posted 17 days ago on techdirt
For reasons unknown, a federal judge has said the hell with free speech and steered the court into the First Amendment-troubling waters of prior restraint. It's another defamation lawsuit that doesn't spend too much time dealing with defamation, preferring to focus on Lanham Act violations and tortious interference. Purple Innovations, maker of a (purple) bed-in-a-box mattress, is suing the Honest Mattress Reviews website, along with Ryan Monahan, former "Chief Brand Officer" for Purple Innovations competitor, Ghostbed, and creator of the site. Unlike other defamation suits we've covered here -- especially those attempting to dodge anti-SLAPP motions by presenting themselves as trademark suits -- Purple's complaint is long and detailed. Purple feels multiple posts at Honest Mattress Reviews have falsely disparaged the company and its products. All of the posts center on the white "powder" Purple uses to coat its mattresses during packaging to prevent it from sticking to itself. Purple's Lanham Act claims rest on Monahan's alleged conflicted interests, even as it admits in its filing that Monahan is no longer associated with GhostBed. It points to several statements posted at Honest Mattress Reviews which infer the powder used by Purple might be dangerous or unhealthy. HMR offers no proof of these assertions, but very few of them are actual assertions. In most cases, they're merely implications, surrounded by phrasing and pull quotes that help make the patent-pending substance appear more dangerous than Purple claims it is. Purple hasn't offered too many specifics in defense of its white powder, citing its pending patent as the reason it can't be more specific about the powder's composition. At this point, we don't know much about the merits of Purple's arguments, and nothing at all about the merits of Honest Mattress Review's defense. The defendants haven't been allowed to respond yet. The path to Purple's granted restraining order has been completely non-adversarial. Not a single document has been filed or motion entered by the defendants. [click through to enlarge] In less than a week, Purple has: (a) accidentally sued itself (b) had the case transferred from a magistrate to district court judge (c) asked for a restraining order (d) received a restraining order (e) asked for contempt charges to be brought against the defendants Purple has filed a 102-page complaint [PDF] and a 174-page restraining order request [PDF], the latter of which is basically the 102-page complaint with 70 pages of website screenshots. Without seeing anything more than Purple's allegations, Judge Dee Benson has granted the request [PDF]. Not only does it require Honest Mattress Reviews to take down existing posts about Purple Innovations and its packing powder, it forbids the defendants from discussing the lawsuit in any way the court disapproves of. Defendants shall not attempt to circumvent the intent of this Order by make new statements about Purple or its products which are false and misleading and convey the same substantive message as in the statements referenced in preceding sub-paragraphs (a)-(c), including through the “clever use of innuendo, indirect intimations, and ambiguous suggestions.” [...] Defendants are hereby restrained from making false, misleading, or confusing posts or discussions on social media or otherwise about the existence of this lawsuit, the Court’s temporary restraining order or other any other orders that may be issued by the Court, or about Purple’s efforts in this lawsuit to restrain Defendants from continuing to engage in the conduct at issue, in an attempt to circumvent the purpose of the injunctive relief sought by Purple. We'll have to see if Honest Mattress Review's post about the lawsuit adheres to the confines of the restraining order. It doesn't make any false statements but does contain wording the plaintiffs are sure to find objectionable, even if the court doesn't. This temporary order commands that we take down all reviews, and even cease rating this company with a rating of “Poor.” Yes, indeed, we are no longer even permitted to rate this company as Poor. I guess we will change its rating to “💩.” [...] Do you trust a company that, rather than compete in the marketplace, decides that it will just try and sue negative reviews out of existence? The court says the 14-day (minimum) restraining order does not harm the public in any way, while continued publication of HMR's inferences and allegations would continue to do "irreparable harm" to Purple Innovations. It also says HMR is fully aware of the situation, even if it's not being allowed to participate in the process yet. Plaintiff has provided multiple declarations, reflecting notice to the Defendants, through various means. The Court is satisfied that the Defendants have notice of these proceedings. All well and good, but we're not talking an inordinately lengthy delay between the filing of the suit and the defendants' response. We're talking about one week from filing to prior restraint, without a single nod being given to the "adversarial" part of the process. The defendant website is now being represented by Marc Randazza, who's collected several First Amendment-affirming wins for clients over the years. The allegations in this case may not be as baseless as in others he's handled (Tobinick v. Novella, Roca Labs v. Opinion Corp.), but he tends to find prior restraint to be rather triggering. The first move will be to put the Constitution back in play. After that, there are dozens of pages of allegations to address, so this isn't going to be resolved anywhere near as fast as it went from mere allegations to ignoring Walter Sobchak. Permalink | Comments | Email This Story

Read More...
posted 17 days ago on techdirt
There's been something of a trend recently in which the digital realm of video games have begun penetrating reality. This has taken several forms, from many countries attempting to dress up their real world military capabilities using video game footage, to infractions within the gaming realm resulting in real world criminal charges. This has come to be in part because gaming has become a dominant form of entertainment for so much of the population and in part because of how realistic games have become. But neither seems to be much of a factor in what I think is a first: Bolivia has filed a dipolomatic complaint with France in response to the country's fictionalized portrayal in Tom Clancy's Ghost Recon Wildlands. The Bolivian government has filed a formal complaint with the French embassy about a video game produced by a French company that portrays the South American country as an area controlled by drug traffickers, authorities said. Speaking to reporters on Wednesday, Interior Minister Carlos Romero said Bolivia had delivered a letter to the French ambassador and asked that the French government intervene, adding that Bolivia reserved the right to take legal action. "We have the standing to do it (take legal action), but at first we prefer to go the route of diplomatic negotiation," Romero said. Now, the setting for the game is a fictionalized version of Bolivia where, contrary to reality, large swaths of the country are controlled by Mexican drug cartels that are wreaking all manner of havoc over the land. The key part of that would be that it's fictional. As in not mirroring reality. You know, such as pretty much every other work of fictional art that has ever been created. Oh, also, Ubisoft chose Bolivia for the setting specifically because of how much it appreciated the beauty of the country. In a statement to Reuters on Thursday, Ubisoft said the game is "a work of fiction" and that Bolivia was chosen as the background for the game because of its "magnificent landscapes and rich culture." "While the game's premise imagines a different reality than the one that exists in Bolivia today, we do hope that the in-game world comes close to representing the country's beautiful topography," Ubisoft said. I don't know what the workload of the Bolivian diplomatic corps looks like, and I frankly don't care. There simply must be more relevant work to do than shaking a diplomatic fist against the home country of a video game company over an artistic work of fiction. I have no idea what Bolivia's end-game was in trying to get France to intervene in Ubisoft's work, but I'm sure it wasn't the actual outcome, which is to have Bolivia look both petty and silly, as well as hostile to art and free speech. I'm not sure what standing Bolivia thinks it actually has to do anything about this, but I'm fairly certain that such standing is every bit as fictional as the Bolivia from the game. Permalink | Comments | Email This Story

Read More...
posted 17 days ago on techdirt
For years we've pointed out the sheer insanity of the TSA's security theater, which is intrusive, insulting and does little to actually make us any safer. One aspect (of many) that has been particularly troubling is the way that the TSA has basically enabled sexual assault of travelers. If you felt that wasn't too bad, have no fear, the TSA is apparently increasing the sexual assaulty nature of these searches: The new physical touching—for those selected to have a pat-down—will be be what the federal agency officially describes as a more “comprehensive” physical screening, according to a Transportation Security Administration spokesman. Denver International Airport, for example, notified employees and flight crews on Thursday that the “more rigorous” searches “will be more thorough and may involve an officer making more intimate contact than before.” Got that? I love the way they dance around the fact that this is randomly allowed sexual assault on people who just want to travel somewhere. But it's described as "physical touching" that is more "comprehensive" and "may involve an officer making more intimate contact." So why are TSA agents allowed to get more gropey, just a year or so after it was discovered that some TSA agents were scheming specifically to be able to sexually assault travelers they found attractive? Well, it's because it's been revealed how useless TSA security theater is. Really. After yet another set of reports pointed out that all this security theater is useless, the TSA said "welp, the answer to that must be moar sexual assault!: The change is partly a result of the agency’s study of a 2015 report that criticized aspects of TSA screening procedures. That audit, by the Department of Homeland Security’s Inspector General, drew headlines because airport officers had failed to detect handguns and other weapons. This is madness. The answer to the TSA's awful and useless security theater should never be to give TSA agents more power to sexually assault travelers with "more intimate contact." This is not about security. This is about the TSA wanting to make it look like they're doing something, and apparently that includes groping strangers who are just trying to get somewhere. How the hell does sexually assaulting travelers make anyone any safer? Permalink | Comments | Email This Story

Read More...
posted 17 days ago on techdirt
The $39.95 Nomad Ultra Rugged Battery Lightning Cable is a rugged charging cable that has its own battery. This smart battery cable includes a 2,350mAh portable battery that, when hooked up, will charge your phone first before then charging its own internal battery. We're also offering deals on the lightning cable without a battery and a universal cable as well. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

Read More...
posted 17 days ago on techdirt
You'd think city lawyers would talk to other lawyers before sending cease-and-desist letters to citizens. Or, at the very least, page through a few pamphlets on intellectual property law before threatening people with legal actions completely unmoored from statutory authority. But if they all did this, what would we write about? The city of Taramac, Florida is the latest participant in the long-running MMO we call "The Streisand Effect." Apparently, the city doesn't like its logo being used by someone who has little respect for the city's governance. It would presumably approve of its logo being adjacent to more respectful writing, but the lack of legal threats directed at home-teamers makes it difficult to gather test cases. As the Miami New Times reports, the city of Taramac is unamused by a blogger's disrespectful parodying of its logo/leader. Last month, independent blogger (and human limerick) Sharon Aron Baron, who runs the blog Tamarac Talk, wrote a short post encouraging Tamarac residents to run for mayor in 2018. The post, titled "It's Good to Be the King When You're the Mayor of Tamarac," detailed various ways in which Baron thought Mayor Harry Dressler may or may not have been doing a poor job as the city's leader. The post included a photo of the city's unremarkable logo with Burger King's King mascot superimposed. That image apparently enraged someone at the city so deeply that the city's attorney, Julie F. Klahr, got involved, sending Baron a cease-and-desist letter demanding that she stop making fun of the city's precious logo. Here's the image that so bothered the city's legal department that it issued bogus legal threats. (Burger King apparently remains unperturbed by this use of its intellectual property.) The city calls it "unauthorized use" but the city isn't allowed to control every use of its logo. No one needs to ask permission before engaging in parody. (What a sad, sad world it would be if that were true...) The deputy city attorney, Julie F. Klahr, should know better. Perhaps she should have asked the partners at Goren Cherof Doody & Ezrol for some legal guidance before issuing this bogus C&D with their letterhead. Or maybe the law firm doesn't care what sort of stupid letters assholes send with its name all over it. Whatever the case, the letter makes sure the recipient knows the city's engaged in IP thuggery with its sign-off sentence (in all caps): GOVERN YOURSELF ACCORDINGLY. Sharon Aron Baron, the author of the offending posts at Taramac Talk, has responded to the legal threats by posting the letter and reminding the city that pursuing bogus legal claims isn't the best use of taxpayers' money. We contend the use of the city logo with the Burger King mascot photoshopped in front of it is clearly a parody which is protected free speech and that using taxpayers dollars to have the city’s attorney’s fight sophomoric cases like this is an insult to to all of our residents. What’s so frightening, is that it seems that the city and the law firm of Goren Cherof Doody & Ezrol P.A. were unaware of the right of free speech enshrined in both United States and Florida Constitutions and the doctrine of fair use.   The fair use doctrine allows the use of copyrighted materials for purposes such as criticism or comment, which is not a copyright infringement. See 17 U.S.C. § 107(1982).   As 17 USC § 107 makes patently obvious, the purpose of this section is to prevent a copyright from being used as a device of censorship, which is exactly what the City of Tamarac is trying to do. Baron says "copyright," but the letter (correctly) says "trademark." It doesn't really matter which form of IP is being abused to stifle free speech. It's the stifling. (Although it does help to know the IP specifics when fighting bogus demands...) The city should know better. Either it doesn't know or it doesn't care. Neither of these is a good look for public servants. [Side note: I find it somewhat ironic that Baron's blog makes points about fair use while simultaneously deploying Javascript to prevent copying of text or downloading of images. It kind of hypocritical to toot your fair use horn while throwing roadblocks up in front of people looking to do the same thing.] Permalink | Comments | Email This Story

Read More...
posted 17 days ago on techdirt
Uber, but for private jets. That's JetSmarter's pitch. But just as Uber has engaged in some questionable behavior in its quest for marketshare, so has JetSmarter. You won't be able to find many negative reviews of the service because any journalist taking a test flight without delivering a puff piece is going to see their bank account take a hit. The Verge received this highly-questionable offer to "review" JetSmarter. Upon the execution of this Agreement, Journalist shall provide Company with a credit card and a copy of an ID of the credit card holder (“Credit Card”) and shall authorize Company to charge the Credit Card in the amount of $2,000 should (i) Journalist cancel the trip on the date of departure of the outbound flight or in the event that Journalist fails to arrive at the departure location at the scheduled departure time or other unforeseen delays or (ii) in the event Journalist fails to post the article described above on the first page of this agreement. That's the terms of the review flight. All this has done is ensure JetSmarter receives negative press that has nothing to do with the service it offers. This self-inflicted damage follows on the heels of the arrest of JetSmarter's former president for embezzlement. If it's looking to dig itself out of a PR hole, JetSmarter's "play nice or else" terms are nothing more than a $2,000 shovel. Forcing journalists into an agreement like this only makes potential customers question the veracity of positive reviews. Add to this the fact that JetSmarter has buried a non-disparagement clause in its Membership Agreement and any positive statements about the company become inherently untrustworthy. Here's the clause from the agreement [archived here in case it falls into a memory hole]: Each Member agrees to refrain from making any negative or disparaging comments to anyone (either orally or in writing) about JetSmarter or any of its affiliates or their business or operations or any of their respective officers, directors or employees; provided, however, that this provision shall not be interpreted to prevent Member from making any truthful statement to his, her or its attorneys or other advisors, or to any court or arbitrator of competent jurisdiction in the context enforcing his, her or its rights under or defending any action with respect to this Agreement. This sort of clause is now against the law, thanks to recent legislation. It actively discourages members from complaining about anything, even though it seems to have done little to prevent its Yelp page from hosting mostly negative reviews. There are others who seem happy with the service, but the looming threat of losing thousands of dollars through contract cancellation isn't exactly promoting the free exchange of opinions. Simply put, the company is in the business of buying positive press with free flights carrying a $2,000 asterisk. For unhappy customers, the potential financial loss can run above $10,000. Whoever instituted these policies clearly has no idea how to handle their PR duties. JetSmarter has pinned a "KICK ME" sign to its own back and is now wandering the internet gathering boot prints -- an outcome anyone with a handful of functioning brain cells should have seen coming. Permalink | Comments | Email This Story

Read More...
posted 17 days ago on techdirt
Considering the new administration has stepped up its ousting of immigrants, expressed its disinterest in pursuing civil rights investigations of the nation's law enforcement agencies, applauded asset forfeiture, and declared war on leakers, it comes as no surprise the White House supports a clean reauthorization of Section 702 surveillance. The Trump administration does not want to reform an internet surveillance law to address privacy concerns, a White House official told Reuters on Wednesday, saying it is needed to protect national security. The announcement could put President Donald Trump on a collision course with Congress, where some Republicans and Democrats have advocated curtailing the Foreign Intelligence Surveillance Act, or FISA, parts of which are due to expire at the end of the year. Section 702 has dodged reform efforts, thanks in part to the intelligence community's unwillingness to discuss anything about it. Repeated requests by representatives for the NSA to come up with an estimate of how many US persons' communications are swept up "inadvertently" have been met with shrugs and stalling. Five years after he was first asked, James Clapper promised to have something put together "soon." We're still waiting. Not helping the matter is the Privacy and Civil Liberties Oversight Board's evaluation of the program. After finding the Section 215 phone metadata program both useless and illegal, it had very little to say about the NSA's internet backbone dragnet. The best it could offer was that it was likely legal and any collection of US persons' communications was probably "inadvertent." It agreed the massive collection program ran right up against the edges of the Fourth Amendment, but didn't cross it -- at least as far as it was willing to examine. Unfortunately, there will be no follow-up arriving before the reauthorization period closes. The PCLOB is mostly dead and unlikely to be revived by an administration looking for a no-questions-asked rubber stamping of Section 702's five-year renewal. Given that the unanswered questions about domestic surveillance weren't answered in time for the 2012 renewal debate, it's highly probable the Director of National Intelligence's office won't be providing these numbers to Congressional representatives ahead of the December deadline. Hopefully, there will be a more organized push back against a clean reauthorization. Thanks to multiple leaks, Congressional representatives should actually have some idea how much domestic surveillance occurs under this statute. It's more critical than ever that the program receive a detailed examination before the vote, considering the outgoing president gave more than a dozen federal agencies access to unminimized data/communications collected by the NSA. And Trump himself has seen no reason to roll that sharing back, despite his antipathy towards much of Obama's orders and legislation. Ironically, his Saturday morning tweetstorm griping about the Trump Tower being "wire tapped" by Obama ahead of the November election. Once again, Trump has offered no proof of this claim, but even if taken at face value, it would be the byproduct of the Section 702 program he has stated he wants renewed with no changes. Communications with foreign persons is fair game under Section 702, even if the communications originate in the US. The FBI's acquisition of these communications (if that's what has happened) is specifically approved by the recent data-sharing program. Perhaps Trump might want to take a closer look at the program before attempting to shove it past inquistive legislators. Permalink | Comments | Email This Story

Read More...
posted 18 days ago on techdirt
This week, our first place winner on the insightful side comes in response to Sean Spencer's about face on the Confide app, which prompted one anonymous commenter to point out a second layer of hypocrisy: Oh the irony and hypocrisy when the team that screamed "her emails!" so much didn't learn to use official channels from the Clinton issue, but just learned to work harder at hiding their electronic use policy violations. For second place, we head to our response to T Bone Burnett's video submission to the Copyright Office, were That One Guy had some additional thoughts: Ignoring for a moment the fact that more is being created than ever before, including music, which rather nicely undercuts the whole 'scorched earth of creativity' thing he seems to have going, reading this I can't help but wonder about his stance towards the 'creative wonderland' that was the major labels before the internet came along and yanked the rug out from under them by offering creators a way to have their music heard and purchased without going through them. Because I don't know about anyone else, but 'handful of mega corporations ... living fat off the artistic, cultural, and economic value everyone else creates online' sounds like a dead ringer for the labels who demanded that if anyone wanted to be heard they went through them, paying and paying dearly for the privilege and leaving anyone they didn't grace with their benevolence in the dust. For editor's choice on the insightful side, we'll start out with one more response to that video, this time from hij: This guy cut his teeth in a traveling revue playing on the road. He moved from playing small events to big time concerts. All of the issues he brought up have nothing to do with the internet. You can replace "internet" with any other venue. The problems he brings up are exactly the same whether or not it is a bunch of local bands playing down on the corner bar, big name productions at a nearby city's stadium, or some nebulous internet people. Then he explicitly says the problem is not technology it is the business models. If that is the case change the business model. The world does not owe him a chance to play in his studio. The world wants to see him on stage playing. It is not up to the government to provide a way for him to create a monopoly and force people to listen and pay for his music the way he wants it. It is a two way street, and he needs to listen to his fans. Both the fans and the artists need to adapt. Rigidly clinging to a way for him to control his fans will only result in him watching them walk away regardless of the technology. As for his disdain for the mega corporations getting fat off the backs of the poor artists, he is right that it is a problem. Trying to go back to a time where it was his buddies in the recording industry who were taking advantage of the artists is just a quest to go backwards to a time that is not so different than the present dystopia he insists we are living in. (We are not.) As for bemoaning the idea that the internet is turning into a corporate playground designed to take people's money away.... Sorry, but that happened 20 years ago. That train left the station a long long time ago. When T-bone Rip Van Winkle wakes up and realizes that it is 2017 he is going to be surprised. Next, we've got some thoughts from Roger Strong on the idea that Trump's behavior is no different from previous presidents: This is how you normalize corruption and incompetence. Declare that "everyone else does it." Sure, you could declare Obama to be the same as the previous administration. There'd be some truth there, as he kept most of the same policies and didn't prosecute those who turned the country into a torture state. On the other hand he do anything on the scale of the lies and deception used to drag the country into a decade+ long war. But declaring Trump to be in the same league? Take Obama's worst lie and put it into a Trump speech. It would go entirely unnoticed, overshadowed by far worse Trump claims. Over on the funny side, first place goes to an anonymous commenter who made the most obvious and appropriate joke when we had some HTML issues in a post about "fake news": fake formatting. For second place, we head to our post about the leak of a State Dept. memo on the subject of stopping leaks, where one commenter objected by pitching a bunch of strange hypothetical alternative scenarios. Thad offered a delightfully deconstructivist response: You make a good point. If this thing was a different thing, would it be the same thing? For editor's choice on the funny side, we've got one more nod to Thad since he was on a roll shutting down silly criticisms this week and because it gives me a chance to shamelessly remind you about the Techdirt Gear store on Teespring. After one commenter objected that our Takedown tee doesn't include explicit recognition that some takedowns are valid, he hit back: Other facts which are omitted from the T-shirts: Murder is illegal. Puppies are adorable. Water is composed of two parts hydrogen to one part oxygen. Neo Nadi won five gold medals for fencing in the 1920 Olympics. Batman was created by Bob Kane and Bill Finger. Val Kilmer's first film credit is the 1984 film Top Secret! You're an idiot. This is an exhaustive list. There are no other facts besides the ones I have just listed. Finally, we head to our post about IBM's terrible patent on out-of-office email responders, where TechDescartes neatly wrapped everything up in a bow: Is it just me? Or does it seem like Patent Examiners have set their out-of-office replies to "Patent Granted"? That's all for this week, folks! Permalink | Comments | Email This Story

Read More...
posted 19 days ago on techdirt
Five Years Ago This week in 2012, we saw a somewhat parallel pair of bogus takedowns followed by apologies. First, there was the infamous Rumblefish incident in which a YouTube copyright claim was issued over birds singing in the background of a video, leading the CEO to explain the series of errors that lead to the mistake while missing most of the core point. The other incident targeted us here at Techdirt: one of our key posts about SOPA/PIPA was stripped from Google after a bogus DMCA takedown notice, garnering multiple apologies. Also this week in 2012, the Aereo lawsuit finally began, and two pieces of memorable viral content were introduced: The Oatmeal's comic about the difficulty of legally obtaining Game Of Thrones and the fantastic Polish essay We, The Web Kids about the anti-ACTA generation (if you haven't read it in a while, read it again). Ten Years Ago This week in 2007, Mike was at the Tech Policy Summit, where Howard Berman was blaming the pharmaceutical industry for holding back patent reform and the patent panel couldn't come up with any real solutions for the system. Overall, the event seemed to suffer from a lack of tech in the tech/policy balance. Meanwhile, following the Oscars, the Motion Picture Academy made the inexplicable decision to pull all videos of the ceremony off the web with the bizarre reasoning of wanting to whet the appetite for the next year's awards. Fifteen Years Ago This week in 2002, the W3C was engaged in a critical fight over how to handle patented technologies in web standards, mirroring today's fight over EME in the nature of the problem (but not, so far, in the nature of the solution). CNN was musing about the future of charging for news online while the New York Times was deeming blogs a fad. Jack Valenti was arguing with Lawrence Lessig over copy protection schemes, a Senator was bashing Intel over the same thing, and the music industry was predictably blaming its problems on downloaders. Perhaps most notably, it was this week in 2002 that the EFF and various law schools launched ChillingEffects, the irreplaceable resource now known as Lumen. Two-Hundred And Twenty-Six Years Ago Long ago in the history of communication technology, there was a revolution that often goes under-discussed: the semaphore line. Though some designs exist from as early as the 17th century, it was on March 2nd, 1791 that one of the first practical experiments happened: at the height of the French Revolution, the Chappe brothers used a system based on colored panels, clocks and telescopes to transmit a message nearly 10 miles from Brulon to Parce. Permalink | Comments | Email This Story

Read More...
posted 20 days ago on techdirt
Crisis management must be a full-time job at Uber. I've argued in the past that some of the attacks on the company are greatly exaggerated, but it keeps running into crisis after crisis -- many of them avoidable. The latest is a big scoop in the NY Times about how Uber has a special program called Greyball (a play on "blackball," get it?) that helped it determine if regulators were trying to get rides and then avoid sending a car. Here are the basics from the article by Mike Isaac: One technique involved drawing a digital perimeter, or “geofence,” around the government offices on a digital map of a city that Uber was monitoring. The company watched which people were frequently opening and closing the app — a process known internally as eyeballing — near such locations as evidence that the users might be associated with city agencies. Other techniques included looking at a user’s credit card information and determining whether the card was tied directly to an institution like a police credit union. Enforcement officials involved in large-scale sting operations meant to catch Uber drivers would sometimes buy dozens of cellphones to create different accounts. To circumvent that tactic, Uber employees would go local electronics stores to look up device numbers of the cheapest mobile phones for sale, which were often the ones bought by city officials working with budgets that were not sizable. In response, Uber has claimed that the program was designed to greylist "terms of service violators", but if that's the case it can just kick them off the service and tell them they violated the ToS. From the report, it seems clear that even if the program was used for ToS violators, it was also used against regulators. I've certainly been vocal about the fact that I think city and state regulations limiting Uber/Lyft and the like are generally bad ideas. What may have started out as a good idea to prevent cabbies taking advantage of riders has turned into quite a corrupt system used to limit competition and artificially inflate prices. I think that the idea behind Uber and Lyft and similar services is super powerful. But, that doesn't mean the company should get a pass for this kind of stuff. Directly building an app to avoid regulators just looks really, really shady, and it's going to come back to haunt you (just ask Zenefits or Volkswagen). And while the article claims that the tool might be a CFAA violation, I don't see how that's possible, unless it involved even more nefarious activities under the hood (none of what's revealed in the article would seem to qualify as a CFAA violation, even under the really stretched interpretations of the CFAA that we've seen). But there still are some other questions. At least in the EU, some are already asking if the use of the tool violates the E-Commerce Directive or Data Protection rules. The bigger question, honestly, is why do this kind of stuff? I'll never understand why companies feel the need to take the shadiest route possible, when they could have just gone with the upfront path of explaining why what they're doing is so useful and powerful, and fighting for it, rather than trying to play silly games. Yes, you can make arguments about how they're trying to grow rapidly, and yes, (as we've discussed) these local regulators are often a nuisance for bad reasons. But this kind of stuff is clearly going to bounce back and create problems later on. Just fight these fights head on, without playing shady games that undermine basically everything else about your business. Permalink | Comments | Email This Story

Read More...
posted 20 days ago on techdirt
The latest arena for deployment of cell tower spoofers is prisons. Along with the diminished rights and lowered expectation of privacy afforded to prisoners, those incarcerated can now expect their cell phone calls to be blocked or intercepted. The Register reports a new bill being introduced in the UK would give prisons legal authority to install IMSI catchers to monitor prisoners' communications and track/locate contraband devices. The use of Stingray devices in prisons isn't exactly new, although it hasn't really received much attention. Last year, Motherboard reported the Scottish prison system had been deploying cell tower spoofers for one specific reasons: to make prisoners' cell phone communications impossible. The devices blocked 2G and 3G signals, according to FOI'ed documents. (The documents also noted prisoners had already defeated the repurposed cell tower spoofers, so whatever was included in those documents is already outdated.) In the US, prisons are using similar devices, although no one has copped to deploying a name-brand Stingray within the walls of a prison. ACLU tech head Chris Soghoian's 2014 report on Stingray devices cites a Commerce Department paper on the use of cell tower spoofers to thwart communications and locate contraband devices. There's a twist in the UK legislation, though, that takes it past previous prison surveillance efforts. This bill would compel the cooperation of telcos, rather than make use of existing cell tower spoofer technology. Provisions in the new bill will allow the Justice Secretary to order networks to deploy so-called “IMSI catchers” to prevent, detect or investigate the use of mobile phones in prisons. Currently fake base stations can only be deployed under the legal provisions in the Prisons (Interference with Wireless Telegraphy) Act 2012, which restrict their deployment to within prison walls – and further, only allows prison governors to deploy them. The new proposals therefore expand the ability of the state to spy on innocent citizens by further co-opting mobile phone companies’ technical abilities. Rather than leave this to state entities possessing state-owned devices, the bill recruits cell service providers to perform the technical heavy lifting. While prison officials would be able to deploy a device inside a prison's walls to minimize interference with outside cell phone traffic, this bill appears to encourage the deployment of fake cell towers (or the repurposing of existing cell towers) outside prison walls, which would greatly increase the possibility of disrupting legitimate cell phone use and subject a number of non-prisoners to data/communications collections by the prison. The bill contains no wording pertaining to these two issues. There's no requirement to minimize interference or discard irrelevant data/communications. All it does is expand the UK government's power to compel participation in its prison surveillance efforts. This lack of regulatory specificity is par for the course, as the Register points out. In effect, use of IMSI catchers is effectively unregulated, albeit legal for the state and bodies authorised by the state under the Data Retention and Investigatory Powers Act 2014. It remains illegal for ordinary citizens to use them. UK law enforcement are also using IMSI catchers, but have yet to be subjected to the (belated) judicial and legislative scrutiny we see happening here in the US. Stingray use in the UK falls under legal authorities for the interception of communications, all of which were written long before police had the (portable) power to disrupt communications and harvest communications and data. The debate over this legislation may change that. While law enforcement agencies are generally receptive to new laws that expand their power and reach, there's always the danger legislative discussions may lead to more direct oversight and/or the removal of a few layers of opacity. Permalink | Comments | Email This Story

Read More...
posted 20 days ago on techdirt
Public servants discussing public business. Should be public records, right? California politicians don't think so. The city of San Jose has spent eight years litigating the issue, hoping for the state's courts to find it permissible for public officials to hide official communications in personal email accounts and personal devices. In 2009, activist Ted Smith requested records from the city of San Jose, triggering a long-running lawsuit which has only now reached its conclusion. A state appeals court previously ruled for the city, finding records stored in personal accounts/devices to be beyond the reach of the state's public records laws. Fortunately, as the EFF reports, the state's supreme court has overturned that decision, making it much more difficult for public officials to stay out of the public eye. The decision [PDF] deals with the many arguments the city made -- several of which attempted to rewrite public records laws on the fly by taking certain phrases out of their context -- but the bottom line is this: public records still belong to the public, no matter where they're stored. CPRA and the Constitution strike a careful balance between public access and personal privacy. This case concerns how that balance is served when documents concerning official business are created or stored outside the workplace. The issue is a narrow one: Are writings concerning the conduct of public business beyond CPRA‟s reach merely because they were sent or received using a nongovernmental account? Considering the statute's language and the important policy interests it serves, the answer is no. Employees' communications about official agency business may be subject to CPRA regardless of the type of account used in their preparation or transmission. The city tried to argue its agencies didn't need to comply with the state's public record law because the statutory language didn't specify records created by employees at local agencies. The court points out this limited interpretation is, at best, deliberately obtuse. The City draws its conclusion by comparing the Act‟s definitions of “local” and “state” agency. Under CPRA, “ „Local agency‟ includes a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952.” (§ 6252, subd. (a), italics added.) The City points out that this definition does not specifically include individual government officials or staff members, whereas individuals are specifically mentioned in CPRA‟s definition of “state agency.” [...] The City contends this difference shows the Legislature intended to exclude individuals from the local agency definition. If a local agency does not encompass individual officers and employees, it argues, only writings accessible to the agency as a whole are public records. This interpretation is flawed for a number of reasons. A disembodied governmental agency cannot prepare, own, use, or retain any record. Only the human beings who serve in agencies can do these things. When employees are conducting agency business, they are working for the agency and on its behalf… A writing prepared by a public employee conducting agency business has been “prepared by” the agency within the meaning of section 6252, subdivision (e), even if the writing is prepared using the employee's personal account. The city also tried to claim documents stored in personal email accounts/devices were "inaccessible" to the responding agency -- and therefore inaccessible to public records requesters. Again, the court points out the obvious: As to retention, the City argues "public records" include only materials in an agency's possession or directly accessible to the agency. Citing statutory arguments and cases limiting the duty to obtain and disclose documents possessed by others, the City contends writings held in an employee's personal account are beyond an agency's reach and fall outside CPRA. The argument fails. [...] An agency's actual or constructive possession of records is relevant in determining whether it has an obligation to search for, collect, and disclose the material requested. It is a separate and more fundamental question whether a document located outside an agency's walls, or servers, is sufficiently "owned, used, or retained" by the agency so as to constitute a public record. In construing FOIA, federal courts have remarked that an agency's public records "do not lose their agency character just because the official who possesses them takes them out the door." (Competitive Enterprise Institute v. Office of Science and Technology Policy, supra, 827 F.3d at p. 149.) We likewise hold that documents otherwise meeting CPRA's definition of "public records" do not lose this status because they are located in an employee's personal account. A writing retained by a public employee conducting agency business has been “retained by” the agency within the meaning of section 6252, subdivision (e), even if the writing is retained in the employee's personal account. This ruling affects the entire state. It isn't just San Jose being made to comply with the spirit of the state's public records law by having the letter of the law explained to it by the state's highest court. It never was acceptable for public officials to hide public records in private accounts, but this ruling makes it officially wrong. Those looking to keep public discussions away from the public will have to be a bit more creative from now on, like the Sacramento legislators who have turned to self-destructing instant messages to play public records keepaway with their constituents. Unfortunately, using personal accounts/devices is still widespread at all levels of government. This means there's no quick fix. It will take a steady stream of court rulings to make this official everywhere. And that makes it the public's problem, as it takes constituents with the will and the funding to spend years in court forcing government agencies to do what they always should have been doing. Permalink | Comments | Email This Story

Read More...
posted 20 days ago on techdirt
Techdirt has always been a place where we have discussed new emerging business models for the entertainment industry, including the music business. For far too long, there has been a battle about how musicians should monetize their art, with one side claiming that infinitely reproducable music files should be costly out of respect for the musicians and the labels that produce them, and the other side pointing out that this doesn't make any economic sense and that there are plenty of ways for artists to monetize their work without pretending the internet doesn't exist. Free music has always been at the forefront of this discussion, as some artists have given away music files as a way to make money elsewhere: live concerts, merchandise, etc. Yet, no matter how much money the new models can and do make for those musicians that embrace them, there is a stigma about what is essentially art enjoyed for free. And that stigma is often dressed up as a concern for artists. Yet that concern must wane as examples of artists making the internet work for them have proliferated. And those examples are no longer relegated to smaller artists with short music lifespans. Recently, Killer Mike and El-P from the exploding hiphop group Run The Jewels were guests on The Daily Show (we can't embed the video because Comedy Central, stupidly and inexplicably, doesn't use HTTPS — but you can view it at that link, or this one for our Canadian readers). While most of that conversation didn't revolve around the music industry, the first few minutes of the interview certainly did and both artists' explanation for why they chose to give away their music should sound quite familiar to Techdirt readers. Here's El-P: I ran a record label for 10 years back in the day, I ran a record label called Def Jux, and it completely collapsed under the weight of the whole music industry, essentially. People stopped buying and we were based on an old model. We kind of did the first record just as a thank you to our fans. We were really thankful that we had our solo careers, we had been working together, and we didn't want to go through everything. We didn't want to look at the first week sales, we didn't want to compete, we just wanted to give something away. It just occurred to us, it just felt right. We wanted to get the hearts and minds of people, we didn't want to trick them into buying a record with one single and, you know, we just didn't want to play the game. We released it and we just gave it to everybody and said "if you like it, support us, and if you don't? That's fair." What is clearly on display are two artists, one of whom had previously run a record label, that are far more interested in their art and their fans than they are playing the record label business game. Instead, Run The Jewels decided to give their music away for free, while also setting up a way for their fans to support them by buying the music as well, and it is working. Why? Why would young hip hop fans with internet connections choose to pay for music that was otherwise available for free? Because Killer Mike and El-P connect with their fans on so many levels -- they treat their fans well, don't take themselves too seriously, and have built up a following that enjoys their work. For example, the whole Meow the Jewels effort from a couple years ago fits right in with our increasingly long list of examples artists connecting with fans and giving them a reason to buy. It started with (of course), offering the music for free, combined with a variety of premium packages -- including the "I'm on the List, Asshole" package, in which you get backstage passes to a bunch of shows, and a promise that El-P and Killer Mike will pretend to be friends with you. But El-P also joked about remixing the album with just cat sounds, called "Meow the Jewels." And their fans took them seriously and put together a Kickstarter campaign. The guys originally felt uncomfortable about this, but eventually embraced it with a plan to donate all the music to charity. And, of course, they did, in fact, make the remix, and it's... actually pretty cool. But it's not all jokes. Both guys are politically active and outspoken, which has helped build an even stronger connection with those who agree with their political leanings. In addition, the group also still makes all kinds of money off of merchandise and concerts, which has always been a key source for musician income. What's missing is a traditional record label siphoning away money for the kind of marketing efforts the band can now do themselves because of the internet and free music -- which enables a two-way path with the fans. It helps the group connect with the fans and deliver them awesome music, while also allowing the fans to support the artists back. No label needed. Were the stories told by the labels accurate, we shouldn't even know who Run The Jewels and these two artists are, never mind being able to watch them explode onto the scene in the way they have. This is a success story that needs to be bookmarked and used as a rebuttal against those that say music must not be given away for fear of artists failing to make it. Permalink | Comments | Email This Story

Read More...
posted 20 days ago on techdirt
Takedown and Math Is Not A Crime are back in the Techdirt Gear store » As promised, over the next few weeks we're going to be bringing back most of last year's designs in the Techdirt Gear store on Teespring, and today we've got our first returning champions: the long-time favorite Takedown tee and the surprisingly controversial Math Is Not A Crime gear. We've also got some brand new designs coming soon, but for now this is your chance to get one of these designs if you missed them last year! You can also help us out by sharing the store with friends — and we love seeing photos of Techdirt gear in the wild when you tag us in them on Twitter. Check out the Techdirt Gear store for these returning designs, and more » Permalink | Comments | Email This Story

Read More...
posted 20 days ago on techdirt
I can only assume Mike Pence is so self-absorbed he's literally incapable of recognizing his own hypocrisy. Either that or he's completely shameless. After engaging in a presidential campaign where much was made of Hillary Clinton's private email address/server, Pence went to court to prevent his AOL emails from being released to public records requesters. I can only assume Pence is now welcoming an FBI investigation into his use of an AOL account. Clinton routed sensitive documents through an insecure personal server. Pence is doing the same. While Clinton was advised against setting up her own personal email server, it's likely Pence has had an AOL account for a long, long, long time. Sure, there's a difference between taking matters into your own hands and leaving your email security up to a third party, but the end result is no different: both were using private accounts to handle government business -- business that included the classified and sensitive information. The main difference here is we know Pence's email account has been hacked. There were attempts made on Clinton's email server, but nothing out there suggests any of those attacks were successful. Considering Pence's earlier adamance about Clinton's careless email habits, it's probably time to invite the FBI to take a look at his careless handling of sensitive documents. Emails released to IndyStar in response to a public records request show Pence communicated via his personal AOL account with top advisers on topics ranging from security gates at the governor’s residence to the state’s response to terror attacks across the globe. In one email, Pence’s top state homeland security adviser relayed an update from the FBI regarding the arrests of several men on federal terror-related charges. Cyber-security experts say the emails raise concerns about whether such sensitive information was adequately protected from hackers, given that personal accounts like Pence's are typically less secure than government email accounts. In fact, Pence's personal account was hacked last summer. Politicians routinely have to eat their words. They're rarely shy about casting the first (and several follow-up) stones, even while their own sins run dark and deep. But a guy who has an email investigation to at least partially thank for his new position should be following an own-words-based diet for the next several months. If nothing else, it might (MIGHT!) push him towards the occasional second thought before hitting "tweet." If Pence were intellectually honest, he'd replace Clinton's name with his own in the statement he made to "Meet the Press" last year. “What’s evident from all of the revelations over the last several weeks is that Hillary Clinton I operated in such a way to keep her my emails, and particularly her my interactions while Secretary of State with the Clinton Foundation governor of Indiana, out of the public reach, out of public accountability,” Pence said. “And with regard to classified information she I either knew or should have known that she I was placing classified information in a way that exposed it to being hacked and being made available in the public domain even to enemies of this country.” Pence's former office is releasing a small subset of his AOL emails. The Indy Star has obtained around 30 of them, but the governor's office says it's withholding a majority of them because they're either (a) deliberative documents or (b) too damn sensitive to be released publicly. If the governor's office won't release them, perhaps the hackers will. Sunlight is the best disinfectant, but sometimes an outsider kicking in the door and throwing open the blinds is the only way to achieve the transparency the public deserves. Permalink | Comments | Email This Story

Read More...
posted 20 days ago on techdirt
You may have heard, recently, about a series of reports about sexual harassment (and general sexism and other similarly awful behavior) in Silicon Valley. It's not a new thing, but it's getting a lot of necessary attention right now and it's seriously messed up. It's unacceptable. It needs to stop -- and people need to speak up about it, and to come down hard on anyone who's engaging in it or letting it slide. If you're doing the kind of crap being discussed, stop it now (and go apologize). If someone tells you you're acting inappropriately, listen to them. And if you see someone else doing something awful, tell them to knock it off and then follow through. It's no secret that, in general, I'm a fan of Silicon Valley and the innovations that are created here. Indeed, it's been argued by some that I'm too supportive of Silicon Valley at times. But, to me, it's the innovation that's important, and the way that it can make our lives better. When companies are doing bad things that can negatively impact that innovation, they should be called out on it. For example, a few years ago, we thought it was a good thing that many companies in Silicon Valley got into serious trouble for colluding to prevent poaching of workers from one another. That was bad news, anti-competitive and anti-innovation. As we've discussed for years, widespread job mobility is a key component to innovation in the tech sector. Another thing that's a key component to innovation? Diversity and a range of perspectives and ideas. That's one of the (many) reasons we've advocated for more immigration for high tech workers and also against this administration's effort to restrict immigration of all kinds. The basic human issues behind it are most important, but the diversity of viewpoints and perspectives is in there as well. To create better innovations that help the world, we need it to be driven by more than just a subset of the population who come from similar backgrounds. That's another reason why it sucks to see more and more evidence of massive, and widespread, sexism and sexual harassment in Silicon Valley. Again, this isn't something new. It's been going on for a while. But it's finally getting some necessary sunlight. It kicked off with a somewhat horrifying post by Susan Fowler about her experiences at Uber, in which the HR department appeared to bend over backwards to not do anything in response to repeated reports of seriously inappropriate behavior at the company. The Guardian has now published a similar account from an engineer at Tesla. The Guardian also has another article detailing even more horrific stories of totally inappropriate behavior towards women. I've seen some arguing that at least some of these claims are exaggerated, but that doesn't matter and it's a bullshit excuse. Just the fact that anything even remotely like this happened is disgusting and unacceptable. Haana was so repulsed by what happened to her, she covered up her mirror so she wouldn’t have to look at herself. The Silicon Valley tech worker said that after drinks with startup colleagues last year, a male executive at her company put his hand up her shirt and groped her while they walked down the street. “I felt disgusted for months after that,” said Haana, who requested that the Guardian not include her full name or identify the small tech startup where she used to do marketing. “It affects me on a level that I wish it didn’t.” I know that this doesn't happen everywhere and it doesn't happen to everyone, but it appears to be happening. And if it's happening anywhere it's happening too much. The NY Times has a story mostly about the situation at Uber, but it also includes the following anecdote: “This stuff is deeply entrenched,” Ms. Kapor Klein said, relaying a story she had recently heard about a group of programmers at a different tech company. “I heard about this engineer who said that what he and his friends do at work for fun is rate women job applicants according to who they wanted to marry, or who they wanted to kill, and there was a third thing.” Suffice it to say the third thing was not the women’s qualifications for the job in question. You know what the third thing is. It's a dumb party joke game that has always been stupid in that kind of setting. Bringing it into the office is horrifying. I'll admit that I don't get to experience this. I'm a white guy in Silicon Valley. But the more you talk to people, the more you find out how frequently this happens. I've wanted to believe that it's not widespread around here -- but that doesn't appear to be the case at all. It is widespread, and it's happening all the time. There are just too many stories -- and each time it's allowed, it just enables more to happen. That has to stop. Part of the lore of Silicon Valley is that so-called "disruptive innovation" sometimes involves breaking some rules, or at least pushing the boundaries of norms. And, for the sake of innovation, that's often worthwhile. But it needs to be done for the sake of innovation, and it shouldn't mean that all other basic human decency goes out the window at the same time. Silicon Valley has faced a lot of criticism over the last couple of years -- much of it unjustified in my opinion. But shit like this undermines all of that on so many levels. It's disgusting and inhumane. It's stupid and self-defeating. For a long time, I've resisted the description many (frequently outsiders) have given to the culture at many Silicon Valley startups and tech firms that it's a "fraternity-like culture." Because so many of the people and companies I've known are absolutely nothing like that. But it's clear that some are very much like that -- and, no doubt, the success and money and public attention that Silicon Valley has been getting has driven more people to show up believing that's the culture, and then making it a self-fulfilling prophecy. That's bad. It needs to stop. It should stop because treating women that way is just wrong -- full stop (treating anyone that way is just wrong -- but it mostly happens to women). You shouldn't need to read beyond that (and you should really know that already). But if that's not a good enough reason for you (and if it's not, check your priorities, because they're messed up), you can pile on many others: a lack of diversity (which goes beyond just the male/female issue) is really damaging for innovation. It leads to less innovation and less interesting innovation. Having a diversity of perspectives and insights is what makes innovation happen faster and it makes that innovation more powerful. You get more with diversity and it should be embraced, celebrated and sought after. You also can get a better understanding of a much larger market. Building products solely from a singular perspective and viewpoint limits who will use your products and how. On top of that, Silicon Valley and many of its innovations are under attack from a variety of different directions -- and that's likely to continue. Giving more ammunition to critics by doing stupid stuff like harassing women and treating people like crap makes things much, much worse. But, again, even adding these justifications seems silly to me, because the first one should be enough. Yes, people like to make fun of the "we're changing the world" attitude that is often exuded from this region of the country. But here's the thing: it's often true. Many of the innovations from this small area of the world really have changed the wider world around us, and there's plenty of opportunity to do more of that. And over the years, I've met and dealt with tons of people for whom changing the world and making it a better place truly is a driving force. But, there are a lot of people here and not everyone is driven by the same motivations. And some people just don't know how to behave. If Silicon Valley is going to continue to lead the world in innovation, it needs to stamp out this kind of behavior completely. It is completely unacceptable and it shouldn't be left just upon those who are the vicitims of that kind of activity to speak up. We should all be speaking up and should be calling out any sort of inappropriate behavior like that. Permalink | Comments | Email This Story

Read More...
posted 20 days ago on techdirt
Apple users just can't have enough Lightning to USB cables. Considering how flimsy the standard cables are, and how many places you find yourself needing a charge, it's valuable to have a full arsenal of cables. Enter these rugged, nylon, Lightning to USB MFi-Certified cables. This 2 pack of 6 ft. cables will give you added flexibility with your charging needs and thanks to their tough construction, you won't have to worry about them ripping any time soon. They're on sale in the Techdirt Deals Store for $23.99. 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

Read More...
posted 20 days ago on techdirt
The Catholic Church has made some noises in recent years about attempts to modernize itself for the digital age. This modernization has taken different forms, from the Vatican attempting to create a special copyright over all things Pope some years back to selling indulgences in exchange for Pope-level Twitter followers. Somewhat strangely, the Church's last Pope actually spoke out against overreaching intellectual property, which appears to be at odds with the current Vatican administration. That's because the Vatican recently came out and suggested that it will soon begin strictly policing the way the images of Pope Francis and certain Vatican iconography are used by third parties. "The secretary of state will undertake systematic surveillance aimed at monitoring the way in which the image of the Holy Father and the emblems of the Holy See are used, intervening with opportune measures when necessary," the Vatican said in a statement. To back up this declaration, the Vatican has hired the global law firm Baker McKenzie to protect its intellectual property rights, the Italian daily Corriere della Sera reported. without citing the source of the information. Baker McKenzie declined to comment. Now, I was raised Catholic, and this all feels a little off. To start, there are some pretty clear passages from the Old Testament about making a big thing out of symbols and idols. I'm not saying that claiming dominion over the images of the Pope and Vatican symbols violates those passages, but it does seem to me that this is something of an effort to plunge His Holiness into the murky depths of celebrity culture. After all, while the language bandied about deals with copyright, much of this seems to actually be more in line with trademark and publicity rights. "The pope's image rights are no different from those of any other famous celebrity and so it's not surprising that the Vatican is giving notice that it will protect its (intellectual property) rights as necessary," said Nick Kounoupias, the founder of an intellectual property consultancy in London. And it's perfectly fine if the Pope wants to remake himself in the image of Lindsay Lohan. I'm just not sure it squares with the humble texts upon which his empire is built. But what seems completely strange to me is the fear of the internet that is animating this action. "It's not new that people were selling T-shirts of the pope, but (previously) those were probably little local vendors," said Mark McKenna, an intellectual property expert at the Notre Dame Law School in Indiana. What's changed is the magnitude of what can be produced and how quickly it can be distributed through online platforms. "In a world of Etsy, you are able to do it on a bigger scale," he said. Why? It seems to me that one of the chief aims of the church has always been proselytizing and clamping down on the method in which members of the Church, or even non-members, share the images and messages of the Pope, which seems counterproductive. I'm not saying I don't see why the Vatican might bristle if those images are used to blaspheme rather than venerate the Pope or the Church. But chilling the spreading of the message to combat this seems like the wrong approach, one borrowed more from the entertainment industry than a soul-saving operation. Or maybe it all comes down to money. On the Vatican website, one can buy Francis medals, icons and rosary boxes. The Vatican museum boutiques offer silk ties and scarves and watches showing scenes from Michelangelo's frescoes on the ceiling of the Sistine Chapel. And that may be part of the Vatican's motivation in safeguarding Francis' face - and warning that they will challenge the copycats. "It's probably also the case that there is some genuine commercial motivation," McKenna said. "They want to be sure they're the only ones selling this stuff." Just like Jesus would do, right? Permalink | Comments | Email This Story

Read More...
posted 20 days ago on techdirt
For years, electric utilities have increasingly embraced smart meters. Roughly 65 million of the devices have been installed in the United States over the last few years, with 57 million of them in consumer homes. The meters provide innumerable benefits to utility companies, often delivering an ocean of new remote access and monitoring tools to better manage the network and reduce meter reading truck rolls. The benefits to consumers (outside of accuracy) have been less notable, including interference with some home routers, as well as the fact that a number of models have been shown to be relatively easily hacked. In addition to hackability, the sheer volume of data being gobbed up by utility companies tells an awful lot about you (when you wake, when you sleep, when you're home or away). This has, at times, sparked outrage from locals in places like Naperville, Illinois, where, since 2011, meter opponents have been fighting the intrusive nature of the devices: "...Opponents say the meters provide so much information that everyone from cops to criminals to marketing departments can learn when people are home and what they do when they're there. Last year, the anti-meter movement fell just short of collecting enough signatures to place a question on the ballot asking residents to decide whether the devices should be removed. They also have a pending federal lawsuit against the city alleging that their constitutional right to due process has been violated." That was 2013. In 2015, the city of Naperville was forced to settle with one smart meter opponent after she sued the city and four of its police officers for violating her constitutional rights. That same year, another man sued the city over what he claimed was an unwarranted search into his home. But last fall, a federal district court in Illinois declared that Americans can't reasonably expect any privacy in the data collected by these devices, and utility collection of it is completely beyond the protection of the Fourth Amendment. That case is currently on appeal to the United States Court of Appeals for the Seventh Circuit. And the EFF and Privacy International have asked the Seventh Circuit if they can weigh in on the case. In a blog post, the EFF points out that the court's decision was based on a misunderstanding of how the technology actually works. Basically, the court assumed that these new meters work in exactly the same way as their older counterparts, ignoring the significantly-expanded data collected: "The court was convinced that data collected from smart meters is no different from data collected from analog meters, in terms of what it reveals about what’s going on inside the home. But that’s simply not the case. Smart meters not only produce far more data than analog meters—those set at collecting data in 15-minute intervals produce 2,880 meter readings per month compared to just one monthly reading for analog meters—but the data is also far more intimate. A single monthly read of cumulative household energy use does not reveal how energy is being used throughout the course of a day. But smart meter data does. And its time granularity tells a story about what is going on inside the home for anyone who wishes to read it." As we've seen with cellular location data, once companies collect this information, it's often sold to any number of third parties who may be using this data in ways that aren't always in your best interests. But as Tim Cushing has occassionally noted, getting companies to be forthcoming about what they're collecting and who they may be selling it to is sometimes difficult, with at least one company suing to thwart transparency efforts on the subject in Seattle. And as Glyn Moody has also noted, this collision between privacy rights and utility data collection on the smart meter front isn't just an American phenomenon. Permalink | Comments | Email This Story

Read More...
posted 20 days ago on techdirt
Techdirt has been following India's construction of the world's largest biometric database, called Aadhaar, since July 2015. Concerns include the fact that what was billed as a voluntary system has been morphing into a compulsory one, and evidence that Aadhaar simply can't cope with real-life biometrics. Undeterred, the Indian government wants to expand the system even further by opening it up for use by companies, as the Wall Street Journal reports: The Indian government has gathered digital-identification records, including fingerprint impressions and eye scans, of nearly all of its 1.2 billion citizens. Now a government-backed initiative known as "India Stack" aims to standardize ways to exchange the data digitally to facilitate the transfer of signatures and official documents that citizens need to get jobs, make financial transactions or access government services. By allowing developers to incorporate use of government identification records in their commercial websites and apps, the initiative envisions Indians -- with mobile phones in hand -- using iris and fingerprint scans to sign up for insurance, invest in mutual funds, receive health-care subsidies and verify their identity for school examinations. In itself, there's nothing wrong with this approach. Indeed, it has many benefits, notably making it easier for people to deal with India's bureaucracy, and helping to fight corruption. But those advantages could be compromised if privacy is neglected. And here the Indian government is sending all the wrong signals: Prime Minister Narendra Modi's government has delayed a new bill that would bring India's privacy laws more in line with those of major European nations. Meanwhile, the government has questioned a constitutional right to privacy in pleadings before the Indian Supreme Court. Without adequate privacy protection, the system seems ripe for abuse, both by unscrupulous companies targeting hapless consumers, and by state organizations, which might use it as a powerful surveillance tool. If the Indian government wants to become a world leader in using biometric-based digital identity for its citizens, as the Wall Street Journal article suggests, it should make crafting effective privacy protection laws a priority. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
Update: We've made some corrections to this piece to clarify that, while this is a victory for Jim Sterling, it's a result of Digital Homicide agreeing to a settlement, rather than the court tossing the lawsuit, as the original suggested. The saga of game developer Digital Homicide whipped through our pages like an idiotic windstorm. This gust of blustery nonsense started with the company's lawsuit against a game critic, Jim Sterling, then moved on to it suing Steam users over reviews they wrote, before twirling into the stage where Valve banned Digital Homicide games from Steam entirely and the company stated it planned to shut down operations. All of that happened in the span of six months, which would be impressive if it weren't so sad. Still, the resolution of the threats against Steam users wasn't the end of the story. The lawsuit against Sterling was still out there, a $10 million dollar anvil hanging over the game critic's head. Until this week, that is, when the court in which the suit had been filed dismissed it with prejudice as part of a settlement agreement between the two parties. Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), the parties hereby stipulate and agree to the dismissal of all claims in this action, including the claims raised in the Amended Complaint of February 3, 2017, with prejudice with each party to bear its own costs and attorneys’ fees. Plaintiff agrees to forever refrain from directly or indirectly filing against Defendant any cause of action arising from the same facts or circumstances alleged in the Amended Complaint. Plaintiff also agrees to refrain from taking action against Defendant’s business, such as sending DMCA takedown notices, without first considering whether Defendant is engaged in fair use of a copyright under 17 U.S.C. § 107, as required under federal law and Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir. 2015). And that will be the end of that. But Sterling wasn't the only one casting a wary glance at this lawsuit. Many in the game-critiquing world watched on, wondering whether or not a court was going to allow a critic to be punished for doing his job. Were it to have happened, that would have sent a chilling effect through the gaming industry. Fortunately, it didn't. Which isn't to say that this all ends without any blood being drawn. What’s particularly disturbing about lawsuits like this is that, even in cases where they are clearly frivolous, as this was, they can force critics to spend significant amounts of money on legal defenses. Sterling had to hire a lawyer, Bradley Hartman, who helped convince the court to dismiss this case, which, in Sterling’s words, involved “series of allegations that were difficult to comprehend even for the one accused of them.” “Not all threats from the Internet are idle ones, and I wouldn’t recommend anybody brush them off,” Sterling concluded. Which is again why this country is desperately crying out for strong Anti-SLAPP laws at the federal level. Having to fend off these vacuous lawsuits with no recourse at the end is a burden without justification. Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
The saga of game developer Digital Homicide whipped through our pages like an idiotic windstorm. This gust of blustery nonsense started with the company's lawsuit against a game critic, Jim Sterling, then moved on to it suing Steam users over reviews they wrote, before twirling into the stage where Valve banned Digital Homicide games from Steam entirely and the company stated it planned to shut down operations. All of that happened in the span of six months, which would be impressive if it weren't so sad. Still, the resolution of the threats against Steam users wasn't the end of the story. The lawsuit against Sterling was still out there, a $10 million dollar anvil hanging over the game critic's head. Until this week, that is, when the court in which the suit had been filed dismissed it with prejudice. Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), the parties hereby stipulate and agree to the dismissal of all claims in this action, including the claims raised in the Amended Complaint of February 3, 2017, with prejudice with each party to bear its own costs and attorneys’ fees. Plaintiff agrees to forever refrain from directly or indirectly filing against Defendant any cause of action arising from the same facts or circumstances alleged in the Amended Complaint. Plaintiff also agrees to refrain from taking action against Defendant’s business, such as sending DMCA takedown notices, without first considering whether Defendant is engaged in fair use of a copyright under 17 U.S.C. § 107, as required under federal law and Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir. 2015). And that will be the end of that. But Sterling wasn't the only one casting a wary glance at this lawsuit. Many in the game-critiquing world watched on, wondering whether or not a court was going to allow a critic to be punished for doing his job. Were it to have happened, that would have sent a chilling effect through the gaming industry. Fortunately, it didn't. Which isn't to say that this all ends without any blood being drawn. What’s particularly disturbing about lawsuits like this is that, even in cases where they are clearly frivolous, as this was, they can force critics to spend significant amounts of money on legal defenses. Sterling had to hire a lawyer, Bradley Hartman, who helped convince the court to dismiss this case, which, in Sterling’s words, involved “series of allegations that were difficult to comprehend even for the one accused of them.” “Not all threats from the Internet are idle ones, and I wouldn’t recommend anybody brush them off,” Sterling concluded. Which is again why this country is desperately crying out for strong Anti-SLAPP laws at the federal level. Having to fend off these vacuous lawsuits with no recourse at the end is a burden without justification. Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
When copyright is deployed as a censor, it usually means the removal of content. In the case of Freddy Martinez of Lucy Parsons Lab (instrumental in peeling back the opacity covering the Chicago PD's "black budget"), copyright is the excuse being given to prevent the release of information. Martinez was hoping to obtain a copy of an instructional film the Chicago PD shows to incoming officers. This video -- made more than 30 years ago -- was highlighted in the DOJ's damning civil rights report. The DOJ noted that the video was outdated and the instructors presenting the film did absolutely nothing to ensure engagement or, you know, provide actual instruction. From the report: As just one example, a class we observed on deadly force involved officers’ viewing a video made roughly 35 years ago, prior to key Supreme Court decisions that altered the standards used to evaluate the reasonableness of use of force. The tactics depicted in the video were clearly out of date with commonly accepted police standards of today. Following the video, the instructor spoke for approximately thirty minutes, but did not give detailed information on justified versus unjustified use of deadly force or the standard of objective reasonableness — all essential topics for deadly force training. The training itself was inconsistent with CPD’s force policies, further undermining its utility in teaching recruits their obligations under Department policy and constitutional law. That's not all the DOJ noticed. It also noticed no one in classroom seemed to care whether anyone got anything out of it. Several recruits were not paying attention, one appeared to be sleeping, and there was minimal attempt made to engage the students in the lesson. In fact, the instructor arrived to the class ten minutes late and dismissed students twenty minutes early from this critical class on how CPD officers should use deadly force. The impact of this poor training was apparent. At the academy and during ride-alongs, our retained training law enforcement expert asked several PPOs to articulate when use of force would be justified in the field; only one PPO out of six came close to properly articulating the legal standard for use of force. Naturally, a video on deadly force that puts new cops to sleep is something the public might be interested in seeing for themselves -- especially considering its contents are no longer aligned with Supreme Court decisions. Martinez filed a public records request for the video through MuckRock. The Chicago PD responded [PDF] by claiming copyright prevented the video's release. Under 5 ILCS 140/7(1)(a) of the FOIA statute, a public body is allowed to withhold "[i]nformation specifically prohibited from disclosure by Federal or State law or rules and regulations implementing federal or State law." The Copyright Act of 1976, 17 U.S.C. §§ 101,et seq., grants only the holder of a copyright an exclusive right to reproduce and distribute copies of his work. [See 17 U.S.C. § 106]. Therefore, since the Department is not the owner of the copyright, CPD cannot reproduce said video. As Martinez points out in his post for Lucy Parsons Lab, this would appear to be a pretty clear case of fair use. Worth litigating over? Possibly. Martinez initiated a public records lawsuit, but dropped it because the internet always provides. The video, which was made in 1982, was available for purchase elsewhere on the Internet, however, and after some conversation in our Slack Channel, someone was able to locate the video on the Internet Archive, too. We had begun discussions about suing for the video under Illinois FOIA law because we believe it falls under the “Fair Use” exemption of the Copyright Act but because it is readily available for download, we dropped this prospect. While the video remains live, plenty of people will have the opportunity to view a video plenty of Chicago cops slept through. Peter Falk narrates it, so it's not completely terrible. And viewing it from the comfort of your own computer is preferable to the option the PD extended to Martinez in lieu of sending him a copy: You may contact the FOIA Division of the CPD to discuss a viewing of the requested video. Granted, the CPD's copyright excuse is better than others we've seen offered by government agencies hoping to keep information out of the public's hands. The video was produced by a completely separate company and rights are apparently held by the Phoenix Learning Group. It's at that website that you'll discover this "training" film isn't actually a training film, but rather trimmed from a one-hour documentary that was produced to give TV viewers a little insight into police decision making, not provide cops with information they need to make solid use-of-force decisions. That explains the presence of Peter Falk. This also explains why CPD officers seem to know very little about deadly force and how to deploy it. That's absolutely the point of public records requests like these: to let the public know why services they pay for -- like the city's policing -- are such a mess. This is just a small part of it, and it was nearly thwarted by copyright. Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
The phone calls are coming from inside the house, it seems. The newly minted Trump government has suffered under one of the most porous climates in recent Presidential memory, with leaks leaking to the press from seemingly everywhere. This is happening for several reasons, which include enabling technology for such leaks to occur, the controversial nature of our current President and some of his actions, and the fact that, whatever else one might want to say about President Trump, his administration is certainly active, meaning there is much more about which to leak. This has led to Trump, along with members of his team, making strange noises about a crackdown of these leaks. The threats incorporated in this crackdown have included FBI investigations (where many of the leaks have come from), random phone checks by the communications staff with Sean Spicer playing Angry Dad, and the promise of the purging of any longstanding government staffers suspected of leaking information to the press. And, yet, the leaks persist. And they often persist in laughable ways. We already had Spicer's phone-check and leak-plugging emergency meeting with his staff leak to the press. Now the Washington Post has an article all about the State Department's memo that warned State staff against leaking anything to the press. The State Department legal office prepared a four-page memo for Secretary of State Rex Tillerson warning of the dangers of leaking by State Department employees. It promptly leaked, to me. That’s only the latest sign that the relationship between the Trump administration political appointees and the State Department professional workforce is still very much a work in progress. The Feb. 20 memo by State Department acting legal adviser Richard Visek to Tillerson is entitled “SBU: Protecting Privileged Information.” The SBU stands for Sensitive But Unclassified, a designation used on documents that are not technically secret but also not supposed to be shared. The memo itself is marked SBU and begins with detailed explanation of how and when Tillerson has the privilege of protecting certain types of information from public disclosure, such as anything that has to do with internal State Department deliberations. But the bulk of the memo is devoted to arguments for clamping down on unauthorized disclosures of sensitive information, also known as leaking. One can only hope that whoever leaked the memo to the Washington Post chuckled to themselves as they did so -- so tasty the irony was. Look, it's understandable why a White House or government would be irritated by press leaks. But trying to wage some kind of war against them is only going to result in the administration looking very, very foolish, as it does in this story. Leaks have always been a thing in government. They always will be. Trump can shake his fist angrily at the clouds all he wants, but the rain will still come. Even Tillerson's admittedly tightened grip over the State Department isn't going to help. Several State Department officials told me that they see evidence of an effort by Tillerson to stymie leaking is already underway. For example, detailed readouts of Tillerson’s meetings with foreign officials are no longer distributed widely inside the building, leaving officials in relevant bureaus unsure exactly what transpired. Another official told me Tillerson has shortened the list of officials allowed inside the daily 9:15 a.m. senior staff meeting, which has previously served as a key channel through which various State Department offices and bureaus learn about the day’s agenda and get direction from the secretary’s office. A third State Department official told me he was instructed to make requests for policy information and guidance over the phone or in person, rather than commit any policy discussions to an email that might be leaked. Making government less efficient in the interest of plugging leaks works against good government operations and obviously isn't solving the problem. And, like so many things Trump, there's no consistency in his anger on the topic. Trump was perfectly happy to discuss leaks from the DNC while on the campaign trail. In addition to that, members of both his campaign team and his administration are known to regularly leak information to the press for the purposes of steering media discussion in the President's favor. As with so many things, it's fine if Team Trump does it, but not anyone else. Regardless, it sure will be fun to watch the White House attempt to keep press leaks from being a thing. After all, if you can't even keep the memos about not leaking from leaking, the really good stuff is almost sure to come out. Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
FCC boss Ajit Pai made it clear that overturning net neutrality would be the new FCC's top priority (apparently right behind paying lip service to the poor), and his behavior is making it very clear that wasn't an empty promise. Pai recently killed the FCC's inquiry into Verizon and AT&T's zero rating, which lets both companies use arbitrary usage caps to give their own content an unfair market advantage. The previous FCC argued both ISPs were violating net neutrality and engaged in anti-competitive behavior. The new FCC, in contrast, now says zero rating "enhances competition in the wireless marketplace." Now Pai's chipping away at the transparency portion of the FCC's net neutrality rules as well, insisting they're little more than "excessive reporting obligations." The transparency requirements, originally passed in 2010, required that ISPs make the following items perfectly clear when selling service to consumers: Price -- the full monthly service charge. Any promotional rates should be clearly noted as such, specify the duration of the promotional period, and note the full monthly service charge the consumer will incur after the expiration of the promotional period. Other fees -- all additional one-time and/or recurring fees and/or surcharges the consumer may incur either to initiate, maintain, or discontinue service, including the name, definition, and cost of each additional fee. These may include modem rental fees, installation fees, service charges, and early termination fees, among others. Data caps and allowances -- any data caps or allowances that are a part of the plan the consumer is purchasing, as well as the consequences of exceeding the cap or allowance (e.g., additional charges, loss of service for the remainder of the billing cycle)." The FCC estimated that it should take ISPs about 6.8 hours per year to adhere to these requirements, which have an obvious benefit to consumers. But because some ISPs repeatedly complained that the requirements were "too onerous" (without ever really supporting that claim with data), the FCC temporarily exempted ISPs with fewer than 100,000 subscribers from the rules. But last week, the FCC not only extended the rules, but expanded them claiming this would let ISPs "allocate scarce resources toward expanding modern networks that bring economic opportunity, job creation and civic engagement to all Americans." But lone dissenting FCC commissioner Mignon Clyburn was quick to point out that under the surface, this had little to do with helping small ISPs (again, given the small burden of 6.8 hours in extra work per year), and everything to do with slowly-but-surely rolling back oversight of larger companies utilizing smaller holding companies: "Many of the nation’s largest broadband providers are actually holding companies, comprised of many smaller operating companies," Clyburn said. "So what today’s Order does is exempt these companies’ affiliates that have under 250,000 connections by declining to aggregate the connection count at the holding company level." The original exemption for ISPs with 100,000 or fewer subscribers was applied to the aggregated total of subscribers "across all affiliates," so that small ISPs owned by big holding companies wouldn't be exempt. That changed today, according to Clyburn. Consumer group Public Knowledge quickly issued a statement questioning the wisdom of making often convoluted and misleading broadband bills more difficult to understand: "Yet again, Chairman Pai has acted to weaken consumer protections at the FCC. Today’s action means that more ISPs could withhold essential information about their broadband pricing and service, making it harder for many more subscribers to make informed decisions and hold their providers accountable. How can it be good for consumers if companies conceal anything about the price, speed, and data caps for their broadband service?" If you hadn't noticed already, easing government and public oversight of one of the least popular and least competitive markets in America -- then pretending it's either for the poor or for "modernization's" sake is new FCC boss Pai's modus operandi. It doesn't matter whether we're talking about Pai's decision to help prison telco monopolies overcharge inmate families, his decision to kill plans for more cable box competition, or the recent efforts to dismantle net neutrality piecemeal, this is all being set to the backdrop of bogus empathy for the little guy. And this is just his first month in office. As we noted previously, Pai won't repeal net neutrality via FCC process because it would open the door to a public-comment period during which his decision would be quite-justly lambasted. Instead, the plan is to chip away at the rules bit by bit until the GOP pushes either a Communications Act rewrite or other legislation that puts net neutrality -- and likely the FCC's entire authority over broadband ISPs -- to bed permanently. If you really like the end result of having large ISPs and revolving door regulators dictate internet policy (read: Comcast), you should be pretty excited about what the future has in store. Permalink | Comments | Email This Story

Read More...