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When the EU Court of Justice issued its "right to be forgotten" ruling, it seemed to forget that there are many more parties involved than simply the aggrieved person standing in front of them. There are those whose articles are being delisted, many of which are journalistic institutions that aren't going to simply lay there and allow some third party to selectively edit their publications. The Bolton News (UK) just received notification from Google that one of its stories was due to be vanished from Google's search engine. Needless to say, this request has produced another story highlighting the original story the filer(s) wanted delisted. A STORY in The Bolton News has come under the spotlight of the controversial new "right to be forgotten" ruling… The 2010 story details a court case in which Ben Barlow, Christopher Mahoney and Christopher Brennan were jailed after they pleaded guilty to violent disorder. They had attacked a group of soldiers who had all served in Afghanistan. The victims told the court they were more frightened in the pub than they had been on the front line. [...] In the attack, the thugs glassed paratrooper Adam Evans in the neck and stabbed him in the leg. Another of the soldiers, Jamie Morton, who was kicked and punched on the ground, said he feared he was going to die. At the trial of the three men, Judge William Morris said: “These victims were all injured. Mr Evans was very gravely injured indeed.” Someone thought this story should just go away. The Bolton News thought otherwise. Now, whoever wanted the original story delisted has another article to add to a future request. But judging from editor-in-chief's comments, adding Bolton News links to a right to be forgotten request is going to be a waste of time. “As the editor of a newspaper, I believe passionately in the freedom of the press and I will fight any attempts to remove legitimate content… “Clearly, people who aren’t happy that stories which we have legitimately published should not have the right to have them removed from a Google search, in my view." It sounds like the Bolton News will simply highlight each request as it comes in, defeating the requester's attempt to bury bad news. Many other journalism outlets have taken the same stance in the last several days, turning the EU court's ruling into one of the most self-defeating decisions ever rendered. The only way to prevent this is for the EU court to start taking action against journalistic entities who subvert the spirit of the ruling or ordering Google to stop notifying those affected, neither of which should even be considered by the legal body. The original ruling was terrible enough, especially in its blissful ignorance of how this "right to be forgotten" would work in practice. Things can be forgotten, even on the internet. But it's organic. Whatever the steady flow of content doesn't push aside will likely succumb to link rot at some point. Newspaper websites (a favorite target of right to be forgotten requests) experiment with paywalled archives or otherwise make their older articles unavailable (often just sloppy maintenance or coding), solving many of these complainants' problems for them. Issuing a request is pretty much guaranteed to bring it all right back to the surface. Forcing this organic process will almost always backfire, something requesters should keep in mind before filling out Google's webform. Permalink | Comments | Email This Story

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The good folks over at the EFF have a detailed overview of a new report from the UN, which has basically found that mass surveillance, similar to that which is carried out by the NSA and GCHQ can often violate international law. The full report is just 16 pages, but the EFF version highlights some of the key lines. The biggest is the report's rejection of the whole "collect the haystack" approach to mass surveillance. The UN report makes it clear that this is not a reasonable approach, especially when it is not shown to be "necessary and proportionate." Where there is a legitimate aim and appropriate safeguards are in place, a State might be allowed to engage in quite intrusive surveillance; however, the onus is on the Government to demonstrate that interference is both necessary and proportionate to the specific risk being addressed. Mass or “bulk” surveillance programmes may thus be deemed to be arbitrary, even if they serve a legitimate aim and have been adopted on the basis of an accessible legal regime. In other words, it will not be enough that the measures are targeted to find certain needles in a haystack; the proper measure is the impact of the measures on the haystack, relative to the harm threatened; namely, whether the measure is necessary and proportionate. It further finds that many countries do not effectively limit who has access to such bulk data collections, which exacerbates the problem: One factor that must be considered in determining proportionality is what is done with bulk data and who may have access to them once collected. Many national frameworks lack “use limitations”, instead allowing the collection of data for one legitimate aim, but subsequent use for others. The absence of effective use limitations has been exacerbated since 11 September 2001, with the line between criminal justice and protection of national security blurring significantly. The resulting sharing of data between law enforcement agencies, intelligence bodies and other State organs risks violating article 17 of the Covenant, because surveillance measures that may be necessary and proportionate for one legitimate aim may not be so for the purposes of another It also finds requirements for data retention to be problematic: Where there is a legitimate aim and appropriate safeguards are in place, a State might be allowed to engage in quite intrusive surveillance; however, the onus is on the Government to demonstrate that interference is both necessary and proportionate to the specific risk being addressed. Mass or “bulk” surveillance programmes may thus be deemed to be arbitrary, even if they serve a legitimate aim and have been adopted on the basis of an accessible legal regime. In other words, it will not be enough that the measures are targeted to find certain needles in a haystack; the proper measure is the impact of the measures on the haystack, relative to the harm threatened; namely, whether the measure is necessary and proportionate. The report condemns the pernicious use of "secret interpretations" of the law, something that has become all too common in the US: Consequently, secret rules and secret interpretations �“ even secret judicial interpretations �“ of law do not have the necessary qualities of “law”. Neither do laws or rules that give the executive authorities, such as security and intelligence services, excessive discretion; the scope and manner of exercise of authoritative discretion granted must be indicated (in the law itself, or in binding, published guidelines) with reasonable clarity. A law that is accessible, but that does not have foreseeable effects, will not be adequate. The secret nature of specific surveillance powers brings with it a greater risk of arbitrary exercise of discretion which, in turn, demands greater precision in the rule governing the exercise of discretion, and additional oversight. While reports like this may not directly impact the US's practices, it adds to the growing understanding and recognition both of what the NSA (and others) does, but also why it's totally unacceptable.Permalink | Comments | Email This Story

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You know, when it comes to publicity rights, that expansion of law that masturbates celebrity egos like no other, I can laugh it off when we hear from the likes of Lindsay Lohan, Katherine Heigl, and Dan Snyder. I mean, sure they're famous and rich, but they still probably deserve that famous Hitchhiker's Guide designation of "mostly harmless." That their attacks on anyone who dares make even the barest reference to their holy visages typically fail usually serves as enough mental closure in my mind to keep the dogs from barking in my head at night. Manuel Noriega, on the other hand, is an entirely different animal and his lawsuit against Activision over his portrayal in a Call of Duty game just makes me angry. Manuel Noriega, the former dictator of Panama, is suing Call of Duty's video games publisher. The ex-military ruler is seeking lost profits and damages after a character based on him featured in Activision's 2012 title Black Ops II. The 80-year-old is currently serving a jail sentence in Panama for crimes committed during his time in power, including the murder of critics. So let's get this straight: an octogenarian former dictator of Panama, who has been tried and convicted in two separate countries and is currently residing in a prison in Panama, is suing a United States video game publisher over his depiction? Now can we all go ahead and admit publicity rights are ridiculous? And Noriega's suit is a special brand of silly, according to entertainment lawyer Jas Purewal. "But Noriega isn't a US citizen or even a resident. This means that his legal claim becomes questionable, because it's unclear on what legal basis he can actually bring a case against Activision." It's strange that we even have to ask the question, isn't it? The same status Noriega enjoys as a public and historical figure is being used to protect his depiction as a public and historical figure. If we allow publicity rights to dominate the public interest in commenting and portraying public figures, even for entertainment purposes, where is that going to end? That Noriega's age puts him perilously close to crossing the line of all of this being applied to the deceased is even more worrisome. Perhaps the families of long-dead historical devils will look to bury their lineage's history in publicity rights law if this sort of thing is allowed to go on unchecked. Permalink | Comments | Email This Story

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There have been dozens of techno-panics over the past several years, but one usually expects cooler heads to prevail in government agencies where the word "investigations" is in the title and the employees have access to plethora of cutting-edge equipment. (Note: said "cutting-edge equipment" for surveillance only. Agency computer systems remain an outdated mess and the idea of recording in-custody interviews has finally arrived nearly four decades too late.) We are, of course, talking about the FBI. The FBI's relationship with technology is painfully one-sided. On one hand, it's pushing to gets its biometric database online and fully operational, hopefully years before its report on this database's privacy implications finally arrives. On the other hand, it has argued in court (via the DOJ) that smartphone technology vastly outpaces law enforcement's tools to access possible evidence and, therefore, should be obtainable without a warrant. But it is an investigative agency, which would seem to indicate it has the ability to gather facts and come to informed decisions. But it seems to prefer worried conjecture to actual data. (See also: Insane Clown Posse fans are an organized criminal entity.) But here it goes again, seeing another technological development as another way for criminals to gain the upper hand. In an unclassified but restricted report obtained by the Guardian under a public records request, the FBI predicts that autonomous cars “will have a high impact on transforming what both law enforcement and its adversaries can operationally do with a car.” In a section called Multitasking, the report notes that “bad actors will be able to conduct tasks that require use of both hands or taking one’s eyes off the road which would be impossible today.” The FBI looks at something that has the potential to make roads much safer and sees… autonomous vehicles loaded with gunmen, all of whom can use both hands to fire at pursuing law enforcement… or something. Autonomy … will make mobility more efficient, but will also open up greater possibilities for dual-use applications and ways for a car to be more of a potential lethal weapon that it is today.” Sure, the driverless vehicles could be loaded up with explosives and "told" to drive itself to its destination, but that seems like an incredibly expensive way to deliver a payload. And sure, vehicles might be hacked to ignore everything about them that makes driving safer, but that last part is nothing a human operator can't do in a normal, cheaper vehicle. And any vehicle with a driver can still carry armed criminals/explosives. Even the FBI admits that autonomous cars present the agency with certain advantages, including the fact that the first few iterations of car AI will be able to do little more than recreate OJ Simpson's "getaway." [A]utonomous cars would likely face many hardships with evasive driving or car chases... But using this AI for good (and hacking it to serve its purposes) may also revolutionize the FBI and law enforcement's pursuit techniques. "[A]lgorithms can control the distance that the patrol car is behind the target to avoid detection or intentionally have a patrol car make opposite turns at intersections, yet successfully meet up at later points with the target." While some of this report is undoubtedly dedicated to "what if" scenarios not unlike the risk disclosures included in IPOs, there's still something ridiculous about an investigative agency being so tuned into the terror frequency that it sees criminal intent in every technological advancement. If we wanted fear-based speculation about potential havoc-wreaking by new inventions, we'd ask the MPAA. Permalink | Comments | Email This Story

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Earlier we wrote about Rep. Marsha Blackburn adding a terrible amendment to a House appropriations bill that would block the FCC from preempting anti-competitive bans on municipal broadband. Unfortunately, despite some noise about it, the amendment it was approved 223 - 200 in the House. While Blackburn (falsely) spun the bill about letting local governments make their own decisions, that's flat out wrong. As others have pointed out it's exactly the opposite. The FCC's plan would be about giving power back to local governments to allow them to make their own decisions about whether or not they wanted to offer municipal broadband. What's really incredible here is that, as we noted this morning, one of the most successful muni-broadband projects in the country is in Chattanooga, Tennessee -- not far from Blackburn's district. Tennessee, however, has an anti-muni broadband law that is preventing Chattanooga from actually expanding its service and offering it to more people. The utility that runs the Chattanooga fiber project recently made it clear it would like to ask the FCC to preempt the law that's currently blocking it from expanding its service. So, Blackburn is directly telling people in Tennessee that they can't get faster, cheaper broadband, and that their local governments can't help, because of a lobbyist-fueled bill in the state capitol. If I were a constituent of Blackburn's, I'd be pissed off that's she is fundamentally blocking a path to faster, cheaper broadband. Thankfully, her amendment would have to be matched in the Senate, and that seems unlikely. But it still should make Blackburn's constituents question whom she's really representing here. The people who elected her, or the big cable company lobbyists? Wait, you don't have to answer that, because David Sirota has the details. Such an outcome would be a big win for the private telecom industry, which might explain Blackburn’s central role in the fight. According to campaign finance data compiled by the Center for Responsive Politics, two of Blackburn’s largest career donors are employees and PACs affiliated with AT&T ($66,750) and Comcast ($36,600). Those are two of EPB’s private-sector competitors in Chattanooga. Blackburn has also taken $56,000 from the National Cable & Telecommunications Association, the lobby for the big telecoms. So, that kind of answers that question, doesn't it?Permalink | Comments | Email This Story

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Every year, people pour billions of tons of concrete to build the stuff we live in and drive on. Concrete is everywhere, so it'd be nice to find better ways to make it and to make it more durable and to last longer. (FYI: Concrete is usually made up of 10-15% cement, and the cement is used to bind together sand and/or crushed rocks in concrete.) Here are just a few links on making better concrete. Superhydrophobic Engineered Cementitious Composite (SECC) is a mouthful of a name for a flexible, super-strong and long-lasting building material that could enable bridges and roadways to last over a century with minimal maintenance. Roads made with conventional reinforced concrete generally need to be replaced or significantly repaired within a few decades. [url] Certain bacteria can produce limestone, and adding these bugs to concrete makes a living building material that can repair itself. The trick is keeping the bacteria dormant (and not dead) until they're needed to help fill in small cracks in the concrete. [url] Roman concrete has lasted for thousands of years and is far superior to Portland cement in places like marine harbors. The lost recipe for Roman concrete probably contains lime and volcanic rock or volcanic ash, and modern concrete/cement could benefit from examining ancient samples of durable Roman building materials. [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, we wrote about Microsoft challenging the DOJ's attempt to use the outdated Electronic Communications Privacy Act (ECPA) to go fishing for emails held overseas. As Microsoft rightly noted, a warrant does not apply overseas. A magistrate judge tried to dance around this, saying that a warrant under ECPA is really kinda like a subpoena. But Microsoft points out how insane that is: This interpretation not only blatantly rewrites the statute, it reads out of the Fourth Amendment the bedrock requirement that the Government must specify the place to be searched with particularity, effectively amending the Constitution for searches of communications held digitally. It would also authorize the Government (including state and local governments) to violate the territorial integrity of sovereign nations and circumvent the commitments made by the United States in mutual legal assistance treaties expressly designed to facilitate cross-border criminal investigations. If this is what Congress intended, it would have made its intent clear in the statute. But the language and the logic of the statute, as well as its legislative history, show that Congress used the word "warrant" in ECPA to mean "warrant," and not some super-powerful "hybrid subpoena." And Congress used the term "warrant" expecting that the Government would be bound by all the inherent limitations of warrants, including the limitation that warrants may not be issued to obtain evidence located in the territory of another sovereign nation. The DOJ has responded to Microsoft's filing and basically says yeah, whatever, we can take whatever we want, and if it's overseas, who cares? Overseas records must be disclosed domestically when a valid subpoena, order, or warrant compels their production. The disclosure of records under such circumstances has never been considered tantamount to a physical search under Fourth Amendment principles, and Microsoft is mistaken to argue that the SCA provides for an overseas search here. As there is no overseas search or seizure, Microsoft’s reliance on principles of extra-territoriality and comity falls wide of the mark. A bunch of tech and telco companies have all jumped into the case on Microsoft's side as well, noting that the DOJ's argument would almost certainly violate data privacy laws in other countries, not to mention piss off governments around the globe. The crux of the argument, as per usual with the DOJ, is that when it wants data, it will twist and twist and twist the laws to enable it to get access to as much data as possible, with as little scrutiny as possible. This is just one of many reasons why we need serious ECPA reform -- such that it actually respects the 4th Amendment. But, in this case, it would be nice to have a judge realize that even under such an outdated law, the DOJ's interpretation is simply out of line.Permalink | Comments | Email This Story

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If you follow the history of copyright law, it's truly about taking a ridiculous duct-tape approach to dealing with changes in technology. Basically, each time a new technology comes along that shows how the old laws are obsolete, lobbyists run to Congress and some sort of change is duct-taped on, often haphazardly, with little concern for either the unintended consequences or exploring how broken the system is in the first place. That actually makes things worse, because you have all these random "add-ons" that make copyright law make even less sense. When radio came along, we got some duct tape. When cable TV came along, we got some duct tape. When the internet came along, we got some duct tape. And not all of it made sense. There are still big fights going on today as everyone tries to sort out how the radio duct tape applies to the internet. And, of course, the Aereo fight was partly about whether or not the cable duct tape applies to the internet (leading to the Supreme Court turning duct tape into a duck). We've discussed at length the ridiculous process by which cell phone unlocking was briefly declared legal under copyright law... and then magically became illegal due to a decision by the Librarian of Congress to rescind an exemption to the DMCA. After over 100,000 people signed a petition asking for it to be fixed, the White House told Congress to fix it -- but in true duct-tape fashion, decided that it should just add on some more duct tape by saying changes should be made to telecom regulations, rather than targeting the root of the problem: Section 1201 of the DMCA, better known as the anti-circumvention clause. As we noted recently, after a year-and-a-half of a mix of fighting over this and a whole lot of nothing, the Senate came up with a compromise that isn't horrible, but doesn't do very much other than make it legal to unlock your phones again. The full Senate has now approved this. Of course, earlier this year, the House passed a dangerously bad bill to pretend that it was dealing with the problem as well, but it actually had some bad problems. The two houses will have to bring the bills into alignment now, and hopefully the Senate bill wins out. However, as Tim Lee over at Vox points out, this is a huge missed opportunity because it's Congress taking that same duct tape approach yet again. Rather than actually fixing the underlying problem (a broken Section 1201), Congress has decided to pass a bill that duct tapes on "except for unlocking mobile phones... for now." This isn't surprising. Actually fixing Section 1201 would be a massive process that would lead to quite an insane fight from Hollywood (they love the anti-circumvention provision, because it allows them to DRM everything and create controls for themselves beyond what everything else in copyright law allows -- such as taking away fair use). The other big stumbling block is that, thanks to bogus international trade agreements, doing something so simple as to actually fix this broken part of the DMCA that possibly made cell phone unlocking illegal... would likely violate more than half a dozen trade agreements. While Congress has the power to ignore those trade agreements if it wants, lobbyists love to go apeshit about anything that might "violate international agreements," as if suddenly Europe won't do business with us any more because we dare to let people unlock their mobile phones. Either way, this one issue does a lot to show why copyright law continues to be such a mess. It's just a hack process, which new technology routes around... and Congress' response is just to duct tape on the next mess to "fix" the mistake, rather than look at the underlying reasons why the law is outdated and problematic. Hopefully you'll be able to unlock your mobile phones soon without worrying about breaking the law -- but that won't be true for other things, like modifying your video game console or other types of electronic devices. A sane world would get to the root of the problem and fix it, but this is Congress we're talking about, and no one thinks that's a sane world.Permalink | Comments | Email This Story

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One of the more common responses we've seen to all of the revelations about all of that NSA surveillance, is the response that "Well, I don't think the NSA really cares about what I'm doing." A perfect example of that is long-time NSA defender Ben Wittes, who recently wrote about why he's not too worried that the NSA is spying on him at all, basically comparing it to the fact that he's confident that law enforcement isn't spying on him either: As I type these words, I have to take on faith that the Washington D.C. police, the FBI, the DEA, and the Secret Service are not raiding my house. I also have to take on faith that federal and state law enforcement authorities are not tapping my various phones. I have no way of knowing they are not doing these things. They certainly have the technical capability to do them. And there’s historical reason to be concerned. Indeed, there is enough history of government abuse in the search and seizure realm that the Founders specifically regulated the area in the Bill of Rights. Yet I sit here remarkably confident that these things are not happening while my back is turned�”and so do an enormous number of other Americans. The reason is that the technical capability for a surveillance event to take place does not alone amount to the reality�”or likelihood�”of that event’s taking place.... For much the same reason as I am not rushing home to guard my house, I have a great deal of confidence that the National Security Agency is not spying on me. No doubt it has any number of capabilities to do so. No doubt those capabilities are awesome�”in the wrong hands the tools of a police state. But there are laws and rules that protect me, and there are compliance mechanisms that ensure that the NSA follows those laws and rules. These systems are, to be sure, different from those that restrain the D.C. cops, but they are robust enough to reassure me. Julian Sanchez has a blistering response to that, appropriately entitled Check Your Privilege, which highlights that while Wittes, a well-paid, white, DC-based policy think tank worker, may be confident of those things, plenty of other folks are not nearly so confident, and that the NSA has made it pretty clear that they shouldn't be so confident. In a democracy, of course, the effects of surveillance are not restricted to its direct targets.  Spying, like censorship, affects all of us to the extent it shapes who holds power and what ideas hold sway.  Had the FBI succeeded in “neutralizing” Martin Luther King Jr. earlier in his career, it would hardly have been a matter of concern solely for King and his family�”that was, after all, the whole point.  Instead of a couple wonks comfortably ensconced in D.C. institutions, let’s instead ask a peaceful Pakistani-American who protests our policy of targeted killings, perhaps in collaboration with activists abroad; we might encounter far less remarkable confidence.  Or, if that seems like too much effort, we can just look to the survey of writers conducted by the PEN American Center, finding significant percentages of respondents self-censoring or altering their use of the Internet and social media in the wake of revelations about the scope of government surveillance. Or to the sworn declarations of 22 civil society groups in a lawsuit challenging bulk phone records collection, attesting to a conspicuous decline in telephonic contacts and members expressing increased anxiety about their association with controversial or unpopular organizations.  As Sanchez notes, it's not just whether or not any of us are direct targets, but the overall chilling effects of how the system is used. And, I should note, that while Wittes is confident that he's safe -- there are a growing number of folks who have good reason to believe that they are not immune from such surveillance. The recent revelation that Tor users are labeled as extremists who get extra-special scrutiny seems like a major concern. Similarly, the story from earlier this year that the NSA targeted the Pirate Bay and Wikileaks as part of some of its surveillance efforts is a major concern. In the process of doing journalism, I've communicated with folks associated with some of those and other similar organizations. In the past, I probably would have similarly noted that I doubted the NSA cared at all about what I was doing, but as each of these stories comes out, I am increasingly less sure. And, more importantly, even if the NSA is not at all concerned with what I happen to be doing, just the fact that I now have to think about what it means if they might be certainly creates a chilling effect, and makes me think twice over certain people I contact, and what I say to them. It's easy to claim that you're not worried when you're the one out there supporting those in power. It becomes a lot trickier when you're either criticizing those in power, or communicating with those who challenge the power structure. Suddenly, it's not so easy to sit on the sidelines and say "Meh, no one's going to care about me..." And that should be a major concern. The way we keep a strong democracy is by having people who are able and willing to challenge the status quo and those in power. And yes, the US is much more forgiving than many, many other countries to such people, but there are clear biases and clear cases where they are not at all accepting of such things. And the more of a chilling effect the government creates around those things, the more dangerous it becomes to stand up for what you believe in.Permalink | Comments | Email This Story

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John Oliver had the right idea last month when he noted that we shouldn't be discussing "net neutrality," but rather "preventing cable company fuckery." I've been sorting through a bunch of the hundreds of thousands of "comments" on the FCC's proposal, and it's amazing how nearly all of them basically say "we support a free and open internet..." but then totally diverge on how to accomplish that -- with people basically insisting that either reclassifying under Title II would protect an open and free internet, or destroy an open and free internet. But if the goal is to honestly prevent "cable company fuckery," it's not difficult to figure out which plans make sense, because all of the major broadband players are pretty clear that they really, really like the FCC's plan -- and we already know that they also tend to like "fuckery." AT&T had already kicked this off last month by insisting that Section 706 was a lovely way to keep the internet open and free and Title II would damn us all to the 9th circle of hell (or something close to that). Yesterday, Comcast said something similar in its blog post and actual FCC filing. Though, as you dig deep into Comcast's filing, you get weasely language like the following: Comcast supports the application of such a standard [the "commercially reasonable" standard for paid prioritization]. Comcast also would not be opposed to a rebuttable presumption that "paid prioritization" arrangements are commercially unreasonable. This presumption could be interpreted to preclude, among other things, exclusive arrangements and arrangements that prioritize a broadband provider's own affiliated Internet content vis-a-vis unaffiliated content. A broadband provider seeking to justify any "paid prioritization" arrangement could be required to bear the burden of showing that the arrangement is commercially reasonable and fair to consumers and edge providers. Comcast believes that few arrangements would be deemed to overcome the presumption. However, the Commission should not establish a policy that would preclude all experimentation in this area. Arrangements could emerge between broadband providers and edge providers that could have widely varying implications for competition and consumer welfare based on the terms of an individual arrangement, the parties involved, and the markets affected. As FCC General Counsel Jon Sallet recently explained, "[c]ase-by-case enforcement offers a potentially more dynamic approach, permitting the Commission to respond to and learn from the rapid pace of change in the communications market." This is sneaky in the extreme. Beyond being somewhat mealy-mouthed, that first paragraph pretends to say these rules would stop fast lanes. But what it really says is that broadband providers would be totally free to experiment with paid prioritization agreements, and might then have to defend them in front of the FCC later if and only if those who are screwed over (generally smaller players who have neither the cash nor the lawyers necessary) complain loudly enough to the FCC that it investigates the issue. The second paragraph makes it quite clear that the broadband companies have every intention of "experimenting" with fast lanes. They're just going to look for ways to pretend that they're beneficial to customers -- such as by first setting artificially low "broadband caps," and then letting big internet companies pay them to have those caps ignored for their content only. Meanwhile, NCTA, the lobbying arm of the cable industry (which current FCC Commissioner Tom Wheeler used to run, and which is currently run by former FCC Commissioner Michael Powell), has also weighed in on just how great it thinks the proposed plans are. Just like AT&T and Comcast, it insists that (1) Section 706 is just dandy and (2) Title II would be horrific. It insists that Section 706 gives the FCC the power to deal with any problems, while Title II would just likely lead to litigation. This is self-contradictory. As both Comcast and NCTA make clear, part of their support for Section 706 is that it allows the FCC to pick and choose what to declare problematic on a "case-by-case" basis. But you (and those lobbyists) know that any such attempt by the FCC to declare something commercially unreasonable will lead to a lawsuit as well. In other words, either plan is likely to lead to lawsuits and uncertainty. Anyone claiming that one plan won't is being misleading. Finally, the mega filing came from Verizon late last night, and may be the most interesting and ridiculous. It too is quite happy with the FCC's plan, and Verizon's view is best summarized as "there's no reason to put rules on anything we do!" But... at the same time, it's rather passive aggressive in attacking internet companies like Netflix, Google and Amazon, pretending that if the FCC wants to regulate anyone, it might want to look at those guys. In other words "hands off of us, look at those guys who actually provide the services people like." But, when it comes to Title II classifications -- the very same one that Verizon begs to have its fiber lines classified under to get subsidies and tax breaks -- Verizon insists that it would be a total disaster for its broadband access to be regulated under that system. Because it says so. But, when it comes to actually creating fast lanes, like Comcast, Verizon is excited by the "commercially reasonable" standard and all the fuckery it allows, though of course it couches it in language pretending to be about "protecting consumers." ...consumer welfare is best protected if the Commission allows broadband Internet access service providers to manage their networks and�”if they so choose�”offer differentiated services or implement sophisticated pricing strategies as long as those practices do not harm competition. In assessing whether a practice harms competition, it is essential not to confuse harm to competitors with harm to competition. The Commission has stated “We believe that consumers of broadband access service should have the ability to exercise meaningful choices.” Those choices should include services offered by edge providers that have chosen to enter arrangements for differential treatment in order to offer more desirable services to their customers. Such options will benefit consumers, even as they reduce rival edge providers’ economic welfare by increasing the competitive pressure they face. In other words, give us our fast lanes and fuck the internet companies. So, really, if you go back to the basic idea that John Oliver made clear: if the goal here is to prevent [broadband provider] fuckery, which do you think is really going to do that? The plan that the broadband providers claim to love, or the one that they're all scared to death the FCC might actually put in place?Permalink | Comments | Email This Story

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There's been plenty of talk about the influence of money in politics -- and we've certainly covered ambitious projects like Larry Lessig's MayDay SuperPAC a few times. However, down in Kentucky, a group called Represent.us is taking a different -- and potentially more effective -- approach to making people aware of the nefarious impact of money in politics. They've organized a satirical campaign for the Kentucky Senate by Gil Fulbright -- the most Honest Politician in Kentucky. Fulbright, of course, is played by an actor (Frank Ridley), but does a pretty good impression of a politician. To get a sense of his level of honesty, check out this campaign ad: If you can't watch it, here's the opening transcript: Hi! I'm Gil Fulbright. The people who run my campaign made this commercial and I'm in it. This campaign? It's not about me. It's about crafting a version of me that appeals to you. A version that visits random work sites with paid actors, pointing at things. A version of me that doesn't find old people loathsome or pointless. Has a conventionally attractive, yet curiously still, family. Listening to my constituents, legislating? These are things I don't do. What I do is spend about 70% of my time raising funds for re-election.... It goes on in that style and is pretty amusing. He's got some other commercials too, such as one for net neutrality and one for health care, both with the tagline: "I'm Gil Fulbright: for the right price, I'll approve any message." Represent.us put together an IndieGoGo campaign to help fund their plan to insert Fulbright (satirically) into the high profile (and very expensive) Kentucky Senatorial race. He's obviously not running for real, but the idea is to piggyback on the spotlight on the Kentucky race between Mitch McConnell and Alison Lundergan Grimes, which is expected to cost $100 million (nearly all of it from out of state). As Represent.us explains how they'll make use of Fulbright's "campaign": He'll crash campaign events, run “honest political ads” on TV and the radio, and do whatever it takes to get the whole country talking about money in politics corruption. We’re renting a campaign bus, slapping Gil’s beautiful face on it, and hitting the campaign trail to bring some much-needed honesty to one of the most expensive Senate campaigns in American history. The IndieGoGo campaign quickly raised its targeted $20,000 (needed for a campaign bus), and is rapidly approaching the $30,000 for billboards. The team is hoping for even more to put some of their ads on TV as well. Obviously, this alone isn't going to move the needle on the question of money in politics, but greater attention from a variety of different angles can only help raise awareness.Permalink | Comments | Email This Story

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There were rumors yesterday of a few ridiculous and extreme attempts by some in Congress to attach some anti-net neutrality amendments to the big Financial Services and General Government Appropriations Act. And while the most ridiculous proposal failed to appear, instead, it does appear that Rep. Marsha Blackburn is pushing an amendment to block the FCC from preempting laws that ban municipal broadband. The big cable companies have fought municipal broadband for ages because they hate competition. Cable and telco lobbyists have succeeded in getting such laws passed in a number of cities and states, with some politicians directly admitting that the bills were written by those lobbyists. And while there have been some disasters in munibroadband efforts, there have also been some amazing successes, providing truly competitive broadband that also helped force competitors to up their game. That's why we were happy to see FCC chair Tom Wheeler make it clear that he was willing to use the FCC's powers to preempt laws blocking competitive broadband. This would be a very good use of the FCC's power to encourage real competition and innovation. Blackburn's amendment is all about stopping that, and making sure that your broadband is as expensive as possible, with no real innovation or competition on the way. Blackburn, of course, is also the politician who constantly screams about how terrible it would be to "regulate the internet" when it comes to net neutrality, but seems to have no qualms at all "regulating the internet" when it comes to other things, like SOPA (she was one of its main supporters). She's also claimed that "fair use" and "transparency" are just buzz words and that we need much stricter intellectual property enforcement. But when it comes to actually making sure you have a competitive broadband market? She's totally against that. You would think, given that she's from Tennessee, that she'd be aware of the massive success of muni fiber over in Chattanooga. It's not her district, but it's not too far away. Perhaps she should take a visit and see if the residents there would support her stomping out competition and fast broadband. Blackburn's amendment is to be voted on today, so groups like EFF, Public Knowledge and Free Press are urging folks call Congress to oppose Blackburn's latest bad idea.Permalink | Comments | Email This Story

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Another day, another example of copyright as censorship. Today's example comes from the RIAA. TorrentFreak has the story of how the RIAA has suddenly (for no clear reason) decided that ReelRadio's historical archive of radio airchecks is problematic. ReelRadio, created (and apparently last designed) in 1996, is a non-profit organization focused on preserving music radio history. Airchecks are demo reels, showing off the talents of radio announcers, and are a pretty useful and fascinating look into the history of radio. But, as far as the RIAA is concerned, ReelRadio is nothing more than a pirate site. This is despite the fact that ReelRadio actually has a license to play the music that is often incidentally included in airchecks. “The RIAA has determined that our service fails to meet the requirements for ‘archived programs’, which must be at least five hours in duration and may not be made available for more than two weeks. The service must also display the Title, Artist and Album of each featured song, but only while the recording is being performed,” ReelRadio President Richard Irwin explains. And then there's this: “The RIAA insists that we obtain permission from the copyright owners of these old radio broadcasts. Many broadcasters understand the difficulty of this requirement, since nearly all radio stations have changed ownership, format, and call letters, many times over,” Irwin explains. “Nevertheless, we are expected to provide the RIAA with an explanation of how we have permission from radio stations that no longer exist and copyright owners who have no interest in historic recordings of their property.” It seems like ReelRadio would have an astoundingly strong fair use defense, but actually taking on the RIAA in court is likely prohibitively expensive (and distracting), though I'd hope that the organization could find some pro bono legal support. TorrentFreak argues that the RIAA may be on "solid ground" legally, but I don't see how this doesn't pass the fair use sniff test. The purpose and character of the use clearly falls into fair use. The nature of the work (an aircheck) also clearly leans towards fair use. The amount and substantiality taken may at first look like it leans against fair use, but the recent Westlaw ruling demonstrated that when it is "necessary" to copy the entire work for the intended purpose, that also supports fair use. It's possible this could weigh against ReelRadio, given that an argument could be made that the airchecks could be "scoped" (i.e., have all music removed), but that would certainly lessen the value of the archive. And, finally, the commercial impact clearly weighs (strongly) towards fair use. Honestly, I'm curious exactly what kind of "license" the RIAA claims to have sold ReelRadio in the first place, because now it seems like the RIAA has been ripping off ReelRadio for years, demanding payments for something that doesn't need payment. Either way, ReelRadio appears to have taken down over 1,100 of those unscoped airchecks, basically deleting them from history. Thanks, RIAA, for helping to destroy culture and hide it from public view (potentially forever) yet again.Permalink | Comments | Email This Story

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The self-assured nature of federal prosecutors can be quite insane. We've talked many times in the past about how the criminal justice system is completely rigged against anything remotely looking like fairness. From grand juries to plea bargains to sentencing guidelines, the entire system is designed to make anyone who enters it presumed guilty until their spirit is crushed and destroyed. In the last few years we've noted an even more disturbing trend: law enforcement creating their own plots, in which they lure (often gullible or marginalized) individuals into a convoluted criminal "plot" in which nearly all of the other players are fellow law enforcement folks (or informants). They then build up this big plot... wait until it's about to go off (knowing it'll never actually happen) and then arrest those they lured into it. It has happened over and over and over and over and over and over and over and over and over and over and over and over again. Courts have found that this is technically not "entrapment," even though it sure appears to come close to it. That's why we were quite happy to see a federal judge finally call out one of these questionable plots. Earlier this year, we wrote about Judge Otis Wright (whose name you may recall from the beatdown he gave Team Prenda) calling out one of the ATF's homegrown criminal plots for "outrageous government conduct" in creating a "made up crime." Wright detailed how the government picked details of the entirely fictional plot at levels to guarantee felony charges, and also accused it of "trawling... poverty-ridden areas" in a "fishing expedition" dangling huge riches on people who have no money. He further noted that nearly all of the elements of "the crime" were done by the ATF: But for the undercover agent’s imagination in this case there would be no crime. The undercover agent invented his drug-courier persona, the stash house, the 20 to 25 kilograms of cocaine supposedly inside the stash house, the two individuals supposedly guarding the stash, the need to use weapons, and the idea of robbing the stash house. He even provided the putative safe house and getaway van. Dunlap brought little to the table besides his sheer presence and perhaps the hope of being able to obtain some quick cash. [....] ...here, the undercover agent provided a getaway van, putative safe house, and�”most important of all�”the entire scheme and its fictitious components. He also alleviated Defendants’ logistical and safety concerns when he “proposed that he would be inside the stash house at the time of the robbery . . . .” ... So, how did the DOJ respond to this setback? Well, via Brad Heath, we see that the DOJ has gone to the appeals court to demand a new judge, accusing Judge Wright of being biased. Seriously. Reassignment is warranted “to ensure not only the existence, but the appearance, of impartiality,” such as when “the district judge . . . may be viewed as having assumed the role of advocate.” ... Here, as Dunlap himself has suggested..., the district court’s tone and actions have created the appearance of hostility to the government. As set forth earlier, the court’s tone has not been one of impartiality. To be sure, a holding of “outrageous” conduct necessarily entails strong language�”condemnation is built into the very standard. But even so, the court’s comments are extreme: accusing the government of “lead[ing] us into temptation”; of “stoop[ing] to the same level as the defendants it seeks to prosecute” and “creating crime”; of targeting people simply for being poor or for having bad thoughts; and of being “cold-blooded and heartless.” Similar is the court’s refrain that the crimes of conviction were “fake,” “trumped up,” “cut from whole cloth,” or “made up”�”after all, it was Hudson who initiated contact, the defendants showed up with guns, one of which Whitfield boasted could cut a man in half.... Similar, too, is the court’s repeated criticism of the investigation as a “trawling” expedition where bait was “dangled” “irresistibl[y]” before poor, ignorant defendants. It is not just that the substance of the court’s accusations is wrong: merely erring is not grounds for reassignment. It is that the tone creates the appearance of hostility toward a government “oppressor.” ... And that tone is not limited to the court’s description of historical facts: it has been also dismissive to government counsel during hearings. In short: because the DOJ called out the ATF and the DOJ for its outrageous behavior, that proves that the judge is biased and therefore unfit to hear the case. Only judges that accept our outrageous behavior are reasonable and should be allowed to hear our cases. This is the attitude of federal prosecutors. The entire system is already rigged to support us, so if a judge somehow actually pushes back on something we did, then clearly he's the problem, rather than our outrageous behavior.Permalink | Comments | Email This Story

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New York's finest, formerly Mayor Bloomberg's Personal Army, has decided it's going to do things its own way, even if it means generating truly meaningless arrests. The NYPD is telling its officers to keep making the lower-level marijuana busts that they had been, despite a recent memo from Brooklyn DA Kenneth Thompson that his office would no longer prosecute such cases… Yes, no one tells the NYPD what to do, not even the District Attorney. The NYPD's memo -- one that plainly states it will arrest people who will never be prosecuted -- is required reading for Brooklyn precincts for the next 10 days, just to ensure those police officers understand their workday will contain a certain amount of deliberate futility. On one hand, the memo does contain a good point -- law enforcement should be consistent across all of New York's boroughs. On the other hand, it plainly states that the NYPD is more interested in generating paperwork and empty arrest statistics than approaching the DA's announcement in a more reasonable fashion. Here's what DA Thompson was hoping to accomplish with his decision to not pursue low-level drug offenders. The move was intended to "make better use of limited law enforcement resources and to prevent offenders – who are disproportionately young men of color – from being saddled with a criminal record for a minor, non-violent offense," according to a statement. This could have been seen as an indication of where the department should head -- towards a more reasonable stance on drug enforcement. Instead, it's been viewed as "inconsistency" and responded to with all the obstinance the department is famous for. DA Thompson's order really doesn't eliminate that many possession arrests. His memo stated that those smoking in public (especially around children), 16-17-year-old offenders (who will be placed into a diversion program) and people with existing criminal records will still be prosecuted. This just leaves mainly the truly harmless: recreational users. But the War on Drugs is every bit as essential to the NYPD as the War on Terror, and the NYPD (with new chief Bill Bratton's blessing) will continue to make meaningless arrests -- arrests made even more meaningless by DA Thompson's announcement. If nothing else, this ensures the sort of job security that's usually only touted in sarcastic tones by the deeply cynical. According to the New York Times, arresting recreational users is full-time work for Brooklyn cops. Over the past 15 years, marijuana arrests in New York have soared, partly because a rising number of stop-and-frisk encounters led to searches of people’s pockets. There were 8,150 cases in Brooklyn in which the top count was a minor marijuana possession charge in the year ending June 30, according to the memo on Tuesday. Marijuana arrests have decreased during the first six months of this year, compared with the same period in 2013. That decrease in marijuana arrests is directly related to the decline in stop-and-frisk encounters after a court decision and a new city law curbed this controversial program. It's quite obviously not (the NYPD's directive confirms it) the result of the NYPD shifting its focus to more serious criminal activity. There's hardly anything more ridiculous than deploying law enforcement officers -- with all their expertise and training -- to bust users of a drug that has been legalized in two states for recreational use and in a host of other states for medical use. There's nothing more ridiculous than sending officers out to bust recreational users and serve them up to a DA who's just going to let them go -- and one that specifically told the department he would not prosecute.Permalink | Comments | Email This Story

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It's funny, but despite the stories we occasionally write involving the classic roleplaying game Dungeons & Dragons, some of which I've written myself, I've never actually played the game. Maybe that's why, according to the folks who have tried to ban the game, I'm not a satanic axe-wielding, uber-murderer. Who knows; could be possible. And, truth be told, outside of the more broadly-accepted video game habit I have, I've never delved into much of the so-called nerd gaming culture, other than being completely addicted to Wil Wheaton's Table Top YouTube series. And, despite all of the historical controversy over these kinds of games, I really wish I'd gotten into them more now that some literary authors are claiming what a huge influence D&D-style games have had on their abilities as story-tellers. For certain writers, especially those raised in the 1970s and '80s, all that time spent in basements has paid off. D&D helped jump-start their creative lives. As [writer Junot] Díaz said, "It's been a formative narrative media for all sorts of writers." The league of ex-gamer writers also includes the "weird fiction" author China Miéville ("The City & the City"); Brent Hartinger (author of "Geography Club," a novel about gay and bisexual teenagers); the sci-fi and young adult author Cory Doctorow; the poet and fiction writer Sherman Alexie; the comedian Stephen Colbert; George R. R. Martin, author of the "A Song of Ice and Fire" series (who still enjoys role-playing games). Others who have been influenced are television and film storytellers and entertainers like Robin Williams, Matt Groening ("The Simpsons"), Dan Harmon ("Community") and Chris Weitz ("American Pie"). It's an impressive list, but it also makes a certain kind of sense. There's a certain sandbox-esque element to creating a low-tech story-based gaming environment centered around roleplaying with friends. As someone who has written fiction, I can tell you that one of the most important aspects of telling a story is being able to get inside the heads of the characters in your tale. That's essentially roleplaying, no matter how you look at it. The other half of the story equation is the setting, which is something roleplaying players also must engage in creatively. The Dungeon Master must create a believable world with a back story, adventures the players might encounter and options for plot twists. That requires skills as varied as a theater director, researcher and psychologist — all traits integral to writing. (Mr. Díaz said his boyhood gaming group was "more like an improv group with some dice.") Sharyn McCrumb, 66, who writes the Ballad Novels series set in Appalachia, was similarly influenced, and in her comic novel "Bimbos of the Death Sun" D&D even helps solve a murder. "I always, always wanted to be the Dungeon Master because that's where the creativity lies — in thinking up places, characters and situations," Ms. McCrumb said. "If done well, a game can be a novel in itself." Now, some of this might read like an advertisement for pen-and-paper or tabletop games as a creativity booster such that the modern-day video games can't match, but that's almost certainly a mistake. You can make that argument against some of the mindless games out there, but you could do likewise with poorly constructed D&D games as set up by the people playing them. As games become more story-driven, as they are able to portray plot and characters with more granularity than ever before, and as player choice becomes interwoven into the story, the player is creating their own story to some degree, just like they do in a classic roleplaying game. The larger lesson, of course, is that all the moral panics we hear tend to focus on an overblown fear and ignore any net-positive that might exist. Generations of speculative fiction authors and other creative folks were influenced positively by Dungeons & Dragons, despite the fervor by some against the games themselves. I'd lay money down that we'll hear similar stories about modern-day gaming as well. Permalink | Comments | Email This Story

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We've long made the argument that one way to combat piracy is to connect with fans and treat them well. In other words, being awesome will generate enough good will from fans that actually want a producer's product such that piracy no longer becomes a major concern, because fans will want to buy. It's funny how much of a reputation some folks have built off of this concept, from Joss Whedon to Wil Wheaton to Louis CK. Those examples aside, nobody said combating piracy by being awesome was easy, so it's still a good idea to highlight instances of people and companies doing it right. Enter Skullgirls, a fighting game with an irreverent sense of humor and style, both in terms of its gameplay and the method by which it deals with people pirating their game. For instance, if you pirate Skullgirls and progress far enough through the game, you'll get this message. Should you be unable to see the screen shot, a popup window comes up that reads: "What is the square root of a fish? Now I'm sad." This message only appears to players who have pirated the game. The player can then simply click out of the popup. Or, if you're Dan Hibiki, a.k.a. @SaikyoChamp on Twitter, you can tweet at the Skullgirls developer, Lab Zero Games, and ask them what's up with the message, which is exactly what he did. The official Skullgirls Twitter account tweeted back at him suggesting that he buy the game instead of pirating it. Now, that'd be a pretty level-headed response from a game developer on its own, but when Lab Zero Games then went on to hold an awesome conversation with their pirate-on-a-hook, the concept of being awesome got elevated a few notches. Some highlights include: //@Skullgirls ... I'm sorry. I kinda did a trybeforeyoubuy thing. I already bought it on PS3 and I'm planning on buying it for Steam, soon. — Dan Hibiki (@SaikyoChamp) July 8, 2014 @SaikyoChamp It’s all good, man. Well... I mean, it isn’t really, but I get it. Just try to do the right thing eventually. — Skullgirls (@Skullgirls) July 8, 2014 As a result of not flying off the handle, even though it is understandably frustrating to see people pirating your work, there are a ton of people favoriting and retweeting the entire exchange. In other words, Lab Zero Games builds up a ton of goodwill, Skullgirls gets some viral publicity, and nobody has to spend gobs of money on lawyers. That's some next-level awesome. Permalink | Comments | Email This Story

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People seem to be amazed when water rolls right off the surface of something because it's not the usual thing that happens. Everything gets wet, so when something doesn't, it looks pretty cool. But hydrophobic materials are actually useful, too. Here are just a few projects looking into materials that repel liquids like water. The surface of a material with water repellent nano-structures can create a "lotus leaf effect" that exhibits superhydrophobicity, repelling water and making a self-cleaning mechanism. Mimicking these surface textures is possible, and artificially hydrophobic surfaces could have a variety of practical applications (but maintaining nano-structures in real-world conditions can be a challenge). [url] A superomniphobic coating that repels not just water, but oils and even non-Newtonian liquids, is being developed in Michigan. While most folks think of stain-free clothing, this kind of coating will probably be better suited for other kinds of protective gear (eg. haz-mat suits) and other one-time use items. [url] Superhydrophobic surfaces are interesting for a bunch of reasons -- you can imagine self-cleaning solar panels or airplane wings that won't need de-icing. One more interesting application: improving the energy efficiency of steam turbine generators. [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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Three years ago, we criticized Google for going down the same mistaken path as other social networks with a "real names" policy for its Google+ system. We pointed out how Friendster had made this mistake in 2003 and Facebook had also similarly focused on such policies in 2007 (through today), without recognizing the importance of enabling anonymity and pseudonymity. While some people insist that "real names" guarantees a higher level of conversation and/or participation, there is little evidence to support that. We've long seen on our own site that many of the most useful and insightful comments come from anonymous users. And people using their real names will often say some really dumb things. While it's easy for some people to insist that there's no big deal here, the stories of people negatively impacted by such a policy were very moving. Stories about people who had been abused or stalked, fearing being re-discovered by their tormenters. Stories of transgender people who had not "come out" to co-workers, but were "forced" to. Stories of people trying to hide from death threats. These were not minor issues. Google adjusted its policy somewhat, but not entirely. However, today the company announced that it was completely abandoning restrictions on naming within Google+. Not only that, in its announcement, the company admits that the old policy caused harm to people: When we launched Google+ over three years ago, we had a lot of restrictions on what name you could use on your profile. This helped create a community made up of real people, but it also excluded a number of people who wanted to be part of it without using their real names. Over the years, as Google+ grew and its community became established, we steadily opened up this policy, from allowing +Page owners to use any name of their choosing to letting YouTube users bring their usernames into Google+. Today, we are taking the last step: there are no more restrictions on what name you can use. We know you've been calling for this change for a while. We know that our names policy has been unclear, and this has led to some unnecessarily difficult experiences for some of our users. For this we apologize, and we hope that today's change is a step toward making Google+ the welcoming and inclusive place that we want it to be. Thank you for expressing your opinions so passionately, and thanks for continuing to make Google+ the thoughtful community that it is. I still think that the company should have done this from the very beginning, but kudos to it for eventually coming around and recognizing that "real names" is a bad policy that can have serious unintended consequences -- and that letting people use pseudonyms is not a bad thing.Permalink | Comments | Email This Story

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While the FCC has thankfully extended its deadline for filing comments on the net neutrality issue through Friday after its site melted down (again), I also wanted to share with you exactly what it is that we're submitting to the FCC. In short: we support reclassification under Title II in combination with clear forbearance, to limit the regulatory power of the FCC to just the specific issues dealing with keeping the internet free and open for competition. We note how important this has been to us on a variety of levels. For example, as a small company, we've been able to effectively compete against much larger news organizations. That would be much more difficult when those organizations could negotiate and pay to be on "fast lanes" while smaller operations like ourselves would be unable to do so. Furthermore, we note the harm that this would have on free speech. Given that we are frequent critics of the major broadband players, it's likely that even if we were able to afford to pay for "priority access," those companies would make it difficult for us to actually do so, using some sort of pretense to limit the ability of vocal critics to get access to the "fast" internet. In addition, we urge the FCC not to ignore the interconnection issue, by which broadband access players have "shifted" the debate away from the last mile, but have effectively achieved the same result: getting big internet companies to pay double for the bandwidth consumers already thought they were paying for. Beyond that, though, we hope that the FCC will actually do what it's been promising for the better part of a decade and encourage actual real competition in a variety of ways: knocking down barriers to entry, increasing (vastly) the amount of spectrum available and exploring possibilities to encourage competition at the service level, rather than just at the network level. You can read our entire comment below. While some friends in Washington DC have promised to deliver our comments by hand today, we'll keep trying the electronic way as well. Hopefully we'll get it delivered by the end of the week. PS: If you like our reporting on net neutrality issues, please consider supporting our crowdfunding campaign, which will allow us to put even more resources towards reporting on this key issue.Permalink | Comments | Email This Story

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The rather astoundingly named Josh Earnest is the recently appointed press secretary of President Obama, and he's kicked off his tenure with quite a whopper: insisting that, despite complaints from basically every corner, President Obama really is "the most transparent President in history." As you may recall, President Obama promised upon election that he would be "the most open and transparent" President, and one of his first orders of business in the White House was promise the same. Of course, as many folks have been documenting for years, the reality has been anything but true. The Obama administration has been ridiculously secretive for years when it comes to FOIA requests, literally setting records in denying FOIA requests. The NYT's former executive editor, who has covered many administrations has directly noted that the Obama administration was the most secretive she could recall. Even federal judges have regularly dinged the administration for refusing to hand over documents required by law. As Stephen Colbert has noted, the administration is really only good at the most transparent bullshit legally allowed. In fact, just as Mr. Earnest was insisting that the Obama administration was so damn transparent, Mother Jones had a good article about how often the Obama administration was making use of the "state secrets privilege" to get lawsuits tossed out, such as in various no fly list challenges. In 2008, then candidate Obama insisted that the use of the state secrets privilege by the government was dangerous. But, now that he's in charge, he's quick to use it himself: In 2008, Obama griped that the Bush administration invoked the state secrets privilege "more than any other previous administration" and used it to get entire lawsuits thrown out of court. Critics noted that deploying the state secrets privilege allowed the Bush administration to shut down cases that might have revealed government misconduct or caused embarrassment, including those regarding constitutionally dubious warrantless wiretapping and the CIA's kidnapping and torture of Khaled el-Masri, a German car salesman the government had mistaken for an alleged Al Qaeda leader with the same name. After Obama took office, his attorney general, Eric Holder, promised to significantly limit the use of this controversial legal doctrine. Holder vowed never to use it to "conceal violations of the law, inefficiency, or administrative error" or "prevent embarrassment to a person, organization, or agency of the United States Government." Despite this promise, Obama continued to assert the privilege to squelch cases about Bush-era abuses. In one instance, the Justice Department scuttled a lawsuit brought by a man who claimed he had been kidnapped by the CIA and had his penis and testicles cut with a scalpel in a Moroccan prison. And now Obama is broadening the use of this legal maneuver: In the past 18 months, the Obama administration has twice cited state secrets to prevent federal courts from considering lawsuits challenging its use of the no-fly list. So, given all this evidence that the Obama administration is incredibly secretive, what could Earnest's reasoning possibly be? Well, you see, President Obama has released his visitor logs at the White House. Because, you know, that's what everyone really means when they talk about White House transparency. Earnest noted that previous administrations had “gone to the Supreme Court” to prevent the release of White House visitor information, but that the Obama administration “releases it voluntarily on the Internet on a quarterly basis.” “Reporters for years clamored to get access to fundraisers the president hosted or attended that were hosted in private homes,” Earnest continued. “Reporters now have access to those when this president goes to a private home.” So, the President has made a few tiny concessions to transparency on issues that really don't matter at all, but has doubled down on secrecy on the things that do actually matter. Sure, I know that the Press Secretary's job is to basically cover for the President and do whatever possible to defend the White House's claims, no matter how bogus, but wouldn't the world be better off if there were actually a tiny bit of honesty from such folks? They could admit that they've tried and failed. They could say that transparency promises seemed easier from the outside, but turned out to be more difficult in reality. They could admit that it's still a work in progress. Any of those would at least acknowledge reality. Pretending reality isn't reality doesn't convince anyone. In fact, it just appears to be yet another example of the very non-transparency that everyone's complaining about in the first place.Permalink | Comments | Email This Story

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Some good news on the innovation front. Following on Fox's big initial loss in trying to stop Dish's Autohopper DVR feature, an appeals court has upheld the ruling. The main issue? Fox completely failed to show how an injunction is necessary to stop "irreparable harm." The court is pretty sure that any "harm" would be quite "reparable." There isn't much analysis -- the court just clearly is not convinced. Beyond saying that the district court didn't make any legal errors in issuing the original ruling, the appeals court notes that the service has been available for a while already, kinda disproving the whole "irreparable harm" argument. Here, the district court found that Fox’s lack of evidence that the complained-of technology, available for several years, had yet caused Fox’s business any harm weighed against Fox’s argument that it would be irreparably harmed absent a preliminary injunction. In so finding, the district court did not hold Fox’s evidence to a more rigorous standard than our law requires and so did not abuse its discretion. Perhaps more importantly, the court totally and completely ignored Fox's ridiculous attempt to argue that the Aereo ruling supports its position. That was a crazy argument from the very beginning, and clearly attempted to stretch the whole "looks like a duck" test beyond the breaking point. As Dish had pointed out in its response, Aereo lost because it didn't have licenses. Dish has licenses, so it's not even close to being relevant. The court appears to have treated it with the amount of respect Fox's argument deserved: none.Permalink | Comments | Email This Story

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It's already happened once that the FCC's commenting system buckled under the weight of a flood of submissions. However, today is the final day to send in official comments on the Notice of Proposed Rule Making (NPRM), and once again, FCC.gov appears to be unable to handle the deluge. I've been personally trying for a while now to submit Floor64/Techdirt's comments, without any luck. I'll have a post up soon about our actual comments, whether or not I can actually get them delivered to the FCC, but you'd hope that the FCC could at least figure out how to keep a (rather basic) site up at such a time. Unexpected downtime happens, but the FCC had to know they were going to get a flood of traffic and submissions today and had months to prepare.Permalink | Comments | Email This Story

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posted 10 days ago on techdirt
It's not much of a secret that broadband providers will bend over backwards to try to keep you from cancelling. In fact, many people realize that if you want to get a lower broadband bill you should just threaten to cancel. Rather than actually cancelling, you get transferred to a "retention specialist" who is paid on commission for annoying you into not cancelling. A little over a month ago, Tim Lee at Vox had some of the details, specific to Comcast: "Everything was very commission-based," says Adam Reinardy, who worked in a Comcast call center in Minnesota until 2008. "You lost commission if you gave deals. If you retained a customer without giving them any sort of deal, you got commission on it." That's all useful background for the following recording of Ryan Block (former editor-in-chief of Engadget and the founder of gdgt) trying to cancel his Comcast service. The recording starts approximately 10 minutes into the call, at which point Block is clearly already quite frustrated about the whole thing, and the Comcast customer service rep is clearly just trying to play his "part" of getting an answer to why Block is cancelling, so that he can then try to jump onto his big bag of tricks to try to badger and bully Block into staying. It gets more and more painful: The call is pretty much what you'd expect, but taken to a level that verges on Saturday Night Live-level parody. The customer service rep clearly has a script of how to respond to any "reason," but Block won't take the bait by giving him a reason. He just wants to cancel. Even towards the end, after he agrees to cancel the service and promises not to ask any more, he keeps on asking. Block asks when he's going to cancel the service, and the guy pretends that he's "working on it." When Block finally tells him to not speak until it's done, the guy then admits (of course) that it's done. In between all of this, the various salesy pitches get more and more ridiculous. "We're the fastest, guaranteed!" "Why not go with the company you know?" "You'll have to go to the store to return your cablecard!" Comcast, of course, is famous for their horrible customer service. Just a few months ago, Comcast (and Time Warner Cable) were voted the absolute worst by the American Consumer Satisfaction Index, which is "considered the most comprehensive customer satisfaction survey in the United States." That was just a month after Comcast was voted the Worst Company in America by Consumerist. I haven't been a Comcast customer in ages following the October from hell when they cut out my internet service every day at 10am, and when I'd call, they'd tell me it was for "scheduled maintenance." And that it should "be back by 4pm." When I asked if it was "scheduled" for the next day, they'd tell me they couldn't tell me that information. Nor could they explain why I hadn't been told of this "scheduled" maintenance or why they couldn't refund me for all that broadband I'd paid for but couldn't use. Comcast has been trying, for many years, to change that view with its "Comcast Cares" tagline: But, as a pretty long history and this call clearly demonstrate, Comcast leaves off the full version of Comcast Cares in its promo material: Permalink | Comments | Email This Story

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posted 10 days ago on techdirt
Well this is fascinating. Ronan Farrow, the well-known MSNBC reporter who is also an attorney and former State Department official (and, at times, a subject of much parental speculation), apparently has come out in favor of blatant censorship. Following in the dangerous footsteps of Joe Lieberman, Farrow is apparently angry that internet companies like YouTube, Facebook and Twitter aren't taking down accounts that he believes are used by terrorists. The Sunni Islamic State insurgents, now locked in a deadly struggle with Iraq’s Shiite majority, excel online. They command a plethora of official and unofficial channels on Facebook, Twitter, and YouTube. “And kill them wherever you find them,” commands one recent propaganda reel of firefights and bound hostages, contorting a passage from the Koran. “Take up arms, take up arms, O soldiers of the Islamic State. And fight, fight!” adds another, featuring a sermon from the group’s leader, Abu Bakr al-Baghdadi. The material is often slickly produced, like “The Clanging of Swords IV,” a glossy, feature-length film replete with slow-motion action scenes. Much of it is available in English, directly targeting the recruits with Western passports that have become one of the organization’s more dangerous assets. And almost all of it appeals to the young: Photoshops of Islamic State fighters and their grizzly massacres with video game-savvy captions like, “This is our Call of Duty.” But officials at social media companies are leery of adjudicating what should be taken down and what should be left alone. “One person’s terrorist is another person’s freedom fighter,” one senior executive tells me on condition of anonymity. Making that call is “not something we’d want to do.” Of course, what Farrow ignores is that it's not at all difficult to find Americans using social media for similar calls to action. For example, how about a Fox News contributor announcing that it was time to "Muslims are evil. Let's kill them all." Or a Breitbart News contributor calling for people to "start slaughtering Muslims in the streets, all of them." I find both of those statements abhorrent, but the point is that idiots will make stupid incendiary statements on Twitter, Facebook and YouTube all the time -- and most people look at them and realize that they're ignorant crazy people talking. No one is actually incentivized to run out and actually follow those arguments. Yet Farrow seems to think that the people who follow those other groups on social media immediately accept what is said and follow through? Just because people are saying stupid stuff on social media, doesn't mean internet companies should step in and decide what is and what is not appropriate. Where do you draw the line? Farrow breezily admits that it may be difficult to figure out what to take down and what to leave up, but... then just assumes it's kind of easy anyway... because child porn. More troubling still is the fact that these companies already know how to police and remove content that violates other laws. Every major social media network employs algorithms that automatically detect and prevent the posting of child pornography. Many, including YouTube, use a similar technique to prevent copyrighted material from hitting the web. Why not, in those overt cases of beheading videos and calls for blood, employ a similar system? See how limited types of censorship almost always lead to calls for greater and greater censorship> It's fairly amazing that an attorney, former State Department official and a reporter would so blatantly call for censorship, but that appears to be Farrow's bag. Besides, he's apparently rather clueless about why his call for censoring "terrorists" is so different from child porn (an absolute liability situation, where it's generally immediately obvious if something is illegal) and copyright (where the system is already quite problematic, and involves a detailed notice-and-takedown process that has massive dangerous unintended consequences). He also ignores the fact that all of these companies already do pull down extremist content (something many folks think already goes too far). Apparently, Farrow's not big on details. Farrow does mention Section 230 of the CDA, but apparently is ignorant of how that law actually works as well: As always, beneath legitimate practical and ethical concerns, there is a question about the bottom line. Section 230 of the Telecom Act of 1996 inoculates these companies from responsibility for content that users post�”as long as they don’t know about it. Individuals involved in content removal policies at the major social media companies, speaking to me on condition of anonymity, say that’s a driving factor in their thinking. “We can’t police any content ourselves,” one explains. Adds another: “The second we get into reviewing any content ourselves, record labels say, ‘You should be reviewing all videos for copyright violations, too.’” First of all, this is wrong. The "as long as they don't know about it" is flat out wrong. Section 230 actually is explicit that if you do know about it, it's entirely the company's discretion whether or not to remove. If they do, that imposes no additional obligations on them to remove other content. However, the final comment is more accurate -- though, amusingly, it contradicts Farrow's own earlier statement about how these companies already know how to stop copyright-covered content from appearing. The point is that determining who is and who is not a "terrorist" isn't so easy, and that slope is very slippery. Should those Fox News and Breitbart contributors be cut off as well for their "terroristic" threats? Remember that after then-Senator Joe Lieberman went on a similar crusade to get YouTube to take down "terrorist" videos, it resulted in YouTube disabling the YouTube channel of an important Syrian watchdog group that had been unveiling atrocities in that country. Farrow keeps going back to the genocide in Rwanda to prove his point. But under his logic, anyone documenting that genocide and getting the news out to the world would likely be censored, allowing that kind of genocide to go on. Yes, if you think simplistically about things, it must seem so easy to just say, "Well, censor the bad guys." But you'd think that someone with Farrow's training and background would actually know that simplistic solutions to challenging and nuanced questions often result in very dangerous policies with serious unintended consequences.Permalink | Comments | Email This Story

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