posted 15 days ago on techdirt
As the march of progress of robotics and artificial intelligence continues on, it seems that questions of the effects of this progress will only increase in number and intensity. Some of these questions are very good. What effect will AI have on employment? What safeguards should be put in place to neuter AI and robotics and keep humankind the masters in this relationship? These are questions soon to break through the topsoil of science fiction and into the sunlight of reality and we should all be prepared with answers to them. Other questions are less useful and, honestly, far easier to answer. One that continues to pop up every now and again is whether machines and AI that manage some simulacrum of creativity should be afforded copyright rights. It's a question we've answered before, but which keeps being asked aloud with far too much sincerity. This isn't just an academic question. AI is already being used to generate works in music, journalism and gaming, and these works could in theory be deemed free of copyright because they are not created by a human author. This would mean they could be freely used and reused by anyone and that would be bad news for the companies selling them. Imagine you invest millions in a system that generates music for video games, only to find that music isn't protected by law and can be used without payment by anyone in the world. Unlike with earlier computer-generated works of art, machine learning software generates truly creative works without human input or intervention. AI is not just a tool. While humans program the algorithms, the decision making – the creative spark – comes almost entirely from the machine. Let's get the easy part out of the way: the culminating sentence in the quote above is not true. The creative spark is not the artistic output. Rather, the creative spark has always been known as the need to create in the first place. This isn't a trivial quibble, either, as it factors into the simple but important reasoning for why AI and machines should certainly not receive copyright rights on their output. That reasoning is the purpose of copyright law itself. Far too many see copyright as a reward system for those that create art rather than what it actually was meant to be: a boon to an artist to compensate for that artist to create more art for the benefit of the public as a whole. Artificial intelligence, however far progressed, desires only what it is programmed to desire. In whatever hierarchy of needs an AI might have, profit via copyright would factor either laughably low or not at all into its future actions. Future actions of the artist, conversely, are the only item on the agenda for copyright's purpose. If receiving a copyright wouldn't spur AI to create more art beneficial to the public, then copyright ought not to be granted. To be fair to the Phys.org link above, it ultimately reaches the same conclusion. The most sensible move seems to follow those countries that grant copyright to the person who made the AI's operation possible, with the UK's model looking like the most efficient. This will ensure companies keep investing in the technology, safe in the knowledge they will reap the benefits. What happens when we start seriously debating whether computers should be given the status and rights of people is a whole other story. Except for two things. First, seriously debating the rights of computers compared with people is exactly what the post is doing by giving oxygen to the question of whether computers ought to get one of those rights in copyright benefits. Second, the EU's method isn't without flaw, either. Again, we're talking about the purpose being the ultimate benefit to the public in the form of more artistic output, but the EU's way of doing things divorces artistic creation from copyright. Instead, it awards copyright to the creator of the creator, which might spur more output of more AI creators, but how diverse of an artistic output is the public going to receive from an army of AI? We might be able to have a legitimate argument here, but there is a far simpler solution. Machines don't get copyright, nor do their creators. Art made by enslaved AI is art to be enjoyed by all. Permalink | Comments | Email This Story

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posted 15 days ago on techdirt
For a while now we've noted that it's actually the youngest among us that are leading the cord cutting revolution. Viacom has watched channels like Nickelodeon experience a ratings free fall for several years now as streaming alternatives have emerged as a useful alternative to strictly-scheduled, commercial-bloated Saturday morning cartoons. Toddlers don't really care if they're watching the latest and greatest "True Detective" episode or not, and parents, like everybody else, are tired of paying for bloated cable bundles filled with channels they never watch. Like Viacom, Disney has been feeling the brunt of this evolution, especially since cable TV accounted for 30% of its revenue and 43% of profits last fiscal year. But, as evident by the ongoing subscriber exodus at Disney-owned ESPN, the company really hasn't really done a very good job adapting to the changing market. The same thing is occurring at Disney's kid-oriented networks like the Disney Channel, Disney Jr., and Disney XD, all of which are, well, not faring particularly well under this new streaming paradigm: "For the first six months of this year, the commercial-free Disney Channel's ratings among in its core 2-11 and 6-14 demographics fell 23% in prime time and 13% and 18%, respectively, during the full day, compared with the same period a year ago. Ratings are also down at the smaller Disney Jr. and Disney XD networks, which fall under Mr. Marsh's Disney Channel umbrella. Cable revenue at Disney is relatively flat, and operating income is down 6% in the first half of the current fiscal year. That has contributed to a freak out or two among Wall Street analysts, which have in recent months finally, truly woken up to a trend they spent years both ridiculing and denying. That's in large part thanks to the fact that 2016's 1.7% decline in traditional cable TV viewers was the biggest cord cutting acceleration on record. The second quarter is expected to be notably worse, with most analysts predicting a 1 million subscriber decline (or greater). And that fear on Wall Street has, in turn, forced traditionally myopic cable executives to finally realize that they need to stop trying to defend the traditional bloated cable TV cash cow -- and begin offering cheaper, more flexible streaming alternatives: "Disney Chief Executive Robert Iger has said that strengthening online accessibility for television programs is a priority and that the company is preparing to offer its channels, in part or whole, directly to consumers online rather than just through costly cable packages. Profits for Disney Channel and Freeform are driven in part by long-term contracts with cable companies, but the erosion in ratings is likely to ultimately hit the bottom line unless the networks can generate substantial new digital revenue." Of course, like the Millennials ahead of them, most of these kids will grow up (correctly) believing its bizarre and punitive to force people to buy oodles of often-horrible cable TV channels at outrageous prices. And contrary to some cable and broadcast executives who still think this is all just a temporary blip on a radar screen, this rise in competition and the resulting massive shift toward cheaper, more flexible viewing options isn't going anywhere. Permalink | Comments | Email This Story

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posted 15 days ago on techdirt
Like clockwork, governments eager to censor the internet inevitably shift their gaze toward tools like VPNs used to get around restrictions. We've documented rising efforts to ban the tools use in countries like Russia, where VPN providers are being forced out of business for refusing to aid internet censorship. Whether it's to protect VoIP revenue for state-run telecom monopolies, or to prevent users from tap-dancing around state-mandated filters or other restrictions, VPNs have become the bogeyman du jour for oppressive governments looking to crack down on pesky free speech and open communication. China's great firewall is a sterling example of draconian censorship, and since 2012 or so China has been trying to curtail both encryption and VPN use. Earlier this year China's Ministry of Industry and Information Technology declared that all VPN providers now needed prior government approval to operate, a move generally seen as the opening salvo of an outright ban. These new restrictions will last until July 2021, impose fines up to $2000 on companies offering unsanctioned VPNs (read: all of them), and feature government warnings sent to users consistently caught using the tools. But in some areas, the pretense has washed away and VPN usage has been simply banned entirely. And as of July, VPN services began disappearing from both the Android and iOS app stores, with popular VPN providers like Green informing their customers the government has forced them to shut down completely: "Dear respected Green customers, We have received notice from the higher authorities. We regret to inform you that Green will cease our service on July 1st, 2017. We apologize for any inconvenience caused. We will start processing our users’ refund request after service stopped (the amount will be calculated based on the remaining days in your plan). If you need a refund, please make sure to submit your refund request by August 31, 2017. We won’t be able to process any refund request submitted after that date. Since the workload of processing the requests, information verification and money transfer would be huge, we won’t be able to set an exact date for the refund. We plan to process the refund soon after August 31, please wait patiently. Originally, statements made by the Ministry of Industry and Information Technology seemed to suggest the country's VPN ban wouldn't be fully implemented until March 2018. But these recent reports indicate that the Chinese government has grown tired of the pretense and has expedited its VPN crackdown dramatically. Since around 1-3% of China's 731 million internet users use tools like VPNs to tap dance around internet filters, even with this crackdown this will be a long, difficult, expensive game of Whack-a-Mole for the Chinese government all the same. While VPNs are not a panacea for our endlessly eroded privacy rights, they remain an incredibly useful tool for those living under repressive regimes. Most legislative VPN bans are of the "death by a thousand cuts" variety, where lawmakers go out of their way to pretend they're not trying to kill VPNs, even if the end goal always remains the same: the elimination of any tool that might let citizens peek through the curtain of draconian efforts at information control. Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
It's frankly sort of ridiculous, but the state of trademark protectionism that exists today has rendered the trademarking of a person's own last name somewhat unwise. Given the low bar that has unfortunately been set in terms of judging real or potential customer confusion in the marketplace, simply using one's own name for a commercial brand rife with danger where trademarks are concerned. Something of an example of this is currently taking place between a small New York clothing designer named Thaddeus O'Neil and famed surf wear manufacturer O'Neill. The latter has been blocking a trademark application by O'Neil for over a year now. In May of 2016, O'Neil the person filed a trademark for the name of his company, Thaddeus O'Neil, as well as his T.O. logo, which looks like an upside down Venus symbol. O'Neill the company, filed a motion in the U.S. Patent and Trademark Office asking the court to block the trademark, claiming it was "likely to cause confusion." In June, the USPTO stated that the motion was not sufficient to grant the motion, however O'Neill the company appealed and the decision is now pending. The game of legal ping pong continues. Let's get this out of the way: the two brands have little in common other than both selling clothing -- very different kinds of clothing -- and having a variation of a common last name. The branding for each company is wildly different and poses no threat to even the most moronic and hurried among us. Those brands are nothing alike and they don't sell to similar marketplaces. Thaddeus O'Neil's branding includes his entire name. The lengths O'Neill is going to to block his trademark application seem rather heavy-handed given that, but it adds to the strangeness of it all that Thaddeus O'Neill can't name his brand after himself. And that strangeness birthed one of the best quotes I've ever been able to include in a Techdirt post. "I'm a designer, and this is my work," O'Neill said in an email to The Hollywood Reporter. "Why can't the clothing I create bear my own name? We have Alexander Wang and Vera Wang coexisting unproblematically in same space. Wang is like Smith in China. They get along just fine and so do their customers. O'Neil is the Wang of Ireland." O'Neil is the Wang of Ireland is something of a gem, but he's also plainly correct. Ownership over so common a last name at best should be wielded with care, if such a trademark ought to have been granted at all. Similar to how high the bars for infringement trademarks utilizing geographical areas are, so too should trademarks utilizing common last names be forced to reserve protectionism for when real confusion is likely or evident. Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
The federal government thought it had laid an easy claim to someone else's cash, but the DC Court of Appeals is telling the government it's not quite as easy as it makes it out to be. The court lets everyone know things aren't entirely normal with the first sentence of the opinion [PDF]: This is a civil-forfeiture case, which is why the plaintiff is the United States of America and the defendant is a pile of cash. From that starting point we arrive at two sets of claims. First, the government's: The government claims that the cash is subject to forfeiture because it is connected to the “exchange [of] a controlled substance,” i.e., drug trafficking. And here is the government's sole basis for this conclusion: This case traces its roots back to March 28, 2014, when an Amtrak passenger mistakenly removed another person’s backpack from a train at Washington’s Union Station. Later that day, he opened the backpack to find a shopping bag containing $17,900 in cash. Commendably, he turned the backpack over to Amtrak police. In addition to the money, Amtrak police officers found inside the bag a student notebook and other personal effects. One of the papers contained the name Peter Rodriguez, as did the train manifest. A police narcotics dog alerted to the backpack, suggesting the presence of drug residue. That's basically it. A dog said it smelled drugs. Or, rather, an officer said a dog said it smelled drugs. The only other thing the government has to offer is that it doesn't believe the appellants' story about the legality of the money. Using a contact number from the manifest, a detective with the Metropolitan Police Department called Peter Rodriguez, who gave a detailed description of the contents of the backpack—except for the money. Twice asked whether there was money in the backpack, Peter said no. Later, the detective called Peter to inform him that currency was found in the backpack, and that the bag—sans cash—could be recovered from Amtrak, though the money would remain with the MPD Asset Forfeiture Unit. Shortly thereafter, appellant Angela Rodriguez, Peter’s mother, contacted MPD, explaining, according to the government’s verified complaint, that the cash belonged to her and her domestic partner, appellant Joyce Copeland, who lives with her in New York City. The couple, she recounted, had left the money in a bag in Peter’s apartment, but neglected to tell him that it contained currency. When Peter later announced that he was coming to New York to visit his mother, she told him to bring the bag along. Unconvinced by Ms. Rodriguez’s story, the police formally seized the currency and turned it over to the DEA, which initiated administrative forfeiture proceedings. The government says the appellants' story is unbelievable -- that someone wouldn't just stash $18,000 in someone's backpack and not tell them about it. The court points out it really doesn't matter what the government believes. In this case, the couple has offered sworn testimony detailing how they amassed the money, why they transported it to North Carolina, and how it ended up in Peter’s hands. In fact, there is little in the record other than their declarations. Certainly, nothing in the record directly contradicts the pair’s sworn account—no evidence that they did not travel to North Carolina, for instance, nor evidence that the cash had another source. Given our responsibility to “view[] the evidence in the light most favorable” to the couple and to “accept . . . uncontroverted fact[s],” Johnson, 823 F.3d at 705, we have little trouble concluding that the couple has asserted ownership and offered “some evidence” of ownership sufficient to withstand summary judgment. It also points out why cash seizures in particular raise these issues, and why the government shouldn't be so quick to assume every story told by appellants is bullshit. [B]ecause the case concerns cash, it demonstrates how challenging it can be to document ownership of property seized by law enforcement. Indeed, the very qualities that make paper money useful for illicit activity—in particular, its untraceability—often make it difficult to prove that any cash is legitimate, no matter its source. This is especially true for those in our society who rely on cash to the exclusion of banking and other financial services. As Justice Thomas has recognized, it is “the poor and other groups least able to defend their interests in forfeiture proceedings” who bear the brunt of civil asset forfeiture. Leonard, slip op. at 4 (internal citation omitted). And it is these same groups that are “more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture.” [...] So especially when cash is at issue, requiring more than “some evidence” of ownership would be onerous, unfair, and unrealistic. The court also has nothing good to say about the government's singular insistence that the appellant's money story is made up, despite being unable to produce any evidence to the contrary. Taking the government at its word eliminates any remaining shreds of due process left in the forfeiture process. The government’s argument perfectly illustrates why credibility determinations and the weighing of evidence are left to juries rather than judges. Government counsel may well be able to convince judges that it is inconceivable someone would choose to keep sizeable cash savings, to travel with cash, or to pay for routine expenses using cash rather than a credit card, but a jury of laypeople with different and more diverse life experiences might view these very same choices with considerably less suspicion. We are thus especially reticent to circumvent the jury process and throw out sworn testimony because it is out of line with our own lived experiences. The appeals court reverses the lower court's decision. The government will have to do something it explicitly tries to avoid by using civil asset forfeiture rather than criminal asset forfeiture: taking a case to trial and actually having to provide more definitive evidence than "the dog said it smelled like drugs." Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
We've discussed ad nauseum how, as the Internet video revolution accelerates, the cable and broadcast industry's response has predominantly been to double down on bad ideas in the false belief that they can nurse a dying cash cow indefinitely. Netflix nibbling away at your subscriber totals? Continue to glibly impose bi-annual rate hikes. Amazon Prime Video eroding your customer base? How about we edit programs to be shorter so more ads can be shoveled into every viewing hour? By and large, the cable industry's response to the cord cutting threat has been to do more of the things that forced annoyed consumers to leave. And when you do see a cable or broadcaster attempting to be creative on this front, there's often a degree of lacking common sense. Case in point: AMC Networks last week fancied itself creative when it unveiled a new plan to let consumers skip advertisements on its programs -- if they're willing to pay an additional $5 per month: "Would you like to pay more for cable TV than you’re already paying? Then AMC has an offer for you: The cable programmer is going to start selling an add-on service that lets cable TV subscribers watch most AMC shows, without commercials, for an extra $5 a month. AMC, which is rolling out its new “AMC Premiere” option to Comcast pay TV subscribers, says the new service is aimed at “super-fans” of its programs like “The Walking Dead,” who have a pay TV subscription but are willing to pay more to watch live, ad-free TV. So, several problems here. One, the offer ignores the fact that many subscribers already skip ads using their DVRs, making this kind of unnecessary and insulting to the savvy consumer. AMC's also ignoring the lessons learned about needing to compete with piracy, something that doesn't stop being true just because you're offended by piracy's existence. And with often bi-annual price hikes already driving consumers away from cable at a record rate, you'd be pretty hard pressed to find any consumer that thinks it makes sense to pay a penny more for cable television at this juncture, something the company seems fleetingly aware of: "It’s not for everyone," said AMC president Charlie Collier. "But it’s a good choice for people who want it." Is it really? This is, once again, the cable and broadcast industry attempting to look innovative and competitive without having to put the time and money into actually being innovative or offering lower prices. AMC "solves" a heavier ad-load problem that consumers have already managed to avoid with their DVRs, hikes up the price of expensive cable TV service even further, then pats itself on the back under the pretense that this is delivering added value to "super fans." If the cable and broadcast industry really wanted to be innovative, it would work to respond to the rise in streaming competitors and actually compete on price and channel bundle flexibility. Until it does that, everything else is hollow lip service. Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
Sunday morning I made the mistake of checking Twitter first thing upon waking up. As if just a quick check of Twitter would ever be possible during this administration... It definitely wasn't this past weekend, because waiting for me in my Twitter stream was Trump's tweet of the meme he found on Reddit showing him physically beating the crap out of a personified CNN. But that's not what waylaid me. What gave me pause were all the people demanding it be reported to Twitter for violating its terms of service. The fact that so many people thought that was a good idea worries me, because the expectation that when bad speech happens someone will make it go away is not a healthy one. My concern inspired a tweet storm, which has now been turned into this post. I don't write any of this to defend the tweet: it was odious, unpresidential, and betrays an animus towards the press that is terrifying to see in any government official – and especially the Chief Executive of the United States of America. But inappropriate, disgraceful, and disturbing though it is, it was still just speech, and calls to suppress speech are always alarming regardless of who is asking for it to be suppressed or why. Some have tried to defend these calls by arguing that suppressing speech is ok when it is not the government doing the suppressing. But the reason official censorship is problematic is because it drives away the dissenting voices democracy depends on hearing. Which is not to say that all ideas are worth hearing or critical to self-government; the point is that protecting opposing voices in general is what allows the meritorious ones to be able to speak out against the powerful. There is no way to split the baby so that only some minority expression gets protected: either all of it must be, or none of it will be. If only some of it is, then the person who has the power to decide which will be protected and which will not has the power to decide badly. Consider how Trump himself would use that power. Given, as we see in his tweet, how much he wants to marginalize voices that speak against him, we need to make sure this protection remains as strong as possible, even if it means that he, too, gets the benefit of it. There simply is no way to punish one man's speech, no matter how troubling it may be, without opening the door to better speech similarly being suppressed. Naturally as a private platform Twitter may, of course, choose to delete this or any other Trump tweet (or any tweet or Twitter account at all) for any reason. We've argued before that private platforms have the right to police their services however they choose. But we have also seen how when speech is eliminated from a forum, the forum is often much poorer for it. Deciding to suppress speech is not something we should be too quick to encourage, or demand. Not even when the speech is provocative and threatening, because so much important, valid, and necessary speech can so easily be labeled that way. As Justice Holmes noted, "Every idea is an incitement." In other words, it's easy to justify suppressing all sorts of speech, including valid and important speech, if any viewpoint aggressively at odds with any other can be eliminated because of the challenge it presents. Courts have therefore found that speech, even speech promoting the use of force or lawlessness, may only be censored when "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Given that even a KKK rally was found not to meet this description, these requirements for likely imminence of harm are steep hurdles that Trump's tweet are unlikely to clear. The truth may well be, as many fear, that Trump would actually like people to beat up journalists. It may also be true that he has some bad actors among his followers who are eager to do so. But even if people do assault journalists, it won't be because of this tweet. It will be because Trump, as president, supports the idea. He'll support it whether or not this tweet is deleted. After all, it's not as though deleting the tweet will make him change his view. And it's that view that's the real problem to focus on here. Because Trump has far more powerful means at his disposal to act upon his antipathy towards the media than his Twitter account affords. In fact, better that he should tweet his drivel rather than act on this malevolence in a way that actually does do direct violence to our free press. Especially because, in an administration so lacking in transparency, his tweets at least help let us know that this animus lurks within. Armed with this knowledge we can now be better positioned to defend those critical interests his presidency so threatens. Painful though it is to see his awful tweets, ignorance on this point would in no way have been bliss. Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
The most intrusive of your tax dollars hard at work: US authorities intercepted and recorded millions of phone calls last year under a single wiretap order, authorized as part of a narcotics investigation. The wiretap order authorized an unknown government agency to carry out real-time intercepts of 3.29 million cell phone conversations over a two-month period at some point during 2016, after the order was applied for in late 2015. This detail, contained in the US Courts' latest wiretap report, shows how much the government can get with a single wiretap order. Using assertions of "training and expertise," US drug warriors intercepted millions of phone calls, ringing up a $335,000 third-party phone bill in the process. But hey, the Drug War can't be won without casting a wide dragnet. Drug conspiracies are vast and far-reaching, often leading law enforcement to bigger fish further down the line. Or so the affidavit assertions say… But the authorities noted that the surveillance effort led to no incriminating intercepts, and none of the handful of those arrested have been brought to trial or convicted. To recap: 1 wiretap warrant $335,000 spent 3.3 million communications intercepted 0 convictions The statutes governing wiretap warrants designate they should only be used when all other, less-intrusive investigative methods have failed. The fact that these 3.3 million communications failed to add up to a single conviction suggests other investigative methods weren't fully explored before a judge autographed this warrant request. To be fair to the judge, the requesting agency probably wasn't forthcoming about its previous investigative ventures. But that's enough being fair to judges: Marcy Wheeler notes courts approving wiretap orders are even more of a rubberstamp than the FISA court. The FISC report showed that that court denied in full 8 of 1485 individual US based applications, at a rate of .5%, along with partially denying or modifying a significant number of others. The Article III report showed that out of 3170 requests, state and federal courts denied just 2 requests. [...] That’s a denial rate of .06%. If there's good news to be gleaned from this report, it's that the number of wiretap orders obtained has dropped dramatically over the last year. A total of 3,168 wiretaps were reported as authorized in 2016, compared with 4,148 the previous year. Of those, 1,551 were authorized by federal judges, compared with 1,403 in 2015. A total of 1,617 wiretaps were authorized by state judges, compared with 2,745 in 2015. There's been a slight uptick in federal court approvals, but a dramatic downturn in state court approvals. Most of this drop can likely be linked to 0 being under the direction of a new District Attorney, who has stepped up to curb the wiretap abuses by his predecessor. For several years, the DEA -- which should be running its wiretap requests through federal courts -- was running its wiretap affidavits past an absentee DA and a very compliant (and efficient) state court judge. Nearly all of that surveillance was authorized by a single state court judge in Riverside County, who last year signed off on almost five times as many wiretaps as any other judge in the United States. The judge's orders allowed investigators — usually from the U.S. Drug Enforcement Administration — to intercept more than 2 million conversations involving 44,000 people, federal court records show. As USA Today's Brad Heath discovered, state court judge Helios Hernandez was a regular wiretap warrant printing press, which led to the DEA funneling a great deal of its requests through his courtroom. Officials approved another 607 wiretaps in 2015, according to the figures released by the district attorney’s office. Most were approved in the first half of the year, before [new DA Mike] Hestrin said he installed a “stricter” standard that required every new wiretap application to have a “strong investigatory nexus” to Riverside County. Taps have dwindled since then. So far this year [2016], Hestrin has approved only 14. In the first two months of last year, his office approved 126. As Heath's report notes, this single DA's office and single state court judge were once responsible for 20% of the nation's state court-approved wiretaps. This no longer is the case, and the DEA's recent legal troubles associated with these questionable wiretaps has probably pushed it towards seeking more federal judges' signatures last year -- something it should have been doing all along. Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
Web tracking ranges from innocuous to deeply serious, and it's more important than ever to take precautions to ensure your internet security. Disconnect blocks trackers and malware across your entire device, allowing you to browse up to 44% faster, using up to 39% less bandwidth, and greatly improve battery life. Their premium subscription is available for $49 in the Techdirt Deals Store. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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We've been covering just how silly coal boss Bob Murray's SLAPP lawsuit against John Oliver is, and things keep getting sillier. Late last week, Murray's lawyers dug themselves in even deeper, asking for a gag order on Oliver and HBO (first reported by Betsy Woodruff at the Daily Beast). Specifically, they filed for a temporary restraining order and preliminary injunction to gag Oliver. They even admit that it's a "gag order" on Oliver and HBO. This kind of prior restraint is not supposed to be allowed under the First Amendment, but Murray's lawyers already have shown some fairly wacky legal theories, so it doesn't seem likely that "what the law says" is going to stop them from asking for ridiculous things. The document specifically requests that the defendants in the case be barred from re-broadcasting Oliver's hilarious report (which already has 6.6 million views and counting) and also that he be stopped from "publicly discussing the substance of this litigation." Of course, Oliver himself has already said on his show that, on the advice of HBO's lawyers, he won't be discussing the case until it's over, so this request is even more bizarre. But it's also silly legally. The First Amendment doesn't allow for a gag order to prevent someone from discussing a case. That's blatant prior restraint, and in the immortal words of Walter Sobchak, "the Supreme Court has roundly rejected prior restraint." The motion, like the original lawsuit, is highly theatrical, but has little relation to the actual law. It's basically a litany of complaints about how people are mocking Bob Murray for suing Oliver. Plaintiffs are quickly learning firsthand about the phenomenon that Time and Fortune magazines have dubbed the "John Oliver Effect." When Plaintiffs filed their Complaint, they did not appreciate the extent of the destructive aftermath that Defendants" malicious and false broadcast would cause. Mr. Murray and his employees and family have been inundated with an onslaught of threats, harassment, and intimidation by people that are simply following Defendants' lead as they view and re-view the Defamatory Statements. Murray Energy's website has been overrun with messages of "Eat Shit, Bob." Employees who once enjoyed coming to work now spend their days receiving countless phone calls and e-mails telling them they are "a worthless piece of shit," and worse. Mr. Murray's family members have even received death threats. None of this would have occurred but for Defendants' broadcast of the Defamatory Statements. Worse yet, Defendants knew that fans of the show would react in this manner. Continued publication and public access to the Defamatory Statements will only enlist additional people to Defendants' perverse "call to action," with additional grave consequences. Moreover, the John Oliver Effect has already spilled over to directly affect this litigation: numerous media outlets are commenting on their views of this action in a biased fashion that often times provides viewers with access to the entire June 18 broadcast. Additionally, the broadcast's YouTube video has been viewed 1.9 million times more since the Complaint was filed. The pervasiveness of the Defamatory Statements is unfairly tilting public opinion in Defendants' favor so much so that third parties have specifically directed threats and harassment at Plaintiffs' counsel regarding the perceived merits of Plaintiffs' claims. Plaintiffs' ability to assemble a fair and impartial jury diminishes every day that the Defamatory Statements are available to prejudice the individuals that might be called upon to serve justice in this matter. Basically, this request for a gag order boils down to: "OMG, people are making fun of our lawsuit and the lawyers writing this, so please make them stop." Perhaps the reason people are making fun of you is because the lawsuit is a bad one, guys. And that's all protected free speech under this great American thing we have called the First Amendment of the Constitution. You guys are the lawyers -- you're supposed to know that stuff. The complaint goes on to list out some excerpts from some phone calls to Murray's companies that were clearly people responding to the Oliver piece and the lawsuit. I'm sure it's no fun at all to be on the receiving end of those calls -- but, again, that's not against the law. Hell, some of the phone calls don't sound particularly harassing: "Others demanded that Plaintiffs "stop with their bullshit lawsuits" or asked "Why are you suing John Oliver?" Who knew that merely asking why are you suing someone would be held up as evidence of harassment? Who knew that Bob Murray was such a snowflake? The report also highlights a bunch of emails all saying "eat shit Bob" in some form or another (a statement that comes directly from the Oliver broadcast): Of course, if this is really so bothersome, why doesn't Murry just set up a filter to route all emails with "eat shit" in them to trash? Seems like a pretty easy solution. There's more in the filing in which they try to tap dance around the First Amendment claims by saying that there's no harm in censoring speech and putting a gag order on Oliver/HBO. This goes against basically all historical precedent noting that prior restraint on speech is, by itself, a form of harm. But Murray's lawyers don't want to talk about that. They pull out a classic anti-First Amendment trope, that because there are a few, very narrowly tailored exceptions to the First Amendment, their own requested exception surely must be okay: Defendants doubtless will resist an injunction using words such as "First Amendment" and "free speech." But these rights do not give anyone the right to say anything, anywhere, to anyone. Indeed, our Nation's founding founders and The Supreme Court of the United States have repeatedly noted that false and defamatory statements deserve no Constitutional protection. Sure. The courts have noted that defamation isn't protected by the First Amendment, but this gag order request is not asking for a blocking of just defamatory statements (hell, they barely identify any potentially defamatory statements amidst all the hand waving). They're literally asking for a gag order on discussing the case itself. The case itself is not defamatory. You can't silence a defendant from talking about the fact that you stupidly sued him. That's not what the Supreme Court is saying. Indeed, the two citations that Murray's lawyers point to from the Supreme Court notably do not support injunctions against speech. They merely note that defamation is not protected speech. But plenty of other cases explicitly make it clear that injunctions on speech should not be granted because of prior restraint. In Near v. Minnesota, the court said that a law granting injunctions on defamation was unconstitutional. In Bantam Books v. Sullivan the court famously said that "[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Murray's lawyers do nothing to counter this fairly set-in-stone precedents. They just go with the "well, there are exceptions, therefore gag order." They also play up -- once again -- the fact that Murray has health problems, insisting that this weighs in favor of granting an injunction. Amazingly, they point to a case that said an injunction could be issued against a landlord for trying to bring in an exterminator, because it might impact a tenant's pulmonary fibrosis, as a reason to grant this injunction against speech. Really. And indeed, pulmonary fibrosis has been specifically recognized to be an ailment that can warrant injunctive relief, including under less aggravating circumstances than those found here. See 2 Perlman Drive, LLC v. Stevens 2017 N.Y. Slip. Op. 50173(U), (N.Y. Civ. Ct. Feb 9, 2017) (enjoining landlord from employment of chemical exterminators in apartment tenanted by sufferer from pulmonary fibrosis). Yes, that's Bob Murray's lawyers stating that people mocking Bob Murray is a more aggravating circumstance than someone getting sprayed with harmful chemicals. That takes some level of chutzpah on the part of his lawyers. They also pull out another old trope, insisting that all this mocking press coverage might influence a jury, so surely a gag order is appropriate. Except, of course, this isn't the UK where there are superinjunctions or whatnot. The press is allowed to talk about stuff, and they're even allowed to give their opinion on things. And if that opinion includes mocking the bad decisions of Bob Murray, that too is protected speech. Amusingly, among the complaints about those biased press reports, Murray's lawyers call out Ken "Popehat" White's opinions of the lawsuit in the Daily Beast (without naming Ken): The Daily Beast ran an article on June 22, 2017, titled "Republican Coal King Sues HBO over John Oliver's Show," in which it features a statement by an attorney describing this lawsuit as "frivolous and vexatious." Yes, and so? That's a protected opinion backed up with lots of experience. Either way, this request will now be viewed by a federal judge, rather than a local West Virginia court. Because, just as we (and basically everyone else) predicted, HBO has removed the case to federal court. Murray's lawyers may try to get the case sent back to the local court, but that's unlikely to work. When you have defendants in other states (and even some of the plaintiffs in other states) and a cause of action over $75k, then you have what's known as diversity, and the case should rightfully be kicked up to federal court. In fact, the Notice of Removal argues that there really isn't even any West Virginia parties in the lawsuit at all, since the only "real" plaintiffs are Bob Murray and Murray Energy -- both of which are from Ohio. Yes, the lawsuit lists a bunch of West Virginia subsidiaries of Murray Energy, but Oliver never mentioned any of them at all, so there's no legitimate claim any of them can make for defamation. Indeed, the filing argues they were just thrown into the case to pretend that it belonged in West Virginia local court. I get the feeling we've still got plenty of future filings to look forward to in this SLAPP suit (again, West Virginia, tragically, has no anti-SLAPP law). Wouldn't it be nice if we finally got a federal anti-SLAPP law to deal with these kinds of suits? Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
For years, AT&T worked tirelessly to erode its customers' legal rights, using mouse print in its terms of service preventing consumers from participating in lawsuits against the company. Instead, customers were forced into binding arbitration, where arbitrators employed by the companies under fire unsurprisingly rule in their employer's favor a huge percentage of the time. Initially, the lower courts derided this anti-consumer behavior for what it was, critics highlighting that however brutally-flawed the class action system can be, binding arbitration in many ways made things worse. But these lower court roadblocks quickly evaporated when the Supreme Court ruled in 2011 (Mobility v. Concepcion) that what AT&T was doing was perfectly OK. While lower courts saw this as an "unconscionable" abuse of consumer rights and the law, the Supreme Court bought into the ongoing myth that binding arbitration is a hyper-efficient, modern alternative to class actions. The Supreme Court reiterated its position in 2015, and now, thanks to AT&T, most companies employ similar language in their terms of service fine print. This year, CBS News launched an investigation into AT&T and DirecTV's business practices and found a huge number of customers that were being systematically over-charged by the company, facing significantly higher rates after they'd signed up for what they thought would be a fixed, advertised rate. In response, a number of Senators fired off a letter to AT&T, urging it to explain itself and noting that binding arbitration appears to have removed a layer of accountability at the company, allowing problems like this to only get worse:" Forced arbitration provisions in telecommunications contracts erode Americans' ability to seek justice in the courts by forcing them into a privatized system that is inherently biased in favor of providers and which offers virtually no way to challenge a biased outcome. Forced arbitration requires consumers to sign away their constitutional right to hold providers accountable in court just to access modern-day essentials like mobile phone, Internet, and pay-TV services. AT&T's response? To deny that they use forced arbitration at all, despite the last decade of debate on the subject and AT&T's obvious legal win. According to AT&T you see, it can't be "forced" arbitration, because consumers have the freedom not to subscribe to TV or broadband service: "At the outset, no AT&T customer is ever 'forced' to agree to arbitration," AT&T Executive VP Tim McKone wrote in a letter to US senators today. "Customers accept their contracts with AT&T freely and voluntarily; no one 'forces' them to obtain AT&T wireless service, DirecTV programming, or other products and services." Except FCC data indicates that two-thirds of households only have access to one ISP at "next-generation" (25 Mbps) broadband speeds, meaning if many people want to be connected, it has to be via AT&T. Even if you happened to have alternative broadband options, those companies would also employ binding arbitration thanks to AT&T's win. It's a lose-lose scenario for consumers, and one that's not getting resolved any time soon given the current dysfunction in Congress, and the downright hostility toward consumers at the current FCC. And yes, again, it's very true that the class action system is a broken mess that all-too-often results in lawyers getting far more than the people they're supposed to be representing. But in telecom, class actions do have a history of forcing change (remember when wireless providers used to extend your long-term contract every time you made a minor billing change?). And replacing that broken system with an even worse system that minimizes accountability, erodes consumer legal rights and reduces already dwindling incentive to behave certainly didn't do American consumers any favors. Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
Two of the recurrent themes here on Techdirt recently are China's ever-widening surveillance of its citizens, and the rise of increasingly powerful facial recognition systems. Those two areas are brought together in a fascinating article in the Wall Street Journal that explores China's plans to roll out facial recognition systems on a massive scale. That's made a lot easier by the pre-existing centralized image database of citizens, all of whom must have a government-issued photo ID by the age of 16, together with billions more photos found on social networks, to which the Chinese government presumably has ready access. As for the CCTV side of things, the article quotes industry research figures according to which China already has 176 million surveillance cameras in public and private hands, and is forecast to add another 450 million by 2020. If those figures are to be believed, that would mean around 600 million CCTV cameras by that date -- around one for every three people in China. According to the Wall Street Journal: Facial-recognition cameras are being used in China for routine activities such as gaining entrance to a workplace, withdrawing cash from an ATM and unlocking a smartphone. A KFC restaurant in Beijing is scanning customer faces, then making menu suggestions based on gender and age estimates. One popular park in the capital has deployed it to fight toilet-paper theft in restrooms, using face-scanning dispensers that limit each person to one 2-foot length of paper every nine minutes. Other existing uses include on a running track to check that people aren't taking shortcuts, and in churches, mosques and temples, where CCTV cameras are deployed in conjunction with facial recognition to keep tabs on exactly who is engaging in these activities, which are regarded with suspicion by the authorities. Future possibilities are also explored by the article. Inevitably, police use of facial recognition systems figures prominently here: Still to come: a police car with a roof-mounted camera able to scan in all directions at once and identify wanted lawbreakers. Researchers at the University of Electronic Science and Technology of China in Sichuan province have developed a working prototype. "We’ve tested it at up to 120 kilometers per hour," said Yin Guangqiang, head of the university's security-technology lab. If the prospect of being recognized by a police car hurtling past you at high speed isn't exciting enough, you can look forward to being spotted by a squadron of facial-recognition drones that a Chinese company is working on. The bad news is that this is still "a little ways into the future", but we can be pretty sure that once it is possible, China will be among the first to deploy it as part of its ever-more pervasive high-tech surveillance system, with facial recognition playing a central role. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
When game developers find their products available for download on torrent sites and the like, it's understandable if their reaction isn't exactly positive. Many gamemakers pour their hearts into developing their art and finding it available for free, fully cracked of any DRM that they might have included, can be understandably frustrating. It's typically that frustration that launches into DMCA takedowns, complaints about piracy harming the gaming business, and talk of site-blocking and legal threats. But not every game developer falls into that category. While it doesn't happen enough, some developers try to understand what piracy is and isn't, and where inroads with the gaming community can be made, even amongst those dastardly pirates. A recent example of this would be Jacob Janerka, who created the indie game Paradigm, only to find the game available on torrent sites across the internet. But, instead of being filled with anger and rage while running to the nearest anti-piracy outfit, Janerka decided to reach out to the pirates. Not to school or scold them, but to offer a few free keys. “Hey everyone, I’m Jacob the creator of Paradigm. I know some of you legitimately can’t afford the game and I’m glad you get to still play it :D,” Janerka’s comment on TPB reads. “If you like the game, please tell your friends and maybe even consider buying it later,” he added. Rather than playing whac-a-mole or, even worse, spending many calories and minutes complaining about the reality of video game piracy existing, Janerka decided to engage this community, give away a few free game keys, and include a request to spread the word about the game if those on the torrent site truly enjoy it. That's about as congenial as it gets, especially when we keep this within the frame of this group being one downloading Janerka's game for free when he's attempting to make a business out of his work product. In the aftermath of this, someone posted the exchange on Reddit, leading to a chorus of approval from the internet community, to further coverage of the story and his game by proxy, and to news coverage of Janerka. In those interviews, Janerka revealed that this isn't some marketing ploy that went well, but rather that he has personal experience with pirating games. “I did it because I understand that in some cases, some people legitimately cannot afford the game and would like to play it. So maybe HOPEFULLY for a lucky few, they got the official keys and got to play it and enjoy it. I know for sure that when I was a young kid, I was unable to buy all the games I wanted and played pirated games. And when I actually got that disposable income, I ended up buying sequels/merch/extra copies,” Janerka adds. The developer doesn’t think that piracy hurts him much, as many people who pirate his games don’t have the money to buy them anyway. In addition, having non-paying fans of the game is more valuable than having no fans at all. Janerka's approach is the polar opposite of most of the larger studios that tend to see game pirates as vermin fit for the judicial system. To see news of the game spread like this, simply because the developer decided to be awesome and human rather than heavy-handed or litigious, should be a signal to creators big and small how to handle having their games show up on torrent sites. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
This month's stupid patent, like many stupid patents before it, simply claims the idea of using a computer for basic calculations. U.S. Patent No. 6,817,863 (the '863 patent) is titled "Computer program, method, and system for monitoring nutrition content of consumables and for facilitating menu planning." It claims the process of using a computer to track nutrition information like calorie or vitamin intake. It is difficult to think of a more basic and trivial use for a computer. The '863 patent is owned by a patent troll called Dynamic Nutrition Information, LLC. Dynamic Nutrition filed a lawsuit this month in the Eastern District of Texas accusing Australian company Fatsecret of infringing the '863 patent. Dynamic Nutrition had filed four other lawsuits. Consistent with a pattern of nuisance litigation, each of those earlier suits settled very quickly. What "invention" does the '863 patent purport to cover? Claim 1 of the patent is reproduced in full below (with comments in brackets): A computer program comprising a combination of code segments stored in a computer-readable memory and executable by a processor to provide nutrition content information related to consumables, the computer program comprising: a code segment operable to receive and store an input related to consumption of consumables, and to associate the input with a calender [sic] date [i.e. program a computer to track daily food intake]; and a code segment operable to generate an interactive display screen, wherein the interactive display screen includes— [i.e. include some kind of user interface] one or more lists of consumables and related nutrition content information, and [i.e. list food options and nutrition information] a summary section of past consumption of consumables. [i.e. list past food intake] In other words, program a computer to help people keep track of meals and calorie or vitamin intake. The application for Dynamic Nutrition's patent was filed on June 11, 2001. By that time, computers had been around for decades and there was nothing remotely surprising or innovative about programming a computer to keep track of data—whether it be nutrition data or units shipped or accounts receivable or whatever. Nevertheless, the Patent Office takes an extremely rigid approach to whether or not a patent application is obvious. This means that companies often get patents on common sense ideas (like taking photos against white background or filming a yoga class). Even leaving aside the issue of obviousness, the claims of the '863 patent are invalid under the Supreme Court's Alice v. CLS Bank decision (which struck down patents that merely claim the use of conventional computers to implement an abstract idea). Indeed, the first company to be sued by Dynamic Nutrition, Under Armour, filed a motion to dismiss the case under Alice. Under Armour pointed out that the '863 patent itself repeatedly emphasizes that its methods can be implemented using any conventional computer or programming language. Given the strength of this argument, it is unsurprising that the litigation settled before Dynamic Nutrition even filed a response. Dynamic Nutrition's patent is not even the only patent that claims using a computer for routine meal planning. A patent troll called DietGoal sued dozens of companies with a meal planning patent. A court invalidated DietGoal's patent under Alice because it claimed nothing more than the "conventional and quotidian tasks" of selecting meals. The Federal Circuit affirmed that ruling. The logic of this decision applies straightforwardly to Dynamic Nutrition's patent claims. We recently launched our Saved By Alice project where we are highlighting cases where companies attacked by stupid software patents were able to use the Alice decision to defend themselves against weak patent suits. The Dynamic Nutrition litigation is yet another example of why the Alice ruling is important and how it can protect productive companies from patent trolls. Reposted from the EFF's Stupid Patent of the Month series. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
Former FBI Director James Comey stated on more than one occasion that he'd like to have an "adult conversation" about device encryption. He wasn't sincere. What he actually meant was he'd like to have all the "smart people" in the tech world solve his problems for him, either by capitulating to his requests for encryption backdoors or by somehow crafting the impossible: a secure backdoor. Comey is gone, but his legacy lives on. The FBI wants to keep the "going dark" narrative alive. Deputy Attorney General Rod Rosenstein has already asked Congress for $21 million in "going dark" money, supposedly to help the agency explore its options. The problem is, the options could be explored for a much lower price. Kevin Bankston offers up a few solutions -- or at least a few improved adult conversational gambits -- for the low price of $free over at Lawfare. The starting point is Comey's "adult conversation" talking point. Bankston points out you can't hold an adult conversation if you refuse to act like one. Recently in Slate I responded to Comey’s repeated calls for an “adult conversation” on this seemingly endless debate. I replied that an “adult conversation” means moving past any discussion of discouraging or undermining the deployment of unbreakable encryption, in light of the broad consensus outside of the FBI that such a move would be dangerously bad policy. Rather than continuing to argue about whether or how we might force encryption technology to adapt to law enforcement’s needs, our time would be better spent focusing on how we can help law enforcement adapt to the technology. This is a point many have tried to make, but Comey refused to listen. Let's stop talking about crafting magical backdoors and accept the fact it just isn't possible. Once this is accepted, everyone can move on. Plenty of options remain for law enforcement and, with the exception of the usual post-terrorist attack calls for backdoors, no one is really pushing backdoor legislation. Legislators are well-aware of the fact that weakening encryption causes far more problems than it solves and asks citizens to sacrifice their safety and security for the good of the nation a single federal law enforcement agency. Bankston moves the discussion forward by discussing three areas the FBI could explore. The first involves lawful device hacking, which uses exploits and/or external hardware/software to access the content of locked devices. This sounds more nefarious than it actually is (vulnerability disclosure concerns aside). Basically, this just means doing what the FBI did to open up the iPhone seized in the San Bernardino shooting case. The main problem Comey had with this approach is that it wouldn't scale. But that's kind of the point. [T]he objection that hacking will never give law enforcement as much access as would a backdoor into or a ban on user-controlled encryption misunderstands the problem we’re trying to solve. The societal goal here is not to ensure that law enforcement can access every piece of data it might ever seek, but that it can get enough information to do its job, and hacking is certainly a part of the solution. This route also involves legislation, both to define the limits of lawful hacking as well as to act as oversight for these activities. Obviously, both of these are things Congress doesn't do all that well: oversight and writing computer laws. So, there will be concerns that need to be addressed, but hacking is a far better solution than legislated backdoors or judicial precedent that does the same thing by allowing a 1789 law to govern access to smartphones and other locked devices. Another key area Bankston addresses is the tech curve itself. Law enforcement often laments it's losing the Tech War to the bad guys. It's not as though this needs to be a foregone conclusion. Criminal minds are rarely the brightest minds. Even though the same could be said for law enforcement minds, the good guys do have a distinct advantage: the ability to coordinate talent and expertise for the benefit of all agencies. That, and a mostly cooperative bunch of tech companies that still want to help the good guys beat the bad guys. Another key aspect of upping government investigators’ tech game is making sure that they all know exactly what data they can lawfully obtain from internet companies today, without any new technical mandates. That means we need companies to step up and educate law enforcement and everyone else about the data they have—all of it, and not just the data they typically offer as matter or course in response to legal process. It's not like there's only one path to data and communications stored on a suspect's phone. Almost everything is backed up somewhere else by service providers. Concerns about users' privacy will need to be addressed by everyone involved, starting with a revamping of the Third Party Doctrine. But tech companies will also need to be more honest with their customers, letting them know exactly what's being stored outside of their devices and what law enforcement needs to have (warrant, subpoena, etc.) before the company turns over information. [C]omprehensive transparency to law enforcement and the public about what data the companies are creating and storing is the only way that policymakers or the market will ever be able to enforce any real accountability over those practices, and I think (or at least hope) that the overall benefit to consumers’ privacy from that accountability will balance out the harmful effects of giving the government a full menu of data. The final aspect Bankston addresses is obtaining data and communications stored overseas. Much of this is academic now that jurisdiction limitations have been removed by the recent Rule 41 changes. Unfortunately, there's little positive to note here. Mutual assistance treaties take too long to be of much use (6-12 months for compliance) and there being little direct translation of civil liberties between participating countries makes this even more difficult. Unfortunately, as Bankston points out, American exceptionalism doesn't seem to be working out in our favor. It appears President Trump is trying to work out an exclusive deal with the UK to make this process easier. But "easier" just means more collateral damage to civil liberties and privacy on both sides of the pond. This may work in law enforcement's favor, but it's hardly the best solution to "going dark," seeing as it ignores 99% of the stakeholders (citizens) to give each government what it wants. The answers aren't easy and they will involve compromises not everyone will be happy with. But it's far better than taking the FBI's approach, which appears to be demanding concessions from every tech company it might have to deal with. The discussion does need to push forward, with or without the FBI's input. It can't stay hung up where it is now, due to Comey's stubborn refusal to ask for anything but the impossible. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
Because even some lawyers can't seem to understand the legalities of Section 230 of the CDA or third-party liability, the courts are frequently burdened with stupid defamation lawsuits that can't survive a motion to dismiss. DC lawyer Harry J. Jordan lobbed one of these lawsuits into court late last year on behalf of Dawn Bennett, who felt she was defamed by a blog run by Scott Pierson, an SEO specialist who apparently failed to make Bennett's less-than-flattering history with the SEC disappear. While there may have been a legitimate complaint against Pierson for some of the statements he made, Jordan and Bennett formed a legal suicide pact and decided to sue Google, which did nothing but provide hosting for the blog. The deadly duo pursued this theory in an attempt to hold Google responsible for something a user said: As Google was aware of plaintiffs’ complaints that Pierson’s blog was factually false and a malicious vendetta against them and meant to cause crippling financial damages, it is therefore equally responsible and liable for the damages plaintiffs’ have suffered. It doesn't matter whether Google was aware or not. Short of a court order, Google has no responsibility to kill off a blog simply because someone else doesn't like its contents. Bennett's lawyer appeared to be completely unfamiliar with Section 230 because it's not even addressed in the complaint. It does, however, get discussed in the court's dismissal of the case [PDF link], as quoted by Eric Goldman. To salvage their claim, Plaintiffs attempt to argue that a novel issue is presented in this case which requires the court to deny the Defendant’s Motion to Dismiss. Plaintiffs state “[b]ut what courts have not fully addressed is where a service provider, such as Google, adopts definitive prohibitions regarding the content of third party user material, and does not enforce them … [what is] the impact of such failure on Section 203(e) immunity.” Simply, “… does it create such an obligation for itself if it adopts guidelines of what it deems objectionable content and fails to follow through by enforcing such standards?” The answer is “no,” and thus Defendant’s Motion to Dismiss must still be granted. See Klayman, 753 F.3d at 1359–60 (discussing that the CDA bars claims arguing that service providers must be held to a heightened duty of care based on adoption of any statements allocating rights and responsibilities between interactive computer services and their users). “It would be impossible for service providers to screen each of their millions of postings for possible problems.” Zeran v. America Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997). Furthermore, holding Google liable for establishing standards and guidelines would ultimately create a powerful disincentive for service providers to establish any standards or ever decide to remove objectionable content, which the CDA was enacted to prevent. It's an old argument, but it doesn't make it any less ridiculous. The plaintiff tried to convince the court that Google taking any actions at all to moderate content it hosts makes its legally liable for anything found defamatory. The final sentence of this quote makes it clear any ruling finding moderation efforts by third parties somehow erases their Section 230 protections would only make things worse by forcing every platform provider to take an entirely hands-off approach to user-generated content. This is basic Section 230 stuff, as attorney Harry Jordan should know. But as we've seen before, even lawyers providing education classes for other lawyers don't seem to have a firm understanding of Section 230 protections, which is why this sort of thing happens far more often than it should. A person representing himself may not fully understand the intricacies of the CDA, but lawyers definitely should. Otherwise, this sort of embarrassment awaits them in court, and they'll have inverted the old saying by making it possible for someone to retain counsel, but still have a fool for a lawyer. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
For all the talk of "fake news" going around these days, you'd think that the federal government would avoid creating more of its own on purpose. And you'd think that the MPAA and RIAA would know better than to join in on such a project. However, the following email was sent to some folks at Stanford Law School asking the law school to join in this fake news project promoting intellectual property via a fake Twitter feud: Good Morning! My name is H------, and I am reaching out to you from the State Department’s Bureau of Economic Affairs. I gave you call a little earlier this morning, but I thought I would follow up with an email as well. Currently, I am working on a social media project with the Office of Intellectual Property Enforcement. This summer, we want to activate an audience of young professionals- the kind of folks who are interested in foreign policy, but who aren’t aware that intellectual property protection touches every part of their lives. I think the law school students at your institution may be the type of community that we would like to engage. Additionally, we know that your law school is ranked among the top schools in Intellectual Property law, and thus our campaign may not only be fun, but relevant for you all as well. So a little bit of a recap from the message that I left you this morning. The Bureau of Economic and Business Affairs wants to start a fake Twitter feud. For this feud, we would like to invite you and other similar academic institutions to participate and throw in your own ideas! The week after the 4th of July, when everyone gets back from vacation but will still feel patriotic and summery, we want to tweet an audacious statement like, “Bet you couldn’t see the Independence Day fireworks without bifocals; first American diplomat Ben Franklin invented them #bestIPmoment @StateDept” Our public diplomacy office is still settling on a hashtag and a specific moment that will be unique to the State Department, but then we invite you to respond with your own #MostAmericanIP, or #BestIPMoment. Perhaps it will an alumni defending intellectual property in the courts or an article that your institution has produced regarding this topic. Some characters from the IP community here in DC have agreed to participate with their own tweets: US Patent and Trademark Office, the Copyright Alliance, the Motion Picture Association of America, the Copyright Office, and the Recording Industry Association of America. We hope to diversify this crowd with academic institutions, sports affiliations, trade associations, and others! Please give me a call or email me with any questions, comments, or concerns. I look forward to hearing from you soon! Sincerely, H-------- Official UNCLASSIFIED So, let's break this down. This is literally the State Department, working with the IP Enforcement Coordinator (normally called the "IP Czar") to team up with the MPAA, RIAA and Copyright Alliance (a front group for the RIAA and MPAA), along with the Patent & Trademark Office and the Copyright Office to create a fake Twitter feud over who likes copyright and patents more. Everything about this is crazy. First, the State Dept. should not be creating fake news or fake Twitter feuds. Second, even if it were to do so, it seems to have picked one side of the debate, arguing that greater copyright and patent enforcement is obviously a good thing (how far we've come from the time when it was the State Department that fought back against SOPA and told the White House not to support it). Separate from that, why are the MPAA, the RIAA and the Copyright Alliance agreeing to team up with the US government to create fake stories? That seems... really, really wrong. I get that they are obsessed with always pushing a misleading and one-sided message on copyright law, but creating out and out propaganda with the US government? Also, even if the geniuses at IPEC -- an office that was set up in 2008 under another anti-piracy copyright law -- falsely believe it's their job to push Hollywood's message out to the world, how could they possibly have thought it was a bright idea to engage in outright propaganda using Twitter... and to try to enlist law school professors and students in these shenanigans? I've put out a request for comment from the State Department's Bureau of Economic Affairs, and will update this post if I hear back. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
The Microsoft Certified Solutions Expert (MCSE): Server Infrastructure Expert certification demonstrates you have the expertise to work professionally as a network engineer, computer support technician, information security specialist and more. The $39 Microsoft MCSE Server Admin Certification Training Bundle gives you two years of access to over 100 hours of content 24/7. This bundle includes complete training for Microsoft Windows Server 2012 R2 certification exams, 70-410, 70-411, 70-412, 70-413, and 70-414. You will use labs, games, activities, assessments and printable study guides to gauge your progress, and you can chat with other students via the social learning feature. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
As we recently covered, Minnesota law enforcement tried to snatch victory from the expiring body of a black driver shot by a St. Anthony police officer by immediately asking an uninvolved social media company to turn over information on Philando Castile's girlfriend. The reason for this? The "affiant" swore criminals often used social media services to discuss criminal activities. This was an attempt to mine for dirt that might be used to justify an unjustifiable shoot. One warrant was served to Facebook, along with an indefinite gag order. Facebook challenged the gag order. Ill-prepared for pushback and having no solid reason to demand the release of Facebook posts and private messages, the warrant was rescinded. Unfortunately, another company was far more compliant. Facebook opposed the gag order and, after weeks of discussion between the BCA and a lawyer at Facebook, the warrant was rescinded altogether. Sprint, however, complied with the warrant, and turned over Reynolds’ call records, voicemails, and cell tower information that revealed her location. Facebook, on one hand, has a policy of notifying users about law enforcement requests for their information. Sprint, apparently, does not. That's why the gag order became a point of contention and resulted in the warrant being withdrawn. Sprint did not challenge the gag order and three days' worth of phone records -- including location info and text messages -- were turned over to law enforcement whose primary interest was finding some reason for Officer Yanez to have shot a compliant Philando Castile. This highlights a major difference between internet service providers and telcos. Sprint may be in the cellphone business these days, but it's the offshoot of an 118-year-old phone company. The history of telcos' close relationship with law enforcement is long and unseemly. Cell service providers are more than willing to act as proxy Stingrays and provide near real-time location info to law enforcement. Both AT&T and Verizon voluntarily handed over more than the NSA was demanding, paving the way for a successful exploitation of Section 215 until its recent shutdown. AT&T was behind the inadvertently-disclosed "Hemisphere" program, which allowed federal law enforcement agencies to warrantlessly trawl its millions of phone records to search for almost any form of criminal activity. That Sprint would put up less of a fight than Facebook is disappointing, but it's far from surprising. Similarly unsurprising is law enforcement's kneejerk response to the killing of a citizen by a police officer: disparage the dead as quickly as possible using any means necessary. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
So we've discussed how there's growing controversy about the gaming of the FCC's public docket on net neutrality to give the illusion of support for what's an extremely unpopular plan to kill the rules. A bot has been stuffing the ballot box with bogus comments using dead or otherwise fraudulent people, and I've seen my name hijacked and used to support the killing of the rules as well. So far, there's every indication that the FCC has no intention to crack down on any of this, since this fraudulent behavior supports its awful plan to kill net neutrality protections. One analysts suggested that up to 40% of the roughly five-million comments submitted so far are coming from the aforementioned bot. After initially telling me they were "looking into" things, the FCC has ignored repeated requests for comment on why it's failing to police even the most rudimentary abuse of its own systems, like the example in my name above. And now, with the ballot box stuffed, it's easier than ever for industry-connected groups to pretend the FCC's plan has broad support among the public. For example, a "free market" group calling itself Consumer Action for a Strong Economy (CASE) this week conducted a "study" of the comments. It's findings? People apparently overwhelmingly don't want a healthy and open internet free from the meddling of historically anti-competitive telecom duopolies: "Free market group Consumer Action for a Strong Economy (CASE) says according to its analysis of the FCC's open internet docket, a majority (65%) favor repealing the Title II-based Open Internet order, as FCC chairman Ajit Pai has proposed to do...The group said it looked at the 4,990,000 filings as of June 20, and said it would do similar assessments in the future. Of those, it said, 3,237,916 support repealing the order, while 35% (1,752,084) oppose repeal. Of course, you can certainly trust a group previously on record as saying FCC boss Ajit Pai is "brilliant" and "courageous" for ignoring the will of the public and gutting consumer protections governing some of the least liked, and least-competitive companies in American industry. Looking at the group's methodology of the study (pdf), it notes that it came to its conclusion by looking specifically for "unique phrases," but fails to show any of the math for what these phrases are, or how they were used. The group doesn't even mention the major scandal involving the bot using dead or otherwise fake people to stuff the ballot box: "We identified form letters by sorting large batches of comments to find groupings of comments with similar language. Then we scored each form letter as "supporting repeal" and "opposing repeal." Within each form letter we identified unique phrases, then used these phrases to query all of the comments to find the number of comments containing the same language. This allowed (sic) to score 75% of all the comments in the docket as either "supporting" or "opposing" repeal." Of course that runs in dramatic contrast to previous studies that found, once you eliminated bullshit bots from the equation, that the vast majority of real comments support keeping the rules intact. The group's study also flies in the face of survey after survey that indicates net neutrality has broad, bipartisan support among consumers. Of course "studies" like this are precisely why the FCC refuses to even comment on why it's turning a blind eye to comment fraud. Even if nobody takes studies like this seriously (and it's pretty clear some news outlets do), the hope is clearly to generate enough doubt about the validity of the comments and commenting process to justify ignoring the will of the public when the FCC votes to finalize killing the rules later this year. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
It's been six years since Senator Ron Wyden first asked the Director of National Intelligence how many Americans' communications are being swept up "incidentally" in the NSA's Section 702 surveillance net. Six years later, he still doesn't have an answer. Section 702 is up for reauthorization at the end of the year and there's still no information coming from the ODNI [Office of the Director of National Intelligence]. A group of Congressional reps is hoping to pry this info loose before the reauth, but the DNI's been able to hold Wyden off for six years, so… A U.S. congressional committee on Friday asked the Trump administration to disclose an estimate of the number of Americans whose digital communications are incidentally collected under foreign surveillance programs, according to a letter seen by Reuters. Such an estimate is "crucial as we contemplate reauthorization," of parts of the Foreign Intelligence Surveillance Act that are due to expire at the end of the year, House Judiciary Committee Chairman Bob Goodlatte, a Republican, and John Conyers, the panel's top Democrat, wrote in a letter addressed to Director of National Intelligence Dan Coats. The new wrinkle here is going above the head of the DNI and straight to the President. Not that this is any more likely to force a number out of the NSA. The president is all for a clean reauthorization and troubling numbers about "incidental" domestic surveillance will only make that more difficult. In fact, the DNI's top lawyer just finished telling a Senate committee it won't be turning in its long-overdue homework. The intelligence community will not produce that number, acting General Counsel for the Director of National Intelligence Bradley Brooker told the Senate Judiciary Committee on Tuesday. Producing the number would take too much time and effort and potentially violate Americans’ privacy in the process, Brooker said, echoing comments DNI Dan Coats made earlier this month. The resulting number might also not be very accurate, he said. So, that's where this stands now. The DNI promised to pull something together as the previous president headed out the door, but appears to have abandoned its minimal stab at minimal transparency now that the guy up top isn't nearly as interested in curbing the NSA's powers. Speaking of which, the ODNI is asking to have the "about" collection put back into play, just weeks after the NSA "voluntarily" gave it up. The panel of intelligence leaders also urged Judiciary Committee members not to restrict so-called “about collection,” in which intelligence agencies collect information from people who are not intelligence targets but mention those targets in emails and text messages. This would appear to be aimed at Senator Dianne Feinstein's call to codify the end of the "about" collection, which would prevent the NSA from re-implementing it down the road. We haven't even gotten down the road and IC leaders are already trying to rollback the NSA's rollback. We'll see if this latest move by Congress has any effect. Six years of Ron Wyden (and others) hammering this same question hasn't moved us much closer to seeing how much purely domestic surveillance the NSA engages in. In recent dodges by the new DNI, Dan Coats (in response to Wyden's questions) suggests the NSA is doing far more domestic dabbling than has been disclosed by everyone but the DNI (leaked documents, FOIA'ed court opinions, etc.) These are answers the public needs to have, but they're especially essential to those who will be handling the Section 702 reauthorization. Failure to produce these numbers or answer questions directly should weigh against the sort of reauth the DNI is seeking. Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
This week, we were concerned to see the Canadian Supreme Court make a hugely problematic ruling that Google must block sites worldwide. Bergman won most insightful comment of the week by summing up one example of why this is a bad way to approach the internet: It occurs to me That Google could de-list the Canadian government's own websites, including those of the courts, because Canada's laws that protect the rights of LGBT people violate the laws of places like Iran. After all, if compliance with laws is global without regard for jurisdiction or sovereignty... Meanwhile, we were a little more pleased to see a court order a copyright troll to pay all the legal fees of the people he spuriously sued, but as hij pointed out in his second-place winning comment, it'd be nicer to see this happen to the really dangerous, deep-pocketed copyright abusers: Bring the hammer down on the little guy It would be nice if judges did this to the large corps that do this to individuals. Seems a bit one sided if the big guys get to screw over the little guys with impunity. Meanwhile Zillow gets to screw over students for transforming their photos into bombastic sarcasm posts. For editor's choice on the insightful side, we've got a pair of comments responding to the general idea that cops deserve some leeway because they do a dangerous job. First, it's David with some context: Like a garbage collector or other person employed in the vicinity of heavy operating equipment. Turns out that the risk of dying on the job for garbage collectors is higher than for policemen but they still don't get extra privileges like being allowed to shoot truck drivers when feeling endangered. Next, it's an anonymous commenter responding to the idea that it's really the public that needs to learn to shape up and behave better around cops: Wrong, it is up to the trained professional to learn how to approach people, who may behave in different fashions depending on their mental health, intoxication level, etc. If someone panic at the sound of the word gun, and empties a magazine into someone, either their training is insufficient, slanted towards towards shoot first, or they are in the wrong job Over on the funny side, our first place winner comes in response to a comment requesting that we refrain from using profanity in headlines (not an unreasonable request, but one I have mixed feelings about). Roger Strong, however, had an addendum: Also don't mention Comcast in your headlines as that inevitably leads to NSFW language. In second place, we've got another response to the Canadian Supreme Court decision about Google, from stderric in the form of a friendly dig at Canada: The easiest letter in the world to write, and it would make the whole problem go away instantly: __________ Dear Canada: You're Canada. We're Google. Who can the world afford to live without? Humbly Yours, Google __________ For editor's choice on the funny side, we've got a pair of responses to the TSA's new plot of checking what passengers are reading. First, suggestor proposed a small trolling operation: Titles, such as "Becoming a TSA agent and dealing with the loss of I.Q. thereafter" or "The TSA catalog of resellable confiscated goods" would be neat for book covers...! On the other hand, Tzzeeeman saw it as a potential new audience: Excellent. Now I'll have someone to read my bad fanfiction. That's all for this week, folks! Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Five Years Ago This week in 2012, we saw some obstinate reactions to the ACTA protests, with an EU Parliamentarian saying dissent was "a soft form of terrorism", and the EU Commissioner saying he would simply ignore rejection of ACTA by the EU Parliament — while Australia's parliamentary committee on the subject was recommending rejection. As for the TPP in the US, we were annoyed but unsurprised to learn that the MPAA had full online access to the text of the agreement even as Congress continued to struggle to get even the slightest glimpse. Rep. Darrell Issa made the reasonable request that he be allowed to observe the next round of TPP negotiations, but he was (again unsurprisingly) rejected. Ten Years Ago This week in 2007, some people were beginning to ask whether the RIAA's piracy investigation tactics were even legal. Of course, Attorney General Albert Gonzales was far more interested in throwing people in jail for attempted piracy. Rolling Stone rolled its eyes and wrote an obituary for the recording industry, while the MPAA was off doing its own thing — suing sites for just linking to infringing content. Meanwhile, statistics about reality kept being disobedient to the world of anti-violent-videogame crusaders, with their protests driving up the hype around Manhunt 2, and violent crime rates continuing to fall while violent video games got more popular. Fifteen Years Ago This week in 2002, the new era of the web was slowly being born as the world noticed that broadband internet access unlocked entirely new usage patterns and behaviors for internet users — even though broadband was still really struggling to catch on in the US. Meanwhile, a congressman introduced a bill to legitimize all sorts of nasty anti-piracy vigilante tactics including the increasingly popular music industry scheme of trying to swamp file trading networks with fake files. Newspaper executives were looking to the future of the mobile web, while newspaper columnists were stuck in the past and moaning about those newfangled "blogs". And the RIAA succeeded in scaring workplaces into cracking down on employees sharing MP3s. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Yeah, yeah, before you rush to the comments and start justifying this by saying that Europe doesn't respect free expression in the same way the US does, let's just say while that may be true, this is still bad: Germany has moved forward with a plan to fine internet companies which don't quickly censor the internet. Censor what, though? Three loosely defined (and easily abused) categories: hate speech, criminal material and fake news. Social media companies face fines of up to €50m (£43m) if they persistently fail to remove illegal content from their sites under a new law passed in Germany The German parliament on Friday approved the bill aimed at cracking down on hate speech, criminal material and fake news on social networks – but critics warn it could have drastic consequences for free speech online. And, yes, again Europe has very different standards for free expression -- and Germany, in particular, has a long history of trying to suppress what it considers "bad" speech regarding some of its historical actions (Godwin'd!). Even so, this is dangerous and will be abused to stifle all sorts of important expression: The German justice minister, Heiko Maas, who was the driving force behind the bill, said: “Freedom of speech ends where the criminal law begins.” Maas said official figures showed the number of hate crimes in Germany increased by more than 300% in the last two years. Even accepting that free speech ends where criminal law begins, that doesn't justify fining the platforms. If people are posting "illegal" content, go after them for breaking the law. Don't go after the tools they use. By putting massive liability risks on platforms, those platforms will almost certainly overcompensate and over censor to avoid any risk of liability. That means a tremendous amount of what should be protected speech gets silence, just because these companies don't want to get fined. Even worse, the big platforms can maybe hire people to handle this. The littler platforms? They basically can't risk operating in Germany any more. Berlin is a hotbed of startups, but this is going to seriously harm many of them. The new law also has an even weirder provision, putting liability not just on the platforms, but on individual employees at online platforms who are designated the Chief Censors for that platform: Aside from the hefty fine for companies, the law also provides for fines of up to €5m for the person each company designates to deal with the complaints procedure if it doesn’t meet requirements. Who the hell is going to want that job? Make one mistake in failing to censor something, and you may be bankrupted. Just a little while ago we wrote about how difficult it can be for a platform to be calling the shots on what's worth censoring and what's not. Since there's so much content, the analysis of each piece of content needs to be standardized in a manner that tends to be absurd. It appears that those supporting this law don't have any interest in the realities involved, but think that by passing this legislation, they've waved a magic wand. Yes, putting liability onto platforms (and employees) will likely lead to greater suppression of speech people dislike -- but also of important and necessary speech. There appears to have been no effort to consider how dangerous that might turn out to be. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
When a lawyer sends a demand to another lawyer, the one doing the sending had better be on top of their law game. Otherwise, things will go badly. And when they go badly, they end up being discussed here. Conservative blogger (and lawyer) Scott Johnson got hit with a subpoena ordering him to preserve evidence possibly relevant to a legal challenge of Trump's travel ban from a courtroom halfway across the country. The advance subpoena informed Johnson of his pending obligation to preserve (with production expected later) certain notes pertaining to certain blog posts pertaining to his attendance of a reception for conservative writers held by Trump at the White House. The problem with the proposed subpoena and evidentiary preservation demands is they weren't actually, you know, legal. On June 10, I was served with a letter and draft subpoena from Tana Lin of the Keller Rohrback law firm’s Seattle office alerting me to my “document preservation obligations with respect to documents that are relevant or potentially relevant to this litigation.” Lin represents plaintiffs in Doe v.Trump, venued before Judge James Robart in the federal district court for the Western District of Washington. Though the lawsuit had been stayed, pending a recently issued ruling from the Ninth Circuit in the parallel Hawaii v. Trump “travel ban” case, Judge Robart authorized Lin to notify me of the lawsuit and seek my confirmation by June 15 that I would preserve potentially relevant documents until such time as she sends me a formal subpoena or the lawsuit is formally resolved. The "potentially relevant documents" included any notes Johnson might have taken during this meeting and specifically referenced the same notebook Johnson referenced in his detailed post about the reception. To wit: Although there was some degree of difficulty writing while standing, I took notes on the questions and Trump’s answers in my new notebook from CVS. Johnson -- who knows a few things about federal procedures -- immediately fired a letter back to Tana Lin, telling her she had the wrong statute. The final sentence of your letter in bold type cites Rule 34(a) of the Federal Rules of Civil Procedure. Rule 34(a) applies to a “party” to litigation. I am not a party. I am a “nonparty.” As such, Rule 34(c) would apply to me. Unless I am missing something, I find your instruction to me that I am “required” to do anything under Rule 34(a) highly misleading. He also informed her the correct statute wasn't going to be of much help either. Rule 34(c) cross references Rule 45. As a distant nonparty to the litigation, Rule 45 gives me certain rights once you serve me with a valid subpoena. Yet the draft subpoena you have served on me is a nullity. [...] Once I have objected to the subpoena under Rule 45, the rule would require you to seek an order enforcing compliance in the United States District Court for the District of Minnesota. I understand that Minnesota Attorney General Lori Swanson has joined you in the litigation. Perhaps you can assign enforcement of the subpoena to Ms. Swanson. I’m sure Minnesota taxpayers would enjoy the opportunity to see up close and personal how she is expending the resources of her office to hound a journalist for his utterly superfluous notes in the service of your litigation. Lin called the reference to the wrong statute a "typo," but it really makes no difference which statute was cited: Johnson is a private individual who just happened to be invited to a reception thrown by the president. It's not like he had some preexisting obligation to retain the notebook for X number of years just in case someone might need it for future litigation. As he points out, he's not a government agency. He took notes for a planned blog post. He had no "duty" to preserve them then and there's not much in the proposed subpoena showing any legal reason why he can't throw them out now. What's concerning about this -- no matter which side of the travel ban you come down on -- is that litigants fighting an executive order somehow feel private non-parties should be compelled to turn over their private notes on the off-chance there might be something damning hidden in them. Johnson calls it "harassment" and he's not wrong. This is no different than anyone in any situation using the weight of the government to compel journalists to produce information about sources and contacts when they're not party to ongoing lawsuits or expected to serve as witnesses. Beneath it all is a lawyer who slid a subpoena request past an inattentive judge, citing statutes that don't say what she thinks they say. That's a lot of power to be wielding badly, considering it's mostly bad things that wait for those who reject a judge's advances. Permalink | Comments | Email This Story

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