posted 11 days ago on techdirt
You might think that copyright on its own has enough problems. And yet DRM, originally designed to protect digital copyright material from unauthorized copying, has managed to make things much worse. It not only punishes with extra inconvenience those who acquire legal copies -- but not those who manage to find illegal versions without DRM -- it also allows the DMCA to be used to disable competitors' products, to create repair monopolies, and even to undermine the very concept of ownership. You can see why the copyright industry really loves DRM, and fights to preserve its sanctity. And you can also see why the following news from Portugal, where the parliament has just approved a bill allowing DRM circumvention and even bans in certain situations, is such a big deal. As TorrentFreak reports: The bill, which received general approval last December, tackles the main issues head-on by granting copying permission in some circumstances and by flat-out banning the use of DRM when the public should have right of access to a copyrighted work. In a boost to educators, citizens will be given the right to circumvent DRM for teaching and scientific research purposes. There will also be an exception for private copying. The draft also outlaws the use of DRM on copyright works that have fallen into the public domain, works which support cultural heritage, and works that were created by public entities or funded with public money. Those are all eminently sensible restrictions on DRM, but they are likely to be met with howls of anger by the copyright maximalists if Portugal's president approves the law, as seems likely. That's because it would set a crucial precedent for allowing DRM to be circumvented legally, and establish that DRM can be completely forbidden in some situations. As a result, we can probably expect Portugal to be punished in the traditional manner: by being placed on the ridiculous "Priority Watch" list of the USTR's Special 301 report. If that does happen, let's hope Portugal follows Canada's lead, and treats the move with the contempt it deserves. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
We've been following the evolutionary milestones for eSports for some time now. What was once an event class considered equal parts fringe and foreign has made impressive strides towards the mainstream in mere years. It started with a small university granting scholarships for eAthletes, progressed into the realm of coverage on sports broadcasting giant ESPN, and made yet another leap with an eSports section of the pie being carved out by the NBA. Not all progress towards the mainstream needs to be of a new type, of course, and eSports reached another milestone harkening back to its first, with the announcement that the University of Utah, a member of the Pac-12 Conference, has started its own varsity eSports program. The University of Utah has announced a varsity esports program, starting with League of Legends. Part of the Pac-12 Conference, Utah is the first Power Five school to sponsor this type of program, and it doesn’t plan on stopping at one game. The team, sponsored by the EAE video game development program, hopes to expand to a total of four games, according to the Salt Lake Tribune. Students from the current campus esports group Crimson Gaming, as well as high school recruits, will be part of the team. Players will receive partial scholarships, with an eventual goal of over 30 student-athletes and coaches to be on scholarship. There will always be arguments about whether eSports are sports in the traditional sense, as well as how good a thing it is that colleges are getting in on this at all, but from a market and industry standpoint the progression is all about interest and advertising dollars. For a school like the University of Utah to invest in this sort of thing, it's likely it required the broadcasting success ESPN has had and the nod to that success that the NBA showed to push this along. And now that eSports has been formally introduced to one school in a Power Five conference, you should absolutely expect many of the other schools to follow suit. The growth at this point may tend towards the exponential. Once the broadcasting and advertising revenues really start to kick in, eSports will be here in a very big way. Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
The governor of Idaho doesn't care about his constituents. State legislators had successfully pushed through an asset forfeiture reform bill with overwhelming support, but Governor Butch Otter vetoed it on April 6th. (h/t Ed Krayewski at Reason) The bill ran into some law enforcement resistance on its way to being passed. A 58-10 vote sent it to the governor's desk over the concerns of law enforcement, who apparently felt that law enforcement via asset forfeiture would just be too difficult if some form of actual due process was recognized. While Reps. Rubel and Harris did work with some law-enforcement groups while drafting the bill and these organizations decided not to oppose it, other police organizations came out against the bill, worried it would put too many restrictions on their ability to seize drug dealers’ ill-gotten gains or the cash they could use to commit further crimes. Apparently, those concerns were indulged by Governor Otter. His veto statement [PDF] makes the dubious assertion that Idaho law enforcement has never abused the process. There have been no allegations that Idaho law enforcement officers or agencies are illegally or inappropriately seizing property from alleged drug traffickers. Its sponsors contend that the measure is aimed at preventing improper forfeiture of assets in the future, but there is no evidence to suggest that such a problem is imminent. The absence of allegations is not the absence of abuse. Fighting forfeiture is prohibitively expensive and takes place in a closed judicial system that pretty much guarantees at least partial failure. Idaho isn't the worst of the worst -- not according to the Institute for Justice's grading -- but scoring a "C" is hardly an exoneration of the process. A "C" rating still stacks the deck in favor of law enforcement: Although Idaho appears to pursue forfeitures against property owners only modestly, its civil forfeiture laws still put the property of ordinary citizens at risk. To forfeit your property, the state only needs to show that it was more likely than not that your property was used in some criminal activity—the legal standard of preponderance of the evidence. To recover seized property, an innocent owner bears the burden of proving his innocence. Moreover, law enforcement in Idaho reaps all of the rewards of civil forfeitures—they keep 100 percent of all funds and face no requirement to report data on forfeiture use and proceeds. Otter also cited "public safety" as a reason for vetoing the reform bill. Somehow, seizing cash but letting suspected criminals go free makes us safer. [T]here is a legitimate public safety concern associated with allowing those charged with drug crimes to keep money, cars and other civil assets that may be connected with those crimes. Not the least of these concerns is the potential for evidence to disappear or be tampered with. Which is bullshit. If cops aren't seeking convictions, they don't need evidence. Forfeited items don't go into an evidence locker. It's converted for use by the agency seizing it -- 100% of it as allowed by Idaho law. If there's no prosecution pending, it's not evidence. It's just assets, but ones now in the hands of someone other than their original owner. The governor is deliberately muddying the waters (or he truly doesn't understand the subject matter) by conflating criminal asset forfeiture with the more popular version -- civil asset forfeiture -- which has nothing to do with the "criminal charges" Otter leads off with. But where Governor Otter's statement really shows his disdain for everyone but a small percentage of his constituents is this part: The fact that this bipartisan legislation was overwhelmingly approved by both the House and Senate is outweighed by compelling opposition from law enforcement and the absence of any benefit to law-abiding citizens from its enactment. The people and their representatives don't matter, not when weighed against the apparently onerous requirement that law enforcement seek convictions when seizing property. The benefit Otter can't see is intangible: conviction requirements eliminate fishing expeditions by law enforcement officers who may be more interested in assets than convictions. That does make the public safer, but the public's top representative only represents law enforcement interests. Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
Since Congress threw out new privacy rules for ISPs that were supposed to come into effect soon, there's been a renewed uproar on all sides of the debate about internet regulation. While the big ISPs generally want to be able to do as they please, there are smaller service providers out there that fully understand and embrace the need for privacy, net neutrality and more. One such ISP is Sonic, and this week we're joined by CEO Dane Jasper to discuss why these rules are a good thing. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
Give an inch and they will take a mile, as the saying goes. This mantra applies quite nicely to the recent spate of site-blocking efforts that have taken place around the world. Once content owners, chiefly Hollywood and music groups based in America, manage to slightly open the door to having entire sites blocked by order of government, they then barge through and expand the scope of the site-blocking exponentially. And the groups doing this barging don't even bother to hide their plans. In Ireland, one can see this in the recent news of the Motion Picture Association submitting an order to have several websites blocked by ISPs there. On behalf of several major Hollywood studios, the group requested Irish Internet providers to block access to three popular streaming sites; movie4k.to, primewire.ag, and onwatchseries.to. In their complaint, the movie studios, including Disney, Twentieth Century Fox, and Warner Bros, described the sites as massive copyright infringement hubs, with each offering thousands of infringing movies. Monday evening the court approved the request. This means that the three websites will soon be rendered unavailable by Eircom, Sky Ireland, Vodafone Ireland, Virgin Media Ireland, Three Ireland, Digiweb, Imagine Telecommunications, and Magnet Networks. The blocking of entire websites on the basis of industry complaints should be seen as no small thing. Given how often sites that Hollywood claims are "pirate sites" in fact have completely legitimate uses, wary eyes should be cast at this sort of censorship. These three sites may not fall under that falsely accused designation. The problem is that in the immediate aftermath of the court's decision, the MPA is licking its chops to go after many, many more sites. The ISP asked the court to put a cap on the number of notifications, limiting it to 50 per month. However, the movie studios objected to a blocking cap, and the judge decided not to add any limitations for now. No caps, because as we've seen in other European countries, these blocking requests will now be vastly expanded to include all kinds of websites. With that volume increase will come mistakes, overreach, and false accusations. It's what always happens. And at that point, Irish citizens, and perhaps the courts, will realize exactly what kind of Pandora's box has been opened to satiate the folks in Hollywood. The ISPs in Ireland already know this, as they are hedging their support for these blocking efforts in the future. Irish Times reports that none of the ISPs opposed the blocking request. However, Eir said that the costs involved could become an issue if the number of blocked websites increases drastically in the future. It's easy money to bet that those drastic increases will come about quite quickly. Hollywood can't seem to keep from barging through a door like this once it's been cracked open. Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
Trump's DOJ -- led by Jeff Sessions -- is rolling the clock back… on everything. Sessions has problems with the country's interest in decriminalizing personal marijuana use. Weed has been a big moneymaker for the FBI and DOJ, and no one likes losing paying customers -- especially not the private prisons that bad drug laws have kept full of taxpayer-supported "guests." He also wants to roll back the DOJ's Civil Rights Division to the good old days. You know, before it actually existed and/or did anything about unconstitutional policing. Even though crime rates in most cities are still at historical lows, Trump and Sessions believe the country is under siege by violent criminals, who must be dealt with in the harshest, most expensive way. Now, there's this: Spencer Hsu of the Washington Post reports the DOJ will be reversing course on the junk science it so often refers to as "forensic science." Attorney General Jeff Sessions will end a Justice Department partnership with independent scientists to raise forensic science standards and has suspended an expanded review of FBI testimony across several techniques that have come under question, saying a new strategy will be set by an in-house team of law enforcement advisers. In a statement Monday, Sessions said he would not renew the National Commission on Forensic Science, a roughly 30-member advisory panel of scientists, judges, crime lab leaders, prosecutors and defense lawyers chartered by the Obama administration in 2013. The DOJ's reliance on sketchy forensic science has long been a problem -- one the FBI even admitted to after its lab techniques and expert witness overstatements were examined by outside forensic scientists. Government "experts" were routinely overstating the "scientific certainty" of DNA matches of lab-tested evidence, resulting in the wrongful convictions of hundreds of people. The evidence given an appearance of authenticity by the government's "experts" on the stand was anything but: • a 2002 FBI re-examination of microscopic hair comparisons the agency’s scientists had performed in criminal cases, in which DNA testing revealed that 11 percent of hair samples found to match microscopically actually came from different individuals; • a 2004 National Research Council report, commissioned by the FBI, on bullet-lead evidence, which found that there was insufficient research and data to support drawing a definitive connection between two bullets based on compositional similarity of the lead they contain; • a 2005 report of an international committee established by the FBI to review the use of latent fingerprint evidence in the case of a terrorist bombing in Spain, in which the committee found that “confirmation bias”—the inclination to confirm a suspicion based on other grounds—contributed to a misidentification and improper detention; and • studies reported in 2009 and 2010 on bitemark evidence, which found that current procedures for comparing bitemarks are unable to reliably exclude or include a suspect as a potential biter. The committee reexamining the DOJ's lab practices got off to a rocky start when a federal judge appointed to the committee resigned after it became apparent the DOJ wasn't interested in seeing all of its junk science undone. The committee's work continued, but the DOJ publicly stated it wouldn't be changing much about how it handled forensic evidence. It would simply ask government witnesses to dial back their assertions of "scientific certainty." On the (formerly) bright side, the DOJ had been reviewing its forensic work, hopefully with the intent of improving it. That's over now. Anyone involved with making the government's forensic science better is being replaced with more "traditional" lab staffers who will make sure the government always wins. A path to meet needs of overburdened crime labs will be set by a yet-to-be-named senior forensic adviser and an internal department crime task force, Sessions’s statement said. So long, reexamination. Hello, "crime task force." This turns any examination of DOJ forensic science into a wholly internal affair. This confirms the conclusion Judge Rakoff came to when he resigned from the examination committee: the government wants its dubious evidence to remain unquestioned and its submitted evidence to be safe from examination by defense experts. "Trial by ambush," as Judge Rakoff referred to it. With Sessions' latest move, the DOJ moves even further away from the word "justice." In suspending reviews of past testimony and the development of standards for future reporting, “the department has literally decided to suspend the search for the truth,” said Peter S. Neufeld, co-founder of the Innocence Project, which has reported that nearly half of 349 DNA exonerations involved misapplications of forensic science. “As a consequence innocent people will languish in prison or, God forbid, could be executed,” he said. The move is, of course, being applauded by prosecutors. Eliminating any questioning of the DOJ's forensic science and evidence allows them to obtain more convictions. The fact that the underlying evidence may be flawed doesn't appear to matter. The National District Attorneys Association is completely behind a closed shop operation -- one that allows the DOJ to start with conclusions and mold the "science" to fit its predetermined ends. Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
Learn all about building and monetizing apps on the Android platform with the Ultimate Android Development Bundle. Pay what you want and you get access to a course covering the basics of building mobile Android apps. If you beat the average price for the bundle, you unlock access to 5 other courses with over 80 hours of instruction and hands-on lessons on building apps. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
For years we've noted how more than twenty states have passed laws -- often quite literally written by ISP lobbyists -- that prevent towns and cities from building their own broadband networks (either alone, or with a private partner). Even in instances where, as is often the case, the incumbent broadband provider refuses to upgrade them. ISP lobbyists (and the lawmakers that love them) usually try to defend these protectionist laws by first demonizing municipal broadband as some kind of vile socialist cabal, then pretending new state laws are necessary to protect local communities from themselves. In reality, municipal broadband is an organic, grassroots reaction to broadband market failure. And buying laws that restrict local communities' rights to decide local infrastructure matters for themselves is little more than regulatory capture. Like net neutrality and privacy rights, municipal broadband actually has broad, bipartisan support -- and most municipal broadband networks are built in Conservative markets with local voter support. But by framing the issue in a partisan way (government run amok!), ISP lobbyists have been able to sow dissent and stall progress that could challenge their status quo. A new survey of 4,000 consumers by the Pew Research Project once again drives that point home, highlighting that 70% of Americans support letting towns and cities build their own broadband networks -- if they're not getting decent service by the regional incumbent: "A substantial majority of the public (70%) believes local governments should be able to build their own broadband networks if existing services in the area are either too expensive or not good enough, according to the survey, conducted March 13-27. Just 27% of U.S. adults say these so-called municipal broadband networks should not be allowed. (A number of state laws currently prevent cities from building their own high-speed networks, and several U.S. senators recently introduced a bill that would ban these restrictions.)" That said, partisan lines are far more stark when it comes to support for subsidizing broadband to low-income areas: "At the same time, fewer than half of Americans (44%) think the government should provide subsidies to help lower-income Americans pay for high-speed internet at home. A larger share (54%) says high-speed home internet service is affordable enough that nearly every household should be able to buy service on its own." Partisan battle lines are also quite notable when it comes to asking consumers if they think broadband is essential versus just kind of important (in part because if you admit broadband is "essential," then you need to do something about it -- and that might cost taxpayer dollars): "Republicans and Democrats tend to agree that broadband is important, but Democrats are more likely to say it is essential: 58% of Democrats and Democratic leaners describe broadband in this way, compared with 38% of Republicans and Republican leaners. A similar split is evident by race and ethnicity, with blacks (55%) and Hispanics (61%) more likely than whites (45%) to say that high-speed access at home is essential." That dissent is certainly understandable, given how easy it has been for companies like Verizon to nab billions in tax breaks and subsidies for jobs half-completed. There's also a laundry list of states like West Virginia, where regional incumbents received millions in well-intentioned subsidies -- only to turn around and waste that money on projects that helped virtually nobody. While some skepticism is warranted, there are countless instances where broadband subsidies did precisely what they were designed to do -- without much (if any) fanfare. But again, it's interesting how municipal broadband tends to smash through these well-worn partisan grooves many of us dig into the earth. In large part because if there's one thing that we can all agree on -- it's that companies like Comcast and AT&T kind of suck, and dealing with their utterly abysmal customer support is a unifying, albeit miserable, experience. So then, too, is sticking it to these giant, lumbering, apathetic, and uncompetitive sector giants, and building a local, more accountable network operator where the money -- and employment -- actually remains in the local community. The problem usually winds up being how to pay for it. Consumers may support the idea of municipal broadband and want to protect their right to vote for or against it, but many don't want to pay for it. That's why we're seeing more public/private partnerships between cities and companies like Google or Tucows/Ting. The problem, again: state laws bought by large ISPs often ban or hamstring public/private partnerships as well to help keep local competition at bay. Despite the broad support for municipal broadband, states continue to sell state telecom law to the highest bidder. AT&T convinced Missouri to pass a law earlier this year expanding restrictions on municipal broadband -- after the telco failed to bury a restricting provision into a state traffic bill. Virginia tried to similarly expand its ban on municipal broadband, but lawmakers there were forced to retreat after they took a notable beating from the press and public. As we've long noted, one surefire way to prevent towns and cities from getting into the broadband business is to provide cheaper, better service. But it has long been significantly easier to just buy a state lawmaker and protectionist law to protect the dysfunctional status quo. And like so many issues facing America, until we at least marginally address money's influence on politics -- and/or drive a higher turnout during state elections, little if any of this is going to change. Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
France's presidential election season has kicked in. The supposed "moderate" of the bunch -- Emmanuel Macron -- has managed to gain considerable support in the last several months. Some of this has sprung from our own recent election. Earlier this year, the candidate took digs at Trump's anti-climate change stance, stating France would welcome dejected US scientists with open arms. He also said this, taking a shot at Trump's planned border wall. Macron also had a thinly veiled dig at Trump’s intention to build a wall along the Mexico border, comparing it to France’s Maginot Line, which in 1940 failed to keep Nazi invaders out of France. “I don’t want to build a wall. I can assure you there’s no wall in my program,” he told about 8,000 cheering supporters. “Can you remember the Maginot Line?” Macron has, for the most part, refused to get swept up in post-terrorist attack hysteria. Most of his statements have stressed restraint rather than indulge in expansions of government power, as so many others are prone to do. But something's changed recently. Macron may be the moderate who doesn't want European nations to turn into police states in reaction to terrorist attacks. But he appears to feel there's a certain amount of security/privacy that could be sacrificed to fight terrorism. Speaking at his Paris launch, Mr Macron said he wants to legally compel social media companies to give authorities access to encrypted messages between terror suspects. "Democratic states must have access to content exchanged between terrorists on social media and instant messaging," he said, while introducing a five-point strategy that would bring in new powers across Europe. He said it was "no longer acceptable" for companies to insist that they have a contractual obligation to clients after offering protected communication. He cited Google, Facebook, Apple and Twitter as those he wants to have frank discussions with. This sounds like the French counterpart to the "adult conversations" FBI Director James Comey wants to have with tech companies about encryption. Of course, in Comey's case, the "conversation" doesn't necessarily even have to include tech companies. He's fine with legislation or All Writs Orders or whatever for the time being -- anything that doesn't involve actually speaking to anyone who understands encryption. It's tougher to get a read on Macron's desires and intentions. He hasn't spent months hammering away this issue or claiming terrorists are staying ahead of law enforcement by using Whatsapp or iPhones or spiral-bound notebooks. But what he's suggesting is rather breathtaking: an EU-wide undermining of encryption. If tech companies are offering encryption, they're going to have craft backdoors or start holding onto users' encryption keys. The other alternative would be to pull themselves out of the European market, which seems like the least likely route they will take. Even if elected, there's no guarantee the country's legislators will comply with Macron's wishes. Despite recent terrorist attacks on French soil, no further action has been taken to undermine encryption, despite periodic calls to do so being issued by more panicky members of the French government. Macron's pronouncement seems at odds with his refusal to be cowed by terrorists or be pushed towards sacrificing the public's rights and privileges on the altar of national security. No further details were offered by Macron to explain this stance, but presumably there will be much more discussion of this surprising announcement in the near future. Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
When it comes to bastions of hope in the video game industry on intellectual property matters, we've been happy to laud CD Projekt Red (CDPR) for getting most things right most of time. The company's stance on keeping its games DRM-free while being immensely successful has been a breath of fresh air, while its tendency towards bucking the DLC trend in gaming by not nickel-and-diming its fanbase for every last little thing. These are generally good folks, in other words, which is why it's a little disheartening to see how the company is handling the backlash over its attempt to trademark the term "Cyberpunk" in the EU. But first, some background. Cyberpunk 2020 is a pen and paper roleplaying game developed by Mike Pondsmith. CDPR announced in 2014 that it was making a game based on that system, entitled Cyberpunk 2077. To that end, it acquired the already granted US trademarks for the term "Cyberpunk", originally registered in 2011, from Pondsmith's publishing company. Cyberpunk is also, of course, a common genre term for fiction, movies, and video games. If you're asking why the USPTO ever should have granted a trademark on the singular term "Cyberpunk", the answer is obvious: it shouldn't have. The term was coined in the 80s and quickly grew in usage to the point where its an established genre of fiction. Trademarking it for the use in titles within a common medium of fiction is crazy. Yet, in the course of acquiring the rights to make the game, the original granted mark was transferred to CDPR when it began making the game, and the company likewise got a trademark registration for the full name of its game, Cyberpunk 2077. The recent uproar is because now CDPR is attempting to register the term "cyberpunk" in the EU itself, as opposed to having it transferred from a previous owner. The backlash was quite severe. The trademark actually makes for the biggest public development for the project in recent months. On forums like Reddit, though, the focus was less on what this could portend for the long-gestating Cyberpunk 2077 and more on how one studio owning the word “cyberpunk” could cause trouble for other games in the future. “I hope they won't be able to push that trademark, it's kind of uncool move,” reads the original Reddit post from last week, which quickly blew up. “We wouldn't be able to have term cyberpunk used just like you can't use terms Banner or Saga without a fear of being sued. Future games like [VA-11 Hall-A: Cyberpunk Bartender Action] would have to dance around the term that's core to their concept and wouldn't be able to use the term in the title.” Admittedly, some of this uproar has been the result of confusion between trademark and copyright and the differences between the two. Still, a big chunk of the concern out there is whether or not other games can still use the term in their titles and associated branding or marketing. And that concern is perfectly valid. It's also quite logical for the mind to recoil at the idea of a single company locking up rights to use the term for a common genre in its title names. The backlash got loud enough that CDPR had to respond, though the response was somewhat lacking. Information about Cyberpunk trademark. pic.twitter.com/4mufRCp9Gf — CD PROJEKT RED (@CDPROJEKTRED) April 6, 2017 Look, the positioning here isn't entirely unreasonable. The US trademark wasn't originally filed for by CDPR, it was transferred to them when it got the rights to produce the Cyberpunk 2077 video game. But the EU application is theirs. Attempting to assuage legitimate fears of overreach by pointing out that the company has never been one to bully on intellectual property matters and promising to only use the trademark defensively are valid points, but they miss the mark for several reasons. First, the fact remains that trademarks ought not be granted on common, indistinct terms, for which a common fiction sub-genre easily qualifies. Second, past history isn't a perfect predictor of future behavior, so CDPR's previous good acts aren't good enough to defeat the principal argument. Angels do fall, however infrequently. But the most curious part of CDPR's response is the actual remedy to all of this is near the end of its own response. In case you missed it, the response suggested: The role of the trademark is only to protect words, signs used as titles of games, names of products, etc. If someone names their game "JOHN SMITH: ADVENTURES IN A CYBERPUNK DYSTOPIAN SOCIETY" OR "20 SHORT VIDEO GAMES SET IN CYBERPUNK WORLDS" none of them should be treated as infringement of our rights. That's exactly correct, which is why CDPR's game never should have been named so generically if the company wanted a trademark on the title. All that was required to avoid all of this was for a more distinctive title and for the trademark application to be for that distinctive title, as opposed to the common term "Cyberpunk." Even for the US mark, there are provisions at the USPTO for surrendering a mark while retaining the trademark registration on the more distinctive associated marks. "Cyberpunk" could be surrendered while retaining a trademark on "Cyberpunk 2077." Look, when CDPR says it doesn't plan on being a bully with its trademark, I happen to believe them. The company has put too much good will in the bank for me to think otherwise as of now. But that isn't the point. The point is that there ought to be no trademarks on a term like "cyberpunk" to begin with. Excusing holding that trademark away while also applying for a new trademark in the EU isn't a good look. Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
We've discussed before how difficult it is to strip law enforcement officers of qualified immunity. Courts have been spectacularly unwilling to take this protection away from cops, even when confronted with horrendous rights violations. Even in cases where the court decides a rights violation has occurred, unless it has "clearly established" precedent to work with -- something stating that this particular violation in this particular set of circumstances has resulted in the stripping of immunity before -- the officer being sued usually remains shielded from liability. So, if the court is unwilling to set the precedent, the violation can occur again and again and again until the presiding court decides it's had enough. When a case comes through where immunity has been denied -- or stripped away by a higher court -- it's immediately notable. In this case [PDF] handled by the Eleventh Circuit Court of Appeals, the standard for losing qualified immunity is still high. It's just that the law enforcement officer in this case went out of his way to be an abusive asshole. The court's unwilling to let that slide. Paul Stephens and his cousin, Roan Greenwood, were guests of Greenwood's girlfriend at an apartment complex that sat atop a row of stores. They were both checking out Greenwood's girlfriend's car, attempting to track down the source of the "check engine" warning that came on right before it was parked. Deputy Nick DeGiovanni decided the two might be planning to break into the shops below the apartments. He ignored Greenwood's offer to take him up to his girlfriend's apartment to prove he had permission to be there. While he was questioning Stephens (really just demanding he produce some ID), Stephens took a call on his phone using his Bluetooth headset. It all went downhill quickly from there. When he answered the phone using the Bluetooth device on his right ear, Deputy DeGiovanni unexpectedly slapped the Bluetooth from Stephens’s ear and stated: “Who told you to answer the phone?” Stephens then asked Deputy DeGiovanni to get a field supervisor on the scene. Deputy DeGiovanni responded by saying: “Shut your damn mouth.” For no reason, Deputy DeGiovanni, using his full body weight, slugged Stephens hard in his chest, slamming him into the driver’s seat. Stephens attempted to talk the deputy out of making this worse -- both for him and for the deputy -- by appealing to his conscience. Apparently, Deputy DeGiovanni didn't have one. Stephens stood up and asked Deputy DeGiovanni: “Why are you doing this?” Deputy DeGiovanni hit Stephens a second time with a blow to his chest, thrusting him into the driver’s seat. With the air knocked out of his lungs, Stephens got up and said to Deputy DeGiovanni: “The kids are upstairs looking at you. What kind of example are you setting for the kids?” Deputy DeGiovanni battered Stephens a third time by stepping on Stephens’s left foot while simultaneously and forcefully grabbing him by the neck and slamming him backward, which threw Stephens against the car-door frame. Stephens’s head hit in the space between the open driver’s door and the car, and his head and neck slammed into the car-door jamb. Stephens, who was seriously injured, reached up with his right hand to grab the car door to lift himself up. Deputy DeGiovanni then grabbed Stephens’s right hand and twisted it so the palm of his hand faced up; he also forced the last three fingers on Stephens’s right hand backward toward his forearm, causing all of Stephens’s body weight to be placed on those three fingers of his right hand. Then it somehow got worse for Stephens. DeGiovanni arrested Stephens and made it clear what he thought of black people. (Or immigrants. Stephens is originally from Jamaica.) Emphasis added by the court: After Stephens was standing and while Deputy DeGiovanni still had those three fingers of Stephens’s right hand bent backwards, Deputy DeGiovanni told Stephens to turn around, and he handcuffed him. He did not tell Stephens he was under arrest or why he was arresting him. Because the handcuffs were quite tight, causing Stephens to lose the feeling in his hands, he asked Deputy DeGiovanni to loosen the handcuffs. Deputy DeGiovanni responded: “It’s punishment. You people come here and think you can do as you please.” Am. Compl. at 4 ¶ 15. Deputy DeGiovanni did not adjust the handcuffs on Stephens for almost three hours. At no time did Stephens resist the arrest and throughout the painful experience he tried to be compliant. Deputy DeGiovanni was apparently in the mood to hurt someone, and Stephens ended up being in the wrong place at the wrong time despite being a guest at the apartments he was parked in front of. Stephens was booked, denied a chance to use the restroom, and the vehicle was towed away. The jail refused to process Stephens because of his injuries, which were fairly extensive. This is from the physician's report: [A] cervical sprain/strain with multilevel disc herniations and resultant foraminal stenosis as a result of the described assault on February 16, 2009. The patient also sustained a left shoulder partial thickness articular-sided rotator cuff tear involving the infraspinatus tendon. He also sustained a sprain of the right wrist. Further electrodiagnostic workup is required to evaluate the radiating pain and little finger numbness to differentiate cervical radiculitis/radiculopathy and a peripheral nerve injury in the right upper extremity… [...] The patient may require arthroscopic rotator cuff debridement or repair due to his persistent and refractory left shoulder pain. He may require cervical epidural steroid injections or cervical disc decompression depending on the result of his electrodiagnostic studies. Deputy DeGiovanni spun his night of excessive force into something else entirely, charging Stephens with resisting arrest and not having a valid Florida driver's license. The lower court found DeGiovanni's use of force to be reasonable. (Unbelievably, it actually found the force used to be "de minimis." WTF.) The Appeals Court disagrees. Instead of looking to see whether there was exact precedent that would make the deputy's use of force a violation of Stephens' rights, it uses the "obvious clarity" standard. In this case, the deputy's actions were obviously unwarranted given the nature of the questioning and subsequent arrest. The basic constitutional law governing excessive force in arrest situations was well established before Stephens’s arrest in February 2009. Qualified immunity is unavailable “if an official knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the plaintiff.” Harlow, 457 U.S. at 815, 102 S. Ct. at 2737 (citation, internal quotation marks, and alteration omitted); see Sheth v. Webster, 145 F.3d 1231, 1235-36 (11th Cir. 1998) (affirming denial of qualified immunity, “because of the absence of any justification for [the officer’s] use of force, application of the Fourth Amendment reasonableness standard would inevitably lead every reasonable officer . . . to conclude that the force was unlawful...” Clearly, the court states, the amount of force used was disproportionate to the criminal acts Stephens was charged with -- both misdemeanors. Furthermore, Stephens never once physically resisted the deputy during the interaction. And with that, away goes the deputy's immunity. There is no evidence Stephens attempted to resist Deputy DeGiovanni’s investigation ending in his arrest or to evade his arrest by fleeing. To the contrary, Stephens answered Deputy DeGiovanni’s questions, despite Deputy DeGiovanni’s harsh, threatening questioning and his forcefully hitting Stephens in his chest multiple times, ultimately causing his head to strike the door jamb, resulting in permanent injury as well as twisting Stephens’s right hand and three fingers backward, supporting his full body weight. Through it all, Stephens was compliant, even when Deputy DeGiovanni arrested and handcuffed him. Stephens never attempted to flee the scene of his arrest. Consequently, none of the Graham factors applies to Stephens’s encounter with and seizure by Deputy DeGiovanni as to Stephens’s actions resulting in his seizure and arrest by Deputy DeGiovanni. “[Q]ualified immunity is not appropriate when the Graham analysis yields an answer that is clear beyond all doubt,” as in this case. The case is kicked back to the lower court to return an opinion consistent with the Appeals Court's decision. It also says the lower court is welcome to revive Stephens' state law claims of excessive force in light of its decision. That's the bar that must be hit to lose immunity: to be so unreasonably forceful that the usual defensive ploys won't work. Deputy DeGiovanni decided he'd pick on some foreigners and now he's going to be paying Stephens for the injuries he caused and the career he ended (Stephens was an auto mechanic but lost his job after suffering the debilitating injuries). No one abuses their power this way unless they think there's a good chance they'll get away with it. DeGiovanni played the odds and lost. Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
Just days after Montreal prosecutors cut loose 35 suspected Mafia members rather than disclose the details of Stingray device use by the Royal Canadian Mounted Police (RCMP), the RCMP is admitting that, yes, it does use Stingrays. It's not like it's not known the RCMP owns Stingrays. It has for nearly a decade now. It's just that it would rather not discuss it in court… or in public… or in public records responses. The official revelation occurred in Ontario, and it didn't come as the result of a multitude of alleged criminals being released back into the general population. Instead, the (unwelcome) discussion of the RCMP's cell tower spoofers was prompted by a CBC investigation into "suspicious signals" and apparent cell phone tracking around the nation's capital. The RCMP for the first time is publicly confirming it uses cellphone surveillance devices in investigations across Canada — but at the same time says the potential of unauthorized snooping in Ottawa, as reported by CBC News, poses a threat to national security. "Absolutely," RCMP Chief Supt. Jeff Adam, who is in charge of technical investigations services, said in an unprecedented technical briefing Wednesday with reporters from CBC News, the Toronto Star and the Globe and Mail. The RCMP held the briefing in the wake of a CBC News investigation that found evidence that devices known as IMSI catchers may be in use near government buildings in Ottawa for the purpose of illegal spying. The RCMP Superintendent was quick to point out that if it was the agency's Stingrays the journalists discovered, there was nothing illegal about the spying. But he can't be sure there aren't others out there with the same equipment, doing the same sort of things the RCMP does, but without judicial permission. It has decided to join the news agencies' investigation of the "suspicious signals," which sounds a whole lot like the old joke about heroin addicts: What's the difference between a thief and a junkie? A thief will just steal your money. A junkie will help you look for it. The RCMP let the public in on a few of its Stingray secrets during the press briefing [PDF]. It owns ten devices and claims that all but one deployment (in 2016) has been accompanied by a warrant. Much like those in use in the US, the Stingray's software only allows for the interception of phone numbers and device location (even though they all can be retrofitted to intercept calls and communications). Discussions of earlier use show the warrant requirement wasn't always a requirement. Police used to apply for a general warrant to use the technology. In 2015, Adam said there was a period of at least six months — between March and October — when the RCMP didn't seek a warrant at all, acting on advice from the Department of Justice and government prosecutors. The use of the term "general warrant" suggests those signing off on warrant requests were likely not aware of the devices being deployed to perform the search. Law enforcement agencies have been hiding the existence of cell tower spoofers for years, starting with the judges approving their warrants and subpoenas. In the US, the FBI's own "Stingray Best Practices" instructed law enforcement agencies to lie to judges -- most of which took the form of pen register requests, rather than search warrants detailing the wholesale harvesting of cell phone numbers by repurposed military equipment. Also admitted during this briefing was the fact that the RCMP didn't seek approval from the Canadian government's FCC equivalent, ISED. Adam conceded that until two months ago the RCMP itself failed to get express approval to use MDIs from Innovation, Science and Economic Development Canada (ISED, formerly Industry Canada), the government body responsible for regulating technology that might interfere with wireless communications. He said the RCMP believed at one point that an exemption introduced in early 2015 to the Radiocommunications Act allowing the use of cellular "jammers" might also exempt the use of MDIs — but ISED ultimately disagreed. Apparently, the world of law enforcement is so fast-moving, there's no time to seek the proper clearances, even when you've had the devices in hand for nearly a decade before double-checking things with regulators. Again, pretty much identical to how things were handled here in the US. Blue minds think alike, or whatever. With this limited (but public) disclosure, maybe the RCMP will pursue more prosecutions to the very end, rather than play catch-and-release with suspected criminals so that its not-all-that-secret secrets don't end up in defendants' hands. Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
Over the past few years we've covered what may seem like a side issue in the many legal issues facing Kim Dotcom, but it's an important one: is the US able to legally take all of his money and stuff, despite (1) him not being found guilty of anything and (2) that stuff not being anywhere near the US? As we've said, even if you think Dotcom is guilty of horrible crimes and should rot in jail, how the US is going about taking his assets should concern you massively. The fact that courts have blessed the DOJ's actions doesn't make it any less concerning. On Friday, Dotcom (along with some powerhouse legal help) asked the Supreme Court to review this issue. The real issue here is one that we've covered a lot in other contexts: civil asset forfeiture, in which the US seizes and sues stuff rather than people. That's why this lawsuit is not actually against Kim Dotcom (there are other such lawsuits), but rather the United States v. All Assets Listed in Attachment A (no, really, that's the case). Of course, "Attachment A" is all of Dotcom's assets, mostly in Hong Kong. But the situation with Dotcom takes the normal questions about asset forfeiture and adds layer upon layer of complexity. There are three specific issues that Dotcom is asking the Supreme Court to review, and all are important here. The first is whether or not a US court can allow for asset forfeiture for assets that are outside the US and outside of US government control. As the dissent pointed out in the appeals court ruling in this case, a federal court issuing a ruling is supposed to be a binding ruling, not an advisory ruling. And if the assets are held outside the US and not under the jurisdiction of the US courts, the ruling can't be binding. The second two issues are connected: and it's basically the question of whether the courts were right in saying that the federal government could take Dotcom's stuff and that Dotcom could not protest, because he was "a fugitive." Of course, he's not a "fugitive." He's just fighting extradition to a place he's never been. He isn't running away and is going through the full legal process he's entitled to in New Zealand. That's not someone hiding from the US, it's someone who is following the basic rules of due process, which the US wishes to deny him. The specific questions are at what stage of the process he can be declared a fugitive and the other is whether or not intent needs to be shown. As we have noted repeatedly, the Supreme Court rejects most requests to hear cases, but the lawyers here (Dotcom's long-term lawyer Ira Rothken along with legal giant Quinn Emanuel) have done a good job demonstrating real circuit splits in appeals courts on each of the three questions, which is often important in convincing the Supreme Court to actually take a case. As the filing notes: This Court has previously admonished that the “harsh sanction” of fugitive disentitlement in a civil forfeiture action is “most severe and so could disserve the dignitary purposes for which it is invoked,” because it “foreclos[es] consideration of claims on the merits.” ... The Court noted that it “ha[d] held it unconstitutional to use disentitlement similar to this as punishment for rebellion against the United States,” but left open the question of “whether enforcement of a disentitlement rule under proper authority would violate due process.” ... Nonetheless, a divided panel of the Fourth Circuit affirmed civil forfeiture based on fugitive disentitlement. I imagine that the federal government will insist there's no reason for the Supreme Court to weigh in here, but hopefully the court decides to review the case. Again, even if you dislike Dotcom or think he's guilty of a "megaconspiracy" to infringe on copyrights, the due process questions around civil asset forfeiture should concern you -- and hopefully they concern the Supreme Court. Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
So we've talked repeatedly how the shoddy security in most "internet of things" devices has resulted in increasingly-vulnerable home networks, as consumers rush to connect not-so-smart fridges, TVs and tea kettles to the home network. But this failure extends well beyond the home, since these devices have also resulted in historically-large DDoS attacks as this hardware is compromised and integrated into existing botnets (often in just a matter of minutes after being connected to the internet). Whether it's the ease in which a decidedly-clumsy ransomware attacker was able to shut down San Francisco's mass transit system, or the fact that many city-connected devices like speed cameras often feature paper mache security, you can start to see why some security experts are worried that there's a dumpster fire brewing that will, sooner rather than later, result in core infrastructure being compromised and, potentially, mass fatalities. If you ask security experts like Bruce Schneier, this isn't a matter of if -- it's a matter of when. In what should probably be seen as yet another warning shot across the bow: slightly before midnight in Dallas last Friday a hacker compromised the city's emergency warning systems and managed to set off the city's 156 warning sirens more than a dozen times. Needlessly to say, the scale of of the warning, and the number of sirens, led many people in Dallas to believe that the city had somehow been physically attacked in the middle of the night: Dallas officials were forced to shut the system down around 1:20 am on Saturday, and despite informing the public to ignore the false alarms, a city that had already been having 911 issues the last few months found its 911 systems inundated with a massive influx of calls from concerned citizens: "Even as the city asked residents not to dial 911 to ask about the sirens, more than 4,400 calls were received from 11:30 p.m. to 3 a.m. — twice the average number made between 11 p.m. and 7 a.m., Syed said. The largest surge came from midnight to 12:15 as about 800 incoming calls caused wait times to jump to six minutes, far above the city's goal to answer 90 percent of calls within 10 seconds. The city is, frankly, fortunate that this didn't result in more problems than it did. City officials say they've identified how the attacker compromised the system, but won't be revealing technical details for obvious reasons. Over at his Facebook page, Dallas Mayor Mike Rawlings was quick to highlight how the attack made it clear the city needs to spend significantly more money on its technology infrastructure: "This is yet another serious example of the need for us to upgrade and better safeguard our city’s technology infrastructure. It’s a costly proposition, which is why every dollar of taxpayer money must be spent with critical needs such as this in mind. Making the necessary improvements is imperative for the safety of our citizens." Of course while older, out-dated systems are certainly a problem, rushing to throw money at companies promising the "connected city of tomorrow in a box" isn't a panacea, either. While it likely had nothing to do with the recent hack, AT&T has been advertising Dallas as the centerpiece of its "IOT" ambitions for the last few years, just one of countless companies rushing into the space in pursuit of new revenue and quarterly growth. The problem, again, is that many of these smart city solutions are from many of the same vendors for which security and privacy were an afterthought in the residential market. So yes, most cities are in desperate need of a technology and security upgrade, yet often lack the budgets to do so. You just hope that when these upgrades actually occur, they aren't sabotaged by the same superficial concern for privacy and security already plaguing the connected home market. Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
Late last week an important, but disappointing, ruling came down from the 9th Circuit appeals court. The ruling in the case of Mavrix Photographs v. LiveJournal found that volunteer moderators could be deemed agents of a platform, and thus it's possible that red flag knowledge of infringement by one of those volunteer moderators could lead to a platform losing its safe harbors. There are a lot of caveats there, and the ruling itself covers a lot of ground, so it's important to dig in. The case specifically involved a site hosted on LiveJournal called "Oh No They Didn't" (ONTD) which covers celebrity news. Users submit various celebrity stories, and ONTD has a bunch of volunteer moderators who determine what gets posted and what does not. Some of the images that were posted were taken by a paparazzi outfit named Mavrix. Rather than send DMCA takedowns, Mavrix went straight to court and sued LiveJournal. LiveJournal claimed that it was protected by the DMCA safe harbors as the service provider and the lower court agreed. This ruling sends the case back to the lower court, saying that its analysis of whether or not the volunteer moderators were "agents" of LiveJournal was incomplete, and suggests it tries again. There are a number of "tricky" issues involved in this case, starting with this: because ONTD became massively big and popular, LiveJournal itself got a bit more involved with ONTD, which may eventually prove to be its undoing. From the decision by the court: When ONTD was created, like other LiveJournal communities, it was operated exclusively by volunteer moderators. LiveJournal was not involved in the day-to-day operation of the site. ONTD, however, grew in popularity to 52 million page views per month in 2010 and attracted LiveJournal’s attention. By a significant margin, ONTD is LiveJournal’s most popular community and is the only community with a “household name.” In 2010, LiveJournal sought to exercise more control over ONTD so that it could generate advertising revenue from the popular community. LiveJournal hired a then active moderator, Brendan Delzer, to serve as the community’s full time “primary leader.” By hiring Delzer, LiveJournal intended to “take over” ONTD, grow the site, and run ads on it. As the “primary leader,” Delzer instructs ONTD moderators on the content they should approve and selects and removes moderators on the basis of their performance. Delzer also continues to perform moderator work, reviewing and approving posts alongside the other moderators whom he oversees. While Delzer is paid and expected to work full time, the other moderators are “free to leave and go and volunteer their time in any way they see fit.” In his deposition, Mark Ferrell, the General Manager of LiveJournal’s U.S. office, explained that Delzer “acts in some capacities as a sort of head maintainer” and serves in an “elevated status” to the other moderators. Delzer, on the other hand, testified at his deposition that he does not serve as head moderator and that ONTD has no “primary leader.” It's this oversight by a paid employee of LiveJournal that makes things a bit sticky. The question is whether or not this oversight and control went so far that the volunteer moderators could also be seen as "agents" of LiveJournal, rather than independent users of the platform. Evidence presented by Mavrix shows that LiveJournal maintains significant control over ONTD and its moderators. Delzer gives the moderators substantive supervision and selects and removes moderators on the basis of their performance, thus demonstrating control. Delzer also exercises control over the moderators’ work schedule. For example, he added a moderator from Europe so that there would be a moderator who could work while other moderators slept. Further demonstrating LiveJournal’s control over the moderators, the moderators’ screening criteria derive from rules ratified by LiveJournal The court doesn't fully answer the question, but sends it back to the lower court, saying that it's a "genuine issue of material fact" that should be explored to determine if LiveJournal was responsible, and thus would lose its safe harbors. The specific fact pattern and details here may mean that this ruling doesn't turn out to be a huge problem in the long run for safe harbors, but... it is somewhat worrisome, in that there are at least a few statements in the ruling that are... concerning. For example: ... LiveJournal relies on moderators as an integral part of its screening and posting business model. But... lots of sites rely on independent and volunteer moderators as a part of their business model. That alone shouldn't matter as to whether or not a volunteer is truly an agent of the company. A larger issue may be the simple fact that even if a moderator is deemed to be an "agent" of a platform, if they're not experts in copyright, it would be ridiculous to then argue that their own failure to stop infringement makes an entire company liable. That would doom many websites that rely on volunteer help. If one were to mess up and not understand the vast nuances of copyright law, the liabilities for the platform could be immense. As Parker Higgins notes, the expectation here is unbalanced in a ridiculous way, especially as this very same court doesn't seem to think that the sender of a DMCA takedown should take as much responsibility for its actions: Still, even if the moderator draws a paycheck from the platform, it seems unreasonable to expect them to approach thorny copyright questions with the nuance of a trained professional. That is especially true when you compare this ruling with the Ninth Circuit’s most recent opinion in Lenz v. Universal, the “dancing baby” case, which looks down the other end of the copyright gun at takedown notice senders. Notice senders must consider fair use, but only so far as to form a “subjective good faith belief” about it. If courts don’t require the people sending a takedown notice to form an objectively reasonable interpretation of the law, why should they impose a higher standard on the moderators at platforms handling staggering quantities of user uploads? But if moderators are a platform’s “agents,” then it runs into trouble if they have actual or “red flag” knowledge of infringements. The Ninth Circuit has instructed the lower court to find out whether the moderators had either. Noting the watermarks on some of the copyrighted images in the case, the court phrased the question of “red flag” knowledge as whether “it would be objectively obvious to a reasonable person that material bearing a generic watermark or a watermark referring to a service provider’s website was infringing.” That’s an important point to watch. Copyright ownership and licensing can be extremely complex — so oversimplifying it to the idea that the presence of a watermark means any use is infringing would have profound negative consequences. And this is why this ruling may backfire for Hollywood -- even as it pushed the court to rule this way. As EFF notes, at the very time that the MPAA is demanding that platforms do more to moderate content, the implications of this ruling may force them to do much less moderation: The fact that moderators reviewed those submissions shouldn’t change the analysis. The DMCA does not forbid service providers from using moderators. Indeed, as we explained in the amicus brief (PDF) we filed with CCIA and several library associations, many online services have employees (or volunteers) who review content posted on their services, to determine (for example) whether the content violates community guidelines or terms of service. Others lack the technical or human resources to do so. Access to DMCA protections does not and should not turn on this choice. The irony here is that copyright owners are constantly pressuring service providers to monitor and moderate the content on their services more actively. This decision just gave them a powerful incentive to refuse. There are a few other issues in this case that are also potentially problematic. As Annemarie Bridy points out over at Stanford's Center for Internet & Society, the court seems to totally mess up the analysis of the DMCA's safe harbors by confusing part (a) of the DMCA 512 (which applies to network providers) and part (c) (which applies to online service providers): According to the court, the section 512(a) safe harbor covers users’ submission of material to providers, and section 512(c) covers the providers’ subsequent posting of that material to their sites. There is no such submission-posting distinction in section 512. On the face of the statute and in the legislative history, it’s quite clear that section 512(a) is meant to cover user-initiated, end-to-end routing of information across a provider’s network. A residential broadband access provider is the paradigmatic section 512(a) provider. Section 512(c) covers hosting providers like LiveJournal that receive, store, and provide public access to stored user-generated content. To characterize LiveJournal as a hybrid 512(a)/512(c) provider misapplies the statute and introduces into the case law a wrongheaded distinction between submitting and posting material. Putting aside the peculiar submission-posting dyad, the dispositive question concerning LiveJournal’s eligibility for the section 512(c) safe harbor is whether the site’s moderator-curated, user-submitted posts occur “at the direction of users,” taking into consideration the nature of moderators’ review and the fact that only about one-third of user submissions are ultimately posted. That question can be answered entirely within the ambit of section 512(c) and the existing case law interpreting it, including the Ninth Circuit’s own decision in Shelter Capital. There was simply no need for the court to invoke section 512(a) in this case. The court's analysis here is... just weird. It's on page 13 of the ruling, and it really does seem to take a totally unchartered path in arguing that the submission of content is covered by 512(a) while the posting is covered by (c). But... that's wrong: The district court focused on the users’ submission of infringing photographs to LiveJournal rather than LiveJournal’s screening and public posting of the photographs. A different safe harbor, § 512(a), protects service providers from liability for the passive role they play when users submit infringing material to them.... The § 512(c) safe harbor, however, focuses on the service provider’s role in publicly posting infringing material on its site. Among the other issues with this case, there's also one on the question of whether or not the anonymous volunteer moderators should be disclosed. As we've discussed in the past, because the First Amendment also protects anonymity, any move to reveal an anonymous commenter must be carefully weighed against their First Amendment right to anonymity. The court here more or less brushes off this issue, saying that once the lower court determines the level of agency, that will answer the question on preserving anonymity: Notwithstanding the deferential standard of review and complex issues of law that govern this discovery ruling, we vacate the district court’s order denying the motion and remand for further consideration. Whether the moderators are agents should inform the district court’s analysis of whether Mavrix’s need for discovery outweighs the moderators’ interest in anonymous internet speech. Given the importance of the agency analysis to the ultimate outcome of the case, and the importance of discovering the moderators’ roles to that agency analysis, the district court should also consider alternative means by which Mavrix could formally notify or serve the moderators with process requesting that they appear for their deposition at a date and time certain. This is yet another important case in determining how online platforms can actually function today -- and rulings that undermine safe harbors like the DMCA frequently seem to be what Hollywood wants -- but again, this may backfire. Making it harder for these sites to function if they're actively involved in moderation only means they'll do much less of it. Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
Windscribe VPN is a VPN desktop application and browser extension that work together to protect your online privacy, unblock websites, and remove ads and trackers that follow you across the websites you visit every day. There are 3 subscription lengths of access with unlimited data available for an unlimited number of devices: $29 for 3 years, $39 for 5 years, and $79 for lifetime access. Windscribe does not keep logs, and you can read their privacy policy for more information. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
Surprising nobody, FCC boss Ajit Pai has been privately meeting with large broadband providers, informing them he'll be taking an axe to net neutrality protections soon. What exactly this will look like isn't yet clear, especially given the massive support for the rules, and the fact that Pai can't just roll back net neutrality (and the FCC's Title II reclassification) without justifying it to the courts. But anonymous sources tell Reuters that Pai seemingly wants to replace real net neutrality protections with voluntary commitments from companies like AT&T, Verizon and Comcast: Pai wants to overturn that reclassification, but wants internet providers to voluntarily agree to not obstruct or slow consumer access to web content, two officials said late Tuesday. The officials briefed on the meeting said Pai suggested companies commit in writing to open internet principles and including them in their terms of service, which would make them binding. It is unclear if regulators could legally compel internet providers to adopt open internet principles without existing net neutrality rules. Asking growing, giant corporations with a generation of documented anti-competitive behavior under their belts to just behave is utterly adorable, and anyone who believes that's a winning strategy for consumers, startups and competitors in the Comcast era is either obtuse or being intentionally misleading. Contrary to the bedtime stories that dollar-per-hollar ISP think tankers, lobbyists and consultants tell their children, gutting regulatory oversight of an uncompetitive market doesn't magically forge telecom Utopia. With neither competition nor functional regulatory oversight, the problems that plague the broadband industry (privacy violations, net neutrality infractions, high prices and usage caps, legendarily-bad customer service) only get worse, especially given the often absurd amount of telecom regulatory capture occurring on the state level. And while Reuters is quick to strangely proclaim that such voluntary conditions would be "binding," most of us realize that the overlong privacy policies you sign when you buy broadband are designed almost entirely to legally protect the ISP, not you. These policies are flexibly and frequently updated and reconfigured all of the damn time to the benefit of the ISP and whatever new data collection effort they're up to this week. That these shifting, vague, ISP-written policies are the equivalent of the existing rules is a farce, as rightly pointed out by Nilay Patel over at The Verge: "So what’s to stop Comcast from making this deal today, and then changing its terms a year from now? (It’s certainly not the presence of meaningful access competition in the marketplace!) How will the FTC track every single ISP’s terms of service language, the differences between them, and enforce any sort of consistent, reasonable policy? Second, let’s say Pai manages to thread the needle and gets every ISP in the country to agree on the exact same open internet language in their terms of service, and further secures a commitment that the language will remain in their terms in perpetuity. Isn’t that functionally identical to... a law? Shouldn’t we just have... a law? And don’t we already have that law? What specifically is Pai trying to accomplish if he agrees that open internet principles are important?" Let's be clear: Ajit Pai doesn't actually believe that net neutrality is important, whether that's manifest in principles, rules, or show tune. Pai doesn't believe net neutrality or a lack of competition are real problems. Nor does he believe in functional regulatory oversight of some of the largest and most anti-competitive companies in American industry. Pai, a former Verizon lawyer, believes in one thing: maximizing large ISP revenues at nearly any cost. Everything else is pretense (albeit a pretense many in the public, media and policy circles are exceptionally good at playing along with). Pai, apparently blind to the perils of political overreach, could find himself in an untenable situation. One, reversing net neutrality will cause a policy and activist backlash that could make the SOPA uprising look like a game of grade-school patty cake. Especially given the extreme unpopularity of the recent privacy rule repeal. Two, to reverse the FCC's title II classification via FCC proceeding requires he show a court that things have changed substantially since last year's fairly overwhelming FCC appeals court victory. Since he won't be able to, expect some form of misdirection when the plan is finally revealed in either May or June. It still seems very likely Pai may be planning to make a public stink about repealing the rules as part of a stage play. One where the FCC boss intentionally stirs the pot and plays the bad cop, and ISP-allies in Congress push a new bill pretending to save net neutrality as good cop via "compromise." And while such a bill would, like Thune's similar proposal in 2015, pay ample lip service to net neutrality (the Make American Broadband Great Again Act of 2017?), the end goal would still be to kill real rules and reduce large ISP regulatory oversight, consumer welfare and internet health be damned. Anybody who has spent more than five minutes dealing with a large ISP should be well aware of the dangers this looming farce presents. On the plus side, since ISPs and Pai have repeatedly claimed that the net neutrality rules stifled broadband investment, Pai's decision to replace the rules with the policy equivalent of wet cardboard should at least net us all gigabit fiber connections in short order. Right? Right? Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
Clint Watts of the Foreign Policy Research Institute testified at a Senate Intelligence Committee last week, giving his insight into Russia's propaganda machine. Like everyone else in Washington, the Senate is trying to determine how much of a role the Russian government might have played in the recent election. An FBI investigation into Trump's ties with Russia is ongoing. Watts noted Russia's attempts to influence American thinking isn't really new, nor is it solely tied to Trump's unlikely political success. He points out he began seeing major inroads being made almost three years ago. Here at Techdirt, we noticed the stateside spread of the Russian troll army, confronted directly here by Karl Bode in response to a stream of pro-Russia comments on one of his articles. Also of concern to many (although in varying degrees) is "fake news." Much of what's considered fake news tends to be in the often-partisan eye of the beholder, but a growing network of conspiracy theory sites and news outlets with Russian government ties aren't helping. Watts states this is simply more the same Cold War tactics by the Russian government, but with the advantage the internet's built-in instant amplification power. On the evening of July 30, my colleagues and I watched as RT and Sputnik News simultaneously launched false stories of the U.S. airbase at Incirlik being overrun by terrorists. Within minutes, pro-Russian social-media aggregators and automated bots amplified this false news story and expanded conspiracies asserting American nuclear missiles at the base would be lost to extremists. More than 4,000 tweets in the first 78 minutes after launching of this false story linked back to the Active Measures accounts we’d tracked in the previous two years. These previously identified accounts, almost simultaneously appearing from different geographic locations and communities, amplified this fake news story in unison. The hashtags incrementally pushed by these automated accounts were #Nuclear, #Media, #Trump and #Benghazi. The most common words found in English-speaking Twitter user profiles were: God, Military, Trump, Family, Country, Conservative, Christian, America, and Constitution. These accounts and their messages clearly sought to convince Americans a U.S. military base was being overrun in a terrorist attack like the 2012 assault on the U.S. consulate in Libya. In reality, a small protest gathered outside the Incirlik gate and the increased security at the airbase sought to secure the arrival of the U.S. Chairman of the Joint Chiefs of Staff the following day. Watts' testimony is informative and genuinely interesting. But when it comes to the subject of "fake news," Watts' suggestions as to how it might be handled seem a little less grounded in reality. In January, Watts floated the idea of a "Consumer Reports for news:" an independent group made up of members of major social media platforms that would grade new sources for reliability. The idea was fleshed out a bit in front of the Senate Committee: Social-media companies should band together in the creation of an Information Consumer Reports. This non-governmental agency would evaluate all media organizations, mainstream and otherwise, across a range of variables producing news ratings representative of the outlet’s accuracy and orientation. The score would appear next to each outlet’s content in web searches and social-media streams providing the equivalent of a nutrition label for information. Consumers would not be restricted from viewing fake news outlets and their erroneous information, but would know the risks of their consumption. The rating, over time, would reduce consumption of Russian disinformation specifically and misinformation collectively, while also placing a check on mainstream media outlets that have all too often regurgitated false stories. There are a few problems to this approach, starting with it being pitched some sort of private sector "information war" effort -- a companion piece to the government's efforts to combat Russian propaganda. Watts also suggest the State Dept. and DHS both form their own version of Snopes to fact check claims about actions the US government is taking at home and abroad. The second problem is this won't solve much, even if it's able to overcome the resistance of nearly everyone involved. News agencies aren't going to care much for being graded by platforms that do very little other than drive traffic to them or, in the case of Facebook, find new ways from preventing readers from leaving Facebook. Facebook, in particular, has been spectacularly bad at handling content that flows through its platform. While it has been more proactive in its attempts to handle abuse and police content than other platforms, it's also been more error-prone and willing to adjust its ethics to avoid losing traffic and users from countries engaged in censorship. A grading system can't be left to algorithms, so it will end up being a representation of graders' biases, rather than an objective score based on verifiable inputs -- in other words, nothing like the "nutrition label but for news" Watts envisions. Worse, it won't do anything to overcome readers' biases. If Facebook, et al hand out a "C-" to Fox News, no one who regularly views Fox News is going to question the trustworthiness of the company's reporting. Instead, they'll see the score as untrustworthy: the result of left-leaning social media companies and their hate for anything "conservative." The only way this would come about as a concerted effort would be through government direction or legislation. Tying the government to it makes the "independence" of the rating even more questionable, providing another percentage of the population with a reason to distrust the low grades slapped on their favorite news sources. The fact is readers have to want or care that their new sources are trustworthy. Far too many people don't and the grades handed out won't change readers' minds. It will just give them something new to argue about. Permalink | Comments | Email This Story

Read More...
posted 13 days ago on techdirt
Last December, we wrote about China reaching a rather questionable milestone: filing one million patents in a single year. As Techdirt has pointed out repeatedly, more patents do not equate to more innovation, so simply filing huge numbers of patents means very little in itself. The government of India has just found this out the hard way. As The Hindu reports, CSIR-Tech, the commercialization arm of India's Council of Scientific and Industrial Research (CSIR), has had to shut down its operations. The reason? It's run out of money as a result of filing too many patents: CSIR has filed more than 13,000 patents -- 4,500 in India and 8,800 abroad -- at a cost of ₹50 crore [about $7.7 million] over the last three years. Across years, that's a lot of taxpayers' money, which in turn means that the closing of CSIR-Tech is a tacit admission that its work has been an expensive mistake -- a mistake that we tax-paying citizens have paid for. The Hindu explains that obtaining thousands of patents was not to protect innovative work, or even to boost licensing revenues. Instead, many scientists wanted to have a patent or two to their name in order to make their curriculum vitae look more impressive: Recently, CSIR's Director-General Girish Sahni claimed that most of CSIR’s patents were "bio-data patents", filed solely to enhance the value of a scientist's resume and that the extensive expenditure of public funds spent in filing and maintaining patents was unviable. CSIR claims to have licensed a percentage of its patents, but has so far failed to show any revenue earned from the licences. This compulsive hoarding of patents has come at a huge cost. If CSIR-Tech was privately run, it would have been shut down long ago. Acquiring Intellectual Property Rights (IPR) comes out of our blind adherence to the idea of patenting as an index of innovation. India's unfortunate experience is interesting because it shows how the erroneous view that patents are proof of innovation has led scientists to file applications for them purely out of vanity, with serious knock-on effects. Not only is there no evidence that the resulting patents were worth obtaining, but India's CSIR-Tech office has been forced to shut down as a direct result of applying for them. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...
posted 14 days ago on techdirt
This week, the influential voice of Unesco joined the chorus of people objecting to the addition of DRM to the HTML5 standard. Both of our winning comments on the insightful side are anonymous, came in response to an accusation of hypocrisy, in which a commenter compared the EME DRM scheme to HTTPS encryption for websites. The first-place winning response covered the key differences in purpose and function: Anonymous Coward: 0 Just like other websites, streaming media should use transport-level encryption. This prevents access to the data stream between points A and B. DRM is not encryption really: it is gatekeeping by obfuscation. This is due to the fact that the data being sent has to be decrypted locally. The goal of EME is to move this decryption of content as close to the hardware as possible, to prevent the person viewing the decrypted content from... viewing the decrypted content. As such, DRM rarely functions as desired. One person sits something outside the EME, grabs the decrypted stream, and then shares this stream with others, circumventing the encryption. Others who have a legitimate access to the encrypted stream find that they can't consume it as they see fit, can't likewise encrypt their own streams without assigning copyright to someone else, and have access to information that is being intentionally sent to them arbitrarily restricted, not necessarily always in a legal manner, or a manner supported by fair use. The second-place winning response also touched on the differences in implementation: Encryption protects the data, but does not limit what the user can do with the data. DRM limits what the user can do with the data to viewing or listening it only via defines programs and codecs. Also there are signidficant implementation differences. Encryption is based on key exchange, and the user can use open source software for implementation. The proposed DRM mechanism is a way of downloading and execution proprietary closed source code which demands low level access to the likes pf the video and audio system, to try and bypass any use of the operating system to capture the decoded data. This also introduces a new route for malware to be install;ed on te system. So let's put that argument to bed, shall we? For editor's choice on the insightful side, we head to our story about the FBI arresting the creator of a remote access tool, where one commenter noted that plenty of large companies produce similar tools and go unhassled, specifically wondering when they'd go after Dameware. Roger Strong wasn't holding his breath: Remote Desktop products from Symantec's PCAnywhere and TeamViewer have long been used for similar crimes. The company that acquired Dameware is worth at least $4.5 billion. To answer your question, "never." They have the resources to defend themselves. This guy doesn't. Next, we head to our deep dive into the reasons that the Copyright Office should remain under the Library of Congress, where one commenter declared this a bad idea on the basis that the latter is a "failed institution" — an idea with which James Paul Burkhardt took exception: I question your premise. The Library of congress is not a "failed" instiution. And, in fact, the current Librarian of Congress is a good way to fix the private industry revolving door. By hiring an actual Librarian with proven history modernizing Libraries, the stage has been set for a more functional Library of Congress. And, very quickly, the librarian, understanding the needs of the copyright office, found the industry insider unsuitable to the task. Retaining the copyright office as an arm of the Library of congress makes sense. The 'fix' is to put actual librarians in charge of the library, like we put actual judges on the supreme court. This would allow the Librarian of congress to choose heads of the copyright office that maximize the synergies of the two departments, and improve the whole process. Over on the funny side, we've got a very context-dependent winner in first place, so we're going to twist the format a bit. Instead of two funny editor's choices, we've got a bonus insightful editor's choice followed by one for funny, and they're both coming before the first place winner... so they can set up the context of the thread. It starts on our post about the discovery that facial recognition on the new Galaxy S8 can be easily fooled with a photo. One commenter turned to the other fact that such recognition can work with an unconscious person as reason not to trust its security, leading OldMugwump to offer the universal advice that it depends what the threat is: As with all things security, it depends on how much security you need, the consequences of failure, and who your opponent is. There are lots of things for which minimal security is fine - when a breach involves minor consequences you can easily live with. For other things you need more security. If your phone can transfer away your life savings, for example. And if your opponent is the NSA you need stronger security than if it's the nosy guy in the next cube at work. Nobody should expect a single level of security to be right for everyone, or for everything. Stronger security has costs that you don't want to pay for trivial gains. That's when things took a turn for the comedic, with an anonymous reply taking the hypothetical scenarios further: Unless the nosy guy in the next cubicle works for the NSA. But then, if he works for the NSA, he's probably working *in* the NSA's buildings, which means that you're working in the NSA's buildings, which means that *you* also work for the NSA, which means that you must have the strongest possible encryption against your own access. Ok, that's done it. My head's exploded. Finally, that brings us to our first place winner for funniest comment of the week, with Eldakka offering a response to the head explosion That level of security is a bit excessive don't you think? And that just leaves us with our second place winner on the funny side: Roger Strong with some dystopian musings on the future of armed police drones: Relax. With ever-increasing battery energy density, soon the drones can be launched from a central location rather than by hand from a nearby squad car. No local human assistance required. That means they can be controlled by outsourced labor in another country. Heck, people sitting in California have been tele-killing people via drones in Afghanistan and Yemen for years! Outsourced drone pilots will be far cheaper than police officers, there'll be no police union, and they're easy to replace with another anonymous hire if they screw up. It makes deflecting the blame in a wrongful death a lot easier too. They might even locate the drone "call centers" in Afghanistan, Pakistan and Yemen to provide jobs as part of the rebuilding process. Abundant cheap labor; folks who have already been taught the concepts and potential of drone operations. The outsourced drone cops won't be normal citizens *or* government employees. Equality problem solved. Hope This Helps! That's all for this week, folks! Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
Five Years Ago This week in 2012, a worrying report from the White House suggested they were still seeking a legislative solution to piracy even in the wake of SOPA's failure. Meanwhile, in an interview, the MPAA's Chris Dodd suggested backroom negotiations were already underway on that front, though the association quickly tried to backtrack those comments. But our attention was already shifting from SOPA to another even more problematic set of proposed laws: the cybersecurity bill CISPA. Viacom gained some ground in its lawsuit against YouTube when the appeals court sent the case back to the district court, though this wasn't the big win that some people portrayed it as. And given recent revelations about the Copyright Office, it's notable that five years ago this week that we were talking about its struggles to modernize and pointing out Maria Pallante's questionable grasp of the purpose of copyright. Ten Years Ago This week in 2007, EMI — one of the few labels that occasionally showed signs of "getting it" — announced (with the help of Steve Jobs) that it would offer DRM free music through the iTunes store. Weirdly, other comments from Jobs showed that despite his anti-music-DRM stance, he was pro-DRM when it came to video (for some highly illogical reasons). Meanwhile, some record store owners were fed up and ready to point fingers at the RIAA for destroying the recording industry, the world of online guitar tablature was starting to go legit, and a judge declared DVD jukeboxes to be legal to the chagrin of DVD DRM groups. Also this week in 2007, Google and Microsoft were fighting to acquire DoubleClick while the internet advertising giant was trying to make itself even more valuable. Fifteen Years Ago Today the world frets over fake news and clickbait and propaganda and what to do about it, but this week in 2002 it was grappling with the basic early questions like how much can automated news curation and gathering replace human editors, and what happens with internet journalism in the middle of a major crisis. Courts were starting to recognize that computers were important enough to life that you can't just stop people from using them, XM satellite radio was growing much faster than we expected, and employees at various companies were struggling to get their older bosses to understand why they need wireless technology. Canada got plenty of attention this week too. It beat the US to launching a good intercarrier SMS system, and made headlines with two April Fools pranks: one in which some radio hosts managed to keep Bill Gates on the phone by masquerading as the Canadian Prime Minister, and another in which a too-convincing joke about the Finance Minister quitting his job caused the Canadian dollar to take a hit. Meanwhile, never one to shy away from colorful hyperbole, Jack Valenti called media consumers "devilish" and accused them of "terrorizing" the industry. Sixty-One Years Ago Between subscription-based specialty cable, streaming services like Netflix, and the rise of YouTube and internet video in general, the past few years have seen the a long-standing convention begin to get dethroned: standardized half-hour and hour runtimes for TV shows. This framework is going to stick around for a long time and still play a role on network television, but cable and streaming shows are starting to get much more flexible with their runtimes (Netflix's The OA made headlines with episodes that vary wildly in length, from 30 minutes to as much as 71 minutes in the same season). But in the early 1950s and before, even the half-hour standard timeslot didn't exist yet — serial shows were instead standardized at 15 minutes. It was on April 2nd, 1956 that soap operas As The World Turns and The Edge Of Night debuted in the US as the first serial shows with half-hour episodes. People didn't like the format at first, but it would soon come to be the norm for a half-century of television. Permalink | Comments | Email This Story

Read More...
posted 16 days ago on techdirt
Here comes the rollback. As President Trump made clear with his pick for Attorney General, the days of police reform are over. The administration is only willing to put its weight behind efforts that give cops more power, weapons, and funding. Everything else -- including several years-worth of consent agreements with dysfunctional police departments -- is unimportant. The first wave of Trump's planned United Police State was a series of divisive directives seeking to bolster support for law enforcement by informing them the president had their back and anyone who didn't was simply wrong. A Trump Administration will empower our law enforcement officers to do their jobs and keep our streets free of crime and violence. The Trump Administration will be a law and order administration. President Trump will honor our men and women in uniform and will support their mission of protecting the public. The dangerous anti-police atmosphere in America is wrong. The Trump Administration will end it. The DOJ's Civil Rights Division -- which has entered into several consent decrees with police departments engaged in unconstitutional policing -- is seeing its budget cut. The "law and order" focus of the Trump/Sessions DOJ is taking shape. Via Reason's CJ Ciaramella comes the next step in the Making America Great Again:Blue Lives Matter program -- the DOJ's courtroom announcement [PDF] that it will be rewriting (or at least reconsidering) its recent consent decree with the Baltimore Police Department. Accompanying the DOJ's request for a delay in proceedings is a memo [PDF] from Attorney General Jeff Sessions, which spells out the Department's new priorities. The Department will use its resources to effectively promote a peaceful and lawful society, where the civil rights of all persons are valued and protected. To that end, I expect that all Department components will adhere to and support principles that will advance those two goals, including, but not limited to the following: The safety and protection of the public is the paramount concern and duty of law enforcement officials. Law enforcement officers perform uniquely dangerous tasks, and the Department should help promote officer safety, officer morale, and public respect for their work. In the context of the DOJ's courtroom request for a continuance to examine the consent decree in light of Sessions' new memo, this likely means the DOJ will be looking to serve law enforcement first and the general public second. Note the "uniquely dangerous" phrase, which suggests the DOJ will be cutting officers more slack on force deployment since they're apparently in near-constant "fear for their safety." Local law enforcement must protect and respect the civil rights of all members of the public. This is a nice touch, but it's the only thing in there that nods to citizens' rights, rather than simply granting a powerful subset of government employees even more power. That the Baltimore PD consent decree appears to be on the verge of being rolled back indicates -- along with the following bullet point -- Sessions is pulling the DOJ out of the civil rights business completely. Local control and local accountability are necessary for effective local policing. It is not the responsibility of the federal government to manage non-federal law enforcement agencies. The misdeeds of individual bad actors should not impugn or undermine the legitimate and honorable work that law enforcement officers and agencies perform in keeping American communities safe. This is the "bad apple" argument, reduced to a bullet point in Sessions' "Bootlicking Best Practices" memo. The collection and analysis of timely, reliable statistics on crime and criminals are essential for effective law enforcement strategies. This suggests we'll only be seeing the FBI's roundup of crime stats from now on. Years after announcing it would do so, the DOJ finally got around to tracking the number of people killed by on-duty police officers. The voluntary system that never worked was replaced with one with a bit more coercion. This appears to be headed for an early retirement. Recruitment and training of law enforcement officers should focus on making law enforcement a rewarding career, and attracting and retaining well-qualified personnel. I don't have any argument with this point, other than the fact that, in this context, it means law enforcement pay increases will be uncoupled from increased accountability or transparency. The DOJ is getting out of the oversight business. Presumably any members of its civil rights division that survive culling will be expected to don Go Blue! cheerleading outfits and assist the other federal agencies (DHS, CBP, ICE, etc.) with the compilation of their "dangerous foreigners" lists. Collaboration between federal and local law enforcement is important, and jurisdictions whose law enforcement agencies accept funding from the Department are expected to adhere to the Department's grant conditions as well as to all federal laws. It's all wrapped up with an implicit threat of funding cuts and grant denials should local agencies police themselves too harshly or refuse to play along with the feds' increased immigration enforcement efforts. The Department of Justice is being retooled to protect a single side of the justice equation. We may have a new president, but the old "Dept. of Just Us" jokes will return from their brief hibernation. Permalink | Comments | Email This Story

Read More...
posted 16 days ago on techdirt
For many, many years, Senator Ron Wyden has been directly asking the US intelligence community a fairly straightforward question (in his role as a member of the Senate Intelligence Committee): just how many Americans are having their communications swept up in surveillance activities supposedly being conducted on foreigners under the FISA Amendments Act (FISA being Foreign Intelligence Surveillance Act). Wyden started asking way back in 2011 and got no answers. His continued questioning in 2013 resulted in Director of National Intelligence James Clapper lying to Congress in a public hearing, which Ed Snowden later claimed was a big part of the inspiration to make him leak documents to the press. Just last month, we noted that Wyden had renewed his request for an accurate depiction of how many Americans have had their communications swept up, this time asked to new Director of National Intelligence, Dan Coats. Unfortunately, for all these years, it's basically felt like Senator Wyden tilting at a seeming windmill, with many others in Congress basically rolling their eyes every time the issue is raised. I've never understood why people in Congress think that these kinds of things can be ignored. There have been a few attempts by others -- notably on the House Judiciary Committee -- to ask similar questions. Almost exactly a year ago, there was a letter from many members of the HJC, and there was a followup in December. But, notably, while there were a number of members from both parties on that letter, the chair of the House Judiciary Committee, Bob Goodlatte, did not sign the letter, meaning that it was unlikely to be taken as seriously. Suddenly, though, it seems that the ins-and-outs of Section 702, and how the "incidental" information it collects on Americans is used has taken on a much wider interest, following President Trump's misleading suggestion that President Obama tapped his phone lines, and some Trump supporters trying to twist typical 702 surveillance to justify those remarks. Either way, if that leads people to actually look at 702, that may be a good result out of a stupid situation. And, thus, we get to this surprising moment, in which Goodlatte has actually sent a similar letter to Coats (along with ranking member John Conyers) asking about the impact of 702 surveillance on Americans. And since (for reasons that are beyond me) Reuters refuses to link to the actual source materials, you can read the full letter here or embedded below. The letter demands an answer by April 24th. And, yes, it's notable that Goodlatte has signed on, because Section 702 is up for reauthorization at the end of the year, and if Goodlatte is not on board with reauthorization, then the NSA is going to have some difficulty in getting it through. You have described reauthorization of Section 702 as your "top legislative priority." Although Congress designed this authority to target non-U.S. persons located outside of the United States, it is clear that Section 702 surveillance programs can and do collect information about U.S. persons, on subjects unrelated to counterterrorism. It is imperative that we understand the size of this impact on U.S. persons as our Committee proceeds with the debate on reauthorization. The letter then even points to Coats' response to Wyden during Coats' confirmation hearing that he was "going to do everything I can to work with Admiral Rogers in NSA to get you that number." Of course, back in December, it was said that the intelligence community might finally deliver that number... in January. And it's now April. Still, with Goodlatte finally taking an interest in this, it's a sign that the NSA can't just coast by and continue to completely ignore this. Permalink | Comments | Email This Story

Read More...
posted 16 days ago on techdirt
Former revenge porn site operator/lawyer impersonator Craig Brittain is once again engaged in some DMCA abuse. A couple of years ago, Brittain issued bogus DMCA notices in hopes of whitewashing his past. Along with posts at Popehat, Vice, Huffington Post, Ars Technica, and Reddit, Brittain asked Google to delist the FTC's press release about its settlement with Brittain over his revenge porn misdeeds. It didn't work, obviously. A new set of stories highlighting Brittain's sordid past swiftly filled up any gaps in the revenge porn purveyor's vanity Google searches. Popehat reports Brittain has apparently learned nothing from his last Streisanding. Brittain is once again issuing bogus takedown notices -- this time on behalf of his alt-right ride-sharing pipe dream, Dryvyng. (Pronounced "dryheaving.") Here's a bit more background on that particular "business venture" from Ken White: More recently, Craig has embarked on two simultaneous paths: the path of a social critic and aspiring pseudo-journalist seeking investors to back his anarcho-capitalist critique of society, and aspiring CEO of Uber competitor "Dryvyng," a business devoted to the proposition that if you'd like a ride you ought to order one from a pathological revenge porn extortionist with a searing hatred of women and humanity in general. Craigbo has sought to raise capital for Dryvyng through disturbed and bigoted tirades at venture capitalists. Perhaps prolonged exposure to MRA rhetoric led him to believe that negging was a viable strategy for developing startup capital. Conclusion: nah, bro. Nah. It's this "company" that Craig has issued the DMCA notices for. Apparently, he's none too thrilled at the lack of positive press for his hypothetical ride-sharing startup and has once again asked Google to delist all sorts of things he has no business asking to be delisted. Dean Jones of Shooting the Messenger is the person who originally discovered a handful of notices sent by "Dryvyng," all of which feature petulant commentary not normally found in legal paperwork. Here's Brittain's attempt to nuke a Business Insider story about threats he made to VCs who turned down his offer to throw their money down a hole. Business Insider is fake news and the "investor" was actually a paid internet troll. Internet trolls (who have no money to invest) deserve to get cussed out. Please remove this libelous, slanderous article about my company immediately. Here's the note accompanying his request for the delisting of a Fusion story about Dryvyng: Fake, slanderous, libelous article defaming me and my company and abusing copyrighted material. Fusion is a fake news website run by left-wing social justice warriors with the aim of defaming conservatives and libertarians. Brittain doubled up on both of those requests by sending two more notices demanding the entire sites be delisted. But it really doesn't get any better/sadder than this one, targeting a Wikipedia article: Slanderous, libelous and deliberately misleading Wikipedia entry designed to defame and libel me and my company. Please permanently remove this page (and all of Wikipedia itself, which is a left-wing hive for slander and libel) from Google. In this case, the DMCA notice targets nothing about Dryvyng, but instead the site's article about Brittain's revenge porn site. In every case, the accusation is internet libelslander, which can't be touched by DMCA notices. The reason is in the name of the notice itself: Digital Millennium COPYRIGHT Act. But when you're angry at the internet, any fill-in-the-blank form will do. Even if Brittain had used the proper paperwork, Google would be under no obligation to delist the alleged slander, thanks to Section 230 of the CDA. It's no surprise Brittain's attempt to pass himself off as David Blade, Esq. went so badly. He obviously has zero legal acumen. If you're going to beclown yourself with bogus notices, at least try to do so somewhat competently. Sure, the outcome won't change, but at least you won't look like even more of an idiot than you already do. Permalink | Comments | Email This Story

Read More...
posted 16 days ago on techdirt
Yesterday we wrote about Twitter suing the US government after officials at the Department of Homeland Security sought to use a law designed to gather information for figuring out import duties, to unmask the operator of @ALT_uscis, alleging to comment on immigration issues from within the US Citizenship and Immigration Service. Twitter broke out the big guns for that case, as the lead attorney representing it was Seth Waxman, a former Solicitor General in the Clinton administration. Apparently, the US government realized that it was going to be fairly difficult to make much of a case here and agreed to drop the summons it had issued to Twitter, leading Twitter to dismiss the case: On April 6, 2017, Twitter filed a Complaint in the above-captioned matter. On April 7, 2017, counsel for Defendants from the Department of Justice contacted counsel for Twitter, to advise that U.S. Customs and Border Protection has withdrawn the summons and that the summons no longer has any force or effect. Because the summons has now been withdrawn, Twitter voluntary dismisses without prejudice all claims against Defendants in the above captioned matter. There have been some folks who have questioned Twitter's motives in filing this lawsuit, but that seems misguided. Twitter has a long history of going above and beyond most everyone else in the tech industry in fighting back in court attempts by government officials to get info on its users without proper due process. Permalink | Comments | Email This Story

Read More...