We were a bit surprised that Prenda Law's Paul Duffy actually filed a bond to cover the amount that Judge Otis Wright ordered Team Prenda to pay in legal fees for their shenanigans. To date, Team Prenda seems to go out of its way to play games and to avoid doing what the court is actually asking, so it seemed like a bit of a departure to see them actually file a bond (if a few days late, and with some protest). But, apparently, we should never underestimate Prenda's game-playing. The lawyer opposing them, Morgan Pietz, has responded to the bond asking the court not to accept it until a variety of changes are made, and which highlights the type of petty activity that Prenda is well known for engaging in. The most brazen, perhaps, is the fact that Duffy made the bond be in the name of "John Doe" for the unidentified client, but Pietz points out that, given that's not the Doe's real name, it's possible that they may get a check that can't be cashed. That's the kind of thing that has Prenda's name written all over it -- doing something that pretends to be helpful, when inside they're laughing about the "trick" they pulled on people. That's not all. Duffy, in his filing, had said that Pietz had not been cooperative in having a "meet and confer" to agree on what the bond amount should be. But Pietz tells a very different story, and provides the email evidence. The first undersigned counsel heard about a bond, or payment, from any Prenda party (with the exception of Mr. Gibbs; his motions will be addressed by separate response) was on Monday May 20, 2013, when Paul Duffy sent a short email on the subject, offering to post a bond in the amount of 125% of the amount awarded in the Sanctions Order. Undersigned counsel dutifully responded later that day (to all parties), outlining a number of concerns about the amount and conditions that should attach to a supersedeas bond, reiterating concerns raised in the appellate response papers regarding no stay of the non-monetary aspects of this Court’s order, and requesting that Prenda respond with their views on the substantive topics raised. Exhibit 1. On May 21, 2013, this Court issued an Order Denying Ex parte Application for Stay of Enforcement ; Order to Show Cause Re Attorney’s-Fee Award. ECF No. 164. The next day, after close of business on May 22, 2013, still not having heard anything regarding payment or a bond, undersigned counsel again emailed all Prenda parties in another attempt to meet and confer regarding appeal bond details. Exhibit 1. In response to the May 22 query attempting to spur further discussion on the several points raised by undersigned counsel previously on the bond issue, Mr. Duffy wrote back “You had no substantive points. If you think of some and can articulate them coherently I would be glad to consider them. Thanks for thinking of me.” Id. Shortly after receiving Mr. Duffy’s foregoing email, undersigned counsel pointed out to everyone that such a response was not very helpful, and invited the rest of the Prenda parties to respond in substantive fashion. Nobody did. Mr. Duffy, however, did write the whole group one more time, in nonsensical and vaguely threatening fashion, to indicate that has apparently made a conscious decision to send undersigned counsel’s email messages to the SPAM folder. Exhibit 1 In case you can't look at the exhibit, the email that Duffy wrote back to Pietz -- which was clearly not an automated response -- was the following: Thanks for your message Sir/Madam! Unfortunately, due to your inappropriate language and messages, which are within the access of my young children, I must place you in my "spam" filter. Unfortunately, I delete such messages daily without reading them. I wish you a speedy recovery, and make it a GREAT day! Among the other problems with the bond, is that only Duffy has signed onto it, and as Pietz points out, since there are many different parties, each appealing separately, it's not at all clear as to what happens if some are exonerated, while others are found guilty. And, of course, Pietz argues that the amount is way too low, because it should take into account the likely cost of the appeal as well. Oh, and Pietz also wants it to be clear that Team Prenda can't get out of paying the bond by declaring bankruptcy. Basically, it looks like Team Prenda simply can't resist playing its games -- once again, seeming to think that it's so much smarter than everyone else, that it can run verbal rings around those exposing their efforts. Update: And... Judge Wright has just basically agreed with Pietz, conditionally granting the bond, but only if Duffy makes a bunch of changes to deal with the claims that Pietz brought up, and also says they need to add another bond for $135,933.66, to get the total up to $237,583.66 which is the amount Pietz argued was proper given the circumstances.Permalink | Comments | Email This Story
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There's been plenty of talk about how social media -- and specifically tools like Twitter and Facebook -- have been useful in organizing various protests around the world, but it's interesting to see how other popular tools are being used as well. For example, with the huge protests in Turkey, some of the protesters are using IndieGogo to finance a full-page ad in the NY Times to tell their story to the world. And it worked. Within a day, they'd raised the amount and it's continued to rise since then (and there are still weeks left). The NY Times has already accepted the ad as well. This strikes me as fascinating on a number of levels, because crowdfunding is just a different kind of platform -- and while most people just focus on its uses for buying products -- one of the key features is how it actually builds a community around the project in question. And, as such, you can see how it can also be such a powerful tool for building further community and support around a political campaign of sorts.Permalink | Comments | Email This Story
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President Obama's incredibly weak response to the revelations this week of widespread data collection of pretty much everything by the NSA is to say that he "welcomes" the debate. But, of course, he hasn't actually welcomed the debate at all, because people have tried to bring that debate to him for years, and he's brushed them off: When it comes to surveillance, Obama has as president shown no sign of really wanting to have a robust debate. For years, Sens. Ron Wyden (D-Ore.), Mark Udall (D-Colo.) and former Sen. Russ Feingold (D-Wis.) have been pleading with the administration to disclose more information about call-tracking tactics that they suggested would shock many Americans. The administration largely rebuffed those calls. Only after the leak Wednesday of a four-page “top secret” court order indicating that millions of Americans’ phone calls were tracked on a daily basis did officials begin to confirm the program’s details. But Obama could have chosen at any time to disclose the data-sifting program, or even its rough outlines. That fact leaves critics unimpressed with his latest round of let’s-talk-it-over. In other words, he's not "welcoming" the debate at all. The debate is happening with or without him, and when he had the chance to "welcome" the debate, he didn't. Now, it appears, he's trying to appear willing "to talk" about something that's now gone way beyond the stage where "welcoming the debate" is sufficient. If anything, his helps explain why over-aggressive secrecy is such a stupid government policy. If they had been open about this and there had been public discussions earlier, and people were free to express their concerns, and the government could explain its position, then the discussion would have been different, and more interesting. But having all this information denied by government officials for years, only to come out via a leak just looks so much worse.Permalink | Comments | Email This Story
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Well, this is getting interesting. Anonymous has now leaked some NSA documents about PRISM and related programs. You can see the documents over here and a slightly hyperbolic, but not unexpected, statement about the leak. The documents don't appear to have anything that surprising or revealing beyond what people expected -- and many appear to be fairly old. However, just the fact that such documents are being leaked is interesting, as it's almost certain that more will be coming (and perhaps quite soon) about all of this government surveillance. And it's no longer a case where people are just sitting around and accepting what the government is doing.Permalink | Comments | Email This Story
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One of the points we've made throughout this discussion on the revelations around widespread NSA surveillance is that if you had been paying attention, none of this should have come as a surprise. It's just the confirmation of the exact issues that people raised. In 2007, when Congress passed the "Protect America Act," some people quickly pointed out that it massively expanded warrantless surveillance with little oversight: But the hastily-enacted legislation, dubbed the Protect America Act, does more than permit the interception of foreign-to-foreign communications. It permits warrantless surveillance "directed at a person reasonably believed to be located outside of the United States." There is no language specifically restricting surveillance activities to communications originating outside of the United States. And then, a year later, we got the FISA Amendments Act (FAA), which raised more concerns: In passing the FISA Amendments Act, Congress gave the executive branch the power to order Google, AT&T and Yahoo to forward to the government all e-mails, phone calls and text messages where one party to the conversation is thought to be overseas. President Bush signed the bill into law Thursday morning, describing it as a bill that "protect[s] the liberties of our citizens while maintaining the vital flow of intelligence." Of course, last year, the FAA was up for renewal and we spent a lot of time discussing how folks in the House and the Senate (1) pretended that it only applied to foreign calls (when it clearly did not) and then (2) ignored Senators Wyden and Udall, who repeatedly made it clear that the law was being abused in this way, and asked others in Congress to demand a full and public accountability. And, of course, the nefariousness here is not a partisan issue. Both of the laws above were signed by President Bush, and while President Obama campaigned on the fact that he would end such practices, we can safely say that that never happened. So, while it's good that people are now realizing just how widespread the spying is, perhaps next time, when the same group of folks raise the alarm at these bills, they shouldn't be ignored or brushed off to the side as "oh you guys again..."Permalink | Comments | Email This Story
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We've already talked about James Clapper, the Director of National Intelligence choosing weasel words to pretend they're saying that they weren't spying on Americans when they really were, and now some are arguing that the tech companies are doing the same exact thing. All of the tech companies listed have been denying their involvement, but again, the words are being chosen carefully, and there's a reasonable argument that they're denying certain specific claims while really side-stepping the bigger issue. Comparing denials from tech companies, a clear pattern emerges: Apple denied ever hearing of the program and notes they “do not provide any government agency with direct access to our servers and any agency requesting customer data must get a court order;” Facebook claimed they “do not provide any government organisation with direct access to Facebook servers;” Google said it “does not have a ‘back door’ for the government to access private user data”; And Yahoo said they “do not provide the government with direct access to our servers, systems, or network.” Most also note that they only release user information as the law compels them to. But the PRISM program’s reported access to data and the now repeatedly confirmed widespread access to phone records and other types of digital data appears to be almost exactly what the 2008 Protect America Act (PAA) allows Foreign Intelligence Surveillance Act (FISA) courts to compel tech companies to do — as many warned around the time of its passage. If tech companies are not providing direct access to their servers but are cooperating with the PRISM program, that leaves at least one other option: Companies are providing intelligence agencies with copies of their data. Note the fine distinction. Giving the NSA a clone of their data wouldn't be giving them "access to our servers." It would be giving copies to the NSA... and then the NSA could "access" its own servers. And you were wondering why the NSA needed so much space in Utah. If they're basically running a replica of every major big tech company datacenter, it suddenly makes a bit more sense. Of course, at this point there's no evidence that this is necessarily the case -- and some are insisting that the denials are legit, and that the Washington Post's story is not entirely accurate. But... the wording here is extra careful, and the government's report really does seem to indicate that these companies are deeply involved. By the way, if you'd like to dig in on annotating the various tech companies' denials, someone put them all up at RapGenius, the site for annotating text (not just rap songs).Permalink | Comments | Email This Story
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So, Verizon has finally come out with a statement about the fact that they're handing over all data on every call anyone on its network makes to the government. And the response is just as ridiculous as you'd expect: You may have seen stories in the news about a top secret order Verizon allegedly received to produce certain calling information to the U.S. government. We have no comment on the accuracy of The Guardian newspaper story or the documents reference, but a few items in these stores are important. The alleged court order that The Guardian published on its website contains language that: compels Verizon to respond; forbids Verizon from revealing the order's existence; and excludes from production the "content of any communication . . . or the name, address, or financial information of a subscriber or customer." Verizon continually takes steps to safeguard its customers' privacy. Nevertheless, the law authorizes the federal courts to order a company to provide information in certain circumstances, and if Verizon were to receive such an order, we would be required to comply. Let's parse that a bit. First, to "not comment" on it is ridiculous. This is the same issue I had with the government pretending that leaked Wikileaks documents had never leaked. It's not reality-based. In the business world, if you sign a non-disclosure agreement, it only applies to information that remains private. If the same information becomes public through other means, it's recognized that the non-disclosure agreement no longer applies. Because that's living in reality. Pretending you can't comment on the document is not reality-based. Second, the claim that "Verizon continually takes steps to safeguard its customers' privacy" is completely meaningless when they're handing every bit of that data over to the government. Third, the idea that this order "excludes" information like someone's name is pretty silly. Don't you think that the federal government might have a giant database, in the form of a basic phone book that lets them look up the name associated with each number? But, most importantly, this whole claim that Verizon is compelled to obey is silly and ignores some of the history. When the government asks you to break the law, you have the right to say no. And here's the big thing: even if this is legal today, that only came about because various telcos worked with the government on broad lawbreaking in the past, only to have the government paper that over with new laws that made such things "legal" and included retroactive immunity. And, really, that's all that Verizon really cares about (and you'll note they don't mention it): that they have no liability for coughing up everyone's information.Permalink | Comments | Email This Story
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So we already wrote a bit about how Director of National Intelligence James Clapper was using weasel words or outright lying, in trying to insist that the NSA wasn't actually gathering up data on pretty much every American. However, his statements go even further into the ridiculous. In his initial statement, even the title is combative: DNI Statement on Recent Unauthorized Disclosures of Classified Information Notice the focus is not on the unauthorized disclosure of widespread NSA surveillance, but rather "disclosure of classified information." So he's already priming the pump for the "real" villain: the press who are reporting on this. The unauthorized disclosure of a top secret U.S. court document threatens potentially long-lasting and irreversible harm to our ability to identify and respond to the many threats facing our nation. We've heard that before, and it's ridiculous on multiple levels. First, most would-be terrorists are likely to assume that the government is monitoring all of this stuff anyway, because there have been plenty of hints in the past. So, it's not really that likely that this sudden "revelation" is going to lead some massive change in how bad people communicate. But, more importantly, even if monitoring certain terrorists was so key to dealing with threats, that still doesn't matter. The DNI's job is not "stop threats by any means necessary." Because that's crazy. While it might help government respond to illegal activity, that doesn't mean that we give up our 4th Amendment rights, nor does it mean we need such broad, all-encompassing orders. Such things could easily have been done using a specific, targeted warrant, seeking information on a specific individual. That is, they could have done targeting which would have been useful, but they chose not to, and instead demanded all data. But, of course, he doubles down at the end on how awful it is that people are talking about this (not that the NSA has access to so much data on everybody): Discussing programs like this publicly will have an impact on the behavior of our adversaries and make it more difficult for us to understand their intentions. Basically "hey everybody, shut up and stop confirming what everyone knew already: that the US spied on lots and lots of stuff." Also, this appears to be a government official telling everyone to not exercise their 1st Amendment rights to complain about the NSA violating their 4th Amendment rights. The Constitution is crying in the corner.Permalink | Comments | Email This Story
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This shouldn't be a surprise to anyone, but the NSA's spying on Verizon call logs were not, of course, limited to just Verizon. The WSJ has confirmed that AT&T and Sprint are both under similar orders. That article also says that a number of internet firms and credit card companies are participating as well. And, of course, as the story gets bigger and bigger, we're now getting quotes from ex-government officials saying that even they are surprised at how comprehensive the surveillance appears to be. “It looks from what I’ve seen to be larger than anything I thought we were doing,” says Paul Rosenzweig, author of a recent book, Cyber Warfare. Rosenzweig should know. As a former acting assistant secretary at the Department of Homeland Security, he was one of those people given the kind of Top Secret / Sensitive Compartmented Information clearances needed to work on any project as sensitive as this. But, he says, “I wasn’t read in on this.” I heard the same basic thing from another ex-government official, who didn't want to be named, who had some knowledge of these kinds of programs back at the beginning in the 2008/2009 timeframe -- saying that if what's being said is true, the program has greatly expanded from where it originated.Permalink | Comments | Email This Story
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Well, well. In the aftermath of the revelations that the NSA is getting records of every phone call from Verizon, followed up by the news that most of the biggest tech companies are supposedly giving direct access to the NSA, the intelligence community is responding the same way it always does: with weasel words. First up, you can see Director of National Intelligence James Clapper's statement about the spying, which we'll be discussing again in a bit. But, a bunch of folks have been reasonably pointing out that Clapper appears to have lied to Congress. Of course, it's not like this wasn't easily called. Two years ago, we wrote about Clapper's answers to Senators Wyden and Udall, which we pointed out was a ridiculous answer that was clearly sidestepping the real questions. However, looking over that letter again now, and having become a bit more familiar with the weasel words the NSA likes to use, it's easy to look at Clapper's statement and explain why he can "stand by it" while the clear implication of it was the opposite of what he meant. You asked whether communications of Americans have been collected… Section 702 of the FAA [FISA Amendments Act] explicitly prohibits the intentional targeting of persons reasonably believed to be located in the United States or United States persons located abroad. The Intelligence Community has put in place a variety of procedures, which have been approved by the FISA Court as required by law, to ensure that only persons reasonably believed to be located outside the United States are targeted and to prevent the intentional acquisition of any communications as to which the sender and all intended recipients are known to be located in the United States. Guidelines are also required by law to ensure compliance with other limitations on FAA collection, including the requirement that a U.S. person may not be intentionally targeted under section 702. If it is discovered that a target has entered the U.S. or is a U.S. person, he or she is promptly detargeted and reports are made as appropriate to the Department of Justice (DOJ), the Office of the Director of National Intelligence (ODNI) and the FISA Court. Moreover, when communications from persons located in the United States are collected because they are communicating with a lawful target, the privacy and civil liberty rights of U.S. persons are protected through the careful implementation of the procedures required under the FAA to ’minimize the acquisition and retention, and prohibit the dissemination“ of information about U.S. persons.’” Most people would read this to be him saying that they do not spy on Americans. And that's obviously what he's trying to imply. But that's not what he's actually saying. He's using the NSA's favorite weasel word: "target." Now, most people assume that means one of the people on the call must be outside the US. But, you could -- if you were devious intelligence official trying to mislead Congress and the American public (hypothetically) -- interpret the word "target" to mean "if we, in general are 'targeting' foreign threats, no matter what they might be like, and this information we're collecting might help in that process, then we can snarf up this data." In other words, most people think that "target" would mean one of the people on the phone. But, the NSA means "this overall investigation is about targeting foreign threats, so we can take whatever data we want because the goal is to stop foreign threats with it -- and therefore our mandate not to spy on Americans doesn't apply." So, it shouldn't be particularly surprising to see that the administration's "response" to this is to highlight, yet again, that this only "targets" non-US persons: Information collected through a U.S. government surveillance program that taps into the servers of internet companies targets only non-U.S. persons living outside the United States, a senior administration official said on Thursday. The U.S. law that allows the collection of data under this program does not allow the targeting of any U.S. citizen or of any person located in the United States, the official said, speaking on condition of anonymity. Right, but whether or not they're "targeting" a person, is separate from whether or not they're spying on the data of Americans. As long as it's all part of a process that "targets" non-US persons, they can claim that they're playing by the rules. Given that, however, I don't see how Clapper can reasonably standby the following statements: Wyden: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans? Clapper: No sir. Wyden: It does not? Clapper: Not wittingly. There are cases where they could, inadvertently perhaps, collect—but not wittingly. Clapper is insisting that he didn't lie in his comments, but he then pretends that he was only talking about email: What I said was, the NSA does not voyeuristically pore through U.S. citizens' e-mails. I stand by that. Except, that's not what he was asked, nor was it what he said. He was specifically asked if the NSA collects any type of data at all, and he said no. Up above, he was using weasel words, but here it looks like he was flat out lying directly to Congress. Usually, Congress doesn't like that.Permalink | Comments | Email This Story
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More bad news has arrived for consumers. The drugs don't work. Or, they don't work as well as they used to. Despite the exorbitant prices charged for new medications and despite the industry's claims that expensive R&D efforts are driving these prices up, the fact remains that newer drugs cost more and do less, riding a decades-long slide from peak potency. Research published on Monday showed that the effectiveness of new drugs, as measured by comparing the response of patients on those treatments to those taking a placebo, has plummeted since the 1970s... The new study in the journal Health Affairs examined 315 clinical trials that compared a drug to a placebo and were published in four of the world's top medical journals (BMJ, Journal of the American Medical Association, Lancet and New England Journal of Medicine) from 1966 to 2010. The drugs targeted the full range of human ills, from cardiovascular disease and infections to cancer, mental disorders and respiratory illness. In the early years, drugs easily beat the placebo: They were, on average, 4.5 times as effective, where effectiveness means how well they lowered blood pressure, vanquished tumors, lifted depression or did whatever else they were intended to. But the trend line was inexorably downhill, found Dr Mark Olfson of Columbia University and statistician Steven Marcus of the University of Pennsylvania. By the 1980s drugs were less than four times better; by the 1990s, twice as good, and by the 2000s just 36 percent better than a placebo. Since older drugs were much superior to placebo and newer ones only slightly so, that means older drugs were generally more effective than newer ones. If this disappointing (albeit somewhat unsurprising) news wasn't damaging enough for an industry many people have developed a healthy distrust for, the passing of the national healthcare plan will make it even worse. The law established an independent research institute to compare the effectiveness of different treatments for the same condition. That way, patients as well as private insurers and government programs such as Medicare can stop paying for less effective therapies. If the new analysis is correct, then "comparative effectiveness research" could conclude that older drugs, which are more likely to be generics, are better than pricey new brand names that deliver the most profits for drugmakers. Well, this part is good news for consumers, or at least beneficiaries of the new health plan. If the most effective drug is also the cheapest, everyone wins... almost. Pharmaceutical companies won't be happy, but this really is their own fault. They often tout the (often inflated) high dollar cost of R&D but fail to mention this outlay is routinely outweighed by marketing and administration costs. There are a few reasons effectiveness may have declined over the past forty years, not all of which are tied to self-interest and profit chasing. One possible factor is that the low-hanging fruit of the pharmaceutical world was plucked first, generating effective medications for simpler ailments. It also could be that those volunteering for clinical trials are increasingly people not having success with currently available drugs. Another factor mentioned in the article is the fact that the quality of clinical trials has increased over the years and the additional scrutiny to detail has narrowed the definition of success. Despite these factors, many scientists feel there is an underlying truth to the overall claim that older drugs just work better. While experts agree that tougher trials and similar factors explain some of the decline in drugs' reported effectiveness, "something real is going on here," said Olfson. "Physicians keep saying that many of the new things just aren't working as well," and therefore prescribe antidepressant drugs called tricyclics (developed in the 1950s) instead of SSRIs (from the 1980s), or diuretics (invented in the 1920s) for high blood pressure instead of newer anti-hypertensives. Then there's this: "The way the drug regulatory system is set up, even if you have just a small advance, if you market it right it can be very profitable," said [Dr. Aaron] Kesselheim. The profits-over-effectiveness factor cannot be denied. Marketing budgets routinely meet or exceed R&D budgets because they have to. Pharmaceutical companies are not nearly as interested in breakthrough medication as they are in pushing minor variations or incremental advances. [See also: this "Brain Candy" clip.] Without a ton of marketing, these interchangeable drugs will never find purchasers. From 2000-2007, 667 new drugs were approved by the FDA. Of those, only 75 (11%) were new molecules that were much better than what we already had. In fact, over 80% of all drugs approved were no better than what we already had. Those are "me-too" drugs. Why do the pharmaceutical companies spend so much on marketing? Because you have to really promote drugs that really have no benefit over others that already exist. You have to convince people to buy those. You know what needs no promotion? Awesome new drugs that save lives. When was the last time you saw a commercial for chemotherapy? For epinephrine? For steroids? Those drugs need no promotion - doctors just know to use them. But I bet all of you know about Nexium. Or Cialis. Taking this route has worked for years, at least in terms of profitability. There's no reason to change it now. The results of this research paint a rather unflattering picture of the pharmaceutical industry, but as usual, its representatives seem blithely unconcerned. The drug industry says it isn't worried. "Our sector is not concerned about objective, high-quality patient-centered comparative effectiveness research," said PhRMA's Burkholder. "We believe the substantial value of our products will continue to be demonstrated." Frankly, I'm inclined to believe that first sentence. The sector doesn't seem to care what research says about its new, expensive, ineffective drugs. It already has plenty of compliant doctors, paying customers and an exploitable patent system in its corner. That makes the second sentence extraneous. If the market's tied up, the industry doesn't really need to worry about demonstrating value. All it needs to do is maintain course. Permalink | Comments | Email This Story
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Online dating sites provide a vast amount of interesting data for researchers studying human behavior. These sites record how much people lie about themselves to try to impress others, and dating sites contain a wide variety of personal data that can be sliced and diced according to age, gender, income, education, interests, you-name-it. Here are just a few studies that have looked at digital dating databases for insights into the minds of people searching for soul mates and long walks on the beach. A study of 18 different dating sites, including eHarmony, Match, Plenty of Fish and Yahoo Personal, suggests that online daters are maybe slightly more successful at finding spouses than offline daters. The study also pointed out that there wasn't much difference between dating sites based on breakup rates, although some online dating sites had higher ratings for marriage satisfaction. (A+++ Would marry again!) [url] A meta-analysis for over 400 academic studies about online dating stated that about 25 million people use dating websites. The results of online dating aren't exactly conclusive, but with more and more people meeting mates with the help of websites, "online dating" is getting to be just like "dating". [url] About 81% of online daters misrepresent the facts about how tall, how heavy, or how old they are. Interestingly, people with online dating profiles are also more likely to admit to being fat than being conservative. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story
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Obviously, the Verizon/NSA situation was merely a small view into just how much spying the NSA is doing on everyone. And it seems to be spurring further leaks and disclosures. The latest, from the Washington Post, is that the NSA has direct data mining capabilities into the data held by nine of the biggest internet/tech companies: The technology companies, which participate knowingly in PRISM operations, include most of the dominant global players of Silicon Valley. They are listed on a roster that bears their logos in order of entry into the program: “Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple.” PalTalk, although much smaller, has hosted significant traffic during the Arab Spring and in the ongoing Syrian civil war. Dropbox , the cloud storage and synchronization service, is described as “coming soon.” This program, like the constant surveillance of phone records, began in 2007, though other programs predated it. They claim that they're not collecting all data, but it's not clear that makes a real difference: The PRISM program is not a dragnet, exactly. From inside a company’s data stream the NSA is capable of pulling out anything it likes, but under current rules the agency does not try to collect it all. Analysts who use the system from a Web portal at Fort Meade key in “selectors,” or search terms, that are designed to produce at least 51 percent confidence in a target’s “foreignness.” That is not a very stringent test. Training materials obtained by the Post instruct new analysts to submit accidentally collected U.S. content for a quarterly report, “but it’s nothing to worry about.” Even when the system works just as advertised, with no American singled out for targeting, the NSA routinely collects a great deal of American content. I expect we'll be seeing more such revelations before long.Permalink | Comments | Email This Story
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Senator Lindsey Graham made an interesting slip of the tongue recently, saying that he's not sure if bloggers deserve first amendment protection: "Who is a journalist is a question we need to ask ourselves," he said. "Is any blogger out there saying anything—do they deserve First Amendment protection? These are the issues of our times." Now, as many people will rightly point out, within the context it's pretty clear that he spoke imprecisely. He was discussing a potential shield law for journalists. He wasn't really suggesting that bloggers might not deserve any First Amendment rights. I'm pretty sure he'd agree that they do, in fact, have the right to free speech. Instead, he's referring to another part of the First Amendment, which guarantees freedom of the press. But, I'll argue that even in that context, the statement is really no less ridiculous. For years, Congress has debated a shield law for journalists, which basically allows them to protect their sources without legal liability. And each time it's debated, this issue comes up, with some in Congress seeking to carve out "new media," always using the same bogus rationale, arguing that if "bloggers" get shield law protection, then it means anyone can refuse to give up information on anyone else, by claiming to be a blogger. This is hyperbolic and untrue. As we've pointed out, there's a simple way to solve that problem: just make the shield law cover acts of journalism rather than target journalists. Many people may not be journalists by profession, but still, at times, perform journalism. And it's not that difficult to figure out which is which. Otherwise, you're carving out a special class of people in an arena in which people doing the exact same thing would face different rules. And the problems of trying to carve out "journalists" instead of acts of "journalism" become pretty clear, pretty quickly. The last time the shield law concept was being debated, Senators Chuck Schumer and Dianne Feinstein tried to add a carve out that made it clear that Wikileaks should not be protected by the law. And that should scare people. Because when the government can magically decide that this kind of journalism is protected, while that kind of journalism which embarrasses the government is not protected, then you no longer have freedom of the press. At all. So Senator Graham's question is quite ridiculous. The "Freedom of the press" needs to cover all acts of journalism, not just those who qualify as "journalists" under an amorphous standard, which is likely to be whether or not a court believes a certain publication is "legit" enough.Permalink | Comments | Email This Story
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Earlier today, we wrote about today's Congressional hearings about legalizing the unlocking of mobile phones. That post fretted about the unwillingness of Congress to take on the actual issue. The only reason that mobile phone unlocking is illegal today is because of a broken copyright law, specifically section 1201 of the DMCA, which isn't about copyright per se, but rather a bizarre, indirect way that entertainment industry lawyers think protects copyright by making technology illegal, and effectively gives those legacy industries veto power over technologies they don't like. So when Congress realizes how this is abused for reasons that have nothing to do with protecting copyrights, they should respond by fixing section 1201. But that's not what they're doing. What I hadn't seen when I wrote the earlier post is the way in which the IP subcommittee of the House Judiciary Committee framed the hearing today. However, the official memo from the committee outlining the hearing is actually an incredible statement, in which the committee basically claims (falsely!) that Congress does not have the power to fix section 1201! How could that be? They claim that our "international obligations" forbid this. Specifically, they point to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty as binding their hands in fixing 1201. The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty require countries that have acceded to the Treaties to “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures.”1 Enacted in 1998 as part of the Digital Millennium Copyright Act, Section 1201 (a)(1) of Title 17 implements these treaty obligations in the U.S. by prohibiting circumvention of a technological protection measure (TPM) that effectively controls access to a copyrighted work subject to one key exception. Every three years, the Register of Copyrights is directed by statute to conduct a rulemaking in which advocates for specific exemptions may petition for exemptions to the anticircumvention provisions for noninfringing uses subject to five factors. Since the enactment of this provision into U.S. law, the U.S. has entered into several Free Trade Agreements that require signatories (the U.S. and the particular country or region) to enact anti-circumvention provisions and set requirements on how exceptions to them can be created. Most such FTAs limit the duration of such exemptions to a three or four year period and require that they be administratively or legislatively created based upon a record of evidence. If you're even remotely aware of the history of the DMCA and the WIPO Copyright Treaty, you would know that this is first, an incredible rewriting of history, and second, a ridiculous and false direct claim from Congress that it has abdicated its sole authority in establishing copyright policy to the administration. First, a bit of history: In the early/mid 90s, the entertainment industry, fearing new internet technology, sought to pass the DMCA, with a specific focus on anti-circumvention rules, in the mistaken belief that strong DRM would protect their increasingly obsolete business models. However, Congress wouldn't pass such a law. So what did they do? They went to Geneva, and used the "international trade" venue to create a treaty that would then require the US to pass the DMCA if it wanted to sign onto the treaty. The key architect of the DMCA and this entire plan, Bruce Lehman, has admitted outright that he went to Geneva as a direct "end run around Congress" because they wouldn't pass the law the entertainment industry interests wanted. Just a few months ago, at a 15-year anniversary conference for the DMCA, Lehman had no problem directly admitting that he absolutely went to Geneva to deal with Congress' failure to pass the law. Now, we've pointed out that really fixing phone unlocking would likely violate international agreements. But, the point should really be that Congress should re-assess its sole authority over copyright policy. The Constitution gives Congress the power to set copyright policy, not the administration, which negotiates treaties. So it's not even clear if the USTR (a part of the administration) has the power to negotiate international copyright policy. But it's crazy to then think that this stops Congress from fixing a broken system. To have Congress itself say that it can't fix a clearly broken system, because of trade agreements that it did not negotiate or set is an incredible admission. It's fundamentally incorrect. Congress alone has the power to set copyright policy, and if that "violates" international agreements, that's a problem for the administration, not Congress. However, the fact that Congress is now claiming that it has given up its power, and clearly admits that it feels its hands are tied in actually fixing a very real problem that so many people are concerned about, because a few representatives of the Clinton administration, who have admitted directly that they were creating policy by routing around Congress to support their friends in the entertainment industry, should give everyone -- especially in Congress -- serious pause about supporting things like "intellectual property chapters" in new international agreements like the TPP and TAFTA. Both of those agreements will be setting significant aspects of copyright (and patent and trademark) policy -- without any input from the public, because they're being negotiated entirely in secret. However, the entertainment industry has full access to the documents. And here we have Congress saying -- incorrectly -- that whatever comes out of that process will bind their hands. That's crazy. Whether or not you think Congress should be taking on mobile phone unlocking or copyright reform or anything along those lines, I would hope that most people can agree that there's something wrong about a process in which corporate interests get to drive US policy in international agreements without any transparency or feedback from the public, and then Congress claims it can't fix the problems that those agreements create.Permalink | Comments | Email This Story
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Towards the end of my piece this morning about the administration's ridiculous response to the leaked evidence and confirmation that the NSA is scooping up every single phone record (confirmed from Verizon at least, though you can assume it applies to everyone else as well) was a quick note mentioning that Senator Dianne Feinstein was saying that this was a continuation of the same program that had been going on for seven years. And, now, lots of Senators are coming out and saying the same thing. In fact, it appears that our 100 Senators all knew that this has been going on for seven years without telling us: "Everyone's been aware of it for years, every member of the Senate," said Sen. Saxby Chambliss (Ga.), the ranking Republican on the Senate Intelligence Committee. Chambliss told reporters that the program has been going on for seven years under the auspices of the Foreign Intelligence Surveillance Act. He said he was not aware of a single citizen filing a complaint about it. I love that last bit. Yes, since no citizens "complained" about the totally secret program in which their private data was sucked up by the NSA, what's there to worry about? Senator Harry Reid's response is equally ridiculous, suggesting that everyone should calm down because this is nothing new: "Right now I think everyone should just calm down and understand that this isn't anything that's brand new -- it's been going on for 7 years," Reid said. Again, it's astounding how out of touch these people are. They're pretending that a secret program that went way, way, way beyond what most people believed was happening now being revealed is no big deal because they knew about it for seven years? Frankly, that makes the whole situation that much worse, because it means they supported it and did nothing to end it for seven years. I know that Senators Ron Wyden and Marc Udall have been trying to get this fact out to the public for years -- demanding that the NSA say how many Americans they were spying on. It was obvious that Wyden and Udall knew what was going on, but couldn't say anything since such information is "classified." But shame on every other Senator for not standing up against this. Some are arguing that they didn't know: "If you're on the intel committee, or if you're in leadership, you might have been briefed. I'm pretty good about attending meetings; I don't remember being briefed," said Sen. Johnny Isakson (R-Ga.). He said he voted for the FISA reauthorization and the Patriot Act but did not intend to grant authority to collect millions of phone records at a time. "I never voted intentionally for any bill that would grant blanket [authority] to just monitor every phone call," he said. But that's a lame excuse as well, because Senator Wyden spent an awful lot of time making this very point on the Senate floor, pointing out that very clearly that the NSA was using FISA to spy on tons of Americans (hinting strongly that it was all of them) and saying that the Senate shouldn't approve the reauthorization until the NSA told them how many people were being spied on. If Senator Isakson didn't pay attention to Senator Wyden ringing the alarm bell, that's his own fault.Permalink | Comments | Email This Story
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Overblocking is not a new problem -- over two years ago, Techdirt wrote about an instance where Homeland Security took down 84,000 innocent sites at a stroke -- so you might have thought that those employing this blunt instrument would take a little more care these days. However, things seem to be getting worse, not better. In Australia, the Australian Securities & Investments Commission (ASIC) has just scored a whopper: The largest number of sites censored when attempting to block one particular site ASIC believed was defrauding Australians was 250,000. Of these, ASIC said about 1000, or 0.4 per cent, were active sites. It said the 249,000 other sites hosted "no substantive content" or offered their domain name up for sale, rather than hosting a fully-fledged active site. I wonder how the ASIC established that 249,000 had "no substantive content". I can't believe it really checked all of them. And that's the big problem with overblocking: when huge numbers of sites get taken down by mistake, there's no way of telling what just fell off the Web, and what obscure but possibly important information is no longer available. At least ASIC realizes that its current ham-fisted approach isn't acceptable: ASIC told senate estimates in its opening statement that it was now examining how it could ensure only a site's specific domain name was blocked and ways it could alert the public to a site being blocked via a pop up page. It was also examining ways such a page could indicate why access was blocked and to whom queries could be made to dispute a block. That's good, but maybe it would have been better if it had explored those options before shutting down nearly a quarter of a million innocuous sites by mistake. Follow me @glynmoody on Twitter or identi.ca, and on Google+ Permalink | Comments | Email This Story
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The Dept. of Homeland Security has finally coughed up its Civil Rights/Civil Liberties Impact Assessment of its suspicionless electronic device searches performed at border crossings by ICE and CBP agents. It's been a long time coming. The DHS announced it would take a look at this policy's impact on civil liberties "within 120 days." That was back in 2009. The report was released (but not publically) in December of 2011. In February of this year, it finally published a two-page executive summary of its findings for the public's perusal. There wasn't much contained in the release, but what was included was disturbing enough. In its own estimation, the DHS felt it complied with the Fourth Amendment but went on to state that imposing a "reasonable suspicion" requirement for device searches would be "operationally harmful" without any "concomitant civil liberties benefit." In other words, the public wouldn't be appreciably better off if these searches didn't violate anyone's rights, but the DHS felt its agencies would be worse off if forced to respect them. The actual report has finally been pried loose, thanks to a FOIA request by the ACLU. There's a lot of information available in the report, including an explanation as to why the agency feels a "reasonable suspicion" threshold is "inadvisable." This is significant, the ACLU points out, as it's the first time the government has explained why it believes suspicionless searches "enhance" security. It begins with some familiar language and expands on that thought process a bit [A]dding a heightened [suspicion-based] threshold requirement could be operationally harmful without concomitant civil rights/civil liberties benefit. First, commonplace decisions to search electronic devices might be opened to litigation challenging the reasons for the search. In addition to interfering with a carefully constructed border security system, the litigation could directly undermine national security by requiring the government to produce sensitive investigative and national security information to justify some of the most critical searches. Even a policy change entirely unenforceable by courts might be problematic; we have been presented with some noteworthy CBP and ICE success stories based on hard-to-articulate intuitions or hunches based on officer experience and judgment. Under a reasonable suspicion requirement, officers might hesitate to search an individual's device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search. So, a CBP/ICE agent's hunch trumps a US citizen's rights. Rather than take the chance that someone dangerous might pass through its net, the agencies would prefer to be allowed to use "I've got a bad feeling about this" as justification for digging through not just someone's laptop, but anyone's laptop. The report supports the agencies' hunch-based investigative processes with anecdotal evidence but no real data. Any data actually produced comes from outside parties concerned about the First and Fourth Amendment rights of American citizens. The Constitution Project's recommendations for border policy reform are included with the freed documents and it concludes that suspicionless searches not only have a very low "hit rate," but that the policy itself, as it stands now without limitations, actually creates a burden for the CBP and ICE. Moreover, requiring reasonable suspicion to conduct a search of electronic devices would focus limited law enforcement resources where they can be most effective. Suspicionless searches are not well-suited to identifying and locating contraband or illegal material, as the CBP's own data show. In 2009, for example, only about 5% of the electronic devices searched at the border were seized as a result of the search. Put differently, in the vast majority of instances involving border searches of electronic devices, the traveler has had to needlessly withstand a significant intrusion into his or her privacy for no legitimate law enforcement purpose. This hit rate puts it right in the neighborhood of another rights-violating law enforcement tactic -- NYC's stop-and-frisk program. Lots of busywork but very little in the way of results. But this report is almost more about what it doesn't include than what it does. If you're looking for some in-depth discussion of the DHS' views on various civil liberties, you're going to be disappointed. Here's what greets readers when they reach the "Fourth Amendment" section. This continues for four straight pages. First Amendment? A page and a half of redacted text before this concluding sentence: The laptop border searches in the ICE and CBP policies do not violate travelers' First Amendment rights as defined by the courts. Interesting. Of course, the involved agencies don't really seem too concerned about any definitions provided by any court. If they did, they might have paid a bit more attention to a Supreme Court decision dealing directly with the Fourth Amendment. Even more problematic is the government's claim that the "hard-to-articulate" hunch of a border agent is enough for the government to scrounge around through our personal photos, medical and financial records, email, and whatever other sensitive information may be stored on our laptops and phones... As the Supreme Court explained in Terry v. Ohio, if law enforcement agents are allowed to intrude upon people's rights "based on nothing more substantial than inarticulate hunches," then "the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,' only in the discretion of the [government]." This evaporation process seems to be nearly complete in the so-called "Constitution-free zone" and things continue to get noticeably drier elsewhere. The DHS clearly believes that citizens' Constitutional rights end where its jurisdiction begins -- and unfortunately at this point in time, that's pretty much everywhere.Permalink | Comments | Email This Story
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Following the news that broke last night that the federal government was getting full records of all Verizon phone calls, the Obama administration is now trying to defend this move, by claiming they can break the law because terrorism is scary: But the Obama administration, while declining to comment on the specific order, said the practice was "a critical tool in protecting the nation from terrorist threats to the United States". Uh, that's really not the point. Under that standard, there is no Constitution. There are lots of things that could be very useful tools in stopping crime and attacks, but we don't allow them because they violate the public's rights. We don't allow the FBI to walk up and down the street, enter every house and search it for weapons, for example. While that might be a "critical tool" in stopping the use of those weapons, it's also incredibly unconstitutional on a whole variety of levels. Saying that it's okay to ignore the 4th Amendment entirely because there are terrorists out there is no excuse at all. And, of course, as we noted last night, there's nothing new about this. Already it's been confirmed that the order to Verizon was not a special case, but rather a "renewal of an ongoing practice." Senator Feinstein has admitted that this has been going on consistently for the past seven years, and this latest leak is just the "renewal" for another three months. And if anyone thinks that only Verizon got this order and has been doing this for the past seven years, you're not paying attention. As we've noted, we've had multiple whistleblowers who have flat out said that this was happening for years. Mark Klein, who worked at AT&T, revealed in 2006 that he'd helped hook up NSA machines to record all data flowing over the AT&T network. Meanwhile former NSA employee William Binney also blew the whistle on this activity from the NSA side. We've known all of this for years... and no one seemed to care until now. Even more incredible, is that the NSA has no problem directly lying about all of this. Because last week, before all of this came out, and before the Obama administration 'fessed up to using this "critical tool," General Keith Alexander, the head of the NSA, ridiculously claimed the following: "The great irony is we're the only ones not spying on the American people," he quipped. Just days after that was said, we have written proof that this claim is 100% false. So, now, what do we do about it?Permalink | Comments | Email This Story
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In the past, we've criticized Judge Randall Rader, the chief judge of the court of appeals for the federal circuit (CAFC), which, among other things, handles all appeals on patent cases, for being completely out of touch with the ways in which our patent system is broken. His statements seemed to indicate a complete lack of recognition for how patent trolling and bogus patent lawsuits were causing all sorts of trouble for innovation. So it's encouraging -- but surprising -- to see Judge Rader team up with professors Colleen Chien and David Hricik -- who have studied problems with patents and patent trolls -- to write a NY Times op-ed piece about the problems of patent trolls. Yes, the chief judge of the court that handles patent cases is now openly calling them trolls and complaining that they're a problem. This is good. The onslaught of litigation brought by “patent trolls” — who typically buy up a slew of patents, then sue anyone and everyone who might be using or selling the claimed inventions — has slowed the development of new products, increased costs for businesses and consumers, and clogged our judicial system. Their business plan is simple: trolls (intellectual-property lawyers use less evocative terms like “non-practicing entities” and “patent-assertion entities”) make money by threatening companies with expensive lawsuits and then using that cudgel, rather than the merits of a case, to extract a financial settlement. In the apt summary of President Obama, who on Tuesday announced a plan to stave off frivolous patent litigation, trolls just want to “hijack somebody else’s idea and see if they can extort some money.” What's interesting, is that the rest of the op-ed mainly focuses on the question of fee-shifting. As we've discussed, President Obama's patent plan includes plans to make it easier for those who bring bogus patent lawsuits to have to pay attorneys' fees, and there are already a few proposals in Congress that include similar provisions. But the op-ed points out that judges already have this power, and just don't use it very often. So, he's suggesting that judges "look more closely" at patent cases, to see if there's abuse by trolls, and if they ought to use Section 285 of the Patent Act. To make sure Section 285 is implemented with appropriate vigor, judges must look more closely for signs that a patent lawsuit was pursued primarily to take improper advantage of a defendant — that is, using the threat of litigation cost, rather than the merits of a claim, to bully a defendant into settling. One sign of potential abuse is when a single patent holder sues hundreds or thousands of users of a technology (who know little about the patent) rather than those who make it — or when a patent holder sues a slew of companies with a demand for a quick settlement at a fraction of the cost of defense, or refuses to stop pursuing settlements from product users even after a court has ruled against the patentee. Other indications of potential bullying include litigants who assert a patent claim when the rights to it have already been granted through license, or distort a patent claim far beyond its plain meaning and precedent for the apparent purpose of raising the legal costs of the defense. While this is an interesting point, I'm not sure it's really that relevant. First of all, Section 285 reads (in its entirety): The court in exceptional cases may award reasonable attorney fees to the prevailing party. But that's the thing: these kinds of trolling efforts are not "exceptional." They're increasingly the norm, as was noted in the very same op-ed. Also, you'd think that, as the chief judge on the court that handles all patent appeals, Judge Rader would have had a chance to not just do what he suggests judges should do... but to create a precedent for district courts to adhere to on that point, rather than just writing about it in the NY Times.Permalink | Comments | Email This Story
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Today in the House Judiciary Committee, they're holding hearings concerning cell phone unlocking, focused specifically on Rep. Goodlatte's proposed bill, which actually seems to be the weakest of all the proposed bills. It doesn't offer a permanent fix. It doesn't fully tackle the problem. Actually, it barely tackles the problem, and serves only to punt the issue down the road. That is, it would "repeal" the rejection of the exemption to the DMCA for cell phone unlocking by the Librarian of Congress (if you don't recall, the whole fight is because the DMCA ridiculously makes it illegal to circumvent "technology protection measures" even if the reason has nothing to do with infringing on someone's copyright, but every three years, the Librarian of Congress gets to issue "exemptions"), but would allow the Librarian of Congress to revisit the issue at the next triennial review. It does nothing to address the actual problem, which is a ridiculous and broken anti-circumvention clause, section 1201 of the Copyright Act. The hearing has four witnesses... and all are more or less lining up behind Goodlatte's weak bill, some for better reasons than others. A few others haven't been invited to speak, but have submitted written testimony as well. I'll cover the remarks of the four speakers going in order of "reasonable" to "ridiculous" followed by two of the interesting written submissions. First up, is testimony from George Slover of Consumer's Union. He highlights, correctly, how important mobile phone unlocking is for consumers, and points out that it's a demonstration of "the harm the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) are causing consumers." He also points out that this issue should be a reason to explore more deeply the role of the anti-circumvention provisions found in Section 1201. He does offer a qualified support for the bill, but lists out a bunch of other changes that he thinks really should be added to the bill, to further allow consumer freedom and innovation around unlocked phones to thrive. The basic rights of consumers is important, and Slover definitely highlights that. Next up, is testimony from Steven Berry from the Competitive Carriers Association, who have also been fighting hard to allow phone unlocking. There, the message is obvious. The competitive carriers provide greater innovation in terms of business models, service plans, etc., but much of that is enabled by allowing unlocking of phones, so users can switch from big network providers to a competitive carrier, without having to buy a new phone. This testimony focuses on the importance of unlocking specifically, and doesn't touch on the bigger issue of fixing the anti-circumvention provision. It's narrowly focused. Then we get to testimony from Mike Altschul from CTIA, which is basically the trade group for the big mobile carriers. Their argument is basically "hey, we let you unlock your phones if you ask, so there's no need for this exemption." It claims, ridiculously, that carriers need to "lock" their phones so they can provide subsidies to make phones cheaper. But that's clearly not true. Carriers that subsidize their phones also have contractual early termination fees, which solve the subsidy issue, so the claim that they need the locks to protect the subsidies makes no sense. They already have the ability to do so contractually -- and they use it. There's no need for them to rely on digital locks and a broken copyright law to further protect something they already have through contract. Furthermore, the argument that they already allow unlocking is simply not correct. They allow unlocking in certain situations, but not all, and people have run into issues such as when travelling abroad, and just wanting to put in a foreign sim card. And, finally on the spoken testimony, we come to testimony from Steve Metalitz. Metalitz is the MPAA and RIAA's go to guy for writing the laws they like in DC. ACTA, SOPA, TPP have his fingerprints all over them, and he's the epitome of an extreme maximalist. There's nothing about greater copyright protection that he finds problematic, and he always supports expansions. I have no idea why he's a witness at this panel, since he has nothing to do with phone unlocking, and while he has advocated for the MPAA/RIAA's extreme interests during DMCA exemption reviews, he officially took "no position" on cell phone unlocking. His testimony is basically a spirited, ridiculous, and flat-out misleading "defense" of Section 1201 and the anti-circumvention provisions of the DMCA, which he seems to credit as being the reason why we have any entertainment at all online today. He claims that 1201 is "one of the most critical provisions" and says that it, specifically, has been "critical" (he likes that word) to the entertainment industry embracing the online world. This is wrong. First, the industry was dragged kicking and screaming into the online world, not willingly. And the anti-circumvention provisions have been nearly entirely useless in protecting their works, nearly all of which are available DRM-free from unauthorized sources. On the music front, they've already ditched DRM, and others will likely follow. Metalitz then claims that 1201 is critical to the success of cloud computing, which is also wrong and ridiculous. It's wrong because what protects cloud computing is not copyright law, but good computer security. If cloud providers are hanging their hat on a copyright infringement claim if someone breaks into their network, they're doing it wrong. It's also ridiculous, because it tries to pretend that the tech industry is supportive of section 1201, when many find it quite problematic. After that, he points out that 1201 was such a good idea that "scores of other countries have followed." What he leaves out is that those "scores of other countries" were pressured by the US government, in large part because of international treaties that (oooh, look at that) were strongly "supported" by Metalitz. It's quite a feat to claim that other countries supported your idea when they did so under pressure from the US government, using points highlighted by the RIAA/MPAA's own representatives. When it came to written testimony, we'll highlight two key ones. First is from the Library Copyright Alliance, which says what really needed to be said: that section 1201 of the DMCA is ridiculous, broken and in need of real reform: Most significantly, the Section 1201 rulemaking is an exercise in legal theatre. All the parties to the rulemaking—those seeking an exemption, the rights holders, and the Copyright Office staff--acknowledge that it is unclear whether the rulemaking has any practical effect. This is because Section 1201(a)(1)(C) authorizes the Librarian of Congress to adopt exemptions to the Section 1201(a)(1)(A) prohibition on the act of circumventing a technological protection measure (TPM), but not to the Section 1201(a)(2) prohibition on the development and distribution of the technologies necessary to perform the circumvention. In other words, after receiving an exemption, a person might be legally permitted to perform the act of circumvention, but might have no lawful way of obtaining the technology necessary to perform that act. Similarly, all the parties understand that what occurs inside the hearing room has no connection to the world outside it. In the last three rulemaking cycles, LCA has joined with other groups in seeking exemptions for educators and students to circumvent the TPMs on DVDs for the purpose of making educational uses of film clips. The rights holders know that the uses we seek will not harm their market in any way. They also know that whether the exemption is granted or rejected will have absolutely no impact on the level of infringement. This is because the technology necessary to circumvent the TPMs on DVDs is widely available on the Internet and easy to use. Nonetheless, the rights holders reflexively oppose the exemption or seek to narrow it so that it would be unusable. As a result, the discussions in the rulemaking descend into hyper-technical issues such as the quality of video necessary for effective pedagogy in different kinds of courses. Moreover, in two rulemaking cycles, witnesses from the Motion Picture Association of America (MPAA) demonstrated how a person could camcord a film off of a high definition television. MPAA was attempting to show that a relatively high quality recording could be made without circumventing a technological protection measure. What it succeeded in proving, however, was the contradiction underlying its position. If one could obtain a high quality copy without circumvention, why use technological protection measures in the first place, and why should their circumvention be unlawful? Moreover, the MPAA was demonstrating how to camcord a film precisely at the same time it was asking Congress, state governments, and foreign legislatures to impose criminal penalties on camcording. There's more to it, but that's a good snippet. It's a shame that this more detailed view wasn't included as a part of the actual hearing. Similarly, we've got Derek Khanna's submission which he discussed here yesterday. Khanna's submission, alone among all of the testimony, actually delves into the details of what the actual problems are and how allowing people to actually own what they buy (what a concept!) is a good idea for consumers, for innovation and for business. It's fairly comprehensive, and again, his voice would have been quite a useful addition to the actual hearing. Banning technologies is an extreme step by government, a truly incredible reach of Federal power, and I would petition this body to be very careful in continuing to delegate the authority of what technologies to ban to a quasi-regulatory agent when, in these and many other circumstances, there is no compelling governmental interest. This legislation, as currently crafted, does not reflect the input of the White House, former FCC Chairman, FCC Commissioner, scholars or outside groups such as R Street and FreedomWorks. Our campaign was about actually solving this problem and restoring a free market. Minor changes to this legislation would ensure that H.R. 1123 actually solves the problem it intends to address by permanently legalizing unlocking and allowing for businesses to sell the technology to consumers. Overall, our contention is that given the enormous benefits that phone unlocking provides to the consumer, phone unlocking should be made permanently lawful for the consumer to use, industry to develop and marketers to sell. Hopefully, Congress will recognize that punting this and pretending there's nothing wrong with section 1201 is the wrong way to go, but given the situation, it doesn't seem like those in Congress are even open to considering that issue at this time.Permalink | Comments | Email This Story
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You'll of course remember Dan Brown as the author of The Da Vinci Code, a book based on a poorly researched work of non-fiction largely built on the fraudelant claims of anti-semite Pierre Plantard. I mention this only to remind anyone who forgot that you couldn't ride a bus, a train, or sneak past the office water cooler in the early part of the millenium without someone breathlessly rushing up to tell you how amazing the book was and how terrific a researcher Dan Brown had proved himself to be. Dan Brown's book and the book off which it was based have since been judged to be the sort of drivel normally reserved for terrifyingly hysterical conspiracy theory websites. History, it seems, does indeed tend to repeat itself. I'm speaking of an article to which Dementia alerts us. The entire thing is bizarre, honestly, from a report that Dan Brown may now be joining the punching bag of conspiracy theorists, the Freemasons, to his assertion that Freemasonry is not itself a religion. That last one seems to stretch the definition of religion entirely, considering the group has lodges (churches), rituals (sacred rites), and requires the belief in a supernatural deity (God), which all sound like religion to me. All that said, the article took an even stranger turn mid-prose, when Brown suddenly began railing against video games. "I think video games are very dangerous," he said. "The quantity of hours that people play these first person shooter games. It becomes a reality of some sort, and that's a part of it. It really comes down to educating schools and parents. To say 'you know what, you can;t play that, sorry, I'm just not going to let you do it'." Let's get the obvious out of the way: an exhaustive look at the research into the question of violence and its relation to video games should probably be labeled inconclusive, with a nod to a ton of research that says there is simply no link. I can't say for certain that Brown is simply shooting from the hip, here, without really researching what he's putting out for public consumption, but I will say that he's demonstrated the ability to do so with his books. If you think about his quote above, he's basically saying video games are dangerous because of the quantity of hours people play shooting games, which are violent, and suggests that people are getting lost in those games, embarking from reality. In other words, the games are dangerous because they fictitiously propel people into a world which doesn't actually exist, and gamers come out of that world changed into believing something or acting in a way they had not previously. Are you seeing the problem? One might have said that The Da Vinci Code, which wasn't lacking in violence, by the way, is dangerous for the exact same reason. People read that book and came out of it believing in a reality that didn't exist. So perhaps Brown wants to explain why it should be different for his own books?Permalink | Comments | Email This Story
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What's always been suspected has now been proven true: the NSA is indiscriminately harvesting the phone records of millions of Americans. Various whistleblowers have pointed out that the NSA's hunger for data has driven it to collect anything and everything it can, without having to submit to limitations placed on other agencies. Domestic surveillance is a full-time job for the NSA, and this order obtained by the Guardian spells it all out in unredacted black and white. The order... requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries. The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing... Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered. This order was granted by the secret FISA court, allowing the FBI to collect this data until July 19th, with another copy going to the NSA. This sort of thing isn't necessarily new or unusual (large scale data collection like this began during the Bush presidency, as Greenwald points out), but this particular request's scope is rather breathtaking. The unlimited nature of the records being handed over to the NSA is extremely unusual. Fisa court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets. This order has no target. It just wants everything. Every Verizon subscriber is included in the NSA's data dragnet. And while there's a lack of individual specificity in the data Verizon is ordered to produce, there are several ways the information collected can be manipulated and abused. The information is classed as "metadata", or transactional information, rather than communications, and so does not require individual warrants to access... While the order itself does not include either the contents of messages or the personal information of the subscriber of any particular cell number, its collection would allow the NSA to build easily a comprehensive picture of who any individual contacted, how and when, and possibly from where, retrospectively... Privacy advocates have long warned that allowing the government to collect and store unlimited "metadata" is a highly invasive form of surveillance of citizens' communications activities. Those records enable the government to know the identity of every person with whom an individual communicates electronically, how long they spoke, and their location at the time of the communication. A year ago, the NSA claimed it couldn't say how many Americans it had spied on illegally because doing so with violate the privacy of those it spied on. Now, we can make an estimate: 98.2 million Verizon customers as of Dec. 2012. And that's just Verizon. There's no reason to believe other carriers haven't received (and submitted to) similar orders and past events indicate the NSA has been spreading its net wide for several years. And, of course, thanks to a whistleblower literally showing up at the front door of the EFF, we know that AT&T has basically helped set up direct access for the NSA on its network in the past as well. The NSA, as part of a program secretly authorized by President Bush on 4 October 2001, implemented a bulk collection program of domestic telephone, internet and email records. A furore erupted in 2006 when USA Today reported that the NSA had "been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth" and was "using the data to analyze calling patterns in an effort to detect terrorist activity." With this document exposed, the NSA can no longer pretend (if it's even bothering to at this point) its data collection efforts are targeted. It long ago turned away from its original mandate -- foreign surveillance only -- and now appears to be harvesting vast amounts of data on US citizens simply because no one's going to stop it.Permalink | Comments | Email This Story
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Techdirt has been writing about investor-state dispute resolution (ISDR) mechanisms in international trade treaties like TPP and TAFTA/TTIP for two main reasons. First, because of the scale involved: ISDR allows companies to sue entire countries for huge sums, alleging loss of future profits. And secondly, because few seem aware of this growing threat to the national sovereignty of many countries around the world. That finally seems to be changing, with a number of articles warning about the dangers of ISDR appearing recently. For example, here's a report from the Transnational Institute looking at ISDR in the proposed free trade agreement between the EU and Canada (CETA): This briefing highlights the public debate around fracking; the interests of Canadian oil and gas companies in shale gas reserves in Europe; and the impacts an investment protection clause in the proposed CETA could have on governments’ ability to regulate or ban fracking. It examines the case study of the company Lone Pine Resources Inc. versus Canada, which, using a similar clause is challenging a fracking moratorium and suing the Canadian government for compensation, and warns this could be the state of things to come in Europe. It recommends that the investor-state dispute settlement mechanism should not be included in CETA. An article on the Huffington Post site considers ISDR in TPP: That agreement aims to secure a binding agreement among signatory countries for "trade" rules that would trump national laws in a wide range of areas, including rights to protect the health of the public. It could require countries to rescind national regulations, even laws that protect public health, in the face of claims that they restrict trade. An important post from Corporate Europe Observatory points out (as Techdirt did) that the leaked European Commission mandate for TAFTA/TTIP explicitly includes ISDR: Leaked draft versions of the EU negotiating mandate for a far-reaching free trade agreement with the US -- to be approved at next week's trade minister meeting (14 June) -- reveal the European Commission's plans to enshrine more powers for corporations in the deal. The proposal follows a persistent campaign by industry lobby groups and law firms to empower large companies to challenge regulations both at home and abroad if they affect their profits. As a result, EU member states could soon find domestic laws to protect the public interest challenged in secretive, offshore tribunals where national laws have no weight and politicians no powers to intervene. It goes on to give an excellent summary of how ISDR has already been used to sue governments around the world, and discusses the case of Chevron, and its single-minded efforts to get ISDR into TAFTA/TTIP: Chevron is currently engaged in a controversial legal battle with Ecuador. The company initiated arbitration to avoid paying US$18 billion to clean up oil-drilling-related contamination in the Amazonian rainforest, as ordered by Ecuadorian courts. The case has been lambasted as "egregious misuse" of investment arbitration to evade justice. No wonder Chevron dedicated its complete contribution to the US government's TTIP consultation to investment protection, "one of our most important issues globally" as they put it. Finally, a new 24-page report from The Democracy Center (available in English and Spanish), entitled "Unfair, Unsustainable, and Under the Radar," offers perhaps the most approachable introduction to this subject: We look at how the international investment rules system is being used to punish El Salvador for blocking poisonous gold mining, against Germany for stopping nuclear power, and to attack public health regulations for the tobacco industry in Uruguay. And we flag the next target for the system: government ability to regulate 'fracking'. Unfortunately, wide knowledge of this system and how it works doesn't really exist beyond a small collection of lawyers and advocates. Published in May 2013 this report explains what seems to many a highly technical issue for a non-technical audience, and in so doing aims to help put a much wider public spotlight on this corporate power grab while there is still time to fight it. Let's hope so: some of the world's most powerful corporations have realized that ISDR allows them to override national laws by invoking a newly-invented right to expected future profits, and are pushing hard to enshrine that "right" in all the main trade agreements -- TPP, CETA and now TAFTA/TTIP. If they succeed, it will undoubtedly become a standard part of every new FTA thereafter, and practically impossible to eradicate in the future. Follow me @glynmoody on Twitter or identi.ca, and on Google+ Permalink | Comments | Email This Story
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One of the common "defenses" of patents that we often hear is that "investors require them." That's simply not true. There are, certainly, some short-sighted investors who require patents, but more and more of the most respected investors have spoken out against the patent system, acknowledging that it does more harm than good. The latest example of this comes from Rob Pegoraro, who spoke to a bunch of startups presenting at a "Demo Day" and asked each of them about their patent strategy. While some of them are filing for their own patents, a key point was that their investors definitely didn't require it or push them in that direction. None said their investors had pushed them to file for patents. Even more to the point, investors seem to recognize that patents can take a big chunk of money out of early investment if startups file for a patent. Fortify Ventures managing director Jonathon Perrelli pointed out: “When they’re raising $50,000 to pay for ramen and hosting services and their desks, $15,000 doesn’t have to go to intellectual property.” The article also asked the startups if they were worried about patent trolls, and, unfortunately, many of the startups seemed fairly naive about the whole thing, suggesting that they're okay since they're not copying anything. That's not how patent law works, of course. Patent trolls pop out of the woodwork claiming you violate some tiny thing all the time. The one company that Pegoraro spoke to that insisted it was impossible that they violated a patent is likely in for a big surprise if it ever gets big enough to attract patent troll attention.Permalink | Comments | Email This Story
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