posted 18 days ago on techdirt
There's no shortage of existing laws protecting law enforcement officers. So, of course, there's no shortage of new legislation being introduced to further protect a well-protected subset of government employees. Using a nonexistent "War on Cops" as impetus, legislators all over the nation are submitting bills designed to make harming a cop more of a crime than harming anyone else. This isn't just happening at the state level. Last year, Colorado representative Ken Buck introduced a federal "Blue Lives Matter" law, which would have turned attacks on cops into "hate crimes." The bill is a ridiculous extension of protection to officers who aren't in any more danger than they were a decade ago, histrionic statements by various federal officials notwithstanding. Buck's bill has gone nowhere in the last year. It's been sitting in a House subcommittee since April of last year. But one bill's failure doesn't predict the future performance of similar legislation. As Reason's C.J. Ciaramella reports, a similar bill -- Florida rep Vern Buchanan's "Thin Blue Line Act" -- has cleared the House Judiciary Committee. The House Judiciary Committee advanced a bill Thursday, the Thin Blue Line Act, by a 19-12 vote that would make the killing of a state or local law enforcement officer during the commission of a federal crime an aggravating factor for juries to consider when weighing a death penalty sentence. All well and good, I suppose, although the bill is pretty much a carbon copy of Florida rep David Jolly's 2015 proposal, right down to the bill's name. Like Rep. Buck's bill, Jolly's made it as far as a committee referral before stalling out. Buchanan's bill, however, now has a greatly increased chance of being pushed towards the President's desk. But to what end, asks Ciaramella? The law apparently does nothing more than signal supporters' cop-supporting virtue. The legislation would be largely symbolic. Federal death penalty cases are exceedingly rare, and executions at the federal level are even rarer. The last federal execution took place in 2001, when Timothy McVeigh was executed for the Oklahoma City bombing. Most homicide cases are prosecuted by states. Congressman Bob Goodlatte seems to feel the bill will be most useful when deployed in terrorism cases, but otherwise admits practical applications will be few and far between. The bill has support from police unions but, more importantly, it certainly has the support of the DOJ and the President. This bill caters to Trump's "law and order" push and does a fair amount of sucking up to Attorney General Sessions himself. Attorney General Jeff Sessions introduced similar legislation in 2015, when he was a U.S. senator, saying "the alarming spike in violence directed against the men and women entrusted with ensuring the safety and order of our society must be stopped..." The "alarming spike in violence" Sessions was apparently referring to was the increase of police killed in the line of duty by one over 2014's total of 122… which itself was below the average for the preceding ten years (~150 per year). The bill's being tossed into a pretty receptive Congress. It won't really need the support of powerful police unions, though -- not when the head of the DOJ has previously expressed his legislative desire to give cops even more protection. Permalink | Comments | Email This Story

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Taser Inc.'s quiet takeover of evidence generation and storage -- through extensive body camera offerings -- was put on public display when the company rebranded as Axon. The company was willing to give away cameras in exchange for something far more lucrative: software licensing and footage access fees in perpetuity. Axon even nailed down a choice URL: Evidence.com. This is the portal to law enforcement body camera footage stored in Axon's cloud -- the real moneymaker for Axon. The cameras are just the gateway drug. But much of what's stored at Evidence.com could be considered public records. Much of what's stored there could also be subject to discovery by defense attorneys during criminal proceedings. But no one asked defense attorneys if this arrangement worked for them. It was enough that it worked for cops. Defense attorney Rick Horowitz has a problem with contractual agreements he's being asked to sign when attempting to gain access to records regarding his client. Instead of handing out files, prosecutors are handing out URLs. To obtain the records he needs, Horowitz is forced to use Axon's portal… and sign agreements with Axon before he's allowed to access anything. (via Simple Justice) [I]n the case of Evidence.com, such access does come from Axon. In fact, I have so far been prevented from obtaining the discovery in my juvenile case. Why? Because I refused to sign the license agreement with Axon to obtain access to their—not the city, county, or city and county’s, but Axon’s—website. Why did I do that? Because, among other things, The “Evidence.com Terms of Use” require me to promise certain things I will not promise. I can’t find a link to the Terms of Use online—there are links to a Master Agreement that apparently whoever purchases the use of the system signs, and to some kind of user manual (which I haven’t yet read)—so I saved the Evidence.com Terms of Use I was asked to sign here. The first thing that draws one up abruptly (again, aside from the fact that law enforcement is ignoring the law by disseminating juvenile records to Axon in the first place) is this: "You consent to Axon’s access and use of the Account Content in order to….improve Axon’s Products and Services. In addition, for content that is covered by intellectual property rights, like photos and videos (“IP Content”), you specifically give us the following permission: you grant us a non-exclusive, transferable, irrevocable, royalty-free, sub-licensable, worldwide license to use any IP Content that you post on or in connection with the Services (IP License)." The EULA may be boilerplate, but the situation is anything but normal. Horowitz doesn't care much for the fact that Axon's storage of court records and discovery documents is controlled solely by Axon by forcing users to waive a great deal of their rights in exchange for access. But it's even worse in this case, which involves a juvenile. California law provides extensive protections for the privacy of juveniles -- even those accused of crimes. But these appear to have been ignored by every law enforcement agency that agreed to do business with Axon. These are also being ignored by Axon, which treats all uploaded footage equally. It doesn't meet California's privacy standards -- a problem that only seems to concern those defending juvenile arrestees. [N]either Evidence.com, nor Axon—not even in its prior incarnation as “Taser International,” for that matter—are listed in WIC 827 as lawfully able to receive, or disseminate, juvenile records. No corporation is. [...] This is problematic not just because it means that law enforcement officers, and complicit District Attorney Offices—and, by the way, defense attorneys who signed up for the service, and thereby not only acquiesced, but agreed to give up certain rights regarding their clients’ data, too—have ignored the law. It is also problematic because, so far as I know, the courts are unaware of this. At least, I hope the courts are unaware of this, because if they are aware of this, that means that the courts have also sanctioned ignoring the laws of the State of California as pertains to juveniles. If you don't agree to a third party's terms of service, you don't get access to records that belong to the public. This isn't just stored camera footage stashed away in Axon's cloud. It's evidence that's supposed to be handed over to the defense. It's evidence that's supposed to be presented in court by prosecutors. It's public records of public employees' interactions with the public. It's a lot of things that shouldn't be tied up by a EULA that demands users give up some of their rights to access public records. And if this seems to have been handled badly in regards to California's privacy laws, this is only the tip of the iceberg. Axon is everywhere. Axon/Taser has locked down a majority of the body camera market. Its cloud storage and footage access front end is the moneymaker that allows it to lock down even more of the market by giving law enforcement free cameras subsidized by perpetual access and licensing fees. All of this is being agreed to with almost zero input from the public, which is now being forced to play by Axon's rules if it wants to access public records and court documents. Permalink | Comments | Email This Story

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Back in March, Mike wrote about how Eli Lilly's demand for $500 million "compensation" from Canada for rejecting two of its patents was finally thrown out. This was a long-running story, and was widely-regarded as a crucial test. Had Eli Lilly won, people suggested, it would have opened the floodgates for many such corporate sovereignty claims. Some also claimed that Eli Lilly's defeat showed what is officially known as the "investor-state dispute settlement" (ISDS) system was actually working well, and needed neither abolishing nor tweaking. But an interesting analysis by Cynthia Ho, who is a professor at Loyola University Chicago School of Law, suggests that things might not be so clear cut. Here are the key points she makes in a column published by Intellectual Property Watch: It is true that Eli Lilly ultimately failed to persuade the investment tribunal that Canada's invalidation of two patents, based on its interpretation of "useful," compromised guarantees under NAFTA's investment chapter. But, it should be noted, this failure was principally evidentiary in nature. That is, Eli Lilly failed to provide adequate evidence in support of its claims, all of which were premised on its assumption that there was a dramatic change in the law. The tribunal, however, never questioned whether IP rights that were invalidated consistent with domestic law could constitute a violation of international investment law. Even more importantly, the tribunal never questioned whether patent laws consistent with TRIPS could nonetheless be challenged as compromising investment agreements. In addition, although some have suggested that Eli Lilly could not win, the tribunal explicitly stated that the claim was not frivolous. As Ho points out, there are a number of troubling aspects to the tribunal's decision, even if it went against Eli Lilly. The main one is that countries still have the threat hanging over them of corporate sovereignty cases being brought and won because of disputes over patents and copyright. That would represent a radical departure from traditional ISDS cases, which are typically over physical assets like mines and oil fields. Moreover, she suggests that even if a new law were fully consistent with the main Trade-Related Aspects of Intellectual Property Rights (TRIPS) treaty, it could still be challenged using a corporate sovereignty claim -- in effect, setting ISDS tribunals above global agreements like TRIPS: the tribunal stated that a judicial decision could form the basis of an investment claim without any actual denial of justice. In addition, while the Eli Lilly tribunal stated that it is inappropriate for ISDS tribunals to serve as an "appellate tier" over domestic decisions, it would be premature to assume, as some have suggested, that this single decision obviates any such concern. Importantly, there is no precedent in investor-state disputes and, unlike the [World Trade Organization] system where panel decisions tend to be consistent and uniformity is promoted with a standing appellate body, there are often inconsistent investor-state rulings with no current mechanism to promote uniformity. The rest of Ho's column explores these and other concerns, and is well-worth reading. It may be that her fears are overblown, and that Canada's success in defending its patent system will discourage others from bringing similar cases. But given the unpredictable nature of ISDS cases, and the fact that a new wave of speculative funding is available, it is quite likely that investors will be emboldened to try their luck in this area again, irrespective of the Eli Lilly defeat. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Want to know how much of a threat terrorism poses to the United States? Just ask an agency whose relevance and budget depends on projecting the appearance of a constant threat. Here's John Kelly, the new head of the DHS: The threat to our nation and our American way of life has not diminished. In fact, the threat has metastasized and decentralized, and the risk is as threatening today as it was that September morning almost 16 years ago. As I speak these words the FBI has open terrorism investigations in all 50 states, and since 2013, there have been 37 ISIS-linked plots to attack our country. The problem with swearing on a stack of FBI statements is these assertions are completely meaningless. The FBI's a well-oiled terrorist-crafting machine at this point, so it can come up with whatever number of ISIS-linked plots is needed to further the agenda of multiple government agencies. As for "open terrorism investigations," it would be much more helpful if the FBI didn't term nearly everything it does an "investigation," even when there's nothing worth investigating. As we've covered here before, there are a few different types of investigations the FBI engages in, starting with something that looks a whole lot like an investigation (in terms of information the FBI can obtain), but really isn't. These "investigations" are called assessments, and it takes almost nothing at all to get one of these underway. Emily Hockett and Michael German of Just Security explain how the guidelines for assessments changed radically after the passage of the FISA Amendments Act in 2008. The most drastic change came in 2008 with a set of guidelines issued by then-Attorney General Michael Mukasey, who today is an ally of President Trump. The 2008 Guidelines created a new type of investigation called an “assessment.” Assessments permit physical surveillance, database searches, interviews, racial and ethnic mapping, and the recruitment and tasking of informants without any factual or criminal predicate, that is, without any objective basis to suspect the target of the investigation has violated any law, or is likely to in the future. Because Kelly's statement doesn't clearly define what sort of investigations the FBI is engaged in, it's quite possible the FBI only has assessments underway in several states. Rather than portray the nation as a hotbed of potential terrorism, the presence of assessments indicates nothing at all. That the FBI can engage in surveillance without "any factual or criminal predicate" is disturbing enough. Misrepresenting the depth of these investigations to further a narrative of fear is carelessness at best. It's deeply dishonest at worst. But even if we are to take the DHS head's word at face value -- that the FBI actually has real investigations opened in all 50 states, the word "investigation" still doesn't mean much. It should never be assumed an investigation is actually an indicator of terrorist activity. There are also "preliminary investigations" -- a step above assessments but below the FBI's standard for an actual investigation. These, too, can be based on almost nothing. Preliminary investigations require only “information or an allegation,” and contrary to Comey’s testimony, the allegation does not need to be “credible.” A 2010 Inspector General report found the FBI opened preliminary investigations on political advocacy organizations based on mere speculation that the subjects might commit a crime in the future, and the agents themselves often made the required “allegations.” Comey's statement -- the one cited by John Kelly -- claimed all FBI investigations need "a credible allegation of wrongdoing or reasonable basis…" This obviously isn't true. Using the presence of FBI investigations to support claims of a persistent terrorist threat gives the FBI far too much credit. The extremely low bar the FBI must avoid tripping over on its way to unwarranted (in both senses of the word) surveillance gives it plenty of busywork to keep agents and analysts busy. It does not, however, make the United States any safer. From 2009 to 2011, the first two years the Mukasey guidelines were in place, the FBI opened over 82,325 assessments, of which only 3,315 found information that warranted opening preliminary or full investigations. Given the preliminary investigation hurdle doesn't rise above shin-high, assessments seem to be a convenient excuse for surveilling Americans and adding this to the FBI's overstuffed databases. FBI terrorism investigations are a completely useless metric for gauging the domestic terrorism threat. But, hey, whatever sells more government power. Permalink | Comments | Email This Story

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The cloud is used to store massive amounts of information and data used by individuals and major corporations alike, and it needs to be kept secure, which is what you'll train to do over this comprehensive CCSK Certification Prep course. Beginning with a detailed description of cloud computing, this course expands to give you a thorough coverage of cloud security fundamentals and to prepare you to take the Cloud Security Alliance CCSK certification exam. This 9.5-hour course is available for $27. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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Back in 2014, you might recall that John Oliver's HBO show "Last Week tonight" aired an outstanding piece on net neutrality. In it, Oliver compared then FCC boss Tom Wheeler to a dingo, explained why a neutral internet was important, and trashed much of the flimsy logic giant ISPs like Comcast use to consistently justify anti-competitive behavior. The piece was so immensely successful at explaining an incredibly complicated and relatively wonky subject, it drove a record number of annoyed consumers to the FCC commenting website -- where they demanded the FCC step up and defend the open internet. That public outcry was a major reason Wheeler decided to reclassify ISPs as common carriers under Title II of the Communications Act -- and pass real net neutrality rules in 2015. Fast forward to 2017. New FCC boss Ajit Pai has made it abundantly clear he plans to gut those same rules, resulting in Oliver running a second piece on net neutrality on Sunday night: In this new video, Oliver notes that he registered the gofccyourself.com domain, making it simpler for annoyed net neutrality supporters to find the relevant FCC proceeding comment section on the agency's website. And, once again, it appears that the FCC's website was crippled by the massive influx of viewers. Shortly after the program aired, the FCC website collapsed under heavy load, and continued to suffer from issues throughout Monday (though there's an alternative way to file your comments to the FCC via this link). In his piece, Oliver once again urged those that care about an open internet to step up to the plate. And given net neutrality's massive, bipartisan appeal, he suggested that "Donald Trump's internet fans" should lend a hand: "Every internet group needs to come together like you successfully did three years ago," Oliver declared. "Every subculture must join as one. Gamers, YouTube celebrities, Instagram models, and even Tom from MySpace, if you're still alive." Oliver also implored "Donald Trump's internet fans on sites like 4Chan and Reddit" to join the fight. "This subject is one of the things that we actually really agree on," Oliver said. Since data shows that satirists often do a better job informing the public than many actual news outlets, net neutrality supporters hope that Oliver's second piece on the subject livens up what has been a fairly tepid and apathetic public reaction to the killing of the rules. ISPs and Pai hope to capitalize on debate fatigue and fractured attention spans when the agency votes to launch a notice of proposed rulemaking on May 18 to begin dismantling the rules. From there, the public commenting period will be extended until a finalizing vote later this year. Permalink | Comments | Email This Story

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About a year and a half ago, we wrote about how the new European "General Data Protection Regulation" (GDPR) was potentially very problematic for free speech. That is, well-meaning "data protection" folks wrote up the GDPR, but it appears they did so with little thought towards what the impact might be on free speech. So, specifcally, when they include something like a right to "erasure" for certain information, you can understand, from a privacy standpoint why people may want certain data and information to be deleted from certain databases. But bring that over to the open web, rather than private databases, and you're talking about a censorship tool around a "right to be forgotten" system. To deal with this kind of potential problem, rather than doing the smart thing and fixing and clarifying the GDPR, Europe has left things up to each member country to try to sort things out on their own, and to explore how to set their own data protection rules in a manner that will obey the GDPR but also avoid stomping out free expression. Unfortunately, it's unclear that many of the states are taking that balancing act very seriously. The UK quietly put up a comments request with all answers due by this Wednesday (and, of course, by the time this all gets sorted out, who's to say if the UK will even still be in the EU... but...). Daphne Keller, who studies these things over at Stanford Law School's Center for Internet and Society has both a larger paper and a shorter blog post discussing this, specifically in the context of serious concerns about how the Right To Be Forgotten (RTBF) under the GDPR will be implemented, and how it may stifle freedom of expression across Europe. Right now, of course, the RTBF applies to search results, but under the GDPR it may expand to much more, including things like Twitter and Facebook: Applying RTBF to platforms like Facebook, Dailymotion, or Twitter would be a big deal for Internet users’ expression and information rights. RTBF in its current form under Google Spain only covers search engines, and only requires “de-listing” search results – meaning that users will not see certain webpage titles, snippets, and links when they search for a data subject by name. Regulators have said that the RTBF is reconcilable with information and expression rights precisely because information is only de-listed, and not removed from the source page. But if social media or other hosts had to honor RTBF requests, much of the information they erased would not merely be harder to find – it would be truly gone. For ephemeral expression like tweets or Facebook posts, that might mean the author’s only copy is erased. The same could happen to cloud computing users or bloggers like artist Dennis Cooper, who lost 14 years of creative output when Google abruptly terminated his Blogger account. Expanding the list of private platforms that must accept and adjudicate RTBF requests would directly affect users’ expression and information rights. But it is hard to pinpoint quite which GDPR articles speak to this issue. Is it purely a question of who counts as a controller under the GDPR’s definitions (Art. 4)? Might it be, as I have argued in other contexts, a question about the scope of objection and erasure rights (Arts. 17 and 21)? Do national expression and information rights shape a platform’s “responsibilities, powers and capabilities” under the Google Spain ruling (para. 38)? These are difficult questions. The answers will, in a very real way, affect the expression and information rights that Member State legislatures are charged with protecting. And what happens if (as always happens) the process is abused and perfectly legitimate content is taken down? That is... once again... not at all clear: The Article 29 Working Party has said that search engines generally shouldn’t tell webmasters about de-listings, and the Spanish DPA recently fined Google €150,000 for doing so. The data protection logic here is understandable. When a data subject tells a controller to stop processing her data, it seems perverse for the controller to instead process it more by communicating with other people about it. But excluding the publisher or speaker from the platforms’ behind-closed-doors legal decisions puts a very heavy thumb on the scales against her. It effectively means that one private individual (the person asserting a privacy right) can object to a platform’s RTBF decision and seek review, while the other private individual or publisher (asserting an expression right) cannot. Other procedural details of the GDPR tilt the balance further. For example, a platform can reject a RTBF request that is “manifestly unfounded,” but only if the platform itself – which likely has little knowledge about or interest in the information posted by a user – assumes the burden of proof for this decision. (Art. 12.5) This lopsided approach may be sensible for ordinary data erasure requests, outside the RTBF context. When a data subject asks a bank or online service to cancel her account, the power imbalance between the individual and the data controller may justify giving her some procedural advantages. But RTBF requests add important new rights and interests to the equation: those of other Internet users. Procedural rules should not always favor the data subject over other private individuals. And, of course, as we've pointed out over and over again, the more liability you put on the platform for not deleting content, the more those platforms will default to deleting all sorts of content to avoid liability. And that would mean free and open spaces on the web become locked up fast. And that should be seen as worrying for those who believe in the internet as a platform for everyone, rather than just big media companies. Research and common sense tell us that when platforms face legal trouble for failing to remove user expression, they are likely to remove too much. Claimants consistently ask platforms to remove more information than the law requires: studies say that 38% of copyright removal requests to Google Image Search raise invalid legal claims; Google and Bing both report that over 50% of RTBF requests do as well. But as the studies show, platforms often err on the side of caution, taking down lawful or lawfully processed information. Incentives to play it safe and simply comply with RTBF requests are strong under the GDPR, which permits penalties as high as 4% of annual global turnover or €20 million. (Art. 83) National law should account for this dynamic, putting procedural checks in place to limit over-removal by private platforms. Civil society recommendations like the Manila Principles offer a menu of options for doing just this. For example, the law can penalize people (or businesses, governments, or religious organizations) if they abuse notice-and-takedown to target other people’s lawful expression. The GDPR does not provide meaningful procedural barriers to over-removal. In many cases, it appears to strongly tilt the playing field in favor of honoring even dubious RTBF requests – like ones Google received from priests trying to hide sexual abuse scandals, or financial professionals who wanted their fraud convictions forgotten. As various countries in Europe look to put in place regulations to abide by the GDPR it would be nice if they actually considered this stuff. I fear they may not. If you have some time in the next day or two, at least feel free to take part in the UK comment period and hope that they get it right (even if they're on their way out of the EU). Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
In California, the future of criminal case management is now. But the future appears to be broken, and "now" is looking much worse than the recent past. Odyssey is the state's buggy new case management software -- one that's been keeping people from being released, putting people with dismissed charges in jail, and otherwise making the criminal justice system even more horrible than usual. Tyler Technologies, the creator of the software, has called this transition "challenging." (It's also called this rolling cockup a "transition," so…) Public defenders -- already overworked when things are normal -- are the ones being tasked with sorting out a long stream of erroneous computations and attempting to make things right for the human beings on the receiving end. This is an additional workload public defenders didn't need. Since [December 2016], the public defender’s office has filed approximately 2,000 motions informing the court that, due to its reportedly imperfect software, many of its clients have been forced to serve unnecessary jail time, be improperly arrested, or even wrongly registered as sex offenders. The court's response to multiple pleas by public defenders to force someone in the Californian government to clean up this mess? Shit happens. Deal with it. Although the court recognizes that Odyssey has resulted in unlawful arrests and searches, clerical errors that affect a defendant's Fourth Amendment right to privacy will occur regardless of the case management system used by the court. Understandably, this non-redress of grievances failed to satisfy public defenders. Cyrus Farivar reports they're headed back to court to appeal the court's do-nothing order. “These delays and errors violate Government Code § 69844’s express requirement that Superior Court clerks enter judicial orders ‘forthwith,’ as well as the constitutional right to a complete and accurate record on appeal and the Fourth Amendment prohibition upon unlawful arrests and illegal searches,” Charles Denton, an assistant public defender, wrote in his April 10 brief. The more significant point of the filing [PDF] is this: without pressure from the courts, the problems created (and exacerbated) by the new case management software's rollout will continue to snowball. For, as we have noted, respondent’s staff concedes that, without a change in software or staffing, it will never be able to “provide a complete and fully accurate record of court proceedings”... The numbers bear this out. The bottleneck in processing commitment orders for the more than 100 state prisoners languishing in county jail is months long, and, seven months after Odyssey’s rollout, there is an ever-growing backlog of more than 12,000 “paperless” files that are missing minute orders, filings, and transcripts. At this point, being booked in Alameda County is to be forcibly subjected to a malfunctioning criminal justice slot machine. Maybe it will pay off for a few people, but the odds are still on the house. A system that's already largely broken doesn't need assistance from outside vendors' buggy software. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
We've got a double winner on the insightful side this week, with PaulT taking both the first and second places spots. In first place is his response to our thoughts on why Netflix was unconcerned about the hacker trying to extort them by threatening a leak: "That, in turn, is largely because Netflix's flat-rate, relatively-inexpensive pricing model provides enough value that users don't find piracy to be the superior alternative (read: they successfully compete with piracy)." I'd expand on this in several ways: 1. Part of the reason why they compete with piracy is that it's simply easier. The gap has lessened somewhat, but one way I found to introduce people to using Netflix instead of piracy was to demonstrate it. Find a torrent site, find a rip of the required quality, wait for it to download, see if your player supported the codec... or click a button, wait a few seconds and it starts playing. True, this advantage has become somewhat eroded where streams rather than torrents have become a popular avenue, but as long as a title is on Netflix, it's hard to say that piracy has any advantages if you're already a subscriber. The pricing, wide device compatibility, international availability of its own content and other factors play a part, but the ease of use is the part that keeps people with them, I think. 2. The Netflix model doesn't care if someone watches a pirated version of the show, so long as they continue subscribing. In order for them to lose money as a direct result of the leak, someone would have to either a) watch the pirated version and cancel their subscription as a direct result or b) watch the pirated version and decide not to subscribe when they were going to previously. For the 5th season of an established show, both of these scenarios are unlikely. 3. Even if it were likely, the Netflix model doesn't depend on a single title. They have successfully leveraged a wide range of content that appeals to a wide range of people, so while a single title may attract them in the first place, it's unlikely to be the thing that keeps them there. People cancelling the service simply because they caught up on OITNB a little earlier than expected is extremely unlikely, as is a large number of people only subscribing for the new season every year. Most people will stick around for reasons unrelated to this show. It's nice to see this. While other companies throw fits the moment it seems that someone may see their stuff without paying directly, Netflix has built the fact into their model. For all the false claims that the community here are pirates, that's all we've really been saying. You cannot eradicate piracy, it has always been an issue, so accept it and build your model around reality. I can only imagine how annoyed the guy must have been when Netflix basically told him "upload it we don't care"! "Its ambitions quashed by Netflix's apathy, the hacking group is apparently moving on, and says it plans to now target other companies (ABC, Fox, National Geographic and IFC) whose content was also found on the compromised server" "it doesn't seem likely that any of the group's efforts will amount to much of anything" Let's hope so. But, I'm betting that the reaction of at least one of those companies will act as a marked contrast to what we're seeing here. In second place, it's his response to an angry commenter who questioned why we were covering the almost-immediate abuse of Australia's data retention laws: I know you're a trolling moron, but a story about "the police openly broke the law the moment they had the tools handy to do so, just as predicated" is surely noteworthy even in your deranged obsessed mind? "the AFP self-reported to the Commonwealth Ombudsman that we had breached the Telecommunications Interception Act." ...although I think the real story here is that the police in Australia still had enough moral fibre to admit to the mistake the moment they realised, and still have a regulation body that has enough teeth to ensure they do this. Both of these things should be lauded, even if you personally think the breach was minor. Let me guess, you're one of the people who regularly rails against oversight and regulation here? For editor's choice on the insightful side, we start out with one more comment from that post, this time from Roger Strong responding to a question about why journalists get more "rights and privileges" than others: Not rights and privileges. We accept that they have more protections than everyone else. We accept that police have a few legal and physical protections that ordinary citizens do not. This is necessary to protect them from the criminals they are tasked to combat. Elected officials often get extra legal and physical protections too. To prevent abuse and corruption there are checks and balances. We accept that journalists are one of the big ones. We accept that journalists can keep their sources secret, because those sources are often whistleblowers telling of abuse and corruption. We accept that because journalists speak truth to power, they and their sources need protection from that power. Yes, the age of blogs casual journalism has blurred the definition of journalist. But that's only made the need to protect journalists more important: Consider the movie Spotlight, about the Boston Globe's investigation of systemic child sex abuse in the Boston area by numerous Roman Catholic priests. It's been said that if the story happened today, it wouldn't have been reported. The newspaper, with a much smaller subscription base and ability to absorb legal expenses, would have backed down in the face of Church opposition. Next, we head to our post about Comcast unsurprisingly trying to hide rate increases in bogus fees, where jupiterkansas noted that the much-feared competition manages not to do this kind of thing: Google Fiber doesn't seem to have a problem advertising $70/month and charging exactly $70/month. Over on the funny side, first place comes as another response to the Netflix extortion story, this time from Michael in the form of a dramatic interpretation: Hacker: "Pay me $60,000 or I am going to advertise for you!!!!" Netflix: "..." Hacker: "That's it! I'm starting my advertising campaign!" Netflix: "...umm...ok." In second place for funny, we've got another comment from Roger Strong responding to the same comment as PaulT's second place winner on the insightful side. That comment began "Again, I fail to see what the problem is here..." and Roger felt it could be truncated: "Again, I fail" Should've just stopped there. For editor's choice on the funny side, we start out on our post about Verizon's recent blatantly false video about net neutrality, where one commenter wondered just who these videos are made for and DannyB suggested one possibility: Maybe the videos are for lobbyists to use to soothe the conscience of congress critters. The videos aren't lying. They're merely "optimizing" the truth. Just like they optimize your network traffic. Finally, we've got a response from Ed to the news that Chris Dodd is leaving the MPAA: I hear there's a job opening at the Copyright Office... That's all for this week, folks! Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
Five Years Ago This week in 2012 the USTR, as it does every year, released its ridiculous Special 301 list of naughty countries, right around the same time that Chris Dodd was rewriting Hollywood history to thank IP laws for all of it. The UK was doing its part to stay off the list, apparently, with the High Court ordering The Pirate Bay to be blocked (and, of course, driving record traffic to the site). Techdirt friend Dan Bull — an artist whose single had just hit the charts with the help of piracy — shared his thoughts on the block with a guest post. Ten Years Ago This week in 2007 started the same way: with a silly Special 301 "watch list". The Pirate Bay was just beginning its growth as a political movement, and the author of a major UK copyright report was admitting that the evidence supports shortening copyright terms. The folks behind AACS, the new copyright protection scheme for DVDs, were learning all about the Streisand Effect in their attempt to suppress information about the technology — and also giving the Digg community a chance to demonstrate its control over the site. Meanwhile, the Google/Viacom lawsuit was moving slowly forward, and the UK's Premier League was getting in on the action. Fifteen Years Ago This week in 2002, record labels were still excitedly announcing lacklustre digital music services, online radio stations were protesting onerous fees, and the new Eminem album was gearing up to be the largest copy-protected release to date. Deep linking reared its head again as a legal issue, online scams were going strong (and working as decent retirement plans for some, it seemed) and the crazy new idea of phones with WiFi was just on the horizon. Eight-Hundred And Two Years Ago Today we look back on the Magna Carta as a pivotal moment in the history of law (or just as an archetypal piece of general knowledge trivia), but at the time it was a stopgap solution in the midst of a political dispute between King John of England and some rebellious Barons. An important milestone in that dispute came on May 3rd, 1215 when the rebels officially declared against the King and issued their legal demands. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
It seems there must be something in our human DNA, something that hasn't been filtered out over the generations, that causes the masses to engage in moral panics. When you peruse our previous posts about moral panics new and old, it highlights how laughably absurd they tend to be. Specifically, if past is prologue, you get a fair understanding of how our current moral panics will be viewed in the future, as we laugh now at the consternation caused by such demons as telephones, comic books, chess, and pencils. And that laughter causes no pause about the current moral panics surrounding social media, certain forms of music, and video games. Sandwiched in between antiquity and modernity is Dungeons & Dragons, the popular tabletop role playing game that experienced its own moral panic decades ago, but which has since risen dramatically in popularity. This game, once thought by parents to create potential Satan worshipers out of their little darling children, has already been pushed as a fantastic starting point for would-be creative writers. More recently, however, therapists have begun using the game as a therapeutic tool in sessions with patients. Adam Davis runs one of these groups using D&D in therapy, called the Wheelhouse Workshop, and details one story in which he uses the game as a therapy tool. Davis, who runs Wheelhouse Workshop out of an office in a large, brick arts building in Seattle, is used to seeing sides of kids that don't usually come out in school. He, along with co-founder Adam Johns, designs D&D games that are less like hack-and-slash dungeon-crawls and more like therapy with dragons. In D&D's Forgotten Realms world, the kids' psyches run amok. Earlier this month, over the phone, Davis told me about Frank (not his real name), a tall, lanky teenager who barely spoke above a whisper. In school, he tended to sit with his feet in front of his face, so no one could really see him. He hated to take up space. After his parents and teachers noticed that his body language seemed a little stand-offish to peers, they enrolled him in Wheelhouse Workshop. "The character he chose was a dwarf barbarian," Davis recalled. "He was really loud and bumbling and unapologetic. It was a really obvious opportunity for this kid to play with qualities other than his." Adam had Frank sit like his character, spreading his legs apart and slamming his elbows onto the table. In dwarf-barbarian mode, Frank could experiment with new modes of relating to others. In the link, there are other examples of other groups using D&D in therapy sessions, and it becomes instantly obvious why it's such a valuable tool. Letting kids play the game to work out real life issues, or work on modes of interaction and socialization, is what every tabletop RPG session is to some extent. But for those whose interactions aren't merely escape from reality, but a way to work on their real life interactions, the lessons learned in the game can be profound. Therapists have always used role-playing in therapy sessions, of course, but allowing for an in-game narrative filled with social interaction and potential consequences adds a new layer. When the therapists explaining why they use the game as a tool in this way talk about the benefits, it will likely sound familiar to what the proponents of more recent moral panic targets have to say on the subject. Because D&D is inherently cooperative and escapist, it urges players to re-imagine the ways they interact with peers. And because each player has their own specialty, like communicating with dragons, they'll have their moment to feel valuable in a group setting. At worst, kids who are socially isolated can enjoy hacking up some goblins after a crappy school day. "For someone who never leaves their house except for school, to have a peer say, 'I need your help picking a lock' makes a huge difference," Johns told me. That sure sounds like someone describing interactive multiplayer video games to me, among other things. The point to understand here is that thirty or forty years ago this game was absolutely vilified. Unfairly so, by a public too willing to buy into fears about something they didn't understand and a media environment happy to whip that fear into a fervor. No part of that equation has changed saved for the target of the moral panic du jour. Hell, we've already heard of things like video games and other technology being used in therapy sessions, yet what percentage of parents polled today would have negative things to say about those games? If moral panics are in our DNA, or perhaps merely in our social fabric, we need more people to have a greater understanding of how often these panics melt away and the benefits of the thing feared are then realized. Maybe then we can at least muffle these types of moral panics. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
We see all kinds of dumb and frustrating examples of trademark bullying here at Techdirt. From questionable claims of infringement entirely, to the over-policing of broad or generic terms that never should have been granted trademark protection to begin with, to vice-like licensing terms that appear to be designed more to put licensees out of business rather than building any kind of long-term business model out of trademark rights. That said, at least in most of these stories the offending party has the trademark its bullying with. That may not be the case when it comes to Worldwide Entertainment Group Inc., which is being sued by a Coatian festival promoter after being milked over a trademark the promoter says Worldwide doesn't actually have. In a federal complaint filed in Miami, plaintiff Adria MM Productions Ltd. says it has been the exclusive promoter of “Ultra Europe” and other “Ultra”-branded events since July 2013. It claims the inaugural electronic music festival attracted 100,000 fans, and that the audience has grown with each successive event. The defendant Worldwide Entertainment Group Inc., also identified as “Ultra” in the complaint, is the organizer and promoter of the Ultra Music Festival that takes place every year in Miami. The complaint says Ultra entered into various licensing agreements to grow its brand around the world, and sought out AMM ” because AMM is one of the largest promotion companies in Croatia and holds exclusive licenses and rights to venues in Croatia and was a successful promoter of musical events in Croatia.” AMM says that Ultra made it believe that it owned the mark “Ultra Europe,” and the five-year licensing agreement required it to pay the defendant licensing and promotional fees for the use of its proprietary marks in Europe. From there, the complaint details just how Worldwide put the squeeze on AMM through its evolving licensing terms, which only evolved in the direction of higher fees and more control for Worldwide. And the restrictions were fairly intense, including giving Worldwide the right to approve vendors at AMM festivals, providing for exhorbitant arrangements for Worldwide staff, and adding on fee after fee. All of this was, mind you, while AMM was entirely responsible for putting these concert events on. All Worldwide was doing was licensing the term "ultra" for these festivals. Because of all of this, AMM was losing money on its events. When the original five-year licensing agreement expired, Worldwide demanded even more from AMM in a new five-year agreement. AMM attempted to negotiate, but Worldwide instead pulled the plug and cut AMM off from email and social media channels for the European events, prohibited AMM from promoting the 2017 festival in Croatia, and even sent a notice of default to AMM saying that it had breached the two companies' original agreement. Then, this. AMM says that at that time it discovered that Ultra didn’t have any rights over proprietary marks in Europe, specifically in Croatia. Damn. Specifically, the complaint states that Worldwide "held no trademark rights in Europe and, specifically, Croatia at the time it entered into the agreement with AMM." If that ends up being proven, it's difficult to see how Worlwide isn't in an absolute bucket of trouble. It's one thing to bully and squeeze a licensee over a valid trademark, but to do all of this and not even own the rights that are the basis for the licensing agreement to begin with? That's all kinds of evil. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Another small dart has been lodged in the thigh of the Fifth Amendment by the courts. A Miami, FL federal judge has ruled that defendants in a sex video extortion case must turn over their phones' passwords. In a case being closely watched in legal and tech circles, Miami-Dade Circuit Judge Charles Johnson ruled that Hencha Voigt, and another man charged with being her accomplice, must unlock phones police believe were used in a plot to extort a social-media celebrity. He ruled that unlocking their phones would not violate their constitutional right against self-incrimination. “For me, this is like turning over a key to a safe deposit box,” Johnson said. The jurisprudence related to passwords and the Fifth Amendment is all over the place, but it seems to be leaning towards treating device passwords and pins as "non-testimonial." Other decisions have resulted in the indefinite jailing of defendants on contempt of court charges for refusing to turn over passwords. Arguing against self-incrimination hasn't found many judicial supporters, but the issue is far from settled. Indefinite jailing may be on tap for these defendants as well. They've been given two weeks to comply with the order, with the "or else" being a stay of indeterminate length at the local lockup. The Miami judge appears to be following state precedent, citing an earlier case where the state appeals court ruled in favor of the government, ordering an upskirt photographer to turn over his password to prosecutors. This decision will be appealed. But the decision cited by this judge appears to indicate this will only delay the inevitable. Sooner or later, this issue will have to be addressed by the Supreme Court, but I wouldn't hold my breath waiting for it to happen. The Supreme Court frequently takes a pass on timely issues, leaving circuit appeals courts to do most of the heavy lifting. There really hasn't been enough Fifth Amendment cases of this type in federal appeals courts to press the issue. So far, the only thing that's been made clear in multiple cases is fingerprints are worse than passwords when it comes to locking law enforcement out of phone contents. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
In the world of law enforcement, there's very little more ridiculous than police unions. That's the unfortunate side effect of feeling compelled to defend every "bad apple," no matter how rotten they are. The Cleveland police union has reached the apotheosis of law enforcement spin -- this time taking the form of a lawsuit that looks like a punchline. First, some backstory. In 2014, 12-year-old Tamir Rice was killed by a Cleveland police officer as he played with a toy gun in the park. A caller reported Rice, saying he was waving around a gun. The caller also said it was likely the person they saw was a juvenile and the gun was likely a toy. This information was not passed on to the responding officers, who boldly/stupidly raced across the park lawn to within feet of where Rice was standing and shot him two seconds after exiting their vehicle. The "gun" Rice had was an Airsoft replica with the bright "not a gun" tip removed. Had the dispatcher passed on the mitigating factors, Tamir Rice might still be alive. Had the officers decided to approach this tactically, rather than like an out-of-control half of a buddy-cop movie cliche, Tamir Rice might still be alive. But, as the Cleveland Patrolmen's Association sees it, the problem wasn't bad communication and worse tactics. The real problem here is toy gun makers. The Cleveland Patrolmen's Association announced it will soon be filing a lawsuit against toy gun manufacturers in federal court. CPPA attorney Henry Hilow told News 5 the civil lawsuit will not seek financial damages, but rather seek to restrict the design of toy guns, so they don't look so realistic. "These fake weapons put the community at risk, puts law enforcement at risk, something has to be done," Hilow said. "The remedy that we'd be looking for is that that gun could not replicate. That that gun would be of such a color have such a tip." Airsoft guns do look realistic, minus the bright orange tip that comes standard. Anyone can remove the tip… just like anyone can create a real gun that looks fake. None of that matters, though, as attempts to create vicarious liability tend to fall apart under judicial scrutiny. And, notably, the Cleveland Police Union has never attempted to sue the manufacturers of real guns, despite them being involved in almost every situation where officers have shot at people or been shot by them. As Popehat pointed out on Twitter, this is likely only the first of many police union lawsuits: Next to be sued by police: Coach for making wallets and God for making black people's hands and waistbands So far, the CPPA stands alone in its jackassery. But it has hopes that others similarly situated will beclown themselves for the dismayed amusement of the nation: He said the CPPA is looking for support from other police unions in major cities like Columbus and Dallas. I applaud the union's willingness to take a stand in court against the maker of an item held by a person one of its members killed. Anything that draws more attention (albeit inadvertently) to the trigger-happy tendencies of Cleveland police officers and the increasing ridiculousness of police union statements and actions is fine by me. Permalink | Comments | Email This Story

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Spain is perfecting regulation no one asked for. The country's government is in the business of determining which jokes are funny… and which punchlines should be greeted with criminal charges. A few years ago, jokes of the "too soon" variety were met with calls for social media censorship. The assassination of a member of the People's Party was met with the usual interactions: a mix of genuine condolences and mockery. The assassinated official wasn't universally loved, having voted herself a 13% pay raise while simultaneously supporting a 12% budget cut to programs she didn't care for. Some social media reactions were terrible. Reactions from government officials were even worse. One official said social media users shouldn't be allowed to denigrate others. Another vowed to "clean up undesirable social media." Flash-forward three years and a Spanish citizen is again dealing with government regulation of social media, as well as its idea of what is or isn't proper discourse. And, oddly enough, another assassination of a political figure is at the center of it, albeit one where adverse comments and jokes could not possibly be of the "too soon" variety. (via Reason) When she posted jokes on Twitter about a 1973 assassination committed by Spain's Basque separatist group ETA, Cassandra Vera never for one moment thought they would land her a one-year jail sentence. But last month, one of Spain's top criminal courts found the 21-year-old guilty of "justifying terrorism" and humiliating its victims - the latest in a series of such convictions for social media pranks that has the country divided, and partisans of free speech worried. They ruined my life," Vera tweeted about the 13 posts about the 1973 murder of Luis Carrero Blanco, the prime minister and heir-apparent of dictator Francisco Franco who was killed in an ETA bomb attack that sent his car hurtling into the air. Whether or not the jokes could be considered funny is up to the reader. But Spain's government -- using its terrorism concerns to increase its control of its citizens -- feels that tweets like Vera's should be held to a different standard. The government will let Spaniards know what's funny… after the fact. And, possibly, after sentencing. The National Court's sentencing comments made it very clear it found Vera's blend of assassination imagery and space program mockery to be criminally unfunny. The National Court that sentenced her, which specialises in terrorism cases, ruled that her jokes did not form part of a "healthy humoristic environment" and that her attitude was "disrespectful" and "humiliating." There's nothing more devoid of humor than a government-ordained "healthy humoristic environment." Vera has been sentenced to a one-year prison term for failing to make the court laugh. She won't serve any actual jail time, which is a plus, but will find it much more difficult to move forward with her studies, as the criminal record prevents her from obtaining a scholarship. Even the assassination victim's granddaughter thinks this sentence from the National Court goes too far. She sent a letter to El Pais, the most-read paper in Spain, stating she was dismayed Spanish social interaction had been reduced by the government to the point where free speech leads to jail sentences. Not that her protest of Vera's sentencing is likely to change anything. The Spanish government has embraced the host of new powers it granted itself in response to terrorist attacks and widespread economic protests. The Spanish government is in the humor policing business -- which is quite fitting, considering its humorless police forces are in the business of shutting down any other non-joking speech the government doesn't like. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Many readers here have probably heard of keylogging and how tracking the keystrokes you use while you're browsing makes it easier for your data to be compromised. GuardedID outsmarts cyber criminals by encrypting your keystroke data from the point of origin — your keyboard — and delivering it safely and securely to your browser so that when you type, keyloggers see only a meaningless sequence of numbers. GuardedID protects you from keylogging attacks and kernel- / desktop-based keyloggers, detects and highlights hidden clickjacking attacks, warning you away from clicking on malicious invisible objects, prevents screen scraping malware from taking screenshots of your info secretly, and more. The 1 computer 1 year license is on sale for only $9 with other license options available as well. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Before we dive into the latest IC transparency report [PDF] from the Office of the Director of National Intelligence, let's take a moment to recognize the small miracle that it even exists. If NSA contractor Ed Snowden hadn't decided to color outside the official whistleblowing lines, we'd still be expected to put our complete trust in the government with zero evidentiary support. That being said, the transparency report is still several steps removed from actual transparency, but it will have to do for now. What can we learn from it, even with many of the numbers being seemingly meaningless thanks to purposefully-missing context? Several things, actually. Marcy Wheeler has torn apart the report across four posts, each dealing with the report's fuzzy numbers (or, in the case of the CIA's contribution, a lack thereof). One of the first misleading numbers in the report is the supposed single search of the NSA's 702 collections by the FBI for non-terrorism-related purposes. According to the report, this happened exactly once. But that's actually not true. The FBI makes far more frequent use of NSA data for non-terrorism investigations. It just does it in a way that won't show up in the IC's transparency report. Parallel construction is the FBI's friend. FBI’s querying system can be set such that, even if someone has access to 702 data, they can run a query that will flag a hit in 702 data but won’t actually show the data underlying that positive return. This provides one way for 702-cleared people to learn that such information is in such a collection and — if they want the data without having to report it — may be able to obtain it another way. It is distinctly possible that once NSA shares EO 12333 data directly with FBI, for example, the same data will be redundantly available from that in such a way that would not need to be reported to FISC. So, there's that bit of obfuscation right off the top. And the FBI isn't the only agency using an ostensibly foreign-facing collection to obtain information about US persons. The CIA -- an ostensibly foreign-facing agency -- does this as well. The FBI doesn't count its dips into the NSA haystacks. Neither does the CIA. The report shows 30,000 searches of unminimized US persons' data occurred last year. That number doesn't include the FBI's searches (because the FBI doesn't report its searches) and is quite possibly much, much higher than what's reported. This is only a good faith estimate by the IC, using software, rather than any form of reporting from the CIA. NSA will rely on an algorithm and/or a business rule to identify queries of communications metadata derived from the FAA 702 [redacted] and telephony collection that start with a United States person identifier. Neither method will identify those queries that start with a United States person identifier with 100 percent accuracy. As Wheeler points out, it could be 30,000… or 3 million… or 3 billion searches. No one knows. By the time the CIA's required to count its US persons searches, it will likely perform most of its searches under Executive Order 12333 authorities, rather than the more closely-watched Section 702. Finally, there's a really big number contained in the report. It looks amazingly high, but might be indicative of not much surveillance activity at all, at least not in the entire scheme of things. According to the report, the NSA was able to scoop up 151 million "call detail records (CDRs)" using only 42 selectors. Read in the (lack of) context in the report, this would look like pure bullshit. There's no way 42 terrorism suspects (and their 3,150 one-hop "friends") are making 130 calls a day. (Or, if they're only talking to each other, 65 calls a day.) As Wheeler points out, call records are not just records about phone calls. They also pick up records on text messages. If these were phone calls between just two people, then if our terrorist buddies only spoke to each other, each would be responsible for 24,000 calls a year, or 65 a day, which is certainly doable, but would mean our terrorist suspects and their friends all spent a lot of time calling each other. The number becomes less surprising when you remember that even with traditional telephony call records can capture calls and texts. All of a sudden 65 becomes a lot more doable, and a lot more likely to have lots of perfectly duplicative records as terrorists and their buddies spend afternoons texting back and forth with each other. With this, 151 million records looks less like full-blown exploitation of this surveillance authority and something possibly more targeted than the NSA's used to. Then again, it could mean the NSA is sweeping up 65 innocent Americans every day of the year with its CDR demands. There's simply no way to tell. But CDRs include all "call events," which include a whole lot of related metadata having nothing to do with voice calls. A CDR is defined as session identifying information (including an originating or terminating telephone number, an International Mobile Subscriber Identity (IMSI) number, or an International Mobile Station Equipment Identity (IMEI) number), a telephone calling card number, or the time or duration of a call. Further trimming down this seemingly large number are two other aspects of the collection. Records obtained previously by the agency are included in this count, as well as junk metadata related to past selectors that may not be returning any current records. That means our 3,192 targets and friends might only have had 48 calls or texts a day, without any duplication. Which is a completely believable number of calls and texts between surveillance targets. The breathtaking 151 million records is suddenly a more manageable number that actually *gasp* looks as though the NSA is engaging in truly targeted collection. But before we get carried away with the NSA's new "maybe collect a little less than it all" approach to surveillance, we need to remember this only covers a very small part of the NSA's collection activities. [W]e need to understand the 65 additional texts — or anything else available only in the US from a large number of electronic communications service providers that might be deemed a session identifier — a day from 42 terrorists and their 3150 buddies [is] on top of the vast store of EO 12333 records that form the primary basis here. Because (particularly as the rest of the report shows continually expanding metadata analysis and collection) this is literally just the tip of an enormous iceberg, 151 million edge cases to a vast sea of data. That's what we're really dealing with here, unprecedented transparency or no: there is a vast surveillance apparatus operating in near-complete darkness, authorized by a presidential executive order and subject to almost zero oversight. Whatever concessions the NSA makes in relation to Section 702 in the upcoming months, its biggest collections will remain untouched. Unless something changes dramatically, the potential for constitutional violations and agency abuse remains unchanged. And, unless something changes dramatically, it will remain unseen. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
So we've noted for years now how giant broadband ISPs have made a 20-year career out of taking taxpayer money, subsidies and other perks in exchange for broadband networks they only partially deliver. When it comes time to hold these large ISPs feet to the fire, well-lobbied lawmakers and revolving door regulators pretty consistently do their best to ensure accountability never happens. Obviously this is just one of numerous problems leading to a lack of broadband competition in the United States, where two-thirds of homes lack access to more than one ISP at speeds of 25 Mbps. And while it makes perfect sense for ISPs to want the best return on their investment, problems have arisen as broadband is increasingly seen as a necessary utility, but government refuses to stand up to some of the most politically powerful companies in America. ISPs don't want anybody dictating where they can and can't deploy service, but at the same time their lobbyists are passing protectionist state laws preventing towns and cities from improving their broadband fortunes...even in areas incumbent ISPs refuse to serve. AT&T has come under fire in recent months after allegations emerged that the company was avoiding deploying upgrades to low-income neighborhoods. The National Digital Inclusion Alliance (NDIA) and a Cleveland-based group called Connect Your Community released a report last month claiming AT&T was engaged in "digital redlining" -- or intentionally only upgrading higher-income customers. The report notes that while AT&T provides scattered speeds of between 18Mbps and 1Gbps to the Cleveland suburbs, poorer neighborhoods in central Cleveland remain stuck on speeds between 768kbps to 6 Mbps. A map from the report highlights what this not-so-subtle practice looks like: The groups have threatened to sue AT&T, stating that FCC data and "city construction permits and other information" support its case that AT&T intentionally ignored low-income communities. AT&T, as you might expect, insists that it has done nothing wrong: "Access to the internet is essential, which is why we've continuously invested in expanding service and enhancing speeds," the AT&T response starts. "The report does not accurately reflect the investment we've made in bringing faster internet to urban and rural areas across the U.S. While we are investing in broadband, we're also investing in technologies that will mitigate some of the infrastructure limitations." But a more recent study also accuses AT&T of doing the same thing across California. The study, drafted by the UC Berkeley Haas Institute for a Fair and Inclusive Society, again offers up some pretty compelling data: "By contrast, the median household income is $53,186 in California neighborhoods where AT&T provides only DSL, with download speeds typically ranging from 768kbps to 6Mbps. At the low end, that's less than 1 percent of the gigabit speeds offered by AT&T's fiber service. The median income in areas with U-verse VDSL, which ranges from 12Mbps to 75Mbps, is $67,021. The income difference is even more stark in some parts of California. "For example, in Los Angeles County, the median income of households with fiber-to-the-home access is $110,474, compared with $60,534 for those with U-verse availability, and $47,894 for those with only DSL availability," the report said. All told, rich or poor, around 4.1 million California households, or about 42.8% of AT&T's California service area, can't get access to the FCC's base definition of 25 Mbps down, 3 Mbps up. AT&T often promises regulators they'll shore up these broadband coverage gaps in exchange for regulator favors (merger approval, etc). But these improvements often never arrive, and AT&T uses misleading marketing to make its "next gen" offerings appear more uniformly available than they actually are. In the real world AT&T's focus is elsewhere: namely wireless, and buying media companies like Time Warner. A major reason for broadband's inconsistent deployment was the state "franchise reform" laws AT&T and Verizon passed in dozens of states a decade ago. Originally, local franchise authorities required even network deployment in exchange for doing business in towns and communities. But around 2006 or so, both companies went state by state promising lawmakers that if they eliminated the local franchise reform laws and replaced them with state-level rules, consumers would be awash in broadband and TV competition. That never happened, but company lobbyists were successful in demonizing the old franchise system as archaic, and towns and cities as viciously uncooperative (which was sometimes true, but often not). The problem: because state-level politicians are even more corrupt than their local or federal counterparts, many of the state-level franchise reform laws AT&T and Verizon managed to get passed were little more than legislative wishlists that killed many essential consumer protections, broadband deployment requirements, and in some states even citizen eminent domain rights. So yes, the franchise reform system was "streamlined" to be more efficient, but at a major cost to consumers that's pretty rarely talked about. It's understandable that these companies don't want government dictating where they can or can't deploy broadband services. That said, it's just as important to remember that companies like AT&T have gone out of their way to use corruption and bureaucracy to stall and hamstring would-be competitors at every conceivable opportunity. In this way they get to have their cake (lamenting demands for even broadband deployment as government "over reach") and eat it too (use that same government to give them taxpayer dollars for services only half-delivered, and to pass regulations and laws hamstringing competitors). With current FCC boss Ajit Pai looking to roll back oversight even further of some of the least competitive companies in America, there's going to be a hell of a lot more of this particular flavor of market dysfunction in our foreseeable future. Permalink | Comments | Email This Story

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This long Austin American-Statesman investigative report details apparent police brutality as discovered by parents who were kept in the dark by local cops about how their teenaged son actually died. It all started with their 5'4" 110-lb. 18-year-old suffering through a bad acid trip while hanging out with friends. It ended in the hospital with their son brain-dead, on life support, and the arresting agency unwilling to say anything more than their son had suffered a "head injury." To the law enforcement agency, it's just another in-custody death. To the parents of Graham Dyer, it's long-delayed closure to a chapter kept deliberately unfinished by the law enforcement agencies who took Dyer into custody and returned him to his parents more dead than alive. In Texas, the system is stacked against victims of police misconduct. State law, upheld by court decisions, make it almost impossible to mount a lawsuit against law enforcement officers. Courts are generally receptive to law enforcement claims and extremely hesitant to strip officers of immunity, no matter how egregious the apparent civil rights violation. This situation is made much, much worse in Texas where documents needed to propel a lawsuit past a judge's first reading often can't be obtained from the law enforcement agency holding them. State law says a police agency isn’t required to turn over records for incidents that don’t result in a conviction. Graham, who’d been charged with assaulting a police officer after the confrontation, had died before his case could be litigated. So, the department reasoned, his records were confidential. Asked to weigh in on the dispute, then-Attorney General Greg Abbott agreed the Mesquite police could refuse the Dyers’ request. The most important part of this paragraph is two words in the last sentence: "could refuse." The law does not forbid departments from handing over this information. It simply gives them a legal excuse not to. The Mesquite PD could have closed this tragic chapter in the Dyers' lives, but doing so would have guaranteed a lawsuit. So, it withheld the records, ensuring the officers involved in Graham Dyer's death remained free of accountability. It continued to deny release of the record, citing "ongoing investigations" that apparently involved one dead "suspect" and another arrestee, who had only been charged with public intoxication. Faced with this hurdle, the Dyers approached the FBI, asking it to investigate Graham's death. It performed an investigation, but informed the couple it could not find enough evidence to move forward with a federal civil rights lawsuit on the couple's behalf. But it did open a door for the Dyers to obtain the evidence the Mesquite PD wouldn't release. Using the federal Freedom of Information Act, in early 2015 Kathy asked the FBI to turn over any records it had accumulated in its investigation of Graham’s death in Mesquite. That fall, police videos of the fatal evening started arriving. The recordings are disturbing. Graham's parents haven't watched them, on the advice of their lawyer. (All images below a screengrabs from the video posted at the Statesman.) There was, for example, the image of a Mesquite police officer standing with his foot on Graham’s head. There was the image of Graham in the backseat of the police cruiser, his hands and feet bound — yet also unseatbelted or otherwise restricted — in obvious distress, hurling himself about the car. And then the ghostly image of a police officer’s hand with a Taser stun gun appearing in the camera frame, shocking Graham on the leg. And then, pushing him on his back and shocking him again — this time directly, and apparently deliberately, in his testicles. And Graham screaming silently as the electric shock to his genitals appeared to be repeated. The Statesman has also released 24 seconds of audio from the arrest. It contains just enough to add even more horror to the images above. It contains the tortured screams from the 18-year-old as he is tased by an officer. It contains another disheartening scream from Dyer, who was suffering through a bad LSD trip at the time of his arrest: "Where the fuck am I?" And, disturbingly, it contains an officer's brutal statement as he tased the bound teenager: "Motherfucker, I'm going to kill you." That officer was correct. The Mesquite PD did kill Graham Dyer. It killed him to save him from himself, according to the PD. “A Taser was deployed in an effort to control decedent, prevent escape and prevent him from injuring himself,” the city stated in court documents, adding the officer had been aiming for Graham’s leg and it was dark. The PD also killed Dyer with indifference. By the time Dyer arrived at the jail, he was in terrible shape. But to the five officers on the scene, he was just a piece of inconvenient meat. The videos of Graham as he was delivered to the jail also seemed at odds with the police department’s explanation of what occurred. According to the agency’s in-custody death report, upon arriving at the jail Graham had still needed to be placed in a special restraint chair “until the jail personnel noticed he was having labored breathing.” Yet the video the Dyers received from the FBI depicts Graham lying limp on the sally-port floor after being lifted out of the cruiser. As he tries to raise his head, one of the officers pushes it back to the ground. Records show it would be more than two hours before an ambulance was called. The Dyers can finally move forward with their lawsuit. The presiding judge says the evidence obtained -- no thanks to the Mesquite PD -- shows they have a plausible civil rights claim. The PD obviously hoped its public records exemptions would keep the Dyers from successfully suing it, much less actually finding out what happened that night. The government, far too often, insulates the worst of its employees against the public that's entrusted it with power. In many ways, the system is deliberately designed to push citizens towards resigned acceptance of abuse by authority figures. The courts, meant to be a check against government power, have been far too compliant for far too long. The end result is the ugliness above where no one in a position of power will do anything to assist constituents until forced to. And they'll will follow this up by doing as possible to deter future acts of violence and brutality. The cops involved in this arrest -- and every government official that's assisted in erecting a wall between police and accountability -- should take a good, long look at the terrorized teen captured by the police cruiser's camera and see if they still feel comfortable with their decisions. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Recently, we discussed an odd post by the American division of Atlus, the company behind the recently released game Persona 5. The post basically outlined restrictions on streaming the game in the popular "let's play" format. Those restrictions were pretty clearly geared towards keeping spoilers for the game's stories off of the internet, with indications that discussing or streaming game content that occur after an in-game date was verbotten. The post was also couched in threats for DMCA notices, which is odd because spoilers aren't what copyright law was designed to combat. The public backlash was fairly uniform, with Atlus coming out not looking particularly good as a result. It took a while, but Atlus has finally responded. While it positions this response as a loosening of the restrictions on streaming, it still keeps all of the worst aspects of the original restrictions in place. On Tuesday Atlus announced that they will allow players to stream or post videos from up until the in-game date of November 19, just before the story's final act. The post wrote it was in response to "numerous reactive news articles," opinion videos and "many emails" asking them to loosen the restrictions. "We also want to apologize to those of you who saw the previous guidelines as threatening," Atlus wrote. "It was never our intention to threaten people with copyright strikes, but we clearly chose the wrong tone for how to communicate this." That last bit is more than laughable. Here is the original text that from the first set of restrictions that caused concern among streamers that they would be hit with copyright strikes. This being a Japanese title with a single-playthrough story means our masters in Japan are very wary about it. Sharing is currently blocked through the native PS4 UI. However, if you do plan on streaming, video guidelines above apply except length. If you decide to stream past 7/7 (I HIGHLY RECOMMEND NOT DOING THIS, YOU HAVE BEEN WARNED), you do so at the risk of being issued a content ID claim or worse, a channel strike/account suspension. That seems pretty clearly to be a threat of copyright or DMCA notices if the rules aren't followed. As for the loosening of the restrictions on streaming, Altus essentially just pushed back the in-game checkpoint in the rules. Instead of prohibitions on streaming content beginning at the in-game date of 7/7, it now begins at 10/19. And if that following sentence doesn't read as purely absurd to you, then you need some help getting your mind calibrated. There is value in having fans stream games in let's play videos. This has been demonstrated repeatedly. Either Atlus buys into that or it doesn't. Straddling the line in the name of saving fans from spoilers, even after it has moved that line, isn't good enough. Restrict streaming. Or don't. Pick a lane, in other words, rather than trying to build guidelines based on in-game dates. That simply makes no sense. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
It was way back in the early part of 2016 that the rumors came out that the Oakland Raiders football team would be moving to a new home city. Fans were understandably upset and voiced their displeasure in a variety of ways, but the dumbest of those ways certainly must have been Lane Blue's attempt to trademark the team name in conjunction with all of the different potential landing cities the team was rumored to be moving to, including the "Las Vegas Raiders." Lane wasn't the only sad Raiders fan to attempt this, it seems, as we now see reporting on his and other trademark applications being denied for obvious reasons. Lane Blue, an air-freight company owner from Fresno, Calif., said that he applied for the trademark in an effort to stop the Raiders from relocating to Las Vegas. "If I own the trademark that’s worth possibly millions of dollars, maybe I can talk them into staying," Blue said, per KCBS. Blue's application was denied, as is likely with everyone else who applied for the trademark. The reason for the denial is that trademarks must be used in commerce in order to be valid. Trolling your favorite NFL team in order to prevent it from moving cities is not, as best as I can tell, a form of commerce. Instead, it's a form of being a mere annoyance to both that team and the Trademark Office. These squatting attempts, motivated either by fandom or attempts at a quick cash-grab, almost never work. "These people think they’re going to cash in, and 99.9 percent of the time, they’re wrong," sports-trademark attorney Patrick Jennings said, per KCBS. "For a trademark lawyer, it doesn’t take much effort to knock those (applications) out separate from the patent and trademark office." The only effect these applications are likely to have on the Raiders is a delay on them receiving the trademark. That could still be damaging, though, as knock-off "Las Vegas Raiders" gear is already flooding the marketplace. And that's supremely unfair for the Raiders ownership to have to spend the time and capital slapping these applications down. Meanwhile, of course, the Trademark Office is collecting the application fees from members of the public who somehow think a trademark application will bend an NFL team to its knees. Sorry, Raiders fans and get-rich-quick people, it isn't going to work. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Ahead of his testimony before the Senate Judiciary Committee on Wednesday, FBI Director James Comey released his planned testimony, which covers a variety of subjects Comey hoped to cover during the hearing. A lot of the talking points were touched on, but Comey spent most of his time fielding questions from pissed-off senators about how much they were disappointed in recent FBI investigations. The testimony Comey planned to give contains another discussion of the FBI-centric "going dark" issue. According to Comey, device encryption has blocked FBI's searches nearly 50% of the time, preventing it from pulling data from more than 3,000 phones. Comey also says other approaches -- such as using metadata or cellphone forensic software -- won't work. They're too expensive and won't scale. Left unsaid is Comey's desire for legislation or a few precedential court decisions to force manufacturers to compromise their customers' security. He makes this argument by conflating privacy and security and using this conflation to arrive at a completely wrong conclusion. From Comey's testimony [PDF]: Some observers have conceived of this challenge as a tradeoff between privacy and security. In our view, the demanding requirements to obtain legal authority to access data—such as by applying to a court for a warrant or a wiretap — necessarily already account for both privacy and security. The FBI is actively engaged with relevant stakeholders, including companies providing technological services, to educate them on the corrosive effects of the Going Dark challenge on both public safety and the rule of law. The FBI thanks the committee members for their engagement on this crucial issue. Warrants and court orders cover the "privacy" end of the argument, but using court orders (or legislation) to force device makers to build backdoors in users' devices throws security out the window. The balancing act in the encryption debate has never been "privacy vs. security." It's been "security vs. insecurity." Comey's false equation presents privacy and security as two sides to the same coin, yet somehow completely separable in the presence of a court order. Fourth Amendment protections cover the privacy end, but showing up at a device backdoor with a warrant in hand does nothing for anyone's security. Comey doesn't want a balancing act, despite all his assertions about "adult conversations" and deferring to the "smart people" at tech companies. He wants device owners to sacrifice security in exchange for protections they're already guaranteed by the Fourth Amendment. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
One of (several) reasons why American broadband is so uncompetitive is the fact that we continue to let giant broadband mono/duopolies quite literally write awful state telecom law. As we've long noted, more than twenty different states have passed laws making it difficult to impossible for towns and cities to improve their local broadband networks -- even in instances when the entrenched duopoly refuses to. Many of these laws even ban towns and cities from entering into public/private partnerships with the likes of Google Fiber. It's pure protectionism. Maine is the 49th ranked state in broadband speed and coverage -- in large part due to rural markets. Despite countless years of subsidies, broadband providers consistently refuse to seriously upgrade these areas at any scale due to costs. And yet they refuse to let the towns do it themselves, either. State Representative Nate Wadsworth has introduced HP1040, aka "An Act To Encourage Broadband Development through Private Investment." Except like so many of these bills, the proposed law's name is a stark 180 from what the legislative measure actually does. You see Wadsworth is a state chair for ALEC, the group most ISPs use to help them ghost write these protectionist bills. And Wadsworth's proposal, like countless others, imposes a laundry list of restrictions on any town or city that might dare try to do something about the fairly awful service state residents receive from the likes of Frontier Communications and Comcast. From limits to how money can be raised to requirements for repeated public referendums (at which point deep-pocketed ISPs outspend local advocates), communities suddenly face all manner of restrictions on what they can or can't do in their own backyards. Page Clason, Member of the Islesboro Broadband Committee, described HP 1040 this way: "I would say this proposed bill is puzzling because while suggested to promote investment of broadband in Maine it would do the opposite. Nothing in the bill provides stimulus, most everything in the bill provides increased hurdles and costs for communities needing the broadband investments. The only stimulus I can garner from such an approach would be that the largest providers would be further comforted that no other service providers would show up to do the builds that the dominating providers have not been supplying for the last few decades." More often than not, backers of these bills claim they're only looking to protect taxpayers from fiscal mismanagement. But community broadband networks aren't by nature inherently dysfunctional (though they're often sold that way by municipal broadband opponents). They're like any other business plan: some are good, and some aren't. But the reality is that towns and cities wouldn't be getting into the broadband business if they were happy with local service. The "solution" to this organic backlash isn't letting giant duopolists write shitty law; the solution is more competition. And laws banning municipal broadband -- and especially public/private partnerships -- accomplish the exact opposite of that. And while large ISPs (and their ocean of paid think tankers, economists, and other doller-per-holler professionals) have tried to make this a partisan issue -- the vast majority of municipal networks are built in Conservative areas with broad, bipartisan support. That's because there's one thing we can all agree on: nobody likes the local cable and broadband monopoly. And, as the local Maine newspapers make clear, consumers aren't half as dumb as many politicians think they are: "I can guarantee you if this bill moves forward, they will hear from an awful lot of very angry people," (said one Maine resident). “Maine people are self-reliant, but island people are very self-reliant. When the boat stops at the end of the day, we take care of each other, and if somebody comes in from the outside and says we can’t take care of ourselves, that message won’t go over well." The public is, however, inattentive -- and so state by state, large ISPs like Frontier, CenturyLink, AT&T and Comcast continue to push such bills through state legislatures. When they can't get a bill passed once, they'll try repeated times. When that doesn't work, they'll try to push these restrictions through via entirely unrelated legislation, like traffic bills. These same companies will then whine excessively about "overreach" when government does things they don't like, but remain dead quiet when they use that precise same government to protect the dysfunctional status quo. Update: Lo and behold, the fierce public opposition has resulted in the bill being killed. Pressure appears to have been so intense, even the bill's sponsor, Nate Wadsworth, voted it down. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
The UK's long-gestating Digital Economy Act has finally gone into force. The law is mainly interested in porn and pirates -- two issues most of the UK public is far less interested in having subjected to intrusive regulation. But just keeping an eye on who is or isn't availing themselves of porn/torrents isn't the only intrusive aspect of the Act. As Joseph Cox of Motherboard points out, an amendment to the law grants some pretty scary new powers to UK law enforcement, allowing them to kill citizens' means of communication. [L]aw enforcement agencies can remotely disable or restrict a mobile phone if it is suspected of being used for drug dealing or related to it, and in some cases regardless of whether a crime has actually been committed, according to legal commentators. Law enforcement isn't being given a kill switch. But it's being given the next best thing. With a court order, police can approach service providers and have them restrict or cut off service. The only thing law enforcement will have to provide is a vague theory the targeted phones may be involved in criminal activity. Orders can apply if the user is "facilitating the commission by the user or another person of a drug dealing offense," or "conduct of the user that is likely to facilitate the commission by the user or another person of a drug dealing offence (whether or not an offence is committed)." Nice touch there, with the "whether or not an offence is committed." A person may not know someone they communicate with is involved in criminal activity, but they're at risk of having their phone service interrupted (possibly indefinitely) nonetheless. The only way this part of the Act [PDF] could be considered "narrowed" or "tailored" is its limitation to alleged drug-related crimes. That narrowness is immediately removed once you realize how things like buying gardening supplies or driving around with too many air fresheners is considered evidence of drug trafficking. So, UK police will be doing even more "pre-crime" work, robbing people of their ability to converse with others or keep up with the world around them using nothing more than a target being in the same social circle as criminal suspects currently under investigation. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
The $29 Professional Android Developer Bundle includes 5 courses designed to help you create interactive apps from scratch. You will learn the fundamentals of operating systems and you'll dive into Java, one of the most universally used programming languages, and build a strong foundation in Object-Oriented Programming. The courses also cover JavaScript and the essentials of building apps in the Android operating system. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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