posted 15 days ago on techdirt
Earlier this year, New York City undertook one of the biggest free city WiFi efforts ever conceived. Under the plan, an outfit by the name of LinkNYC is slated to install some 7,500 WiFi kiosks scattered around the five boroughs that will provide free gigabit WiFi (well, closer to 300 Mbps or so), free phone calls to anywhere in the country (via Vonage), as well as access to a device recharging station, 311, 911, 411 and city services (via an integrated Android tablet). The connectivity and services are supported by a rotating crop of ads displayed on the kiosks themselves. The only problem? As part of the initiative, the city and LinkNYC attached an Android-powered tablet that lets anyone browse the internet for as long as they wanted. This, as you might expect, has resulted in some people camping out for long periods of time actually using the free service. That includes, unsurprisingly, New York City's ample homeless population. As Motherboard notes in a report, after spending much of August tracking usage of the kiosks, a snapshot view of daily use doesn't make for shiny marketing fodder:"My small sample of Link users that Saturday afternoon suggests these kiosks are indeed mostly used by the city’s least privileged. Of the 15 people I saw using a Link, only two or three of them would be likely to appear on LinkNYC promotional materials (i.e., one well-dressed woman making a phone call, or one middle aged, casually-dressed tourist waiting for his phone to finish charging).Again, this shouldn't really be surprising, especially since the city has consistently claimed that one of its goals is to close the digital divide. Since June there has also been a lot of breathless hysteria about the fact that some of the homeless users have been using the tablets to watch porn. In response, LinkNYC began implementing internet filters that, as internet filters tend to do, didn't seem to work. Responding to public complaints, LinkNYC announced this week that it would be discontinuing tablet browsing functionality at the kiosks:"...Some users have been monopolizing the Link tablets and using them inappropriately, preventing others from being able to use them while frustrating the residents and businesses around them. The kiosks were never intended for anyone’s extended, personal use and we want to ensure that Links are accessible and a welcome addition to New York City neighborhoods.The announcement notes that the internet browsing will be disabled, but other services will still work:"Starting today, we will be removing web browsing on all Link tablets while we work with the City and community to explore potential solutions, like time limits. Other tablet features—free phone calls, maps, device charging, and access to 311 and 911—will continue to work as they did before, and nothing is changing about LinkNYC’s superfast Wi-Fi. As planned, we will continue to improve the Link experience and add new features for people to enjoy while they’re on the go."While countless news stories suggest that the move was primarily in response to overwhelming porn consumption, there's no real evidence that this was an epidemic of any real scale. While there have certainly been documented instances of public masterbation at the kiosks (this is NYC after all, and occasionally viewing a homeless person's gentials is not a new concept), LinkNYC has suggested that people camping out around the kiosks (sometimes bringing chairs, couches and crates with them) was the larger source of complaints by locals. The real problem appears to be that the service put the city's homeless population on stark display, making them more difficult for city residents to ignore. On one hand it's understandable that homeless populations camping around the kiosks isn't great "optics" or olfactory ambiance for the city and local business owners, but at the same time it's not clear what one expects to happen when you provide the city's 60,000 homeless residents with free access to technology they otherwise lack access to. LinkNYC says it's working with the city on a solution, and may restore public browsing at a later date with tougher filters and access limitations in place. Given the fact that filters historically don't work, it seems more likely that the free browsing will be gone for good.Permalink | Comments | Email This Story

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As you probably heard, the ACLU and other have launched a massive campaign asking President Obama to pardon Ed Snowden. You can check it out here and sign the petition. There have also been a bunch of high profile op-eds and endorsements from a wide variety of people -- from former intelligence officials to human rights groups and more. The campaign was obviously timed to coincide with the release of Oliver Stone's new movie, Snowden. Apparently also timed with the release of the movie, the House Intelligence Committee has released a "report" that they claim they spent two years writing, detailing why they believe Snowden is no whistleblower. They've released an unclassified three page "executive summary" that is, at best, laughable. Honestly, if this is the best that the House Intel Committee can put together to smear Snowden, they must have found nothing bad. I mean, it's the stupidest stuff: like that he once got into a dispute with his boss over some software updates at work and (*gasp*) emailed someone higher up the chain, for which he got reprimanded: If you can't read that, it says: Third, two weeks before Snowden began mass downloads of classified documents, he was reprimanded after engaging in a workplace spat with NSA managers. Snowden was repeatedly counseled by his managers regarding his behavior at work. For example, in June 2012, Snowden became involved in a fiery e-mail argument With a Supervisor about how computer updates should be managed. Snowden added an NSA senior executive several levels above the supervisor to the e-mail thread, an action that earned him a swift reprimand from his contracting officer for failing to follow the proper protocol for raising grievances through the chain of command. Two weeks later, Snowden began his mass downloads of classified information from NSA networks. Despite Snowden's later claim that the March 2013 congressional testimony of Director of National Intelligence James Clapper was a "breaking point" for him, these mass downloads predated Director Clapper's testimony by eight months. First of all, the inclusion of the email dispute is just... weird. I mean, people have email disputes with co-workers all the time. Is that really a sign that you're not a whistleblower, or that you're just "disgruntled?" If that's really the "dirt" that they dug up on Snowden after two years of research, they really must have nothing that actually sticks. Oh, and also, as Snowden himself notes, this all kinda works against their point, because it shows that trying to blow the whistle up the chain is... met with reprimands. @Snowden That doesn't say good things about going through "proper channels" at NSA. Not sure they understand how this hurts their case. — Edward Snowden (@Snowden) September 15, 2016 Of course, the point that they're really getting at is the second half of that paragraph -- where they claim that he began the downloads way before James Clapper's infamous lie to Senator Ron Wyden. But, again, Snowden points out that they're being totally misleading here (and it must upset the House Intelligence Committee to no end that Snowden is free and able to use Twitter to debunk their claims), because, as has been previously reported in great detail, Snowden was assigned to move a bunch of documents between systems. The "downloading" they're talking about was his job. @Snowden HEARTBEAT, which seems to be the source of their 1.5m number, was explicited authorized by two levels of my management. I built it. — Edward Snowden (@Snowden) September 15, 2016 In other words, yes, he touched 1.5 million documents. Because he was told to as a part of his job. It's been more than two years since James Clapper himself admitted that Snowden didn't actually take all of those. That's just the number he "touched" because his job was to move those documents to a different system. Snowden took a much smaller subset, and now they're claiming that him doing his job was him taking the docs. The report also trots out the usual "harm to national security." We've been hearing this ever since the first leak... and yet no one ever has any evidence to support this. It's the bogeyman argument. And yet, here it is again: If you can't read that, it says: First, Snowden caused tremendous damage to national security, and the vast majority of the documents he stole have nothing to do with programs impacting individual privacy interests-they instead pertain to military, defense, and intelligence programs of great interest to America's adversaries. A review of the materials Snowden compromised makes clear that he handed over secrets that protect American troops overseas and secrets that provide vital defenses against terrorists and nation-states. Some of Snowden's disclosures exacerbated and accelerated existing trends that diminished the IC's capabilities to collect against legitimate foreign intelligence targets, while others resulted in the loss of intelligence streams that had saved American lives. Snowden insists he has not shared the full cache of 1.5 million classified documents with anyone; however, in June 2016, the deputy chairman of the Russian parliament's defense and security committee publicly conceded that "Snowden did share intelligence" with his government. Additionally, although Snowden's professed objective may have been to inform the general public, the information he released is also available to Russian, Chinese, Iranian, and North Korean government intelligence services; any terrorist with Internet access; and many others who wish to do harm to the United States. The full scope of the damage inflicted by Snowden remains unknown. Over the past three years, the IC and the Department of Defense (DOD) have carried out separate reviews--with differing methodologies--of the damage Snowden caused. Out of an abundance of caution, DOD reviewed all 1.5 million documents Snowden removed. The IC, by contrast, has carried out a damage assessment for only a small subset of the documents. The Committee is concerned that the IC does not plan to assess the damage of the vast majority of documents Snowden removed. Nevertheless, even by a conservative estimate, the U.S. Government has spent hundreds of millions of dollars, and will eventually spend billions, to attempt to mitigate the damage Snowden caused. These dollars would have been better spent on combating America's adversaries in an increasingly dangerous world. Note that after a lot of hand-waving, the only actual damage they can even come close to quantifying is the amount of money the US government spent trying to close the barn doors -- i.e., investigate what Snowden had taken and make sure that others couldn't do the same. That's not Snowden's fault. That's very much blaming the messenger. Also, if the US government wasn't illegally spying on Americans, it wouldn't have been an issue. It seems worth noting that key point. And, again, the report continues to point to the 1.5 million number, despite the fact that it's already been debunked. Again, the reason Snowden moved 1.5 million docs was because that was part of his job -- that wasn't the amount taken. The reason that the Intelligence Community isn't investigating all of those docs is because it has said that Snowden didn't take all of them. Why is the House Intelligence Committee bitching about that? As for the Russian Parliament member claiming that Snowden shared secrets with Russia, Snowden himself notes that they're misquoting what was said, and that the guy had prefaced his statement by nothing that it was speculation on his part, rather than confirmed fact. You'd think that the House Intel Committee wouldn't go around trading in mere speculation. As for the claims that "the information he released is also available to Russian, Chinese, Iranian, and North Korean government intelligence services" is also pretty ridiculous. I mean, the documents that have been released (not all of them, and the ones that have been have included redactions) have been placed on the internet, where anyone can read them. The statement about the Russians, Chinese, Iranians, North Koreans and terrorists having access to them is basically the equivalent of "these people have the internet." Yeah, so? Next on the docket, the House Intel Committee claims that Snowden's not a whistleblower because he (1) didn't go through proper channels (2) he left the country and (3) the NSA surveillance program was all perfectly legal. If you can't read that, it says: Second, Snowden was not a whistleblower. Under the law, publicly revealing classified information does not qualify someone as a whistleblower. However, disclosing classified information that shows fraud, waste, abuse, or other illegal activity to the appropriate law enforcement or oversight personnel--including to Congress--does make someone a whistleblower and affords them with critical protections. Contrary to his public claims that he notified numerous NSA officials about what he believed to be illegal intelligence collection, the Committee found no evidence that Snowden took any official effort to express concerns about U.S. intelligence activities--legal, moral, or otherwise--to any oversight officials within the U.S. Government, despite numerous avenues for him to do so. Snowden was aware of these avenues. His only attempt to contact an NSA attorney revolved around a question about the legal precedence of executive orders, and his only contact to the Central Intelligence Agency (CIA) Inspector General (IG) revolved around his disagreements with his managers about Let's stop right there to respond to this load of nonsense. First of all, hiding behind the very technical, narrow legal definition of whistleblower is pretty ridiculous compared to the actual definition that most people use. Snowden revealed a program that involved mass surveillance on nearly all Americans, a program that the intelligence community had directly and officially denied existed. It was, in fact, a program that, from a plain reading of the law, should not exist, and the only way in which it did and could exist was if the government reinterpreted the law, in secret, to mean something completely different. That's pretty clearly whistleblowing. And the fact that the public has spoken out in support of him so much suggests that many people believe this as well. And that doesn't even mention the fact that after this Congress changed the law to further clarify what the NSA could actually do. In other words, Congress seems to agree that what Snowden did was in the public interest. Even former Attorney General Eric Holder has admitted as much. And, of course, the claims about "the proper channels" is ridiculous as well. We've written many, many times on what happens to individuals who go through the "proper channels." It often ends with them being put in jail on trumped up charges. Oh, and Snowden, as a contractor rather than gov't employee, had no whistleblower protections under the law anyway. Going through the "proper channels" gets you marked as a troublemaker, and that often leads to more scrutiny and questionable raids... and jail time. And, as if to confirm all this, the guy that Snowden could have reached out to as the "proper channel" had already mocked Snowden and attacked him, so it's not as if that would have been a useful route. The Committee tries to brush off this concern with the "proper channels" but fails in doing so: Despite Snowden's later public claim that he would have faced retribution for voicing concerns about intelligence activities, the Committee found that laws and regulations in effect at the time of Snowden,s actions afforded him protection. The Committee routinely receives disclosures from IC contractors pursuant to the Intelligence Community Whistleblower Protection Act of 1998 (IC WPA). If Snowden had been worried about possible retaliation for voicing concerns about NSA activities, he could have made a disclosure to the Committee. He did not. Nor did Snowden remain in the United States to face the legal consequences of his actions, contrary to the tradition of civil disobedience he professes to embrace. Instead, he fled to China and Russia, two countries whose governments place scant value on their citizens' privacy or civil liberties-and whose intelligence services aggressively collect information on both the United States and their own citizens. Again, this is wrong. The Whistleblower Act does not actually extend its protections to contractors, and given how the Committee is reacting to Snowden to this day, does anyone actually think they would have done anything if he had approached them -- other than maybe alerting top intel community officials that they had a troublemaker in their midst? As for the claim that Snowden didn't stay in the US to face the "legal consequences," again, is it any wonder why? He knew what had happened to people like Thomas Drake, who the feds tried to put in jail for 35 years because he had a (mistakenly) classified meeting agenda at his home -- a home that was only raided because Drake had blown the whistle on another program. He'd seen what happened to Chelsea Manning, held in solitary confinement for leaking documents to Wikileaks. He'd seen what happened to countless others. The very fact that Snowden is free today and able to tweet responses to this ridiculous smear campaign shows exactly why he didn't choose to stay in the US where they would have locked him up and thrown away the key. To gather the files he took with him when he left the country for Hong Kong, Snowden infringed on the privacy of thousands of govemment employees and contractors. He obtained his colleagues, security credentials through misleading means, abused his access as a systems administrator to search his co-workers, personal drives, and removed the personally identifiable information of thousands of IC employees and contractors. From Hong Kong he went to Russia, where he remains a guest of the Kremlin to this day. And yet, magically, none of that has ever become public. So, uh, it seems like maybe the major worries here were overblown. It is also not clear Snowden understood the numerous privacy protections that govern the activities of the IC. He failed basic annual training for NSA employees on Section 702 of the Foreign Intelligence Surveillance Act (FISA) and complained the training was rigged to be overly difficult. This training included explanations of the privacy protections related to the PRISM program that Snowden would later disclose. Now this seems to just be the Intelligence Committee scraping the bottom of the barrel again for anything to make Snowden look bad. Oooh, he failed the training program on PRISM. And, yet, that doesn't respond to the fact that there were all sorts of legitimate privacy concerns about PRISM and how it operates, and the program was kept entirely secret. From there, the Committee goes into full scale playground taunting of Snowden, saying he's a "serial fabricator" because he may have exaggerated a few points: If you can't read that, it says: Fourth, Snowden was, and remains, a serial exaggerator and fabricator. A close review of Snowden's official employment records and submissions reveals a pattem of intentional lying. He claimed to have left Army basic training because of broken legs when in fact he washed out because of shin splints. He claimed to have obtained a high school degree equivalent when in fact he never did. He claimed to have worked for the CIA as a "senior advisor," which was a gross exaggeration of his entry-level duties as a computer technician. He also doctored his performance evaluations and obtained new positions at NSA by exaggerating his resume and stealing the answers to an employment test. In May 2013, Snowden informed his supervisor that he would be out of the office to receive treatment for worsening epilepsy. In reality, he was on his way to Hong Kong with stolen secrets. So, yeah. I mean, considering how much "fabricating" and "exaggerating" the House Intel Committee does in this whole report, it's a bit weak to argue that him exaggerating his leg problems is somehow proof of being a "serial fabricator." And, I'm sure that none of the members of the House Intel Committee has ever been caught "exaggerating" or "fabricating" information in their quest to get elected, right? And, of course, Snowden claims they're mostly wrong about all of this anyway. The claim that he doctored a performance evaluation? Snowden notes that he actually reported a vulnerability. The claim I "doctored performance evaluations?" This one is amazing: I reported an XSS (hacking) vulnerability in CIA annual review system. — Edward Snowden (@Snowden) September 15, 2016 The shin splints v. broken legs? Army held me for weeks in a special unit for convalescence before separation. I left on crutches. They don't do that for "shin splints." — Edward Snowden (@Snowden) September 15, 2016 The claim that he never got his GED? Snowden hints that if that's what the Intel Committee is really saying, they should get ready to be embarrassed: @astepanovich That would be extremely unwise. — Edward Snowden (@Snowden) September 15, 2016 The fact that he lied about why he was taking time off? I mean, come on. They must really be stretching for something to include that as a "lie." It was a deliberate move as part of his already determined plan to blow the whistle on these programs, not evidence of a pattern of lying. In the end, the only proper way to read this report is in the context that Glenn Greenwald pointed out: if the House Intelligence Committee had done its oversight job of preventing mass surveillance on Americans, rather than acting as an enabler for the NSA, Snowden wouldn't have been a problem. The Committee's anger seems driven more by Snowden showing how complicit they were in failing to actually oversee the NSA: If you don't want leaks, don't build a secret, illegal system of mass surveillance and then hide it and lie about it to the public. — Glenn Greenwald (@ggreenwald) September 15, 2016 Of course, along with this report, the Intel Committee has also sent the White House a letter saying that it should not pardon Snowden, saying "Mr. Snowden is not a patriot. He is not a whistleblower. He is a criminal." It goes on to repeat many of the false claims from the report. I get the feeling that history will treat Ed Snowden much more kindly than it will treat the cowardly members of the House Intel Committee who are now trying (and failing) to cover up their own failures as overseers.Permalink | Comments | Email This Story

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Mishandling classified material can result in a variety of punishments, depending on who you are. If you're a presidential candidate, the routing of hundreds of sensitive documents through an unsecured, private email server might result in a few conversations with the FBI, but not in any criminal charges. If you're a retired general, routing classified material to your biographer/mistress might result in criminal charges, but not any time served. If you're a whistleblower taking your complaints to the press, you'll likely see some jail time to go along with your destroyed career. And if you're a Marine Corps officer trying to warn others of trouble headed their way, you're more likely to be treated like Jason Brezler than Hillary Clinton, Gen. David Petraeus, or even former CIA Director Leon Panetta. Brezler is facing dismissal from the Marine Corps for mishandling a classified document -- one containing information about an allegedly corrupt Afghan police chief who had already been kicked off a US base by Brezler himself. [T]he local police chief, Sarwar Jan, turned into a problem. "Sarwar Jan, he was a threat to not only the Afghans but our own Marines," Brezler says. The chief was maybe linked to the Taliban. He was also alleged to be a pedophile who preyed on local boys — something alarmingly common among Afghan warlords. Recently there's been a debate about whether U.S. forces should tolerate Afghan allies who keep kids at their barracks. Back in 2010, there was no policy. Brezler couldn't fire Sarwar Jan, but he could kick him off the base. "We put Sarwar Jan on the next helicopter. And, once he left, we could have probably had a parade the next day through the bazaar. The Afghans were absolutely elated," he says. After returning stateside, Brezler received an email from an officer located in Afghanistan informing him that Sarwar Jan was once again residing in the base Brezler had kicked him out of -- and had brought a group of underage boys with him. Brezler attached a classified report detailing the allegations against Jan and hit "Reply All." The allegations about Jan weren't all that unusual. The sexual and physical abuse of minors is considered standard operating procedure by many Afghans in powerful positions. Rampant sexual abuse of children has long been a problem in Afghanistan, particularly among armed commanders who dominate much of the rural landscape and can bully the population. The practice is called bacha bazi, literally “boy play,” and American soldiers and Marines have been instructed not to intervene — in some cases, not even when their Afghan allies have abused boys on military bases, according to interviews and court records. In some cases, Marines have been told to ignore the behavior. In other cases, they've been punished for trying to prevent it. Brezler's concerns about Jan's arrival at another base were never addressed. Instead, the Marines chose to go after him for sending a classified document to other Marines. Brezler even went through the proper channels, reporting himself for mishandling sensitive information. He was told it was just "minor spillage" -- something that happened occasionally but generally without serious repercussions. Less than three weeks after Brezler's warning went out (and was apparently ignored), a 17-year-old Afghan male who had been living in Jan's quarters stole a weapon and killed three unarmed Marines. When the Marine Corps resisted turning over information to the victims' families, Brezler sought the help of Rep. Peter King. King took this info to the media and that's when things got worse for Brezler. And that's when the U.S. Marine Corps got serious — about investigating Jason Brezler. "Almost a year had gone by from the time, he had moved on, the Marine Corps had moved on," says lawyer Mike Bowe. "A news story comes out that reveals that he's talking to Congressman King about these murders, and three days later he is sent to a Board of Inquiry to be kicked out of the Marine Corps." The inquiry was retaliation, Bowe says, for embarrassing the Marine Corps brass. He says there were hundreds of similar cases of "spillage" the same year, and only two were punished. A Pentagon inspector general's report concluded it was not retaliation. At this point, the Marine Corps is offering him an honorable discharge -- a "thanks, but no thanks" for his attempt to warn his fellow soldiers about the long list of allegations against police chief Sarwar Jan. Brezler sued for full reinstatement as a Marine and the discharge has been put on hold pending a possible jury trial later this year. There are a handful of disturbing aspects of the Marine Corps' dismissal of Brezler, not the least of which is its decision to ramp up its efforts to rid itself of him after it had been publicly embarrassed by a US congress member. It also highlights the absurdity -- and danger -- inherent to the military's weirdly-selective non-interventionist policy: one deployed by an outside force playing World Police within its borders (decidedly interventionist) that draws the line at preventing the sexual abuse of minors on its bases by local officials. The decision to go after the messenger -- one that self-reported his mishandling of sensitive information -- shows the government, by and large, cares more about protecting itself from embarrassment than solving its problems. Permalink | Comments | Email This Story

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Representative Jason Chaffetz, fresh off his bombshell report on the OPM hacking, is promising to drop another explosive report in the future. This one will deal with law enforcement's dirty little secret -- one that's not that much of a secret anymore. The Stingray, a controversial cellphone tracking device used by the U.S. government and law enforcement, will be the subject of a forthcoming investigation from the House Oversight Committee, according to Committee Chairman Jason Chaffetz (R-Utah). "You will be shocked at what the federal government is doing to collect your personal information," Chaffetz said on Wednesday morning. "And they can't keep it secure, that's the point." It's a good point, one fresh in the mind of millions thanks to the just-delivered OPM report. The government appears willing to take security seriously if it means doling out tax dollars to dozens of agencies with cyberstars in their eyes and crafting bad legislation, but not so much when it comes to actually ensuring its own backyard is locked down. Chaffetz was one of the legislators behind the 2015 attempt to turn the DOJ's Stingray guidance into law, laying down a warrant requirement for US law enforcement. Unfortunately, the bill went nowhere. Presumably, a thorough investigation into law enforcement use of this repurposed war tech might prompt more legislative cooperation in the future. Chaffetz has done little to endear himself to security and law enforcement agencies since his arrival on the Hill. In addition to the failed Stingray warrant bill, Chaffetz also partnered with Ron Wyden to attempt to add a warrant requirement for law enforcement GPS tracking -- something the Supreme Court almost addressed in its US v. Jones decision. He also made new friends with the Secret Service while grilling officials over an incident where drunken agents arrived on the scene of a "suspicious package" report in spectacular fashion, crashing the vehicle they were driving into a White House barricade. Almost as soon as the hearing had begun, Secret Service employees were accessing Chaffetz's personal info (generated by his attempt to join the Secret Service in 2003), hoping to find something embarrassing they could use to discredit him. This new report will further alienate law enforcement agencies and personnel, starting with the FBI -- which has acted as Stingray Overlord since the introduction of the equipment -- and trickling all the way down to the local level, where agencies have relied on secrecy, lies, and case dismissals to keep information about the cell phone-tracking devices from being made public. Permalink | Comments | Email This Story

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It's football season again, which means some significant portion of America is routinely spending some significant chunk of its weekends watching some significant portion of male college students give some significant portion of each other irreparable brain damage. It's an American thing, I suppose. Also, an American thing is the acquisition of overly broad trademarks that border on the laughable. Intersecting these two bastions of American pride is Boise State, with a recent NY Times article discussing how the school managed to trademark athletic fields that include grass that is blue, with attorneys working with the school suggesting that any non-green colored field might result in trademark action. For those not inclined towards watching college football, a quick piece of background. Several decades ago, the folks that run Boise State University didn't want to pay to resod their football field. So, instead, the school laid down blue turf in its stadium. Now real-life football players play on this: Oy, it looks like the field has been cleansed with the blood of a hundred thousand smurfs. And, admittedly, the pure ugly of the field of play has become something of an icon for Boise State, gaining it national attention it might otherwise not receive, which translates into a recruiting tool for the school to lure players to its team. The school became so enamored with this attention that it sought to trademark simply having a field of athletic play that is blue, and was successful. To do this, the school hired an attorney that previously specialized in music licensing, because of course. That attorney's name is Rachael Bickerton, who both acquired the trademarks in question and now goes about enforcing them. Her first priority was to register Boise State's trademarks, including the one for the blue turf. To do that, the staff had to prove to the USPTO that when consumers thought "blue field", they thought of Boise State. To make the University's case, Bickerton submitted articles, travel guides and marketing materials -- 141 pieces of evidence in all. The trademark office rejected the application in 2008, citing a "lack of distinctiveness", but approved the second attempt one year later after Bickerton argued that the previous year, Boise State had spent $2.2 million on advertising that singled out the field. Now, we could sit around and argue whether or not having a blue football field was a thing fit to be trademarked. Personally, considering the specific color the school used, I could buy an argument that fans that see the field do indeed think of Boise State. I certainly do. But the school expanded the trademark in 2010 to fields not just blue, but fields that are "non-green." And that's crazy. Bradlee Frazer, an IP attorney working with the school, has stated that any non-green athletic field carries with it the risk of confusion pertaining to Boise State. He can say that all he wants, but such a stance likely wouldn't survive a challenge from another school. But those challenges have never come, mostly because Boise State is quite liberal with freely licensing the ability to have non-green fields to other schools. Boise State approves most requests "as long as it doesn't prevent Boise State from getting the best students and the best student-athletes that we're looking for," Bickerton said. Those schools that are approved receive the licenses at no cost. The only stipulation is that they cannot in any way liken themselves to Boise State. So, to be fair, the school isn't behaving particularly badly as far as these trademark stories tend to go. Which doesn't change the fact that such an overly broad trademark on non-green athletic fields is pure crazy-pants. So if you're watching college football this weekend and see a colored football field, just know that even in your weekend escape, intellectual property law haunts you. Permalink | Comments | Email This Story

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We've written quite a lot for years about the massive problems with "corporate sovereignty" provisions in trade agreements -- so-called "investor state dispute settlement" (ISDS) provisions -- that allow companies to "sue" countries for regulations they feel are unfair. These aren't heard by courts, but rather by "tribunals" chosen by the companies and the countries. Some supporters of these provisions claim that there's really nothing wrong with them because they help encourage both investment in different countries and more stable and fair regulations. If that's the case, though, why are over 200 economics and law professors signing a letter to Congress telling them to reject any trade agreements with these provisions? Through ISDS, the federal government gives foreign investors – and foreign investors alone – the ability to bypass that robust, nuanced, and democratically responsive legal framework. Foreign investors are able to frame questions of domestic constitutional and administrative law as treaty claims, and take those claims to a panel of private international arbitrators, circumventing local, state or federal domestic administrative bodies and courts. Freed from fundamental rules of domestic procedural and substantive law that would have otherwise governed their lawsuits against the government, foreign corporations can succeed in lawsuits before ISDS tribunals even when domestic law would have clearly led to the rejection of those companies’ claims. Corporations are even able to re-litigate cases they have already lost in domestic courts. It is ISDS arbitrators, not domestic courts, who are ultimately able to determine the bounds of proper administrative, legislative, and judicial conduct. This system undermines the important roles of our domestic and democratic institutions, threatens domestic sovereignty, and weakens the rule of law. In addition to these fundamental flaws that arise from a parallel and privileged set of legal rights and recourse for foreign economic actors, there are various flaws in the way ISDS proceedings are meant to be conducted in the TPP. In short, ISDS lacks many of the basic protections and procedures of the justice system normally available in a court of law. There are no mechanisms for domestic citizens or entities affected by ISDS cases to intervene in or meaningfully participate in the disputes; there is no appeals process and therefore no way of addressing errors of law or fact made in arbitral decisions; and there is no oversight or accountability of the private lawyers who serve as arbitrators, many of whom rotate between being arbitrators and bringing cases for corporations against governments. Codes of judicial conduct that bind the domestic judiciary do not apply to arbitrators in ISDS cases. The letter appears to have been organized by famed law professor Laurence Tribe and famed economist Joseph Stiglitz -- as an update to a very similar letter they sent last year -- with many fewer signatories. Many of the people who signed are really well-respected (including some I consider friends), but both Tribe and Stiglitz are fairly well-known for where they come from on the political spectrum -- and it would have been nice to have found equal weight from other parts of the political spectrum to balance this letter out a bit. It's still a good letter, and one whose message I agree with, but I fear that many in Congress will just dismiss it as "another Tribe/Stiglitz letter." That's too bad, because it really is a good letter.Permalink | Comments | Email This Story

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Nerd Harder is now available on hoodies, mugs & stickers » Though several of our Teespring offerings have been hits, none have quite matched the popularity of the original: Nerd Harder. But that was before we started experimenting with products beyond mere t-shirts, and so as part of our super-early holiday gear sale we've added options for hoodies for $35, mugs for $14 and stickers for $4 in black, gray and navy blue. So even if you already snagged a t-shirt the last time, it might be time to nerd even harder with some new gear. If you didn't — well, t-shirts are still available too. (And don't forget to check out our new Math Is Not A Crime gear, plus the other returning designs in our holiday sale!) Permalink | Comments | Email This Story

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As Dianne Feinstein and Richard Burr mount another attempt to legislate holes in encryption, national security officials are offering testimony suggesting this is no way to solve the perceived problem. Another encryption hearing, again hosted by a visibly irritated John McCain (this time the villain is Twitter), featured testimony from NSA Director Michael Rogers [PDF] and Undersecretary of Defense for Intelligence Marcel Lettre [PDF] -- neither of whom offered support for mandated backdoors. As nice as that sounds, the testimony wasn't so much "We support strong encryption," as it was "We support strong encryption*." Lettre's testimony follows statements of support for encryption -- and opposition to legislated backdoors or "golden keys" -- with the veiled suggestion that the government will be leaning heavily on tech companies to solve this problem for it. We need to strengthen our partnership with industry to find ways to protect against the national security threats to the United States. We will continue to work closely with our industry partners to find innovative ways to outmaneuver malicious actors' adoption of strong encryption, while ensuring that individual privacy interests are protected. The problem here is that encryption isn't so much a privacy issue as it is a security issue. Approaching it from this incorrect angle suggests Lettre isn't opposed to backdooring encryption as long as access isn't abused by the government. But that limitation isn't going to stop malicious actors from abusing backdoors or other security holes built at the government's behest. It could be that Lettre misspoke, but that misreading of the real issue casts doubt on the sincerity of the rest of that paragraph. I believe any steps we take as a government must be carefully considered to avoid introducing unintentional weaknesses in the protection of our commercial networks and national security systems. We should also be careful not to negatively affect our economic competitiveness as a world leader in technology, which could unintentionally drive technology innovation outside the United States. This isn't quite as supportive as it might look at first glance either. Lettre wants to protect "commercial networks" and "national security systems." This wouldn't appear to cover computers, cellphones, or other personal devices that utilize encryption to protect their contents. Nor does it appear Lettre wants to extend his "hands off" approach to communications platforms that offer end-to-end encryption. The NSA director's testimony is a bit better. There's far less hedging in Roger's statement than in Lettre's. Then again, it's far more vague in terms of the NSA's intentions. His statement poses more questions than answers (both figuratively and literally -- it ends with a "where do we go from here" question), but it does hint at being aligned with Lettre's suggestion that partnering with tech companies is a better solution than legislative mandates. However, in the NSA's case, its "partnerships" with tech companies often don't appear to include approaching them directly. If anything, the "way forward" is the way things have been done for years by the NSA's Tailored Access Operations. Why ask for mandated backdoors when you can just intercept hardware shipments to install your own? Or reroute server traffic with man-in-middle attacks that grab content before encryption is applied? While it is heartening to see natsec leaders refusing to back legislation pushed by Security Committee members, the fact is that there's still a powerful law enforcement lobby that can't be ignored -- one that begins with James "My god, it's full of darkness" Comey and runs all the way down to local-level district attorneys. These entities may not offer much vocal support for mandated backdoors and do actually realize the harm they'll cause, but as long as their own stuff stays relatively protected, they're not necessarily opposed to anything that makes it easier to access communications and data. Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
We've noted for years that one way incumbent broadband providers protect their duopoly kingdoms is by quite literally buying state laws that protect the status quo. These laws, passed in roughly twenty different states, prevent towns and cities from building their own broadband networks or in some instances from partnering with a private company like Google Fiber. Usually misleadingly presented by incumbent lobbyists and lawmakers as grounded in altruistic concern for taxpayer welfare, the laws are little more than pure protectionism designed to maintain the current level of broadband dysfunction -- for financial gain. Earlier this year, the FCC tried to use its Congressional mandate under the Communications Act to eliminate the restrictive portions of these laws in two states. But the FCC's effort was shot down as an overreach by the courts earlier this month, and the FCC has stated it has no intention of continuing the fight. That leaves the hope of ending these protectionist laws either in the hands of voters (most of whom don't have the slightest idea what's happening) or Congress (most of whom don't want the telecom campaign contributions to stop flowing). Undaunted, Representative Anna Eshoo this week introduced the Community Broadband Act of 2016 in the House, which is intended to be a companion bill to the existing bill of the same name already introduced in the Senate by Senators Cory Booker and Ron Wyden. Both bills would ban states from passing any law that prohibits a city, municipality or public utility from providing "advanced telecommunications capabilities" to state communities. In a statement, Eshoo expressed her displeasure at the ongoing efforts to thwart alternative broadband options:"I’m disappointed that a recent court ruling blocked the FCC’s efforts to allow local communities to decide for themselves how best to ensure that their residents have broadband access,” Eshoo said. “This legislation clears the way for local communities to make their own decisions instead of powerful special interests in state capitals." "Rather than restricting local communities in need of broadband, we should be empowering them to make the decisions they determine are in the best interests of their constituents. Too many Americans still lack access to quality, affordable broadband and community broadband projects are an important way to bring this critical service to more citizens."Which is all true, though both bills have virtually no chance at passing. Incumbent ISPs have been very successful in paying lawmakers to argue that any attempt to eliminate these protectionist laws is an "assault on states' rights," as argued by the likes of Marsha Blackburn. Of absolutely no concern to these critics is the fact that large companies are writing and buying the passage of state laws that ensure many states remain broadband backwaters solely to protect incumbent ISP revenues. On the bright side, the rise of alternative (though limited) options like Google Fiber -- and the FCC's fight -- have shined a very bright spotlight on a practice that has been ongoing for fifteen years with little to no public and press attention. As such, ISPs (and the politicians that love them) are having a much harder time than ever convincing locals that laws keeping them on expensive, sluggish broadband are in their collective best self-interest.Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
Dive into the world of microcomputers with the Complete Raspberry Pi 3 Starter Kit. For $120 (55% off), you will receive a Raspberry Pi 3 and a quick start kit which includes an 8 GB SD card with Raspbian OS pre-installed, power cord and various cables to get your Raspberry Pi 3 up and running in no time. You also gain access to 6 courses covering everything from how to automate your home to building robots to parallel programming and more to help you take full advantage of what the Raspberry Pi 3 is capable of. If you already have a Raspberry Pi 2, most of your accessories will work with the 3. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
As Techdirt noted in 2014, by agreeing to the "fast track" procedure for trade deals, Congress has essentially given up its power to change them. That's a two-edged sword. Although it makes the ratification process simpler, because things like TPP and TTIP must be accepted or rejected in their entirety, it also means that political bosses have no ability to tweak the text to make it more likely the deals will be ratified. That's coming back to bite one of the people who introduced the fast track bill, Senate Finance Committee Chairman Orrin Hatch. He has been trying for a while to get TPP to require the same 12 years' monopoly of drug safety data that the US provides for so-called "biologic drugs," in addition to the normal patent protection they enjoy. The final TPP text specifies eight years, and because of the fast track authority that he worked so hard to put in place, there is no way for Hatch to get the text changed now that it has been finalized. According to a report from Bloomberg, Hatch is apparently hoping that "binding side agreements" with the other TPP nations might do the trick, but there's a problem with that or any similar approach: Australia, New Zealand and Peru have all indicated at various points during the last six months that they will not change their positions concerning biologics and stand by the agreed-upon language contained in the TPP. "I don't know what they're going to offer, but they know I'm at 12 years of data exclusivity,” he said of the administration. "They're going to have to find a way of having the countries agree to change that formality in the TPP to 12 years or come up with something that will be acceptable." That's really pretty extraordinary. After nearly eight years of tough negotiations, concessions were made and a final text agreed by all the countries involved. And now Hatch says it's not good enough, that the US has some special right to ask for yet more, and that countries refusing to up their protection for biologics data to 12 years won't be part of the TPP deal. Understandably, some in those nations at risk of being thrown out of TPP are unhappy about this threat. For example, Dr. Patricia Ranald, Convener of the Australian Fair Trade and Investment Network, said: "The extra three years of monopoly [beyond current Australian regulations] in the current TPP text is already unacceptable. It is outrageous that the US is demanding an even greater increase from 8 to 12 years. We call on the Australian and other governments to reject this proposal." In fact, it's even worse than that. As we pointed out a year ago, granting any protection to the clinical trial data used to gain approval for biologics seriously undermines one of the fundamental principles of science: that basic facts cannot be owned, and that progress is made by building on the results of others. Hatch is right that the eight-year term of protection for biologics data in TPP is unacceptable, but he's wrong about what the right term would be: it's not 12 years, but zero. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
There's been a lot of buzz over respected computer security expert Bruce Schneier recently talking about how someone, or some organization, or (most likely) some state actor, is running a series of tests that appear to be probing for ways to take down the entire internet. Basically, a bunch of critical infrastructure providers have noticed some interesting attacks on their systems that look like they're probing to determine defenses. Recently, some of the major companies that provide the basic infrastructure that makes the Internet work have seen an increase in DDoS attacks against them. Moreover, they have seen a certain profile of attacks. These attacks are significantly larger than the ones they're used to seeing. They last longer. They're more sophisticated. And they look like probing. One week, the attack would start at a particular level of attack and slowly ramp up before stopping. The next week, it would start at that higher point and continue. And so on, along those lines, as if the attacker were looking for the exact point of failure. The attacks are also configured in such a way as to see what the company's total defenses are. There are many different ways to launch a DDoS attacks. The more attack vectors you employ simultaneously, the more different defenses the defender has to counter with. These companies are seeing more attacks using three or four different vectors. This means that the companies have to use everything they've got to defend themselves. They can't hold anything back. They're forced to demonstrate their defense capabilities for the attacker. This article is getting a collective "oh, shit, that's bad" kind of reaction from many online -- and that's about right. But, shouldn't it also be something of a call to action to build a better system? In many ways, it's still incredible that the internet actually works. There are still elements that feel held together by duct tape and handshake agreements. And while it's been surprisingly resilient, that doesn't mean that it needs to remain that way. Schneier notes that there's "nothing, really" that can be done about these tests -- and that's true in the short term. But it seems, to me, like it should be setting off alarm bells for people to rethink how the internet is built -- and to make things even more distributed and less subject to attacks on "critical infrastructure." People talk about how the internet was originally supposed to be designed to withstand a nuclear attack and keep working. But, the reality has always been that there are a few choke points. Seems like now would be a good time to start fixing things so that the choke points are no longer so critical.Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
We've noted for years now how Verizon's modus operandi is to promise uniform fiber deployment to a city or state in exchange for all manner of subsidies and tax breaks, then walk away giggling to itself with the job only partially complete. This story has played out time and time again thanks to city and state contracts struck behind closed doors without public transparency, allowing Verizon to bury numerous loopholes in the contract language. Other times, Verizon can lobby to weaken oversight so that there's simply nobody left to hold Verizon accountable when it decides to laugh off the contract requirements. In 2008, New York City Mayor Mike Bloomberg struck a closed-door deal with Verizon delivering all manner of tax breaks and incentives in exchange for what the city thought would be 100% deployment of Verizon's FiOS fiber optic service by 2014. Fast forward to last year, when the new city administration realized that Verizon had absolutely no intention of seriously deploying fiber uniformly across the city. This week, the city released the results of a survey it conducted that found that fiber is unsurprisingly still hard to come by:"The city recently sampled 52,000 addresses for Fios availability, and found that outer boroughs were more likely to have access than Manhattan. For instance, 90% of Staten Island residents could likely get Fios within seven days, while the same is true for just 19% of people in central Brooklyn and 11% in upper Manhattan. About two-thirds of the more than 300 public-housing developments, which are home to more than 400,000 people, have no access to Fios, the city says.Meanwhile, a letter from the city to the telco (pdf) complains that Verizon is in violation of at least three parts of the original agreement, failed repeatedly to deliver documentation requested during an audit of Verizon's progress, and cites at least 38,551 addresses where Verizon failed to deliver service despite order requests that are more than a year old. Verizon, as it is wont to do, tries to spin the narrative on its head by claiming that New York City is being "adversarial":"It is unfortunate and disappointing that the City is taking an adversarial approach to the only company that has challenged New York City’s cable monopolies,” Mr. McConville said. "The City should be working with Verizon to make choice available to more residents, not discouraging competition.”Except Cities have every right to be adversarial with a company that has shown repeatedly that it doesn't deliver on its promises. Verizon has tried to claim that grumpy landlords are to blame for its failure to deliver FiOS evenly across the city. And while landlords can play a role in delaying some installations, reporters have subsequently discovered that the excuse just doesn't hold water and Verizon's simply not doing the work. While it was a contract signed under a previous administration, New York City isn't blameless. Reporters at the time pointed out that the city's contract had ample loopholes and should have been negotiated in the full light of public transparency, but nobody listened. So while New York City says it's mulling a lawsuit against Verizon, that suit may run repeatedly into contract caveats carefully crafted by a company that never had any intention of uniform fiber deployment. The contract reflected this had anybody actually bothered to read it. The amusing (or annoying) thing is that cities keep making the same deals with the proverbial devil over and over again. Philadelphia recently complained that Verizon failed to meet its obligations there as well. And While Verizon's overall FiOS deployment has been frozen, the city just struck a similar deal with Boston -- with few if any in the press bothering to note the trail of frustration and broken promises trailing miles behind the telco and its lawyers.Permalink | Comments | Email This Story

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Generally speaking, taking cues from China on things like best ways to censor the internet... probably isn't the best idea. Yet, it appears that's exactly what the UK's big surveillance agency, GCHQ is doing. The "Director-General of Cyber" (that's a thing? yikes!) at GCHQ, Ciaran Martin, gave a speech at a cybersecurity summit in DC recently and announced exciting plans to censor the UK internet at a DNS level. No, really. Finally, we're exploring a flagship project on scaling up DNS filtering: what better way of providing automated defences at scale than by the major private providers effectively blocking their customers from coming into contact with known malware and bad addresses? Now it's crucial that all of these economy-wide initiatives are private sector led. The Government does not own or operate the Internet. Consumers must have a choice. Any DNS filtering would have to be opt out based. So addressing privacy concerns and citizen choice is hardwired into our programme. Of course, while the reasoning and sentiment may sound good, we've pointed out time and time again how DNS filtering, in particular is a really bad idea that actually does more harm than good for internet security. The internet works under the expectation that when you put in an address, the DNS system returns with info from the proper server. And, of course, once you start mucking with the DNS system for filtering out stuff that you consider to be "malware" or "bad addresses" you open it up to much worse. You also end up validating China's Great Firewall, since China just responds that their use of DNS filtering is also used to block "bad addresses." It's just that they have a different interpretation of what's "bad."Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
When it comes to the digital distribtion of video games, there are many animals in the ecosystem but only one real eight-hundred-pound gorilla. That, of course, is Steam, Valve's platform for a digital games marketplace. The fact that some insane percentage of online game purchases go through Steam is great news for Valve, of course, but it comes with challenges as well. There's a balancing act Steam must do, as it must ingratiate itself to both buyers of games and those who develop the games. One recent attempt to, according to Valve, make Steam game reviews more useful to the gaming community has developers concerned, however. And, even if we take Steam's claims to its reasoning for the change, the concern by game developers is entirely understandable and warranted. This whole thing has to do with how Steam is prioritizing game reviews that come from reviewers who bought the game directly from Steam, as opposed to applying download keys acquired elsewhere. Valve have again shaken up how the Steam store presents player reviews, this time adding new filtering options which, by default, don’t include reviews from people who got the game by activating a Steam key rather than buying direct from Steam. Valve say this is to prevent score inflation from devs throwing out free keys in exchange for reviews. That’s a noble goal, but the change also means discounting reviews from players who backed Kickstarters or bought the game direct from devs – groups likely to have genuine strong opinions – not to mention from other stores like Humble and Itch. Some devs are not best pleased. Now, Valve's claim that there is a problem with reviews that come from these other sources isn't completely wrong. Particularly in talking about reviews of games bought straight from a developer. Some in the games industry have brought this kind of skepticism on themselves by engaging in practices such as requiring positive game reviews from YouTubers to get access to the game, or having employees within a developer astroturf game reviews themselves. It's not particularly far-fetched to think that there are game developers out there handing out Steam keys to their games in exchange for positive reviews, whereas a purchase directly from Steam doesn't carry that kind of suspicion. But the problem with Steam's plan to tackle all of this is that the way gamers buy games is changing. Sources like Kickstarter and HumbleBundle can make up significant portions of a game's marketplace, and those buying through those sources are likely to have strong opinions on the games they backed. That's exactly the kind of review you want on a game's Steam page, but the new filters default to ignoring them. The new Steam Review policy will hurt. As a kickstarter dev, your most passionate fans are now silenced. — Kieron Kelly (@Kurnster) September 13, 2016 In the indie games industry, discounting reviews from the backers of Kickstarter projects has a significant impact. Hey look, half the reviews of TSWCE no longer count. And none of the people who backed The Council of Crows will be able to support it. — Jonas Kyratzes (@JonasKyratzes) September 13, 2016 And, of course, some are already claiming that Valve has instituted all of this in order to encourage more people to buy games directly from Steam if they ever want their reviews to be noticed. Or for more developers to push people to buy from Steam for the same reason. I doubt that's the case, actually, because a game that shows fewer reviews utlimately looks less popular and may turn off potential buyers, which would be the opposite of what Steam wants. Still, this look like another case of Valve taking a heavy-handed approach where more deft touch is required.Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
While Nintendo has been making waves for some time with its overly aggressive DMCA takedowns of any fan-work that includes its intellectual property, the company has really ramped things up lately. Recent actions include the takedown of a Mario fan game, a remake of a 25-year-old Metroid title, and engaging in all kinds of craziness over its Pokemon Go title. It was enough that one of Nintendo's biggest rivals couldn't help but take a subtle potshot at it, while simultaneously treating Sega fans like human beings. Daniel Coyle, on Twitter as SuperSonic68, headed up a team of Sonic the Hedgehog fans in the development of a fan-made 3D Sonic game. Their work has been received rather well as of late, including on gaming blogs and YouTube channels. When one YouTube channel, GameGrumps, did a "let's play" of the fan game, it appears that Sega noticed and reached out in the comments section with a poke at Nintendo's aggressive nature and some encouragement. This is the kind of thing we talk about a great deal around here: being human and awesome to your fans, while also understanding that not every use of your intellectual property is a threat. In fact, it can be a boon instead. This case is doubly so, with the fan-created work propelling more attention to the Sonic franchise as a whole by getting the brand into the gaming news bloodstream, while embracing fan creations builds up all kinds of goodwill towards Sega in general. This is how you do it. Where Nintendo is in the news for treating its fans poorly, Sega makes news for treating them well, which will encourage other Sega fans to create more fan-works, which will keep Sega's properties moving around the wider internet as a result. Sega’s latest dunk on their litigious competition shows a massive difference in how fan content is approached and I think they’ve got it right. Games Green Hill Paradise Act 2 like generate interest in properties and encourage passionate engagement with their franchise. They’ve even brought fans in to work on projects. Christian Whitehead, a long time fan, is now a programmer on Sonic Mania. This is how you build loyalty, instead of anger, amongst a fan-base. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
The Fourth Amendment contains an exception for "plain view:" evidence of criminal activity seen by law enforcement, whether it's through a cracked-open doorway, on a vehicle's seat, etc., can be seized and used without seeking a warrant. The government would also like to avail itself of a "plain hearing" exception, which it can use to salvage evidence of criminal activity in overheard conversations intercepted with a wiretap. The Ninth Circuit Court of Appeals agrees with the government's "plain hearing" theory, though not with its assertions on how far the exception should stretch. The FBI obtained a wiretap warrant for a number it believed belonged to the target of its drug investigation, Ignacio Escamilla. After listening to several conversations about drug dealing, the agents came to the conclusion that Escamilla wasn't actually using the phone number targeted by the wiretap. However, they felt the conversations they were overhearing were related to the Escamilla drug conspiracy they were investigating. So, they kept listening. These conversations -- which didn't include the target of the wiretap -- led to the arrest of Michael Carey, who pled guilty to drug charges while reserving the option to move to suppress the evidence. The lower court concluded that the government could use wiretap warrants to gather evidence against other individuals, even if they weren't actually targeted by the wiretap. This was the "plain hearing" holding. The Appeals Court agrees [PDF] to a certain extent. While the government is welcome to make use of some unrelated evidence it comes across while eavesdropping, it cannot simply continue to intercept conversations once it's established the target of the warrant is not actually using that phone number. In short, we see no reason to depart from principles requiring cessation of a wiretap once the government knows or reasonably should know that the person speaking on the tapped line is not involved in the target conspiracy. See Ramirez, 112 F.3d at 851–52. The government may use evidence obtained from a valid wiretap “[p]rior to the officers’ discovery of [a] factual mistake” that causes or should cause them to realize that they are listening to phone calls “erroneously included within the terms of the” wiretap order. Cf. Garrison, 480 U.S. at 87–88. And once the officers know or should know they are listening to conversations outside the scope of the wiretap order, they must discontinue monitoring the wiretap until they secure a new wiretap order, if possible. However, this conclusion doesn't automatically result in suppression of the recorded evidence. The Appeals Court notes that the defendant and the government are diametrically opposed on the admissibility of the evidence. It is unclear how much of the government’s wiretap evidence may fall outside of the “plain hearing” doctrine. Because the parties staked out polarized positions before the district court—the government arguing for all wiretap evidence, Carey for none of it—and because the district court adopted the government’s position in denying the motion to suppress, the record lacks the findings necessary to determine what evidence was admissible against Carey. We vacate the district court’s order denying the motion to suppress and remand on an open record to determine what evidence is admissible against Carey under the legal framework set forth above. So, we can add "plain hearing" and "plain sight" to the "plain smell" exception used by far too many law enforcement officers to begin fishing expeditions and wander outside the confines of the Supreme Court's Rodriguez decision. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
This is not a surprise given the earlier leaks of what the EU Commission was cooking up for a copyright reform package, but the end result is here and it's a complete disaster for everyone. And I do mean everyone. Some will argue that it's a gift to Hollywood and legacy copyright interests -- and there's an argument that that's the case. But the reality is that this proposal is so bad that it will end up doing massive harm to everyone. It will clearly harm independent creators and the innovative platforms that they rely on. And, because those platforms have become so important to even the legacy entertainment industry, it will harm them too. And, worst of all, it will harm the public greatly. It's difficult to see how this proposal will benefit anyone, other than maybe some lawyers. Not surprisingly, the EU Commission is playing up the fact that this package does knock down some geoblocking in setting up more of a "single market" for digital content, but after Hollywood started freaking out about it, that proposal got watered down so much that plenty of content will still be geo-blocked. And there's so much other stuff in here that's just really, really bad. As expected, it includes a ridiculous ancillary copyright scheme, which should really just be called the "Google tax" for linking to copyright-covered content. The proposal does away with the liability limitations for platforms, effectively requiring any tech platform that allows user-generated/user-uploaded content to build or license their very own ContentID system. This is ridiculous. If the idea was to punish Google, this will do the opposite. Basically no startup will be able to afford this, and it will just lock in platforms like YouTube as the only option for content creators wishing to upload video. Protecting intermediary liability has been shown, time and time again, to enable new innovation and also to enable greater creativity and free speech -- and the EU Commission basically just tossed it in the garbage because some Hollywood interests think (incorrectly) that internet companies "abuse" the protections. The EU Commission barely hides the fact that they're doing this to try to protect legacy industries while punishing innovative ones: The Copyright Directive aims to reinforce the position of right holders to negotiate and be remunerated for the online exploitation of their content on video-sharing platforms such as YouTube or Dailymotion. Such platforms will have an obligation to deploy effective means such as technology to automatically detect songs or audiovisual works which right holders have identified and agreed with the platforms either to authorise or remove. Newspapers, magazines and other press publications have benefited from the shift from print to digital and online services like social media and news aggregators. It has led to broader audiences, but it has also impacted advertising revenue and made the licensing and enforcement of the rights in these publications increasingly difficult.The Commission proposes to introduce a new related right for publishers, similar to the right that already exists under EU law for film producers, record (phonogram) producers and other players in the creative industries like broadcasters. The new right recognises the important role press publishers play in investing in and creating quality journalistic content, which is essential for citizens' access to knowledge in our democratic societies. As they will be legally recognised as right holders for the very first time they will be in a better position when they negotiate the use of their content with online services using or enabling access to it, and better able to fight piracy. This approach will give all players a clear legal framework when licensing content for digital uses, and help the development of innovative business models for the benefit of consumers. The proposal also includes a new "exception" for text and data mining -- which sounds like it could be a good thing, but even it was designed in a manner to "protect" legacy publishers, and which will seriously harm smaller innovators and researchers. The exception is only limited to those engaging in scientific research, meaning that any other kind of research that involves data mining is at risk in the EU. Basically, the EU just gave away that entire important and growing innovative industry. Almost all of the major work in AI and machine learning these days involves data mining, and the EU just told all those companies to go find a new home. Just looking around at various European-based organizations, they're pretty much agreed that this is a complete disaster. Here's Communia, saying "this is not how you fix copyright." Today’s proposal buries the hope for a more modern, technologically neutral and flexible copyright framework that the Commission had hinted at in its initial plans for the Digital Single Market. The proposal largely ignores crucial changes to copyright that would have benefitted consumers, users, educators, startups, and cultural heritage institutions. It also abandons the idea of a digital single market that allows all Europeans the same rights to access knowledge and culture. Finally, it completely ignores the importance of protecting and expanding the public domain. And here's EDRi, saying that the proposal "fails at every level." The European Commission has proposed a Copyright Directive that could not conceivably be worse. The text that was launched today includes a proposal to potentially filter all uploads to the Internet in Europe. The draft text would destroy users’ rights and legal certainty for European hosting companies. The new Directive’s proposal for a new 20-year “ancillary” copyright for “news” outlets repeats painful mistakes made in Germany and Spain, which hurt publishers and Internet users alike. “We need a copyright reform to make Europe fit for the 21st century. We now have a proposal that is poison for European’s free speech, poison for European business and poison for creativity”, said Joe McNamee, Executive Director of European Digital Rights. “It could not conceivably be worse.” And here's EU Parliament member Marietje Schaake, noting how wrong this approach is: It lacks ambition and instead reads like a defence of old business models. We need a real copyright revolution instead. Publishers might have legitimate concerns about their decreasing revenues, but a retrograde reform of copyright law is not the solution. So the EU Commission has taken the exact wrong approach. It's one that's almost entirely about looking backwards and "protecting" old ways of doing business, rather than looking forward, and looking at what benefits the public, creators and innovators the most. If this proposal actually gets traction, it will be a complete disaster for the EU innovative community. Hopefully, Europeans speak out, vocally, about what a complete disaster this would be.Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
Prenda Law's Paul Hansmeier, infamous for constantly scheming about ways to use the judicial process to shakedown people for money, and pompously overstating his own position (e.g., "welcome to the big leagues") has now lost his license to practice law. The order from the Minnesota Supreme Court rather matter-of-factly lays out the claims against Hansmeier (amazingly, he seems to get off lightly given how much other stuff he did): Hansmeier committed misconduct in the first matter by bringing a lawsuit for the sole purpose of conducting discovery to find the identity of others against whom claims could be made, making misrepresentations to the tribunal, filing articles of termination for a corporation that contained false statements. failing to comply with discovery requests, failing to pay attorney fees assessed against him, and transferring funds out of his law firm in order to avoid paying sanctions. In a second matter, Hansmeier committed misconduct by participating in the initiation of a lawsuit without a basis in law and fact, making false and misleading statements to the court, failing to pay attorney fees assessed against him by the court, and submitting to the court a financial statement that was false, misleading, and deceptive. In a third matter, Hansmeier committed misconduct by bringing a frivolous action for an improper purpose. And in a fourth matter, Hansmeier committed misconduct by testifying falsely during a deposition, bringing a frivolous claim, and perpetrating a fraud upon the court. To be honest, I'm fairly impressed that they were able to compress so many of Hansmeier's actions down into a single paragraph like that. It usually takes me half a dozen paragraphs to explain what he did (and even that doesn't cover it). But the end result here is bye bye to that law license: Respondent Paul Robert Hansmeier is indefinitely suspended from the practice of law, effective 14 days from the date of this order, with no right to petition for reinstatement for 4 years from the effective date of his suspension. Of course, when we last checked in with Hansmeier he was aggressively filing questionable ADA lawsuits, basically shaking down small retail stores for any possible violation of the ADA he could find. I'm guessing that's going to need to stop -- but I do wonder if he'll find someone else to keep doing the legal work on that kind of scam. Anyway, Hansmeier has now had his assets liquidated in bankruptcy and his law license taken away. What's next? Well, last we'd heard, it sounded like criminal charges were getting closer, so perhaps he has that to look forward to as well. Welcome to the big leagues.Permalink | Comments | Email This Story

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Right, so remember how over the weekend the spineless execs at Univision decided to delete six articles from various Gawker properties? The reasoning made very little sense. The company claimed that since it had only agreed to acquire the assets of Gawker, but none of the liabilities, it felt that it needed to delete the six articles that were part of existing lawsuits (they also changed an image in one that was the subject of a copyright dispute). As we (and basically everyone else) pointed out, this was ridiculous on multiple levels. First, due to the single publication rule, any liability likely would be only for that initial publication. But, more importantly, the lawsuits in question were all pretty obviously bogus. Univision has been trying to go into damage control mode, including a long interview with JK Trotter at Gizmodo, answering a bunch of questions from angry Gawker reporters. Univision continues to stand by the line that this was solely and 100% about the terms of the transaction, in which they were not acquiring any liabilities, no matter how ridiculous those liabilities might be. They insisted there was no editorial analysis or First Amendment analysis -- it was just about the liabilities. Gawker's reporters are still not happy and have apparently discussed the possibility of a walkout. They've also directly posted their unhappiness about the decision. But Timothy Burke at Deadspin (one of the former Gawker properties) took things one step further. Somewhat brilliantly, he's written a brand new article about the latest happenings in a lawsuit involving former Major League Baseball pitcher Mitch Williams. If you don't know, two of the articles that were taken down were about Williams, and he had sued Gawker over them. Of course, the court had already tossed out the claims against Gawker, since the statements made in the earlier Deadspin articles were all either substantially true or protected opinion. But the overall case continues. Williams is suing MLB Network, which fired him after Deadspin's original posts. So, in this new article about the lawsuit against MLB Network, Burke uses the opportunity to effectively repost every bit of content that was taken down by Univision management. And this is why it's clever: he's not just reposting it, but reposting it from the lawsuit. For example: According to the lawsuit, Deadspin posted a follow-up article five days later titled “Witnesses: Mitch Williams Called Child ‘A Pussy,’ Ordered Beanball.” Here is that article as presented in Williams’s complaint (a transcribed version appears beneath it for readability): You can go to that article to see the images and the transcription, if you'd like. Now, normally being too clever on something like this could backfire. Courts, especially, dislike people trying to game the system in this manner. But here, this is a pretty savvy move. After all, the statements in the article have already been declared protected speech and not defamatory. And Univision insists that it would actually defend reporters on any new stories. So, if there was a lawsuit over this new article (which seems unlikely anyway) it would be an opportunity to test Univision management on whether or not they'd really stand up for these kinds of stories. Now, let's see if the other Gawker properties who had those other stories taken down figure out ways to do something similar...Permalink | Comments | Email This Story

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The $29 Very Big Hadoop and Apache Big Data Training Bundle will help you learn about the Hadoop ecosystem and how to use it to master Big Data. Hadoop is an open source software framework used for storing data of any type. It has huge processing power, can handle a high number of tasks, and is capable of running applications on a group of hardware. The 10 courses will introduce you to Hadoop, Apache Pig, MapReduce, and more. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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While it's certainly possible Russia has been busy using hackers to meddle in (or at least stoke the idiot pyres burning beneath) the U.S. elections, we've noted how actual evidence of this is hard to come by. At the moment, most of this evidence consists of either comments by anonymous government officials, or murky proclamations from security firms that have everything to gain financially from stoking cybersecurity tensions. Of course, transparent evidence is hard to come by when talking about hackers capable of false flag operations while obfuscating their footprints completely. Granted that hasn't stopped people from demanding a cyber or real world attack on Russia, both idiotic ideas for what should be obvious reasons. But with no hard evidence forthcoming, those looking for perceived justice are apparently getting a little punchy. The Washington Post notes that the government continues to conduct an investigation into the DNC hacks, but the whole "obtaining actual evidence before doing anything stupid" thing is clearly frustrating the 1980's action movie sect of the intelligence community:"The White House’s and some Cabinet officials’ insistence on awaiting the probe’s results has frustrated some officials at the FBI, the Justice Department and within the intelligence community, who favor holding Moscow accountable. The White House’s continued requests for more evidence, said one official, is “to delay — purposely delay” a public attribution." Again, it's not like you're going to find a goddamned memo linking Russia to the DNC hacks, and any hacker worth his or her salt isn't going to leave evidence of the hack or their ties to a nation state. There's also the ongoing reality that the leading country when it comes to nation state hacking has generally been the United States, making any vocal moral repudiation kind of laughable. Still, that doesn't seem to be stopping folks like Senator Ben Sasse, who insists that we should just skip the whole actual evidence thing and proceed to lambasting Russia for doing what the United States has done for decades:"Sen. Ben Sasse (R-Neb.), a member of the Homeland Security committee, said President Obama should publicly name Russia and do so before the November election. A failure to do so will only encourage further cyber intrusions and meddling in the U.S. election, he said. “If the Obama administration has a reason for not clearly attributing these hacks to Russia, it contradicts their own cyber strategy,” Sasse said. “If they’re silent because it would invite response, that suggests that we’re operating from a position of weakness — in other words, we know that we need to aggressively deter cyberattacks, but we are too vulnerable to do it. Neither scenario is reassuring."But again, what good is publicly shaming Russia for hacking when you've spent decades doing the same thing -- or worse? The only net outcome is you wind up looking like a giant, blithering hypocrite to the global community. The entire article stumbles on like this, quoting various officials on and off the record demanding we do everything from impose sanctions to start leaking Putin's dirty laundry:"The National Security Agency, for instance, could disrupt a Russian computer system in a way that leaves no doubt who did it and that warns the Russians “to knock it off,” one former intelligence official said. Or the CIA could leak documents that are embarrassing in some way to Russian President Vladi­mir Putin."Attack! Attack! Who needs evidence? Who needs the moral high ground? Generally, the press-driven public dialogue on cybersecurity and intelligence is so far from what's actually happening in the wild (as intelligence whistleblowers illustrate every few years) that one really should treat press reports on the subject as creative fiction. Combine that with the way nationalism leads to hypocrisy and the fact that most of these "former intelligence officials" don't even know what a gigabyte is, and you've got a recipe for keystone-cops-esque high comedy. Again, none of this is to suggest that Russia isn't hacking the United States. But to ignore that all nation states are hacking each other all the time is myopic, and suggesting the DNC attack constitutes some rare breach of international ethics is hysterically naive given what we know about the States' own hacking attacks. The real danger here remains the threat of false flag hacking attacks and misinformation campaigns designed to prompt countries to dramatic action without substantive proof. The smarter path is to focus this energy on securing, upgrading and patching government systems to protect against intrusion, even though that's certainly a lot less fun than starting a new world war just because you think hard evidence is for sissies.Permalink | Comments | Email This Story

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Last week, we wrote about a terrible copyright ruling from the Court of Justice of the EU, which basically says that any for-profit entity that links to infringing material can be held liable for direct infringement, as the "for-profit" nature of the work is seen as evidence that they knew or should have known the work was infringing. We discussed the problems with this standard in our post, and there's been a lot of commentary on what this will mean for Europe -- with a variety of viewpoints being expressed. One really interesting set of concerns comes from Egon Willighagen, from Maastricht University, noting what a total and complete mess this is going to be for scientists, who rarely consider the copyright status of various data as databases they rely on are built up: Now, realize that in many European Commission funded projects, with multiple partners, sharing IP is non-trivial, ownership even less (just think about why traditional publishers require you to reassign copyright to them! BTW, never do that!), etc, etc. A lot of funding actually goes to small and medium sized companies, who are really not waiting for more complex law, nor more administrative work. A second realization is that few scientists understand or want to understand copyright law. The result is hundreds of scholarly databases which do not define who owns the data, nor under what conditions you are allowed to reuse it, or share, or reshare, or modify. Yet scientists do. So, not only do these database often not specify the copyright/license/waiver (CLW) information, the certainly don't really tell you how they populated their database. E.g. how much they copied from other websites, under the assumption that knowledge is free. Sadly, database content is not. Often you don't even need wonder about it, as it is evident or even proudly said they used data from another database. Did they ask permission for that? Can you easily look that up? Because you are now only allowed to link to that database until you figured out if they data, because of the above quoted argument. And believe me, that is not cheap. Combine that, and you have this recipe for disaster. A recipe for disaster indeed. This is, of course, not the first time we've noted the problems of intellectual property in the science world. From various journals locking up research to the rise of patents scaring off researchers from sharing data, intellectual property keeps getting in the way of science, rather than supporting it. And that's extremely unfortunate. I mean, after all, in the US specifically, the Constitution specifically says that copyrights and patents are supposed to be about "promoting the progress of science and the useful arts." Over and over again, though, we see that the law has been twisted and distorted and extended and expanded in such a way that is designed to protect a very narrow set of interests, at the expense of many others, including the public who would benefit from greater sharing and collaboration and open flow of data among scientific researchers. Having the CJEU make things worse in Europe isn't going to help Europe compete -- and, unfortunately, it does not look like those in Europe looking to update its copyright laws understand any of this yet.Permalink | Comments | Email This Story

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Roughly every month or so I'll see a story proclaiming that cord cutting is a bad idea because you need to subscribe to multiple services to mirror the same overall volume of content you receive from pay TV. There are a few problems with that logic, first being that cord cutters aren't looking to precisely duplicate cable TV. They're looking to get away from paying a small fortune for hundreds of unwatched channels, including an ocean of religious programming, infomercials, whatever the Weather Channel is up to these days, and C-grade channels focused on inherently inane prattle. Writers of these pieces always seem to forget that broadcasters dictate the pricing of content on both platforms, so any surprise that the pricing of television remains somewhat high (when you pile on multiple streaming services) is just kind of silly. All told, "cord cutting is really expensive when I subscribe to every streaming service in the known universe" is just a weird narrative that just keeps bubbling up across various media outlets despite not really making much sense. The latest example is a recent piece over at Gizmodo by Matt Novak that proudly proclaims that "cord cutting isn't a bargain any more" when you sign up for a pile of different streaming services:"So, let’s see, if you pay for Hulu Plus (which is now just Hulu, since they’re dropping their free tier) that sets you back about $8 per month. And if you go subscription free that’s $12 per month. And Netflix is another $10. And HBO Now is another $15. And obviously you’re going to get the new commercial free CBS, so that’s $10 per month. What are we up to? About $47 before tax? And then you toss on your high-speed internet bill, which you’re probably paying to the cable company anyway. Yeah, this whole cordcutter thing sounds like it liberated consumers alright, doesn’t it? So............................................. ¯\_(ツ)_/¯"And that's it. Pretty much Gizmodo's entire argument is that because the author had to pay $47 for four streaming services, cord cutting isn't a bargain and can't be taken seriously. But compared to traditional cable, that's not really a bad deal. Novak also appears to ignore that countless people save a significant amount of money when they decide to trim back their programming lineup or cut the cord entirely. As such, it was entertaining to watch users over at Reddit quickly and repeatedly point out how much money they've saved by moving on from traditional cable:And it's worth pointing out that these consumers are still saving money despite every effort by the broadcast and cable industry to make cord cutting as difficult as possible, whether that's via restrictive licensing agreements, lawsuits intended to deter innovation, or the use of usage caps to otherwise penalize users who try and leave the legacy TV pasture. The entire point of cord cutting is the flexibility to mix and match various services to craft the precise lineup of content you want, something the cable industry continues to pay empty lip service to via "skinny bundles" saddled with obnoxious fees and caveats. The cable industry has a long, proud history of advertising one rate, then socking consumers with a significantly higher bill thanks to hardware rental costs and various other fees. That's something correctly pointed out by Jared Newman, who apparently found Gizmodo's narrative as tiring as I did:"Cable TV might seem cheap when you first sign up, but that’s only because you’re getting a short-term promotional deal, and the advertised price rarely factors in hardware rental and other hidden costs, such as regional sports fees and broadcast retransmission fees. Keeping your payments down requires constant vigilance, and you’ll never actually pay the advertised rate anyway."There's also a weird tendency among TV beat writers to act as if piracy doesn't exist just because it's not formally sanctioned by the United Nations or Homeland Security as a legal and accepted way to obtain content. But reality doesn't work that way. You don't get to magically eliminate discussing piracy as an avenue for consumer cost savings when discussing the pay TV landscape just because it's naughty. Many cord cutters pirate because the cable industry refuses to give them the flexibility and pricing they want. That doesn't somehow mean piracy isn't a legitimate competitor for consumer affections and shouldn't be discussed when analyzing cost savings. If there's a problem with the streaming model, it's one that Gizmodo almost accidentally stumbles into. Namely that broadcaster licensing has increasingly fractured streaming content availability, forcing users to hunt and peck between multiple services to find the content they're looking for, something that's only going to increase as broadcasters exclusively offer their own content via their own services. That's incredibly confusing for the consumer, especially given the frequency with which content disappears as licensing periods expire. Ultimately this confusion will only make piracy more attractive. And yes, consumers in the future will likely have to pay even more as more and more ISPs turn to usage caps to simultaneously cash in on a lack of competition while protecting legacy TV revenues. But that's not somehow the fault of cord cutting as a concept. Cord cutting may not be for everybody (especially sports viewers), but it's a very organic response to an aggressively inflexible pay TV sector that absolutely refuses to compete on price despite the obvious writing on the wall. So yes, ¯\_(ツ)_/¯ indeed.Permalink | Comments | Email This Story

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The Guardian has published a long report detailing Senate staffer Daniel Jones' experience with the CIA while acting as the Senate Committee's chief investigator during the compilation of the "Torture Report." While much has already been written about the CIA's actions during this time, the Guardian's multi-part piece gives the public an insider's look at the effort the agency went through to disrupt the preparation of the report. The process started off on the wrong foot. It was the New York Times, not the agency itself, that initiated the Senate's examination of the CIA's counterterrorism efforts. In November 2005, a senior CIA official named Jose Rodriguez destroyed 92 videotapes depicting the brutal 2002 interrogations of two detainees, Abu Zubaydah and Abdel Rahim Nashiri. Rodriguez’s tapes destruction remained a secret to his congressional overseers for two years, until a 6 December 2007 New York Times article revealed it; they barely even knew the CIA taped interrogations at all. Daniel Jones spent the next five years digging through any documentation he could pry from the CIA's hands and slowly came to the conclusion the agency had lied to everyone -- including two consecutive presidents -- about its interrogation practices. One document contained crucial information that proved Jones' conclusion: the Panetta Review. But the CIA didn't want to hand it over. The Senate's agreement with the CIA meant that the agency controlled access to the documents in its possession -- documents it provided extremely limited access to. Jones worked in a single room set up by the CIA for examination of documents and it only dropped files into the shared drive Jones could access if it felt like it. It also removed files periodically without warning or explanation. In March 2010 Jones and his colleagues started noticing that they had difficulty accessing documents they knew they already had. Simple search terms weren’t retrieving certain records anymore. “We noticed they were gone right away,” Jones said. It would have been easy to disappear documents, even in substantial amounts. The agency had provided millions of pages. The only way it could have happened was for the agency to have removed the information from a computer network the CIA set up for the Senate that Jones did not know the agency could access When asked about this, the CIA first blamed the tech team it had hired to set up the system used by the CIA to provide access to Senate staffers. Then it blamed the White House. Finally, it took a look at itself in a closed, opaque investigation and managed to come to the conclusion that the CIA itself was to blame for the missing documents. This was still early on in the process and was on top of other pre-existing headaches. The DOJ's decision to open its own investigation of torture allegations should have been good news, but instead, it just created more problems for Jones and the Senate Subcommittee. Typically, when the justice department and congressional inquiries coincide, the two will communicate in order to deconflict their tasks and their access. In the case of the dual torture investigations, it should have been easy: Durham’s team accessed CIA documents in the exact same building that Jones’s team did. But every effort Jones made to talk with Durham failed. “Even later, he refused to meet with us,” Jones said. [...] The lack of communication had serious consequences. Without Durham specifying who at CIA he did and did not need to interview, Jones could interview no one, as the CIA would not make available for congressional interview people potentially subject to criminal penalty. Jones could not even get Durham to confirm which agency officials prosecutors had no interest in interviewing. The 6,700-page report was finished by the end of 2012. By mid-2013, the CIA was already disputing the content and the conclusions reached by the Senate investigation while still stonewalling on declassification. Jones, who had uncovered a wealth of lies delivered to the Bush administration, was somewhat surprised to see the current head of the CIA (John Brennan) continuing the CIA tradition with President Obama, delivering briefings to him that contradicted the contents of the Senate report, but agreed with the CIA's internal investigation: the so-called "Panetta Review." Having observed this, Jones decided to break the rules the CIA had set down for Senate staffers. Inside the small room in Virginia the CIA had set up for the Senate investigators, Jones reached for his canvas messenger bag. He slipped crucial printed-out passages of what he called the Panetta Review into the bag and secured its lock. Sometime after 1am, Jones walked out, carrying his bag as he always did, and neglecting to tell the agency security personnel what it contained. After years of working together, no one asked him to open the bag. Jones didn't leak the document. Nor did he just hand it over to the Senate Subcommittee. Instead, he placed it in the Subcommittee's safe to ensure the CIA didn't control the only copies of the Panetta Review. It was a move that needed to be made. The CIA had zero interest in releasing the documents and, shortly after the Torture Report's release, it somehow managed to "accidentally" destroy the agency's only copy of it. Jones' removal of the review led to the CIA and Senate demanding criminal investigations of the other party and the eventual punishment of one person involved in the investigation: staffer Alissa Strazak, the other lead investigator during the compilation of the report. She found her promotion to General Counsel of the US Army blocked by senators critical of the report's findings. The DOJ never filed any charges. The FBI won't even read the report. And the CIA has emerged pretty much unscathed and possibly looking forward to having a new president to lie to in 2017. (Although if it's Trump, it may not have to lie quite as frequently…) Permalink | Comments | Email This Story

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