrow or broad those orders are, and that's partly because of a gag order that comes with any of those FISA court orders. In response, a bunch of those tech companies filed a lawsuit arguing they had a First Amendment right to reveal the number of orders they had received. Further, they noted that due to the early, misinterpreted reporting, they needed to be able to reveal how many orders they received, and how many people it impacted, to correct the faulty record on their level of sharing with the NSA. In January, the tech companies and the DOJ settled the lawsuit, with the US government agreeing to specific ways in which tech companies could reveal some information on those orders, but in a very limited way. Basically they could reveal some information in "bands." Depending on how they revealed the info, it could be in bands of 250 people or bands of 1,000 people -- but if you chose the 250 option, you also had to lump in National Security Letters (NSLs), making the information even harder to parse. While this was progress over nothing, it was a pretty small step forward. That's why we were happy to see Twitter come out in February and say that, while those other companies (including Google, Facebook and Microsoft) had agreed to that settlement, it was not good enough for Twitter, and that the company would keep pushing for the right to say how many FISA orders it had received. Apparently those negotiations with the DOJ haven't gone very well, as the company has now sued the US government over the issue. Twitter claims that it even asked for the ability to publish a redacted transparency report, but the DOJ even tried to block that. The full filing is worth reading. Twitter seeks to lawfully publish information contained in a draft Transparency Report submitted to the Defendants on or about April 1, 2014. After five months, Defendants informed Twitter on September 9, 2014 that “information contained in the [transparency] report is classified and cannot be publicly released” because it does not comply with their framework for reporting data about government requests under the Foreign Intelligence Surveillance Act (“FISA”) and the National Security Letter statutes. This framework was set forth in a January 27, 2014 letter from Deputy Attorney General James M. Cole to five Internet companies (not including Twitter) in settlement of prior claims brought by those companies (also not including Twitter) (the “DAG Letter”). The Defendants’ position forces Twitter either to engage in speech that has been preapproved by government officials or else to refrain from speaking altogether. Defendants provided no authority for their ability to establish the preapproved disclosure formats or to impose those speech restrictions on other service providers that were not party to the lawsuit or settlement. Twitter’s ability to respond to government statements about national security surveillance activities and to discuss the actual surveillance of Twitter users is being unconstitutionally restricted by statutes that prohibit and even criminalize a service provider’s disclosure of the number of national security letters (“NSLs”) and court orders issued pursuant to FISA that it has received, if any. In fact, the U.S. government has taken the position that service providers like Twitter are even prohibited from saying that they have received zero national security requests, or zero of a particular type of national security request. These restrictions constitute an unconstitutional prior restraint and content-based restriction on, and government viewpoint discrimination against, Twitter’s right to speak about information of national and global public concern. Twitter is entitled under the First Amendment to respond to its users’ concerns and to the statements of U.S. government officials by providing more complete information about the limited scope of U.S. government surveillance of Twitter user accounts—including what types of legal process have not been received by Twitter—and the DAG Letter is not a lawful means by which Defendants can seek to enforce their unconstitutional speech restrictions. It will be interesting to see how far this lawsuit goes. Unfortunately, the courts are often willing to give great deference to the government when it insists things need to be secret, but there's always a chance that a court may recognize the problematic nature of how the government gags companies in this manner.Permalink | Comments | Email This Story

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Back in June, we wrote about an important ruling from a court in Oregon that found the process of getting off the Homeland Security "no fly list" to be unconstitutional. The government has continued to try to stall over this, but the judge has basically told the Justice Department to speed things up and to tell the plaintiffs whether or not they're still on the list, so that further legal action can move forward, if necessary (and, yes, it's likely necessary). From the official ruling: No later than October 10, 2014, Defendant shall identify to the Court and Plaintiffs which Plaintiffs, if any, will not be precluded as of that date from boarding a commercial aircraft flying over United States airspace. The court tells the US government that as soon as it realizes any of the plaintiffs shouldn't be on the list it needs to inform them of that fact, and for those that remain on the list, it needs to give a detailed reason: If Defendants determine after the interim substantive review of a Plaintiff's status that such Plaintiff is not presently eligible to fly over United States airspace, Defendants shall promptly and consistent with the Court's Opinion and Order of June 24, 2014: (a) give such Plaintiff notice of that determination; (b) give such Plaintiff an explanation of the reasons for that determination sufficient to permit the Plaintiff to provide Defendants relevant information responsive to such reasons; and (c) consider any such responsive information provided before completing the substantive reconsideration of such Plaintiff's DHS TRIP redress inquiry as ordered herein. It's pretty clear the judge finds the whole no fly list situation to be ridiculous, and the fact that these people haven't been able to fly for years with no recourse problematic: The Court notes the importance, complexity, and sensitivity of the issues raised and the remedies to be implemented in this matter preclude proceeding with undue haste. Nevertheless, in light of the fact that each Plaintiff has presumably been prevented from flying internationally and otherwise over United States airspace during the four years this matter has been pending, the Court concludes the time has come to resolve the claims of each Plaintiff on an individualized basis as soon as practicable. It seems entirely likely that the DOJ and DHS will continue to try to stall and delay, but Judge Anna Brown makes it fairly clear in her ruling that she's not interested in stalling attempts and will not treat them kindly.Permalink | Comments | Email This Story

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A few years back, we wrote a series of articles about an operation called Vision Media TV (and a variety of other rapidly changing names, including WJMK, United Media, World Progress Report, and Great America HD, among many others). The basic "business" of this operation was to get a semi-famous TV personality to be the "host" of a TV show, then go around pitching gullible businesses that it was a legitimate TV show on "public broadcasting TV" or "national public television" and that they wanted to do a profile on that small business. The scam was you just had to pay a "small fee" (usually upwards of $20,000). Oh yeah, and the claims of being on TV were somewhat dubious as well. Among the "hosts" we had mentioned back then, there had been Joan Lunden, Walter Cronkite (!?!) and Hugh Downs -- all three of whom backed away after they were called out for participating in a scam. You can see a legal filing from a few years ago that goes through this scam in rather great detail. The scam continued to morph. A few years ago, under the name "In Focus," it was "hosted" by Martin Sheen, until that got called out and was shut down. Then it was "Outlook with Ben Kingsley." But the basics of the scam were the same. The semi-famous or famous "host" obviously just comes in for like a day of reading intros on a cheap TV set, and then they show a "profile" on the company who paid big bucks. The claims of being on "public TV" are massively exaggerated to downright bogus. The NY Times did a big expose on this scam back in 2008. NPR did a detailed takedown in 2010. PBS itself has put out a warning to people not to believe the claims from these ever-rotating operations about their shows being on "public television." It notes that it has no association with any such show and PBS never solicits money from organizations to be on TV. But it keeps morphing, as evidenced by the Martin Sheen and Ben Kingsley versions, both of which happened long after those stories. The latest version uses the same basic playbook -- and this time the "talent" is famed football coach Jimmy Johnson, and the show is called "Leading Edge with Jimmy Johnson." The reason I know about this is because the somewhat clueless folks who work there decided to pitch Techdirt/Floor64 to be on the program (apparently unaware that we'd written about scammers like themselves before): My name is Barbara Rock, I'm the assistant to Mr. Bill Thomas who is the Sr. Producer for Leading Edge on National Public Television. If you're not familiar with the program, it's an interstitial news break that airs prime time in the U.S. on National Public Television just after The Nightly Business Report. The reason for my contact Mr. Thomas will be producing a few segments for our upcoming season highlighting innovative breakthroughs and solutions that are changing the way we live and work, and our research department has forwarded to Mr. Thomas a general profile on Floor64 as a possible invite to the program for this segment. If you have a few minutes one day next week, Mr. Thomas would like to discuss this with you in more detail, to learn more about Floor64 and to see if the organization would be a good fit for this segment. Note the careful word choice. "National Public Television," not PBS (though, a neat attempt to confuse with National Public Radio). Also, whoever is behind "Leading Edge" also is doing some fairly dodgy SEO work. They've registered a ton of domain names like "leadingedgeseriespbs.com" (and .org and .biz and many more) trying to imply an association with PBS that isn't really there. According to the Washington Post article linked above, they did the same with the Martin Sheen show, with numerous sites using combinations of "Martin Sheen" and "PBS" in the URLs, but with small disclaimers elsewhere saying they're not associated with PBS. That article also notes that the actual contract terms say that the videos "will be distributed" to "public Television stations in all 50 states," with potential "estimated viewership and reach for one year [of] 60 million households." Yes, again, carefully ambiguous language. By saying "distributed" it just means they'll send them out -- not that anyone will air them. I sought more information from "Barbara Rock" and she was rather straightforward in admitting that we would have to pay -- though she insisted that it wasn't a fee to be on the show, even though it clearly was: For starters this is not a “pay-for-play” where we would be asking Floor64 to buy airtime. As a matter fact Public TV does not sell commercials. An interstitial news break is the 5 min. between programs on Public Television. The only costs associated is a pre-production/underwriting fee of $18,900 plus travel. In addition to being featured on The Leading Edge program Floor64 would also receive a fully produced 5 min. corp. demo and a fully produced 1 min. commercial that would air primetime on CNBC 50 times in the markets of your choice. All production and distribution is included in the fee. Again, note the careful choice of words. You're not "buying airtime" -- just "pre-production, underwriting." Real TV programs don't do that. She also followed up on the claim about PBS/public television saying: Our program airs across the country on Public Television, some of which are PBS affiliated, however our segments run on all Public TV stations not just the ones that are PBS affiliated. Our presenting station is KRCB in San Francisco. So she claims they run on "all Public TV stations" which is clearly a bogus claim. Furthermore, if you click on that KRCB link, the URL suggests it was once about "Leading Edge" but now takes you to a "page not found" link, so if KRCB ever did show Leading Edge, that appeared to have gone away. I asked Barbara about this missing link, and she apparently decided I was asking too many questions, refusing any further responses. I also reached out multiple times to KRCB's senior executives, Nancy Dobbs and Larry Stratton, both of whom refused to respond to email and phone requests for comments. I'm not sure why, but that certainly seems fairly sketchy. However, before Barbara stopped responding to me, she did offer two examples of companies that had participated in the Leading Edge series as enticements as to why I might be interested: GigaOm and DocuSign. Now, I know folks at GigaOm, and they're not ones to be taken in by a scam like this. But, indeed, there they are, featured on the Leading Edge site. I reached out to people from GigaOm, and was told it was a video that was recorded years ago, and not for "Leading Edge." However, their response does suggest that, perhaps, GigaOm got taken in by a different version of the scam a few years back. They told me that "the video was produced and licensed to Public Television for limited distribution through May 2013." However, GigaOm "did not have any knowledge it was being used by Leading Edge nor did we authorize or condone its use for this purpose." The company further said that it is looking further into the matter and may "take legal action to prevent it from being used by Leading Edge in the future." No matter what, this seems like another version of the same old scam, tricking businesses into paying big bucks for questionable claims of being on "public television" on a show hosted by some celebrity. Indeed, if you do a search, you can find a bunch of businesses in press releases about how "Leading Edge with Jimmy Johnson" will "host an upcoming segment" on whatever it is that business is doing. Hopefully, with a bit more attention, Jimmy Johnson will back away from this, the same way Walter Cronkite, Hugh Downs, Joan Lunden, Martin Sheen and Ben Kingsley did in the past. But, of course, it seems likely the deal will just morph and be back with another semi-famous "host" soon after.Permalink | Comments | Email This Story

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Last week, the UK Home Secretary pitched the current UK government's plan to ramp up anti-terror laws to further stamp out privacy and free speech rights in the UK. This week, Keith Bristow, director general of the National Crime Agency, doubled down by arguing that he needs to teach the public that of course they need to give up liberty if they want security. He argues that "public consent" is necessary, but that legislation is "public consent" and thus he needs to help convince the public (or, really, Parliament) to cough up some liberty. He said: “If we seek to operate outside of what the public consent to, that, for me, by definition, is not policing by consent … the consent is expressed through legislation.” He added that it was necessary to win “the public consent to losing some freedoms in return for greater safety and security”. And while the famed Ben Franklin quote on "safety" v. "liberty" is mostly used out of context, that doesn't lessen the importance of the premise behind it. Giving up liberty for the sake of presumed (without evidence) security is a very dangerous game, often used by those who just wish for more control and power, not any actual concerns with safety and security.Permalink | Comments | Email This Story

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Ebooks have many advantages, but as Techdirt has reported in the past, there are dangers too, particularly in a world of devices routinely connected to the Net. Back in 2010, we wrote about how Amazon was remotely uploading information about the user notes and highlights you took on your Kindle. More recently, we reported on how a school was using electronic versions of textbooks to spy on students as they read them. Against that background, you would have thought by now that companies would be sensitive to these kinds of issues. But if Nate Hoffelder is right, there's a big privacy problem with Adobe's Digital Editions 4, its free ebook reading app. Here's what Hoffelder writes on his blog, The Digital Reader: Adobe is tracking users in the app and uploading the data to their servers. (Adobe was contacted in advance of publication, but declined to respond.) Specifically: Adobe is gathering data on the ebooks that have been opened, which pages were read, and in what order. All of this data, including the title, publisher, and other metadata for the book is being sent to Adobe’s server in clear text. Yes, not only is the app spying on you, but it is sending personal information unencrypted over the Net. And it seems that this is not just about the ebook you are currently reading: Adobe isn't just tracking what users are doing in DE4; this app was also scanning my computer, gathering the metadata from all of the ebooks sitting on my hard disk, and uploading that data to Adobe’s servers. These are all serious accusations, and completely unacceptable if confirmed. At the very least, an independent investigation by Ars Technica has now confirmed all of the important details, though Adobe has still stayed silent. However, this also highlights why many people prefer to use pirated editions without DRM, which can be read on any suitable software: not because they're free, but because they're better products in just about every way -- for example, in respecting your privacy. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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A district court in Missouri has granted an injunction filed against the police in Ferguson for their ridiculous "5 second rule" that was used to arrest numerous protestors. The rule was that if you stood in place for more than 5 seconds, you could be arrested -- with the goal of (a) keeping protestors moving and (b) having an excuse to arrest a bunch of protestors. Mustafa Abdullah, with help from the ACLU, sued over this and the court has agreed that the rule is clearly unconstitutional, and thus a preliminary injunction has been granted. The court notes that standing in place for 5 seconds is not a legitimate standard to be used for Missouri's "failure to disperse law" (or any other law). First, the court doesn't buy the police's claim that the 5 second rule matches up with the failure to disperse law: This statute provides no defense to this suit for several reasons. First, people were not told to “disperse” – in other words, to leave the area. Instead they were told to keep moving. Second, the order was given even when there were fewer than six people gathered. The evidence included examples where the order was given to one person alone, to three people attempting to pray, to a reporter and one other person, as well as to larger groups. And the order was given to people who were doing nothing to indicate they intended to violate laws of any sort, much less to engage in violence. In fact, nearly all of plaintiff’s fact witnesses testified that despite gatherings that were peaceful and law-abiding at the time, officers told people they must keep moving or they would be arrested. Then there's the question of due process. And, once again, the 5 second rule is problematic: Plaintiff is likely to succeed on the merits of showing that the keep-moving policy violates due process in both ways. Of course, in this situation there is no statute or ordinance being challenged. Rather, it is an unwritten policy, given to officers at their roll calls, instructing them to order people to keep moving whenever the officers thought it was appropriate to do so. Some officers told everyone to keep moving, so if plaintiff was unlucky enough to be standing in the vicinity of those officers, he would be told to move. Some officers told people they would be arrested if they did not move, but at least one officer told people that they had to keep moving but probably would not be arrested if they failed to comply. Some officers interpreted the policy to mean that people had to walk at a certain speed, others told people that they could not walk back and forth in a certain-sized area. Some officers applied it to members of the press, while others did not. Plaintiff and his other witnesses testified that they could not tell what would or would not be allowed at any given moment. The rule provided no notice to citizens of what conduct was unlawful, and its enforcement was entirely arbitrary and left to the unfettered discretion of the officers on the street. This policy “necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat.” See Kolender, 461 U.S. at 360 (brackets and quotation marks omitted). Like the gang loitering ordinance found unconstitutional in Chicago v. Morales, 527 U.S. 41 (1999), the keep-moving policy cannot meet constitutional standards for definiteness and clarity. And then the good old First Amendment: I conclude that it is likely plaintiff will prevail on the merits of his First Amendment claim, and given my conclusions about the Due Process claim, I need not at this time discuss the First Amendment issues in detail. The keep-moving policy – as it was applied to plaintiff and others – prohibited citizens from peacefully assembling on the public sidewalks. Although the state has a valid interest in maintaining order on its streets and sidewalks and in preventing violence by crowds, this interest is not sufficient to apply such a blanket rule to people assembling peacefully.... The evidence showed that the strategy burdened substantially more speech than was necessary to achieve its legitimate goals. In fact, one of the police witnesses testified that it only worked well during the daytime when there were no large crowds and no threats of violence – when the crowds grew unruly, telling them to keep moving was not an effective strategy. Thus, defendants’ own evidence shows that this strategy fails the requirement that “the means chosen are not substantially broader than necessary to achieve the government’s interest,” Nice to see this ruling, though it would have been nicer to have this earlier -- but hopefully it will at least prevent future such actions.Permalink | Comments | Email This Story

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Techdirt has been covering the "Comprehensive Economic and Trade Agreement" (CETA) between the EU and Canada for a while now. Or rather, trying to, given the obsessive secrecy that has surrounded the negotiations, just as it does for TAFTA/TTIP and TPP. However, the agreement's text has now been officially released (pdf) -- on the day that those negotiating it declared it finished. This means that at precisely the moment when the people most impacted get to see what has been agreed to in their name, there is no point in expressing their views, since nothing can be changed. This is the shabby trick that governments routinely pull for these kinds of deals: the public is promised that it will have its say once the final text is available, but when that moment comes, people are informed that obviously no changes can be made since it has already been finalized. However, in CETA's case, it's not quite so simple. During the ceremony marking the end of the negotiations, the leaders of Canada and the EU declared: Today marks a truly historic moment in the evolution of the Canada-EU relationship as we celebrate the end of negotiations of the Canada-EU Trade Agreement. Not "sign", but "celebrate". That's because Germany is threatening to withhold its support for CETA, as reported here by The Star: New doubts about the fate of Canada’s long-sought free-trade deal with the European Union have cast a shadow over a meeting Friday where Prime Minister Stephen Harper and senior EU officials were to celebrate the completion of five years of negotiations. A day before the Canada-EU summit in Ottawa, Germany signalled it won’t approve the landmark trade pact in its current form because of objections to the investor-protection measures included in the Comprehensive Economic and Trade Agreement (CETA). It turns out that CETA contains many other deeply worrying aspects. That's doubtless why the negotiators were so keen to keep the text secret, but now that we have it, detailed analyses are coming through. The first in-depth look at what's lurking among CETA's 1500 pages comes from the Canadian Centre for Policy Alternatives (CCPA), which has produced a document called "Making Sense of the CETA: An analysis of the final text of the Canada–European Union Comprehensive Economic and Trade Agreement". Even that runs to over a hundred pages; what follows are some of the key points that it highlights. Significantly, CCPA's analysis begins with the most contentious aspect of CETA, the investor-state dispute settlement (ISDS) chapter. It's crucially important not just because Germany is refusing to accept it, but also because it is likely to form the basis of a similar chapter in TAFTA/TTIP -- the European Commission included a draft version of the chapter as part of its public consultation on corporate sovereignty, offering it as a blueprint. One of the European Commission's repeated claims is that it will "fix" ISDS by making it clear that governments always retain the right to regulate, and that corporate sovereignty does not overrule that right. But CCPA's analysis shows why that is not true in CETA, despite similar claims there: The 'right to regulate' is mentioned three times in the agreement. In the preamble, the parties simply 'recognize' that the CETA protects the right to regulate ("RECOGNIZING that the provisions of this Agreement preserve the right to regulate..."), yet the text fails to clearly and unequivocally confirm this right, especially in the investment chapter. The other mentions are to be found in the labour and environment chapters, so that, in effect, the CETA shields the right to regulate from any international obligations to protect labour or the environment but not from all the detailed obligations in the investment chapter. Also in the environment chapter, the right to regulate is limited by formulations which require environmental policies to be implemented “in a manner consistent with the multilateral environmental agreements to which they are a party and with this Agreement,” meaning that environmental policies have to be consistent with the CETA -- not the other way round. CETA also includes a definition of "investor" that will make it easy for US companies to sue the EU using CETA and "treaty shopping", just as Philip Morris is suing Australia via its Hong Kong subsidiary: For the purposes of this definition an 'enterprise of a Party' is: (a) an enterprise that is constituted or organised under the laws of that Party and has substantial business activities in the territory of that Party”). The reference to 'substantial business activities' is not enough to prevent 'treaty shopping.' For example, U.S. investors in Canada would be able to use the CETA investment provisions and ISDS to challenge European state measures. One major surprise is found in the chapter covering regulation. Like ISDS, this is already a hot issue for TAFTA/TTIP, where many fear that national sovereignty will be sacrificed to the corporate kind. CETA shows another way in which this can happen -- and which is likely to be adopted in TAFTA/TTIP as well: Parties to the agreement have to ensure that the licensing and qualification requirements and procedures are based on particular criteria to preclude regulators from acting in “an arbitrary manner” (Article 2.1). Specifically, covered regulations will have to be: “a) clear and transparent; b) objective; c) established in advance and made publicly accessible” (Article 2.2). Parties have to ensure “that licensing and qualification procedures are as simple as possible and do not unduly complicate or delay the supply of a service or the pursuit of any other economic activity” (emphasis added) (Article 2.7). Making licensing procedures "as simple as possible" sets an absolute value on the ease with which corporations can get their projects approved to the detriment of all other considerations. The CCPA report explains how this new requirement could have a major impact on regulation: If a dispute panel interpreted "objective" to mean "not subjective," regulations could be overturned if they are based on the regulator's necessarily subjective balancing of different factors such as public input, the scenic impacts of a development and environmental considerations. For example: Dispute panels could determine that public input, environmental assessments and archaeological studies do not constitute a process that is "as simple as possible." CETA also provides some hints about the shadowy Regulatory Council that TAFTA/TTIP is likely to set up in order to ensure the convergence of future US and EU regulations. The danger here is that such a council will effectively vet or change new regulations before they are made public, and allow corporations with privileged access to government sources to prepare their lobbying well in advance. Indeed, that's exactly how CETA's "Regulatory Co-operation Forum" will work: Parties will endeavor to share "proposed technical or sanitary and phytosanitary regulations that may have an impact on trade with the other Party at as early a stage as possible so that comments and proposals for amendments may be taken into account." This means that information on future legislation could be shared with the other Party even before it has been shared with their Parliaments. If that were the case, the other Party could make amendments and comments before the country's own parliament got their hands on the draft legislation. These are just a few of the awful things that are starting to crawl out of the CETA text now that it has been exposed to some sunlight. CCPA's excellent analysis is grim but required reading, not just in order to understand what is in CETA, but also as a taster for some of the bad stuff that is likely to turn up in TAFTA/TTIP too. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Over the weekend, the NY Times revealed that it is the latest publication to receive notification from Google that some of its results will no longer show up for searches on certain people's names, under the whole "right to be forgotten" nuttiness going on in Europe these days. As people in our comments have pointed out in the past, it's important to note that the stories themselves aren't erased from Google's index entirely -- they just won't show up when someone searches on the particular name of the person who complained. Still, the whole effort is creating a bit of a Streisand Effect in calling new attention to the impacted articles. In this case, the NY Times was notified of five articles that were caught up in the right to be forgotten process. Three of the five involved semi-personal stuff, so the Times decided not to reveal what those stories were (even as it gently mocks Europe for not believing in free speech): Of the five articles that Google informed The Times about, three are intensely personal — two wedding announcements from years ago and a brief paid death notice from 2001. Presumably, the people involved had privacy reasons for asking for the material to be hidden. I can understand the Times' decision not to reveal those articles, but it still does seem odd. You can understand why people might not want their wedding announcements findable, but they were accurate at the time, so it seems bizarre to have them no longer associated with your name. The other two stories, however, again reveal the more questionable nature of this process: One Times article that is being shielded from certain searches in Europe is a report from 2002 about a decision by a United States court to close three websites that the federal government accused of selling an estimated $1 million worth of unusable Web addresses. The complaint named three British companies, TLD Network, Quantum Management and TBS Industries, as well as two men who it said controlled the companies: Thomas Goolnik and Edward Harris Goolnik of London. The case was later settled. Thomas Goolnik did not respond to messages left via social networking sites. Now, if the request was sent in by one of the Goolnik's, it seems especially questionable. The fact that they were involved in a legal dispute is relevant factual information, even if it was eventually settled. As for the other article... In the last of The Times articles, a feature about a 1998 production of “Villa Villa” by the ensemble called De la Guarda, it was much harder to divine the objection. Not a review, the article explored how the antic, acrobatic show was managing “to get a generation raised on MTV interested in seeing live theater.” It's unclear from that article what someone is upset about. There are a few people named (though many are Americans who aren't supposed to be filing for such requests). And, even with the quotes it's difficult to see how any of them could upset someone. The only thing that caught my eye is that the story quotes a "27-year-old art student" named Feliz Skamser. Skamser's quote is innocuous "It was like a dream, only more intense," but the very same sentence awkwardly inserts a quote from The Guardian (not from Skamser) calling the show "theater as good as sex." If people read the sentence quickly, perhaps some might think that Skamser said that latter quote -- and perhaps she was annoyed that people were associating her with a quote about sex? Or maybe she just doesn't want people to know she went to the theater? A search on her name will turn up that story on the American Google, but not the UK Google. Once again, though, we're left wondering how this setup makes any sense at all. If the information was accurate at the time, then why should it be removed?Permalink | Comments | Email This Story

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