posted 12 days ago on techdirt
After Comcast got a customer fired by telling his employer that he was lodging customer service complaints, the company's response was weak to say the least. That One Guy won most insightful comment of the week (and racked up quite a few funny votes as well) with a line-by-line translation: What happened with Mr. O’Rourke's service is completely unacceptable. 'The story got out and we're looking bad(again). That's not how it was supposed to happen.' Despite our attempts to address Mr. O’Rourke’s issues, we simply dropped the ball and did not make things right. 'We got him fired, that was supposed to shut him up and be the end of it.' Mr. O’Rourke deserves another apology from us and we’re making this one publicly. 'Absolutely no-one, including me, believes we're sincere of course, but we hope by at least pretending we can just brush this one under the rug.' We also want to clarify that nobody at Comcast asked for him to be fired. 'Because as long as we don't directly ask that he be fired, it doesn't count.' Though a cable company getting someone fired is bad, our next post is much worse: a SWAT team shooting a man dead in his own home, which they were raiding on the say-so of an arrested burglar with a bag full of crystal meth. Second place for insightful goes to an anonymous commenter who noted in simple terms just how far over the top the police response was: The fact that they did not simply walk up to the house with 2 officers and say they had questions about the robbery is sad. They had a perfect reason to be let into the house by the homeowners with no hesitation For editor's choice on the insightful side, we start with another anonymous comment, this time addressing the intelligence community's "if you've got nothing to hide..." argument regarding surveillance: Intelligence: If you have nothing to hide, you have nothing to fear. The Public: But you hide everthing. Intelligence: Yeah, because we're afraid of you! Seeing the public as the main source of trouble in the world is the best way to protect the public. The Public: Who protects us from you? Intelligence: Trust us. Next, simply because I have been enjoying the show and hugely impressed with what he's been doing, our second editor's choice is limbodog's simple shout-out to John Oliver et al: Let's face it, American news stinks. If it takes these comedians poking fun at our politics to help us understand what's really going on, I'm all for it. Thank you Jon Stewart, Stephen Colbert, and John Oliver! Over on the funny side, we start out on our post about the response we sent to Roca Labs' demand for a retraction. Adam Steinbaugh took first place when he praised our restraint: The most remarkable thing here is that the EFF's counsel resisted the urge to file the response I would have sent: "Dear Mr. Berger and Roca Labs, Inc.: lol. love,eff and techdirt and mike" In crayon, naturally. In second place, we've got a response to the revelation that Adobe's ebook reader might be spying on the books you read. One anonymous commenter had a thought about that: They're just checking to see if you're reading 1984. Wait... For editor's choice on the funny side, we could easily give a spot straight to FBI Director James Comey for saying "the Internet is the most dangerous parking lot imaginable." But since that's not technically in the running, our first pick goes to Berenerd for his response: one question.... Since when are parking lots filled with cat videos and trolls? And, lastly, we actually do have an off-Techdirt comment... by proxy. Anonymous Hero sought a spot by quoting the Washington Post's editorial about smartphone encryption, and I'd say he earned it: I'm going for funniest techdirt comment of the week "However, with all their wizardry, perhaps Apple and Google could invent a kind of secure golden key they would retain and use only when a court has approved a search warrant." That's all for this week, folks! Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
Five Years Ago This week in 2009, we were awaiting the shutdown of Geocities, and contemplating what it could teach us about the future of the web. We were similarly contemplating the implications of the FTC's new disclosure rules. The always-aggressive IOC was trying to block Olympia, Washington's Olympian newspaper from trademarking its name and threatening Flickr users for posting photos from the Beijing Games. Apple started a trademark fight with Woolworths over a barely-similar logo halfway around the world. CBS was, confusingly, trying to take down clips of David Letterman's recent and infamous on-air confession. Ralph Lauren was discovering the Streisand Effect following a Bad Photoshop Scandal. And Steve Ballmer, bafflingly, declared that "free is not a business model!" Finally, five years ago this week, we wrote a fairly short post about the FBI going way overboard in their investigation of a programmer. At the time, we had no idea that Aaron Swartz's story would continue, nor did we know how tragically it would end. We didn't even use his known-in-some-circles-but-not-yet-famous name in the headline — an odd thing to see now. It's moments of contrast and reflection like this, I think, that are the true value of these Techdirt History posts, and I hope you all agree. Ten Years Ago Last week, we noted that SpaceShipOne had completed its first of two flights. This week, it completed the second and officially won the X-Prize. For the rest of the world, this week was a mix of tech-optimism and tech-panic. Okay... mostly panic. Wardrivers were on the loose! The internet was causing sex obsession! Video games were terribly addictive! People were misdiagnosing themselves online and becomng cyberchondriacs! (Actually, that last one was and still is pretty accurate, I suppose.) But there was a bit of optimism: a study suggested that texting brings families closer. This week in 2004 is also when Google launched (or re-launched) Book Search, planting the seeds of a legal controversy that rages to this day. We've also got yet another quote from Steve Ballmer, this time as part of Microsoft's (futile) efforts to create a new DRM. Ballmer trashed Apple, saying "The most common format of music on an iPod is 'stolen'." Of course, another reporter suggested the whole thing might not have been as ridiculous as it sounded. Fifteen Years Ago Survivor is in its 29th series, with the 30th set to start in 2015. But this week in 1999 it hadn't even begun — its May 2000 launch was being aggressively promoted, and even Techdirt couldn't resist commenting on the idea. But hey, this is back when Silicon Valley was weird, and some executives believed technology came from aliens, or something like that. In 2004 we had videogame addiction, but in 1999 we had an early stab at the simpler web addiction. But this was a time when net hype tended to win out — and a time when geography still mattered for this kind of thing, which is why that net hype was just spreading to the UK. Wal-Mart's much-hyped website was delayed, Amazon had just added a gift registry, and UPS was offering free internet access... but only to the UPS website. Oh, and long before PRISM, there was Echelon. Remember Echelon? This week in 1999, some folks were trying to figure out how to gag it. One-Hundred And Forty-Six Years Ago Long-time fans of the site surely know that Mike Masnick's alma mater is Cornell University. Well, this week in 1868 marks its inauguration and subsequent enrollment of 412 students, the highest of any American university up to that time. Permalink | Comments | Email This Story

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For this week's awesome stuff post of interesting crowdfunding projects, we decided to look at time travel. There are actually a bunch of crowdfunding projects for people writing (yet another) book about time travel, but here are three other types of interesting crowdfunding projects related (somehow) to time travel. A Brief History of Time Travel A Brief History of Time Travel is a documentary that's not about the concept of time travel itself, but how time travel has become such a big thing in popular culture. It looks at the history of time travel within popular culture and how it's changed over time. Given how common time travel is in so many books, video games, movies and tv shows, this looks pretty cool. Save the Time Travel Institute I had no idea this existed, but the Time Travel Insititue is an online forum all about (you guessed it!) time travel. And apparently the website may go away, as its current owner has announced plans to shut it down. So there's a crowdfunding effort to save the Time Travel Institute and raise enough money to keep the site alive. Time Travel Experiment Okay, look, we can't do a post about crowdfunding around time travel projects without at least one project that claims to be about actually trying to do time travel, so here it is. It includes references to an unpublished theses, entangled particles and superluminal communication. Personally, if I were asking someone to fund my time travel experiments I might actually put a lot more information into the pitch to actually explain who I am or what I'm doing, but whoever put this pitch together decided to keep it simply and leave out such details. Perhaps that's why it's only raised a grand total of $2 out of a requested $150,000. That's it for this week... unless you've figured out a way to travel back to the beginning of the week.Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
We don't have a full recording (i.e., from the beginning of this stop) but it apparently began with a seat-belt violation. By the time the recording begins, the passenger has already been asked to show some ID. He doesn't have any on him, much to the officers' apparent unease. At one point, his hand goes towards the center console, prompting one officer to pull his gun. The driver (Lisa Mahone) is on the phone with a 911 dispatcher, trying to get some help because she has two cops going after her passenger, one of whom has already pulled a gun. The operator tells her to calm down (and why wouldn't she suggest that -- after all, the driver is "safely" in the hands of law enforcement) but Mahone points out something that should be equally obvious, especially post-Ferguson. “I am scared. And the man–pulled a gun out. A gun! Why do my kids have to see that,” Mahone told the 9-1-1 operator. Jamal Jones, the passenger at whom the gun is being pointed makes the same point. Mr. Jones expressed reluctance to get out of the vehicle due to the officers’ aggressiveness and mentioned that “People are getting shot by the police.” Also true. Case in point: seatbelt violation greeted with a handful of bullets rather than a citation. But these police officers have apparently gone too far by the point the recording starts. They can't de-escalate, not after a weapon has been unholstered. So, they take it further. “You’re going to come out of the car one way or another,” the officer menaced. “You want your kids to see you come out through the window?” Apparently afraid Jones has a gun (because why else would another gun be out), the officer approaches the vehicle with an ax and smashes the window, sending glass flying into the back seat where Mahone's two children are sitting. Almost immediately, Jamal Jones is tasered and dragged from the vehicle. The seven-year-old begins crying. The fourteen-year-old continues to record with his cellphone. Now, it's a lawsuit. Jamal Jones was officially charged with resisting law enforcement and "refusal to aid an officer." The last charge makes no sense. Here's the law itself: A person who, when ordered by a law enforcement officer to assist the officer in the execution of the officer's duties, knowingly or intentionally, and without a reasonable cause, refuses to assist commits refusal to aid an officer, a Class B misdemeanor. This is officers piling on charges because they were inconvenienced. Refusing to exit a vehicle may be "resisting law enforcement" but this law isn't supposed to be read as another means of forcing citizens into complete compliance. It's meant to direct citizens to assist law enforcement officers when their help is requested. Being ordered out of a car under threats of violence isn't the same thing as being asked to give an eyewitness statement or use a cell phone to call dispatch/911 for backup. (That this law is on the books is itself questionable, considering it effectively directs citizens to protect and serve police officers who are under no legal obligation to return the favor. It also would seem to put citizens directly in the path of civil lawsuits, should they injure someone or assist officers in violating their rights.) As the PoliceMisconduct.net story notes, Mahone told police dispatch that she had been "pulled over like a bank robber." Once again, we have to wonder what was actually on the officers' minds when they deployed a spike strip in front of the vehicle they had allegedly pulled over because of seatbelt violations. The official statement attempts to explain this. The police release said that another officer car with video equipment was called for and “considerable time” had passed. It added that Mahone at one point put the vehicle into drive, which is when they were told about the spike strips. So, the spike strips preceded the supposed attempt to escape. Here's what the PD has to say in defense of its officers' actions. The officers… called for backup and at some point saw Jones’ hands drop to the center console. That’s when police ordered Jones to show his hands and exit the vehicle because of fear for officer safety, according to the release. Jones also feared for his safety, but had no laws backing up his refusal to exit the vehicle. For two officers "fearing for their safety," they sure move with a lot of confidence. At what point does the mental math add up to "he might have a gun so I'd better move towards the window armed only with an ax?" Or, for that matter, when Jones asks for a "white shirt" (supervisor), why does the fearful officer (remember a gun has already been pulled at this point) say, "Look at my shoulder, dumbass. I've got bars?" These don't seem to be the actions of officers fearing for their lives. These seem to the actions of officers who are now looking to prove a point after coming up empty in their demands for ID. The police report also says that 13 minutes had elapsed between the beginning of the stop and the shattering of the window/tasering of Jamal Jones. What were they looking for? They had two people effectively detained for a minor traffic violation and yet deployed a spike strip in front of the vehicle and finally forced their way inside. They then had one person in custody and another cited. With all of this information and time, they still couldn't come up with heftier charges than those thrown at people when cops can't find anything more damning: variations on resisting arrest. So, you can cut the cops some slack (but not much considering both accused officers have been named in excessive force lawsuits in the past) since they were dealing with an unknown person and the perception of danger. But then what? Here's more of the police statement: “In general, police officers who make legal traffic stops are allowed to ask passengers inside of a stopped vehicle for identification and to request that they exit a stopped vehicle for the officer’s safety without a requirement of reasonable suspicion,” the release says. “When the passenger displayed movements inside of the stopped vehicle that included placing his hand in places where the officer could not see, officers’ concerns for their safety were heightened.” The statement claims officers were concerned about multiple movements inside the vehicle and yet they never made an attempt to search it for weapons, drugs or anything else that might "heighten safety concerns." They deploy a spike strip in front a stopped vehicle but don't bother trying to justify this tactic until after the fact. What it looks like -- and yes, appearances can be deceiving, especially if several minutes elapsed between the beginning of the stop and the violent conclusion -- is another case of officers not knowing how, or just being unwilling to de-escalate a situation when immediate compliance isn't forthcoming. It's at minimum a training issue. But it's also an attitude issue. You want to use a seatbelt violation as an excuse to run names for warrants? Fine. But where do you go when someone has no ID, or refuses to produce it? This is one answer. And it's the wrong one. Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
When we last left the saga of Lindsay Lohan's 10 page complaint against Take 2 Interactive over a publicly-fornicating, drunk-driving character in Grand Theft Auto 5 that she insisted was her own spitting image, Take 2 was asking for the whole thing to be dismissed because the character is obviously not a reproduction of Lohan at all, but a parody take on celebrity fame. In addition to that, Take 2 also mentioned that the statute of limitations may have expired on the issue, since it had been well over a year since the side-mission featuring the alleged-Lohan-doppelganger had been announced and publicized. Well, Lohan's legal team has responded with...paper. Lots more of it, actually. Her amended complaint comes in at a whopping sixty-seven pages and it's chock-filled with images of Lohan in what she's insisting proves that Take 2 used her image as a basis for Lacey Jonas. Lohan's lawyers have now reacted to this gambit by on Wednesday stuffing 45 pages of pictured exhibits into an amended complaint, including a photograph of the game CD, one of which features a blonde, red bikini-clad woman holding up the peace sign. According to the amended complaint, the game publisher "used a look-a-like model to evoke the persona and image" of Lohan by imitating a photograph that was once taken of her in 2007. On some of the game discs, the blonde character that Lohan asserts is her doppelganger is shown in what the lawsuit calls "an arrest pose known as the 'Stop and Frisk.'" A female celebrity holding up a peace sign? Clearly nobody besides Lindsay Lohan has ever been photographed doing that. Lindsay looks different these days. Anyway, her legal team is trying to get around New York's publicity rights laws, which are limited to the realm of advertising, by including all kinds of images of the Lacey Jonas character that Take 2 put on t-shirts and coffee mugs. Except, of course, that none of that was in the original complaint and the character in question still isn't a direct reproduction of Lindsay Lohan. It's a composite parody on L.A. female celebrities in general and it's protected speech due to its nature. As for how the Lohan legal team is attempting to get around the statute of limitations...whoo boy. Lohan has reacted to this defense by talking about the "republication" of her image upon the release of the actual videogame later that year. According to the amended lawsuit, Take-Two modified her image to fit on the game disk. Lohan now claims that this "modification" should satisfy the exception to the one-year statute of limitation. It's the same image sized to fit onto a DVD disc...and that somehow excuses her not taking action for over year because why exactly? In the end, hopefully the court will see this legal action for what it is: a misunderstanding of parody and the first amendment coupled with a plea for attention. DV.load("//www.documentcloud.org/documents/1311622-242430323-lohan-amended.js", { width: 560, height: 550, sidebar: false, text: false, container: "#DV-viewer-1311622-242430323-lohan-amended" }); 242430323 Lohan Amended (PDF) 242430323 Lohan Amended (Text) Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
A vast number of soft drinks are available, and some of the most popular ones seem to have started as medicinal tonics (even the ones that aren't called "energy drinks" nowadays). Coca-cola was once a headache medicine that contained an unhealthy amount of cocaine -- that wasn't completely removed until 1929. Here are just a few other strange sodas with some unusual natural ingredients. Pepsi is launching a new soda sweetened with stevia (and sugar), but it's only going to be available online at Amazon. Pepsi True is not shipping yet, but there are already a few reviews from people who haven't tasted it. [url] Dr. Brown's Cel-Ray soda has been around since 1868, and it may be the only celery-flavored soda that is mass-produced commercially. Celery was once considered a superfood with medicinal powers, so they made a tonic from it, and that story is nearly the same for several other popular soft drinks with supposedly healthy ingredients. [url] The Un-Cola 7 Up was also known as 'Bib-Label Lithiated Lemon-Lime Soda' when it debuted in 1929. The original formula also contained lithium which, at high doses, is prescribed to treat bi-polar disorder. Lithium citrate was removed from 7 Up by the 1950s, but the drink still contains only "100% natural" flavors. (Note: drinking water may contain trace amounts of lithium, too.) [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
It's been pretty well established that the major console manufacturers out there hate independently developed emulators of their consoles. Why they react so violently against them instead of working out some kind of mutually beneficial licensing arrangement is a bit beyond me, but you may recall that a couple of years ago, both Sega and Nintendo strong-armed Google into pulling a bunch of emulators from the mobile marketplace. That move has worked so spectacularly that a cursory search in the Play Store returns all kinds of emulators. Job well done! In any case, Apple appears to be bending to their collective wills in a similar fashion, with the most recent iOS update nixing an easy exploit that would allow emulators to be installed on iPhones that had not been jailbroken. The method that had been used by "antique" game enthusiasts was really easy. Developers discovered the “date trick” that allows unapproved apps to be installed without hacking simply by rolling back the date and time on an iOS device and downloading apps through Safari. This is now the preferred method of gaining access to apps like GBA4iOS or Popcorn Time without losing things like software updates and support from Apple. I have no idea about the technical details behind how rolling back the time on the phone somehow allows the installation of the emulators, but apparently a ton of folks utilized it, stimulating an active emulation community for iOS devices. What with Apple's cozy relationship with console makers and its own authoritarian practices with its app store, everyone knew it was only a matter of time before the exploit was removed. In a blog post entitled “Apple Is Slowly Killing Everything We Love,” Dario Sepulveda writes, “iOS 8.1 beta was seeded to developers yesterday and it’s already causing panic among iOS emulator aficionados… The Date Trick fuels the emulator communities nowadays… Without it, everything looks bleak.” Indeed it does. Of course, it did seem inevitable that this would come sooner or later; Apple has been working to put a stop to jailbreaking since it started back in 2007 — the same year the iPhone made its debut — so it has always seemed unlikely the Cupertino company would just turn a blind eye to this. But it’s a massive shame. A massive shame indeed, especially since the move is so wholly unnecessary. There's absolutely no reason why console and game makers couldn't utilize the apps and communities already in place to both build up their fan base and make a little coin as well. Instead, by going the protectionist route, they only anger true fans and limit the exposure of their products.Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
As you know, we've been reporting on a lawsuit involving Roca Labs against Consumer Opinion Corporation, better known as PissedConsumer. We recently received a letter from Roca Labs' "independent general counsel" Paul Berger, demanding that we retract certain information related to some of those posts. Below you can find that letter as well as our response, helpfully put together by Jamie Williams at EFF. DV.load("//www.documentcloud.org/documents/1312108-roca-labs.js", { width: 560, height: 550, sidebar: false, container: "#DV-viewer-1312108-roca-labs" }); Roca Labs (PDF) Roca Labs (Text) DV.load("//www.documentcloud.org/documents/1312109-response-to-roca-labs-september-30-2014.js", { width: 560, height: 550, sidebar: false, container: "#DV-viewer-1312109-response-to-roca-labs-september-30-2014" }); Response to Roca Labs' September 30, 2014 Retraction Request (PDF) Response to Roca Labs' September 30, 2014 Retraction Request (Text) Permalink | Comments | Email This Story

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Over the last few weeks we've been writing a bit about the legal efforts of Roca Labs, the company selling an "alternative" to gastric bypass surgery, which is actually a bunch of "industrial food thickening agents" that the company claims will fill up your stomach and not make you want to eat. Whether or not that actually works, the company has a bizarre gag order that it pushes on buyers which forbids them from ever saying anything negative about the company (and requiring them to allow Roca to share any positive results). That was already sketchy enough, but what caught our attention was that the company sued PissedConsumer claiming it was "tortious interference" to request complaints about the company, since so many of its buyers had agreed to this gag clause. We found that legal theory to be quite questionable, in our opinion. Things got even more bizarre after Roca decided to threaten with lawsuits the three former customers who agreed to provide evidence for PissedConsumer (even though it hadn't communicated with two of them for more than three years). There was a hearing on Wednesday where the court rejected PissedConsumer's request to stop Roca from threatening to sue those customers, though the reasoning is unclear right now (I assume it will come out soon). The court is still considering Roca's request for an injunction against PissedConsumer. In the meantime, however, Adam Steinbaugh has decided to dig into the Roca Labs story, and found something rather horrifying. A guy that Roca Labs was using to promote their stuff was actually a pediatrician who had lost his medical license because of his involvement with child porn. When Steinbaugh asked Roca about this, Roca suddenly pulled down any and all content on their website and on YouTube (there was a video of "Dr. Ross F." promoting Roca which had been here, but it has now been set to "private"). Steinbaugh summarizes how Roca used Dr. Ross F.: Roca Labs’ website and YouTube channel are saturated with images of attractive men and women wearing lab coats emblazoned with the caduceus – a symbol commonly associated with doctors and medical professionals — leaving the viewer with the impression that these are educated, licensed professionals. This is a product I can trust! Until yesterday, Roca Labs held out one such doctor — “Dr. Ross” — as its “Director of Medical Team”, hailing from “NJ, USA.” The company rarely identified him by his full name, instead severing his last name to a mere initial. In a “Letter to Your Doctor”, Dr. Ross described himself as “an independent medical consultant” describing the “Roca Labs Formula” to assure his “fellow doctor” as to its benefits. The letter was signed with his full name, followed by “MD” – medical doctor. But, he notes, Dr. Ross (whose full name Steinbaugh has redacted) no longer has a medical license: This allegation is corroborated by an Order of Revocation from the New Jersey State Board of Medical Examiners, which incorporates a plea agreement, and an Order for Non Practice of Medicine from the New York State Department of Health. The substance of the agreement was that the Dr. Ross — a pediatrician — surrendered his licenses to practice medicine in New Jersey and New York and was prohibited from seeking a “license to practice medicine in any jurisdiction at any time in the future.” The New Jersey order also includes prohibitions which “not only bar[] a licensee from rendering professional services, but also from providing an opinion as to professional practice or its application” and requires “affirmative action to stop advertisements by which his/her eligibility to practice is represented.” And yet, until earlier this week, "Dr. Ross" claimed to be the medical director at the company and claimed to "review each case for medical accuracy." In addition to the advertisements above, there’s also this now-deleted post, under the “ask the doctor” in which Dr. Ross F. recounts his role in the company: I have reviewed thousands of formal inquiries from the public that request to begin using the Roca Labs Formula for weight loss. [...] I review each case individually for medical accuracy. I have been the medical director at Roca Labs for the past year. I was in clinical medical practice for 10 years before moving into pharmaceutical management. I have been involved in the development and ongoing monitoring of the Roca Labs Formula. I work directly with the staff and customers to maintain the highest levels of medical accuracy and safety. And while it’s unclear whether the feature ever launched, a now-deleted page advertised that the company would soon offer, for thirty-five dollars, online consultations with Dr. Ross to provide “consultation and medical advice.” Another now-deleted post advertised that for a mere $380, the “online medical staff will be at your service with detailed answers and advice 24/7″ — an option known as “be my doctor”, although it’s unclear whether Dr. Ross was employed by Roca at the time. Of course, all of this disappeared right after Steinbaugh asked Roca about it. In response, Roca (in a long rambling email) said that the removal was not because of his request, but because Roca was "a serious company that acts according to its plans." Steinbaugh asked about those plans but didn't get an answer. As Steinbaugh notes, it's entirely possible that what Dr. Ross was doing for Roca was legal, but it certainly looks sketchy. To be sure, the orders of New Jersey and New York explicitly do not require Dr. Ross F. to “affirmatively advise patients or others of the revocation, suspension or surrender” except in response to an inquiry, nor is it entirely clear whether the order prohibits his association and work with Roca Labs. In fact, his precise relationship with the company is entirely unclear: was he merely there to give the appearance that someone whose name is preceded by “Dr.” endorses and gives legitimacy to the company’s “formula”? Or did he have a greater role in the company’s product? If so, did those acts — whatever they were – constitute the practice of medicine? And if there are other doctors — posts on the BBB site by Roca indicate that a doctor reviews qualification forms — what are their qualifications? Nevertheless, this is the conduct of a company which says that it is “completely transparent” and that “nothing is hidden“: intimidate critics with ominous (and likely baseless) threats of legal action and, when questions are raised, refuse to answer. Permalink | Comments | Email This Story

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In the past, we've covered attempts by big broadband to astroturf their way into the debate on net neutrality, and it just comes off as so obviously fake that it appears rather pitiful. The latest attempt may be even worse. While consumer advocacy groups have been able to do a great job getting people to speak up and raise their concerns about keeping the internet open, often appealing to younger folks who have always grown up with the internet, it appears that the big broadband lobbyists are now trying to fake their way into getting the same folks on their side -- and it comes off about as well as when your dad tries to act like a teenager, using new slang and trying to dress accordingly, but just making a total fool of himself. ProPublica has the details of a new effort by NCTA, the big broadband lobbying trade group run by former FCC chair Michael Powell (who is a big part of the reason we're in this mess today), called "Onward Internet." (ProPublica calls it a telco lobbying group, but NCTA is much more about cable interests). Onward Internet has been setting up public "suggestion boxes" for the internet, complete with people idiotically dressed in "futuristic" costumes (because, you know how much millenials love Jetsons-like futuristic costumes): But, of course, nowhere do they actually admit who's behind the campaign. Instead, they just use a bunch of internet "lingo" that they think makes themselves sound young and cool. The boxes, sometimes accompanied by young people in futuristic costumes, have been popping up on both coasts for weeks, soliciting messages of support - but their sponsor has been a mystery. The web site for the campaign, Onward Internet, does not say. Their domain registration is private. And the site includes no contact information, only an animated video heavy on millennial lingo: "The internet was made to move data...we got blogs, likes, selfies and memes, OMG, BRB and TTYL." No one from Onward Internet or the "production agency" (which already suggests astroturfing) behind it would admit to who was involved, but ProPublica tracked it down anyway, by asking the company that rented the space for one of those nutty installations, who came right out and admitted that it was NCTA. Amusingly, when confronted about it, NCTA tried to sidestep the question: NCTA officials did not respond to questions about Onward Internet and would not confirm they're behind it. "What led you to the conclusion that this is an NCTA effort...?" asked Brian Dietz, a vice president for the organization, before he stopped responding to emails. And, again, the deeper you dive into the Onward Internet effort, the more awkward and gag-inducing it becomes: "Sorry we can't come to the phone right now," the call-in greeting says. "We just got wind of the juiciest celebrity rumor and we're working to confirm it. So please leave your suggestion for the future of the internet at the beep and visit Onward Internet dot com next month to see what we've done with it." No joke. That's really the message you get when you call. Again, it sounds like big powerful cable execs trying to think what a teenager might actually say. The effort's Twitter feed is chock full of these awkward attempts at sounding young and cool. It apparently sprang up on September 3rd, a couple of weeks before the FCC's comment period closed... and almost no one noticed, despite it pretending to "represent the internet." After a silly "test" post, it claimed to be "the Internet's official Twitter account" (and the only responses were people calling it out for being astroturfing). And then, here's its attempt at being a regular Twitter account. I love that the awkward request for a retweet got... a single retweet. And it, too, got a response from someone asking "Who do you actually work for? Who signs your checks?" The one retweet came from a guy named Christopher Perry who (yes, you guessed it) runs an ad agency that notes he was the "art director" for Onward Internet. Here's a tip: when the only person retweeting your lame, wannabe, pleading attempts to get retweeted by young people is... the guy who created the campaign in the first place, you've failed. Big time. After a couple of days, the Twitter feed shifts to pushing that insanely lame video, calling it "the #MOST #AMAZING #VIDEO about the Internet #EVER!" because, don't you know, the kids these days, they loves them some hashtags. They keep posting the video with new attempts to sound cool each time. "Check out this sweet video." "People, this is important!" The whole thing is ridiculous and delusional. As mentioned by ProPublica, the video itself is... terrible. It just keeps repeating slang and trying to sound ironic. It repeatedly references lolcats (because that's what kids like, right?) and even has a discussion on how to pronounce "Gif." It's just trying way too hard. And the results seem to match. It doesn't appear like it got very much engagement at all, and from the looks of it, the NCTA spent a fair amount on it, despite Dietz's half-hearted attempt at denying its participation. Eventually, once the ProPublica story was published, he finally provided a statement, claiming that they kept NCTA's name off of it because they wanted "unbiased feedback." Uh huh. "We know that network neutrality is important to Internet users and we share the vision that the Internet remains an open and unfettered experience for all to enjoy," he said in his statement. "We've kept NCTA's brand off Onward, Internet because we want to collect unbiased feedback directly from individuals about what they want for the future of the Internet and how it can become even better than it is today. The cable industry is proud of our role as a leading Internet provider in the U.S. but we feel it's important to hear directly from consumers about how they envision the future so we can work hard on delivering it." By lying to them and trying to pretend to be cool and young and to actually get the internet, when it's so painfully obvious that they don't. Besides, no one believes that. We've all seen how these astroturfing efforts work, and the focus is on getting these people to sign up to later pretend that they support your vision of cable dominance over the internet.Permalink | Comments | Email This Story

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Steven Aftergood of FAS Secrecy News went searching for an answer to an almost-unanswerable conundrum. And he got the most nonanswer-like answer imaginable. As we all know, there are two kinds of leaks: the one the government approves of, utilizing anonymous officials, and everything else. Aftergood wanted to know more about these authorized leaks, in which classified information is handed over to journalists, etc. in response to queries, usually with several stipulations attached. It happens so often there's even a provision in the Intelligence Authorization Act, which gives the NSA and others the funds and permission to keep doing what they're doing. In the Intelligence Authorization Act for FY 2013 (sec. 504), Congress directed that “In the event of an authorized disclosure of national intelligence” to the media, the government official responsible for authorizing the disclosure shall notify Congress in a timely fashion whenever the intelligence disclosed is classified (or declassified for the purpose of the disclosure). The purpose of that requirement was to ensure that the congressional intelligence committees are made aware of authorized disclosures to the press “so that, among other things, these authorized disclosures may be distinguished from unauthorized ‘leaks’,” according to the Senate report on the FY2013 intelligence bill. There's a report out there that details all of the authorized disclosures of classified information to press members who are decidedly not cleared to receive classified documents. This authorized release of classified document generates it own oxymoron. The notion of an authorized disclosure of classified information is close to being a contradiction in terms. If something is classified, how can its disclosure be authorized (without declassification)? And if something is disclosed by an official who is authorized to do so, how can it still be classified? And yet, it seems that there is such a thing. Knowing that a.) this happens and b.) a report is generated when it occurs, Aftergood requested a copy of these authorized disclosure reports. The answer he received defies logic in only the way a secretive bureaucracy can. [pdf] “The document responsive to your request has been reviewed by this Agency as required by the FOIA and has been found to be currently and properly classified in accordance with Executive Order 13526,” according to an October 2 letter signed by retiring NSA FOIA chief Pamela N. Phillips. “The document is classified because its disclosure could reasonably be expected to cause exceptionally grave damage to the national security.” The stuff we already disclosed is too dangerous to disclose. And yet, the government -- when it serves its interests -- will "cause exceptionally grave damage to national security" by handing classified information over to press members willing to carry its narrative water. One of the biggest open secrets in Washington is that, despite officialdom’s intensive efforts to demonize whistleblowers like former NSA analyst Edward Snowden, the vast majority of disclosures of secret information are not “leaks” but “pleaks” — a term Columbia Law Professor David E. Pozen coined to describe something that is more like an official “plant” than a “leak.” George W. Bush and Dick Cheney were particularly adept at selectively disclosing secret intelligence findings that served their agenda – even while aggressively asserting the need to keep secret the information that would damage them. We saw evidence of this most recently when the government tried to head off The Intercept's publication of leaked terrorist watchlist documents by leaking its own version to the Associated Press shortly before the Intercept piece went live. It's ridiculous for the government to claim documents leaked from unauthorized sources are somehow still secret even though the public has access to them. For it to make the same claim for documents it selectively chose to "leak" is preposterous and highly hypocritical. Aftergood and FAS have appealed this decision, stating, “It is well established that information, including classified information, that has been publicly disclosed on an authorized basis loses its exemption from disclosure under FOIA." Whether or not this will have any effect on the NSA remains to be seen. But so far, the only proven method to obtaining documents from the highly-secretive agency seems to result in Russian exile. Permalink | Comments | Email This Story

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Our nation's top security guards are all retiring to go into the cybersecurity business. Former NSA chief Keith Alexander is asking (only) $1million/month for his cybersecurity consultations, which apparently include the use of patents he developed completely unrelated to his NSA work in his basement during his spare time. Now, former top DHS official Tom Ridge is getting into the cybersecurity business, albeit one nowhere near as glamorous as Alexander's rockstar-level consulting service. Instead of showing up occasionally to offer his expertise (and collect paychecks) on cyberattack preparedness, Ridge will be performing the most "everyman" of services: selling insurance. Ridge on Monday announced a new cyber insurance package that he said should make it easier for companies to safeguard their networks and their bottom lines. “What we have seen is the sophistication of these attacks continue to elevate,” Ridge said at a launch event in London, according to Bloomberg news service. “Who would have thought that JPMorgan, with its security budget, could be hacked into? Now a lot of people are thinking if it could happen to them, it could happen to us too.” The first Homeland Security secretary’s new company, Ridge Insurance Solutions Company, is teaming up with the insurance giant Lloyd’s of London to sell cyber insurance coverage. When selling insurance, the old adage "can one have too much insurance of course not better safe than sorry here is some anecdotal evidence supporting my profitable belief" is doubly true, thanks to government agencies (such as Ridge's former employer) pushing a very fearful and apocalyptic narrative. At any moment, US businesses will be hit by "cyber Pearl Harbor" and former government officials like Ridge and Alexander are perfectly placed to take advantage of their own agencies' previous cyberthreat marketing warnings. Ridge makes the claim that simply offering insurance will prevent attacks, which is an odd thing to say about a purely defensive product meant to mitigate post-attack financial damage. Ridge said the new insurance is designed to help prevent those types of attacks. In order to obtain insurance, companies will need to make sure their cyber defenses are up to snuff, which in and of itself should make businesses more secure, he predicted. "This is not just about insurance but helping and incentivizing companies to manage their cyber operations more effectively,” Ridge said in a statement. Ah. But mostly about insurance. Insurance policies of as much as $50 million each are available from today... The company expects to generate $40 million in premiums in the first 18 months. True, insurance isn't nearly as profitable if payouts are constantly being awarded. Hence the demands for up-to-snuffness. But it also helps if you've got a background in overselling the threat, which makes the product and its premiums seem miniscule in comparison to the potential damage. This would explain the press junket bearing headlines like "Ex-Homeland Chief Says Risk of Cyberattacks Elevated." So, did Ridge join the DHS with the express intent of developing a market for his post-retirement dip into the private sector waters? My tin foil hat isn't that snug, but I'm sure his years of priming the cyberthreat pump factored heavily in his post-retirement job selection. Here's a statement of Ridge's dating all the way back to 2003, as quoted in a United States Institute of Peace cyberterrorism report. [pdf] “Terrorists can sit at one computer connected to one network and can create worldwide havoc,” cautioned Tom Ridge, director of the Department of Homeland Security, in a representative observation in April 2003. “[They] don’t necessarily need a bomb or explosives to cripple a sector of the economy or shut down a power grid.” These warnings certainly had a powerful impact on the media, on the public, and on the administration. For instance, a survey of 725 cities conducted in 2003 by the National League of Cities found that cyberterrorism ranked alongside biological and chemical weapons at the top of a list of city officials’ fears. The Hill points out that some critics are upset the government isn't doing more to protect companies against cyberattacks. I'm guessing Tom Ridge (and Keith Alexander) are no longer members of that group.Permalink | Comments | Email This Story

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Last year, we wrote about a disturbing abuse of the orphan drug system in the US, which is designed to encourage the development of treatments for rare diseases, but which in practice can allow companies to increase prices hugely. Here's another example, reported by Adam Feuerstein in The Street, that is in some ways even worse. It concerns a company called Catalyst Pharmaceutical Partners, which has just reported what seems like good news for those suffering from Lambert-Eaton Myasthenic Syndrome (LEMS), a progressive, muscle-weakening disease. Catalyst has announced positive results from a final phase trial of a drug called "Firdapse." As The Street article reports, analysts believe that once approved by the US Food and Drug Administration, Firdapse could cost between $60,000 and $80,000 per year if it is designated an orphan drug, which brings with it seven years of marketing exclusivity. That might seem the going rate for new drugs, but there's a nasty twist in this tale, as Feuerstein notes: Firdapse is not a new treatment for LEMS. The active ingredient in Firdapse is a compound known as 3,4-Dap, which has been available in the U.S. for more than 20 years. Doctors treating the small numbers of LEMS patients in the U.S. can obtain inexpensive 3,4-Dap from compounding pharmacies. It's even given away for free to doctors and patients by a tiny New Jersey drug maker, Jacobus Pharmaceuticals. That means that Catalyst took no risks with Firdapse. Indeed, it didn't really do anything at all, as Feuerstein explains: The company did no development work, made no effort to improve the drug's efficacy, safety or convenience for patients. And yet despite that fact, it stands to profit handsomely: For the zero work done by Catalyst, LEMS patients and their insurance companies will be paying as much as $80,000 for the exact same drug they use now for a fraction of the cost, if not gratis. Derek Lowe, writing on Corante, puts it well: I can think of no possible reason, no public good that comes from taking a drug that was easily available and working exactly as it should and have someone suddenly be able to charge $80,000 a year for it. This is not a reward for innovation or risk-taking -- this is exploitation of a regulatory loophole, a blatant shakedown, or so it seems to me. What makes things worse, is that just a few weeks before, Lowe had described exactly this behavior from another company, Retrophin, which bought the marketing rights to a drug called Thiola. Here's what happened next: Retrophin hasn't done any new trials, and they haven't had to. They've just bought someone else's old drug that they believed could be sold for twenty times its price, and have put that plan right into action. No development costs, no risks whatsoever -- just slap a new sticker on it and put your hands over your ears. This is exactly the sort of thing that makes people go into fist-clenching rages about the drug industry, and with damn good reason. This one enrages me, and I do drug research for a living. He's probably not alone in being enraged, but this kind of abuse is so lucrative for the companies prepared to take this route that we're probably going to see more of it until this particular loophole is closed. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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I would imagine that if a teacher wanted to convince children that the internet -- which is not especially dangerous for kids -- actually is especially dangerous for kids, there must be a myriad of ways to go about it. One could, for instance, simply assign a Law & Order SVU marathon for homework. What the teacher probably shouldn't do is call a class assembly on the subject and then blast a bikini picture from one of the attending students' Facebook accounts to everyone attending. A 15-year-old says she was humiliated by a teacher who showed an enlarged picture of her in a bikini to more than 100 other students during a school assembly. Children at Eggbuckland Community College in Plymouth, Devon, were shown the photograph taken from her Facebook profile to illustrate the pitfalls of posting private images online. Unknown to the schoolgirl, who has not been named, staff had taken her swimwear photo off the internet. It was blown up and added to a portfolio of other pictures then shown during a packed school assembly. What's crazy is that this isn't the first time this exact sort of thing has occurred. We had an almost identical story in the States roughly a year ago. There is simply so much lunacy in this to unpack, it's difficult to know where to begin. Let's begin with the entire premise that a fifteen-year-old girl wearing a bikini is an appropriate target for slut-shaming. I wasn't aware that a fifteen-year-old girl was supposed to be so ashamed of her own body that she should not be pictured wearing what all kinds of fifteen-year-olds wear at public beaches all over the place. What the hell? Add to that the trauma she must have experienced having this photo sprung on her in an assembly of her peers and used in a way to suggest she should be ashamed. It seems like the chief lesson about online safety being taught is to be exceptionally careful of the teachers at their school. A useful conversation could have been had with the students about how to use Facebook's privacy features to keep certain images from being publicly viewed and so forth, but instead the entire focus is on one girl wearing a swimsuit. Anyone actually think that the discussion the kids were having coming out of that assembly was actually focused on their own safety? And the response on behalf of the school, while apologetic to the mother of the young girl, is hysterical. A Plymouth City Council spokesperson said on behalf of the school, whose motto is 'Learning, caring, achieving': 'We cannot comment on the incident itself. 'The advice given to children and parents is that it is very difficult to ensure any picture is completely private and it is important to positively manage their online identity and profile and think carefully before sharing personal content.' It sure didn't seem like a whole lot of thought went into sharing the young girl's personal content, so maybe it's time to review your own lessons?Permalink | Comments | Email This Story

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For as long as I've had the privilege to write for Techdirt, I've had a special interest in sports leagues and their methods for broadcasts, with a particular eye towards blackouts and internet streaming. My motto has always been: just let me watch the damned game! It's never made sense to me how the major pro sports leagues seem to pass on opportunities to expand streaming options, particularly given the trend towards cutting the cable cord that continues to this day. In conjuction with this is the fact that sports broadcasts remain one of the few things keeping cable television relevant and preventing subscription numbers from absolutely tumbling. The moment sports become easily accessible via the internet, with local blackouts removed and ad revenue driving the costs down, it's over for cable. That's what makes the new broadcast deal the NBA recently signed with ESPN and Turner Broadcasting somewhat exciting, as the league has insisted on expanding the streaming availability in certain areas, even while keeping the streaming operations with Turner. The landmark deal, which is for $2.6 billion annually, should mean expanded viewing options for fans. But first, the bad news. Turner currently runs NBA.com, NBA Mobile, NBA TV, and NBA League Pass, and will continue to do so. This runs counter to the recent trend of leagues clawing back digital operations that they'd originally outsourced. In the early 2000s most sports leagues decided they didn't have the expertise to deal with digital and mobile, so they let somebody else pay them to do it. But as this revenue stream has grown, so has the leagues' desire to bring digital back into the fold. This will not be the case in the NBA. Which is unfortunate for a number of reasons. First off, the NBA.TV product is pretty sub-par compared with what the other major leagues are doing in streaming. MLB.TV in particular has set the standard, with all kinds of options for different broadcasts, camera angles, and announcing calls. Even what the NFL does in putting many of their games on the websites of the broadcast partners for free is a decent platform. Turner, for its part, has never seemed up to the task. The other reason why it's important for leagues to take back ownership of their streaming product is because it severs one of the ties to a broadcast partner with an interest in driving most viewers to the television product. Once leagues expand their streaming product and begin monetizing the ad revenue that can come from it, they need television far less, and streaming will really open up. That can't happen under this deal. But that doesn't mean the NBA doesn't see the writing on the wall long-term. To understand the following part of the new contract, you have to also understand that the NBA insisted on expanded nationally televised games. The new deal means no less than roughly 14% of the games will be televised by either ESPN/ABC or TNT. It may not seem like a huge number, but this is a significant move, something like a 20% increase in games available nationwide. Couple that with the following and it should be easy to see what the NBA has planned for the next time it negotiates a broadcast contract. You'll be able to stream nationally televised games without needing cable: Currently, the NBA's only streaming option is NBA League Pass, which is a steaming pile of garbage. One of the biggest problems is that the 142 nationally televised games, 96 NBA TV games, and all playoff games aren't available, meaning you can't actually watch the most important games. The NBA fan still needs to have cable. But per today's announcement, the league has "established a framework" with ESPN to "negotiate the launch of a new over-the-top offering in which the league would receive equity interest." In this context, over-the-top means "internet and mobile streaming." According to the Wall Street Journal, this streaming service will be separate from ESPN's WatchESPN app, which is a walled garden you can access only if you already pay for cable. The details are far from finalized, but it looks like fans will soon be able to watch nationally televised games without having to pay for cable, a major consumer win. Bigger than most even realize, I suspect, because this is a move designed to expand the streaming product as a standalone from cable subscriptions, such that the next contract will have an even larger streaming option provision, if it includes the broadcast partners at all. If the NBA can hook fans on streaming for free, it can use that to reclaim the streaming product the next time around and build an ad-revenue base off of the viewership numbers. If you're wondering why Disney and TNT allowed for this at all, the answer is easy: they had to. As I said, sports broadcasts are driving an insane amount of the cable business being done today and none of the other major sports leagues have deals up for renewal any earlier than 2020. The NBA was a huge commodity. What's interesting is seeing the obvious positioning of streaming the NBA is presenting for their future.Permalink | Comments | Email This Story

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A lot of research goes towards medicines that prolong life in various ways. It's not too hard to agree on some of those efforts, such as trying to find a cure for Ebola or other horrible diseases. But arguably, the quality of life should be considered when drastic medical procedures are about to be performed on patients with terminal illnesses. Not too many people want to be kept alive with machines without regard to the amount of pain and suffering that may accompany such a state. Here are just a few links about knowing when death will arrive. An oncologist publicly states that he hopes to die at age 75. This doctor plans to stop taking any measures to prolong his life after 75, so no antibiotics if he gets sick, no surgeries for serious injuries, no more screenings for preventative medicine.... But maybe we'll see if he changes his mind at 74.9yo or if a grandchild is expected to be born when he's 75.5yo. [url] Brittany Maynard has chosen to end her battle with a malignant brain tumor on November 1st, 2014 in Oregon -- to take advantage of that state's Death with Dignity Act. Maynard is 29yo, and her story will help promote a campaign to expand death-with-dignity laws to more states. [url] Losing your sense of smell (after age 57 or so) seems to correlate with an increased chance of dying within the next 5 years. This conclusion was based on a study of a little over 3,000 people taking a 3-minute smell test to see if they could recognize common odors, and folks who were deemed "unable to smell" were much more likely to die compared to those who could smell normally or even had only a slight smell impairment. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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Back in May, the Court of Appeals for the Federal Circuit (CAFC), long famous for messing up patent law, decided to take a short break and mess up copyright law as well, by declaring APIs copyrightable (the case ended up before CAFC instead of the 9th Circuit because it originated as a patent case, even though all the patent issues were gone). The district court had ruled otherwise, and that judge, William Alsup, had actually gone into great detail to explain why copyright shouldn't apply to APIs. Alsup had learned to code Java to better understand the case, and you could basically tell from his ruling that he was quite worried that appeals court judges wouldn't take the time to truly understand the issues at play. He was right. Making APIs copyrightable is bad news for innovation in a variety of ways. But, of course, CAFC is not the final stop in the line (even if some patent trolls wish it were). As was fully expected, Google has now asked the Supreme Court to hear an appeal on the case. Google's petition is a good read highlighting the "disarray" in the various different circuits about whether or not copyright law applies to APIs. The law itself (Section 102(b)) is pretty explicit: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Many of us clearly think that APIs fit under this as a system or method of operation. But, others disagree. Some courts follow the statute’s plain meaning, holding that Section 102(b) precludes copyright protection for all systems or methods of operation, including those in computer programs. See, e.g., Lotus, 49 F.3d at 815. Like the Federal Circuit, however, other courts have rejected the statutory text and held that Section 102(b) is merely a reminder of the dichotomy between ideas (which are not copyrightable) and expressions of ideas (which generally are). See, e.g., Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1234 (3d Cir. 1986). In those courts’ view, a “method of operation” embodied in a computer program is copyrightable so long as its creator could have designed it in different ways. Having shown the circuit split to help entice the Supreme Court to hear the case, Google then explains why it's simply wrong to interpret the law to say that APIs are covered by copyright. The Federal Circuit’s error is confirmed by the extent to which it would eliminate a fundamental distinction between patent and copyright law—and thus allow copyright to be used as an end-run around the limits on patent protection, including this Court’s recent decisions on patent-eligibility. Basically, you may be able to patent a system and method (as many patents themselves note in their titles), but it shouldn't be copyrightable. While the Supreme Court has a history of being pretty bad on copyright law, it has been pretty good (especially lately) on patent law -- in particular smacking down CAFC -- and the Google filing plays up to that fact, arguing that this is just another case of CAFC interpreting the law incorrectly. The Federal Circuit’s error is all the more glaring because it is essentially the same error for which this Court has repeatedly reversed the Federal Circuit in patent cases. The court of appeals criticized the district court for confusing “the threshold question of what is copyrightable—which presents a low bar—and the scope of conduct that constitutes infringing activity.” App. 17. It then transformed Section 102(b)’s limits on copyright eligibility into just one of several factors to be considered as part of a fair-use defense.... The Federal Circuit had similarly held that the limits on patent eligibility are minimal and that other requirements of the Patent Act do the real work in limiting monopoly protections. See, e.g., Research Corp. Techs., Inc. v. Microsoft Corp., 627 F.3d 859, 869 (Fed. Cir. 2010) (referring to Section 101 of the Patent Act as a “coarse eligibility filter”). This Court has repeatedly corrected that misperception in recent years, stressing the importance of enforcing Section 101’s limits on patentable subject matter—including for software-related patents. See, e.g., Alice, 134 S. Ct. 2347; Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (2013); Mayo, 132 S. Ct. 1289; Bilski v. Kappos, 130 S. Ct. 3218 (2010). But the Federal Circuit would now eviscerate the analogous limitation on copyright eligibility for some of the same types of works. Hopefully the Supreme Court recognizes this, takes the case and... (most importantly) doesn't make things worse.Permalink | Comments | Email This Story

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"Last Week Tonight's" John Oliver is again taking an entertaining swing at a subject that has made its way into Techdirt's pages: asset seizure and forfeiture. Going beyond the "robbery at badgepoint" (Cory Doctorow's term) to civil asset forfeiture (in which the government files suit against property that is presumed guilty of criminal ties), Oliver is his usual entertaining self while still managing to highlight the obscene depths these programs -- started with the intent of breaking up criminal enterprises and returning assets to those defrauded, etc. -- have sunk, thanks to the perversion of incentives. The highlights are a law enforcement official sheepishly explaining (in a public hearing) that there is really no oversight or discretion involved in the spending of seized funds. (He flat out states that it's used to buy "toys" the department "needs.") This leads directly to a police department being called out by a citizen (in another public meeting) for purchasing booze and a margarita machine with seized funds. Also fun (but in a rather twisted way) is the names of suits brought by the US against "guilty" property, including United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls. You can find several others simply by running a search at Justia. (This also happens at state level, so additional searching uncovers gems like this one: South Dakota vs. Fifteen Impounded Cats.) Anything that brings more attention to this issue is welcome. Oliver's take allows for a rather painless digestion of the issue while still refusing to underplay how thoroughly corrupted the ideal has become, thanks mainly to policies that allow those seizing the property to directly benefit from the seizures. As to a solution, Oliver suggests two things: an overhaul of this system and rigorous oversight or (the easier route) changing TV procedurals to more accurately reflect law enforcement activities -- like the cuffing and frisking houses, furniture, etc. Permalink | Comments | Email This Story

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Former NSA head Keith Alexander -- the original Million Dollar (a month) Man and premier cybersecurity consultant to the banking industry -- is taking his years of expertise (and several mysteriously non-public patents) on the road, speaking at whatever venue will have him. He recently delivered remarks at MIRcon in Washington, explaining exactly how simple it is for Americans to avoid the sort of domestic surveillance they always assumed they'd never have to worry about (you know, because of the Constitution and its various amendments, etc.). And remember, this man is asking $1 million a month to rent his brain. "Our data's in there (NSA databases), my data's in there. If I talk to an Al Qaeda operative, the chances of my data being looked at is really good, so I try not to do that. If you don't want to you shouldn't either," he told MIRcon delegates. Easy for Alexander to say. He probably has a general idea who they are. But what about the rest of us? It's not like Al Qaeda operatives are particularly forthcoming about their day jobs. How are we supposed to stay off the NSA's radar? And what if it's not us, but a friend of a friend talking to… I don't know… students of Yemeni descent who currently reside in Alabama area? This advice is less than useless. Those who actively seek contact with terrorists likely know to stay clear of surveilled channels. Those who aren't seeking contact have their data (and sometimes communications) agnostically hoovered up by the US government's various surveillance and investigatory arms. And what about other threats, both acknowledged and unacknowledged? Lots of rumbling is being heard about new strains of domestic extremism and threats, many of which sound suspiciously like groups the government finds annoying rather than actually dangerous. Alexander's answer is worse than just being overly-simplistic. It's glib. It's the sort of flip answer no one who exited a national security agency mid-crisis should be handing out. While I understand that going much deeper into the subject matter would soon take it into classified areas, this is the sort of obtuse answer one expects from a clueless, low-level local politician, rather than from someone who spent more than a decade overseeing the NSA's operations. It's the same sort of condescension we see far too often from people in positions of power. Don't want trouble with the cops? Well, don't break laws and don't give us any lip. Except that being law-abiding doesn't keep you from having your car impounded or your house raided. Don't want extra attention from the NSA? Follow Keith Alexander's advice -- advice that's nullified if anyone a hop or two away on the communication chain has communicated with Al Qaeda operatives. Or if your communications are routed through overseas internet 'backbones.' Or any number of other variables. I guess one of the few things we have to look forward to is Keith Alexander turning some of our nation's banks into temporary homes for document-leaking insiders. Installing an NSA head as a security consultant will probably prompt a few suited revolutionaries to spring into action, finally putting those administrative privileges and USB drives to work for the public good. Permalink | Comments | Email This Story

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As we've reported, France's "three strikes and you're out" law, known officially as Hadopi, has been a joke from start to finish. For example, the law's first victim was convicted because his wife had downloaded some songs, while the law's first suspension was cancelled for technical reasons. Despite these setbacks, and a change of government, France is persisting with this benighted scheme, and Numerama brings us the latest installment of this uniquely French farce (original in French.) It concerns an Internet user whose husband used the P2P file-sharing program eMule to download several films. He was spotted doing so, his wife received the first warning under Hadopi, and he stopped downloading forthwith. Unfortunately, he left the eMule program on his wife's computer, and every time she started it up, it continued to share the films already downloaded. That fact was spotted again, and the owner of the PC in question was eventually taken to court. Despite her protestations that she was unaware of eMule continuing its filesharing activity, the court was unimpressed, she was found guilty and fined 800 euros (although the fine was suspended.) Leaving aside the rights and wrongs of this particular case, it does raise an interesting issue. It is generally accepted that ignorance of the law is no defense, but what about ignorance of the technology? If you don't understand what your computer is doing, are you really to blame when it does something illegal without any involvement from you? And if you are, does that mean that all the people whose computers get taken over as part of a botnet are responsible for the damage it causes? Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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When the first analysis came out of the early batch of public comments on net neutrality, we pointed out the rather noteworthy fact that there were very few independent anti-net neutrality comments. Following the second round, we're likely to see similar results, though there was some ballot-box stuffing (which we'll get to in a minute). Still, Vox recently published a piece entitled: Why the FCC will probably ignore the public on network neutrality. The crux of the argument is that the comment effort is not the equivalent of a democratic vote, and that's exactly right: In the interviews I conducted for my dissertation, FCC commissioners and a handful of staffers (e.g., civil servants, as opposed to political appointees) explained that the rulemaking process does not function like a popular democracy. In other words, you can't expect that the comment you submit opposing a particular regulation will function like a vote. Rulemaking is more akin to a court proceeding. Changes require systematic, reliable evidence, not emotional expressions. And with the exception of Democrat Commissioners Copps and Adelstein, the people I spoke with at the FCC considered citizen input during the media ownership proceeding as emotional and superficial content. One staffer explained why some comments in the record matter more than others, saying a lot of comments submitted by ordinary citizens are not "usually very deep or analytical or, you know, substantiated by evidence, documentary or otherwise. They're usually expressions of opinion." That means these kinds of comments are "not usually reviewed at a very high level, because they didn't need to be." Or as another staffer said, "I find the whole rulemaking context almost hilarious in many instances, because you know you're reading something, and you know it's not true. And you're guessing, you know, the person is hallucinating." Ordinary comments were, in other words, prone to error and lacked truthfulness, in the eyes of many of the Commission's staff. They also represented one person's opinion or experience, whereas according to staff, comments submitted by legal or economic experts collated information in a more systematic way, and from a much broader population of consumers. Indeed, this actually makes a lot of sense. The rulemaking process isn't supposed to be a democratic setup, nor could it work properly in that manner. And, yes, many of the comments being submitted are nonsensical and effectively useless. The staffers are exactly right to focus on the comments that are analytical and are supported by evidence and details (and an understanding of the law). And while some people get up in arms about this, let's just take the ballot-box stuffing by some anti-net neutrality folks to show how pointless thinking of this as a "vote" is. Soon after the whole "Internet Slowdown Day" effort to get people to contact the FCC and Congress in favor of real net neutrality rules, a somewhat nutty extremist group called "American Commitment," run by a guy named Phil Kerpen, declared "victory," saying that despite all those sites (including ours) taking part in the effort, their own "Stop Internet Regulation" petition got more signatures. Except, their actual petition was nutty misleading alarmist bullshit, pretending to be about stopping "the full federal takeover... of the internet." Of course the open internet rules have nothing to do with any sort of "federal takeover of the internet" at all. It's just about which rules certain parts of internet infrastructure will be regulated under to keep the internet free and open to competition (the kinds of things you'd think the supposedly "free market" American Commitment operation would appreciate. Even more telling, the only way that American Commitment actually got about 800,000 "signatures" on its petition was to flat out lie and buy. Beyond the misleading rhetoric above, it appears that American Commitment bought a bunch of email lists of other conspiracy-minded folks and then peppered them with claims like the following about what the government was trying to do in passing net neutrality rules: "Erase your internet freedoms, upend your right to privacy, censor the content you view on Internet, seize control of e-commerce, keep records of the sites you visit and when, track what you read and for how long and so much more!" Except, um, no. Nothing in any of the rules would enable any of that even remotely. Indeed, as Jason Koebler at Vice notes in that link above, despite Kerpin's triumphant claims of "beating" the Internet Slowdown people, the press almost entirely ignored him (even the "right wing" press), because everyone knows his effort was a joke. Kerpen's grassroots coalition of 808,363 petition signers came almost entirely through paid email advertisements sent out through popular conservative websites such as Town Hall, The Washington Times, Human Events, and Red State. Email blasts were sent to hundreds of thousands of people with subject lines that had nothing to do with net neutrality, such as "Only Days to Stop Obama's Takeover." Kerpen played on the far right's fear of government and dislike of Obama to get hundreds of thousands of people to sign a series of petitions that have no information about the issue at hand and has no links to places to learn more about the issue. A Senatorial press office told me it hasn't received the petitions, which Kerpen said he had "hand delivered" before admitting that they could have been misplaced. On top of that, Kerpen massively exaggerated his numbers, counting each "signature" as three "letters" since the petition was sent to every person's two Senators and then their House representative. Koebler presents further evidence of what a joke the campaign was, noting that a report on the "most influential tweet" in favor of Kerpen's petition was this one, which got all of... one retweet. Given all of that, it's quite likely that the FCC will treat those "signatures" with the amount of weight and respect they deserve: which is close to nothing at all. And, this isn't to single out one side in this debate. There are numerous comments that have been filed with the FCC (often in response to the John Oliver segment) which simply curse out Tom Wheeler. And those shouldn't be given much weight either. However, all that said, this doesn't mean that more general comments aren't helpful. What this whole process has shown is that the American public does care about the internet, and wants it to be kept as open and free as possible for innovation to occur on the internet. The public's interest in the topic does matter in making it clear that this is an issue that people care about and that they won't be happy if anyone mucks that up. From that, the FCC should recognize that people are watching what they do and are concerned about the eventual outcomes, even if the vast majority of them may not understand the nuances behind things like Title II, Section 706, "commercially reasonable" and paid prioritization. There are multiple issues at play here. Having 3.7 million comments filed with the FCC (the vast majority of them in favor of protecting openness on the internet) is an important statement about what the public really wants (an open internet). However, the FCC has a job to do in deciding (1) what the right solution is and (2) what's in its power and mandate to do (the problem with the past rule was it went outside of the FCC's powers under the statute). To actually get to that answer, the FCC is likely to rely mostly on its own experts, and use the very small number of comments that dug into the more detailed and nuanced analyses of the issues at play. And that's the way it should be. None of this means the FCC will eventually come to the right solution -- in fact, there's a good chance it will mess things up, because the FCC is pretty good at that sort of thing. But it's wrong to argue that if that happens, it's because the FCC "ignored" everyone. The real situation is more complex.Permalink | Comments | Email This Story

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As mentioned, on Wednesday I attended a tech exec panel held at Palo Alto High School (in the high school gym, which was a weird sort of setting for such a high powered gathering of folks -- complete with gym echoes, and school bells buzzing, at one point leading a bunch of students to stream out to lunch just as Google's Eric Schmidt started talking). You can see the video of the event here where the sound is actually much, much clearer than in the gym itself, where the buzzing old lights made it nearly impossible to hear half of the panelists). Nothing necessarily earth-shattering was said by anyone, but it did involve a series of high powered tech execs absolutely slamming the NSA and the intelligence community, and warning of the vast repercussions from that activity, up to and including potentially splintering or "breaking" the internet by causing people to so distrust the existing internet, that they set up separate networks on their own. The execs repeated the same basic points over and over again. They had been absolutely willing to work with law enforcement when and where appropriate based on actual court orders and review -- but that the government itself completely poisoned the well with its activities, including hacking into the transmission lines between overseas datacenters. Thus, as Eric Schmidt noted, if the NSA and other law enforcement folks are "upset" about Google and others suddenly ramping up their use of encryption and being less willing to cooperate with the government, they only have themselves to blame for completely obliterating any sense of trust. Microsoft's Brad Smith, towards the end, made quite an impassioned plea -- it sounded more like a politician's stump speech -- about the need for rebuilding trust in the internet. It's at about an hour and 3 minutes into the video. He points out that while people had expected Congress to pass the USA Freedom Act, the rise of ISIS and other claimed threats has some people scared, but, he notes: We need to look the world's dangers in the face. And we need to resolve that we will not allow the dangers of the world to freeze this country in its tracks. We need to recognize that antiquated laws will not keep the public safe. We need to recognize that laws that the rest of the world does not respect will ultimately undermine the fundamental ability of our own legal processes, law enforcement agencies and even the intelligence community itself. At the end of the day, we need to recognize... the one asset that the US has which is even stronger than our military might is our moral authority. And this decline in trust, has not only effected people's trust in American technology products. It has effected people's willingness to trust the leadership of the United States. If we are going to win the war on terror. If we are going to keep the public safe. If we are going to improve American competitiveness, we need Congress to stay on the path it's set. We need Congress to finish in December the job the President put before Congress in January. It was a good talk, and it basically was a chance for all these tech execs to express similar concerns and to do so loudly. It's perfectly reasonable to suggest that the tech industry was complacent on these issues in the past, that they were too trusting (often way too trusting) of the government, that they should have started from a position of distrust and should have encrypted everything possible from the get go. Frankly, those are very legitimate criticisms. But, it's pretty clear that these tech companies are now pissed off at the government and the fact that it undermined everything, including their own businesses around the globe -- and they're determined to win back the trust of the public, whether or not the government is willing to cooperate. I find that encouraging, though I'd still like to see pretty much all of the companies do even more on the encryption front. As I said, there wasn't anything earth shattering, but it's clear that these companies have all seen the impact from the government's overbroad surveillance efforts, and they're not just concerned about it from their direct bottom line, but what it means for the overall internet. Multiple execs talked about not just moral authority, as Smith mentioned, but the moral imperative to use the internet to create greater connectivity and raise the ability of people around the globe -- and how much more difficult the NSA had made things. I know that some cynical folks will claim this is all for show. But there is a real concern that comes across here about just how devastating the NSA's actions have been (and continue to be). Schmidt was absolutely right that if law enforcement and the intelligence community is upset about it, they only have themselves to blame.Permalink | Comments | Email This Story

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

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

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

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