posted 14 days ago on techdirt
TorrentFreak has the exceptionally troubling story of a federal district court in Oregon issuing an incredibly broad and questionable order, effectively wiping a bunch of websites out, without ever letting the websites in question know that they were being "tried" in court. The request came from ABS-CBN, a giant Filipino entertainment company arguing infringement, of course. But the argument against these sites is somewhat questionable already, made worse by the demand that the whole thing be done under seal (without alerting the site operators). Then Judge Anna Brown granted the temporary restraining order, basically deleting these sites from the internet, without even a sniff of an adversarial hearing. You may recall that the entertainment industry insisted that SOPA was needed for exactly these cases -- overseas sites they claimed were "rogue" sites dealing in infringement. They claimed there was no way to take them down. And, even SOPA had more limitations than what Judge Brown allowed here. If you have rogue judges like Brown issuing orders like this, who needs SOPA. It's already in place in her view of the world. The complaint itself is raising some questions, as it makes long-debunked claims such as saying that the sites use of "meta tags" boost how the sites show up in search engines. That may have been true in the 90s, but it hasn't been true for over a decade, at least. Further, the complaint argues that the site operators have some sort of proactive requirement to "implement means to prevent infringement," but the law requires no such tools or filters -- only that the sites properly respond to takedown notices for copyright infringement (trademark is a bit different, but the trademark claims here are also quite weak). The filing was done under seal based on the bogus excuse that if the sites operators were alerted they might be "tipped off" that something was happening and make an effort to prevent the sites from being shut down. We'll get into why that goes against Supreme Court precedent and the First Amendment in a moment, but first let's look at how broad and ridiculous the actual restraining order is. The judge grants the restraining order against the defendants ordering them to stop making use of ABS-CBN trademarks and copyrights, which isn't too surprising. But then stretches the order to include tons of non-parties to the lawsuit: Upon Plaintiffs' request, those with actual notice of the injunction, including any Internet search engines, Web hosts, domain-name registrars, and domain name registreies or their administrators, shall cease facilitating access to any or all domain names and websites through which Defendants engage in the (i) copying, distribution, performance, and promotion of Plaintiffs' copyrighted works and\or broadcast content or (ii) use of the ABS-CBN Marks It also orders domain registrars to hand over the domains to ABS-CBN and to block further transfers. Again, all of this is done without ever notifying the defendants, who are named as Jeffrey Ashby, Lenie Ashby and a bunch of Does operating a variety of domain names. The ruling is extremely questionable. The whole reason why the entertainment industry pushed so hard for SOPA was because they knew you couldn't pull a stunt like this. It seems that Judge Brown doesn't know about this or doesn't care. That's what happens when you only hear one side of an argument in a case. However, as we've discussed in the past, such one sided rulings that shut down entire websites with no notice to the operators of those websites, are illegal under the Supreme Court's ruling in Fort Wayne Books v. Indiana. When it comes to any sort of expressive content, the court held that seizing the content prior to an adversarial hearing violates the First Amendment: In a line of cases dating back to Marcus v. Search Warrant, 367 U. S. 717 (1961), this Court has repeatedly held that rigorous procedural safeguards must be employed before expressive materials can be seized as "obscene." In Marcus, and again in A Quantity of Copies of Books v. Kansas, 378 U. S. 205 (1964), the Court invalidated large-scale confiscations of books and films, where numerous copies of selected books were seized without a prior adversarial hearing on their obscenity. In those cases, and the ones that immediately came after them, the Court established that pretrial seizures of expressive materials could only be undertaken pursuant to a "procedure `designed to focus searchingly on the question of obscenity.' " Id., at 210 (quoting Marcus, supra, at 732). See also, e. g., Lee Art Theatre, Inc. v. Virginia, 392 U. S. 636 (1968). We refined that approach further in our subsequent decisions. Most importantly, in Heller v. New York, 413 U. S. 483, 492 (1973), the Court noted that "seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding." As a result, we concluded that until there was a "judicial determination of the obscenity issue in an adversary proceeding," exhibition of a film could not be restrained by seizing all the available copies of it. Id., at 492-493. The same is obviously true for books or any other expressive materials. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. Ibid.; see New York v. P. J. Video, Inc., 475 U. S. 868, 874-876 (1986). Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. Lo-Ji Sales, Inc. v. New York, 442 U. S. 319, 326, n. 5 (1979). It is "[t]he risk of prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials" that motivates this rule. Maryland v. Macon, supra, at 470. These same concerns render invalid the pretrial seizure at issue here. And yet... the judge appears to ignore that entirely. That's incredibly troubling for the precedent it sets. It may very well be true that the sites in question were engaged in infringing activity and deserve to lose any lawsuit filed against them. But it's also possible that they were not engaged in such activities -- and yet their sites are preemptively shut down and destroyed, without them even knowing there was a legal proceeding under way. That's prior restraint. I actually spoke to Rob Holmes, an "intellectual property cybercrime consultant" who is working with ABS-CBN in this case. Holmes is a Techdirt reader and someone whom I've had good discussions with on related subjects in the past -- but he's obviously defending this ruling. As he told me: The subjects will have plenty of opportunity in the near future to defend their actions. We proved beyond a shadow of a doubt that they were bad actors and, rightfully, the judge made us work hard to prove it. The reason a case is filed under seal is so that the criminals do not have time to put a contingency plan into action. Otherwise our efforts would not be effective. It's no different than conducting a raid on a crackhouse. This operation is not only making financial profit from their piracy, but their ads contained malware that infected the computers of all of their users. They are also employing other black-hat techniques in attempts to make money. You know my case history. The whack-a-mole game is a scam for all involved. From an IP enforcement standpoint, when someone messes with your company's livelihood, you stop them. And you make sure that all watching are discouraged. Period. I have to take issue with nearly everything that Rob says here. The fact that they'll have plenty of opportunity after the fact to dispute the charges against them is besides the point. Who knows if this is a legitimate operation or not, but if it is, and this action totally destroys it, then it's a bit late to go and complain to the courts after it happened. The whole point of the Supreme Court ruling discussed above is that you have to have an adversarial hearing first. The whole "contingency plan" argument is bogus as well. Any action required in the restraining order could easily be issued at a later date against any other sites that these individuals happen to set up as well. Rob's comparison of this to a "crackhouse" and calling them criminals is also dangerously misleading. First, this a civil, not criminal case. Second, as the Supreme Court noted, when you're dealing with things like drugs, it's reasonable to seize it. When it's expressive material, you can take or copy a single example for the purpose of evidence, but you cannot shut the speech down. But that's what the judge did here. The claim that the case "proved beyond a shadow of a doubt" that they were bad actors is simply laughable as well. Again, only one side of the story has been told here, and already in the complaint itself there are highly questionable arguments (such as arguing that the sites had a requirement to take proactive action against possible infringement). Whether or not you have to "play whack-a-mole" (and as a trademark expert, Rob should know that it's actually whac-a-mole) to stop scammers that does not remove the rights of those who operate the sites. And those rights include the First Amendment and the right to an adversarial hearing before expressive content -- websites -- are taken out of commission. Who knows if the site operators will really fight back here. They may not. They may, in fact, be engaged in infringement and not wish to challenge any of this in court. But, even so, that doesn't change the massively problematic nature of this move by ABS-CBN, and the denial of basic due process and the First Amendment to the operators of those sites. People have rights for a reason. We don't just stomp them out without due process just because one party has told a court that they're "bad actors."Permalink | Comments | Email This Story

Read More...
posted 14 days ago on techdirt
Color me unamazed. Politicians who are in favor of the government's 1033 program -- which distributes excess military gear and weapons to police departments engaged in our country's two favorite "wars" (v. Terror, v. Drugs) -- received a lot more money from defense contractors than those who oppose it. Maplight, which tracks contributions to politicians, uncovered more evidence that private companies can get the legislative results they want if they just a$k nicely. In June, the House of Representatives voted on an amendment from Rep. Alan Grayson (D-Fla.) that sought to partially defund the 1033 Program. The amendment failed on a bipartisan vote of 62-355. Representatives voting to continue funding the 1033 Program have received, on average, 73 percent more money from the defense industry than representatives voting to defund it. Fifty-nine representatives received more than $100,000 from the defense industry from January 1, 2011 - December 31, 2013. Of those only four supported defunding the 1033 Program. This amendment didn't even target some of the common transfers: assault rifles, night vision goggles, etc.. These common indicators of police militarization would have continued to flow from the US government to law enforcement agencies unabated. Instead, 355 legislators voted that local law enforcement should still be allowed access to the following equipment: Aircraft (Including Unmanned Aerial Vehicles), Armored Vehicles, Grenade Launchers, Silencers, Toxicological Agents, Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs, Mines, or Nuclear Weapons One wonders if armored vehicles and drones had been struck from the list, the vote might have been more even. But phrased the way it was, if you still wanted your local PDs to acquire MRAPs, silencers and helicopters, you had to also give them the theoretical ability to requisition toxicological agents and ballistic missiles. I don't imagine the government will be handing out guided missiles and nukes to law enforcement EVER, but what can be requisitioned is still partially a secret and information released to Muckrock by the Defense Logistics Agency only denotes which state received what, rather than indicate which law enforcement agencies were involved. But even if the government has no intention of turning local law enforcement into full-fledged armies with nuclear/biological weapon capabilities, it's still handing over weapons and vehicles with little to no discretion. As Christopher Ingraham at the Washington Post notes, if you can fill out one very simple form, you'll be able to roll down Main Street, USA in an armored tactical vehicle bristling with military assault rifles. Applying for federal student aid? You'll need to fill out a 10 page application. Social Security retirement benefits come with an eight-page form, a passport application is six pages, and the shortform Obamacare application is five. But if you are a law enforcement agency in the U.S., you can apply for a free armored tactical vehicle from the Pentagon with a simple one-page form, below. You can even apply for multiple vehicles using the same form! Ingraham's article oversimplifies the process somewhat (a few layers of pre-approval are needed), but the fact remains that it's incredibly easy to outfit local law enforcement units with military gear. A vetting process with some teeth would likely have prevented small towns from acquiring vehicles designed to protect soldiers in combat zones from explosives. Crime is way down and police are more heavily-armed and well-protected than ever. Part of it is defense contractors making sure there's still a growing market for their wares. As Maplight points out (quoting an ACLU report on police militarization), 36% of the equipment transferred to law enforcement via the 1033 program is brand new. What may have seemed to be a fiscally responsible program -- making use of excess military equipment rather than simply scrapping it -- is now another way to blow tax dollars. Only this time, it's having other adverse effects on the general public. When the Defense Logistics Agency is buying brand new and transferring these purchases to law enforcement at pennies on the dollar (using DHS grants to pay the difference), the government is screwing taxpayers multiple times, at multiple levels -- and that's just in a financial sense. We shouldn't need an amendment to tell the Defense Dept. to stop turning locals cops into makeshift occupation forces, and we certainly shouldn't need to tell the government that no law enforcement agency needs ballistic missiles or bombs. Local cops really don't need armored vehicles either, but until legislators are willing to enact some serious limitations, the downhill slope from the DoD's excess property storage to the United States' police departments will continue unabated. Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
Last year, there were a few stories concerning a really despicable (more than usual) patent troll called MPHJ Holdings. Joe Mullin, over at Ars Technica, had dug deep into the details, finding a bunch of shell companies all sending demand letters to various small companies demanding around $1,000 per employee for using a network-connected scanner that includes a "scan to email" feature (i.e., pretty much any scanner on the market today). There were all sorts of sketchy things about MPHJ, and it was pretty clear that it and all its shell companies were effectively shaking down small businesses. It was so egregious that Vermont's Attorney General sued the company, claiming that it was engaged in "unfair and deceptive acts" with its threat letters. Over the last year, MPHJ has fought hard to get the case out of a Vermont state court and into a federal court, arguing that it was a patent case (which is covered by federal law). The federal district court sent it back to the Vermont state court, saying that it's not really a patent case at all, but about the company's threat letters. Specifically, it stated: "the State is targeting bad faith conduct irrespective of whether the letter recipients were patent infringers." MPHJ appealed this ruling to CAFC, the appeals court that handles all patent cases (and is somewhat notorious for constantly expanding patent law through its decisions). Last week, however, CAFC rejected MPHJ's appeal, without even getting into the issue of whether or not this is a patent case. Instead, it simply noted that the law says appeals courts can't review orders remanding a case to a state court. Case closed, no jurisdiction. Pack your bags for Vermont, MPHJ lawyers. Of course, the more important case involving MPHJ is the one in which it brazenly decided to sue the FTC for investigating its actions. The decision on that case could come at any time. You never can tell how a court will rule, but the odds are not likely to be in MPHJ's favor on that one either...Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
As the school year in the US begins, students are getting their class schedules and teacher assignments -- and some teachers are going to be better than others. One school can be ranked higher than another, but if your kid has a great teacher, school rankings may not be a meaningful measurement. But how do we find or nurture a growing pool of good teachers? That's a tough task that some folks are looking into, and there may be better ways to teach teachers. Here are just a few links on improving teaching skills. Tenured professors aren't better teachers than non-tenured professors, but further conclusions are tricky to make. It does make sense that professors who spend more time teaching than on research and publications would be able to hone their teaching skills a bit more. [url] Over the course of a school year, the difference between a good teacher and a bad teacher can be the amount of material students learn. Bad teachers barely cover half a year's worth of material, whereas a good teacher can cover 1.5 years of a subject. [url] Good teachers aren't born. They're taught to be good teachers. It takes effort and skill to diagnose a student's problems for learning various material, and this skill doesn't just appear out of thin air -- nor can it be created by putting teachers into a Darwinian accountability game of standardized test scores. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
I've never really understood the debate about how trustworthy Wikipedia is compared with once-printed, more "official" encyclopedia volumes, like the old Encyclopedia Britannica. What rarely made sense to me was the constant assertions that an information system to which anyone could contribute was inherently unreliable because anyone could contribute to it. Sure, you get the occasional vandals making joke edits, but by and large the contributions by the community are from informed, interested parties. The results tend to be close to, if not on par, with traditional encyclopedias. But if I can't understand the comparison between Wikipedia and printed encyclopedias, I'm completely flabbergasted why anyone would be shocked to find that the public trusts Wikipedia more than their traditional news sources. The British public trusts Wikipedia more than they do the country's newsrooms, according to a new poll by research firm Yougov. Sixty-four percent of respondents said they trusted Wikipedia pages to tell the truth “a great deal,” or “a fair amount”—more than can be said for journalists at the Times or the Guardian, and also slightly above BBC News. Well, no shit. That's because, as I've been trying to scream at you people for the past three years, the corporate mass-media news industry sucks. More specifically, the once proud fourth branch of our government has been reduced to screaming-head opinionators formulating commentary on the basis of politicized ratings. In other words, Wikipedia and the news are in two different businesses: one is about facts and the other is about shock and spin. Argue with me all you like, you know it's true. But perhaps even more importantly, the general public trusts crowd-sourced Wikipedia articles more than the news because an argument is always more trust-worthy than a lecture. That's the real difference. If you want to know how good a teacher in a school is, you gather up the best student, the worst student, the principal and the teacher and then analyze what they all say together. You don't ask the school's PR director. Wikipedia, even when it comes to contested or hotly-debated articles, does this extremely well, even concerning itself. The linked article above discussed a number of articles about how reliable Wikipedia is, some of which disagreed with others, and all were found on the Wikipedia page for itself. Regardless the disputes over individual studies and their methodologies, how I found them is almost as telling as their results. I came across them because Wikipedia provided external references, allowing me to corroborate the information. This is one of the site's great merits: the aggregation of multiple sources, correctly linked, to build a more complete picture. As the results of the Yougov poll perhaps suggest, this surely seems more reliable than getting the coverage of an event from one newspaper. The truest answer to a question can rarely be told by a single source, which is what makes the sources section of a Wikipedia page so valuable. What is the corollary in a news broadcast? Perhaps a single expert? Maybe once in a while they'll have two sides of a debate spend five minutes with one another? They're not even close. The argument itself can be instructive, but that argument never happens on most news shows. This doesn't mean you blindly read Wiki articles without questioning them. But a properly sourced article is simply more trustworthy than a talking head telling you how to think. Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
Snowden just re-upped for three years in picturesque Russia, a land best known for not being a US military prison. Not exactly ideal, but under the circumstances, not entirely terrible. The government knows where Snowden is (more or less) and many officials have a pretty good idea what they'd like to do to him if he returns, but the NSA is still largely operating on speculation when it comes to what documents Snowden took. But they do have someone looking into this. The government has tried to assess the damage posed by Snowden's leaks, but so far all it has come up with is vague proclamations that the released have caused grave and exceptional damage to US security and an even vaguer CIA report claiming that a bunch of documents Snowden theoretically has in his possession might severely harm the US if a) they are released and b) they exist. Charlie Clark at Defense One has a fascinating article on the man tasked with handling the intelligence community's post-Snowden world. The man filling that role, or the “NCIX,” as acronym-inclined national security feds call the National Counterintelligence Executive, is Bill Evanina, 47, a former FBI special agent with a counter-terrorism specialty. Tapped in May 2014 by James Clapper, director of the Office of National Intelligence, Evanina is now immersed in coordinating multi-agency efforts to mitigate the risk of foreign infiltration, assess damage from intelligence leaks and tighten the security clearance process. This means teaming up with the "'most transparent administration" to help sniff out and stamp out so-called "insider threats." This has always been a priority during Obama's term and its efforts are now being redoubled. On one hand, the ODNI (James Clapper's office) is dipping its toes in the transparency waters. (But mainly it's trying to keep from being pushed into the transparency pool by a variety of litigants.) Evanina is working towards the "discussion" of security vs. privacy, but most of his efforts are focused on locking everything down. The appearance of new leakers has the government even more concerned. [W]hen queried about an Aug. 6 New York Times report of leaked internal documents showing “secret terror lists” that include 28,000 Americans kept by the National Counterterrorism Center, Evanina was firmer. “No unauthorized leak is routine,” he said. “It’s a criminal act that has us very concerned. In the intelligence community’s view, every disclosure is a problem because it betrays the people who collected that data. There’s a rationale on why it was classified,” he added, citing a need to protect “both the collection methods and lives.” The FBI is moving forward,” he said, with a probe into how the lists were leaked to an online magazine called The Intercept. The government swears it protects whistleblowers but the efforts it makes undermines its assertions. Telling people the government is targeting them for reasons it doesn't seem to be able to put into words is called a "criminal act." But here's the most surprising fact from Evanina's profile. One crisp action taken following agency auditing after Snowden’s exposure: 100,000 fewer people have security clearances than did a year ago, Evanina said. “That’s a lot.” This looks like the proper response to someone like Snowden. Handing out too many security clearances undermines security. But it's more than that: it's a consolidation of power. By stripping 100,000 people of their clearances, the government eliminates 100,000 potential whistleblowers. With fewer eyes watching surveillance programs, odds of abuse multiply. Someone has to watch the watchers and sometimes that someone is nothing more than a government contractor. This response doesn't fix the underlying problems -- the government's broad surveillance programs that sweep up Americans' data and communications. All it does is make it that much harder to expose wrongdoing. If the government wants to solve its problems, it needs to listen to its whistleblowers rather than simply writing them off as security risks or criminals. The internal channels are a joke and no serious effort is being made to improve them. Instead, the NSA and others have reined in access, ensuring that whistleblowers are both fewer in number and limited in options. Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
For years we've pointed out how GDP (Gross Domestic Product) isn't a great way to measure the economy, especially in the digital age. Even if we assume that GDP can be calculated accurately (and, really, it can't), it's an aggregate piece of information, hiding lots of important things underneath. In the extreme, you could have one massively wealthy person who collects all the money, while everyone else has no money, and you could still see a "healthy" economy in GDP terms. Even worse, when it comes to the information age, GDP calculations get... both terrible and terribly misleading. Part of the problem is assuming that value only comes from things that are paid for. There's always been some element of this problem in traditional GDP calculations when dealing with more informal economies (how do you calculate the GDP of a stay-at-home parent who cares for a kid and cooks the meals?). But, when it comes to the information age, this issue has grown exponentially -- especially since so much online is "free to the user." On top of that, the ongoing march of technology continues to make things cheaper and better (yay, Moore's Law), but getting a computer that's twice as powerful for half the price shows up in GDP calculations as half the economic output, rather than 4x the value. That's why it's great to see economic historian Joel Mokyr take this issue on in a great Wall Street Journal piece pointing out that too many economists focus on GDP and don't understand the information age. Many new goods and services are expensive to design, but once they work, they can be copied at very low or zero cost. That means they tend to contribute little to measured output even if their impact on consumer welfare is very large. Economic assessment based on aggregates such as gross domestic product will become increasingly misleading, as innovation accelerates. Dealing with altogether new goods and services was not what these numbers were designed for, despite heroic efforts by Bureau of Labor Statistics statisticians. The aggregate statistics miss most of what is interesting. Here is one example: If telecommuting or driverless cars were to cut the average time Americans spend commuting in half, it would not show up in the national income accounts—but it would make millions of Americans substantially better off. Technology is not our enemy. It is our best hope. Mokyr is one of the best of the best, and I've often found myself recommending his books (The Lever of Riches: Technological Creativity and Economic Progress is a personal favorite), and this is another great example of his work. And, yes, economists will argue that they understand the problems of GDP, and yet they still rely on it, because there isn't something better. As we've noted, however, when you have a bad metric, even if you know it's a bad metric, you still tend to optimize for that metric. Because that's what you have. Yet optimizing for GDP could actually limit and hinder innovation, creating results that are actually negative for the well being of the public, just because of the impact on GDP. And that leads to bad policies, misdirected concerns and dangerous views on innovation itself.Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
We've been writing about the militarization of police, and why it's problematic, for years -- but the events of the last week in Ferguson, Missouri, have really shone a (rather bright) light on what happens when you militarize the police. Annie Lowrey, over at New York Magazine, highlights what may be most disturbing about all of it: all of this has happened while violence has been on a rapid decline, and, no it's not because your local suburban police force now has a SWAT team and decommissioned military equipment from the Defense Department: Since 1990, according to Department of Justice statistics, the United States has become a vastly safer place, at least in terms of violent crime. (Drug crime follows somewhat different trends, though drug use has been dropping over the same time period.) The number of murders dropped to 14,827 in 2012 from 23,438 in 1990. The number of rapes has plummeted to 84,376 from 102,555. The number of robberies, motor-vehicle thefts, assaults — all have seen similarly large declines. And the number of incidents has dropped even though the country has grown. [....] And there’s no evidence that giving police officers the weapons of war has had anything to do with that decline in crime, either, with researchers pegging it to a combination of factors, among them the removal of lead from paint and gasoline, an increase in abortion rates, and improved policing methods. So, instead, we get a very militarized police -- and tons of cases where it is being used in cases that absolutely don't warrant it. At all. And here's the really disturbing thing. It may get a lot worse. As Vanity Fair notes, on June 19th, Rep. Alan Grayson had offered up an amendment on the Defense Appropriations bill, which would have limited the militarization of police. And it failed by a wide margin. Included in those voting against it? The guy who represents Ferguson. The amendment attracted the support of only 62 members, while 355 voted against it (14 didn’t vote). Included among those voting against it was Rep. William Lacy Clay (D), who represents Ferguson. Clay was joined by every senior member of the Democratic Party leadership team, including Reps. Nancy Pelosi (CA), Steny Hoyer (MD), and Assistant Democratic Leader James Clyburn (SC). Democrats did form the bulk of support for the amendment (with 43 votes in favor), with 19 Republicans supporting as well—led by libertarian-conservative Rep. Justin Amash (MI), who lamented that “military-grade equipment . . . shouldn’t be used on the street by state and local police” on his Facebook page. Apparently, arming the police with military equipment has powerful lobbying support. Because why expect people to think about what actually makes sense when there's money and FUD on the line: Why was there such tremendous opposition to the Grayson-Amash effort? Two very powerful constituencies in Congress may be to blame: the defense industry, and the police lobby. Take Rep. Clay. He has been all over the news media calling for justice in his district, and demanding an investigation of Brown’s death. Yet like every House member, he is up for re-election every two years, and his fourth-largest donor is the political action committee of the weapons maker Boeing. So there's that. And then, let's take things up a notch. Scott Greenfield alerts us to the news that a judge over in Colorado has determined that the Cinemark Theater where James Holmes opened fired on the opening night of the Batman film "The Dark Knight Rises" may have some responsibility because it should have known that such an attack might happen. Despite the fact that there has never been such a shooting in a theater, the judge says that the theater should have been prepared for such a possibility: Noting "the grim history of mass shootings and mass killings that have occurred in more recent times," U.S. District Court Judge R. Brooke Jackson ruled that Cinemark — owner of the Century Aurora 16 theater — could have predicted that movie patrons might be targeted for an attack. Jackson's ruling allows 20 lawsuits filed by survivors of the attack or relatives of those killed to proceed toward trial. "Although theaters had theretofore been spared a mass shooting incident, the patrons of a movie theater are, perhaps even more than students in a school or shoppers in a mall, 'sitting ducks,' " Jackson wrote. That makes absolutely no sense. But the inevitable result, as Greenfield notes, seems to be a lot more militarized police -- and now, private security guards... everywhere. Just in case. Consider, if what happened in Aurora, the duty of businesses to be prepared for the act of a one-in-a-million crazy. The biggest growth job in America will be armed guard. Every theater will require its own SWAT team, perhaps a MRAP or Bearcat. Office buildings, parks, skating rinks, pretty much anywhere more than three people gather, could be the next target of a madman. They will all need security, armed with the weapons needed to take out any crazy. Don’t blame the businesses. They’re just trying to cover their foreseeable obligations. Sure, there is almost no chance, almost no possibility whatsoever, that they will be the target of the next insane shooter, but Judge Jackson says it’s still foreseeable. In fact, that no one has ever shot up a skating rink makes it even more foreseeable, by his rationale. It is difficult to comprehend how profoundly screwed up all of this is.Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
With some of the proceedings unsealed in the EFF's long-running Jewel vs. NSA lawsuit, more details can finally be exposed. Not that what's already been exposed hasn't been damning enough. Over the past several months, the DOJ has run interference for the NSA, traveling from courtroom to courtroom, destroying and saving (or at least pretending to...) collected data amongst a flurry of contradictory orders. Not that it ultimately mattered. The NSA just kept destroying relevant evidence, claiming the system was too complex to do anything with but allow to run its course. Evidence would be destroyed at the 5-year limit, no matter what preservation orders were issued. The NSA, of course, has a vested interest in destroying evidence that its 215 and 702 programs collect the data and communications of Americans. Thanks to Snowden's leaks, it can no longer pretend it doesn't. But despite this, the DOJ still claims Section 702 targets only foreigners and American suspects located outside of the US. The mock concern about compliance with court orders was a hustle. The DOJ wants as much evidence that might be useful to plaintiffs gone as swiftly as possible. Thanks to the unsealing of Jewel court documents, the EFF can now relate that the DOJ's efforts went much further than simply letting aged-off collections expire. It also actively tried to change the historical record of the Jewel case, as Mike covered here recently. Citing classification concerns, the DOJ sought to editorialize its statements to the court, removing them (not redacting them) from the public record… and it didn't want anyone to find out. Take a moment to soak in the audacity of this request, made by the US government in a federal court. If the judge had sided with the DOJ, there's a good chance some of the transcript embedded below would have gone missing… forever. Even after the documents were eventually unsealed, whatever the government had managed to convince the court was "classified" would no longer exist -- despite the fact that one week earlier these statements were made in an open court room. It's likely that the judge's decision to notify the plaintiffs changed the DOJ's mind about retconning its own statements. It's a good thing nothing's missing. What's in there is terrible. The DOJ basically mounts the argument that no plaintiff should ever have standing to challenge either the Section 215/501 or 702 programs, unless they are Verizon Business customers… and even then they should only be able to challenge the former. (Apologies for the all caps, but that's the way the court transcribed it.) AND WE SET THIS FORTH, AGAIN, FOR THIS COURT IN OUR MOST RECENT FILING IN WHICH THE DNI ASSERTED THE STATES SECRET PRIVILEGE AND EXPLAINED TO THE COURT THAT NOTWITHSTANDING ALL THESE TERRIBLE DISCLOSURES THAT OCCURRED OVER THE PAST YEAR -- IN FACT, THIS IS THE ONE YEAR ANNIVERSARY -- DISCLOSURES THAT WE ARE CONVINCED THAT HAVE SERIOUSLY HARMED THE NATIONAL SECURITY OF THIS COMPANY, WE HAVE CONTINUED TO PROTECT THE IDENTITY OF PARTICULAR TELECOMMUNICATION CARRIERS THAT ARE ALLEGED TO HAVE ASSISTED THE NSA, NOT ONLY IN THE SECTION 215 PROGRAM, WHICH WAS AT ISSUE IN THE CASES YOU CITED, BUT ALSO IN THE PRESIDENT'S SURVEILLANCE PROGRAM, ACTIVITIES WHICH ARE AT ISSUE IN JEWEL AND SHUBERT, AS WELL. SO WE HAVE NOT CONCEDED THAT STANDING COULD BE FOUND BASED ON THE MERE EXISTENCE OF THE BULK TELEPHONY META DATA PROGRAM, IF THAT IS YOUR QUESTION. Got that, citizens? Because we have made the choice to protect telcos withhold information, you will only have standing to challenge these programs under very narrow circumstances. The government is looking out for the best interests of its partners in surveillance. The rights of citizens are much further down the list. And while acknowledging that it has withheld info on the telephony metadata program, the DOJ's lawyers simultaneously claim the plaintiffs should have been prevented from amending their case to include the recent Section 702 revelations, because that program has supposedly been out in the open and fully transparent since 2008. SO I HARDLY KNOW WHERE TO BEGIN. BUT I WILL START WITH THIS. FIRST OF ALL, THE CONTENTION THAT 702 DID NOT EXIST WHEN THE COMPLAINT WAS FILED IS A FALSEHOOD. 702 WAS ENACTED IN 2008, IN JULY OF 2008, AS PART OF THE FISA ACT AMENDMENTS OF 2008. NOT ONLY DID IT EXIST BEFORE THIS COMPLAINT WAS FILED, THE JEWEL PLAINTIFFS KNEW ABOUT IT, BECAUSE IT'S PRECISELY WHY THEY FILED SUIT. THAT LEGISLATION CREATED IMMUNITY FOR THE TELECOMMUNICATION COMPANIES. THE ACLU OVER IN NEW YORK, KNEW QUITE WELL IT EXISTED. THEY FILED A COMPLAINT, I THINK, THE DAY IT WAS ENACTED INTO LAW. AND THAT MADE A LOT OF HEADLINES, AND IT WAS LITIGATED. AND IT WAS ALL, ALL PUBLIC. NO SECRET PROGRAM. AND IT WAS OUT THERE. SO THAT STATEMENT IS JUST NOT TRUE. THE SECOND THING THAT'S NOT TRUE IS HER PROGRAM DESCRIPTION. 702 IS A PUBLIC STATUTORY PROGRAM. IF YOU LOOK AT THE AMNESTY INTERNATIONAL DECISION, IT DETAILS HOW THAT PROGRAM OPERATES. AND SO THAT IS THE SOURCE OF WHAT SHOULD BE THE COURT'S UNDERSTANDING FOR THIS PROGRAM AND HOW IT OPERATES. Completely disingenuous. The program was never "out in the open." It protected telcos and helped codify warrantless wiretapping, but there was never any indication given that it also allowed the NSA to tap into the internet backbone and siphon off communications of Americans. And it certainly wasn't presented as a tool to be used as an untargeted dragnet. This is only a small part of a document the DOJ wanted to selectively edit and present later as an untouched factual record of a federal hearing. The government claims no one has standing because everything related to the NSA's programs is "rank speculation" -- basically pretending the "terrible disclosures" never happened. In the same breath, it claims the programs have always been transparent and completely above board, therefore no one should be able to amend their complaints when additional info is exposed by leakers. The government not only wants it both ways, but it has the breathtaking gall to ask to touch up its talking points after delivering them. After a dozen attempts to wrap up this post with something that pithily highlights the anger the government's editing attempt (and the horrible arguments contained in the transcript) has generated in me, I'm left with little more than this: FUCK THE DOJ -- it and every agency it oversees. It witholds information about the companies involved in its dragnet surveillance programs, covers up everything else and pretends unauthorized disclosures "don't count," at least not when it comes to citizens being granted standing. It could easily clear up this "rank speculation," but it would rather shelter telcos from irate customers and give itself an easy way to get lawsuits dismissed. Then it spins everything around and claims the plaintiffs are misrepresenting the programs to the court -- something the DOJ has actually done itself -- and should not be allowed to amend complaints to reflect additional evidence gleaned from leaked documents. Hey, I'm sorry the leaks have made it harder for these agencies to do whatever the hell they want, but they are all part of a government that's supposed to be accountable to the citizens picking up the check. But when faced with unhappy citizens and their diminished rights, all the DOJ's lawyers can say is that the public doesn't know shit and has no right to question the government's activities. The government has somehow managed to come to a conclusion others reached weeks ago -- there's more than one leaker out there. GOOD. Burn it down. In the DOJ's hands, the government isn't by or for the people. It's despite the people. The DOJ can't be trusted to protect the balance between privacy and security. As it sees it, what the public doesn't know will likely hurt it, and it's damned if it's going to allow citizens to seek redress for their grievances.Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
For years, we've written about the third party doctrine and its troubling implications for the 4th Amendment and your privacy -- especially in the digital era. If you're unfamiliar with it, the third party doctrine is the concept used by law enforcement (and, tragically, the courts) to say that you have no expectation of privacy or 4th Amendment rights in information you've given to a third party. The origins of this argument are not completely crazy, because there is a legitimate claim to the idea that if I entrust you with some private information, and you decide to disclose it, that my 4th Amendment rights haven't been violated. But that assumes a very different world. In today's digital world -- especially with cloud computing -- we "entrust" all sorts of information to third parties even though we still think of and treat that information like it's our own personal effects. These aren't cases in which I'm handing over a collection of journals to my neighbor to hold onto. Online services are treated as our own content -- which we can access, update and modify at any time from any device. While the Supreme Court's recent decision in the Riley/Wurie cases suggests that it is becoming increasingly uncomfortable with law enforcement twisting old concepts onto new technologies to eviscerate privacy, the third party doctrine technically still stands -- and there has been little real discussion of it in Congress. So it's good to see that Senator Ron Wyden is actually speaking out about why the third party doctrine needs to go. The speech is a good one, talking about oppressive governments and surveillance, and the rise of technology -- and how our laws have not kept pace when it comes to protecting our privacy against government intrusion. Then he digs in on the third party doctrine, noting that it was established by "judges who did not fully understand 20th Century technology, much less anticipate the technology we have today" and that it makes little sense considering the way we use technology today: Some will still argue that by sharing data freely with Facebook, Google, Mint, Uber, Twitter, Fitbit, or Instagram, Americans are choosing to make that data public. But that is simply not the case. I might not have any expectation of privacy when I post a handsome new profile picture on Facebook, or when I send out a tweet to tell people I’ll be at the Tech Northwest conference. But when I send an email to my wife, or store a document in the cloud so I can review it later, my service provider and I have an agreement that my information will stay private. Neither of us have invited the government to have a peek. Basically, I think sharing this information with Google is like putting property in a safety deposit box, but the government thinks I’m posting it on a billboard out on I-5. Citizens have agreed to a contract with Google or Mint that keeps their email or financial data private. In many cases these companies don’t even know what information they’re holding for you. Making information available to a service provider for a limited business purpose - so that they can give you a new app, or provide targeted ads, or do any other kind of business with you - is simply not the same as broadcasting that information to the public. In the view of the law this data should be as secure to your person as if it were sitting in a locked filing cabinet in your home office. So how about fixing it? Well, he says, it needs to start by reforming the laws that cover the intelligence community, preventing them from bulk collection of the data you've handed to third parties. I believe that any serious effort to reform this law needs to end the bulk collection of Americans’ personal information, starting with their phone records. I have been challenging this program for years on the grounds that isn’t just harmless old metadata. Furthermore, I believe that Congress needs to reform the Foreign Intelligence Surveillance Court, to make it more transparent and to include an advocate for the American people. Additionally, there needs to be much greater transparency from intelligence agencies about the scale and scope of domestic surveillance activities, and private companies should be given the ability to disclose much more information about requests they receive from the government. Most of all, Congress must close the loophole that intelligence agencies are currently using to read a significant number of Americans’ communications without a warrant. But that's just the start. He calls out Executive Order 12333, which we've been discussing lately. That's the Ronald Reagan-signed executive order that lets the NSA collect whatever the hell it wants outside of the US. As was recently revealed, this program, which has no Congressional or Judicial oversight, is really the core program that the NSA uses. All the domestic spying under Section 215 and 702? That's just to "fill in the gaps." Wyden thinks its time that EO 12333 got reviewed and reformed: The next step will be to seriously examine collection that is done overseas. When the Foreign Intelligence Surveillance Act was written in the late 1970s, it was written to only apply to collection done inside the United States. But that was back in an era when each country essentially had its own separate communications infrastructure. Now those separate systems have been replaced by an integrated global communications network, in which calls and emails within one country might be routed through multiple different countries. When you combine that shift with new technology that makes it much easier to obtain large amounts of data, it no longer makes sense to assume that collection done overseas will not sweep up the communications of large numbers of law-abiding Americans. This means that the rules that govern collection overseas will need to be substantially revised. These are governed by something called Executive Order twelve-triple-three, which is more than 30 years old and predates this sea-change in global communications. I was encouraged a few weeks ago when the Senate Intelligence Committee recognized this fact, and voted to advance a bill that would begin to establish some firmer rules in this area. Finally, he talks about the need for ECPA reform -- another thing we've been discussing for years. ECPA is the 1986 Electronic Communications Privacy Act which is so woefully out-of-date, it's not even funny. It's the one that assumes if any communication is sitting on a server for more than 180 days, then it's "abandoned." Go look at how many emails in your Gmail account are over 180 days old... Even though more than half of the House is co-sponsoring an ECPA reform bill, law enforcement folks are protesting it, because they like the easy access. The DOJ loves to go on fishing expeditions with ECPA, as does the SEC and the IRS. Wyden says it's time for real reform. There's much more that can be done, some of which he refers to in his speech, but it would be nice if Congress finally realized just how truly dangerous the third party doctrine is to our privacy.Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
When we recently wrote about Google starting to make use of SSL for search rankings, one of our commenters noted that not every site really "needs" HTTPS. While I used to agree, I've been increasingly leaning in the other direction, and I may have been pushed over the edge entirely by a new research report from the Citizen Lab by Morgan Marquis-Boire (perhaps better known as Morgan Mayhem), entitled Schrodinger’s Cat Video and the Death of Clear-Text. He's also written about it at the Intercept (where he now works), explaining how watching a cat video on YouTube could get you hacked (though not any more). The key point was this: companies producing so-called "lawful intercept" technology, that was generally (but not always) sold to governments and law enforcement agencies had created hacking tools that took advantage of non-SSL'd sites to use a basic man-in-the-middle attack to hack into targeted computers. Companies such as Hacking Team and FinFisher sell devices called “network injection appliances.” These are racks of physical machines deployed inside internet service providers around the world, which allow for the simple exploitation of targets. In order to do this, they inject malicious content into people’s everyday internet browsing traffic. One way that Hacking Team accomplishes this is by taking advantage of unencrypted YouTube video streams to compromise users. The Hacking Team device targets a user, waits for that user to watch a YouTube clip like the one above, and intercepts that traffic and replaces it with malicious code that gives the operator total control over the target’s computer without his or her knowledge. The machine also exploits Microsoft’s login.live.com web site in the same manner. Fortunately for their users, both Google and Microsoft were responsive when alerted that commercial tools were being used to exploit their services, and have taken steps to close the vulnerability by encrypting all targeted traffic. There are, however, many other vectors for companies like Hacking Team and FinFisher to exploit. I'd bet pretty good money that both of these companies also target some popular ad networks. For reasons that are still beyond me, many large ad networks still refuse to support SSL -- which is also why so few media sites support SSL. In order to do so, you have to drop most ad networks. Between ad networks and popular media targets, it's likely that there are plenty of opportunities for network injection going on. Provided that the attacker can persuade a sufficiently large carrier to install a network injection apparatus, they can be reasonably certain of the success of any attack. While an attacker would still need an exploit to escape from the context of the target’s browser, one of the browser plugins (such as flash, java, quicktime, etc.) or similar is likely to provide a low cost avenue for this. This type of capability obviates the need for spear-phishing or more clumsy attacks provided the target is in the attacker’s domain of influence. This type of approach also allows for the ‘tasking’ of a specific target. Rather than performing a manual operation, a target can be entered into the system which will wait for them to browse to an appropriate website and then perform the required injection of malicious code into their traffic stream. As such, this could be described as ‘hacking on easy mode’. The key point made by the new report is not about the ideas behind network injection. That's been well-known for a while, and the NSA's and GCHQ's "Quantum Insert" packet injection system has been talked about recently. The main revelation here is that there are commercial vendors selling this technology to all sorts of law enforcement folks, meaning that it's probably widely used with little oversight or transparency. And that should be a pretty big concern: These so-called “lawful intercept” products sold by Hacking Team and FinFisher can be purchased for as little as $1 million (or less) by law enforcement and governments around the world. They have been used against political targets including Bahrain Watch, citizen journalists Mamfakinch in Morocco, human rights activist Ahmed Mansoor in the UAE, and ESAT, a U.S.-based news service focusing on Ethiopia. Both Hacking Team and FinFisher claim that they only sell to governments, but recently leaked documents appear to show that FinFisher has sold to at least one private security company. With all the attention on NSA/GCHQ surveillance, it's good that people are recognizing just how powerful some of these tools are. But we ought to be quite concerned about how ordinary law enforcement around the globe is making use of these tools as well, often with much less oversight and even less accountability.Permalink | Comments | Email This Story

Read More...
posted 16 days ago on techdirt
The situation in Ferguson seemed briefly like it was getting better last Thursday, but that didn't last long. Over the weekend, the militarized and threatening police fired tear gas at protestors and continued to escalate the situation, rather than de-escalate it. The governor declared a state of emergency and instituted a curfew -- which created some more problems, and resulted in continued protests, but also some looting. In the last few hours, however, things have gone from bad to worse again. Police went back to arresting journalists, including Robert Klemko from Sports Illustrated and Rob Crilly from the Telegraph (who, believe it or not, is the "Pakistan and Afghanistan correspondent" for that paper -- now reporting live from... Ferguson, Missouri). While both were quickly released, police appear to be quite aggressive towards reporters. Chris Hayes, the MSNBC TV host reports that he was threatened with being maced: Riot cop to me just a few minutes ago: "Get back! Or next time you're gonna be the one maced." — Christopher Hayes (@chrislhayes) August 18, 2014 A live stream from the local radio station KARG (Argus Radio -- which is a local volunteer run radio station that has been doing amazing work) caught police screaming, "Get the fuck out of here or you're going to get shelled with this" while pointing a gun at the reporter. Many reports claimed that he was saying, "You're going to get shot," but it's pretty clearly "shelled." Not sure it really makes a huge difference. As you can see from the video (thankfully clipped and uploaded by Parker Higgins), another police officer, "Captain Todd," claims that the lights from the reporters are the problem, not that that somehow makes it okay to point guns at reporters and threaten to "shell" them (or to arrest them). Meanwhile, Ryan Reilly of the Huffington Post reports that reporters were ordered to "leave the area and head back where we wouldn't be able to witness anything for ourselves." We are being told to leave the area and head back where we wouldn't be able to witness anything for ourselves. — Ryan J. Reilly (@ryanjreilly) August 18, 2014 All of this really ought to make people wonder: if this is how the police act when they know the world is watching them and live streaming what they're doing, how do you think they act when no one is watching? The photos from Ferguson feel unreal, but are, in fact, quite real: Biggest barrage of gas so far. Multiple flashbangs #Ferguson pic.twitter.com/EXJzmj3lKZ — Jon Swaine (@jonswaine) August 18, 2014 The situation has become so ridiculous that Amnesty International has sent in a human rights team, saying this is the first time ever that the group has done so inside the US. Think about that for a minute or two... The situation in #Ferguson has prompted us to send human rights teams. First time we've deployed inside the US. http://t.co/09HQClqy76 — Amnesty New Zealand (@AmnestyNZ) August 18, 2014 And then recognize that the press are almost certainly being treated significantly better than the residents who are protesting.Permalink | Comments | Email This Story

Read More...
posted 16 days ago on techdirt
This week, the intelligence community carried on with its attempts to suppress information about CIA torture without acknowledging that the actions, not the information, are the real problem. After they claimed that terrorism was "surging", an anonymous commenter won first place for insightful by pointing out that this is yet another contradiction in their argument: Wait, I thought these "advanced" integeration was done to reduce terrorism, so how is terrorism at an all time high, with the "SUCCESS" of these programs? As for government secrets that have been revealed, this week we learned that Syria's 2012 internet blackout was caused by the NSA. Another anonymous commenter won second place for insightful by putting this in the favored terms of fearmongers: One month previous to this outage, Defense Secretary Panetta was warning of a future "cyber Pearl Harbor". ( http://www.defense.gov/transcripts/transcript.aspx?transcriptid=5136 ). He forgot to mention that we'd be playing the part of the Japanese in this Pearl Harbor re-enactment. Of course, the intelligence community doesn't have a monopoly on government secrecy — this week, the White House changed the rules to give lobbyists even more access to committees set up by the USTR, while ensuring they remain almost entirely impenetrable to the public. Our first editor's choice for insightful goes to Lonyo for turning around the free speech argument that so often accompanies the accommodation of lobbyists: Ask to be on the committee. If they say no, then sue over your right to free speech. For our second editor's choice, we head to our post about Intellectual Ventures looking to sue wind power producers. Given the infamous troll's history, Josh in CharlotteNC suggested taking a closer look at the patents in question: Prior art from somewhere between 1900 years ago to as much as 3800 years ago: http://en.wikipedia.org/wiki/Windmill Okay, on to the first place for funny, and back to the NSA. After Ed Snowden commented on his own surprise at the agency's inability to track all the clues he knows he left for them and figure out what he took, Violynne realized they might be forgetting about an extremely useful and informative source of information: Here's a pro-tip to the NSA: look at the file's metadata. Next, we've got another anonymous commenter, this time with a response to the recording industry executive who claimed that blocking sites he doesn't like isn't censorship: I'm strongly against censorship and anyone who says otherwise should have their comments removed from the internet. For editor's choice on the funny side, we head to our post about the NYPD wildly overreacting to a parody tweet and a prank, even suggesting the whole thing could have somehow been a dry-run for an attack. One anonymous commenter perfectly summed up how silly the whole thing was: This time it was a parody tweet, next time it could be a TERRORIST THREAT! Finally, we've got a comment from Michael musing on the future of filters and search algorithms online: Dear Google, My name is Missouri Ferguson. Recently, I have noticed a lot of links appearing relating to my name (well, my last name a comma and my first name) and these links appear to be very negative. Since I am an EU citizen, I would like to invoke my right to be forgotten and have you suppress all of these links from your search results. Thank you. That's all for this week, folks! Permalink | Comments | Email This Story

Read More...
posted 17 days ago on techdirt
Five Years Ago: An entertainment industry lawyer (who now works for the MPAA) tried to make the ridiculous argument that people disliked the RIAA because they hated the music business. We argued, in response, that it seemed a lot more likely that people hate the RIAA because of its actions, which included ripping off musicians and suing fans. But, you know, everyone's got opinions. And, of course, the fact that the RIAA was getting million dollar plus awards against people sharing two dozen songs really endeared them to the public as well. Speaking of which, the DOJ went on record saying that awards of $80,000 per song for sharing a song didn't seem all that oppressive or unconstitutional. We also had a story about how the Premier League's fear of the internet was a perfect case study in what not to do. Five years later and it's clear that the Premier League has learned... absolutely nothing. There was some bad news on the copyright vs. innovation front as copyright was winning out. In a critical case, an appeals court overturned a lower court ruling and declared that a DVD jukebox backup system infringed on copyrights by breaking DVD DRM. This was the same week that a judge issued an injunction against another DVD copying product, RealDVD. On the flip side, we had a story about copyright scholar William Patry pointing out the obvious: it's not copyright that creates value, but people's willingness to pay for something. This was also the introduction of Tom Bell's wonderful Mickey Mouse Curve for copyright, which continues to show up in various debates on copyright terms. There was also a really good fair use ruling, involving a book of monster movie posters, with a court ruling that the use of the posters was fair use, even though it used the entire post images and the work was a commercial effort. That ruling remains a key one for fair use based on the work being "transformative." Guess what? The FCC was ignoring the public again. It had set up a bunch of "workshops" to discuss its national broadband plan, but nearly all of the speakers were associated with... big broadband players. Because, of course. There were also a series of... just wacky things happening this week five years ago: Insurance company ICBC sued a website, saying it was infringing by telling people how to avoid having their claims denied. RSA threatened a guy with trademark infringement for daring to point out that the Navy Federal Credit Union website let people login from an unsecured page. RSA insisted that it was trademark infringement to claim the page wasn't secure. Yikes. On the trademark front, we had Walmart trying to abuse trademark law to shut down a union website. Big pharmaceutical companies were abusing patent law to seize and destroy legitimate generic drugs while in transit. And a very angry patent-loving guy in Oregon, nicknamed the Patent Hawk (who stops by here on occasion to hurl insults) tried to file an amicus brief in a key Supreme Court case on software patents. For reasons that still don't make sense, he filed the brief claiming it was on behalf of the entire state of Oregon, leading state officials to say they had no idea who he was and certainly didn't authorize such a brief. Meanwhile, Encyclopedia Britannica tried to abuse some patents it had covering GPS functionality, but failed (thankfully). Ending on some good news: a court in New Hampshire said that demanding a settlement after filing a bogus lawsuit was a form of extortion. It's too bad more courts don't agree just yet. And... it's been five years since RECAP launched, saving us all a bunch of money on PACER, the electronic court docketing system -- a system that still should be free. Ten Years Ago We were writing about giant patent troll Acacia using a bogus patent to threaten universities that streamed content online. Meanwhile, we noted that patent battles might slow innovation in anti-spam offerings. Ten years ago, eBay ended up getting 25% of Craigslist after an early employee sold his shares. That resulted in a rather nasty legal fight four years later. A decade ago, we wrote about a good explanation for how innovation and intellectual property didn't work well together, talking about how important it is to get ideas and information out into the world, rather than hoarding it. Also, there was a discussion by some who wondered if it could really be infringement to download TV shows that were broadcast over the air, since it would be hard to argue there was any harm at all. Of course, ten years later (in the wake of the Aereo decision and many other legal rulings) this argument seems fairly naive. But, still, there is a point there. On the wireless front, people were arguing for much more open spectrum a fight that goes on today, while also speculating about whether or not Walmart might put wireless towers on each of its stores and create its own national wireless ISP (that didn't happen). Fifteen Years Ago The billions that were sunk into the global satellite phone company Iridium went up in smoke as the company filed for Chapter 11 bankruptcy. Search engine AltaVista (remember them?) tried to stay hip by offering free dialup access (remember dialup?). Red Hat had its IPO. We weren't too sure about this concept known as "electronic books", but we also weren't very surprised that Microsoft Internet Explorer had been crushing Netscape, since Netscape had basically given up on improving its browser. Seventy-two years ago Famed actress Hedy Lamarr received US Patent 2,292,387 on a "secret communications system" that was basically spread spectrum frequency hopping -- a concept that became a key part of many important wireless technologies, including WiFi, Bluetooth and some mobile phone systems.Permalink | Comments | Email This Story

Read More...
posted 17 days ago on techdirt
For this week's awesome stuff post about interesting crowdfunding projects, we've got three campaigns that have to do with... leaving the ground behind in some form or another. I'm not sure any of them are practical, but let's not let reality get in the way of fun ideas. The OverDrive Flying Car Where's my flying car? That line has been repeated for decades, after the futuristic promises of the 1950s never really came to be. Every so often someone tries it, though, and the latest is The OverDrive -- a sports car that turns into a flying car. Well, in theory. At this point, it doesn't seem to be much beyond a plan and a remote controlled-scale model. It's kind of a moonshot idea and you'd have to believe in the guy behind it to bet on it -- especially since you're not actually buying much here, just supporting his vision. So far, it doesn't look like he's going to get anywhere near the $250,000 he's seeking, but dreamer's gotta dream. Hoverbike Okay, moving slightly down the "ambitiousness" scale, how about a Hoverbike that is kind of like a giant quadcopter drone... but that a person can (theoretically) ride. That's sort of the idea, though what these guys are really selling is the 1/3-scale model drone. In other words, it's really just a drone that they're selling, with the idea that one day they'd like to make a hoverbike version of it. Ultrasonic Levitation Moving way, way, way, way down the ambitiousness scale to something that's actually more plausible, there's the ultrasonic levitation device that will allow you to make tiny, little things float in the air. Kinda neat in a science-experimenty way. The guy behind it hopes that it will inspire people to build real hoverboards, but I wouldn't bet on it. That's it for this week. Feel free to go outside without too much worry about flying cars and hoverbikes zooming around just yet...Permalink | Comments | Email This Story

Read More...
posted 18 days ago on techdirt
We cover an awful lot of trademark insanity here at Techdirt and it's funny how often the misguided attacks, threats and lawsuits all seem to boil down to one party not understanding that there typically has to be some actual use in commerce, and a 'likelihood of confusion' for the law to apply. The misunderstandings covered usually involve the issue of a permission culture gone rogue, where some folks think they can own common words and/or phrases outright just by applying for a trademark on them. That isn't the case, of course, as trademark law was predominantly instituted to protect customers from being misled about the brands to which they are loyal or about which they have reasonable expectations. Which makes it really sad to see the makers of Clean Slate software, used to essentially erase a computer's history, going after Warner Bros. because characters in The Dark Knight Rises identified software to erase a person's past as "clean slate" software. The company's suit was first dismissed because, you know, Warner Bros. doesn't actually make any software related to the claim. "I think the fatal flaw in Fortres Grand's case has to do with correctly identifying the exact product that Warner Bros. has introduced to the market — a film, not a piece of software," wrote an Indiana federal judge in a May 2013 decision to dismiss the case. Derp. But, apparently not willing to back down, Fortres Grand claimed the judge had relied too much on the fact that Warner Bros. isn't a competitor, and appealed the case to get the seven-factor test applied: similarity of the marks, the arena of commerce in which the marks are used, how carefully the marks were used to avoid confusion, the strength of the marks, how the marks will be perceived by customers and - oh, forget it, the damned software mentioned in the movie is freaking fictional. The 7th Circuit Appeals court... was not amused. "The problem here is that Fortres Grand wants to allege confusion regarding the source of a utilitarian desktop management software based solely on the use of a mark in a movie and two advertising websites," writes the appellate judge. Warner Bros. "does not sell any movie merchandise similar to Fortres Grand's software which also bears the allegedly infringing mark. Fortres Grand mentions that Warner Bros. sells video games. Desktop management software and video game software may be similar enough to make confusion plausible, but Fortres Grand does not allege that the video games bear the "clean slate” mark. Nor does Fortres Grand allege that desktop management software is a commonly merchandised movie tie-in (as a video game might be)." That's a nice way of essentially saying: "Why are you crazy people wasting everyone's time with this?" Just to be clear, Fortres Grand filed a lawsuit to combat a piece of entirely fictional software. Fictional. It doesn't exist. Like...at all. But Fortres Grand went to court against it. Bang up job guys. Permalink | Comments | Email This Story

Read More...
posted 18 days ago on techdirt
Photography Is Not A Crime again reports on police acting like they have the right to confiscate people's cameras and phones in order to "secure" recordings of apparent police misconduct. Police in Northern California beat and tased a mentally ill man before siccing a dog on him, then turning on citizens who recorded the incident, confiscating cell phones and in one case, ordering a witness to delete his footage. But one video survived anyway, slightly longer than two minutes, where a cop from the Antioch Police Department can be heard saying he wants cameras confiscated right before the video stops. The video is shot at a distance that makes it unclear as to how much damage is being done, although you can hear the meaty sound of someone being struck several times, as well as the nearly nonstop barking of the police dog and crackling bursts of Taser fire. Being filmed vertically doesn't help, although I'm generally of the opinion that simply collecting footage that wouldn't normally be captured is always useful and whatever makes the person filming most comfortable (seeing as it's generally a very uncomfortable situation) is the method they should use. The recording also shows the arrival of more officers, as though the nearly invisible civilian at the bottom of the cop pile (which begins with 5 officers and a police dog) was on the verge of escaping the whole time. Towards the end of a video, an officer pulls his squad car directly in front of the "scene" in an obvious attempt to limit the amount of onlookers with damning recordings. Shortly after that (and after the video ends), the cops started attempting to seize "evidence." A second witness ABC7 News spoke to says officers began confiscating cellphones from anyone who shot video of the incident. An officer asked for his cellphone after he shot video and the witness said, “Then he took my phone anyway because I didn’t want no problems. He emailed the incident to his phone. The first witness said, “They didn’t take no for an answer apparently because they pulled one lady out of her vehicle to get it, and she wouldn’t give it up and they were about to arrest her and finally they let her go because I believe she gave it up.” However, a third witness told ABC7 News he was ordered to erase his video. So he did. He said, “They were being kind of controlling, like demanding, ‘erase your phone’ and they were trying to take people’s phones away.” No surprises here. Excessive force deployed, followed by a roundup of "witnesses," which actually means recording equipment and not human beings. The police have no right to do this, but in far too many cases, they assume the public either doesn't know this, or can easily be intimidated into complying with the unlawful request. Here's the absolute bullshit the police department handed over in defense of its ad hoc phone confiscation: Antioch police told ABC7 News in a statement, “If a person is not willing to turn it over voluntarily, an officer can sometimes seize the device containing the video. The police would have to get a search warrant to retrieve the video from the device.” As Carlos Miller points out, this is completely wrong and has been wrong for a few years now. Guidelines from the Department of Justice passed down in 2012 state the exact opposite. Police can ask for compliance, but they need to be extremely careful in how they ask. A general order should provide officers with guidance on how to lawfully seek an individual’s consent to review photographs or recordings and the types of circumstances that do—and do not—provide exigent circumstances to seize recording devices, the permissible length of such a seizure, and the prohibition against warrantless searches once a device has been seized. Policies should include language to ensure that consent is not coerced, implicitly or explicitly… [...] Warrantless seizures are only permitted if an officer has probable cause to believe that the property “holds contraband or evidence of a crime” and “the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.” Cops tend to claim that footage of police misconduct is "evidence" in order to justify warrantless cellphone seizures. It may very well be, but it's the sort of evidence they want to hide, rather than the sort of evidence they'd like to retain. Note that the above officers ordered people to "delete" recordings, something they wouldn't do if the recordings held actual evidence of a crime (or at least, a crime not committed by uniformed officers). Either way, crime or no crime, the police can't just start seizing phones as "evidence." The DOJ guidelines go on to say: The Supreme Court has afforded heightened protection to recordings containing material protected by the First Amendment. An individual’s recording may contain both footage of a crime relevant to a police investigation and evidence of police misconduct.The latter falls squarely within the protection of First Amendment. See, e.g., Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (“There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment.”). The warrantless seizure of such material is a form of prior restraint, a long disfavored practice. So, cops know -- or should know -- they can't do this. And I firmly believe most of them know this. The problem is that they just don't care. The quickest "fix" is swift seizures of recordings using baseless arrest threats and other forms of intimidation. It's an instinctual closing of ranks. Once the requisite dozen or so officers needed to affect an arrest had been met, one of the officers originally in the one-sided melee stands back and says he wants "that cellphone and that cellphone." Well, he can't have them. Not legally. And yet, officers apparently got what they wanted -- rather than what they could legally obtain -- in the end.Permalink | Comments | Email This Story

Read More...
posted 18 days ago on techdirt
There are plenty of food additives that are just fine to eat, and many of them even have scary-sounding chemical names. This doesn't mean that all food additives are bad OR that all food additives are good. While it would be much simpler to make generalizations and label things either good or bad, it's not quite that simple, unless you want to only eat food with a very limited shelf life. Some preservatives reduce food waste and have undetectable effects on the nutritional benefits of the foods they preserve. On the other hand, there are some toxic substances that should be avoided, and they can be all-natural (eg. arsenic) or have some anthropogenic origin. Have you ever seen pears individually wrapped in paper? Did you know there are chemicals impregnated into that paper? Do questions make these facts seem scarier than they should? [url] The traditional "paddy method" for growing rice in a flooded field can increase the amount of arsenic that the rice ultimately contains. Using less water to grow rice doesn't seem to be a solution because rice seems to absorb other toxic metals in the soil, like cadmium, instead. The amounts of these metals aren't that high, but it might be a good idea to try to remove these elements from farm soils before growing rice in fields that might have elevated levels of heavy metals. [url] Urban gardeners who want to grow their own food within city limits might want to test their soil for contaminants like lead, other heavy metals and cleaning solvents. Fortunately, there are a growing number of resources to help urban gardeners to know what might be in their soil and the possible hazards to avoid. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

Read More...
posted 18 days ago on techdirt
The big fight in the net neutrality battle is whether or not the FCC will agree to reclassify broadband under Title II, effectively arguing that it's a "common carrier" subject to certain specific rules. While earlier this year many insiders insisted this was politically impossible, over the last few months, it's become increasingly feasible from a political standpoint. That doesn't mean it will happen. In fact, it's probably still a longshot, in part because I can't remember the last time an FCC chairperson didn't seek "the easy way out" rather than making a tough decision and standing up for what's right. However, the latest to jump on the "reclassify" bandwagon is the NY Times editorial board, making a clear case for reclassification. As a candidate in 2007, Mr. Obama rightly opposed letting telecommunications companies charge “different rates to different websites.” But Tom Wheeler, the chairman of the F.C.C. who was appointed by Mr. Obama, has proposed troubling rules that would allow cable and phone firms to enter into specials with companies like Facebook and Google as long as the contracts are “commercially reasonable.” These rules would effectively allow telecoms to divide the Internet into fast and slow lanes. The commission has a better option. It can reclassify broadband Internet service as a telecommunications service, which would allow regulators to prohibit phone and cable companies like Verizon and Comcast from engaging in unjust or unreasonable discrimination against content. The F.C.C. wrongly classified broadband as an information service during the administration of George W. Bush, a decision that has limited the F.C.C.’s ability to protect consumers and smaller Internet firms. Mr. Obama is sending Mr. Wheeler and his fellow commissioners a message. They should pay attention. Of course, one editorial board opinion might not seem like that big of a deal, but (whether for good reasons or bad), the NYT's editorial board still holds a fair amount of sway within DC circles. In other words, this is at least another partial step forward in driving home the idea that reclassifying broadband is both the right thing to do and completely politically feasible.Permalink | Comments | Email This Story

Read More...
posted 18 days ago on techdirt
As the Ferguson, MO saga continues to unfold, there are certainly lessons to be learned. An overly-militarized police force coupled with the oppression of free speech and the press aren't good ways for managing an angry population, for instance. Conversely, a police force that actually connects and serves with the community they're tasked with policing produces far better results. And, of course, we're all forced to have yet another discussion about race-relations in this ostensibly free and equal country of ours. These are good conversations to have. Strange calls to video game companies that will be releasing a long-produced game featuring militarized police, insinuating that they must somehow be cognizant of Ferguson now that it's happened, are not useful in any way. That link serves as the kind of Kotaku article that features the gaming website occasionally going completely off the rails and twisting itself into angsty-wrong for reasons unknown to this writer. The piece starts with some of the frightening images we've all seen from Ferguson and then tailspins into this: Into a world where Ferguson has now happened, where people around the world are confused and outraged at this type of police appearance and presence, EA is going to release a video game about heavily-armed police blowin' shit up on the streets of the USA. Nathan wrote about people's concerns (and EA's responses) with Battlefield Hardline's subject matter earlier this year, but that was a piece inhabiting a vacant plot of the media and cultural landscape, where the only thing present were those concerns. Now, we have some reality to sit alongside them. Ah, yes, fantastic point. The company that made a fictional game set in real-world American locales must now be concerned because said game features aggressive and militarized police and Ferguson just happened! Because prior to Ferguson, police were never militarized. Before Ferguson, a militarized police forces had never scared the shit out of everyone. That whole thing after the Boston Marathon bombing where the police shut down a major city and rolled SWAT tanks through the streets? Never happened, yo. Police brutalizing civilians wasn't a thing until Missouri. Except that none of that is true. The game is a work of fictionalized entertainment and, just because the subject matter might somehow remind some folks of a police issue this country is facing, there isn't a whole lot to do from EA's standpoint. As this article admits, before then wishing upon a rainbow that somehow EA would treat their game product like not-a-game product. So what are EA to do? Well, there's not much they can do, or to be honest anyone should ask them to with regards to Hardline. The game was announced months ago and is well on its way to being completed...What I'd hope EA do, however, and this goes for all video game publishers, is to take the subject matter a little more seriously next time they want to approach it. There's a deeply unsavory element to casting police as assault rifle-toting warriors, one that in the wake of Ferguson - and its inevitable successors - video game companies would do well to remember and be a little more careful with. I mean, you can say that if you want, but then you had damned well better be calling for the same thing when it comes to the issue of crime in this country and Grand Theft Auto, the issue of war in this country and something like a third of the games ever produced, the issue of animal cruelty and trades-workers in this country and the Mario Bros. franchise. Or, instead, we could realize that slamming makers of entertainment and art for not flinch-reacting to the news of the day, even really important news, is probably a silly thing to do. Permalink | Comments | Email This Story

Read More...
posted 18 days ago on techdirt
Recently, the FCC released most of the comments it has received so far -- commenting is still open for a few more weeks -- concerning its (pretty bad) net neutrality proposal as XML files for people to analyze. There have been a few attempts, but the most interesting so far has to come from data analytics firm Quid on behalf of the Knight Foundation and revealed in an NPR article. The key reasons pulled from the comments that standout and cluster are definitely interesting and worth noting, but what's much more noticeable is what's missing from the map: any significant argument against having the FCC step in and stop the broadband companies from screwing up the internet. The folks who put this together note that there were certainly some such comments, but just not enough to matter: The comments did include "anti" net neutrality positions. They included statements opposing the "FCC's crippling new regulations," as commenters wrote. But they came from a form letter, or template, and all comment clusters that came from templates (five separate ones in all, four of five supporting net neutrality) were collapsed into a single node. Taken with the entire body of comments sampled, there weren't enough unique or organic anti-net-neutrality comments to register on the map. The analysis shows that about 50% of the comments came from templates (again, many of them coming from "pro net neutrality") folks, but it's fascinating to see that once you get outside of the form letters, the number of anti-net neutrality letters basically doesn't register. That's kind of interesting to me, because I've actually been building a list of just those letters (I've found a few) and trying to reach out to the folks who wrote them to find out what made them write those letters. I've made contact with a few, but as soon as I explain what I'm doing... they all stop responding. I hope to have more on this soon. Either way, it seems fairly clear that, of the people who actually took the time to express their full opinions about net neutrality, almost all of them are in favor of having the FCC actually do something real. The only question is if the FCC will ever actually listen.Permalink | Comments | Email This Story

Read More...
posted 18 days ago on techdirt
A random factoid about my past that some people don't know is that I have a degree in "industrial and labor relations," which involved an awful lot of learning about the history of unions, collective bargaining and the like. While I firmly believe that most unions today are counterproductive (frequently holding back innovation and flexibility), the idea certainly made quite a lot of sense in the early days, in which you had parties (giant employers) with near total market power over employees who had absolutely no market power. Basically, many companies were market abusers, and they abused freely. Organizing workers for collective bargaining was a way to even the playing field slightly. That it later resulted in vast amounts of corruption and cronyism, let alone hindering the way in which companies could innovate and adapt, are certainly big issues to be concerned about -- but there were reasons why that happened as well (driven by leadership on both sides). But, still, when you have a vast mismatch in market power, with one side being an effective monopoly, and the other side being dispersed among many people, there is a certain appeal to collective bargaining. And that appears to be the root appeal of an idea percolating over on Reddit right now for an ISP Consumers Union, inspired by a Reddit comment from a few days ago. The basic thinking is that if the FCC and Congress aren't all that interested in preventing big broadband company fuckery, then perhaps the consumers should take it into their own hands, join forces, and negotiate as a unified force with the ISPs. A bunch of folks have jumped into the discussion and are talking about a variety of different facets, from what the "union" would have the power to do to the legal issues to the administrative aspects of the whole thing. There's something profoundly interesting about this from a few different angles. I have no idea if something like this will actually come together for real, let alone work, but the effective "market conditions" do match those that led to the rise of organized labor, with a few "monopolists" abusing their power to treat people (in that case, workers, in this case, broadband subscribers) poorly. The situation is certainly not identical, but there are parallels. Broadband access today is certainly considered by many to be as important as a job a century ago. In fact, many consider it essential to having a job. And, yet, there remain very few broadband providers and the big ones all have pretty long histories of abusive practices. That said, the "abuses" certainly pale in comparison to the way that big oil and steel companies treated workers in the late 19th century, but it's not a completely crazy concept. Would people care enough to make a difference? And what legitimate bargaining power would they have? People could "strike" by cancelling their service. Or they could organize to move en masse to a competitor -- if there is a competitor. The whole concept is undeniably fascinating. While I'd still worry about the same ills that later plagued (and still plague, though not always to the same levels) organized labor, one would hope that with some knowledge of what went wrong there, an ISP Consumers Union could avoid some of those pitfalls. Frankly, the biggest problem with unions (and, again, this was often driven by company management) was viewing "management" and "labor" as being diametrically opposed forces, rather than different parties with different needs but an overall focus on a similar goal. That is, even when labor hated management, driving a big company out of business entirely was certainly worse than figuring out ways to get things done. The problem was that the two sides were often so antagonistic, that bargaining itself became a war of spite, rather than each side understanding the overall issues, and working out compromises so that everyone could be better off. It's entirely possible that an ISP Consumer Union could eventually be plagued by similar issues -- making unwarranted demands on broadband providers that make it impossible for them to remain in business. But, as a way to hack around the current (failed) politics of net neutrality, and present an alternative option, one that is much more bottom up than top down, is absolutely fascinating. At the same time, it's also profoundly depressing that broadband consumers of today have that much in common with laborers at the dawn of the industrial revolution...Permalink | Comments | Email This Story

Read More...
posted 18 days ago on techdirt
If you haven't yet, you really should watch the video we pointed to recently of Australian Attorney General George Brandis trying to explain his internet data retention plan when it's clear he has no idea how the internet works. It's the one where he's asked if it will track the web pages you visit, and Brandis vehemently insists that it will not, but that it will track the web addresses you visit. Some people have said that perhaps he meant it won't record the actual content on the pages, but just the URL (which might matter if it's dynamic pages), but later in the conversation, he also implies (almost clearly incorrectly) that he means it will just track the top level domains, not the full URLs. Here's a reminder snippet: Brandis: Well, what we'll be able... what the security agencies want to know... to be retained... is the... is the electronic address of the website that the web user is visiting. Host: So it does tell you the website. Brandis: Well... well... it tells you the address of the website. Host: That's the website, isn't it? It tells you what website you've been to. Brandis: Well, when... when you visit a website you... you know, people browse from one thing to the next and... and... that browsing history won't be retained or... or... or... there won't be any capacity to access that. Host: Excuse my confusion here, but if you are retaining the web address, you are retaining the website, aren't you? Brandis: Well... the... every website has an electronic address, right? Host: And that's recorded. Brandis: And... um... whether there's a connection... when a connection is made between one computer terminal and a web address, that fact and the time of the connection, and the duration of the connection, is what we mean by metadata, in that context. Host: But... that is... telling you... where... I've been on the web. Brandis: Well, it... it... it... it... it... it... it records what web... what at... what electronic web address has been accessed. Host: I don't see the difference between that and what website I've visited. Brandis: Well, when you go to a website, commonly, you will go from one web page to another, from one link to another to another, within that website. That's not what we're interested in. Host: Okay. So the overarching... if I go to... SkyNews website, it'll tell that, but not necessarily the links within that that I go to? Brandis: Yes. While it's a bit of a third hand story, Reason recently did an interview with Australian Senator David Leyonhjelm (who is against data retention, and describes himself as libertarian). Towards the end of the interview, he discusses data retention and tells a very troubling story about how those pushing for data retention had no idea what a VPN is. The story involves a much more knowledgeable government official -- which Gizmodo Australia suspects is Communications Minister Malcolm Turnbull -- demonstrating a VPN and leaving them all dumbfounded: The other one that's causing a fair bit of grief is a metadata retention plan, the equivalent of what your NSA does. We don't have metadata retention at the moment and the agencies have been saying, "Oh, well we should have it. You can't use it if you haven't got it," sort of thing. But I spoke to one of the ministers last week about this because he does know what "metadata" means—he knows quite a lot about the Internet and how it works—He said to me people who are asking for this data, people who are thinking this is a good idea, actually have no idea what they're asking for. They don't know what they're going to do with it. They don't know what the implications of requiring it are. They haven't really thought this through. He gave them a demonstration on a VPN [virtual private network] and said, "By my IP address, tell me what you can find out about me now." And they had no idea there was such a thing as a VPN. It indicates to me that these people are not well-informed enough to make these kinds of decisions. As it stands, it may be that the government may only require the Internet companies to store the IP address of the originating Internet use, so they'll know what computer you're from and what IP you're working from, which is not a lot different from keeping a record of the phone you're calling from. So if that's the case, it's probably not going to pose too much alarm. He's a minister and he knows what he's talking about. But he's surrounded by people who don't know what they're talking about who think that they need something more. We don't know yet where this will end up. It does have the potential to be very dangerous. Now, the story does not make it entirely clear about who he's talking about. It could be read to be Brandis or his staff that didn't know about VPNs. Or, much more troubling, it could be read to be the intelligence community -- though I find that hard to believe. Either way, however, it does suggest a sort of blind adherence to the "collect it all" philosophy of intelligence gathering, without any real understanding of the issues or consequences.Permalink | Comments | Email This Story

Read More...
posted 18 days ago on techdirt
Zeynep Tufekci has a really great post talking about how much algorithmic filtering plays a role in how we view the world -- with a specific focus on what's happening in Ferguson, Missouri. As more than a few people have pointed out, much of the public discussion about the mess in Ferguson was happening on Twitter -- while it seemed eerily absent from Facebook (and the mainstream media at first...): And this is what happened to “Ferguson” on Twitter: Profile of a social media phenomenon. Minute by minute tweets about #Ferguson in the last 12 hours. pic.twitter.com/RnZ67BdxDl — Patrick Ruffini (@PatrickRuffini) August 14, 2014 And then I switched to non net-neutral Internet to see what was up. I mostly have a similar a composition of friends on Facebook as I do on Twitter. Nada, zip, nada. No Ferguson on Facebook last night. I scrolled. Refreshed. She notes that eventually the story did break through on Facebook, but not until the next morning when Facebook's algorithm finally caught up to the idea that something important was happening. This morning, though, my Facebook feed is also very heavily dominated by discussion of Ferguson. Many of those posts seem to have been written last night, but I didn’t see them then. Overnight, “edgerank” –or whatever Facebook’s filtering algorithm is called now — seems to have bubbled them up, probably as people engaged them more. But, as she notes, it's entirely possible that Facebook's algorithm wouldn't have ever found it important if the story wasn't gaining more and more attention on Twitter. And, of course, even as the story was being told on Twitter, there are questions about whether or not Twitter's algorithms suppressed some of it as well. "#Ferguson" only very briefly trended nationally, though it did trend in certain local markets. So, there were fewer chances for people not already following the news to see it on their “trending” bar. Why? Almost certainly because there was already national, simmering discussion for many days and Twitter’s trending algorithm (said to be based on a method called “term frequency inverse document frequency”) rewards spikes… So, as people in localities who had not been talking a lot about Ferguson started to mention it, it trended there though the national build-up in the last five days penalized Ferguson. As she points out: Algorithms have consequences. This is not unlike Eli Pariser's idea of the "filter bubble" and the idea that companies may be effectively nudging you in ways that may not actually be that great. Frankly, that argument is a little strained, since it suggests that everyone only lives within these bubbles, and doesn't do things that exposes them further, but there is a valid point at the core of it worth exploring. Tufekci notes, however, that this is also why net neutrality is so important. Because without it, not only do you have to worry about internet services determining what's important to you, but also the broadband infrastructure as well. And both will be focused on what enables them to profit the most. She points out the example of locals live-streaming what the police in Ferguson were doing -- including when the police announced over loudspeakers to "turn off their cameras" (a fairly chilling request in its own right). And she ponders what happens to those live streams on a non-neutral network: But I’m not quite sure that without the neutral side of the Internet—the livestreams whose “packets” were fast as commercial, corporate and moneyed speech that travels on our networks, Twitter feeds which are not determined by an opaque corporate algorithms but my own choices,—we’d be having this conversation. Obviously, there are lots of other issues at play in Ferguson that go well beyond the internet and things like net neutrality. But they are related. The discussion of those issues -- race, police brutality, police militarization, free speech, etc. -- are all enabled and enhanced by the issues of the internet and what it enables... and what it stifles. If the police could have kept this story from getting attention, it's likely that (1) there would have been even more abuse and (2) that all of those other discussions wouldn't be happening. Who knows if many of those discussions will be able to create real change, but you at least need to have that discussion to start the process of change. And if the technology is getting in the way of that, through non-neutral networks or algorithms that ignore important events like this, it seems like a problem worth solving, if only to speed up all those other important conversations as well.Permalink | Comments | Email This Story

Read More...
posted 18 days ago on techdirt
"If you see something, say something" is the (hilariously trademarked) phrase that has become something of a ridiculous "spy on your neighbors" cliche in the years following September 11, 2001. Law enforcement types use it all the time. However, apparently, they don't want you to say (or, more specifically, tweet) something, if the "something" you see happens to be the police themselves. We've written so many stories about uninformed police insisting that it's illegal to photograph or videotape them in action -- even though they're completely wrong about that. Amazingly, even the Justice Department has found itself constantly reminding police that it's perfectly legal for citizens to photograph and videotape police. However, over in Washington State, the police are apparently taking a preemptive approach to citizen criminal-enablers and their mobile phones. They've kicked off a marketing campaign telling people not to share photos of SWAT teams and police on social media. Police in Washington state are asking the public to stop tweeting during shootings and manhunts to avoid accidentally telling the bad guys what officers are doing. The "TweetSmart" campaign began in late July by a coalition of nine agencies, including the Washington state patrol and the Seattle police, and aims to raise awareness about social media's potential impact on law enforcement. They claim, of course, that this is about not tipping off criminals about what's going on: "All members of the public may not understand the implications of tweeting out a picture of SWAT team activity," said Nancy Kolb, who oversees the Alexandria, Virginia, organization's Center for Social Media. "It's a real safety issue, not only for officers but anyone in the vicinity," Kolb said. But that seems ridiculous and unsupported in so many ways. First of all, it assumes that the "criminals" being gone after with SWAT teams are actively watching Twitter for the latest reports of SWAT teams mobilizing. Hell, you'd think it would be a lot "safer" for everyone else in the area to find out that there's something going down and to maybe stay inside until it's over. It seems a hell of a lot more likely that this campaign is really an underhanded way to shut down the public's civil liberties in overseeing what the police are doing by photographing and videotaping them. In fact, a spokesman for the Washington State police, Bob Calkins, more or less admits that this is all about stopping people from taping the police: "We have to respond with a smart phone almost as fast as we respond with a gun," said Calkins, who along with Kolb commended the Seattle Police Department for its use of social media. That seems rather chilling, especially given the number of times we've seen police claim that a phone might be a gun. Police across the country need to realize that they serve the public. Treating smartphones as guns and encouraging censorship doesn't seem to be achieving those goals. Indeed, as reporter Mónica Guzmán notes about all of this: When any entity that holds power over us encourages us to limit our expression for any reason, it is probably better for us to err on the side of expressing more than it would want than less. Guzmán also counters the narrative that the Washington Police want to spread. Calkins, the guy who talked about responding to a phone like a gun, claims that his feelings on this date back to the well-known manhunt in Lakewood five years ago: "I saw it personally as far back as Lakewood," said State Patrol spokesman Bob Calkins, referring to social media traffic during the manhunt for a man wanted for killing four officers in Washington state in 2009. At the time, people speculated online about why police were combing a Seattle park while a search was on for the man, Calkins said. The AP article says that this event contributed to the police's determination that they need to train people to shut up on Twitter. Yet Guzmán remembers the event very differently: During the 2009 manhunt of Lakewood, Wash., police shooter Maurice Clemmons, Seattleites were scared. Neighbors gave each other peace of mind by sharing what they saw, where, and where danger seemed to be headed, in real time. All that buzz drew attention to the effort, resulting in hundreds of tips to police from all over and a sense of unity that brought the city together in support of our officers. In other words, seeing the police and tweeting about it actually helped that situation, rather than hurt it. While the police in Washington may claim they're just trying to keep people safe by asking them to not tweet what they see, it really seems that the safety they're protecting is their own reputation.Permalink | Comments | Email This Story

Read More...