posted 21 days ago on techdirt
A case involving a bogus arrest stemming from a citizen's attempt to record officers has resulted in the denial of qualified immunity to the officers involved. The Eighth Circuit Appeals Court upheld the lower court's decision on both First and Fourth Amendment issues. Plaintiff Brian Hoyland was awakened by the sound of police activity in his front yard. Opening his door, he found officers trying to arrest his wife, who was the passenger in a car suspected of being involved in reported drag racing. This is what Hoyland did from 30-40 feet away, ultimately resulting in him being arrested for obstruction. From the opinion [PDF]: Out of concern for their safety, Hoyland moved his children to the back of the house and retrieved a cell phone to record the incident outside. He intended to remain inside but changed his mind when he believed he heard the officers yell “shoot” or “shooting.” He proceeded to switch the porch light on, open his front door, and hold his phone, which was recording, out in front of him. And this is the reaction he got: Within seconds, an officer shouted, “Drop the camera!” McMenomy yelled at Hoyland to go back inside the house. Hoyland remained where he stood and began screaming at the officers. He shouted, “You are in my yard!” and “What is this, a DWI stop, and you guys are doing this? Are you kidding me?” Hoyland also yelled that his wife was handicapped and demanded that the officers do their jobs “the right way.” McMenomy again ordered Hoyland to “stay inside.” Immediately following this command, with Hoyland remaining in the doorway, “the arrest decision was made” by McMenomy who shouted “you are under arrest,” and ordered Hoyland to raise his hands. About thirty seconds of time elapsed between Hoyland’s emergence from his house into the doorway and McMenomy’s pronouncement that he was under arrest. Hoyland did not resist, raised his hands and laid down on the ground, following the instructions given by the officers. He was taken into custody by McMenomy and Cho without incident. Since the confrontation was recorded, there is little room for variances between Hoyland and the officers' testimony. As the court sees it, there is no question Hoyland did nothing even remotely approaching "obstruction." Throughout this encounter, Hoyland never left the area around his front door, failing to ever come closer than 30-40 feet from the officers. He never told his wife or Illetschko to disobey the officers’ commands. He never ran away or resisted the officers as he himself was arrested. Finally, he never physically intervened, and never attempted to physically intervene, in the arrest of anyone. The local prosecutor found the charge baseless. The prosecutor stated it was clear Hoyland came out to inform officers of his wife's disability while recording the event. At best, Hoyland's actions were nothing more than a "fleeting interruption." The Appeals Court comes to the same conclusion. Having failed with the "it was obstruction" argument, the officers attempted to portray Holyand's arrest as a necessity for officer safety. The court finds this no more convincing. Any fear of danger the officers felt due to Hoyland’s presence cannot justify an arrest for obstruction. McMenomy asserts that his mind raced in fear of an ambush when Hoyland emerged from the house. This fear, according to the officers, made Hoyland’s arrest reasonable after he refused to go back inside his home. But the officers are mistaken. However reasonable the command for Hoyland to go back inside may have been, his refusal to do so did not constitute obstruction. As Minnesota law makes abundantly clear, obstruction must be either physical obstruction or verbal conduct, such as fighting words, that has the effect of physically obstructing officers in the performance of their duties. Nowhere in Minnesota law does mere physical presence at a distance constitute obstruction. So arresting Hoyland for obstruction due to his continued presence in his doorway was unreasonable under state law. Even when we consider his verbal conduct, no reasonable officer could construe his shouting as “physically obstructing or interfering” in the officers’ performance of their duties. See Krawsky, 426 N.W.2d at 877. Admittedly, he was shouting criticisms at the officers. But “[i]n a democracy, public officials have no general privilege to avoid publicity and embarrassment by preventing public scrutiny of their actions.” See Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005). And none of Hoyland’s comments could be reasonably interpreted as rising above scrutiny to create a threat or a danger to police or to constitute obstruction. This allows Hoyland to continue pursuing his Fourth Amendment claim. The court moves on to the First Amendment. Again, the officers argued there was no stifling of Hoyland's First Amendment rights because a) he was obstructing officers, and b) even if he wasn't, he had no Constitutional right to record a traffic stop. The court spends barely any time discussing the officers' obstruction bullshit. Instead, it concentrates on the officers' misguided assertions, which are backed by a previous court decision that's not nearly as helpful as the officers believe it is. [T]he officers argue that, under Colten v. Kentucky, Hoyland “had no constitutional right to observe a [felony traffic stop] or to engage the [arresting] officer[s] in conversation at that time.” [...] But the officers’ reliance on Colten is misplaced for three reasons. First, the location of the traffic stop in Colten—a busy highway—implicated important concerns of public safety. Here, the arrest took place in a residential area with no other vehicles or persons around. And Hoyland was not standing on the side of a highway observing a traffic stop, but rather standing in the doorway of his own home trying to tell the officers that his wife was handicapped… Here, Hoyland is not challenging the constitutionality of a statute; he is bringing a § 1983 claim against the officers for retaliating against him for exercising his First Amendment rights. Colten, on the other hand, was simply “refusing to move on after being directed to do so . . . without more.” [L]ater Supreme Court cases make it clear that the First Amendment protects verbal criticism directed at police officers. See, e.g., Hill, 482 U.S. at 461. “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state.” Id. at 462-63. Thus Hoyland’s communications were protected activity. The court goes on to point out Hoyland has a possibly legitimate argument the arrest was made to prevent him from exercising his First Amendment rights. McMenomy’s deposition testimony clearly shows that the arrest decision was not made after Hoyland had ignored the initial order to go back inside. It was only after Hoyland had stood in the doorway shouting criticisms and messages about his wife’s physical disability that the arrest decision was made… The arrest decision was not made when Hoyland first disobeyed an order, but only after he had begun exercising his First Amendment rights. Because the charge was bogus and the officers had no probable cause for Hoyland's arrest, both his Constitutional claims will have to be faced by the government defendants. As the court concludes, immunity is a privilege, not a right, and should be treated as such by courts and those seeking to avail themselves of it. Police officers have a tough job. They must confront dangerous situations and make difficult decisions in short time frames. This is why we offer the protection of qualified immunity—to insulate officers from the constant threat of litigation while serving and safeguarding their fellow citizens. But to receive that protection, we must find as a matter of law that the officers acted within the confines of the Constitution. They must avoid arresting persons without at least arguable probable cause. They must not take adverse actions against persons for exercising their First Amendment rights. Looking at the facts of this case, we cannot hold as a matter of law that the officers acted constitutionally. The court doesn't go so far as to establish a right to record police, but it does offer up enough precedential cases to make any arguments to the contrary unlikely to find sympathy with the judges. As for Hoyland, he at least has a chance to make his case at the lower level and receive some sort of compensation for an interaction with officers that began with them ordering him to stop filming and ended in a bogus arrest. Permalink | Comments | Email This Story

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Leaving aside the AAA publishers for a moment, the video game industry is actually starting to get really good on recognizing better ways to react to copyright infringement other than pounding their fists on their tables and knee-capping their customers with DRM. This still occurs, of course, but we've also seen stories of publishers treating pirates as potential customers with whom it's worth connecting, giving away Steam keys on torrent sites, or just playfully messing with pirates instead of screaming at them. These efforts generally are done to the tune of great PR and the humanization of a content company that can only help their businesses. And, thankfully, it's not a trend that is slowing down. Acid Wizard Studio, publishers of the game Darkwood, made some recent news by deciding to put its own game on the Pirate Bay. On torrent site The Pirate Bay, typically the domain of illegal rips of media, one username among dozens uploading the horror game Darkwood stands out: the game’s publisher. Today, the Poland-based Acid Wizard Studio uploaded their own game for free with “no catch, no added pirate hats for characters,” their torrent description reads. Now, why Acid Wizard Studio did this is somewhat unique in these kinds of stories. In part, the studio says it did this because it doesn't want to keep the game from those who truly cannot afford it. It aimed this message particularly at children who game at the pleasure of their parents' credit card bills. But while we've seen that sort of thing done before, the studio also did this because it believes the Steam key reselling business is the greater evil compared with piracy. Acid Wizard saw a comment from someone who refunded the game because they didn’t want their parents to get stressed out over the bill, Acid Wizard writes on Imgur. “If you don’t have the money and want to play the game,” they say, “we have a safe torrent on the Pirate Bay of the latest version of Darkwood.” They explain that a flood of emails asking for free Steam keys helped bolster their decision to upload a free Darkwood torrent to The Pirate Bay, and asked that those who can afford it later buy it discounted on Steam. It’s an interesting move that spits in the face of shady key-selling services like G2A, where Acid Wizard figures a lot of the free keys they’d send out would go. “This practice makes it impossible for us to do any giveaways or send keys to people who actually don’t have the money to play Darkwood,” Acid Wizard writes. “Please, don’t buy it through any key reselling site. By doing that, you’re just feeding the cancer that is leeching off this industry.” The replies to the studio's message were almost universally positive, with many promising to try the game out via the torrent and buy it afterwards if they liked it. How many of those people ever would have tried the game out at all, illlicitly or otherwise, is impossible to determine, but it seems obvious that the amount of additional sales revenue that will be generated because of this is not zero. In other words, the publisher gets the good PR of treating people well, gets to make a point about a key-reselling industry that is genuinely pretty scummy, and picks up some indeterminate number of sales in the process. That's the kind of nimble response to piracy the AAA publishers should recognize as a winning strategy. Permalink | Comments | Email This Story

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The government will be paying its opponent's legal fees after needlessly drawing out FOIA litigation, the Ninth Circuit Appeals Court has decided [PDF]. The First Amendment Coalition sued the Department of Justice after it refused to produce documents discussing the legal rationale for extrajudicial drone strikes targeting American citizens. The legal memo FAC sought was the same legal memo the ACLU and New York Times sued the DOJ for refusing to release. (Or so the FAC thought. But its litigation -- along with the ACLU/NYT litigation -- made it clear the government was holding on to more than one legal memo.) In the NYT/ACLU case, the Second Circuit Court told the DOJ to cough up its justification for killing Anwar al-Awlaki, pointing to several public comments made about the drone strike by prominent US government officials. The court wasn't interested in the DOJ's arguments something publicly discussed frequently would be too "sensitive" to put in the hands of the ACLU and New York Times. The DOJ made the same arguments in this case, but the Second Circuit decision undoes its attempt to fend off FAC's legal fees claims. Factoring into the Ninth's conclusions is the leak of a white paper by the US government providing its legal analysis of extrajudicial drone strikes. This was then followed by an official release of the same white paper. This leak -- and the court-ordered release of the DOJ's legal memo to the ACLU and New York Times -- prompted the FAC to ask the district court to vacate its decision in favor of the DOJ's secrecy and award it legal fees, since it was seeking the same document. This motion was filed nearly three years ago, just to give you some idea how long the DOJ has dragged out a losing legal battle. The Appeals Court notes the documents might not have been released by the government if it hadn't been for its entanglement in multiple FOIA lawsuits. As the court points out, the fact that the government voluntarily handed the documents to the FAC after the drone strike white paper's official release doesn't absolve it of racking up FAC's legal fees for no apparent reason. FAC was met with abject resistance throughout the entire litigation until the OLC-CIA memo was produced roughly two and a half years after the lawsuit was initiated, and almost a year and seven months after the Government waived any secrecy or privilege with the official release of the White Paper. Additionally, FAC's litigation is possibly the only reason the public's now aware there are multiple legal memos justifying extrajudicial killings of American citizens. There is no question that the Second Circuit’s decision in the SDNY litigation was an impetus for FAC to continue its litigation. But what actually triggered the release of the OLC-CIA memo was that FAC sought to vacate the district court’s grant of summary judgment. It was the appellant’s “dogged determination,” therefore, that led the district court to “direct” the parties to discuss whether the litigation was moot, and which resulted in the Government’s decision—as acknowledged by the lower court—to “voluntarily disclose[] the CIA memorandum to [FAC].” Because of FAC’s efforts, the public then learned that the OLC-DOD memo was not the first memo addressing the justification for the drone attack, nor was it identical to the prior OLC-CIA memo. Plaintiff’s litigation, therefore, “triggered the release of additional or key documents.” Summing it up, the Ninth Circuit Appeals Court has harsh words for both the DOJ and the lower court. There is no reason why the district court failed to recognize, as the Second Circuit did, that the official release of the White Paper—coupled with all the prior public statements of high-ranking Government officials— constituted a waiver of any secrecy and privilege that the Government had asserted. The district court, therefore, erred in granting summary judgment and dismissing the complaint. But for this error, the district court litigation would have ended earlier. Thus, FAC had to endure unnecessarily protracted litigation. It is counterintuitive to punish FAC for expending additional legal fees to pursue the litigation, when it would have sooner been entitled to the release of both memoranda—and the right to recoup its counsel fees—if not for the district court’s error. The lawsuit now goes back to the lower court to determine how much the government will be paying FAC for the DOJ's protracted refusal to even acknowledge the existence of drone strike memos government officials couldn't stop talking about. Permalink | Comments | Email This Story

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For years now, we've discussed why it's problematic that people are demanding internet platforms moderate more and more speech. We should be quite wary of internet platforms taking on the role of the internet's police. First, they're really bad at it. As we noted in a recent post, platforms are horrendously bad at distinguishing abusive content from those documenting abusive content and that creates all sorts of unfortunate and bizarre results, with those targeted by harassing content often having their own accounts shut down. On top of that, the only way to actually moderate content at scale requires a set of rules, and any such set of rules, as applied, will create hysterically bad results. And that's because the scale of the problem is so massive. It's difficult for most people to comprehend even slightly the scale involved here. As a former Facebook employee who worked on this stuff once told me, "Facebook needs to make one million decisions each day -- one million today, one million tomorrow, one million the next day." The idea that they won't make errors (both of the Type 1 and Type 2 category) is laughable. And it appears that the scale is only growing. Facebook has now admitted that it shuts off 1 million accounts every single day -- which means that earlier number I heard is way low. If it's killing one million accounts every day, that means it's making decisions on way more accounts than that. And, the company knows that it gets things wrong: Still, the sheer number of interactions among its 2 billion global users means it can't catch all "threat actors," and it sometimes removes text posts and videos that it later finds didn't break Facebook rules, says Alex Stamos. "When you're dealing with millions and millions of interactions, you can't create these rules and enforce them without (getting some) false positives," Stamos said during an onstage discussion at an event in San Francisco on Wednesday evening. That should be obvious, but too many people think that the answer is to just put even more pressure on Facebook -- often through laws requiring it to moderate content, takedown content and kill accounts. And, when you do that, you actually make the false positive problem that much worse. Assuming, for the sake of argument, that Facebook has to kill 10% of all the accounts it reviews, that's 10 million accounts every day. If the punishment for taking down content that should have been left up is public shame/ridicule, that acts as at least some defense to get Facebook to be somewhat careful about not taking down stuff that it shouldn't. But, on the flip side, if you add a law (such as the new one in Germany) that puts criminal penalties on social media companies for leaving up content that it wants taken down, you've changed the equation. Now, the choice isn't between "public ridicule vs. bad person on our platform" it's "public ridicule v. criminal charges and massive fines." So the incentive for Facebook, and other platforms changes such that it's now encouraged to kill a hell of a lot more accounts, just in case. So suddenly the number of "false positives" is going to sky rocket. That's not a very good solution -- especially if you want platforms to support free speech. Again, platforms have every right to moderate content on their platforms, but we should be greatly concerned when governments are forcing them to moderate in a way that may have widespread consequences on how people speak, and where those policies can tilt the scales in often dangerous ways. Permalink | Comments | Email This Story

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We've always had difficulty understanding why copyright or trademark law should even have "criminal" components to them. It seems fairly obvious that they can be handled easily enough with civil actions, without involving law enforcement. And this matter is only reinforced every time law enforcement tries to get involved in copyright and trademark enforcement. They seem oddly... almost unable to comprehend that infringement is different than theft and that it requires a different thought process and analysis. Time and time again, we see this crop up, both in the US and around the world. And it remains consistent no matter who is in charge. Under Obama, the DOJ was terrible on intellectual property issues, and that's now carrying over to the Trump administration. Deputy Attorney General Rod Rosenstein just gave a talk at the Interpol International Law Enforcement IP Crime Conference -- which, as you can imagine, is not a place where nuanced discussions on infringement are expected. And Rosenstein lived down to low expectations in delivering a speech full of silly analogies and misleading statements that show little understanding of the deeper underlying issues when it comes to copyright, trademark and patents. It starts out with a particularly silly analogy: As a child, I learned a fable about a hen that finds some wheat grains and asks other animals for help in planting them. Nobody is willing to help, so the hen does the work itself. At every stage of the process – harvesting the wheat, threshing it, milling it into flour, and baking the flour into bread – nobody wants to help. But when the work is finished, everyone wants to eat the bread. Modern intellectual property is more complicated than baking bread, but the same fundamental principle applies. If we let some people steal things without compensating the people who produce things, the incentive to create new things will be lost. Huh? The famed Little Red Hen story isn't about "letting some people steal things without compensation." It's got nothing to do with that. But, already we're off on the wrong foot as Rosenstein has leapt to a misleading understanding of intellectual property issues in the first place -- comparing a finite resource with an infinite one, and falling back on a silly -- and legally incorrect -- claim of "stealing." Similarly, "the incentive to create new things will be lost" is a familiar trope, but one that is simply proven wrong time and time again by history. As we've noted, over the past twenty years or so, even as the internet has enabled ever greater piracy, it has also created an astounding revolution in new content production. The problem is that so many people assume -- incorrectly -- that the "incentive" for creation is getting the copyright, patent or trademark, rather than the many other incentives. Many of those other incentives do involve making money, but not necessarily by using intellectual property law to do so. And for many, it's not the monetary incentives that drive creation at all. Arguing that infringement decreases incentive to create is simply not borne out by history. It shows a level of ignorance that is disappointing, if not surprising, for a top DOJ official. Intellectual property enforcement assures innovators and investors that when they devote time and money to develop new concepts and products, they will reap the financial rewards. No, it doesn't, actually. There is no guarantee that anyone reaps any financial awards. It's not a system of welfare for creators. And, even if you make the argument that the laws themselves help structure a business model that allows the holders of the copyright, patents and trademarks (not necessarily the creators of the underlying works) that still has nothing to do with criminal enforcement. And, again, there are many, many business models that don't rely on copyright, patent or trademark law to "reap the financial rewards." Insisting that those are necessary is short sighted and misleading. If governments fail to protect intellectual property rights, the immediate consequence will be monetary losses to individual property owners. Not necessarily. This assumes that any infringing copy is a lost sale -- a myth that also is rarely supported by evidence. But the long-term impact will be less investment of time and resources, and fewer innovations for society at large. Another myth, not supported by actual data. As we noted above, even as internet piracy increased, so did the development and output of content. This conference represents an ongoing commitment by law enforcement, industry partners, and other stakeholders from all over the world to come together and identify ways to protect intellectual property and the industries that fuel the modern global economy. These protections are critical to almost every sector of the economy, from new, life-saving drugs and medical techniques that allow us to live longer and healthier lives; to computers and software that run the devices we use to navigate the airplanes and trains and taxi cabs that brought us here today; to applications on the smartphones we use to purchase coffee. The thing is, many in the tech industry don't want the DOJ getting into their business. They don't need "protection." They just want to innovate. The people making apps on smartphones these days are often the ones leading the charge against over aggressive enforcement of IP laws. Yet, here, Rosenstein is pretending that he represents their views. One of our challenges is that intellectual property crime does not look like traditional crime, where the perpetrator takes a physical item directly from the victim. Everybody understands that it is wrong to walk into a business and take property without permission. In contrast, the individual act of downloading a movie from a file-sharing site, or buying a cheap knockoff of a name brand item, may seem harmless. But the accumulated economic loss from thousands or millions of those illegal transactions can destroy legitimate businesses, eliminate the incentive to invest in innovation, and undermine the rule of law. It doesn't look like traditional crime because it's not traditional crime. And in many cases it seems harmless because it is harmless. Clearly, that's not true in all cases, but in many, it is. Many people downloading a movie would never pay for it in the first place. There's no economic loss there. Many people buying a cheap knockoff brand item, would never buy the full price item. There's no loss there. In fact, multiple studies have shown that when it comes to knockoff goods, the purchase is often an aspirational purchase. That is, they know they're buying a fake, but they buy the knockoff and end up buying the real version later, when they can afford to. In other words, knockoffs and copies often act as cheap or free marketing for more expensive products. But Rosenstein can't even consider that as a possibility. Rosenstein's piece goes on in this vein for quite some time, and at some point there's no use debunking each and every point. The problem here is really the simplistic "law enforcement" mindset that insists that infringement is theft (it's not) and that any infringement must be bad (even though it's not) and damaging to society (even though it's not). Is it really too much to hope for officials who can actually understand the nuance related to these issues? Permalink | Comments | Email This Story

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For years, HBO and owner Time Warner fell into the trap of telling customers what they wanted instead of the other way around. You might recall that HBO and Time Warner spent years waging a rather scorched earth assault on piracy and other "unauthorized viewing," going so far as to poison show torrents and shut down "Game of Thrones" viewing parties. A major problem with this approach is that HBO wasn't fully providing pirates an alternative. While HBO was offering streaming to existing cable customers, it spent years ignoring consumer calls for a standalone streaming video platform that didn't require cable. There were any number of reasons for this myopia, the biggest being that like any good legacy company, HBO and Time Warner execs were afraid of wounding the traditional cable cash cow (even if said cow was already showing signs of notable mortality at the time). More specifically, HBO was afraid of hurting the cozy, heavily-subsidized relationship HBO enjoys with many cable providers, who all but give the channel away on occasional promotion. So while offering a standalone streaming platform was essential in evolutionary context, HBO consistently insisted it just couldn't make the economics work for such an option. So while Time Warner and HBO execs were busy trying to downplay cord cutting as a fad, the piracy of HBO programs continued to smash BitTorrent swarm and other piracy records. That was until March of 2015 when HBO was forced to finally acknowledge the changing tides and launched HBO Now, its standalone streaming app. Fast-forward a little more than two years, and that decision is looking pretty good now in hindsight: The “Game of Thrones” effect is in full force for HBO NOW, the premium network’s streaming service for cord cutters. According to new data from app market data provider App Annie, the iOS and Android versions of the HBO NOW mobile app have together generated $19 million in U.S. revenue for the two months containing the airing of “Game of Thrones” Season 7, as of Monday, August 21. App Annie says it expects HBO NOW’s mobile apps to pull in well over $20 million by the end of the month. The show’s outsized popularity has again sent the HBO NOW app flying up the Top Revenue charts on the iOS App Store, too. Roughly one month after the Season 7 premiere, HBO NOW became the number one app in terms of Overall iPhone revenue. It grabbed that spot on August 16th, 2017, and remained the top app by revenue for two more days. That's pretty good for a service executives had to be dragged kicking and screaming toward, though you'd wonder how much more successful the platform could have been with an earlier start. And while "Game of Thrones" piracy is still booming, and HBO is still sending nastygrams to user ISPs in the hopes of thwarting it, at least HBO is now offering these users a legitimate alternative. An alternative that could provide more value over time if HBO experiments with price, or works on partnerships with smaller ISPs that have been contemplating getting out of traditional cable TV because they lack the leverage to compete with industry giants. It's a similar predicament that's now facing ESPN, which, like HBO, spent years believing it could stand in the wings nursing its cash cow with a dumb look on its face while the entire pay TV ecosystem shifted under its feet. With cord cutting, phase one usually involves denying that the trend is happening, followed by acknowledging the trend but insisting it's some kind of fad. That's usually followed by the pretense that you saw and prepared for the trend all along despite all the data showing the opposite. It's usually good to throw in some make believe about how you're the one that gets to decide when to adapt for good measure There's no doubt that adaptation will make these companies less money over the short term, but executives often struggle to realize a core truth: they don't have a choice. Cord cutting and the shift to IP video is happening whether these executives like it or not, and they can choose to stand mid-river in futile opposition to the flow, or adapt and take an early hit as the legacy cash cow dies, but be much better positioned for the future, whatever consumers determine they want it to look like. Permalink | Comments | Email This Story

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In a move that will have major implications for the online world in India and beyond, nine Supreme Court judges have ruled unanimously that privacy is a fundamental right under the Indian Constitution. As part of a decision spanning 547 pages (pdf) they declared: Privacy is the constitutional core of human dignity. The case was brought as a result of a legal challenge to India's huge biometric database, Aadhaar, whose rise Techdirt has been charting for some years. A post on the EFF Web site explains the legal background, and why the Supreme Court decision was necessary: The right to privacy in India has developed through a series of decisions over the past 60 years. Over the years, inconsistency from two early judgments created a divergence of opinion on whether the right to privacy is a fundamental right. Last week's judgment reconciles those different interpretations to unequivocally declare that it is. Moreover, constitutional provisions must be read and interpreted in a manner which would enhance their conformity with international human rights instruments ratified by India. The judgment also concludes that privacy is a necessary condition for the meaningful exercise of other guaranteed freedoms. Now that a solid constitutional foundation for privacy in India has been affirmed, other judges will proceed with examining the legality of Aadhaar in the light of the many relevant points made in the ruling: The Aadhaar hearings, which were cut short, are expected to resume under a smaller three- or five-judge bench later this month. Outside of the pending Aadhaar challenge, the ruling can also form the basis of new legal challenges to the architecture and implementation of Aadhaar. For example, with growing evidence that state governments are already using Aadhaar to build databases to profile citizens, the security of data and limitations on data convergence and profiling may be areas for future privacy-related challenges to Aadhaar. A case challenging WhatsApp's new privacy policy that allows content sharing with Facebook is also certain to be affected by the ruling, but the ramifications go far beyond Aadhaar and the digital world. As an analysis in the Economic Times notes, the judgment could lead to the decriminalization of homosexuality in India, as well as affecting laws that restrict a person's right to convert to a different religion, and state-level rules that impose restrictions on animal slaughter. The breadth of those possible impacts underlines just how epoch-making last week's decision is likely to prove. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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We've noted time after time how the trend du jour in online media is to kill your news comment section, muzzle your valuable on-site community, then couch the decision under all manner of disingenuous prattle. Reuters and Recode, for example, killed visitor news comments several years ago because, they claimed, the companies really value conversation. The Verge also tinkered with killing comments, purportedly because it just really valued relationships. As we all know, nothing quite "builds relationships" and gets the conversation going like a muzzle, a wave, and a swift digital kick in the ass. Other websites couch their decision to mute their users under the pretense that it's just an "experiment," and the website will return with something more interactive and wonderful down the line. More often than not, this never happens. Case in point is NPR, which announced last summer that it too would be banning all public community feedback out of a deep rooted love for building community and audience engagement: "After much experimentation and discussion, we've concluded that the comment sections on NPR.org stories are not providing a useful experience for the vast majority of our users. In order to prioritize and strengthen other ways of building community and engagement with our audience, we will discontinue story-page comments on NPR.org on August 23." Ironically, public comments on NPR's post at the time were hugely negative, with numerous loyal readers saying the act of pushing them over to Facebook was, in effect, a giant middle finger to the readership. But because interesting discourse and community can't always be directly monetized by bean counters, this blowback was largely ignored. While NPR hinted that it might bring back comments eventually after some experimentation, a new blog post points out that won't be happening. Why? NPR traffic went up anyway despite the decision: "At the time commenting was ended, there was speculation that the number of users coming to NPR.org would drop. In fact, the number of users for the May-to-July period grew 18 percent in 2017 compared with the year-earlier period, according to Google Analytics numbers Goo provided. (Year-over-year monthly growth has been as high as 37 percent.)" Except the spike in NPR traffic many have had nothing to do with comments one way or the other, and could be easily attributable to the fact that the current U.S. political environment has obtained historical levels of batshit. It's also myopic to weigh the benefits of news comments by just traffic. Comments, when managed to minimize idiocy, provide an easy, public way to hold writers and publishers accountable for misleading claims or story errors in a highly visible location. Though few publishers can admit it, eliminating this public forum and returning to era of non-transparent letters to the editor is a major incentive for this shift. At the end of the day, this fashionable assault on ye olde comment section has little to do with valuing community and conversation, and everything to do with illusory control and trying to save money. NPR admitted as much to the latter last year when asked about the decision on Twitter: honestly, it was a tough call. We just have to prioritize our resources and the scale of user interactions had shifted. — Scott Montgomery (@scottmdc) August 17, 2016 Except this narrative that giving a damn about your online community has to be time consuming and expensive is also not really supported by the facts. Studies have shown it's not really that hard to cultivate a healthier on-site comment section by simply having site employees and writers show up and treat the readership like human beings. Again, though, because the act of actually caring about quality discourse can't be directly monitored and displayed on a pie chart, it's being ignored. And that's a mistake in an era where news as a community conversation is more important than ever. Will the world end with the loss of online news comments? No. But they do provide users with an easy and transparent way to debate, discuss and treat news as exactly what it is in the modern era: a conversation. Removing this public forum is a disservice to the news industry at large, and pretending it's being done out of some noble regard for higher human interaction only adds insult to injury. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
On June 14th, the New York Times published an editorial concerning violent rhetoric being deployed during political races. In it, the author made an incredibly bad claim: Was this attack [by Hodgkinson] evidence of how vicious American politics has become? Probably. In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear. Before the shooting, Sarah Palin's political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs. This just simply wasn't true. To begin with, Palin's map contained only political districts under stylized crosshairs, not faces of legislators. Not only that, but there's been no conclusive link between Palin's crosshair map and Loughner's shooting. This was noted in two corrections published by the New York Times the next day, which also excised the two false statements. Sarah Palin sued the New York Times for defamation a few weeks later because it apparently just wasn't enough to catch a "fake news" purveyor making some truly laughable assertions in an op-ed. The defamation suit has died a quick death, although Palin's claims were investigated with a bit more thoroughness than usual once the parties had entered their motions. An examination of the run-up to the publication of the erroneous op-ed showed there was no actual malice in the New York Times' assertions -- just some really bad op-edmanship. The statements were provably false, which is key to defamation claims, but there also has to actual malice. And while many people think they know what's meant by actual malice, it's probably not what you think. In the legal context, actual malice requires "knowledge" of falsity before publication or reckless disregard. It doesn't just mean that you were trying to be mean (indeed, you could argue that "actual malice" doesn't require any... um... actual... malice). In this case, the court just can't find any knowledge of falsity -- and thus, no actual malice. [PDF link] [E]ven then, a defamation complaint by a public figure must allege sufficient particularized facts to support a claim of actual malice by clear and convincing evidence, or the complaint must be dismissed. Here, as already mentioned, the complaint fails on its face to adequately allege actual malice, because it fails to identify any individual who possessed the requisite knowledge and intent and, instead, attributes it to the Times in general. This will not suffice. The court also points to the proactive measures taken by the Times to correct the misstatements after they were brought to its attention as evidence of a lack of actual malice. The corrections weren't prompted a lawsuit or threats of a lawsuit, but rather by readers displeased the Times would make a connection between Palin and Loughner that had never been established. Even if the Times hadn't made these immediate efforts, the court still would likely have cut the paper as much slack as it could, given the First Amendment implications of the lawsuit. Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States. In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others. Responsible journals will promptly correct their errors; others will not. But if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously, that is, with knowledge it was false or with reckless disregard of its falsity. To entertain the theory the press can be held civilly responsible for swiftly-corrected errors would chill reporting on pretty much anything. To take the press to court is to take the First Amendment to court. A higher standard must be met by plaintiffs. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Just over a year ago, when Pokémon Go was taking the world by storm, we dedicated an episode of the podcast to discussing what made it so successful, and ended up with some differing predictions about what its future would be. Now, with the hype long and truly over but the game still far from dead (though just how far is up for debate), it's time to revisit the subject and figure out who, if anyone, was right about the future of Pokémon Go. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Late last year, we wrote about ridiculous charges by California's then Attorney General, Kamala Harris, against Backpage.com for "pimping." As we pointed out at the time, Harris clearly knew the case was a loser. It completely exaggerated what Backpage had done, and Harris herself had earlier admitted that she had no authority to go after an internet platform for how people used it. A judge quickly threw out the charges against Backpage... and Harris turned around and filed even more charges against Backpage's execs, including repeating the pimping charge and adding in "money laundering." As we noted at the time, the money laundering charges seemed pretty questionable. It's based on the fact that Backpage had set up a separate (and separately named operation) to handle billing. The complaint argues that this was a form of money laundering, to hide from credit card companies that the money was being spent on prostitution. That leaves out, of course, that part of the reason why Backpage likely had to set up such a structure was because Cook County Sheriff Thomas Dart had threatened credit card companies if they didn't stop working with Backpage -- a move that was later deemed to be a clear First Amendment violation against the company by Sheriff Dart. In a new ruling in the case in California, the court has thrown out nearly all of the charges -- including the "pimping" charges that were already previously thrown out. But they are allowing the money laundering charge to go forward -- though it does appear the court recognizes that the state will have a hard time winning it's case. This Court agrees the complaint is not a model of clarity. However, the nature of the charges and theories of prosecution are ascertainable from the amended charging instrument. Specifically, the People now allege that Defendants conspired to orchestrate a bank fraud by misrepresenting to credit payment processors that they were not processing transactions from Backpage, and this misrepresentation would trigger a release of funds from banks. The overt acts alleged clarify that Defendants created multiple classified websites, and when applying for (at least one) merchant account, Defendant Ferrer omitted any reference to Backpage, despite intending to process Backpage transactions through the account. The People allege that credit payment processors, along with American Express, would not have knowingly processed the payments for Backpage and the banks would not have released funds absent Defendants’ trickery. These allegations provide sufficient notice for Defendants to understand the nature of the charges and prepare a defense. Essentially, either Defendants did - or did not - materially represent to credit payment processors in a scheme to fraudulently obtain money from banks. If Defendants did so, this may form the basis for a money laundering charge. (Cf. United States v. Mason (9th Cir. 1990) 902 F.2d 1434, 14431 [federal money laundering conviction supported by evidence that bank would not have opened a merchant account had it known it was laundering credit charges for prostitution; the false representation to the credit processor influenced the bank’s release of funds].) The factual resolution to that question, however, is not at issue here. What is at issue is whether the First Amended Complaint has been sufficiently pled to meet statutory and due process requirements. The ruling goes on to note that California prosecutors "must show that the profits came solely from that underlying criminal activity" which may be difficult, given that it's repeatedly failed to show any underlying criminal activity done by Backpage itself (rather than Backpage's users -- many of whom may, in fact, be engaged in criminal behavior). The court also does toss out some of the money laundering charges: the ones based on the completely bogus "pimping" charges. Of course, it's important to note that this case continues against the backdrop of Congress rushing headlong towards trying to amend CDA 230 to allow states, like California, to bring charges against companies like Backpage (and to allow individuals to sue in civil court as well). As we've discussed, that bill, called "SESTA," will almost certainly do a lot more harm than good for the victims of sex trafficking. However, it is important to note that when the bill was introduced, it was clearly designed to target one company in particular: Backpage. Just read the quotes from various Senators co-sponsoring the bill, who make it clear that the bill is to take down Backpage: Senator Portman: “Stopping trafficking is one of the great humanitarian and human rights causes of the 21st century. Our bipartisan investigation showed that Backpage knowingly facilitated sex trafficking on its website to increase its own profits, all at the expense of vulnerable women and young girls. For too long, courts around the country have ruled that Backpage can continue to facilitate illegal sex trafficking online with no repercussions. The Communications Decency Act is a well-intentioned law, but it was never intended to help protect sex traffickers who prey on the most innocent and vulnerable among us. This bipartisan, narrowly-crafted bill will help protect vulnerable women and young girls from these horrific crimes.” Senator Blumenthal: “Our narrowly tailored legislation would give victims of sex trafficking their day in court. For too long, countless young people have been victims of prostitution, human trafficking, and horrendous violence through ads on websites like Backpage.com. This is not an abstract debate: these advertisements come with a real, unconscionable human cost.” Senator McCain: “For years, Backpage.com has knowingly facilitated online sex trafficking and child exploitation, destroying the lives of innocent young women and girls,” said Senator McCain. “It is disgraceful that the law as written has protected Backpage from being held liable for enabling these horrific crimes. Our legislation would eliminate these legal protections and ensure companies like Backpage are brought to justice for violating the rights of the most innocent among us.” Senator McCaskill: “Until our investigation showed Backpage was actively facilitating sex trafficking, the company had repeatedly used the federal law that protects online platforms to escape accountability for the disgusting crimes it aided. But even as we’ve helped deny Backpage its legal shield in these cases, we need a broader effort to stop the next Backpage, before it starts. And that’s what this bipartisan bill is all about—better protecting Missouri’s families from sex trafficking by making clear to any company considering going into business with sexual predators, that the law won’t protect them from responsibility.” Senator Heitkamp: “For too long, websites like Backpage.com have profited from knowingly facilitating the sex trafficking of minors and others through the use of their online platform – in many instances, helping traffickers skirt law enforcement and their own standards to advertise minors for sex. And what’s worse: they’ve been able to continue doing this without penalty by claiming protection under the First Amendment. That’s a disgusting and cowardly invocation of one of our nation’s most cherished freedoms – neither the First Amendment nor the Communications Decency Act was written to shield those who help enslave and sell children for sex. It’s past time to hold websites that make money from sex trafficking accountable, just as our laws already do for traffickers, for the enslavement and abuse of men, women, and even children – who have been reportedly trafficked at a near 850 percent increase since 2010 largely because of the anonymity internet sales provide – and our bipartisan bill would work to do that by cracking down on these horrific crimes online.” Senator Klobuchar: “Websites like Backpage.com facilitate sex trafficking across Minnesota and our country. But shutting down these sites isn’t enough, we need to stop protecting perpetrators and ensure victims are able to seek the justice they deserve. The bipartisan Stop Enabling Sex Traffickers Act is another step forward to putting an end to these crimes once and for all.” Senator Lankford: “Heinous crimes like sex trafficking deserve to be met with the fullest extent of the law. We must eliminate loopholes to prevent any entity from avoiding the justice they deserve. This legislation is needed to help protect vulnerable people from modern-day slavery, which unfortunately has been facilitated more and more online. I’m proud to work with my colleagues on the PSI Subcommittee to not only investigate Backpage, but to address the urgent, moral issue of human trafficking.” Senator Lee: “The Communications Decency Act was never meant to provide immunity to websites like Backpage.com. Today’s legislation will deter others from facilitating sex trafficking and allow victims the possibility of restitution, while preserving the core protections of Section 230.” Senator Rubio: “Perpetrators of human trafficking and websites like Backpage.com that knowingly facilitate sex trafficking of children must be held accountable. Sex trafficking is an ongoing issue in Florida and across our nation, and this legislation is an important step forward in ensuring that those engaging in and helping to facilitate these crimes are held responsible and all victims receive the justice they deserve.” And yet, as we pointed out, nothing in CDA prevents the DOJ from going after Backpage if it actually engaged in prostitution or sex trafficking. Indeed, it's been widely reported that the DOJ has been investigating Backpage. The fact that no charges have been brought by the DOJ is at least worth noting. It's possible that more investigation is needed, or it's possible that there actually isn't a violation that the DOJ could find. But, either way, this latest ruling, allowing at least some of the money laundering charges to move forward raises the question of why we need to rush forward with this new bill, that will have massive and much wider consequences for the internet. Law professor Eric Goldman has a thoughtful analysis of this latest ruling, in which he suggests this shows that calling out Backpage by all those Senators has likely always been a smokescreen for attacking the underpinnings of the internet: This ruling has potentially important consequences for the pending bills to amend Section 230. Much of the rhetoric about the bills has specifically targeted and called out Backpage–and only Backpage. A key assumption for the bills is that Backpage needs to be crushed and existing law isn’t getting the job done because of Section 230. As this ruling shows, existing law may in fact be sufficient to crush Backpage irrespective of Section 230. As a result, there is no need–and certainly no urgency–to rush through amendments to Section 230, with potentially major consequences for the entire Internet, while courts are still resolving the matter. (Indeed, that would be true even without this ruling because of the pending grand jury investigation into Backpage in Phoenix that may use the SAVE Act, the anti-Backpage law Congress just enacted in 2015). However, it’s possible that, despite the anti-Backpage rhetoric, the advocates supporting the pending bills aren’t really targeting just Backpage but have larger objectives to undermine or eviscerate Section 230. I expect this ruling will expose the advocates’ true agendas. Because a state prosecution of Backpage is making progress without any changes to Section 230, those advocates should be willing to acknowledge that amendments to Section 230 aren’t essential to achieve their anti-Backpage goal. More likely, I expect the bill supporters to shift the rhetoric about the need for the bills to deemphasize Backpage as the target. If so, this would highlight that Backpage was only a surrogate target–and other Internet entities are also in the bills’ target sights. Once that rhetorical shift occurs, I think we deserve clear answers about who else the proponents expect will be affected by the bills–and how. Again, SESTA is a huge threat to the way the internet works today -- and in a way that will actually do great harm to actual victims of sex trafficking. It's really depressing that those whose true aims are to undermine the internet are so coldly hiding behind false claims of protecting victims of sex trafficking just to attacking the internet. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
As you will already know, a boxing match recently took place between Floyd Mayweather Jr. and Conor McGregor. The fight itself was far better than it should have been, but you may not know it if you couldn't manage to actually see it. Much as it did in the run up to the Mayweather v. Pacquiao fight of a couple of years ago, Showtime went out and got some rather questionable injunctions against 44 sites it believed would be offering up the fight via an illegitimate stream during the live pay-per-view broadcast. That effort resulted in, ahem, only three million viewers watching the fight via illegal live streams. Thousands more downloaded video of the fight illicitly after it occurred. So, Showtime got a court to agree to questionable pre-crime activities with the result being rather mixed. But if the steady mantra from the content industries that "every infringement is a lost sale" were true, then perhaps Showtime should be thanking its lucky stars that illegal streams were available, because its own streaming service wasn't able to handle the viewership load it did have. Showtime was hit with a federal class-action lawsuit amid reports that it delivered shoddy or non-existent $99 streams of the Floyd Mayweather-Conor McGregor fight Saturday. This is contrary to Showtime's promise of 1080p resolution at 60 frames per second. "Instead of being a 'witness to history' as defendant had promised, the only thing plaintiff witnessed was grainy video, error screens, buffer events, and stalls," declared the lawsuit (PDF) filed in federal court on behalf of a Portland man named Zack Bartel. The suit seeks to represent "thousands of other consumers" unable to stream the Mayweather fight in HD as Showtime advertised. By all accounts, it was bad. Really bad. The fight was delayed for paying streamers for over half an hour as Showtime's service was unable to handle all of those customers who paid for the fight. I don't want to spend any time on this class lawsuit, because these kinds of class lawsuits are generally pretty silly and the fact that Showtime failed to deliver on its own streaming product isn't in and of itself the point. The point is that if the company really wanted to go to war with streaming sites prior to the fight, it should have made sure that money and effort wouldn't have been better spent actually catering to its paying customers. What if the content industries were right and the injunctions had worked? What if Showtime had to accommodate three million more customers with pirate streams unavailable? How bad would the streaming experience to all of those paying customers have been then? Likely it would have merely added 3 million more individuals to the class action lawsuit. Meanwhile, of those that did pay for the fight and had their experience range from "delayed and sub-par" to "holy shit, I can't even watch this thing", how many might give this whole pirate stream thing a whirl the next time Showtime puts on a fight? All because Showtime would rather play whac-a-mole with streaming sites than make its own product function, never mind actually competitively good. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Get up to speed with the newest Android release, Oreo, and learn how to utilize all the new features to build your own Android apps from scratch. Through hands-on work, you'll gain an understanding of how to program for the world's most popular OS with the $34 Complete Android Oreo with Kotlin Bundle. Learn Kotlin, a statically-typed programming language that has been steadily adopted onto Android over the years. This extensible, powerful language is growing in popularity, and is a valuable language to learn as it works seamlessly side by side with Java and C++ on Android. You'll also get a handle on Android Studio, IntelliJ IDEA, Firebase and more over the 4 courses. 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 22 days ago on techdirt
In a disturbing case involving the sex trafficking of minors, the 11th Circuit Appeals Court has reached a few interesting conclusions involving digital searches and the Fourth Amendment. Included in the court's findings are rulings on the use of the All Writs Act to force Apple to unlock a device, an email warrant served to Microsoft, and warrants used to obtain a vast amount of information from Facebook. [h/t Orin Kerr] The All Writs Act received a ton of free publicity thanks to Apple's fight with the DOJ over the (forced) unlocking of the San Bernardino shooter's iPhone. Ultimately, the DOJ hired outside help to crack open the phone, abandoning its search for helpful precedent. (And, ultimately, the phone -- the shooter's work-issued phone -- contained nothing of interest.) Here, the Appeals Court finds [PDF] there's nothing wrong with using the 1789 All Writs Act to paper over holes in the 200+ years of legislation. The authority granted by the All Writs Act is broad but not boundless. The Act “is a residual source of authority” that permits issuing writs only if they “are not otherwise covered by statute.” Penn. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43, 106 S. Ct. 355, 361 (1985). It is a gap filler. “Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.” Id. And where Congress has proscribed a certain type of judicial action, the Act cannot overcome that proscription. See id. The bypass order meets this requirement because no statute expressly permits or prohibits it. Using somewhat circular reasoning, the court states the All Writs warrant issued here doesn't produce any Fourth Amendment difficulties because Apple willingly complied with it. To comply with the bypass order, Apple simply had to have an employee plug the iPad into a special computer and then transfer the iPad’s data to a thumb drive. That is not an unreasonable burden, especially in light of the fact that Apple did not object to the bypass order’s requirements. More helpfully, the court seems to suggest it's amenable to challenges like the one raised here. In most cases, challenging an All Writs warrant can only be done by the company receiving it. The court doesn't have to meet the issue of whether or not the defendants had standing to challenge the warrant served to Apple, but doesn't immediately dismiss their attempt to establish standing. Moving on, the court examines the warrant served to Microsoft for emails related to the criminal charges. The court finds the warrant was not overbroad. Viewed against that constitutional history, the Microsoft warrant complied with the particularity requirement. It limited the emails to be turned over to the government, ensuring that only those that had the potential to contain incriminating evidence would be disclosed. Those limitations prevented “a general, exploratory rummaging” through Moore’s email correspondence. The Microsoft warrant was okay. How often does a court describe a warrant as merely "okay?" I'm guessing it's probably not that often. Here's why it did in this case, explained in the footnote attached to the "okay" descriptor. It is somewhat troubling that the Microsoft warrant did not limit the emails sought to emails sent or received within the time period of Moore’s suspected participation in the conspiracy. Nevertheless, the warrant was appropriately limited in scope because it sought only discrete categories of emails that were connected to the alleged crimes. As a result, the lack of a time limitation did not render the warrant unconstitutional. The government passes this warrant examination with C-. The work needs improvement and the government just isn't applying itself. Unfortunately, neither is the court if it's going to allow third parties do the government's particularity work for it. The Facebook warrant, however, doesn't live up to the court's "okay" standard. The Facebook warrants are another matter. They required disclosure to the government of virtually every kind of data that could be found in a social media account… And unnecessarily so. With respect to private instant messages, for example, the warrants could have limited the request to messages sent to or from persons suspected at that time of being prostitutes or customers. And the warrants should have requested data only from the period of time during which Moore was suspected of taking part in the prostitution conspiracy. Disclosures consistent with those limitations might then have provided probable cause for a broader, although still targeted, search of Moore’s Facebook account. That procedure would have undermined any claim that the Facebook warrants were the internet-era version of a “general warrant.” If there's one thing law enforcement doesn't want to hear from a judge, it's the term "general warrant." Being compared to an occupying force is never a good thing. And these warrants are definitely not "okay." The two warrants required Facebook to “disclose” to the government virtually every type of data that could be located in a Facebook account, including every private instant message Moore had ever sent or received, every IP address she had ever logged in from, every photograph she had ever uploaded or been “tagged” in, every private or public group she had ever been a member of, every search on the website she had ever conducted, and every purchase she had ever made through “Facebook Marketplace,” as well as her entire contact list. The disclosures were not limited to data from the period of time during which Moore managed the prostitution ring; one warrant asked for all data “from the period of the creation of the account” and the other did not specify what period of time was requested. The government claimed the Facebook warrant was no different than warrants used to search electronic devices. In the latter case, the government generally takes possession of the device and digs through it until it finds what it needs. (This is an area of jurisprudence that is slowly shifting. With "persons' entire lives" often located on devices like smartphones, the analog equivalent is the government seizing the entire contents of a person's home before taking what's actually relevant to the case at hand.) The court has no sympathy for this argument, pointing out the warrant should have asked Facebook for only what was relevant and allow a non-government party to dig through the suspects' digital personal effects. The means of hiding evidence on a hard drive — obscure folders, misnamed files, encrypted data — are not currently possible in the context of a Facebook account. Hard drive searches require time-consuming electronic forensic investigation with special equipment, and conducting that kind of search in the defendant’s home would be impractical, if not impossible. By contrast, when it comes to Facebook account searches, the government need only send a request with the specific data sought and Facebook will respond with precisely that data. And the government should know this, because it does this thousands of times a year. That procedure does not appear to be impractical for Facebook or for the government. Facebook produced data in response to over 9500 search warrants in the six-month period between July and December 2015. Unfortunately, the government is allowed to keep the Facebook evidence under the "good faith" exception. The Facebook warrants do not fall within either category of excludable warrants. As we have already explained, probable cause supported issuance of the warrants. And while the warrants may have violated the particularity requirement, whether they did is not an open and shut matter; it is a close enough question that the warrants were not “so facially deficient” that the FBI agents who executed them could not have reasonably believed them to be valid. This suggests a two-step process for warrants served to service providers might be the better path to take in the future. While particularity is difficult to nail down when you're not sure exactly what you're looking for, trimming down demands for data and communications to relevant time periods raises the chances of warrants surviving suppression challenges. The court sets no precedent in this decision thanks to its good faith ruling, but the footnote addressing the Microsoft warrant and the multiple paragraphs devoted to the government's Facebook haul hints the government really needs to tighten up its search warrant procedures. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
With its quest to gut net neutrality, privacy and other consumer broadband protections, the FCC is rushing face first toward stripping meaningful oversight of some of the least-liked -- and least competitive -- companies in America. The FCC's plan, based on flimsy to no data and in stark contrast to the will of the public, involves gutting most FCC oversight of broadband providers, then shoveling any remaining authority to an FTC we've noted is ill-suited, under-funded, and legally ill-equipped for the job. That's a real problem for a sector that's actually getting less competitive than ever in many markets. Giant ISPs and their armies of policy allies often try to frame the effort as a noble quest for deregulation, often insisting they're somehow "restoring internet freedom" in a bare-knuckled attempt to pander to partisan constituents. But by any sane measure the FCC's quest is little more than a massive gift to despised duopolies like Comcast -- at what might be the worst possible time for a severely dysfunctional industry. But there are signs that even many traditional big ISP allies think Ajit Pai's plan is absurdly extreme. Hal Singer is an economist the telecom industry has often hired to manipulate data in order to make all manner of flimsy claims (from falsely stating net neutrality stifled network investment to falsely claiming net neutrality would dramatically raise taxes). But last week even Singer came forward to acknowledge that the FCC's plan to shovel net neutrality and other ISP oversight to the FTC won't fly. While Pai has repeatedly claimed that FTC authority and existing antitrust laws are enough to protect consumers from companies like Comcast, Singer disagrees: "Singer lists several roadblocks to stopping discriminatory paid prioritization via antitrust. "Monopolists are generally free from legal constraints to choose their suppliers and engage in price discrimination under the antitrust laws," he wrote. Antitrust laws are designed to protect competition, but "competition is not the only value that net neutrality aims to address: end-to-end neutrality or non-discrimination is a principle that many believe is worth protecting on its own," he wrote. "Moreover, antitrust litigation imposes significant costs on private litigants, and it does not provide timely relief; if the net neutrality concern is a loss to edge innovation, a slow-paced antitrust court is not the right venue," he also wrote." Of course there's also the fact that AT&T is currently engaged in a legal battle with the FTC over its network throttling that could hamstring the agency's authority over ISPs even further. If AT&T wins that court fight, the FTC has previously warned that it could open the door to all manner of companies dodging responsibility for unfair or deceptive business practices -- provided some small fraction of their business enjoys common carrier status. That could result in tiny acquisitions specifically designed to free any number of non-telecom companies from accountability, noted the FTC last year: "Many companies provide both common-carrier and non-common-carrier services—not just telephone companies like AT&T, but also cable companies like Comcast, technology companies like Google, and energy companies like ExxonMobil (which operate common carrier oil pipelines). Companies that are not common carriers today may gain that status by offering new services or through corporate acquisitions. For example, AOL and Yahoo, which are not common carriers, are (or soon will be) owned by Verizon." If you're the type of non-nuanced thinker that truly believes that all regulation is automatically evil without bothering to actually analyze the regulation, this whole idea probably sounds good to you. But telecom isn't a normal industry; it suffers from regulatory capture on both the state and federal level, which acts to prop up noncompetitive duopoly fiefdoms nationwide. Removing oversight of this sector doesn't magically forge Utopia; it simply makes companies like Comcast less accountable than ever. And again, with broadband competition diminishing as many telcos refuse to upgrade their networks, that's a recipe for disaster. Said disaster would likely result in greater calls than ever for tougher oversight and rules governing ISP behavior (aka monumental backlash during any post-Trump Presidency), which is likely why you're seeing Singer -- and even industry-backed groups like the ITIF -- calling for a more measured approach than Pai and friends are offering: Interesting because ITIF was a prominent voice opposing Title II for net neutrality rules. @AjitPaiFCC's proposal is pretty extreme. https://t.co/WzL09HWnbL — The real Jon Brodkin (@jbrodkin) August 28, 2017 Of course this may have been Pai's plan all along; to offer an extreme frontal assault on net neutrality and FCC authority that would subsequently make any resulting "compromises" seem almost sane. But these end proposals would all likely be far weaker than the somewhat flimsy net neutrality protections we already enjoy. We've noted that's one of the reasons ISPs are pushing for a new Congressional law they claim would "settle the issue once and for all," hoping the public won't realize said law would be notably more tepid than the existing FCC protections -- since ISP lobbyists and lawyers would be the ones writing it. Again, there's a far-simpler trajectory than the chaotic, disruptive and despised one proposed by Ajit Pai: leave FCC authority, and the popular. existing net neutrality rules, alone. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Using nothing more than one of the easiest things the government can obtain -- a grand jury indictment -- accused criminals can be locked out of their choice of representation. In essence, the government, right up until the Supreme Court's 2016 Luis decision, was allowed to take everything a defendant had, whether or not the property could be linked to criminal activity. What this did was make a mockery of the Sixth Amendment. Prior to even taking the case to court, much less securing a conviction, the government could leave defendants with no funds to hire a lawyer. The Supreme Court rolled this back, limiting the government to taking tainted assets. It wasn't a complete win. A complete win would have required the government to secure a conviction before taking any assets, or at least not until it was proven certain assets were tied to criminal activity. It was a limited win for the Sixth Amendment, very much restricted to the facts of the case -- one in which the government had admitted the disputed property was untainted by criminal acts. Still, it was better than leaving it untouched and giving the government the option to bankrupt defendants supposedly considered innocent until proven guilty. This precedent is starting to play a part in the lower courts. The Fourth Circuit Appeals Court has just struck down previous rulings allowing the government to seize untainted property pre-trial. The government's operating theory has been that, despite the Supreme Court ruling, untainted assets can be seized as a "substitution" for tainted assets to ensure the collection of fines and fees, as well as the replacement of any fraudulently-obtained property. The government still argued the Luis decision didn't apply. From the decision [PDF]: [T]he government conceded that the property at issue is not traceable to any alleged crime and is thus subject to pretrial restraint, if at all, as substitute property pursuant to 21 U.S.C. § 853(p). The government also agreed that, following Luis, the Constitution prohibits the pretrial restraint of innocently-obtained property when it is needed by a criminal defendant to obtain counsel. The government nonetheless asserted that the restraining order was proper under our existing rule that the government may restrain a criminal defendant’s “substitute property” pending trial under 21 U.S.C. § 853(e)(1)(A), see United States v. Bollin, 264 F.3d 391, 421–22 (4th Cir. 2001)—a rule, the government maintained, that Luis did not abrogate. In this case, the government sought to prevent a defendant from selling some property completely unconnected to the fraud charges. The defendant admitted the sale of the property had nothing to do with raising money for legal costs, prompting the government to assert blocking the sale under the "substitute property" clause wouldn't harm the defendant's Sixth Amendment rights. The lower court didn't exactly agree with the government's arguments, but allowed pre-Luis precedent to control its ruling granting the government's restraining order against the sale of assets. The Appeals Court goes off into the Section 853 weeds for awhile before coming to the following conclusion: the government can still seize "substitute" assets, but not the way it's doing it here -- not after the Supreme Court's Luis decision. While the government can attempt to deter the dissipation of tainted assets prior to trial, locking defendants out of their untainted assets isn't the solution. Deliberate dissipation of assets opens defendants to more criminal charges or, at minimum, a greater chance of an adverse ruling. That is the deterrent. Depriving the accused of assets the government acknowledges are untainted isn't. [A]lthough we have interpreted Section 853(a) to permit courts to issue money judgments covering a convicted defendant’s substitute assets, United States v. McHan, 345 F.3d 262, 272 (4th Cir. 2003), it does not follow that Section 853(e) is similarly permissive. Indeed, Section 853(p) authorizes courts to order the forfeiture of substitute property only where property “described in [Section 853(a)]” is rendered unavailable “as a result of any act or omission of the defendant.” 21 U.S.C § 853(p). Framed in the past tense, this provision means that a forfeiture order covering substitute property may issue only upon a showing, after conviction, that directly forfeitable assets have been rendered unavailable. The use of Section 853 to seize substitute assets now comes with a conviction requirement. In sum, the Supreme Court has signaled that there is a firm distinction between the government’s authority to restrain tainted and untainted assets in construing Section 853 and related restraint provisions. Consistent with this important distinction, when Congress intends to permit the government to restrain both tainted and untainted assets before trial, it has clearly provided for such authority. Lacking such express authorization, Section 853(e) does not by its terms permit pretrial restraint of substitute assets. Conviction requirements are good. The government has plenty of leeway already when it comes to taking control of people's assets. In most places, civil asset forfeiture is just that: a judicial process that pretty much eliminates the input of the seized property's owner and hardly requires the government to prove anything about the property's "guilt." Pre-trial seizures of assets the government has yet to prove are derived from criminal activity allows the government to perform what amounts to civil forfeiture based on nothing more than some unproven accusations. By helping lock people out of obtaining the best possible legal representation, the government increases the odds it will be able to hold onto everything it has seized, whether criminally-derived or not. Now, if only the courts would apply this thinking to actual civil asset forfeiture... Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Techdirt has written a number of stories about facial recognition software being paired with CCTV cameras in public and private places. As the hardware gets cheaper and more powerful, and the algorithms underlying recognition become more reliable, it's likely that the technology will be deployed even more routinely. But if you think loss of public anonymity is the end of your troubles, you might like to think again: Lip-reading CCTV software could soon be used to capture unsuspecting customer's private conversations about products and services as they browse in high street stores. Security experts say the technology will offer companies the chance to collect more "honest" market research but privacy campaigners have described the proposals as "creepy" and "completely irresponsible". That story from the Sunday Herald in Scotland focuses on the commercial "opportunities" this technology offers. It's easy to imagine the future scenarios as shop assistants are primed to descend upon people who speak favorably about goods on sale, or who express a wish for something that is not immediately visible to them. But even more troubling are the non-commercial uses, for example when applied to CCTV feeds supposedly for "security" purposes. How companies and law enforcement use CCTV+lip-reading software will presumably be subject to legislation, either existing or introduced specially. But given the lax standards for digital surveillance, and the apparent presumption by many state agencies that they can listen to anything they are able to grab, it would be na&iumlve to think they won't deploy this technology as much as they can. In fact, they probably already have. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
For some time now we've noted how poorly secured IOT devices provide a myriad of opportunities for hackers looking for new attack vectors into homes and businesses. That's of course when these devices aren't just coughing up your personal data voluntarily. Whether it's your smart fridge leaking your Gmail credentials or your internet-connected TV transmitting your personal conversations over the internet unencrypted, we've noted time and time again how IOT manufacturers consistently make privacy and security an afterthought -- one that's going to ultimately cost us more than some minor inconvenience. But in addition to the internet of broken things being a privacy and security dumpster fire, these devices are providing a wonderful new opportunity for larger ISPs looking to monetize the data you feed into their networks on a daily basis. A new study out of Princeton recently constructed a fake home, filled it with real IOT devices, and then monitored just how much additional data an ISP could collect on you based in these devices' network traffic. Their findings? It's relatively trivial for ISPs to build even deeper behavior profiles on you based on everything from your internet-connected baby monitor to your not so smart vibrator. We've long noted that while encryption and VPNs are wonderful tools for privacy, they're not some kind of panacea -- and the researchers found the same thing here: "...encryption doesn’t stop ISPs from knowing which internet-of-things devices their users have, nor does it stop them seeing when we use those devices. In the Princeton study, ISPs could track a user’s sleep patterns by detecting when a sleep tracker was connecting to the internet. It also revealed that ISPs could identify when a home security camera detected movement and when someone was watching a live stream from their security camera." Similar concerns have been raised (and promptly ignored in most areas) regarding information collected from smart energy meters by your power utility, since power usage can similarly provide all manner of monetizeable insight into your daily behavior. The researchers do note that more sophisticated users could use a VPN to confuse their ISP, but the full study indicates there will be some impact on network performance that could be a problem on slower connections: "The authors say there might be ways to cut down the snooping abilities of ISPs. One possible defence involves deliberately filling a network with small amounts of traffic. This could be done by running all your internet traffic through a VPN and then programming the VPN to record and play back that traffic even when the IOT device is not in use, making it tricky for ISPs to work out when a particular device is actually being used. However, this would probably slow down the network, making it a somewhat impractical defence against network observations." Aren't you glad Congress recently voted to kill consumer broadband privacy protections solely for the financial benefit of Comcast, AT&T, Verizon and Charter (Spectrum)? Those fairly basic rules required that ISPs be entirely transparent about what data they're collecting and who they're selling it to. The rules, proposed after Verizon was caught modifying user data packets to track online behavior (without telling anyone), also would have required customers opt in to more sensitive financial data collection. Without them, oversight of ISP data collection is sketchy at best, no matter what large ISPs and their friends claim. While the lack of ISP transparency as to what's being collected and sold is one problem, so too is the fact that most of these devices offer little to no insight or control over what kind of data and information they're transmitting. That leaves the onus entirely on the consumer to try and cobble together an imperfect array of technical solutions to minimize ISP snooping and protect themselves (often impossible for your average grandparent or Luddite), or to take the smarter path in the smart home era and resort to older, dumber technologies whenever and wherever possible. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
As part of his ongoing effort to reverse everything President Obama ever did, President Trump will be rolling back the previous administration's 1033 program ban. The program allowed local law enforcement agencies to help themselves to Defense Department equipment -- often paid for with federal grants -- as long as they said the magic words (terrorism/drugs) on the application. Attorney General Jeff Sessions, who led the campaign for the program's reinstatement, outlined the President Trump's new executive order Monday in an address at the annual meeting of the Fraternal Order of Police, the nation's largest police union. The administration's action, first disclosed by USA TODAY, would restore "the full scope of a longstanding program for recycling surplus, lifesaving gear from the Department of Defense, along with restoring the full scope of grants used to purchase this type of equipment from other sources,'' according to a administration summary of the new program recently circulated to some law enforcement groups. "Assets that would otherwise be scrapped can be re-purposed to help state, local and tribal law enforcement better protect public safety and reduce crime." Attorney General Sessions loves rolling things back. This will give police departments access to mine-resistant vehicles, grenade launchers, and firearms, which should "assist" them in fighting the Drug War 1980s-style and/or pitching in with ICE's efforts to pitch migrants back over the wall Trump can't seem to get built. This is prime law-and-order stuff. Trump has made it clear law enforcement is on the right side of history. Everyone who doubts or criticizes cops is simply wrong. A ban put in place as a reaction to militarized police responses is being reversed because no one up top cares how police are perceived. AG Sessions has already killed off federal civil rights investigations of local law enforcement agencies. Now, police will find it easier than ever to dude up as war-fighters, rather than easily-identifiable public servants. As Radley Balko pointed out on Twitter, Obama's rollback didn't put a huge dent in military gear acquisitions. But it did attempt to head off further development of law enforcement's "us vs. them" mentality by making it a bit more difficult to look and act like an occupying force, rather than law enforcement agencies. Balko notes plenty of gear can still be obtained from other sources, like the DHS, state agencies, and donations. But the ultimate point of the ban was to reduce the gap between public servants and the people they serve -- something explicitly noted by Obama's law enforcement guidance task force. The Task Force on 21st Century Policing, chaired by former Philadelphia Police Commissioner Charles Ramsey and Laurie Robinson, a former assistant attorney general, called on law enforcement officials to "minimize the appearance of a military operation'' when policing mass demonstrations. "Avoid using provocative tactics and equipment that undermine civilian trust," the task force urged. The previously-banned equipment also included tracked armored vehicles, bayonets and grenade launchers. Trump's ban reversal sends the opposite message. Combined with his public statements, proclamations, and executive orders, the future of policing will make cities and towns feel like occupied territory and turn citizens into civilians. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Over the last few weeks, we've been talking about SESTA -- the Stop Enabling Sex Traffickers Act. Part of our argument is that the bill will be completely counterproductive to its own goals. As we explained in a letter to Congress (signed by a bunch of tech companies), after two decades of watching CDA 230 in practice, it's clear that SESTA will do the exact opposite of what supporters claim it will do. But that's from the point of view of internet companies who know how the law intersects with technology. But what about experts in trafficking. In our letter, we admitted that area is not our expertise, but that we're all supportive of the idea of stopping trafficking. However, someone who is an expert in trafficking is Alexandra Levy, a law professor at Notre Dame, who works at the Human Trafficking Pro Bono Legal Center and teaches a class entirely about human trafficking. She's written up a fascinating blog post for professor Eric Goldman's blog where she explains why SESTA will be a total disaster for human trafficking. More than two decades later, Section 230 allows people to do more than just set the terms of acceptable speech. It also empowers countless users — including the FBI, victim advocates, concerned citizens, family members, and nonprofit organizations, among others — to proactively fight atrocities such as human trafficking. By removing liability from internet intermediaries (such as Backpage), Section 230 enables intermediaries to serve as a natural pathway between victims and those who want to help them. Due to its wide accessibility, Backpage has enabled people to find and recover family members (including with the help of journalists); nonprofits point to it as a resource for identifying and reaching out to victims; and scores of criminal indictments reveal its value as a point of connection between police and victims. Statistics also show how Section 230 may assist the fight against human trafficking: the National Center for Missing and Exploited Children (NCMEC), among others, reports that the majority of child sex trafficking reported to them involve Backpage. None of this should be surprising: after all, it stands to reason that victims whose services are advertised in more visible places, like Backpage, are more visible to everyone — and thus easier to recover. In this way, Backpage sets a trap for traffickers: lured by the prospect of reaching a large, centralized repository of customers, traffickers end up revealing themselves to law enforcement and victim advocates. There’s nothing to suggest that Backpage causes them to be victimized, but plenty of reason to believe that, without it, they would be much harder to find. Section 230 allows Backpage to serve as a lifeline between trafficking victims and those who want to usher them to safety. As Levy goes on to explain, while so many seem quick to blame Backpage for trafficking, they're confusing Backpage being used to rescue victims and track down traffickers as somehow being responsible for the trafficking happening in the first place. She notes, as we suggested, that Section 230 makes it possible for sites to shine a light on trafficking, to alert authorities, and to play a strong role in preventing or stopping trafficking. Taking that away will kill that. Hiding trafficking doesn't stop the trafficking. In fact, it can make things worse. But while Backpage isn’t allowed to traffic people, Section 230 currently prevents it from getting in trouble for shining a light on human trafficking. That’s the crucial distinction at the heart of Section 230, and it’s the provision that proves most infuriating to those who insist that causing victims to disappear from Backpage is going to somehow return them to safety. Because of Section 230, people who try to sue Backpage for simply revealing trafficking have been unsuccessful (if they could show that Backpage had engaged in trafficking, their suits would not be dismissed). In order to get trafficking victims to stop appearing on Backpage, these advocates call for legislation to limit its Section 230 protection. Their most recent move is the “Stop Enabling Sex Traffickers Act of 2017” (“SESTA”), introduced in the Senate in early August. Among other things, SESTA would allow people to directly sue Backpage (and other intermediaries) for damages for human trafficking — even if Backpage didn’t do anything more than shine a light. This is part of what's so infuriating about the rush to pass SESTA. It's one of those bills that makes claims that nearly everyone supports. Sex trafficking is bad and of course we should support efforts to stop it. But, this bill wouldn't do that -- and, in fact, would almost certainly make the problem worse. Tech companies who have dealt with CDA 230 know that already, and it's good to see some sex trafficking experts come to the same conclusion. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Listen to your music and take calls without the hassle of cords. The $29.95 FRESHeBUDS Pro Magnetic Bluetooth Earbuds connect automatically to your device via Bluetooth as soon as you pull apart the magnetic earbuds. They are sweat and water resistant, feature a battery that lasts for up to 10 hours of playtime, fully charge in 90 minutes, and are designed to be comfortably lightweight and secure in your ears. 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 23 days ago on techdirt
Seamus Hughes, the Deputy Director of George Washington University's Program on Extremism, happened across an extraordinary story -- told in warrant affidavit form -- of a man who faked up a research lab and started scoring himself truckloads of free equipment from the US government. According to the allegations in the warrant [PDF], Patrick R. Budic discovered a nifty way to exploit government excess equipment giveaways, utilizing a nonexistent company to make off with nearly $11 million in equipment ranging from GPS units to aircraft radios to hospital beds. The figure might have been much, much higher. The affidavit shows Budic tried (but failed) to acquire aircraft on more than one occasion. The setup echoes the sting operation the Government Accountability Office performed as part of its investigation of the Defense Department's 1033 program. The GAO set up a fake law enforcement agency and was able to obtain over $1 million in excess military gear before wrapping up its investigation. In that case, there appeared to be almost zero follow-up by the agencies in charge of disbursement. No one called. No one visited the fake address to verify the fake law enforcement agency's existence. Some of that appears to have come into play here. Budic -- along with David G. Rosseau, a US Navy engineer -- allegedly set up a fake nonprofit called Northridge National Laboratories (NNL) in Wyoming. According to the state's Department of State, Wyoming does not engage in much regulation of registered nonprofits. No follow-up was done to ensure the nonprofit actually existed and the only verification the state required for its nonprofit status was… the declaration it was a nonprofit on the registration paperwork. However, the principal address for NNL was Milwaukee, Wisconsin, where Budic lived. Budic also set up a for-profit company, PMR Research, and got it registered with the Government Services Administration's (GSA) award management system. Using these two companies and some allegedly false claims about being a Defense Department contractor, Budic went to work. He began exploiting the GSA's surplus property program, which allows government agencies (at all levels) and their contractors to obtain excess equipment for little to no cost. It all began to fall apart when Budic started thinking big. He ran into problems trying to acquire a Learjet. Closer vetting apparently begins when the requested property runs into the millions of dollars per unit. The specialist assisting Budic couldn't find anything verifying Budic's claim NNL was a Defense Dept. contractor "working on top secret research." Budic admitted NNL wasn't a federal laboratory "yet," but was "on its way" to becoming one. "This is how you get there," he told the specialist. Actually, this is how you get got. The GSA Inspector General stepped in and made a recorded call to Budic. Budic claimed he needed the aircraft for Defense Dept. research, claiming he had research labs "all over the place," but principally operated out of Wisconsin. Following that, Budic was interviewed by an undercover GSA agent and a Defense Criminal Investigative Service (DCIS) agent. Budic thought he was there to complain about the holdup on his aircraft order. The story started to change the more Budic talked. The million-square-foot lab Budic said NNL already owned in his earlier phone call became a lab NNL was trying to acquire. Asked where all the government equipment he already had obtained was, Budic said some was in Wisconsin but the rest of it was in California. Based on this information, the agents were able to locate the Wisconsin storage unit. Talking to the unit's owner, the GSA discovered Budic was behind on his rent and was locked out. The owner also said Budic had "offered him a laptop" in an effort to get back into his storage space. According to the owner, the storage unit contained computers, a large printer, docking stations, more than a dozen servers, and "a lot of other stuff." Undeterred by his inability to score an airplane, Budic next tried to acquire a 27' boat. He claimed in his request he was authorized to receive it under law and it would be used for "development projects pertinent to national security." As the investigation continued, Budic became more evasive. He refused to divulge the location of his apparently fake lab, citing national security reasons. He did the same when asked for proof of the lab's ties to the DoD. When asked where the requested aircraft was headed, Budic said operational security prevented him from speaking about it. Those asking questions were told to take it up with other agencies. Budic called someone "Colonel" to imply he was close to DoD officials but couldn't provide a name. The conversations -- many of them partly-transcribed in the warrant application -- are an amazing read. Budic dodged questions by stating he was on medication or replied with veiled threats more questioning would rain down DoD hell on the people standing between him and "his" aircraft. Apparently, Budic was quite the bullshitter. For a brief period of time, he talked his way into office space on a military base. When not hauling away whatever the GSA would part with, Budic was going after the GSA for "unfairly" denying him millions of dollars worth of equipment, including a plane, a boat, and a $10 million supercomputer. Among the things Budic was able to obtain were chemicals from a Defense Dept. chemical disposal facility, a seismograph from the Dept. of the Interior, and pharmacy equipment from Veterans Administration. The entire affidavit reads like a spec script for an unmade blockbuster. Sadly, it also shows what someone can get away with using little more than some letterhead, a plausible backstory, and a decent knowledge of government acquisition programs. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Village Roadshow, an Australian film distributor, has always been something of a strange anomaly. Like many others in the copyright industries, the organization has embraced copyright trolling as a business model, even touting the kind of trolling-automation that has since seen so much backlash over its inherent collateral damage toll. On the other hand, Village Roadshow was also one of the few film distributors I've seen actually come out and state that windowed releases are really, really stupid. On the other, other hand, the distributor subsequently went ahead with windowed releases anyway. Ambiguity appears to be somewhat in Village Roadshow's DNA. So, perhaps it isn't entirely surprising that upon announcing plans to take Australia back to the early 2000s by suing individuals for piracy, the company also made sure to inform the public that it will do so with almost perfect inequity. Let's start with Village Roadshow's plan, which is essentially to ape the RIAA from the days of peer to peer filesharing. It was a strategy, it should be noted, that was dropped because it wasn't particularly effective. But that isn't going to stop Village Roadshow from giving it another go. Many thousands of people were fined and the campaign raised awareness, but it did nothing to stop millions of file-sharers who continue to this day. That’s something that Village Roadshow co-chief Graham Burke now wants to do something about. He says his company will effectively mimic the RIAA’s campaign of 14 years ago and begin suing Internet pirates Down Under. He told AFR that his company is already setting things up, ready to begin suing later in the year. This plan will rely on ISPs to give up customer information, which will likely lead to a fight in Australian court. While the outcome of that fight is uncertain, it can be reliably claimed that what Village Roadshow actually wants is for pirates to pay fines to not go to court. This reads like classic copyright trolling, except that village Roadshow is making a great deal of noise about being prepared for actual lawsuits, while most copyright trolls avoid the courtroom at all (literal) costs. That won't win them many fans in the public, if the American experience is anything to go on. It's perhaps in anticipation of that, however, that Village Roadshow commits its worst sin, although I am sure it thought it was going to win points with the following. “We will identify people who are stealing our product, we will ask them do they have ill health or dire circumstances, and if they do and undertake to stop, we’ll drop the case,” Burke says. While being upfront about such a policy has its pros and cons, Burke is also reducing his range of targets, particularly if likes to be seen as a man of his word, whenever those words were delivered. In March 2016, when he restated his intention to begin suing pirates, he also excluded some other groups from legal action. “We don’t want to sue 16-year-olds or mums and dads,” Burke said. “It takes 18 months to go through the courts and all that does is make lawyers rich and clog the court system. It’s not effective.” This says everything you need to know about how closely Village Roadshow's plan intersects with actual justice. The concept of real justice rarely makes full exemptions for teenagers and parents, never mind the poor or ill. In criminal cases, sentencing guidelines may take those circumstances into consideration, but Burke is essentially saying that teenagers and the poor or ill get a free pass on copyright infringement. I am sure he thinks he's going to win points of sympathy from the public with this stance, and perhaps he will, but he certainly should not. Either this plan is a valid form of combat against infringement or it isn't, full stop. If your justice can't survive the PR surrounding having it meted out against a poor teenager, then it isn't justice at all. It's rent-seeking from those that can afford it, based, as always, on the flimsiest of evidence and predicated on the public being scared of actual lawsuits that Village Roadshow may actually want to file. That isn't justice. It's gross. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
The problem with border searches making a mockery of rights respected (for the most part) elsewhere in the nation isn't limited to the United States. Up in Canada, courts (and lawyers) are asking the same questions: how well are old, pre-smartphone laws holding up to today's reality? Everyone already knows what the answer is: not well. The question is: when will the Canadian government do anything about it? Canadians -- like Americans -- have the right to be free of unreasonable searches. Unfortunately, just like in America, this right seems to evaporate when one approaches the border. According to the Canadian customs law, border guards can search a lot of stuff travelers carry without a warrant. [S]ection 99(1)(a) of the Customs Act… gives border officers the power to, "at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts." According to the government, this means smartphones, tablets, and laptops should be treated as "containers," with the "entire lives" stored within being nothing more than items in a box. The Canadian government has chosen to equate smartphones with briefcases, arguing the incredible amount of personal information stored on phones is just a stack of papers. It's not much different than the arguments made on this side of the border, where the government has equated smartphones to pants pockets or address books, even though smartphones contain boxes full of documents (metaphorically) -- often far more information than anyone actually keeps physically in their homes. Border security is a bit different than regular law enforcement. Law enforcement is able to empty the pockets of detainees and make limited searches of backpacks, luggage, etc. for officer safety reasons -- mainly to prevent overlooking a weapon that could be used against them. This analogy fails when it's a smartphone, which can't be used as a weapon. Outdated analogies are part of the reason the US Supreme Court erected a warrant requirement for cellphone searches. Canadian courts appear to be headed in the same direction, but the border location of these searches complicates matters. Unlike a briefcase or a filing cabinet, judges have found, a smartphone can contain "immense amounts of information" that touch a person's "biographical core." They've acknowledged that laptops create detailed logs and trails of data that can be used to retrace a person's steps in ways that physical documents can't. And lawyers have successfully argued that smartphones and laptops, far from being static stores of information, are in fact portals to the near-limitless volumes of data stored in the cloud — from social media profiles to email accounts and file-sharing apps. It was in this context that a Manitoba provincial court judge last year made a significant ruling: just as Section 8 of the Charter of Rights and Freedoms protects Canadians from unreasonable search and seizure, that right should also apply at the border when an officer asks to search your smartphone or laptop. If this decision is upheld, there would be a warrant requirement for cellphone searches, even at the border. This would place Canada ahead of the US in terms of privacy protections. While there is a warrant requirement in place for cellphone searches of arrestees, courts in the US have held national security priorities trump the Fourth Amendment at the border. In response, there's been a surge in the number of devices searched without a warrant, jumping from 5,000 to nearly 20,000 from 2015 to 2016 -- and nearly 5,000 PER MONTH have been searched so far this year. And while all the discussion about warrantless device searches at the border tends to revolve around national security, three of the four cases seeking to challenge the Canadian government's stance on device searches deal with child porn. The fourth involves drug trafficking. Not exactly as advertised when pitched to the public. Cases where privacy protections would have demanded a warrant have been exempted thanks solely to the physical location of the search. Permalink | Comments | Email This Story

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