posted 14 days ago on techdirt
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By now it's quite clear that many in the US intelligence community believe strongly that Russia tried to influence the US election, and part of that included hacks into the DNC's computer systems, a spearphishing attack on Clinton campaign manager John Podesta's emails and some exploratory surveillance hacking into the computer systems of state election systems (but not into the voting machines themselves). The US intelligence services said it back in October. And they said it again last month. And, they said it again on Friday with the release of an unclassified "incident attribution" report. Because the debate over this issue has gotten quite silly in some places -- and ridiculously political as well -- let's start with a few basic points: It is absolutely entirely possible that the Russians hacked into all these systems and that it was trying (and perhaps succeeding?) to influence1 the election. Nothing in what I'm saying here is suggesting that's not true. What I am concerned about is the evidence that's presented to support that claim -- mainly because I think we should all be terrified when we escalate situations based on secret info where the government just tells us to "trust us, we know." And, yes, governments (including the US) have done this going back throughout history. That doesn't make it right. But here's the thing: there actually is some pretty good evidence that Russia was behind the hack. But here's the crazy thing: that evidence is not in this report, but presented elsewhere. If you keep reading below, I'll point out an example of some pretty compelling evidence that Russia was behind the hack -- and it's the kind of evidence that the US intelligence community could have easily provided, but did not. And that's where the problems lie. Because very little in this new report provides any evidence at all of Russia doing anything. It certainly goes deep into the motivations for why Russia might want to influence our election. It's also not surprising that Russia might have the ability and expertise to do these things. But it would be nice to see actual evidence. As Lovenzo Franceschi-Bicchierai at Motherboard notes, there's really very little in the new report that we didn't know already: But this report adds nothing we didn’t already know from public information. The only significant statement is that, yes, American spies are convinced Russian President Vladimir Putin himself directed the hacking and influence campaign—something they already stated in early October. Marcy Wheeler similarly notes that there's plenty of work on motives, but little on evidence: What we see of it is uneven. I think the report is strongest on Russia’s motive for tampering with the election, even if the report doesn’t provide evidence. I think there are many weaknesses in the report’s discussion of media. That raises concerns that the material on the actual hack — which we don’t get in any detail at all — is as weak as the media section. The "media" section is actually pretty ridiculous. It basically notes that RT, the American-targeted TV station owned by the Russian government, has a history of pushing Russian-approved propaganda. Well, sure. And just one more pointer on this. Former CIA analyst Patrick Eddington also has a really thorough analysis of the report and comes to basically the same conclusions: While the report provides new and important details on the multifaceted Russian operation, its failure to include declassified primary source data for key claims ensures the controversy has not been put to rest. So, what kind of evidence could the intel community have provided? Well, Matt Tait, who used to work at the UK's GCHQ, and who now tweets at @pwnallthethings gave a pretty damn good example of digging down into publicly available data to present quite compelling evidence that Russian interests were behind, at the very least, the hack of John Podesta's emails. This is not 100% conclusive, certainly, but it's a hell of a lot more compelling than anything released by the US government: So the actual email used to phish John Podesta ended up in the WIkileaks dump. It's here https://t.co/H6ACVvnOXH — Pwn All The Things (@pwnallthethings) January 4, 2017 This is a reconstruction of that phishing email. (All of the information is bogus - the mention of Ukraine isn't relevant here). pic.twitter.com/EvFhdYfZaI — Pwn All The Things (@pwnallthethings) January 4, 2017 You can't tell just by looking, but that "Change Password" link doesn't take you to Google. It takes you to Bit.ly. pic.twitter.com/e6Rm71YTfG — Pwn All The Things (@pwnallthethings) January 4, 2017 This link expands to a fake login page (note URL is for a .tk site). This is what Podesta saw when he accidentally gave creds to hackers. pic.twitter.com/3Cc8KxvjNf — Pwn All The Things (@pwnallthethings) January 4, 2017 But the hackers screwed up. The hackers weren't hacking one-by-one; so URL contraction wasn't done manually. It was done via the Bitly API. — Pwn All The Things (@pwnallthethings) January 4, 2017 Using the Bitly API requires you create an account. So the hackers had to create an account. And they forgot to make their account private. — Pwn All The Things (@pwnallthethings) January 4, 2017 It's no longer possible - the hackers have changed their settings - but before you could simple enumerate ALL of the contracted links. — Pwn All The Things (@pwnallthethings) January 4, 2017 The Bitly link in John Podesta's email is visible in the Wikileaks dump here https://t.co/H6ACVvnOXH pic.twitter.com/PNEN96Cfq3 — Pwn All The Things (@pwnallthethings) January 4, 2017 We can ask Bitly to expand it. This is what it says https://t.co/Qo9ZkkFGP0 pic.twitter.com/uEvg25shJA — Pwn All The Things (@pwnallthethings) January 4, 2017 Those gobble-de-gook strings aren't encrypted. They're Base64 encoded. In this case, it tells us the link was for [email protected] pic.twitter.com/ebLWQndneO — Pwn All The Things (@pwnallthethings) January 4, 2017 Why did the hackers include this info? Same reason they contracted links via API. Because they're not hacking 1-by-1. Are hacking at scale. — Pwn All The Things (@pwnallthethings) January 4, 2017 This information lets their attack server populate fields to look more authentic (it's why it's able to pre-fill Podesta's name and picture) — Pwn All The Things (@pwnallthethings) January 4, 2017 But it also means this opsec screw up is bad. Bc we can see the links contracted by the account, we can see all of the spearphishing URLs — Pwn All The Things (@pwnallthethings) January 4, 2017 And the spearphishing URLs tells us the accounts that were targeted. — Pwn All The Things (@pwnallthethings) January 4, 2017 How many accounts did this "14 year old" hack? About 1800. In 2015. — Pwn All The Things (@pwnallthethings) January 4, 2017 Who were these accounts? Mil, govt personnel in the West, defence cos, journos critical of govt in Russia etc pic.twitter.com/NyZEkWLncf — Pwn All The Things (@pwnallthethings) January 4, 2017 Here's a pie chart of some of the accounts the 14 year old hacker hacked outside of Russian sphere of influence pic.twitter.com/AzdtL0Umbt — Pwn All The Things (@pwnallthethings) January 4, 2017 This 14 year old is apparently an avid reader, given how many authors they're hacking. What are their interests? Another pie chart. pic.twitter.com/TKSXePJViJ — Pwn All The Things (@pwnallthethings) January 4, 2017 (These pie charts by @SecureWorks I should add, from here: https://t.co/hQFtzWZrbx) — Pwn All The Things (@pwnallthethings) January 4, 2017 And which countries is our friendly 14 year old hacker interested in? These ones. Remember. This is 1800 gmail accounts *in 2015 alone*. pic.twitter.com/TZ2B2p6bw9 — Pwn All The Things (@pwnallthethings) January 4, 2017 Is it possible this was all a 14 year old? Sure. Also possible I'm a bridge salesman, and boy have I got a great deal for you today. — Pwn All The Things (@pwnallthethings) January 4, 2017 When hackers hack at scale, they reuse infrastructure. They make mistakes. This isn't unusual. You can piece the bits together. — Pwn All The Things (@pwnallthethings) January 4, 2017 See? That's pretty damn compelling. Perhaps it's not conclusive, but it's a very, very strong argument for why the hack came from Russia. And it's a hell of a lot more compelling that what the US government put out. I've seen lots of people arguing that the intelligence community couldn't reveal more details because it would "burn sources and methods" that were used to determine the attribution of the hacks -- but Matt Tait did figure all that out with public information (ironically, some of it revealed via Wikileaks). Now, perhaps the intelligence community that hates Wikileaks doesn't want to use that as a "source" in its report. Or perhaps it's something else. And, yes, it makes sense that the intelligence community should not burn sources and methods to reveal stuff like this. But there are ways to present compelling details without compromising those things. But, of course, this is the US intelligence community we're talking about, and they're generally not fans of revealing anything at all. So I'm sure even the details in this report were like pulling teeth. And that's dumb. Again, more and more of what happens in the world is going to happen via computer systems and networks. And we're not always going to know. But it's a serious problem when governments are escalating situations and making angry posturing moves against one another based on totally secret information where the best we're being told by the government is "trust us." Especially when that very same government has a long history of not being so trustworthy.Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
As the result of an FOIA lawsuit brought by the Associated Press, USA Today, and Vice, the FBI has finally released documents about the one-time iPhone exploit/hack it purchased from an unknown foreign vendor. Well, more accurately, the FBI released a bunch of paper with nearly nothing left unredacted, as USA Today's Brad Heath pointed out multiple times on Twitter. Hey look, we just got the FBI's contract for the mystery exploit it used to unlock the San Bernardino gunman's iPhone. #FOIA pic.twitter.com/pCFMMlcrVZ — Brad Heath (@bradheath) January 6, 2017 Among the many things the FBI is not disclosing: Its nondisclosure agreement with the mystery party that supplied its iPhone exploit. pic.twitter.com/mksiEGuEtD — Brad Heath (@bradheath) January 6, 2017 Contractor who supplied FBI's iPhone hack had to fill out a "clean air and water certification." Obviously, this also is classified. pic.twitter.com/5QLIvvTqOL — Brad Heath (@bradheath) January 6, 2017 Among the things the FBI withheld are the non-disclosure agreement it signed with the company, the vendor's clear air and water certification, the date it was given approval to purchase the exploit, and pretty much anything else the FBI felt it could cover with white space and variations of the letter "b." Here's USA Today's summary of what was left unredacted. Friday's data release included dozens of pages of contracting boilerplate but no information about the source of the exploit or its cost. The FBI indicated in the records that both of those details are classified. FBI Director James Comey intimated during a public forum last year that the price was more than $1 million. The documents did show that after the FBI’s clash with Apple became public, at least three other companies expressed interest in cracking the phone, even though none of them had by that point started developing a tool that would have allowed them to do so. The last part shows there's no shortage of "smart people" willing to help solve James Comey's encryption problems, even if these solutions might only work one time and be far more expensive than the precedential court decisions and/or favorable legislation Comey is seeking. In all fairness to the FBI, the public received about as much useful information from this document release as the FBI received from its pricey, one-time phone cracking. A long list of FOIA exemptions were used to justify even boilerplate like clean air/water compliance, which is par for the course when the FBI feels its methods and techniques might be made public. If these redactions are challenged, the FBI is going to have a fun time explaining why it couldn't even release the price of exploit, much less large chucks of the standard contractual language it deploys when working with private companies -- whether they're cracking open iPhones or supplying toner cartridges. Permalink | Comments | Email This Story

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Law enforcement has a number of informants working for it and the companies that already pay their paychecks, like UPS, for example. It also has a number of government employees working for the TSA, keeping their eyes peeled for "suspicious" amounts of cash it can swoop in and seize. Unsurprisingly, the FBI also has a number of paid informants. Some of these informants apparently work at Best Buy -- Geek Squad by day, government informants by… well, also by day. According to court records, Geek Squad technician John "Trey" Westphal, an FBI informant, reported he accidentally located on Rettenmaier's computer an image of "a fully nude, white prepubescent female on her hands and knees on a bed, with a brown choker-type collar around her neck." Westphal notified his boss, Justin Meade, also an FBI informant, who alerted colleague Randall Ratliff, another FBI informant at Best Buy, as well as the FBI. Claiming the image met the definition of child pornography and was tied to a series of illicit pictures known as the "Jenny" shots, agent Tracey Riley seized the hard drive. Not necessarily a problem, considering companies performing computer/electronic device repair are legally required to report discovered child porn to law enforcement. The difference here is the paycheck. This Geek Squad member had been paid $500 for digging around in customers' computers and reporting his findings to the FBI. That changes the motivation from legal obligation to a chance to earn extra cash by digging around in files not essential to the repair work at hand. More of a problem is the FBI's tactics. While it possibly could have simply pointed to the legal obligation Best Buy has to report discovered child porn, it proactively destroyed this argument by apparently trying to cover up the origin of its investigation, as well as a couple of warrantless searches. Setting aside the issue of whether the search of Rettenmaier's computer constituted an illegal search by private individuals acting as government agents, the FBI undertook a series of dishonest measures in hopes of building a case, according to James D. Riddet, Rettenmaier's San Clemente-based defense attorney. Riddet says agents conducted two additional searches of the computer without obtaining necessary warrants, lied to trick a federal magistrate judge into authorizing a search warrant, then tried to cover up their misdeeds by initially hiding records. The "private search" issue is mentioned briefly in OC Weekly's report, but should be examined more closely. Private searches are acceptable, but the introduction of cash payments, as well as the FBI having an official liaison with Best Buy suggests the searches aren't really "private." Instead, the FBI appears to be using private searches to route around warrant requirements. That's not permissible and even the FBI's belief that going after the "worst of worst" isn't going to be enough to salvage these warrantless searches. As Andrew Fleischman points out at Fault Lines, the government's spin on the paid "private search" issue -- that it's "wild speculation" the Best Buy employee was acting as a paid informant when he discovered the child porn -- doesn't hold up if the situation is reversed. AUSA Anthony Brown's defensive statement is nothing more than the noise of a double standard being erected. Flipping the script for a minute, would an AUSA say it was “wild speculation” that a man was a drug dealer when phone records showed he regularly contacted a distributor, he was listed as a drug dealer in a special book of drug dealers, and he had received $500.00 for drugs? Sorry to break it to you, Mr. Brown, but once you start getting paid for something, it’s tough to argue you’re just doing it for the love of the game. In addition to these problems, the file discovered by the Best Buy tech was in unallocated space… something that points to almost nothing, legally-speaking. [I]n Rettenmaier's case, the alleged "Jenny" image was found on unallocated "trash" space, meaning it could only be retrieved by "carving" with costly, highly sophisticated forensics tools. In other words, it's arguable a computer's owner wouldn't know of its existence. (For example, malware can secretly implant files.) Worse for the FBI, a federal appellate court unequivocally declared in February 2011 (USA v. Andrew Flyer) that pictures found on unallocated space did not constitute knowing possession because it is impossible to determine when, why or who downloaded them. This important detail was apparently glossed over in the FBI's warrant application to search Rettenmaier's home and personal devices. In hopes of overcoming this obstacle, they performed a sleight-of-hand maneuver, according to Riddet. The agents simply didn't alert Judge Marc Goldman that the image in question had been buried in unallocated space and, thus, secured deceitful authorization for a February 2012 raid on Rettenmaier's Laguna Niguel residence. Courts have shown an often-excessive amount of empathy for the government's "outrageous" behavior when pursuing criminals. The fact that there's child porn involved budges the needle in the government's direction, but the obstacles the FBI has placed in its own way through its deceptive behavior may prevent it from salvaging this case. The case is already on very shaky ground, with the presiding judge questioning agents' "odd memory losses," noting several discrepancies between the FBI's reports and its testimony, and its "perplexing" opposition to turning over documents the defense has requested. In any event, it appears the FBI has a vast network of informants -- paid or otherwise -- working for both private companies and the federal government. Considering the FBI is already the beneficiary of legal reporting requirements, this move seems ill-advised. It jeopardizes the legitimacy of the evidence, even before the FBI engages in the sort of self-sabotaging acts it appears to have done here. Underneath it all is the perplexing and disturbing aversion to adhering to the Fourth Amendment we've seen time and time again from law enforcement agencies, both at local and federal levels. Anything that can be done to avoid seeking a warrant, and anything that creates an obfuscatory paper trail, is deployed to make sure the accused faces an even more uphill battle once they arrive in court. Permalink | Comments | Email This Story

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posted 15 days ago on techdirt
I guess it's up to one Congressman to decide what is or isn't (acceptable) art. A Republican congressman took matters into his own hands Friday and personally removed a painting depicting police officers as pigs that a colleague had allowed to be displayed at the U.S. Capitol complex. “I was angry,” Rep. Duncan Hunter, R-Calif., told FoxNews.com. “I’ve seen the press [reporting] on this for about a week or so. … I’m in the Marine Corps. If you want it done, just call us.” Hunter said he walked over to the artwork Friday morning with a few colleagues and unscrewed it. He then delivered it to the office of Rep. Lacy Clay, D-Mo., the congressman whose office had allowed the piece to be displayed. The painting, hanging since June, was done by a high school student who had won Clay’s annual Congressional Art competition. Can't get legislators off their asses to pass a budget in a timely manner or, I don't know, step up to do anything about the DOJ's Rule 41 changes, but you can count on them to apply long-dormant self-motivation to personal agendas. Rep. Hunter, offended on behalf of an entire nation unions offended on behalf of their members, saw to it that painting, which the police unions bitched at length about, was removed from the public eye. Not that there was any outrage shown by a majority of constituents, who most likely first heard about this painting after it was removed. Here's the most offending part of the painting, as captured by the Independent Journal Review. Coming to the defense of powerful, armed men and women who possess the power to stop and/or detain people for violating imaginary laws is the Association of Los Angeles Deputy Sheriffs. In the demand letter posted to its website, the ALADS refers to the painting as a "piece of hate," before going on and on and on about how the nation owes law enforcement its undying support. Everyone should be alarmed when those whose job it is to fight crime on a daily basis are being depicted as pigs. Why do otherwise reasoned individuals-despite evidence before them to the contrary-become reflexively critical of police? How can a member of Congress jump to the twisted conclusion that it is okay to hang a painting that adds to the divide in our country and attacks law enforcement? Public safety requires a strong two-way partnership. At a time of our country facing rising crime and a shortage of those willing to work the streets as police officers and deputy sheriffs, we need to make it clear that depictions of law enforcement officers as pigs in our Nation's Capital are not acceptable. The dedicated men and women who put on a uniform daily, who serve to protect our communities, deserve all the support the community can possibly provide. I assume "everyone" is just supposed to remain in their current state of alarm, since police being depicted as pigs went mainstream nearly a half-century ago. The implication of the rest of the paragraph is that anything less than full-fledged support of the law enforcement community divides nations and causes staffing shortages. And presumably ALADS believes any criticism of police is "reflexive," and not at all based on actual law enforcement actions and activities. The same goes for the other law enforcement unions whose feelings were hurt by a high school student's artwork -- one that was informed by the aftershocks of the shooting of Michael Brown in Ferguson, MO. In an earlier statement calling on House Speaker Paul Ryan to remove it, the Los Angeles Police Protective League, the Sergeants Benevolent Association of New York, and the San Francisco, Oakland and San Jose Police Officers Associations said: “This false narrative portrays law enforcement professionals as posing a danger to the very communities we serve. That is untrue and this ‘art’ reinforces this false narrative and is disrespectful on so many levels.” That's an interesting take -- one that suggests law enforcement officers pose no danger to the people they serve. So, based on a new set of false narratives, one periodically-attentive Congressional rep has appointed himself censor... not for the good of the public at large, but for the good a certain subset of the public -- and subset of public servants -- who just couldn't accept the idea that some people don't view them as heroes. Permalink | Comments | Email This Story

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posted 15 days ago on techdirt
This week, the RIAA was pushing a lot of nonsense about the "value gap" in music and the need for laws to protect its business. Nasch won first place for insightful by reading things through a more sensible lens: The funny thing is most of it makes perfect sense if you interpret it rationally rather than in RIAA crazy-talk. Issues like the “value gap” The gap between what the labels take and what artists get and obligations of intermediaries will continue to dominate the legal landscape. Intermediaries meaning record labels - they're between artists and audiences. Ideally, the Byzantine legal structure today would give way to a system where creators are fairly compensated and competitors are on equal footing. Sounds great! Those who have an interest in music could come together to figure out solutions. You don't want a Byzantine legal structure? Go back to the original 1790 copyright law. Simple. While litigation can be an important tool, it often takes a long time and the results are unclear. This is harder to square. I haven't seen much evidence that litigation is ever an important tool in this business, but the second part is certainly right. Solutions between business and industry partners can clear a path through thorny legal issues. Could be. The combination of partnership and technology can go a long way to ensuring a healthy music ecosystem. Absolutely agree. In second place, we've got a second response to the RIAA — this time from DannyB, offering a simple distillation of the real question and its real answer: Q. How can a musical creator be fairly compensated? A. Don't sign up with an RIAA record label! For editor's choice on the insightful side, we'll start out with one last tidbit from that post — this time another interpretation of the RIAA's words, but one that's a little less generous and sadly much more accurate: "... competitors are on equal footing... " Translation... "We want our business model protected by law, so we can destroy any competition." Over on the funny side, we start out with the story of a man's Smart TV getting hit by ransomware, where one commenter wondered if that doesn't call the whole "Smart" label into question. Roger Strong won first place for funny with a truly excellent response: Maybe it decided it was so smart that it didn't have to listen to security briefings. In second place, we've got a comment from our round-up of 2016's top comments, where we were randomly yelled at to shut down this "stupif" blog, prompting an anonymous response: Protip, when insulting people make sure to spell correctly or you will look stupif. For editor's choice on the funny side, we've got a pair of quick quips in response to Sarah Palin's recent about-face on Edward Snowden. The headline in full was "Sarah Palin Now Thinks Julian Assange Is A Really Nifty Guy", the wording of which understandably tripped up David: Sarah Palin Now Thinks You almost had me there. Finally, we've got a silly and pleasing anonymous gag: I can see Russian hackers from her house. That's all for this week, folks! Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
Five Years Ago This week we finally move from 2006 to 2007, but as far as the news goes little has changed: it was all SOPA, all the time. There was growing confusion around which companies actually supported the bill, with some like EA trying to avoid taking a position altogether and others, like some game developers, clashing with their own industry groups like the ESA over how to respond. The ESA was a strong supporter of the bill, and initially had the firm backing of Capcom — but Capcom soon tried to back down and worm its way out of the spotlight. Grover Norquist, a huge supporter of strong copyright law, also tried to get some distance from SOPA and PIPA. Al Gore came out with some thorough and strong opposition, and Senator Ron Wyden was planning a filibuster. Ten Years Ago This week in 2007, everyone and their brother was jumping on the MySpace-clone bandwagon, with Disney launching a limited and unimpressive platform and even Toyota announcing plans to do the same. A tech company somehow managed to get a patent that basically covered all digital downloads and proceeded to sue everyone, while the RIAA was fighting its own fight to keep its wholesale digital download prices on the hush-hush. The movie industry was still flailing around with even more DRM and an unwelcome addition to the high-def DVD format wars, and we saw the latest crazy attack on YouTube in the form of an accusation that the site aids and abets vandalism. Fifteen Years Ago Speaking of DRM, this week in 2002 one congressional representative pointed out that it is probably illegal under a 1992 law — but I guess that idea didn't fly. There was lots of buzz about the future of "interactive television" but that idea didn't exactly soar either. The beginning of 2002 also marked one of only two times in history so far that the number of domain names online had gone down (presumably after cybersquatters and domain prospectors abandoned their domains after the tech bubble burst). And though the technology was still in its early days, folks were beginning to worry about facial recognition software. Sixty-Three Years Ago But now here's a real example of technology in its early days. I'm rarely surprised to find out that an area of tech has been around longer than I thought and than you might expect, but I was genuinely surprised to learn that all the way back on January 7th, 1954, IBM used one of its mainframe computers to do the first demonstration of computer translation, taking Russian sentences encoded to punch cards and producing print-outs of English translations. Of course the system was quite simple, the sentences carefully chosen, and the scope extremely limited — but it worked, and placed the first example of such technology much earlier in the history books than I would have guessed. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
Back in 2015, a Techdirt Podcast explored the fascinating idea of a universal basic income guarantee, something that the Swiss considered, but ultimately rejected in a referendum. The idea of giving money to everyone, regardless of what they do, or how much they earn, is intriguing and attractive for many. But what effect would it have on how people live and work? That's what Finland hopes to find out from an experiment it is conducting in this field, as a story in the Guardian reports: Finland has become the first country in Europe to pay its unemployed citizens an unconditional monthly sum, in a social experiment that will be watched around the world amid gathering interest in the idea of a universal basic income. Under the two-year, nationwide pilot scheme, which began on 1 January, 2,000 unemployed Finns aged 25 to 58 will receive a guaranteed sum of €560 (£475). As that indicates, this isn't a universal basic wage, since it's aimed at just a few of those receiving unemployment benefit, and the money will replace existing financial support. On the other hand, it isn't just some kind of creative accounting, because they will continue to receive the monthly sum even if they find work. There are already plans to roll it out more widely. As the Guardian notes, other parts of the world, including Canada, Italy, the Netherlands and Scotland, are also looking to try out the idea. At a time when there are fears that automation may well reduce the total number of workers needed in industry, it's great to see these experiments exploring an approach that could help to alleviate social problems arising from this shift. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
If there is one lesson you take away from writing about trademark law and disputes, it's how simple it would be to avoid a massive percentage of the conflicts by holding trademark applications to a far higher standard then they often are. If the world's many trademark offices kept in mind that the entire point of this form of intellectual property is supposed to be keeping the public confident in their ability to determine the source of a given product or service by its trademarked branding, then it would be obvious that approved trademarks should be unique and distinct. As a counterexample to that line of thinking, consider the current dispute going on between Bushy's Brewery, located on the Isle of Man, and the Manx government, all over the government's trademark for exactly two letters: TT. The company was hit with a legal warning by the Isle of Man government over the government’s ‘TT’ trademark, registered at the UK Intellectual Property Office (IPO). Since 1998, Bushy’s has operated a beer tent at the Isle of Man TT Race, a motorsport event held annually since 1907 in the crown dependency, which is located in the Irish Sea between England and Northern Ireland. According to broadcaster ITV, the government’s Department of Economic Development issued a warning in response to controversy over the brewery’s use of the “iconic initials” (TT) and said that it needs to protect the famous TT brand. Okay, some background for those of you non-racing enthusiasts. The Isle of Man is a small nation off the coast of England. It's main tourist attraction is a motor race called the Isle of Man Tourist Trophy, or "TT" for short. For the island's economy, it's a big deal. The brewery, also located on the island, has been a constant participant at the race, with a tent and sponsorship contribution. Bushy's Brewery registered a trademark for "TT" to cover beer, clothing, and catering services in March of 2015. The company was apparently taken aback when only recently the Manx government fired off its warning letter over the trademark it holds on the "TT" mark. “Bushy's has been told by the Isle of Man government that it can't use the letters ‘TT’ because it's trademarked. Bushy's is synonymous with the TT, its beer and the beer tent. “It also employs local people year-round, and contributes to the Manx economy. If the government believes in supporting the local economy, it should stop threatening legal action and let Bushy's ... use the letters ‘TT’.” Basically everyone involved in all of this is being a bit ridiculous. The Manx government, were it so concerned about the brewery's use of the letters "TT", ought to have objected to the trademark when it was first applied for. To allow the registration first and to only later fire off a warning letter smacks of dysfunction. It's also unlikely that anyone is going to go to Bushy's beer tent and somehow think it's an arm of the government-operated event. Bushy's, meanwhile, registered and somehow attained a trademark on two letters. Acronym for a race or not, that itself is absurd. Which brings us to the Intellectual Property Office, which somehow saw fit to approve a trademark registration for exactly two letters in the English alphabet. Had it not done so, none of the parties would be in this mess. But this is what you get when something like trademark law is allowed to stray so far from its original purpose. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
A confusing and disturbing conclusion has been reached by a New York federal court. The court has decided that 791 days of location tracking with a GPS ankle bracelet is unreasonable, but somehow not worthy of evidence suppression. (via FourthAmendment.com) Kemal Lambus -- the defendant challenging the evidence -- was granted parole, but with certain conditions. One of those was imposed a few months after his release: wearing an ankle bracelet to ensure he abided by his curfew. This was in addition to the normal amount of diminished privacy afforded parolees, which includes any number of warrantless searches by parole officers. According to Lambus, there was nothing "voluntary" about the ankle bracelet agreement he signed. He was told that if he didn't, his parole would be revoked. The opinion [PDF] agrees, noting that the state itself refers to conditions "imposed' on Lambus -- a word that implies this was anything but consensual. Lambus objected to the tracking device, but was told he would only have to wear it for 3-6 months. After that period had expired, Lambus repeatedly -- seven times in the following six months -- asked to have it removed. The six-month figure originally given to Lambus is backed up by the government's contract with the provider. A record from Veritracks, the vendor that provides GPS monitoring services to NYSDOCCS, indicates that the initial GPS monitoring period was set to last only until November 8, 2013, exactly 6 months after the bracelet was attached. The court finds the extended search -- 791 days of location tracking -- to be a violation of the Fourth Amendment. While it acknowledges that parolees have a lower expectation of privacy, their Fourth Amendment rights are not null and void until they complete their parole term. The government argued the tracking was voluntary because Lambus agreed to wear the bracelet. As noted above, the evidence doesn't agree with this assertion. This is only one of the arguments the government made to salvage its warrantless tracking, but the court doesn't find this persuasive. In the instant case, Lambus’s location was monitored 24 hours a day, every day from May 8, 2013 to July 8, 2015—791 days. In People v. Weaver, the New York Court of Appeals recognized that even if a person has a diminished expectation of privacy in a car traveling on a public road, continuously tracking the car through use of a GPS monitoring device was a “massive invasion of privacy” that was “inconsistent with even the slightest reasonable expectation of privacy.” Here, too, the “massive invasion of privacy” by continuous GPS surveillance vitiated Lambus’s reasonable expectation of privacy, even if such an expectation was “slight.” The government's other arguments didn't fare any better. The purpose of the tracking device shifted from curfew violations to drug trafficking before law enforcement actually came across any evidence suggesting Lambus might be involved. The Appeals Court may have done away with strictly separating law enforcement and parole officer searches by eliminating the "stalking horse" concept from circuit case law, but the record still indicates the bracelet was left on Lambus for law enforcement purposes, rather than simply to verify his adherence with his parole conditions. Lambus knowingly had a GPS tracking device placed on his ankle on May 8, 2013, not because he was expected of any criminal wrongdoing, but to monitor whether he was abiding by the curfew condition of his parole.This purpose shifted as federal law enforcement began using the location data to build a narcotics trafficking case against a dozen individuals. His ostensible supervisors, NYSDOCCS, took no actions against him despite, presumably, possessing evidence of criminal wrongdoing. The last sentence shows NYSDOCCS had conceded control and surveillance of Lambus to federal and local law enforcement by that point.The court acknowledges that law enforcement and the supervision of released prisoners often contain intertwined "special needs," but those don't outweigh the massive, lengthy privacy violation that occurred here. The more intrusive the search, the deeper the coordination between the agencies, and the more wide-ranging the web of criminal activity the search seeks to detect, the less substantial the relation of the search is to the supervision of the parolee being searched. The longer the search, the more likely it is to be “seeking contraband or evidence in aid of prosecution for criminal activity” (id. at 798) for the purpose of “uncover[ing] evidence of ordinary criminal wrongdoing.” Such a search could not be justified under the tent of the “special needs” doctrine. The court is clearly disturbed by the government's actions. Pinpointing exactly when Lambus’s electronic monitoring crossed the line from a supervisory search to a general law enforcement search is difficult. That the line was crossed during the two years seems clear. Parole officers must serve the community at large and the parolee, a dual responsibility requiring facilitating a parolee’s rehabilitation, if possible. Allowing a parolee to knowingly violate both the conditions of his parole and the law—for months and months on end—betrays both of the constituencies the parole officer is supposed to serve by sacrificing rehabilitation for recidivism in aid of public protection. A state cannot use a parolee as a sort of fly paper, trailing him around the community for years, trolling for criminals. If the state wishes to search someone for the primary purpose of furthering a deliberate effort to gather evidence as part of a wide-ranging criminal prosecution, the “warrant and probable-cause requirement is not…‘impracticable’”; the search cannot be justified as a “special need,” even if the searchee is a parolee. And yet, the court is unwilling to suppress the evidence. Because it can't find exactly where the state crossed the line from "supervisory" to "law enforcement search," it falls back on the Appeals Court's nullification of the "stalking horse" legal concept. The unequivocal language in these two decisions—Reyes and Newton—created a binding appellate precedent that police involvement with a warrantless search of a parolee does not stamp the search as unconstitutional if it was initiated by a parole officer pursuant to a legitimate supervisory objective. If the court can't see where to draw the line, it sucks for the defendant. In the instant case, the search was initiated by NYSDOCCS to monitor Lambus’s adherence to his parole conditions; specifically, his curfew. This is a legitimate supervisory objective. The decision by NYSDOCCS and the federal agents to coordinate subsequently was reasonable given the Court of Appeals’s Reyes and Newton decisions. Neither the NYSDOCCS officers nor the federal law enforcement officers behaved inappropriately. There would therefore be little deterrent value in excluding the evidence. The court declines to suppress the location data evidence. So, while the court may say the government can't use parolees as criminal activity "fly paper," its decision basically says the state can… at least up until the point the Appeals Court decides to revisit this issue. The instant case is, however, distinct from Reyes and Newton in striking ways that may prompt the courts to revisit their jurisprudence in this area in a more generous future case. The court also points out that not having a lawyer to represent you means not having as many rights -- yet another way the criminal justice system is broken. If Lambus had been represented by counsel during his parole, he might have challenged NYSDOCCS’s decision to subject him to this continuing search for such a long duration. Individuals who lack counsel are left in the lurch when attempting to remedy violations of rights to their privacy. It is an unfortunate and common occurrence in our country that rights without counsel are no rights. In a case like the present one, where the invasion of privacy is so substantial and the government’s purpose is so questionable, a search is likely unreasonable and therefore unconstitutional at some point. But for the lack of counsel… The court does not reach that issue in the instant case. This decision can be blamed on bad precedent, and the lower court is in no position to override it. The opinion here appears to be the "inevitable" one, rather than the one the court really wanted to hand down. As it stands now, state and federal law enforcement can piggyback on parole conditions with little to no fear of repercussion. (Also of note: the opinion does suppress evidence obtained with an illicitly-obtained wiretap warrant -- something that was only admitted after the court questioned the discrepancy between the officer's testimony and his sworn statements in the affidavit. In the instant case, the omission was not “inadvertent;” it was knowing. The Special Agent testified that despite having been an affiant in previous wiretap applications, he did not know that he needed to check for prior wiretap applications related to all the target interceptees. This mistake alone, despite precedent to the contrary, may have constituted mere inadvertence. But this was not the Special Agent’s only error. The HSI agent swore that “a check of federal law enforcement databases, including FBI, DEA, ATF, and HSI databases, indicate that there have been no prior application seeking Court authorization to intercept the wire, oral, or electronic communications of the Target Subjects or over the SUBJECT TELEPHONE.” Jan. 9, 2015 Aff. at ¶ 24 (emphasis added). When he swore to this statement, he knew it was false. This was not a “misunderstanding." It was perjury. The case was filled with sketchy law enforcement behavior, but the multiple agencies involved are still able to salvage most of their evidence thanks to some questionable case law.) Permalink | Comments | Email This Story

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We've seen lots of companies (and prosecutors) go after researchers and hobbyists who have exposed security holes in websites and software. Rather than simply fix the problem and alert those who might be affected, too many see fit to shoot the messenger as well. We've also seen some disturbing over-prosecution of less well-intentioned hackers, presumably meant to act as a deterrent toward others who might feel like taking a poke at a company's firewall. This tends to result in sentences completely divorced from the reality of the situation. So, it's somewhat refreshing to see law enforcement officials handle a hacking case in a much more proactively positive way. (via the Office of Inadequate Security) Following an investigation, a 24-year-old man from London was arrested for computer misuse by the Metropolitan Police. The man admitted accessing email accounts by using information found on social media sites such as LinkedIn and Facebook to identify targets, and bypass their security questions. It's unclear if the man did anything with the information he'd obtained. The man admitted to accessing the accounts and claimed he didn't know his actions were illegal. After some discussion with the suspect and the organization affected (which has asked not to be named), both aggrieved parties agreed to let the enterprising hacker work it off. Instead of pursuing a prosecution, the victims agreed to a 'restorative justice' option, whereby the hacker will now be giving advice to the organisation about cyber security and some of the methods used to breach networks. The 24-year-old will now be strengthening the security of the organization whose system he'd breached. This is a much better outcome for everyone involved than the alternative. A prosecution would likely have kept the suspect on the wrong side of the law. Spending time in jail tends to decrease the chances of rehabilitation and a criminal record can often serve as an inadvertent deterrent to making an honest living. A chance to work with those he's negatively affected will disabuse the man of any "victimless crime" notions and give the organization a chance to learn cybersecurity skills from someone who knows a thing or two about working around the minimal security roadblocks erected with a "will this do" shrug by far too many entities. Permalink | Comments | Email This Story

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Perhaps one of the most common phrases I've seen in reference to various actions by Donald Trump and his transition team since the election in November is "this is not normal" or "this is not how things are done." Those phrases keep popping up over and over again -- often in somewhat horrified tones. Politico recently had a pretty good article demonstrating how the Trump transition team seems to not care one bit about the traditional way things are done: President-elect Donald Trump has said he might do away with regular press briefings and daily intelligence reports. He wants to retain private security while receiving secret service protection, even after the inauguration. He is encouraging members of his family to take on formal roles in his administration, testing the limits of anti-nepotism statutes. And he is pushing the limits of ethics laws in trying to keep a stake in his business. In a series of decisions and comments since his election last month -- from small and stylistic preferences to large and looming conflicts -- Trump has signaled that he intends to run his White House much like he ran his campaign: with little regard for tradition. And in the process of writing his own rules, he is shining a light on how much of the American political system is encoded in custom, and how little is based in the law. And... that's really quite interesting, because of how little many people -- especially policy experts -- have really stopped to consider how much of the way we do things is based on custom, and not actual rules. There are two ways of looking at this. First, there absolutely are serious problems with "the way things have always been done." So there's potential value in having someone who doesn't feel hamstrung by traditions and customs that might not make sense. But, the flip side of that is that there are often really good reasons for the way many of these things are done. And, so far, the customs and traditions that Trump has been indicating he'll ignore, are ones that do seem to be based on solid reasoning, rather than just silly legacy reasons. Intelligence reports, secret service protection, and anti-nepotism rules make sense. It's one thing to blow stuff up because they're outdated and unnecessary -- and another thing altogether to just blow them up for the sake of blowing them up, or even just out of convenience. But as a way of highlighting just how much of our system is held together based on legacy reasons, rather than actual rules, it's fascinating.Permalink | Comments | Email This Story

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A few years back, the FCC here in the States bumped the base definition of broadband from 4 Mbps downstream, 1 Mbps upstream, to 25 Mbps downstream, 4 Mbps upstream. This was done in large part to highlight the lack of competition (two-thirds lack access to speeds of 25 Mbps from more than one provider) at faster speeds, largely thanks to telcos that no longer really want to be in the residential broadband business and are refusing to upgrade their networks at any scale. Needless to say, neither ISPs -- nor the politicians paid to love them -- were happy with the new standard. Recently the Canadian government took things further, announcing new rules that make 50 Mbps downstream, 10 Mbps upstream the new industry standard. In addition to declaring that this 50 Mbps option should be considered "basic telecom service" moving forward, the CRTC announced that it's requiring that Canadian ISPs at least offer users the ability to purchase an uncapped, unlimited broadband connection. According to the CRTC, 82% of Canadians already have access to speeds of 50 Mbps -- but like in the States, availability for these faster options are incredibly scarce in more remote areas where competitive incentive is minimal and deployment costs are higher. To that end, the CRTC said it's setting aside a $750 million subsidy fund to shore up backbone connectivity. The CRTC Is claiming that the effort should result in 50 Mbps service being made available to 90% of Canadian households by the end of 2021, and to the remaining 10% of households within 10 to 15 years after that. Of course, telecom subsidies are nothing new, and the amount of money thrown at incumbent broadband providers in North America probably could have delivered gigabit fiber connections to every home on the planet several times over. These efforts are usually well-intentioned, but things quite frequently get lost in translation thanks to telecom providers with significant influence over the regulators and legislatures tasked with making sure this money gets spent effectively. And while the 50 Mbps high-water mark is important in a sense, it's also partially theatrical. Telecom regulators have a long, proud history of announcing initiatives that sound transformative, but can often be achieved without much government help. When the "goal" is achieved down the road with minimal calorie expenditure, government often steps in to pat itself on the back for a job well done. Doing anything more would require actually standing up to some of the most politically influential companies on the continent. And again in this case, Canadian Law Professor Michael Geist is quick to point out that the plan isn't as revolutionary as it's being portrayed:"It would be a stretch to describe expanding access to these target speeds to an additional 8 per cent of the population over five years as transformative. In fact, given the investments from various providers, it raises the question of whether Canada might reach that target without the CRTC’s efforts. Indeed, the real challenge remains the last 10 per cent in rural and remote areas for which there are no easy answers. Affordability goes hand-in-hand with access, yet the CRTC largely punted this issue, noting that “a comprehensive solution to affordability issues will require a multifaceted approach, including the participation of other stakeholders.” That places much of the responsibility on the government, but the CRTC had the opportunity to push providers harder on affordability. The Commission points to innovative solutions from some companies – Rogers and Telus are obvious examples – but leaves observers to wonder why it did not go further by setting goals or targets for industry laggards." You'll note that much like its regulators to the south, the CRTC punts when it comes to actually acknowledging the lack of broadband market competition and the high prices and poor service that results. This lack of competition also introduces the thorniest telecom issues of the day: including net neutrality violations and the slow but steady expansion of usage caps and overage fees. It's easier to focus on shoring up remaining coverage gaps, especially when the government won't have to do all that much to ensure service (albeit incredibly expensive service) arrives via 5G and other new technologies. With a few exceptions, a good rule of thumb with government broadband announcements like this is: if the incumbent ISPs are ok with it, it either doesn't do all that much or provides them money for doing very little. And based on a review of the newswires, Canadian incumbent ISPs aren't complaining about this new, supposedly lofty plan in the slightest.Permalink | Comments | Email This Story

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The $60 2017 iOS 10 Complete App Builder Bundle is a coding bootcamp designed to teach you all you need to know about working with iOS 10. Learn how to work with CodeRunner, Armature and Swift3 to build your own games, events schedulers and more. The bundle includes over 250 hours of instruction, and an array of app templates and tools. 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

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The FBI has decided to let one of its Playpen defendants walk rather than turn over information on its Network Investigative Technique. The NIT, deployed all over the world on the back of a single warrant obtained in Virginia, unmasked Tor users by dropping code on Playpen visitors' computers that sent back IP addresses and other information about the user's computer. The warrant itself has been ruled invalid by a number of judges presiding over Playpen prosecutions, although not all of them have determined that the evidence obtained by the NIT should be suppressed. The FBI not only sent malware to site visitors, but it also ran (and possibly improved) the child porn website for two weeks while pursuing its investigation. Michaud's lawyer asked the court to force the FBI to hand over information on the NIT. The FBI countered, saying it wouldn't turn over the information even if ordered to do so. Judge Bryan, after an in camera session with the agency, agreed with the government that there was a law enforcement need to keep the details of the tool secret. But he also made it clear the government couldn't have both its secrecy and its evidence. He ordered all evidence suppressed. With all evidence deriving from the forced exposure of Michaud's IP address, there was nothing left for the government to work with. It could have voluntarily turned over information to Michaud's defense lawyer for examination, but has chosen instead [PDF] to let Michaud go free. (h/t Andrew Crocker) On June 23, 2016, the United States Attorney’s Office for the Western District of Washington filed a protective Notice of Appeal to preserve the right of the United States to pursue an interlocutory appeal of the order of the district court granting the defense motion to compel and finding, as a remedy for the refusal to comply that the evidence of the Network Investigative Technique (NIT), the search warrant issued on the basis of that evidence and the fruits of that search should all be suppressed. Upon further review within the Department of Justice or the Court’s order and the record in the case, the United States has concluded that this appeal should not be pursued. It is for that reason that the United States now respectfully requests that this appeal be dismissed. The FBI is developing quite the reputation for dropping prosecutions in the face of challenges of its secret tools and techniques. The NDAs it hands out to every law enforcement agency seeking to purchase Stingrays not only tells them to obscure the device's use, but to let suspects walk if it seems some of this info might make its way into the courtroom. What's more problematic here is the FBI/DOJ's two-faced stance on these issues. The FBI argues in court (often obtaining the court's agreement) that these questionable tactics (deploying malware, warrants that ignore jurisdictional limits, running child porn sites rather than shutting them down, etc.) are justified because the people it's going after (child porn viewers/distributors) are that terrible. But then it turns around and lets the very bottom of its basket of criminal suspect deplorables go free rather than hand over information to the defense. It does this even though the defense, the judge, and the DOJ would do all they could to protect as much of the NIT information as possible, including sealing documents and redacting those that are published. Fortunately, the judge presiding over this case wasn't going to let the FBI have 100% secrecy and 100% of the derived evidence. And that has resulted in a voluntary dismissal of someone the government clearly felt was enough of a criminal menace that its extreme tactics were justified. Permalink | Comments | Email This Story

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Sure, we like the DOJ when it's handing down scathing reviews of local law enforcement agencies and belatedly issuing warrant requirements for IMSI catchers, but we're not nearly as thrilled when it argues against warrant requirements for cell phone searches, demands backdoors in phone encryption, or beats mild miscreants over the head with the CFAA. In fact, there's very little to like about the DOJ outside of its civil rights division. Here's yet another reason why the Department of Justice often seems like a misnomer. (h/t Brad Heath) A decision [PDF] has been handed down by a federal court in Puerto Rico, presumably with an eyeroll and an exasperated sigh. In 2014, Homeland Security agents searched Jose Silva-Rentas without reasonable suspicion, probable cause, or a warrant. Silva happened to be next to somebody HSI agents did search with probable cause. Rentas moved to suppress the evidence and the court agreed that the government's theory of probable cause osmosis wasn't enough to salvage the search. The government makes much of Colón's unwise response to the agents' arrival, arguing that his evasive (and criminal) conduct not only gave rise to probable cause for his arrest, but also provided the agents with grounds to arrest Silva and the other individuals in the area. But probable cause as to one individual does not necessarily extend, as though by osmosis, to those in his company. It "must exist with respect to each person arrested, and `a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to [arrest and] search that person.'" The government then tried to salvage the results of the search with a motion for reconsideration. This was also denied. The court here found the tip from a confidential informant too unreliable to form the probable cause needed for the detention and search of Silva. The government moves for reconsideration, claiming again that the agents relied on trustworthy confidential sources. In this regard, it points out that the confidential sources' identities were previously known to Agent Clemente, and that the sources had provided reliable information on illegal activities allegedly carried out by members of Silva-Rentas' drug trafficking organization. The motion, however, is silent as to how the agents were aware of the confidential sources' identities, or what reliable information they previously provided. They may have been denied twice by the same judge, but federal prosecutors weren't going to let the judicial system stand in the way of a conviction. So the did they only thing they could do, which turns out to be the sort of thing they can't actually do: they rang Rentas up for a completely identical prosecution. The DOJ's lawyers tried to find a gap in case law to exploit, hoping that some sort of technicality (it's great when it works for the home team, right?) would allow it to use evidence already suppressed by the same court to pursue a second prosecution against someone it had already dismissed charges against. The Puerto Rico court -- entertaining the same prosecutors and same defendant for a second time -- isn't amused by this ploy. It cites the case law the DOJ's lawyers should have read before making their Double Jeopardy Lite maneuver. Here, the prosecuting entities in the case before Judge Delgado and the case at bar are identical. Federal prosecutors litigated Defendant’s prior suppression motion and prosecutors from the same office are litigating the instant motion. Further, both parties had a full and fair opportunity to be heard on the matter during the prior case as the Motion to Suppress was filed on December 30, 2014 and the matter was not fully disposed of until August 27, 2015 when Judge Delgado denied the United States’ Motion for Reconsideration of the Court’s ruling suppressing the evidence. Between the two dates, Judge Delgado analyzed the parties’ briefs, held an evidentiary hearing, and published a detailed opinion with findings of both fact and law. Thus, the parties were fully heard on the issue and the Court adjudicated the matter through a valid and final on the merits. The government argued that "final" doesn't always mean "final." The court disagrees. [I]n his prior case, Defendant was indicted on several charges relating to possession of weapons by a convicted felon and possession of a machine gun. Soon after the ruling suppressing the search and seizure which yielded weapons on Defendant’s person, the United States moved to dismiss all charges against Defendant. For the Court to now find that Judge Delgado’s detailed ruling suppressing all firearms seized from a defendant charged with possession of said firearms is not essential to the judgment of dismissal would be nonsensical. Accordingly, the Court finds this element has, too, been satisfied. As the court points out, to buy into the DOJ's argument would be to allow it to go judge shopping repeatedly until it found a court willing to admit evidence a court had previously suppressed. To hold to the contrary would imply that the United States is afforded infinite opportunities to use previously suppressed evidence against a defendant in subsequent proceedings in separate cases. This would also allow the United States to reargue admissibility of evidence in perpetuity until they find a judge that holds the evidence admissible. Obviously, that would not be in tune with the Constitution’s protections against Double Jeopardy nor the Fourth Amendment’s prohibition against unreasonable searches and seizures. The DOJ probably isn't thrilled its arguments have been boiled down to a latent desire to overturn Constitutional protections and pursue multiple prosecutions for the same criminal allegations, but that's what its arguments are when all the legalese prettying it up is stripped away. This is the DOJ's farcical interpretation of the word "justice." Permalink | Comments | Email This Story

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We've noted for years that as broadcasters and cable companies bicker over new programming contracts, already-annoyed customers are left in a lurch. Usually these feuds go something like this: a broadcaster demands a huge rate increase for the exact same content. The cable company balks, and the content is usually pulled out of the cable lineup. Customers aren't given any sort of refund for this missing content, they're just inundated with PR pitches from both sides trying to get them pissed at the other guy. Ultimately a new, confidential contract is struck, and the rate hikes are then passed on to the consumer. In short, consumers are repeatedly punished with blackouts and petty PR bitching between companies incapable of responsibly signing new contracts, after which they get a lovely new price hike. It's no wonder that 2016 was a record year for cord cutting. Utterly oblivious to the self-immolation that comes from pissing off an already historically unsatisfied customer base, cable providers and broadcasters are already doubling down on this dysfunction in 2017. In just the last few weeks, countless pay TV customers have lost access to content they're paying for, whether it's Bonneville International blocking Dish customer access to a local NBC affiliate in large parts of Idaho, DirecTV users temporarily losing access to 33 Hearst Stations, or Frontier customers losing access to Sinclair Broadcasting stations after the broadcaster demanded a 200% price hike. The American Television Alliance, a coalition of mostly cable companies, was quick to point out that 2017 is on record to see more of these types of feuds than ever before, as broadcasters continue to push for rate hikes that neither consumers nor cable companies are willing to pay for. It's an utterly unsustainable business model to be sure, though the Alliance is quick to lay the lion's share of the blame, quite correctly, at the feet of broadcasters:"Broadcasters ambushed innocent consumers on New Year’s Day with a tidal wave of television blackouts," said American Television Alliance national spokesman Trent Duffy. "Broadcast tycoons have brazenly and deliberately hijacked pay TV viewers once again, holding college football bowl games, the last weekend of the NFL’s regular season and network premiers for ransom in a naked ploy to extract more money from consumers."Of course, cable providers aren't innocent little daisies either. While they may be a prisoner to broadcaster rates, they often impose rate hikes on service at every conceivable opportunity as well, whether it's higher fees to rent a cable box or digital signal converter, fees to pay your bill in person or via the phone, hidden obnoxious fees used to falsely advertise a lower price, or broadband usage caps and overage fees designed to seek out their pound of flesh from another area of the consumer wallet. Again, this simply isn't sustainable. If the cable industry wants to seriously fight back against cord cutting and slimmer streaming alternatives, it needs to begin more seriously competing on channel bundle flexibility and price, something the sector as a whole appears to be incapable of realizing. As such, cord cutting and cord trimming (streamlining your cable package) are self-inflicted wounds from an industry so terrified of killing its precious legacy TV cash cow, it's actually accelerating the demise of its traditional customer base by doubling down on pissing them off.Permalink | Comments | Email This Story

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It's become pretty common for the authorities to collect personal information about passengers from airlines, supposedly to ensure security. It's a sensitive area, though, as shown by the many years of fraught US-EU negotiations that were required in order to come up with a legal framework for transferring this data to the US when EU citizens were involved. However, not all EU countries are so concerned about that privacy thing. Belgium, for example, thinks that the current approach doesn't go far enough, and that it should be extended to include all forms of mass transport. As this EurActiv article notes, the Belgian parliament has already voted to bring in a national system for trains, buses and boats by May 2018, and the country is calling for the rest of the EU to follow suit: In response to a number of terror attacks, Belgium wants greater control over who travels on its trains, buses and boats and will present its plans at the next meeting of EU interior ministers at the end of January. However, there's a problem. Last year, the EU finally passed the EU Passenger Name Record (EUPNR) directive: The EU PNR directive will oblige airlines to hand EU countries their passengers' data in order to help the authorities to fight terrorism and serious crime. It would require more systematic collection, use and retention of PNR data on air passengers, and would therefore have an impact on the rights to privacy and data protection. Despite data protection safeguards that were included, resistance to bringing in this directive was fierce from many quarters. EurActiv says: According to EU diplomats, the decision on air traffic passenger data was already a "big step" and that measure only applies to travellers going to or from third party destinations. Against that background, asking the EU to extend the PNR scheme to include trains, buses and boats may be going too far, so to speak. Nonetheless, it's a bad idea that's now out there, and all-too likely to spread. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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It bears repeating: far too many of the trademark disputes we cover here at Techdirt are in large part the fault of a USPTO all too willing to grant trademarks on terms that are overtly either broad or based on geography. One would hope that it went without saying that trademarks, designed to inform the public as to the source of the products they buy, cannot work to that end if the identifying marks are not specific or original within the marketplace. Yet the Trademark Office too often doesn't seem to consider this when rubber-stamping applications. For example, there is currently a trademark dispute going on between two coffee companies over the name of the city of "Detroit." A local company’s Detroit-branded java doesn’t jive with an East Coast entity that claims it was the early bird in the Motor City joe business. But the target of the complaint insists the Dec. 22 lawsuit filed by New York-based Detroit Coffee Co. is nothing more than a shakedown. “This is a Wall Street-versus-Woodward type of mentality,” said A.J. O’Neil, owner of Hazel Park-based Detroit Bold Coffee Co. “They think the little guy will fold.” Detroit Coffee Co., a Michigan LLC with a New York City address, filed a complaint alleging trademark infringement against Detroit Bold. It demands a jury trial in U.S. District Court for the Southern District of New York. It's only through the absurdity of granting a trademark on something like "Detroit Coffee" to begin with that you can generate a reality that includes a New York City business suing a Detroit-based business over the name of a city combined with the name of a common product. When considering trademarks that incorporate geographic names, the bar for infringement is supposed to be much higher. And, should the case move forward, perhaps that higher standard will be applied, but it's still worth considering whether a trademark like "Detroit Coffee" ought ever to have been approved in the first place. After all, whatever the resolution in court ends up being, the monetary burden on such legal action isn't meager. “It’s not like I have all this extra income to hire a big legal team and go (to New York) to fight this,” he said. “Those folks in New York are conjuring up something that at best has no merit.” Adding to the strangeness of this particular case is that Detroit Coffee allowed its trademark to lapse until 2016, when it re-registered after Detroit Bold Coffee trademarked its two logos for "Detroit Bold Coffee Company." O’Neil told The News he and his attorney, Mark Schneider, haven’t seen any evidence that Detroit Coffee actually sells any coffee under the Detroit Coffee name, or has ever sold coffee or other merchandise branded with that name. The trademarks the company pulled in the early 2000s were dead at the time Detroit Bold registered new logos bearing “Detroit Bold Coffee Co.” in early 2016, according to trademark office records. Detroit Coffee renewed trademarks on the “Detroit Coffee” name for use on brewed coffees, teas and beverages on April 14, 2016, roughly two months after O’Neil registered two logos bearing the words “Detroit Bold Coffee Company.” If true, that would seem to leave Detroit Bold Coffee in the clear, except it still would have to take on the burden of the court case. Which means this is all still ultimately the fault of a USPTO too willing to liberally approve trademarks. Permalink | Comments | Email This Story

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We've noted how one of Trump's top telecom advisors is Jeffrey Eisenach, a long-time Verizon consultant and aggressive opponent of net neutrality. Eisenach's one of three Trump advisors who have made it clear their top priority in the new administration will be to not only gut net neutrality, but to defang and defund the FCC as a consumer watchdog on telecom issues. Eisenach isn't just an advisor, he's also on the shortlist to be the next head of an agency he doesn't believe in. But when Eisenach isn't busy dreaming about dismantling net neutrality, he can apparently be found writing logically incoherent op-eds over at the Wall Street Journal. In a strange little tirade posted on January 3, Eisenach quite correctly ridicules the Washington Post's recent false claim that Russians were busy hacking U.S. utilities. In short, a piece of common malware was found on one PC, and because the Washington Post couldn't be bothered to even call the company in question, the paper created a bogus narrative, based entirely on anonymous sources, that casually pushed the country closer to war. Yeah, no biggie. Eisenach starts off well enough, quite correctly illustrating the depth of the Washington Post's failure on the story, and how the malware was arguably run of the mill, and certainly not directly tied to the government:"The kind of malware involved in these two intrusions is neither new nor particularly sophisticated. It is run-of-the-mill spyware that has probably been implanted on thousands of networks around the world, from home computers to those inside banks, power companies and government agencies. These bugs are freely available online, and the code found at the Democratic National Committee and the power company isn’t even the latest version. The notion that such a mundane piece of software reveals a new and ominous threat to critical infrastructure is laughable."All true. But Eisenach's piece then takes a strange turn, in that it somehow tries to blame the Washington Post's awful reporting on... the outgoing President:"Misleading the American people to advance a political narrative has been a hallmark of President Obama’s foreign policy. The most recent example is the administration’s attempt to conflate the hacking of the Democratic Party with potential cyberattacks on critical infrastructure...Cyberthreats pose a clear danger to national security, and building an effective defense will take a concerted effort by the Trump administration. Americans are right to be concerned. But by playing on those fears, the Obama administration is putting politics ahead of the national interest."While the Washington Post was once again happy to quote all manner of anonymous, pearl-clutching intelligence sector insiders for its story (a bipartisan disorder for sure), Obama wasn't among them. Nor is there any indication that the Obama administration actively encouraged the Washington Post to trip over its own shoelaces and perform an epic, journalistic face-plant. Obama certainly has been no saint on cybersecurity, but to blame him for the Washington Post's dysfunction is more than a little strange, especially when the entire point of your article is to lament the senseless politicization of cybersecurity. Someone might want to notify Eisenach that as a top advisor and potential new FCC boss, he's now the one in a position of power. If your goal is to demonstrate that partisan patty cake should be nowhere near technology and cybersecurity policy, why not demonstrate that with your actions -- instead of penning editorials that completely undermine the entire point you're trying to make?Permalink | Comments | Email This Story

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Techdirt has been worried by problems of e-voting systems for a long time now. Before, that was just one of our quaint interests, but over the last few months, the issue of e-voting, and how secure it is from hacking, specifically hacking by foreign powers, has become a rather hot topic. It's great that the world has finally caught up with Techdirt, and realized that e-voting is not just some neat technology, and now sees that democracy itself is at play. The downside is that because the stakes are so high, the level of noise is too, and it's really hard to work out how worried we should be about recent allegations, and what's the best thing to do on the e-voting front. What we really need is someone distant from the current US debate, and yet with a great deal of knowledge of how foreign intelligence services hack into computer systems. Maybe someone like Sir John Sawers, former head of MI6, the UK's CIA. Here's what he said recently to the BBC on the subject of e-voting: "Bizarrely the stubby pencil and piece of paper that you put your cross on in the ballot box is actually much more secure than anything which is electronic." And added: "The more things that go online, the more susceptible you are to cyber attacks." Since MI6 has probably been involved in quite a few of those attacks, Sir John speaks with a certain authority. He also has a good analysis of why there is this constant push for e-voting, even though security experts are pretty unanimous in their warnings of the dangers: "The only trouble is, the younger generation of people expect to be able to do things remotely and through electronic devices." That also goes some way to explaining the naivety of most people when it comes to the Internet of Things. Many people just "expect" everything to be digital and online and linked to its own app, even when it's just a hair brush. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Ben Challis of the 1709 Blog reports that one of India's top courts has just cut a few performance royalty "collection societies" off at the knees. In a blow to three Indian music copyright collection societies, the Delhi High Court has restrained them from granting any such licence till April 24th 2017. Justice Sanjeev Sachdeva, in an interim order, restrained the Indian Performing Right Society (IPRS), the Phonographic Performance Ltd (PPL) and Novex Communications Pvt Ltd from contravening section 33 of Copyright Act, which provides that only registered societies can grant licences in respect of copyrighted work(s). None of the three collection societies are registered, which means they can no longer shake down everyone from doctors (for music played in waiting rooms) to concert venues for licensing fees and performance royalties. In the latter case, the societies were often instrumental in limiting the amount of live music available to Indians, even though they had no royalty claim on the live music itself. PPL collects a fee if any recorded music is played at a concert. "Live concerts do not need our clearance. But who can ensure that no recorded music will be played in the time gap between different artists or before the concert begins? At times people responsible for giving out permissions take unfair advantage in charging money. We are taking note of that and strict measures will be taken," says Sowmya Chowdhury, country head and director of PPL. Venue owners were so intimidated by the societies' per-seat royalty demands they'd often refuse to host a concert if the artist couldn't come up with all sorts of paperwork. PPL happens to be Phonographic Performance Ltd and IPRS is Indian Performing Right Society, two pan-India autonomous bodies that report to the central HRD ministry and control the fate of live performances. Their roles are not even completely understood by musicians, which often leads to trouble before concerts. Pt Tejendranarayan Majumder was at a loss when he was asked for innumerable no-objection certificates before a recent concert at an auditorium. [...] Most auditoriums demand no-objection certificates from PPL and IPRS. Even police permission is given only after these are submitted. Once again, we have an entity supposedly looking out for artists doing what it can to prevent artists from earning a living. This is what they won't be able to do now, thanks to a change in the nation's copyright law. Blocking these societies from collecting performance royalties won't do much for the artists signed to them. But then again, the collection societies weren't doing much for artists in the first place. IPRS has been particularly shady. Many royalty collection societies are known for their extremely limited distribution of funds. Those that do pay out more regularly still tend to hand the bulk of it to charting artists, no matter who actually earned it. IPRS, however, apparently didn't even bother with limited royalty dispersals. The IPRS will be investigated under Prevention of Money Laundering Act (PMLA), 2002, after it was alleged that the company (which was once a society) has collected royalties on behalf of authors, composers and music publishers, and failed to distribute it among the rights holders. Fourteen months later, the results of the investigation have yet to be made public, but chances that royalties will soon be flowing to artists remain slim. IPRS and PPL are no longer public societies. They are both private companies. PPL's decision to go private followed IPRS's. Both moves appear to have been motivated by government scrutiny. The government is still looking into IPRS's royalty distributions, but the society's decision to go private appears to have been a failed attempt to prevent this investigation from taking place. IPRS in its petition had submitted that it had ceased to be a ‘copyright society’ and therefore the Central Government had no power to investigate IPRS. The Bombay High Court in dismissing IPRS’ petition had observed that the allegations for which the inquiry had been instituted were committed when IPRS was still a ‘copyright society’. This move has completely backfired on IPRS. It didn't manage to avoid the investigation of its current collections, and it's now being prevented from collecting anything else for the next few months. And it very much looks like any fees it obtained between its opting out of India's "copyright society" and now were collected illegally. These societies claim to be in the copyright business, but apparently can't bothered to adhere to the nation's copyright laws. And if those in the copyright business don't respect the law, they can't really get too bent out of shape if no one else does either. Permalink | Comments | Email This Story

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We've noted repeatedly how Trump's incoming telecom advisors have made it very clear they not only want to gut net neutrality, but defund and defang the FCC. That means rolling back all manner of other recent FCC policies, like the agency's recently approved broadband privacy rules. While ISPs and advertisers threw a collective hissy fit about the rules, they really were relatively fundamental; simply requiring that ISPs not only make it clear what's being collected and who it's being sold to, but requiring they provide working opt-out tools to broadband subscribers. ISPs and the advertising and marketing industry are already getting a running start on rolling back these new privacy rules. In a joint filing by all of the major advertising lobbying and trade associations, the advertising industry this week was quick to submit a petition to the FCC (pdf) claiming that the new rules aren't necessary because the marketing sector already adheres to a "self-regulatory" regime that delivers all the transparency, choice and benefits that consumers could possibly handle:"This ecosystem has functioned well for years under an enforceable self-regulatory framework developed by the Digital Advertising Alliance (“DAA”), which is broadly supported by industry and widely recognized as a highly credible and effective privacy self-regulatory program that offers consumers transparency about online data collection and a way to control the use of their online data by DAA members while allowing data-driven innovation to flourish. The DAA has been widely successful, with hundreds of companies and thousands of brands participating in the program, over 75 million unique visitors to its digital properties, reaching 35 countries and translated into 26 languages."And while it's certainly nice that the advertising agency has translated its entirely voluntary privacy practices into so many languages, that's not really relevant to what the FCC was trying to accomplish with the rules. The FCC imposed rules specifically thanks to the lack of competition in the broadband last mile, a lack of competition that lets ISPs and advertisers impose draconian new consumer surveillance policies the consumer can't vote to avoid with their wallet. The FCC was particularly nudged to action by the discovery that Verizon and its ad partners were covertly modifying user packets to track users around the internet. It took two years for security researchers to even discover what Verizon and its marketing partners were up to. It took another six months of heavy public shaming before Verizon was even willing to provide working opt-out tools. At no point did industry, or any of its self-regulatory apparatuses, stop and think they'd taken things a bit too far, which is why the FCC, agree or not, felt it was necessary to lend consumers a hand. The FCC was also concerned about a growing push by some ISPs to make opting out of data collection a pricey, luxury option for consumers, "self-regulatory safeguards" be damned. At the thrust of the ad and marketing industry's formal opposition to the FCC's rules is an old favorite; the claim that protecting consumer privacy is somehow a violation of the marketing industry's free speech rights:"The Commission did this in a manner that unreasonably exceeds its statutory mandate by restricting a substantial amount of protected free speech counter to the First Amendment, and using a process that did not allow adequate notice and comment from interested parties."Of course, if you tracked the FCC's privacy rules comment period, or the public debate over do not track, the idea that anyone has ever silenced the marketing and advertising industry is hysterical. Most, of course, realize that the debate over consumer broadband privacy protections has absolutely nothing to do with free speech (a claim ISPs also used to fight net neutrality), and everything to do with the billions that are lost when you have empowered, informed, and engaged consumers with the tools to protect their privacy and a few sensible privacy protections at their back. Again though, this may all be water under the broader, privacy bridge. If Trump's top three telecom advisors do what they've long said they want to do, the new FCC will look to roll back the FCC's newfound Title II authority, and by proxy both its net neutrality and privacy rules (which rely on the new classification of ISPs as common carriers). And as we've noted previously, to minimize activist backlash this will likely come in the form of a new update to the Telecom Act -- one that breathessly professes to protect net neutrality and privacy, yet is intentionally written to do the exact opposite.Permalink | Comments | Email This Story

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One of the wonders of the internet was that it was supposed to be a distributed computer system, meaning that it would be harder to take down and harder to censor. But, over time, things keep getting more and more centralized. And that's especially true in the mobile ecosystem, and doubly so for the Apple iOS mobile ecosystem (at least on Android it's much easier to sideload apps). The latest demonstration of this is that Apple agreed to remove apps from the NY Times from its iOS app store in China, complying with demands from the Chinese government: Apple removed both the English-language and Chinese-language apps from the app store in China on Dec. 23. Apps from other international publications, including The Financial Times and The Wall Street Journal, were still available in the app store. “We have been informed that the app is in violation of local regulations,” Fred Sainz, an Apple spokesman, said of the Times apps. “As a result, the app must be taken down off the China App Store. When this situation changes, the App Store will once again offer the New York Times app for download in China.” The article about this -- in the NY Times, naturally -- says that the paper has asked Apple to reconsider. No one is clear on exactly why this is happening, but the (reasonable) assumption is that it has to do with the new regulations China put in place over the summer that demand all internet news providers must be approved by the Chinese government -- which the Chinese are spinning as part of its effort to crack down on "fake news." Of course, this really just highlights two separate, but equally worrisome trends: (1) the increasing centralization of connected ecosystems, that creates a single chokepoint to target with censorship demands; and (2) the ability to use hyped up claims about "fake news" to censor legitimate and critical investigative reporting. Neither of these are good to see, and both need to be counteracted.Permalink | Comments | Email This Story

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