posted 19 days ago on techdirt
This week we've got a rare double winner, with both of our top comments on the insightful side coming from the same person on the same post — about the IFPI taking down Twitch streams for having music in the background. One commenter asked what streamers are supposed to do, leading another to supply a three-point list of options for licensed music, which PaulT extended to win first place for insightful: 4. Get your account blocked anyway because the IFPI's bots incorrectly identified what you're playing, and/or don't understand that you already paid for the licence. But, prior to that, Paul also had a longer response which took second place: The easier way is for them to just not play music. This is the equivalent of having a radio on in the background while you're talking to somebody, they're not going to jump through legal hoops for the people threatening to ruin their livelihood for that. "It shouldn't be all that expensive for streamers to get a license." I suggest you have a look around. From my understanding, you need to pay at least 2 agencies with lists of exactly what you played, and then the automated bots don't check for compliance anyway (if you're even playing music the requires a licence in the first place). One podcast I listen to regularly is always complaining that their musical intervals are being muted on YouTube even though they're fully paid up with licensing. It's a mess, and since these things always err on the side of caution (they're rather block someone for playing music that's allowed vs not blocking someone who's infringing), you can comply fully and still get screwed. Better not to even try. For editor's choice on the insightful side, we start out with a reaction from That Anonymous Coward to the latest instance of egregious police misbehavior. It's been said before, but it needs to keep on being said: Few bad apples... They tell us the cops job is hard & dangerous... Yet more citizens end up dead than cops during encounters between the two. We give them cameras to remove any doubt they acted responsibly... magically they break down, fail, erase things, accidentally record cops creating video evidence, record cops bad behavior... but its the techs fault not that some departments had cameras that were broken, fixed, and less than 1 day later dead again. Perhaps it is time to stop giving cops an inch, cause they've just about finished the run to Marathon from all of the passes they've been given. Cops say if citizens don't follow the little laws (which they always use as a pretext to get the drug dog so they can steal your car) bigger crimes follow. Perhaps no one considered when you let the little rules slide for cops they are more likely to behave like a gang, terrorizing people at will. Next, we've got a comment from Toom1275 about the problems with Swedish copyright law, because if we're going to call infringement "theft" then turnabout is fair play: When Copyright becomes used more often to commit theft than to defend from it, perhaps there's a bit of a problem. As for the funny side, I normally leave out staff comments from these lists, but this week the top winner was Mike responding to a funny anonymous comment — responding to the appeals court ruling allowing copyright on collections of facts — that itself made it to third place on the leaderboard. So we're going to go out of order, and highlight that comment first as an editor's choice: Here is a compilation of all my favorite articles from Techdirt: ::Lists every article they have ever published:: I now own Techdirt. Sorry, Mike. Mike rocketed to first place for funny with his one-word reply: Shit. In second place, we've got a response from Mason Wheeler to our observation that the game we helped design to start nuanced conversations instead of Twitter hysteria just led to Twitter hysteria: You expected the Twits to not act like twits? And, for our final editor's choice on the funny side, we've got discordian_eris responding to China's censorship of John Oliver for the crime of comparing the president to Winnie the Pooh: HBOs comment on this was simply "Oh bother". That's all for this week, folks! Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
It's been a while since we've done an "Awesome Stuff" post, but we were sent a prototype of a new fidget device called Fidget Capsule and couldn't resist writing it up. You may recall, of course, that "fidget" devices were all the rage for a year or so, starting with the famed "Fidget Cube" and then being overtaken by the "fidget spinner" which was an astoundingly popular fad for a very brief period of time (anyone still use a fidget spinner? I didn't think so.) Of course, that hasn't stopped people from fidgeting. I will admit, without shame, that my desk has probably over a dozen different fidget devices -- as well as magnets and pens and other things that aren't technically designed for fidgeting, but that's exactly how I use them. Even though I'm bizarrely fascinated in all sorts of fidget devices, I wasn't entirely sure if the world needed another one. However, the Fidget Capsule is pretty amazing. As you can see in the video, it's pretty straightforward and simple. Unlike the Fidget Cube, there's just one thing you can do with it: squeeze it. But, it does that very, very well. It's basically silent, and kind of perfect as an idle fidgeting device. I've actually found that many fidget devices are... not that good for fidgeting. You may start playing with it, but if you really need to concentrate on something, the fidgeting stops. If anything, I've found that Fidget Cubes are great for when I'm walking around, but not when I'm working. Fidget keyring chain toys are probably still my overall favorite -- as they're also tiny and easy to just to carry around all the time with you (especially since they're just basically a keyring), but the Fidget Capsule works great at my desk while I'm working or on a phone call. It feels very solidly built, and I've dropped it a few times and don't see it being damaged at all. It certainly feels like it will last quite a while. The prototype they sent me is the red one, and I now see that they're actually selling them in batches, with each one having a different resistance. The one they sent me apparently has 6 lbs of resistance, which feels pretty good. I have no idea how the other levels would work (they come in 2lbs, 4lbs, 8lbs, and the special hardcore one at 20lbs). If you don't care at all about fidget toys then clearly these won't be for you, but if you're like me and get somewhat obsessive about them, it's pretty cool. Potential downsides: unlike most other fidget toys, this one is pretty strictly a "desktop" or "tabletop" fidget device. You probably don't want to carry it around with you. It's a bit bulky and pretty heavy (again, solid metal material). It could fit in a pocket, but I don't think it would be particularly comfortable there. It does come with a magnetic display stand which is nice (though it took me nearly a week until I realize I had the display stand upside down -- and it works and looks much better right side up). The one other potential downside: they really seem to want people to buy a set of either four or five of them in the different resistance levels. They don't really have options to just buy a single one -- other than the hardcore 20lb. one, which is priced so close to the various sets that it almost certainly makes sense to just upgrade to a set. And that will probably price it out of the range of many buyers. It's one thing to spend ~$10 to ~$15 on fidget toys, but this one requires you to spend around $50 or more. Considering you get a set of 4 or 5, the price per capsule could be as low as $9, which is not bad at all. But... you still have to buy all of them to get that kind of pricing and I'd imagine that's probably too much for many people. Still, it's a pretty cool device and is definitely good at what it's designed to do, so if you're obsessed with fidgeting, check it out. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
The EU is no stranger to bad laws, but its desire to "protect" copyright holders from the Wild West Internet™ is one of its worst. A proposed change -- known as Article 13 -- would force social media platforms and other service providers to preemptively block copyrighted content during uploads unless permission has been specifically granted by the rightsholder. Here's what Mike Masnick had to say about the impossibilities Article 13 would demand: How would a site like Instagram create a working filter? Could it catch direct 100% copies? Sure, probably. But what if you post a photo to Instagram of someone standing in a room that has a copyright-covered photograph or painting on the wall? Does that need to be blocked? What about a platform like Github where tons of code is posted? Is Github responsible for managing every bit of copyright-covered code and making sure no one copies any of it? What about sites that aren't directly about the content, but which involve copyright-covered content, such as Tinder. Many of the photos of people on Tinder are covered by copyright, often held by a photographer, rather than the uploader. Will Tinder need to put in place a filter that blocks all of those uploads? Who will that be helping exactly? How about a blog like ours? Are we going to be responsible to make sure no one posts a copyright-covered quote in the comments? How are we to design and build a database of all copyright-covered content to block such uploads (and won't such a database potentially create an even larger copyright question in the first place)? What about a site like Airbnb? What if a photo of a home on Airbnb includes copyright-covered content in the background? Kickstarter? Patreon? I'm not sure how either service (which, we should remind you, both help artists get paid) can really function if this becomes law. Would they need a filter to block creators from uploading their own works? There's a movement underway to destroy this proposal before it gets implemented. One of the internet's greatest collective creations/forms of communication (ymmv) is memes. Memes are almost always composed of copyrighted material, but no one would seriously argue they somehow diminish the market for the underlying content. Some would disingenuously argue this, and those are the sort of people who are pushing impossible filters to block third-party uploads. If it's memes that are (inadvertently) targeted -- along with the freewheeling nature of internet communications -- then it's memes that will be pressed into service to fight the war against Article 13. Beckett Mufson has compiled some of the best ones for Vice. The meme warriors started with a set of memes that cleared Article 13's copyright filters. This was followed by a misguided, but hilarious, attempt to get the EU to destroy itself by placing its flag front-and-center when crafting memes. Of course, the flag isn't capable of being targeted for preemptive takedown since it's in the Creative Commons, but the underlying message -- that the proposal is ridiculous and harmful -- still comes through. But the best of the batch is this one, which speaks to a great deal of our coverage of the EU and its bizarre treatment of copyright protection, free speech, and other ancillary issues. When a terrible, extremely harmful law is proposed by the EU, it's just another day at work for the governing body. Only the most antagonistic of rightsholders would view memes as a destructive force pushing creators into poverty. But the EU's proposal takes exactly this hard line: it wants platforms to treat every bit of copyrighted material being uploaded as infringing by default. This won't just bankrupt smaller tech companies and make millions of users miserable. It will also do serious damage to internet communications in general, pushing platforms towards restricting users' interactions with the service, either by limiting their ability to post content or by suspending/deleting accounts for alleged Article 13 violations. The law is stupid and dangerous. Far too often, so is the EU. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
In April, Mexican federal police arrested Keith Raniere, taking him from the $10,000-per-week villa where he was staying and extraditing him to New York. According to the NY Daily News, Raniere, leader of self-help group NXIVM (pronounced "nexium"), is now being held without bail while he awaits trial on sex-trafficking charges. Through NXIVM, he preached "empowerment," but critics say the group was a cult, and engaged in extreme behavior, including branding some women with an iron. This was not the first controversial program Raniere was involved in. In 1992, Raniere ran a multilevel marketing program called "Consumer Buyline," which was described as an "illegal pyramid," by the Arkansas Attorney General's office. More recently, he has collected more than two dozen patents from the U.S. Patent Office, and has more applications pending—including this one, which is for a method of determining "whether a Luciferian can be rehabilitated." The USPTO has granted Raniere protection for a variety of curious inventions, including a patent on "analyzing resonance," which eliminates unwanted frequencies in anything from musical instruments to automobiles. Raniere also received a patent on a virtual currency system, which he dubbed an "entrance-exchange structure and method." He applied for a patent on a method of "active listening," and received patents on a system for finding a lost cell phone, and a way of preventing a motor vehicle from running out of fuel. NXIVM members reportedly identified their levels with various colored sashes, which helps explain Raniere's design patent on a "rational inquiry sash." Today, we're going to focus on Raniere's U.S. Patent No. 9,421,447, a "method and apparatus for improving performance." The patent simply adds trivial limitations to the basic functioning of a treadmill, like timing the user and recording certain parameters (speed, heart rate, or turnover rate.) Since most modern treadmills allow users to precisely measure performance on a variety of metrics, the patent is arguably broad enough that it could be used to sue treadmill manufacturers or sellers. Given Raniere's litigation history, that's not such a remote possibility. NXIVM has sued its critics for defamation—enough that the Albany Times-Union called NIXVM a "Litigation Machine." And Raniere sued both AT&T and Microsoft for infringement of some patents relating to video conferencing. The latter suit ended very badly for Raniere, who was ordered to pay attorneys' fees after he couldn't prove that he still had ownership of the patents in question. So it's worth taking a look at how Raniere got the ‘447 patent. Raniere's Law ™ Raniere has never been shy about proclaiming how special he is. His bio on a website for Executive Success Programs, a series of courses run by NXIVM, explains that he could "construct full sentences and questions" by the age of one, and read by the age of two. Raniere was an East Coast Judo Champion at age 11, recruits are told, and he entered college at Rensselaer Polytechnic Institute by age 16. The honorifics continue: He has an estimated problem-solving rarity of one in 425,000,000 with respect to the general population. He has intellectual patents pending in the areas of human potential and ethics, expression, voice and musical training, athletic performance, commerce, education and learning, information processing and human modeling. He also holds several technological patents on computer inventions and a sleep guidance system. Raniere may be able to convince NXIVM followers that he is a one-in-425 million level genius. A new article from Vanity Fair explains that, inside NXIVM, Raniere's patents were often used as evidence of his brilliance. But how did Raniere convince the US Patent and Trademark Office of his inventing abilities? Ultimately, he didn't really have to. Taking a close look at the history of Raniere's patent application shows how the deck is stacked in favor of a determined, well-funded applicant. For someone who's determined to prove they're a great inventor, and is reasonably well-funded, the patent office can ultimately be cowed into compliance. In this case, Raniere's original patent application claimed a "performance system" with a "control system" and a sensor for monitoring "at least one parameter." His examples went beyond exercise: he intended to patent humans making mathematical calculations at increasing speed, or a weightlifter decreasing the time between repetitions. Appropriately, the examiner rejected all 13 of his proposed claims. But nothing stops patent applicants from coming back and trying again—and again—and that's exactly what Raniere did. To his bare-bones description of a "performance system" he added this dose of jargon: Wherein said control system includes a device to determine a point of efficiency, said point of efficiency occurring when the linear proportional rate of change in [] at least one parameter of the subject being trained varies rapidly outside of the state of accommodation and the range of tolerance. Whew! That's a lot of verbiage just to explain that the same "performance system" is measuring how fast changes occurs. The patent would be infringed by any treadmill that could measure a changing variable. Even though earlier patents had described essentially the same thing—Raniere's lawyers insisted that his idea of measure the "rate of change" was "completely different" from a system that used a "precalculated range." The examiner rejected Raniere's application again, noting that an older patent for an exercise bike attached to a video game still fulfilled all the elements of Raniere's new, jargon-filled patent. But Raniere simply paid $470 to file a "request for continued examination," and kept pounding his fist on the proverbial table. Raniere, or his lawyers, bloated Claim 1 up with yet more language about the point of efficiency occurring "just prior to the subject no longer being able to accommodate additional stress" and entering a state of exhaustion, and claimed now that it was this more narrow description that was his stroke of genius. "Nowhere in [earlier patent] Hall-Tipping is it suggested that the user be exercised to the point of exhaustion," pointed out Raniere's lawyers, this time around. Rejected again, they had an interview with the examiner before coming back with yet another $470 "continued examination" request. Then Raniere loaded up Claim 1 with almost twice as much language about the system repeating itself, and re-measuring new "points of efficiency." This went on and on [PDF], with Raniere continuing to change language and add limitations. Eight times, the examiner threw out every single one of his claims. Finally, after he added language about the "range of tolerance" being plus or minus two percent, his claims were allowed. In his specification, Raniere was typically un-self-effacing. He crowed that he had created "Raniere's Maximal Efficiency Principle™" or "Raniere's Law™." (The guy is clearly into branding.) Unfortunately, this is par for the course. Determined patent applicants get an endless number of chances to create a piece of intellectual property that just barely avoids all the other patents and non-patent art that overworked patent examiners are able to find. The strategy is: find a basic process, and slowly add limitations until you get a patent. That's how we get patents on filming a yoga class and Amazon's patent on white-background photography. The fault lies not so much with the examiner here, but with the Federal Circuit for interpreting patent law's obviousness standard in a way that effectively prohibits the Patent Office from relying on common sense. So what's the solution? We need the Federal Circuit to apply the Supreme Court's decision in KSR v Teleflex more faithfully and allow the Patent Office to use common sense when faced with mundane claims. We also need to defend the Alice v. CLS Bank ruling so that examiners can reject patents that claim abstract ideas implemented with conventional tools (like treadmills). Patent law should also be changed so that applicants don't get an endless number of bites at the apple. Reposted from the EFF's Stupid Patent of the Month series. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
We just recently wrote about employees at Amazon speaking out inside the company to complain about the company selling its face recognition tools (called: "Rekognition") to law enforcement. That resulted in the CEO of a maker of facial recognition software, Brian Brackeen, to publicly state that his company, Kairos, will not sell to law enforcement. The full article is worth reading, but he notes that the technology will be abused and misused by law enforcement -- and often in a way that will lead to false arrests and murder: Having the privilege of a comprehensive understanding of how the software works gives me a unique perspective that has shaped my positions about its uses. As a result, I (and my company) have come to believe that the use of commercial facial recognition in law enforcement or in government surveillance of any kind is wrong — and that it opens the door for gross misconduct by the morally corrupt. To be truly effective, the algorithms powering facial recognition software require a massive amount of information. The more images of people of color it sees, the more likely it is to properly identify them. The problem is, existing software has not been exposed to enough images of people of color to be confidently relied upon to identify them. And misidentification could lead to wrongful conviction, or far worse. As he states later in the piece: There is no place in America for facial recognition that supports false arrests and murder. It's good to see this, and whether you support the police or not, we should appreciate this moment -- just as we should appreciate the people at Amazon who stood up and complained about this. Too often lately, the tech industry is getting slammed for not taking into account the impact of their technology in their rush to push forward innovation at any costs. I've always felt that that narrative is a bit exaggerated. I talk to a lot of entrepreneurs who really do think quite a lot about how their technology may impact the world -- both good and bad -- but it's good to see people in the industry speaking out publicly about how that might happen, and why they need to make sure not to oversell the technology in a way where it's likely to cause real harm. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
A lot has happened in the small community of Thetford since we last covered the two-person police department's acquisition of $1 million in military gear through the 1033 program. It's not all MRAPs and weapons, though. Apparently Police Chief Bob Kenny was grabbing anything that wasn't nailed down, including a tractor, two Humvees, ATVs, a forklift, and any other supplies the federal government was agreeable to parting with. The PD ran out of room to park/store everything, so it began dumping equipment "off-site:" on the private property of agreeable landowners. Things began to unravel when the town supervisor started wondering why the police chief had decided to turn the town into an episode of "Hoarders." The Genesee County Sheriff's Department was called in to perform an audit but soon found it couldn't do anything because there was apparently no paper trail. That appears to have been a case of the Thetford PD playing keepaway with documents, because the Sheriff's Department decided to step things up in late April. Officials with the Genesee County Sheriff's Office executed a search warrant Thursday afternoon at the Thetford Township Police Department as part of an ongoing investigation into surplus military equipment. Township Supervisor Gary Stevens confirmed April 26 investigators were "checking files and things" at the department as part of the search warrant. "Files and things" are super-useful during audits. This decision to forcibly seize the paper trail was perhaps prompted by town residents' sudden disinterest in acting as off-site storage for Chief Kenny. Township-owned military equipment that was being stored offsite, including a Humvee, were left at the Thetford Township Hall over the weekend by a resident who was storing them. Township Supervisor Gary Stevens said he knew about multiple pieces of township-owned military surplus equipment being dropped off outside the building on Sunday, April 22. "I heard it was coming down the road," said Stevens after a spirited township board meeting Monday night that included an exchange between the supervisor and one of the men -- Eugene Lehr -- who dropped off the equipment acquired by the township police department. Spirited town meetings are now a regular occurrence. The first week of May brought the public resignation of one city employee (and two employees informing the town supervisor they could not work "under these conditions") during a meeting featuring hurled invective/furniture. A dispute that allegedly included threats and a thrown chair caused the township hall at the center of an investigation into surplus military equipment to close 30 minutes after it opened Monday morning. The town supervisor claims Kevin Bloss handled his public resignation with "some profanity." Bloss disagrees, stating he only said something that town supervisor Gary Stevens might have found personally offensive. "I quit. You are an idiot and a deceitful person, I can't work for you," Bloss said he told Stevens. At least one town employee has retained an attorney, which suggests litigation may follow the threats and insults. The latest development casts even more doubt as to the legitimacy of the town's PD and the guy running it. Officials will discuss the future of the Thetford police chief after an envelope of money was discovered within township-owned military surplus gear being stored at an off-site location. The possibility of reprimanding or firing police Chief Robert Kenny is set to be discussed after Supervisor Gary Stevens called for a special meeting at 5:30 p.m. Monday, July 2, after Kenny was unable to attend this week's regularly scheduled gathering. Kenny claims to have found an envelope of cash while moving 1033 equipment from someone's private land. The envelope had "LESO" written on it and that Chief Kenny claims he has no idea how much cash it contained. He also didn't seem all that concerned about claiming it. The town has turned it over to the Genesee County Sheriff as possible evidence in its ongoing investigation. Maybe it was destined for the acquisition of even more equipment, but the chief misplaced it in the piles and piles of 1033 equipment he'd already scattered across the town. It's hard to believe the "LESO" on the envelope stands for anything other than the federal government's Law Enforcement Support Office, which handles the paperwork for 1033 program acquisitions. Meanwhile, town supervisor Gary Stevens and trustee Stan Piechnik have both been cited for criminal trespass as a result of their apparently uninvited visit to resident Eugene Lehr's farm. Lehr had drawn the attention of town officials for his sudden return of PD/military equipment a couple of months prior -- the stuff he dumped directly in front of city hall. Lehr claims he's being harassed by some town officials and has spearheaded a movement to have the two men who trespassed on his farm recalled. This small town of 6,800 may indeed have other issues that need to be dealt with, but the town supervisor appears to feel a 2-person police department currently under investigation for amassing more than $1 million in military equipment is just something to be gazed at in the rearview mirror. "I'm like everyone else. I want to get through this and get to the real issues that the township needs to be taking care of," said Stevens. Quite obviously, Stevens is not like "everyone else." This situation has exploded from questionable to contentious and now involves an investigation involving another law enforcement agency where a search warrant was obtained to secure records the Thetford PD apparently didn't feel like handing over. To get everyone to move forward with their lives, the PD -- and its support in town hall -- need to be reined in and every dollar spent or earned accounted for. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
If you ever need a bad law abused, just look for a police officer. The police like to steer clear of knowledge whenever possible because it helps them out when legal liability is on the line. Qualified immunity rewards cops who work hard to make sure they don't know the laws they're enforcing. But when it comes to laws officers can use to punish those who fail to show them the respect they think they're owed, officers know those inside and out. Legislators have made things worse by passing "Blue Lives Matter" laws that grant extra legal protections to a class of Americans no one but cops think is a class routinely subject to oppression or bias. While a "Blue Lives Matter" law makes it easier to intimidate the general public, it's not a necessity. Officers have used bad laws -- like criminal defamation -- to hassle and silence critics. Over in Pennsylvania, a hate crime law crafted to protect ethnic and religious groups is being used by cops to arrest people for calling cops the sort of things cops get called all the time. On Sept. 23, 2016, Robbie Sanderson, a 52-year-old Black man from North Carolina, was arrested for retail theft by in Crafton, a small town near Pittsburgh. During the arrest, Sanderson called police “Nazis,” “skinheads” and “Gestapo,” according to an affidavit of probable cause filed by the Crafton Borough police. For that, he was charged with a hate crime. Someone needs to explain to these cops they're not an ethnic or religious group. They're just cops. It's not a race or a religion, no matter how much law enforcement tries to set itself apart from the people it's supposed to be serving. Being called a "Nazi" is not "ethnic intimidation." Neither are the following examples provided by The Appeal, even if the language used actually seems to fit better with the legislative intent. In January that year, Sannetta Amoroso, a 43-year-old Black woman from Pittsburgh, was charged with multiple counts of first-degree felony ethnic intimidation by McKees Rocks police Officer Brandy Harcha. According to police, Amoroso became angry while trying to report a crime and said “I’m going to kill all you white bitches” and “death to all you white bitches.” Then in June, Pennsylvania State Police Trooper Robert Wareham charged Steven Ray Oller, 47, of Chambersburg, with misdemeanor ethnic intimidation for threatening officers and using a racial slur directed at a Latinx trooper during an arrest for suspected DUI. And in August, Trooper James Welsh of the state police charged Seneca Anthony Payne, a 39-year-old Bucks County man, with misdemeanor ethnic intimidation. Payne allegedly called an officer a “Gandhi motherfucker” during a welfare check at Payne’s home. For what it's worth, state prosecutors seem more lawsuit-averse than these officers. The "ethnic intimidation" charges were dropped in all four cases. But here's the thing: the same departments charging these people with "ethnic intimidation" are too cowardly to include their misuse of a law in the official paperwork. As The Appeal reports, all of these departments claimed no hate crimes occurred in their jurisdictions despite booking these arrestees for hate crimes. If a law written in a way that can be construed to cover actions law enforcement normally wouldn't consider crimes, it will be used to generate additional charges for arrestees. Cops know the laws far better than they claim in court. They like the grey area that allows suspicionless stops and pat downs, but absolute love the minutia that can turn normal reactions to police presence into an arrestable crime. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
If you've been reading Techdirt for any length of time, you know how important it is to guard your data when browsing the internet. Today’s featured deal can help you do so. Get a 2-year subscription to NordVPN for $69, which comes with more than 3,521 worldwide server locations in 61 different countries, offering secure internet access from just about anywhere. All data sent through NordVPN's networks is double-encrypted, and the service includes an automatic kill switch that protects your data should the VPN connection drop. NordVPN lets you connect six devices simultaneously, does not limit the amount of data you can send through the service, an encrypted chat function, and more. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
There isn't a surveillance program or authority the NSA hasn't abused and yet it's still humming along, hoovering up data and communications while mostly useless Congress folks pretend to be in the oversight business. Section 702, the "about" program, Section 215… all of these have received judicial smackdowns and the occasional Congressional nastygram, but the only thing that's changed is the NSA's willingness to admit its failures. Consistent with NSA’s core values of respect for the law, accountability, integrity, and transparency we are making public notice that on May 23, 2018, NSA began deleting all call detail records (CDRs) acquired since 2015 under Title V of the Foreign Intelligence Surveillance Act (FISA). 2015 would be the date the control of phone records shifted back to phone companies and the FISA court began demanding articulable suspicion for specific targets before the NSA could even ask phone companies for records. Prior to that, the NSA had collected phone records from telcos in bulk, using its internal tools to limit itself to targeted searches of compiled haystacks. The USA Freedom Act effectively ended this part of the Section 215 program, forcing the NSA to target first and ask for only records related to its targets. Apparently, it can't even do this right. NSA is deleting the CDRs because several months ago NSA analysts noted technical irregularities in some data received from telecommunications service providers. These irregularities also resulted in the production to NSA of some CDRs that NSA was not authorized to receive. Because it was infeasible to identify and isolate properly produced data, NSA concluded that it should not use any of the CDRs. Consequently, NSA, in consultation with the Department of Justice and the Office of the Director of National Intelligence, decided that the appropriate course of action was to delete all CDRs. Whatever was broken on the tech end is now apparently fixed. All oversight has been notified and the collection of records (via telcos) will continue. I guess our three-year national nightmare is over and the NSA is finally on the road to recov--- Last year, I did a report that catalogued all the times NSA had violated FISA since the Stellar Wind phone dragnet got moved under FISA in 2004. There were the five different practices deemed violations of 1809(a)(2), which prohibits the use of any data that was illegally collected. [...] In addition to those, NSA had continued to conduct back door searches of data collected using upstream 702 collection even after John Bates prohibited the practice in 2011. [...] While Rosemary Collyer (who is the worst presiding FISA Judge ever) didn’t deem that a violation of 1809(a)(2) — meaning NSA didn’t have to segregate and destroy andy data collected improperly — it still violated the minimization procedures that control 702 collection. So between 2004 and 2016, NSA was always breaking the rules of FISA in one way or another. And we can now extend that timeline to 2018. Thanks, Marcy Wheeler, for clearing that up. This is just a continuance of the NSA's inability to run its programs in a technically-capable manner, much less with an eye on the Constitution. Muted applause for taking this oversight before the few members who give a shit start asking questions, but why aren't we (and by "we," I mean the people who could actually do something about it) expecting more from an well-funded agency with vast technical knowledge? Sure, an apology is better than a plausible denial, but it's been 14 years of failure after failure. Where's the improvement? Or is national security just one of those things that's too important to be done properly? We just need to have it done, no matter how many violations occur in the process? I fear that's how most of the NSA's oversight actually feels: the ends justify the badly-broken means. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
So as we've long noted, the death of net neutrality and the latest round of M&A mania isn't going to result in an immediate internet apocalypse. ISPs are nervous about looming court challenges which, thanks to all manner of ridiculous behavior at the FCC, have a good chance of succeeding. They also know that unless they can get a phony, pre-emptive law on the books, the next FCC or future, less-cash-compromised Congress could just come in and restore the rules. As such, they're going to be testing their newfound freedoms very slowly, much like the boiling frog metaphor (you are the frog in this equation). Case in point: on the heels of the company's $86 billion merger with Time Warner, AT&T introduced a new $15 per month streaming video service dubbed "AT&T Watch." Watch is a bare-bones skinny bundle that competes with services like Philo, a $16 per month offering from several major broadcasters. But AT&T's ownership of the pipes this content flows over gives the telecom giant a very notable advantage. In this case, that has resulted in AT&T offering the service for free to the company's wireless customers, an advantage smaller streaming operators may find hard to overcome: "Not that it matters anymore since the Federal Communications Commission, headed by telecommunications shill Ajit Pai, successfully killed net neutrality protections earlier this year, but AT&T’s tiered unlimited plans that are strapped with limitations and its decision to offer access to properties it owns for free to its subscribers are cardinal sins against the bright line rules of net neutrality." Of course that's just the start. With no hard net neutrality rules on the books and the FCC stripped of its authority to police ISPs, there will ultimately be nothing stopping AT&T from disadvantaging its competitors further in more aggressive ways, whether that includes counting a competitors' content against usage caps while exempting AT&T's own services (zero rating), or engaging in gamesmanship at interconnection points in a bid to drive up costs of would be competitors (as we saw with the ISPs' battle with Netflix a few years ago). Meanwhile, AT&T continues to engage in very AT&T-like behaviors beyond just net neutrality. For example, AT&T began offering its wireless customers free access to HBO last year as it tried to sell regulators on the idea the Time Warner merger would be wonderful for everyone. But it didn't take long for that perk to quickly disappear this week as the company began fiddling with (and raising the prices on) its unlimited data tiers: "But AT&T revamped its two unlimited mobile plans this week, and in the process it raised the price for the entry-level plan by $5 a month while removing the free HBO perk. The entry-level unlimited plan now starts at $70 instead of $65. Existing customers can keep their old plan and the free HBO, but new customers or those who switch plans will have to buy the more expensive unlimited plan to get HBO at no added cost." Synergies, yo! Again, like the boiling frog metaphor, these companies make these changes at a somewhat glacial pace, hoping that consumers won't notice as they are gradually squeezed. For example, AT&T this week also leaned in on a long-standing, misleading practice in the telecom and cable TV sectors: bullshit fees. The company quietly announced it would be jacking up its "administrative fee" for all customers from $0.76 to $1.99, effectively providing AT&T with roughly $800 million in additional revenue every year. The fee, as with most similar fees, is completely made up; it simply takes some errant cost of doing business and shovels it below the line, letting the company in question falsely advertise a lower rate: "When reached for comment, an AT&T spokesperson confirmed the existence of the fee increase. “This is a standard administrative fee across the wireless industry, which helps cover costs we incur for items like cell site maintenance and interconnection between carriers,” the spokesperson said in a statement." Right. But "cell site maintenance" and "interconnection between carriers" are just the cost of doing business. There's no reason to break these out below the line outside of trying to falsely advertise a lower rate. This behavior has become an obnoxious standard of the telecom and cable TV industries, and you'd be pretty hard pressed to find a regulator or politician from either party that cares. Meanwhile, numerous lawsuits over these kinds of practices haven't done much to limit the behavior. Again, it's important to remember that the FCC's net neutrality repeal didn't just kill net neutrality. It also dismantled state and FCC oversight of ISPs, intentionally throwing any fleeting, remaining oversight back to the FTC -- an overhwhelmed agency with such limited authority over teleocom these kinds of concerns will fall through the cracks (the entire point of the ISP policy gambit). The one-two-three punch of limited competition, crippled regulatory oversight, and unchecked vertical integration power is going to reverberate internet-wide for the next decade. To keep public and press outrage muted as they cash in on this newfound lack of any real checks and balances, ISPs are going to slowly-but-surely impose an endless array of new restrictions and caveats that seen alone aren't earth-shattering. But if you pay attention over time, you'll note that the temperature of the pot we're all currently sitting in will slowly but surely start to feel decidedly uncomfortable. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
This was predicted long before FOSTA/SESTA became law, but there were going to be constitutional challenges to the law -- and it appears that EFF has filed the first such lawsuit, representing the Internet Archive, Human Rights Watch, the Woodhull Freedom Foundation, Eric Koszyk, and Alex Andrews seeking to have the law declared unconstitutional and getting an injunction against it being enforced. You can read the complaint directly, which touches on a few different issues, with the 1st Amendment being a key one: Using expansive and undefined terms, FOSTA’s criminal penalties and ruinous civil liability turn entirely on what content and viewpoints online speakers publish, the content and viewpoints that a platform allows to be posted, and the editorial policies a platform uses in determining whether to block, modify or remove material created by others. The law has already muzzled countless online speakers and led to closure of many online platforms that hosted their speech. By this action, Plaintiffs seek to have the Act declared unconstitutional under the First and Fifth Amendments of the United States Constitution, both on its face and as applied to Plaintiffs, and to enjoin the government from enforcing the Act. As for why these plaintiffs, the lawsuit and related posts on EFF's site have more background, but the lawsuit sums it up nicely: Plaintiffs are individuals and organizations engaged in constitutionally protected speech on the Internet, including a national human rights organization dedicated to sexual freedom, an international human rights organization, a massage therapist, an activist dedicated to assisting and advocating for the rights of sex workers, and a digital library of Internet sites and other cultural artifacts in digital form, that have already been harmed by FOSTA. Three Plaintiffs advocate for the legalization of sex work, both domestically and internationally, provide education, health and safety resources, and more broadly work to support sex workers, and are thus concerned that continuing their advocacy and assistance efforts will be considered “promoting or facilitating” prostitution, or that prosecutors or civil litigants will allege that they “recklessly disregard” that their activities may “contribute to” sex trafficking. This uncertainty has stopped some plaintiffs from speaking, at significant costs to their organizational and individual missions. Another plaintiff has suffered constitutional and monetary injuries because the online platforms he used to disseminate his speech have shut down because the operators reasonably fear liability under FOSTA. Still others are uncertain as to the legality of their well-established practices. Not surprisingly, the complaint relies heavily on Reno v. ACLU, the very important case that invalidated every part of the Communications Decency Act other than CDA 230. The original CDA, like FOSTA/SESTA, was a broadly worded horrific bill that had tremendous chilling effects for speech online leading the Supreme Court to toss out the law as unconstitutional. Since then, the consensus around CDA 230 has meant there hasn't needed to be much litigation in this space, but FOSTA has revived it. Both through direct restrictions and because of multiple layers of ambiguity, FOSTA is driving constitutionally protected speech off the Internet at a rapid pace; and, like the CDA before it, FOSTA “threatens to torch a large segment of the Internet community.” Reno v. ACLU, 521 U.S. 844, 882 (1997). FOSTA’s restrictions on speech cannot satisfy strict scrutiny because they do not effectively serve a compelling interest and are not the least restrictive means of attempting to do so, its operative provisions are vague and overly broad, and its selective alteration of federal immunity for online intermediaries is designed to promote censorship. These constitutional defects are magnified by the law’s ex post facto application. The threat to online freedom of expression is significant. As the Supreme Court explained in Reno, the Internet burst onto the scene as a unique and wholly new global medium of human communication that gave individuals access to information as “diverse as human thought” on topics ranging from “the music of Wagner to Balkan politics to AIDS prevention to the Chicago Bulls.” Id. at 849-52. It also naturally enabled people to communicate about sex, which the Court has acknowledged is “a great and mysterious motive force in human life” that “indisputably [has] been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.” Roth v. United States, 354 U.S. 476, 487 (1957). The case also highlights one other key similar case, which was COPA -- the Child Online Protection Act, which was thrown out as unconstitutional as well. This case notes the similarities in FOSTA with those previous laws. Passage of FOSTA represents the latest such effort, and is another example of where Congress got the balance wrong. Plaintiffs oppose all forms of human coercion and therefore do not question congressional intentions. And they support appropriately targeted and effective measures to end sex trafficking. But FOSTA will not reduce such practices; to the contrary, it only makes matters worse. The law erroneously conflates all sex work with trafficking. By employing expansive and undefined terms to regulate online speech, backed by the threat of heavy criminal penalties and civil liability, FOSTA casts a pall over any online communication with even remote connections to sexual relations. It has impeded efforts to prevent trafficking and rescue victims, and has only made all forms of sex work more dangerous. FOSTA has undermined protections for online freedom of expression, contrary to the near unanimity of judicial decisions over the past two decades. For fairly obvious reasons, this is going to be a very, very important case to watch over the next few years, and I imagine the fighting over it is going to get pretty fierce. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
About a month ago we learned that PUBG Corp., the company behind the game PlayerUnknown's Battlegrounds, had sued Epic Games, makers of Fortnite, earlier this year in South Korea. This whole dust up between the two game developers has been monumentally frustrating, specifically due to the folks at PUBG being confused as to whether video games get any IP protection (they do!) and, then, whether fairly generic game modes and game genres are afforded copyright protection (they're not!). The problem for PUBG in all of this is that its game mode of a battle royale pitting a hundred players against each other is simply not something that fits into copyright law's protection. As we've explained, there is an idea/expression dichotomy in many country's copyright laws, in which the specific expression is afforded copyright but mere ideas are not. For example, the art assets for PUBG absolutely are copyrightable, while the concept of a battle royale is not. Due to that, PUBG's lawsuit was always going to face a steep uphill climb to come out in its favor. With that in mind, then, it's probably not terribly surprising that PUBG has now dropped the lawsuit entirely. The studio behind PlayerUnknown’s Battlegrounds has dropped its lawsuitagainst the creators of global sensation Fortnite, ending a legal battle between two of the world’s hottest games. PUBG Corp. sent a letter of withdrawal to Epic Games Inc.’s attorneys on Monday and the South Korean case has since closed, according to the website of the local court system. PUBG and its law firm confirmed the action but wouldn’t say why, nor whether a settlement had been reached. Representatives for Epic in Korea had no immediate comment. There is of course no way to be sure, but with PUBG not crowing about a settlement, it's plausible none was ever reached. Certainly on the merits it would make much more sense for the legal team for PUBG to have finally convinced the executives there that either the case was not likely to be a winner, or that their interests were better served not entering into a lengthy and expensive legal battle with Epic, or both. Complicating all of this is how intertwined PUBG and EPIC are, from ownership of both to the technology behind PUBG. Both are part-owned by social media and gaming giant Tencent Holdings Ltd. and have carved out commanding positions in the Battle Royale format. But PUBG contended in January that Epic’s Fortnite mimicked many of the characteristics of its own title. To complicate matters, Epic provides PUBG with its Unreal Enginetechnology, used to create PlayerUnknown’s Battlegrounds and an industry standard for professional game developers. All of this would seem to add up to PUBG finally coming to its senses. Ultimately, that's a good thing for all parties, but it would be great if game companies motivated by jealousy didn't attack one another in the first place. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Thankfully this is not a post about the Monkey Selfie case, which should have ended by now but has not. Instead it's about Lenz v. Universal, the Dancing Baby case, which shouldn't have come to an end yet, but has. This week the EFF announced that the case has been settled. The problem though isn't that it the case has been settled. It had been remanded for trial, which would have been a long, expensive slog to not accomplish what the case really needed to accomplish: put teeth back into the Section 512(f) remedy that the DMCA is supposed to afford to deter illegitimate takedown demands. The problem is that the opportunity to provide that benefit was extinguished when the US Supreme Court denied cert and refused to review the Ninth Circuit's interpretation of that provision. So we'll be stuck with this precedent until another case can prompt another look by the court and the serious issue of censorship-via-takedown notice can finally get the judicial attention it deserves. Maybe it will even be a case where a monkey has taken a video of himself dancing along to music, because the rights of monkeys have so far been a lot more successful in attracting en banc attention from the Ninth Circuit than the speech rights of people. And maybe it won't even take 10 years of litigation (that's 32 in monkey years) to find out. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
It's probably well known at this point that major professional sports leagues have a strange relationship with Twitter. On the one hand, many leagues use the social media site quite well when it comes to sharing highlights and getting their brands out there in front of people. Major League Baseball is particularly good at this, although the NBA is not terribly far behind. On the other hand, these leagues have been known to adopt quite restrictive policies when it comes to who can share what on Twitter. This is especially the case on league draft days. For instance, the NFL insists that its broadcast partners, such as ESPN and the NFL Network, not allow their journalists to tweet out draft picks on draft day before they are announced on television. The league obviously wants as many eyeballs tuned into the drama on television as it can muster and has theorized that making TV the first place to get draft picks announced will help with that. For anyone that follows sports on Twitter, this is obviously a very, very stupid theory. Many sports journalists are not working for ESPN and NFL Network, and they quite happily inform followers of draft picks before they are announced based on their sources. This is how journalism works. But it was probably a unique event at the NBA draft the other night that a Twitter scoop actually caused one NBA team to back out of an agreed-upon trade. Atlanta Hawks GM Travis Schlenk told San Francisco radio station 95.7 The Game this morning that he had a deal in place with the Milwaukee Bucks to move up from the 19th pick to the 17th. The Hawks knew they wanted one of two players—including Maryland shooting guard Kevin Huerter—and were sufficiently convinced that the Bucks and the Spurs (at 18) would take the two guys. So they were prepared to part with future picks in order to move up two spots and get one of their guys. However, Schlenk said that the deal became unnecessary because Shams Charania reported that the Bucks were going to take Donte DiVincenzo, who was, apparently, not one of the two they wanted. Pick tipping is not just helpful for fans, it turns out. My first reaction is Schlenk is good at his job, having his team monitor Twitter for this kind of intel. If sources are willing to share another team's intentions on draft night with a journalist who is all too happy to tweet that information out, it only makes sense for Schlenk to want to slurp that information up and let it inform his draft day choices. But my second reaction is one of worry that the NBA will catch wind of this and absolutely freak the hell out. Leagues as big as the NBA almost can't help themselves when it comes to this kind of thing. The idea that a trade was scuttled due to great reporting and the tipping of a pick almost certainly isn't going to sit well with Commissioner Adam Silver and it feels quite impossible that no action over this will be taken by the league. If the end result is the NBA trying to lock things down a la the NFL, that would be unfortunate and ultimately ineffective. If they take the much more likely action of trying to cut off access to sports journalists from teams on draft day, that would be worse for fans, for its teams, and for its own marketability. Here's hoping Silver, who is relatively forward-thinking, keeps a cooler head than I fear. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Despite the President demanding -- via Twitter -- that House Republicans pass the "strong but fair" immigration bill, the House Republicans did not, in fact, pass the muscley but attractive immigration bill. The bill would have diverted $25 billion to Donald's Folly and steeply decreased the number of immigrants the nation is willing to extend citizenship to. It may have done a little good by providing another route to citizenship for children brought into the US by illegal immigrants, but that would have been undone by the removal of time limits for the detention of accompanied children. So, it was a hearty blend of bad and worse. There were compromises made to push the few centrists onto the "aye" side but what was offered wasn't enough to sway the middle ground and wasn't harsh enough to satisfy the anti-immigration hardliners. The bill will be back again eventually, but there's no telling what will be added or subtracted before the next push to the president's desk begins. However, there is a silver lining -- at least for those concerned about the ability of the border to swallow everyone's rights. As the EFF noted, the House's rejection of this bill meant no increase in border-related surveillance, snooping, and data harvesting. The bill contained a slew of authorizations for border agencies to get all up in everybody's everything the moment they hit a checkpoint. The bill calls for increased DNA and other biometric screening, updated automatic license plate readers, and expanded social media snooping. It also asks for 24 hours-a-day, five-days-a-week drone surveillance along the southern U.S. border. This bill would give the U.S. Department of Homeland Security broad authority to spy on millions of individuals who live and work as far as 100 miles away from a U.S. border. It would enforce invasive biometric scans on innocent travelers, regardless of their citizenship or immigration status. As is noted in the EFF's write-up of the immigration bill, this extensive surveillance wouldn't be limited to those people lots of Americans mistakenly believe have zero Constitutional rights. It would also affect US citizens -- the sort of people everyone agrees have Constitutional rights. And the additions were problematic from more than the civil liberties standpoint. There's been a rush to harvest biometric data, but it's being done without proper oversight, public input, or even the required Privacy Impact Assessments. Facial recognition, in particular, is a technology known to provide a ton of false positives for every successful "hit," raising the probability of wrongful arrests, detainments, and deportations. Allowing the CBP to engage in even more drone surveillance (and not limiting where the CBP's drones can be flown) makes little sense considering the DHS Inspector General found the drones the CBP were operating were mostly useless and far from cost effective. All this would do is encourage the agency to spend more money faster with almost no return on investment. The bill would also have codified DHS's on-again, off-again social media screening of visa applicants. The DHS admitted it does not have the legal authority to screen social media accounts of legal US citizens, but an expansive snooping program would certainly allow CBP to perform backdoor searches of US persons' communications should any visa applicant be in regular contact with American citizens. The codification would have retroactively forgiven DHS's sins and given it full authority to turn the visa application process into fishing expeditions for bored border agents. The defeat of the immigration bill is a small victory on several fronts, but the mindset of many of its opponents appears to be that it doesn't go far enough towards creating some sort of DMZ between us and our southern neighbor. That Trump seems intent on portraying our apologetic neighbor to the north as some sort of safe haven for "bad hombres" ("bad hombrehs"?) is more than a little disconcerting, as the only previous aggression we've observed was detailed in the late John Candy's last comedy. This, however, might explain why the "papers, please" demands of CBP officers can be heard echoing in such unlikely places as New Hampshire and Maine. All we can do is hope the next attempt at shoving an immigration bill through doesn't include a few billion to brick up the northern reaches of Montana and send a flotilla of Coast Guard interceptors to the Great Lakes. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
The 9th Circuit is at it again with copyright. For whatever reason, when the 9th Circuit gets a copyright case, it frequently seems to mess everything up about it. This latest case -- Experian v. Nationwide Marketing Services -- is no exception. One of the most famous, and most important, copyright cases to hit the Supreme Court was the Feist case. We've mentioned it many times before. The short summary is that a phone book publisher had inserted a few "fake" names and numbers into its book to try to catch copycats. It found one, and sued for copyright infringement. The Supreme Court rejected it, noting that copyright does not apply to facts, and clearly rejecting any notion that mere "sweat of the brow" in collecting facts gives you a copyright. This was good. But... there was one part of the ruling that still left open the potential for mischief, and appeals courts have been making mischief in that loophole ever since. Here's the issue: 17 USC 103 allows for copyright in "compilations," though it notes this copyright "only extends to" the creative input in making the compilation, and not the underlying works (whether they are covered by copyright or not). The common sense explanation of this is that if, say, you're putting together (with the proper licenses) a "best of..." CD (let's say "Best of the 70's"), then you can have a copyright on that compilation. Not in the underlying songs, which you've licensed properly, but in the creativity in choosing the 7, 12, 15 or whatever number of songs, and the order you've placed them in. That requires some creativity, and it may be enough to get a fairly narrow copyright. In Feist, the question was whether or not putting together all the phone numbers and names was covered by that compilation setup, and the Supreme Court said no. A mere collection of facts has no creative element and thus can't be considered a compilation for the purpose of establishing a new copyright. That's good. But the opinion bent over backwards to suggest that lots of other compilations of data might have the requisite creativity. And... far too many courts have taken the Supreme Court up on that proposition, potentially eviscerating the valuable promises of Feist. That takes us to this case. Here, Experian, as you're probably aware, is one of the massive consumer data services, and one of its databases, the ConsumerView Database, contains around 250 million records about individual consumers, pairing together their names and addresses. Names and addresses. This seems pretty damn similar to Feist's names and phone numbers, right? Well, an upstart data collection company, Nationwide Marketing Services (or Natimark) somehow got its hands on a database called the National Consumer List, with about 200 million records. At some point, it tried to sell that database to Experian (apparently, the whole market is somewhat incestuous in passing around and selling data back and forth between each other, using different databases to mix and match and keep things up to date). Experian analyzed the data from the Natimark NCL list and found that it was way too close to its own ConsumerView Database (CVD), finding it 97% the same (a later analysis said 94%). Thus, this lawsuit. To me, this seems like a pretty clear application of Feist. Names and addresses is factual information, there's no copyright in the compilation, toss the case. And that's what the district court originally found. Experian tried again, now using trade secrets. Once again, the district court said "nuh-uh." The case was then appealed to the 9th Circuit Appeals Court... who really messed it up and decided that, yes, Experian can have a copyright in the compilation. The opinion goes through a long list of other data compilation cases, with rulings on either said, and finally says there's enough creativity in the collection. Why? For two key reasons. First, Experian's database left some people out -- such as the elderly. By not including the "entire relevant universe known to it," the court concludes that it has made creative choices in what not to include. Second, Experian employees had to make some decisions about which address goes with which people. Specifically, in compiling these databases from multiples sources they may find that there are multiple possible addresses for an individual, and Experian employees had to choose which address to put down. And that, in the minds of the 9th Circuit, is the level of creativity necessary to get a copyright. Experian’s selection process in culling data from multiple sources and selecting the appropriate pairing of addresses with names before entering them in the database involves a process of at least minimal creativity. The listings are compiled by first collecting and comparing multiple sources, and then sorting conflicting information through the creation of business rules that Experian created to select from among the conflicts. As the Fifth Circuit said in Mason, selection is sufficiently creative when the compiler makes “choices . . . independently . . . to select information from numerous and sometimes conflicting sources.” But... that seems an awful lot like bringing back the "sweat of the brow" argument. It's not creative choices being made here. It's choices around which information is correct -- i.e., factual. The exclusion of elderly people also seems like a bizarre factor on which to judge "creativity." Experian’s employees, like the compiler in Key Publications, also exclude information they deem irrelevant to the interests of Experian’s marketing clients, information such as business addresses, and the names and addresses of the very elderly and incarcerated. See 945 F.2d at 513. Such exclusions indicate some “thought and creativity in the selection” of names and addresses to include in the database, id., which indicates the “modicum of creativity necessary to transform mere selection into copyrightable expression.” But, under that standard, it would seem that Feist itself was decided incorrectly. Remember, the whole reason why Feist became a case in the first place was because the original phone book had added fake names and numbers. How is that any different than choosing to exclude names of old people? Indeed, you could make an argument that adding in fake numbers requires more creativity than excluding factual data on old people. Under this standard, it seems quite easy to basically wipe out Feist entirely. If you want a copyright on your big collection of purely factual data, drop a few entries that no one needs, and claim that was your creative choice. In this case, Experian still probably isn't thrilled with the result, since after establishing that Experian can have a copyright in the compilation, it then says Experian failed to actually prove infringement. The court notes that to prove infringement of a compilation, you need to show that basically the entire compilation was copied. But, here that was not shown. In this case, the Experian database that was allegedly infringed was one updated through September 2011. Neither that entire database nor Natimark’s entire, allegedly infringing database was introduced into evidence, and perhaps as a practical matter could not have been. Nevertheless, there must be sufficient evidence of content to make a fair comparison.... Experian contends that it has established a triable issue as to copying by offering the opinion of an expert that the match rate between Experian files and the allegedly infringing Natimark files is higher than the match rate between the files of Experian and one of its legitimate licensees. Experian asks us to hold that it has presented circumstantial evidence of copying sufficient to send the case to a jury. It fails to cite any authority from this circuit or elsewhere permitting infringement to be established on the basis of circumstantial evidence, and in the absence of any direct comparisons. It also points out that Experian's own evidence shows that the Natimark database was only 80% the size of Experian's, and that's not enough to show that the entire compilation was copied. So that dooms Experian's copyright argument. But, still, the decision that the copyright exists in the first place is quite troubling and could create all sorts of trouble. It will enable a fake "sweat of the brow" right, which should be cause for concern. This could have all been avoided if everyone recognized that compilation copyrights shouldn't be for merely collecting giant tubs of factual data, but compilations of copyright-protected material. Unfortunately, Congress (perhaps stupidly) included the term "data" in its definition of compilation. It would be nice if Congress rectified this mess by deleting that word from the definition, but there's little chance of that happening any time soon... As we were just discussing, the US's lack of a "database right" as found in Europe, has actually been a huge boon to innovation, especially on the internet. This ruling could create some problems for that by establishing a de facto database right, if the initial compiler takes a few meaningless steps to establish the modicum of "creativity" necessary to satisfy the court here. And, of course, it's still not clear why adding in fake info doesn't quality, while deleting a few entries does. For what it's worth, the court also overturned the lower court's ruling on trade secrets, saying that there's enough evidence to say a jury should determine whether or not Experian's database is covered by trade secret law. This is... also bad, but wading into the huge mess that is trade secret law is something that will probably cause me to start banging my head repeatedly on the wall, and I really have no desire to do that right now. Perhaps another time. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
There are online courses and then there's Shaw Academy. This online resource is home to 60 expert-led, interactive courses — all of which come with real certifications that can help your resume stand out. With courses in photography, tech, health and wellness, finance, marketing, design, business, and more, Shaw Academy can set you on a path to achieve all of your goals in your own time. This exclusive offering is the first time you can get lifetime access to all of their premium content as well as all future courses and tool kits making it an investment that will pay itself back in no time. It's on sale for $99. 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
As the rhetoric has amped up around immigration enforcement, so have the tactics. ICE was never anyone's idea of a good time, but its actions have become much more aggressive, thanks to this administration's steady stream of anti-immigrant sentiment. While not supporting the criminal activity engaged in by its informants, ICE is performing warrantless raids, deporting critics, and claiming helping undocumented children is a criminal offense. Now, it's getting its software to pitch in. Reuters reports ICE is detaining more people than ever, keeping them imprisoned while their court cases -- which may take years to adjudicate -- are pending. Up until recently, ICE would make a determination on the risk level of detainees, allowing some to post bond and stay with their families while their court cases played out. That's no longer the case. The system ICE uses to make this determination -- detain/release -- is still being used. But the info fed into it no longer matters. Thanks to Trump's orders, there's no determination being made. The software is a facade that spits out a single answer, no matter what info its given. To conform to Trump’s policies, Reuters has learned, ICE modified a tool officers have been using since 2013 when deciding whether an immigrant should be detained or released on bond. The computer-based Risk Classification Assessment uses statistics to determine an immigrant’s flight risk and danger to society. Previously, the tool automatically recommended either “detain” or “release.” Last year, ICE spokesman Bourke said, the agency removed the “release” recommendation, but he noted that ICE personnel can override it. This caused detentions to triple in 2017. And the software, which is supposed to perform a risk assessment, no longer does anything at all. It may be overridden by ICE personnel, but why would any ICE employee bother? The president made it clear he wants immigrants locked up or kicked out. A rigged machine makes it easy to ignore mitigating factors in favor of treating everyone as the "worst of the worst" ICE is actually supposed to be targeting. At this point, it makes no sense to even have the system running. ICE may as well drop the charade and just detain everyone. The discretion was built into the system, but that's been removed. That leaves everything up to the discretion of ICE officers, who have zero motivating forces pushing them towards more lenient behavior. This is another small step towards diminishing the protections of the Constitution. The government operates a system that pretends to offer a fair balancing of relevant factors, but has secretly removed one of the two options immigrants are supposed to have. Couple this with President Trump's tweet about stripping away the last vestiges of due process at the border and you have a government progressively undermining the rights that actually make America great. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Efforts to reverse the FCC's historically unpopular attack on net neutrality using the Congressional Review Act (CRA) appear stuck in neutral. The CRA lets Congress reverse a regulatory action with a simply majority vote in the Senate and the House (which is how the GOP successfully killed FCC privacy protections last year). And while the Senate voted 52 to 47 back in May to reverse the FCC's attack on net neutrality, companion efforts to set up a similar vote in the House don't appear to be gaining much traction as the clock continues to tick. A discharge petition needs 218 votes to even see floor time, and another 218 votes to pass the measure. But so far, the petition only currently has 172 likely votes, all Democrats: The House #NetNeutrality discharge petition is at 172 signatures. We’re 46 away from being able to force a vote on the resolution to restore the Open Internet Order. Has your representative signed the petition to #SaveTheInternet? Check here: https://t.co/zKI7sxSwGj — Ed Markey (@SenMarkey) June 26, 2018 Again, not a single Republican in the House has signaled any interest in saving net neutrality. As we've long noted, the quest for a healthy internet free from anti-competitive meddling by telecom monopolies has long been idiotically framed as a partisan issue despite broad, bipartisan consumer support. ISPs and their numerous political proxy organizations have long enjoyed using rhetoric that only further fuels these divisions (derailing real consensus) by conflating meaningful consumer protections with a "government takeover of the internet," ideas that are happily parroted by many ISP cash-loving DC lawmakers. Undaunted, net neutrality activists held an advocacy day yesterday trying to drum up some additional support among lawmakers among a clearly debate-fatigued public. Another net neutrality group, Fight for the Future, has constructed this page to track which lawmakers haven't signed on, while making it easy to contact those that haven't. That said, this effort was always an uphill climb. Even if the CRA vote succeeded in the House, it would have to avoid a veto by Trump. Many activists I've spoken to believe a vote in both Houses would appeal to Trump's "populist" streak forcing him to bend to the whims of public consensus. But given Trump's version of populism tends to be as authentic as a Hollywood Wild West set and as consistent as a brush fire, that prediction always seemed a tad optimistic. Still, stranger things have happened, so maintaining hope in the face of this level of corruption isn't entirely outrageous. That said, the best path forward for reversing the repeal is two fold. One, there remains a notable chance that the courts see the FCC's fraud-riddled net neutrality repeal as the blatant, facts-optional nonsense it actually is, and reverses it for being an "arbitrary and capricious" abuse of procedural norms and the FCC's obligation to represent the public. If that doesn't work, there's always voting in the the midterms and thereafter for a new breed of lawmakers that don't mindlessly place ISP campaign contributions above the welfare of the public, the internet, and genuine, healthy competition. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
After being held in jail for over a year because the DOJ managed to talk a judge into viewing Reality Winner -- leaker of single document pertaining to Russian interference in the US elections -- as a national security threat in need of constant containment, Winner has agreed to plea deal. Trevor Timm reports for The Intercept: Winner stated in federal court today that she pleads guilty to one count of violating Section 793 of the Espionage Act and will agree to a sentence of 63 months in prison and 3 years of supervised release. As Timm points out, Winner's leak of a single document confirming not only everyone's suspicions, but things already stated by US government officials, will net her the longest sentence ever imposed on someone charged under the Espionage Act. These charges are particularly difficult to fight. Being charged with espionage prevents defendants from introducing anything that indicates a lack of malicious intent or speaks to any benefits the public may have received from reviewing a leaked secret document. All a defendant can do is hope for a merciful court. Winner didn't find one. Both the judge and prosecutors seemed intent on making this as miserable of an experience as possible. Almost every motion her lawyers filed was denied, along with bail, as the government painted Winner as a threat to national security. That the case was intrinsically tied to national security interests allowed the government to sidestep her requests and demands with ease. In Winner's case, the prosecution demanded debilitating secrecy restrictions that hampered the defense team for over a year. Prosecutors attempted to convince the judge that they didn’t even need to prove that the document Winner was alleged to have leaked even potentially could have harmed national security. What Winner leaked came as a surprise to many state election officials. If the federal government had any evidence of Russian hacking attempts, it kept that to itself. Winner's leak gave them the info the feds weren't willing to share. The report was deemed important enough by one federal agency -- the one charged with assisting state elections -- that it actually directed state officials to read the leaked document and take steps to protect their election systems. And for that, Winner will spend the next eight years under direct control of the government that couldn't be bothered to disseminate this info itself. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
It's not entirely clear what motivations lie behind Barrett Brown's Kickstarter project, but you have to imagine it has to partially be an extended middle finger to the DOJ. Journalist Barrett Brown was tried and convicted on a handful of charges related to the act of journalism. He ended up with a 63-month sentence and a $890,000 restitution order -- some of which was tied to this activity. [A] key part of the initial charges included the fact that Brown had organized an effort to comb through the documents that had been obtained from Stratfor via a hack. The key bit was that Brown had reposted a URL pointing to the documents to share via his "Project PM" -- a setup to crowdsource the analysis of the leaked documents. Some of those documents included credit card info, so he was charged with "trafficking" in that information. Brown made his situation worse by threatening federal agents, but the prosecution originally stemmed from his sharing of Stratfor documents. The link-sharing charge was ultimately dropped, but the DOJ included it in the indictment, trying to turn sharing a URL into trafficking in stolen credit cards. Compare that summation of the DOJ's prosecution with Brown's new "Pursuance Project." Pursuance is open source software that provides a better way to organize online. It provides an integrated suite of digital tools, all designed to allow activists, researchers, journalists, artists, coders – anyone with talent and a little time – to collaborate on projects large and small, working within customized, evolvable entities called pursuances. (Think of a pursuance as a mission-oriented project/organization/group that people on the platform can join and contribute to.) So… crowdsourcing knowledge/skillsets to engage in activism or journalism or whatever. This may include sharing access to leaked documents, much like those Brown was prosecuted for. But this won't all be out in the open. Steps will be taken to shield collaborators from those opposed to their efforts. Two-factor authentication will be baked in, along with "Tor by default." On top of that, pursuers[?] are given tools to keep The Man from surveilling their projects. We're including a robust permissions system that allows you to invite people at various trust levels. At the minimum trust level, the person you've invited can only see and only work on the tasks you've assigned them; they can't see the rest of the task hierarchy, and they can't see who else is involved, thus limiting the possible damage done by malicious infiltrators. This sounds very much like Brown wants to get back to the work he was doing before the federal government interrupted his life with trumped-up charges. More journalism, more collaborations, and a suite of tools to keep those who view investigative journalism as threatening locked out of the process. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Last year, the GOP and Trump administration used the Congressional Review Act to dismantle FCC consumer broadband privacy protections before they could take effect last March. While AT&T and Comcast whined incessantly about the rules, the FCC's guidelines were relatively modest; they required that ISPs and mobile carriers be transparent about what data is being collected and sold, and get express consumer opt-in consent before ISPs can share more private financial or location data. Such rules could have gone a long way in protecting consumers in the wake of the recent Securus and Locationsmart location data scandals. Following the ISP-funded attack on FCC authority and consumer protections, states have begun exploring their own privacy protections (mirroring what we're also seeing on the net neutrality front). For example, California last year considered passing a state-level copy of the FCC's gutted privacy rules. But those efforts hit a political brick wall thanks to the collective lobbying muscle of Comcast, Verizon, AT&T, Google and Facebook, which killed that effort by lying repeatedly about what the proposal actually did, including claims the proposal would "aid extremism." While Verizon and Facebook both pretended to back away from those attacks once their efforts gained press exposure, the effort continue all the same. In the wake of the successful attack on FCC privacy rules, California privacy advocates have been pushing a new ballot initiative, this time dubbed the California Consumer Privacy Act of 2018. The initiative would require that companies be fully transparent about what data is being collected and sold (and to whom), as well as mandating mandatory opt-out tools. The proposal goes further than the FCC's discarded rules, in that it would ban ISPs from trying to charge consumers more for privacy, something that has already been previously implemented by AT&T and considered by Comcast. The new initiative is scheduled to appear on this November's ballot, and Google, Facebook, and large ISPs are once again working in concert to ensure that doesn't happen ahead of a looming Thursday afternoon deadline. They're collectively now pushing for quickly-hacked together "compromise legislation," AB 375, they're hoping will be significantly weaker than the looming November ballot initiative. "In addition to Facebook, Google, AT&T, Microsoft, Amazon, Verizon, and the California New Car Dealers Association have each contributed six figure donations to the Chamber account set up to defeat CCPA. Uber, the Data & Marketing Association, Cox Communications, and the Interactive Advertising Bureau have each contributed $50,000 to the account, according to disclosures." Recall, Facebook recently made a big show earlier this year about how it wouldn't be working to undermine such privacy proposals in the wake of the Cambridge scandal: "The inclusion of a Facebook representative is notable, given the company’s well-publicized announcement earlier this year that it would end its opposition to the initiative. In February, the company provided $200,000 to an account set up by the California Chamber of Commerce designed to defeat the CCPA initiative. But in April, following revelations about the extent to which British consulting firm Cambridge Analytica provided the Donald Trump campaign with illicit access to Facebook user data, Facebook announced that it would withdraw its opposition to CCPA and not provide additional funding to the Chamber account." As the GDPR clearly illustrates, there's some real peril in pushing through solutions before ironing out all of the potential pitfalls. Both the scotch-taped together AB 375 and the California Consumer Privacy Act (a pet side project of San Francisco real estate developer Alastair Mactaggart) have some notable problems that would have been aided by a longer, more transparent and inclusive discussion. Though the problems with AB 375 (which, again, if passed would eliminate the latter from contention) are notably worse, in large part because the bill was quickly cobbled together in just under a week behind closed doors: "By tomorrow, the California legislature likely will pass a sweeping, lengthy, overly-complicated, and poorly-constructed privacy law that will have ripple effects throughout the world. While not quite as comprehensive as the GDPR, it copies some aspects of the GDPR and will squarely impact every Internet service in California (some of whom may be not currently be complying GDPR due to their US-only operations). The GDPR took 4 years to develop; in contrast, the California legislature will spend a grand total of 7 days working on this major bill." Not only was AB 375 a rush job, the bill has been steadily eroded since introduction by this super group of telecom and Silicon Valley lobbying giants. AB 375 just passed out of the out of the Senate Judiciary Committee, meaning it's most likely going to be the California privacy proposal of choice. And the fact that it's a rush job is not apparently of much concern to the bill's backer: "Assemblyman Ed Chau, an Arcadia Democrat and the chief bill author, said he doesn't like the rushed process forced by the ballot measure deadline, but he stressed that his bill gives Californians important privacy protections." With that mindset, it's easy to wind up with a privacy law that sounds good ("look ma, I "fixed" privacy!") but doesn't actually do anything. And when you've got lobbyists from AT&T, Comcast, Verizon, Facebook, Google, Amazon and Microsoft disproportionally dictating the overall trajectory of the law, the chances that you're going to end up with weak-kneed "privacy rules" in name only is pretty monumental. Adding speed for speed's sake -- combined with an overall lack of transparency -- only adds to the potential that the rules you end up with are toothless or packed with unintended consequences. That said, doing nothing isn't an option. This isn't a problem that magically fixes itself. Modern consumer privacy oversight in the internet-era currently consists of little more than pinky swears and winks, a point driven home repeatedly by the Cambridge, LocationSmart and Securus scandals. We need to have a lengthy, transparent, adult conversation about what a potential solution might look like. The problem is that the larger companies dictating the conversation have an absolutely abysmal track record on these issues, so while they may have valuable insight on the complicated scope of a particular proposal's impact, they've managed, repeatedly, to shoot their credibility squarely in the foot on this subject. And while ISPs and Silicon Valley giants like to go on at length about how they're "open to having a conversation" about more meaningful privacy guidelines, the reality is that most of these larger companies simply aren't. Any rules worth their salt will cost them money, since an informed, empowered consumer is more likely to opt-out of data monetization schemes, whatever they look like. As a result, you'll be hard-pressed to find many large ISPs or Silicon Valley giants willing to back truly tough consumer protections, especially rules than mandate express, opt-in consumer consent for things like location or financial data. Eventually, after we've suffered through a few more hacks, breaches and major scandals, some of these companies may shift their thinking toward the idea that compliance with quality, even-handed rules is more profitable than chaos. But as the ham fisted repeal of the FCC privacy rules makes clear, we're nowhere near that point yet. Meanwhile, on the federal level, the Trump administration is rumored to be considering a broad new privacy plan. And if the administration's equally heavy-handed net neutrality repeal is any indication, objectivity, hard data and transparency aren't likely to have much of a seat at the table there, either. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
For most of the first decade of the millennium, we would post over and over again about content business models and how "free" content makes a ton of sense as a component of a business model. And yet, people in the legacy entertainment industry would laugh and laugh, and talk about how "you can't make money on free." You even had folks who claimed that if you gave away anything for free it proved you had "no fucking clue" about how to run a business. My favorite may have been Doug Morris, who was boss of Universal Music and then Sony Music, insisting that there was no way anyone in the recording business could make money on "free." These days, that's all looking pretty silly, but just to drive home the point: the insanely popular free video game Fortnite made $318 million last month. Not last year. Last month. And it's free. Of course, as we've always said, the whole point of free is not that free is the business model, but that free is a part of the business model. And that's exactly how Fortnight works. Even better, all of that revenue comes from nonessential in-app purchases. You don't ever need to pay any money to play Fortnite. And, if we went by what the entertainment industry "experts" from years past would tell you, if that's the case no one will ever pay. Except, obviously, they are, to the tune of over $300 million per month. Why? Because, they're still buying an actual scarcity: mainly different skins or dances/moves that let them show off. In other words: fashion. Something to make themselves distinct -- to stand out. That is a scarcity. Even in a digital world. So, Fortnite is yet another example of how someone is taking a digital property, and leveraging free to attract a massive audience, and then figuring out ways to charge for a scarcity that people actually want to buy. And people are paying like crazy. So, can we put to rest the idea that you can't make money off of free yet? Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
The Intercept has dug up more details on AT&T's groundbreaking efforts in worldwide surveillance. Last year, it identified a 550-foot, windowless tower in lower Manhattan as an AT&T hub where the NSA taps into phone calls, faxes, and internet communications. According to The Intercept's investigation, there are eight of these datacenters/hubs scattered around the United States. And the NSA is utilizing these to grab data and communications from all over the world. Like the one in Manhattan, the other AT&T/NSA structures are structurally hardened, largely devoid of windows, and bristling with communications equipment... not all of it belonging to AT&T. Atlanta, Chicago, Dallas, Los Angeles, New York City, San Francisco, Seattle, and Washington, D.C. In each of these cities, The Intercept has identified an AT&T facility containing networking equipment that transports large quantities of internet traffic across the United States and the world. A body of evidence – including classified NSA documents, public records, and interviews with several former AT&T employees – indicates that the buildings are central to an NSA spying initiative that has for years monitored billions of emails, phone calls, and online chats passing across U.S. territory. This isn't just a collection of AT&T customers' communications. Its partnerships with other telcos and internet providers allows the NSA to harvest communications from a variety of service providers. These eight locations are "backbones," which means almost everything being carried by AT&T flows through at least one of these centers. Former AT&T employees interviewed by The Intercept indicate there has been a concerted effort made by AT&T to ensure the NSA has access to as much data and communications as possible. "I worked with all of them," said Philip Long, who was employed by AT&T for more than two decades as a technician servicing its networks. Long's work with AT&T was carried out mostly in California, but he said his job required him to be in contact with the company's other facilities across the U.S. In about 2005, Long recalled, he received orders to move "every internet backbone circuit I had in northern California" through the San Francisco AT&T building identified by The Intercept as one of the eight NSA spy hubs. Long said that, at the time, he felt suspicious of the changes, because they were unusual and unnecessary. "We thought we were routing our circuits so that they could grab all the data," he said. "We thought it was the government listening." Former employee Mark Klein claimed the NSA installed its own equipment at some of the hubs several years ago. Those interviewed by the Intercept confirm this, pointing out that some hubs proactively made copies of everything flowing through these centers for the surveillance agency. Most of what's harvested avoids the oversight of the FISA court by being obtained under Executive Order 12333. This Reagan directive granted "transit" authority, allowing the NSA to intercept foreign communications as they traversed hubs located in the United States. As The Intercept points out, this collection has run into trouble in the FISA court. Even though AT&T apparently deploys filters to sort communications by originating IP addresses to remove as many domestic communications as possible, the NSA was still able to scoop up plenty of US persons' communications. This led to a ruling by the FISA court ordering the NSA to fix the program or shut it down. It chose to "fix" it, which involved nothing more than tossing up a warning on analysts' screens that the haystacks they were perusing contained domestic communications, warning them to "not read" the communications of non-target US persons. This worked about as well as you would expect, leading to a neverending string of "compliance incidents" that somehow managed to fall outside the generous coverage granted to the agency with the 2008 FISA Amendments Act. This latest revelation isn't going to undermine AT&T's "Death Star" reputation. The company is awful on so many levels (routinely terrible customer service, supervillainistic behavior) that finding out it's carrying on a nationwide relationship with the NSA is hardly a surprise. But we should expect more from the companies we trust with our data and communications. We need companies that play hard-to-get, not those that immediately assume compromising positions the moment the government hints it wants to be deep inside them. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
While we were still in the middle of the heat storm over Donald Trump's decision to enact a zero tolerance border policy that resulted in children being separated from their parents at the border in far greater numbers than previous administrations, there was some interesting background coverage about the employees and customers of big tech companies like Microsoft receiving backlash for contracting with ICE. While much of that backlash came from outside those companies, there was plenty coming from within as well. Microsoft in particular saw throngs of employees outraged that the technology they had helped to develop was now being turned on the innocent children of migrants and asylum-seekers. In an open letter to Microsoft CEO Satya Nadella sent today, employees demanded that the company cancel its $19.4 million contract with ICE and instate a policy against working with clients who violate international human rights law. The text of the employee letter was first reported by the New York Times and confirmed by Gizmodo. “We believe that Microsoft must take an ethical stand, and put children and families above profits,” the letter, signed by Microsoft employees, states. “We request that Microsoft cancel its contracts with ICE, and with other clients who directly enable ICE. As the people who build the technologies that Microsoft profits from, we refuse to be complicit. We are part of a growing movement, comprised of many across the industry who recognize the grave responsibility that those creating powerful technology have to ensure what they build is used for good, and not for harm.” The 300 employees that signed the open letter represent a fraction of Microsoft's total work force, of course, but you can bet that those willing to sign such a letter also represent a fraction of the staff that share the letter's viewpoint. For its part, Microsoft condemned the Trump separation policy (how brave!), but the company has also refused thus far to acknowledge whether the ICE contract includes facial recognition software or AI. Such powerful tools would seem to be in the wheelhouse of what ICE would want as it carries out this ridiculous policy and Microsoft's refusal to say such tools are not included in its contract with the agency sure seem to suggest that they are. Of course, Microsoft is niether the only tech company going through this, nor the company that has had the largest in employee backlash. That distinction likely goes to Google, where employees not only voiced displeasure over the company's contract to provide AI technology for the Pentagon's drone warfare program, but where many people actually up and quit. The resigning employees’ frustrations range from particular ethical concerns over the use of artificial intelligence in drone warfare to broader worries about Google’s political decisions—and the erosion of user trust that could result from these actions. Many of them have written accounts of their decisions to leave the company, and their stories have been gathered and shared in an internal document, the contents of which multiple sources have described to Gizmodo. Google has long had a culture that encouraged employee feedback on the products it produces, in some cases such influence resulting in real policy shifts. The employees protesting Google's drone contract say that has changed recently, with upper management far less transparent about what work the company is doing and far more deaf to the opinions of the employees that actually carry that work out. Combine it all with the growing distrust of Google in the public and it can appear that Google is trying to pantomime the caricature it is so often painted to be: faceless corporate greed-hounds without soul or morality. And then there is Amazon, where the company's AI contracts with the government and its granting of access to data-mining company Palantir also resulted in anger from within. Amazon employees objected to the Trump administration’s “zero-tolerance” policy at the U.S. border, which has resulted in thousands of children being separated from their parents. “Along with much of the world we watched in horror recently as U.S. authorities tore children away from their parents,” the letter, distributed on a mailing list called ‘we-won’t-build-it,’ states. “In the face of this immoral U.S. policy, and the U.S.’s increasingly inhumane treatment of refugees and immigrants beyond this specific policy, we are deeply concerned that Amazon is implicated, providing infrastructure and services that enable ICE and DHS.” Amazon employees want the company out of the policing and immigration business, and have gone further by calling on the company to boot customers working with ICE off of its platform. Leadership at Amazon, as elsewhere, has been mostly silent, but it's worth noting that Amazon shareholders actually kicked off the angry protests even before its employees did so. Whatever shakes out of this, this isn't something Jeff Bezos is going to be able to ignore. This is a good time to remind people that companies, including big tech companies, are not comprised of the steel and glass that makes up their offices, but of the people that run and work within them. It's also worth acknowledging that the government has been after big tech firms for some time over the very tools that are likely in this contract. The lesson in this is that the government needs tech companies to carry out this disaster of a policy more than tech companies need the government for anything at all. In other words, if these companies decided to put some moral courage on display en masse, it would have an effect. If they elect to do otherwise, their employees may force their hand. After all, the people signing these government contracts are certainly not the ones fulfilling them. That work is being done by the very employees revolting in protest. Given that there is pressure coming from not just within these companies to get out of the immigration business, but from outside as well, business interests may be lining up to give these companies an excuse to show a little backbone. Permalink | Comments | Email This Story

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