posted 22 days ago on techdirt
The Russian government's efforts to carve out its own internet continue. It's never been shy about its interest in accessing (and censoring) internet users' activity and data, what with its required registration for bloggers, demands for US-based companies to hand over user data and threats to block content stored on foreign servers -- and that's just since the beginning of this year. A law outlawing the use of offshore servers to store Russian internet users' data and content goes into effect at the beginning of 2015. That means popular products like Apple's iPhone and iPad will all be technically violating Russian law with their automatic iCloud syncing. This legislation can be partially blamed on the actions of Russia's most famous guest. As the adoptive home of Edward Snowden, Russia is all too aware that many of its citizens' communications are stored on servers owned by the scary giants of Silicon Valley. Ultimately, the Kremlin is likely to be worried that cloud services offer the NSA a way to snoop on Russian citizens, state apparatchiks and perhaps even high ranking politicians. The Russian government isn't that concerned about its citizens being spied on by foreign agencies. It probably just hates the competition. But even acts of unbridled self-interest (state apparatchiks, high ranking politicians) occasionally result in net gains for the otherwise ignored public. This ban will affect all US tech companies, but local coverage seems to imply that iPhone users will be the first to feel the results. The law effectively bans Apple's products unless it switches iCloud services off for Russian users or decides to rent some space on local servers. This is more Russian government control wearing the outward trappings of NSA backlash. As The Register notes, earlier this year the Russian government demanded Apple and SAP turn over source code, presumably to check it over for surveillance backdoors. Other countries have announced their intention to purchase network technology and services from non-US companies in the wake of Snowden's revelations, but much of the noise was there to deflect attention away from their own domestic surveillance programs. But in Russia's case, its surveillance/control desires lay much closer to the surface, if not out in the open completely. This law doesn't look much like NSA backlash. It looks like a convenient excuse for government expansion. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
While there has been some progress towards a restoration of the nation's Fourth Amendment rights, there have also been several steps back. A lot of this seems to be tied to a judicial reluctance to side with criminals. These Fourth Amendment issues generally boil down to law enforcement v. bad guys, usually delivered without nuance. Earlier this year, the 11th Circuit Court of Appeals found that tracking suspects using phone location info required a warrant. This wasn't a general ruling, however, and it was limited to several specifics in this case. The court found that cell phone location info carried an expectation of privacy despite also being a "business record" -- something that is normally stripped of privacy expectations thanks to the Third Party Doctrine. But here's where the decision ultimately falls apart. The Appeals Court arrived at a different conclusion, but refused to overturn the lower court's decision because it felt the lower court had "acted in good faith." Warrant requirements are now in place in the circuit court's jurisdiction, but the plaintiff was ultimately unable to have the illegally-gathered evidence thrown out. Similarly, the Third Circuit Court of Appeals found last year that warrantless GPS tracking was a violation of the Fourth Amendment. Again, this decision tiptoed around other similar cases and reached a rather narrow conclusion. This was immediately appealed by the government, which asked for an en banc hearing. The en banc hearing returned this decision October 1st: The Third Circuit Court of Appeals ruled today that evidence derived from warrantless use of a GPS tracking device can be used in court, even though law enforcement's failure to get a warrant before attaching the device to a car may have violated the Fourth Amendment. The 8-5 decision in this case, U.S. v. Katzin, applies an expansive interpretation of the so-called "good-faith exception" to the Fourth Amendment's exclusionary rule, holding that officers reasonably relied on decades-old cases dealing with primitive "beeper" tracking technology in concluding that no warrant was required for sophisticated GPS tracking. Once again, the court found that the search was in violation of the Fourth Amendment, but "good faith" nullified the remedy of excluding the illegally-obtained evidence. The court also vacated the earlier ruling that instituted a warrant requirement for GPS tracking. Nathan Freed Wessler, staff attorney for the ACLU, has a long piece at Slate describing how these decisions have turned the "good faith exception" into the rule. Under the “exclusionary rule,” when police engage in an illegal search, prosecutors can’t use the results. This penalty incentivizes police to abide by the Constitution and provides relief to victims of government misconduct. Indeed, as the Supreme Court explained a century ago, without the exclusionary rule the Fourth Amendment would be “of no value” and “might as well be stricken from the Constitution.” But in a series of decisions starting in 1984, the Supreme Court has retreated from this vital protection of our rights. The justices first held that if police were relying in good faith on a judicially issued warrant authorizing a particular search, the resulting evidence couldn’t be suppressed even if the search was later held to be unconstitutional. The court has since expanded this good-faith exception to cover police reliance on other forms of explicit authorization, including statutes later held to be unconstitutional and binding court rulings that are later reversed. Basically, the Supreme Court's new view is that the exclusionary rule is no longer a remedy, but a deterrent. The rule isn't there to ensure redress for those whose rights have been violated. It's there to steer law enforcement away from actions that would violate citizens' rights. But this doesn't work, and the main reason it doesn't work is the "good faith exception." The cumulative effect has been to turn the "good faith exception" into a blank check for Fourth Amendment violations. The exception gives all but the most egregious violations a pass, a fact recognized by the dissenting opinion in the Third Circuit hearing. "[T]his approach … expands the good faith exception to the point of eviscerating the exclusionary rule altogether by failing to provide any cognizable limiting principle. Now, law enforcement shall be further emboldened knowing that the good faith exception will extricate officers from nearly any evidentiary conundrum.” Those with valid Fourth Amendment complaints will find the courts nearly useless when seeking redress. Combined with the immunity routinely granted to law enforcement in civil cases, those whose rights are violated are left to hope for long-delayed settlements post-incarceration, rather than avail themselves of their rights when on trial for criminal charges -- the point where the exclusionary rule would be of most use. The good faith exception has swallowed the exclusionary rule and these compounding decisions allow law enforcement to predicate their defenses on uncertainty (even though the accused are never extended the courtesy of an "ignorance of the law" defense) and hide behind immunity while courts continue to defer to the judgement of John Q. Officer. Scott Greenfield, questioning decisions relating to both the exclusionary rule and the (always expanding) good faith exception, had this to say about the intertwined issues back in 2010: [T]he name “good faith exception” is problematic both from an application perspective as well as political perspective. It attributes a positive characteristic to the cops (good faith) making the idea of punishing them for it seem improper, if not downright disingenuous. Moreover, if the purpose of the exclusionary rule is limited to those situations where it serves only a deterrent purpose, and at the time of the search and seizure the cop’s conduct conforms with existing law, why would the law seek to deter compliance with precedent? The courts have painted themselves into a corner, with the ample assistance of government prosecutors more than willing to portray any minimal nod to the Fourth Amendment as something that allows criminals to elude justice. Even the language deployed plays into law enforcement's hands. The complications arising from technological advances have muddied the waters a bit, at least in terms of where Fourth Amendment protections begin and end. To prosecutors, these protections haven't changed at all. They're still almost nonexistent. Technology presents new challenges to law enforcement and these are greeted almost exclusively with pleas for further exceptions, as though they should also be immunized from keeping pace with the world itself. And, for the most part, they've been obliged by the judicial system. When the exception swallows the rule, the Fourth Amendment becomes nothing more than a bit of aspirational fluff cranked out by hotheaded revolutionaries nearly 250 years ago. At best, it's a hassle. At worst, it's clearly unsuited to handle the nuances of today's technology. That's the prevailing government viewpoint. Our rights are eroding, and the most corrosive force has been those sworn to uphold the nation's laws and protect its citizens' liberties.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
It's taken a surprisingly long time for countries to settle the question of whether something as fundamental as genes can be patented or not. And opinions still differ: last year, the US Supreme Court ruled that naturally-occurring genes couldn't be patented, while more recently, Australia went the other way (although it's possible that ruling could be overturned by higher courts there). Now a test case has been filed this week to establish the situation in Canada, as the Toronto Star reports: Monday's legal case, brought by the Children's Hospital of Eastern Ontario (CHEO), deals with five patents held in Canada by the University of Utah on genes and tests for an inherited cardiac condition called Long QT syndrome. Interestingly, the case is not about genes that play a role in developing breast cancer, which were the focus of attention in both the US and Australian court decisions. However, as with breast cancer, the effects of allowing gene patents in this area is the same -- to drive up the cost of testing: The two-tier test [for Long QT syndrome] currently costs approximately $4,500 (U.S.) per person, CHEO estimates, whereas researchers at the hospital believe they could administer the same process in-house for about half the cost. "The collective impact (of this case) could easily be in the orders of millions of dollars for the healthcare system," said Gail Graham, a clinical geneticist at the hospital. This isn't just about money: it's a matter of life and death. The more expensive a gene-based test, the less likely it will be used by hospitals, which are struggling to make their limited budgets stretch as far as possible. And that means that medical conditions will be missed, with serious, possibly fatal, consequences. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
We've written about the CD Projekt team in the past, typically concerning something awesome it's done with one of its games. Often times this means bucking the trend on DRM in game after game, even as competitors insist that DRM is necessary. Even when the company has gone down the road of going after infringers, it has quickly reversed course in listening to fans. Most recently, CD Projekt is looking to buck the DLC trend that has so many gamers annoyed these days. It's not that Witcher 3 won't have DLC. It totally will, except that the DLC is going to be completely free and available to anyone for simply purchasing the game. As CD PROJEKT RED, we strongly believe this is not the way it should work and, with The Witcher 3: Wild Hunt, we have decided to do it differently. Cutting to the chase, everyone who buys Wild Hunt will receive 16 specially prepared DLCs absolutely for free, regardless of platform. You don’t have to pre-order, you don’t have to buy any special edition to get them -- if you own a copy of Wild Hunt, they’re yours. This is our way of saying thank you for buying our game.” What a shock, rather than taking the avenue of other game companies, such as Ubisoft and EA, CD Projekt treats their customers well, behaving in an awesome and human way and even connecting with gamers with a shared experience, and success is had. They listen, in other words, rather than simply try to dictate. As part of this announcement, the company is insisting that there will be no restrictions on getting the DLC. They even have a long Q&A below the blog post to reiterate that point. Is this something of a gimmick? Undoubtedly. After all, the company could simply wait until all this DLC content is finished and include it in the final product. On the other hand, their competitors could do the same and include all the DLC they put out for free or raise the pricing of the game. The message CD Projekt is conveying is that it isn't going to attempt to nickle and dime its fans. Gimmick or not, it's a message that resonates in the days of paid DLC. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Crowdfunding wallet designs and various gadgets may be fun and bring about some innovative products that might not normally get funding, but a lot of popular crowdfunding campaigns are relatively straightforward development projects and shouldn't be all that risky for backers. Crowdfunding actual scientific ventures adds a bit more risk for backers because no one can really say how an experiment will turn out -- unless the experiment has been done before. Adding to the challenge for scientific crowdfunding is the jargon and scientific understanding necessary for a backer to know what a particular project is actually trying to do. If you want to support some science, here are just a few science-related projects to check out. There's a non-zero chance that an effective Ebola treatment already exists in the database of FDA-approved drugs. Computational models could help identify which existing drugs might be suitable targets, and this approach has worked for other diseases, finding possible antimalarial drugs and anti-viral targets. [url] Some biohackers wanted to see if they could extend the range of human vision by taking vitamin A2 doses for a while. They've published the data they've collected, but the conclusion seems to be that you probably shouldn't take vitamin A2 for long periods of time in the hopes of being able to see in the near infrared. Also, the participants in this study reported an increase in nightblindness. [url] TRUDI (Tele-Robotic Ultrasound Distance Imaging) is an ultrasound robot that allows doctors to obtain diagnostic measurements remotely. It might look a little creepy for a robot arm to go straight for a patient's neck in the pitch video, but this robot can measure other parts of the circulatory system, too. [url] If you ever wanted an open source real-time PCR machine, you can pre-order one for about $1,300. This isn't the first open source PCR thermocycler, but this version has a lot of nice bells and whistles, including a touchscreen and some analytics software. [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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posted 22 days ago on techdirt
The ACLU has freed up more NSA documents -- again as the result of a FOIA lawsuit. Some of what's been obtained provides a few more details on the NSA's reliance on Executive Order 12333 to perform its data and communications harvesting. This Executive Order is, and always has been, the go-to authority for the NSA. This allows it to bypass nearly every form of oversight. There's no FISA court involvement or input from Congressional oversight committees. The NSA relies almost exclusively on the good graces of the Executive Branch -- something that has worked out in its favor for the past two presidencies. The NSA's Office of General Counsel issued a memo discussing the agency's SIGINT (signals intelligence) work in 2007 as a response to questions from the executive branch. As is par for the course, the memo expresses its concerns for the rights of "US persons," as well as the agency's strict compliance with the Fourth Amendment. All well and good as far as that goes, which isn't very far. [W]e conclude that compliance with NSA's Attorney General-approved minimization procedures, which are required by Executive Order 12333 and are rooted in Fourth Amendment privacy protections, constrains NSA from granting to employees of other intelligence agencies widespread access to NSA content databases. Which is true, more or less. Agencies like the UK's GCHQ are given broad access to raw, unminimized data and communications collected by the NSA, all without a warrant. The built-in argument is that the NSA doesn't release unminimized US person data or communications to its Five Eyes partners. But this distinction makes very little difference in practice. As a practical matter, metadata from electronic communications such as email cannot be similarly shared at the moment under the same theory, because it is not possible to determine what communications are to or from U.S, persons nearly as readily as is the case with telephony, and often is not possible at all. As a "practical matter," nearly nothing the NSA collects should be shared, considering the untargeted manner in which it's collected. The NSA can't guarantee anything about the composition of its bulk collections, but that doesn't stop it from disseminating unminimized data/communications to its foreign "customers." In fact, the document clearly states that the agency feels there are zero protections inherent in "meta data," which means the sharing of identifying information (like phone numbers) with foreign intelligence agencies is perfecty acceptable. A more recent memo -- issued in 2013 -- notes the further expansion of its powers under EO 12333. The document describes the 2008's modification of the 1981 Order, which consolidated signals intelligence programs under the Director of the National Security Agency. This also brought the Director of the CIA onboard as the head of Human Intelligence. The FBI was also brought in under the expansion of this directive, which added a new layer of middle management -- "functional managers" -- to the mix. These positions are in place to "weigh" the effectiveness of the interconnected agencies' programs against the "National Intelligence Priorities Framework," something that has rarely worked out in favor of privacy or civil liberties.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Hey, remember that funny little trademark lawsuit brought by a software company against the Batman movie makers over fictional software that appeared in the film? Oh, I have one way better than that. Let me tell you about the lawsuit being brought by a journalist against the filmmakers behind American Hustle because a notably crazy character in the film totally portrayed said journalist's article from the 70's incorrectly. Paul Brodeur, a real-life science journalist who has written for The New Yorker, is suing the team behind American Hustle for a reference made to him in the film. In the film, Rosalyn (Jennifer Lawrence) tells her husband, Irving (Christian Bale), that microwaves take “all of the nutrition out of our food.” When Irving calls the claim bullshit, Rosalyn responds, “It’s not bullshit. I read it in an article. Look, by Paul Brodeur.” Brodeur’s complaint states, “Paul Brodeur has never written an article or ever declared in any way that a microwave oven ‘takes all the nutrition out of our food.'” Rather, it states, Brodreur has publicly denounced that claim, pointing to a 1978 interview with People Magazine. And, as it turns out, Brodeur is actually correct about that part: he didn't claim that microwaving food took all the nutrution out of it. He made claims about the resulting radiation exposure being a problem, but nothing about nutrition. Even in the book, he wrote about all the myriad dangers of microwave energy, be it from ovens or from US and Soviet soldiers beaming them into each other's faces and stuff, but still there was no mention of nutrition. For this slight against his position, Brodeur is claiming libel, defamation, slander and false light, and would please like $1 million and the removal of his name from future prints of the film, mmkay? Since he appears to have missed out on the character development in the movie, the character of Rosalyn is a complete damned whack-job who says innumerable crazy things. In other words, she's portrayed in a manner that renders the viewer completely incapable of taking her seriously or in anyway thinking anything she claims or says is valid. She's a manipulative sociopath. In other words, nobody watched this scene in this movie and immediately thought, "Ha, what a piece of shit Paul Brodeur is." That's because the referenced article came out in the late 70's, featuring a subject nobody really cares about any more, and...whatever this is dumb, and I don't want to talk about all the reasons why. The point is, Brodeur wasn't harmed by a crazy fictional character misstating his position in an article from a time when John Lennon was reigning king.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Keith Alexander's financial records -- sprung by Jason Leopold's lawsuit against the NSA and explored in depth by Shane Harris -- continue to point towards more questionable behavior on the part of the former NSA director. Harris more closely examines Alexander's financial involvement with Synchronoss, a company that provides cloud storage services to mobile phone providers. In 2008, Alexander bought and sold tens of thousands of dollars in stock in a company called Synchronoss Technologies Inc., based in Bridgewater Township, N.J., according to the retired Army general’s financial-disclosure forms. You’ve probably never heard of Synchronoss, but, like the NSA, it probably knows who you are. If you’ve ever activated a new iPhone or synced your personal information across multiple devices—such as your phone, and your home and office computer—there’s a chance that Synchronoss’s technology helped make it happen. The company’s customers are some of the largest telecommunications service providers in the world—including AT&T, Verizon, Comcast, and Time Warner Cable—along with their more than 3 billion mobile subscribers. More to the point, Synchronoss provided the tech that "locked" iPhones to AT&T's network back when the iPhone was an AT&T exclusive. It was during this period of time that Alexander was investing in the company, basically putting a single step between him and the service provider his agency enjoyed a very comfortable relationship with. Under secret court orders, the agency was then hoovering up the phone records of AT&T’s subscribers and pouring them into a database of who called whom in the United States, stretching back several years. After the 9/11 terrorist attacks, the NSA also had secretly installed communications surveillance equipment in some of AT&T’s offices, under orders from President George W. Bush. The NSA has only provided records dating back to 2008, at which point Alexander already had between $15,000 and $50,000 invested in Synchronoss. 2008 was a turning point for Synchronoss, which saw its surefire moneymaker heading down the tubes as iPhone buyers began jailbreaking their devices and freeing them from AT&T's network. Harris notes that Alexander picked up more Synchronoss stock when its price slid following its announcement of lowered future expectations and had cashed out completely by 2009, making less than $200 from stock sales during this time period. But what's not shown is Alexander's pre-2008 investments, which would include the lucrative debut of the iPhone (2007). Those are likely gone forever, thanks to limitations of what must be disclosed by these mandatory documents. (Agencies only need to provide the last 5 years of documentation.) What the documents do show is that the NSA had no problem with Alexander being one step removed from one of the NSA's most willing "providers," something that should have been examined more closely by the agency's internal ethics watchdogs. Now that Alexander is in the private sector, he has to work harder to trip "conflict of interest" sensors. And yet, trip them he has… multiple times. Whether this is an indication that Alexander is no more prepared for the freedom of the "real word" than an ex-con who's just spent multiple decades behind bars or an indication that the former director's moral compass has always been just a bit off remains to be seen. But everything observed so far seems to point to the continuation of the "above the law" attitude the intelligence community projected for so many years. More than a year into this Snowden-activated era of forced transparency, officials are still showing how easily they burn when exposed to sunlight. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
This morning, the FBI excitedly announced that they had arrested Blake Benthall as the alleged operator of Silk Road 2.0, the replacement to the original Silk Road, which went down when the feds arrested Ross Ulbricht 13 months ago. As with Ulbricht, Benthall is a young tech-savvy guy living in San Francisco. Assuming he was actually running Silk Road 2.0, you'd think he'd have figured out that staying in the US while doing so is a serious occupational hazard. You can read the full complaint, but it again looks like (just like Ulbricht) he was somewhat sloppy in covering his own tracks. It didn't help that he apparently allowed an undercover FBI agent to become pretty high up as a "support" staffer, giving him access to insider forums. The complaint (as with Ulbricht's) is an interesting read, though it will be interesting to see what other information comes out of the next few months. It's not clear how the FBI found the server (in a foreign country) and had it imaged. That raised some questions in Ulbricht's case, and will likely do the same here. Benthall bounced around a variety of jobs, including for RPX (a patent aggregator that has tried to position itself as the "not evil" version of Intellectual Ventures) and SpaceX. In fact, it appears that when Benthall took over Silk Road 2.0 from its original creator, he was employed by SpaceX at that time. The criminal complaint also notes that at some point he bought a Tesla with bitcoins, though he appears to have done so about a month after someone else made news for doing the same. As for the actual charges, the specifics here matter. It still seems like a bit of a reach that merely running a marketplace online should make you liable for people doing illegal stuff in that marketplace, but things like Section 230 don't protect criminal activity. The complaint also has money laundering and CFAA hacking charges in there as well, though the details are still all a bit murky. It appears that this takedown is part of a larger global effort to take down a bunch of "darknet" drug operators and websites, with Silk Road 2.0 just being the shiny one that many in the public had already heard about. While it's reasonable to argue that this is criminal activity and should be taken down, others have suggested that by merely taking down online darkmarkets like Silk Road and Silk Road 2.0, the government is actually making the world more dangerous. Indeed, a study released a few months ago argued that Silk Road greatly reduced violence in the drug trade market. One could argue that keeping the drug market violent reduces incentives for people to get involved in it, but there is also the collateral damage that a violent drug market creates on third parties and innocent bystanders. Either way, I doubt that this will stop Silk Road 3.0 (or something similar) from springing up before too long. And whether or not the FBI gets whoever runs that, this will be a continuous cat and mouse game, and I imagine that future darkmarkets will get more and more secure.Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
One of the more interesting things unveiled at Apple's most recent press event was the company's AppleSIM, or universal SIM technology embedded in the iPad Air 2 that quickly allows users to switch carriers, presenting you with easy wireless broadband pricing for each carrier option. Of course, when Apple quietly announced this functionality, Verizon wasn't listed as a supporter. While AT&T was supposed to be a partner, the company later stated they wouldn't fully support the functionality either. In AT&T-fashion, they offered up a non-explanation explanation, stating that you can still switch carriers, but AT&T would just prefer it if you'd do it the old-fashioned, cumbersome way, because that's just the way they do it:"With us you can change carriers with this iPad any time you want,” he said. “It is an unlocked device. … All [you] have to do is switch out the SIM in the device so it works on another carrier." As for why AT&T is locking the SIM card to its network while other carriers are not, Siegel said that “it’s just simply the way we’ve chosen to do it."Of course, blocking anything that could possibly promote choice and competition is long how AT&T "does it," even if doing it that way doesn't always make coherent sense. We've documented a long and proud AT&T history of such behavior, ranging from blocking disruptive technology to trying to buy off the wireless sector's few serious competitors. You can be fairly sure Apple will have a hell of a time bringing AppleSIM technology to their phones, since that's simply not the way the old phone company guys -- pampered by a generation of regulatory capture (not to mention a massive retail and special access, or tower backhaul, duopoly) -- have chosen to do it. AT&T can be a harsh partner if you're not familiar with the company's particular uncompetitive charms. Lee Hutchinson at Ars Technica has been a loyal AT&T customer ever since the launch of the original AT&T-exclusive iPhone, and simply wanted to unlock his device for use during an overseas trip -- yet ran into a brick wall at AT&T. After the carrier's auto-unlock website tool rejected his advances, he contacted live support, who informed him he'd need to pay a $195 early termination fee if he wanted to use his device the way he actually wanted to. That left Hutchinson justifiably annoyed and confused:"Why all the fuss, AT&T? Why refuse to grant a simple, reasonable request from a customer who’s been with you for more than seven years, and who provides a steady $130 a month of revenue? All I wanted was to take my AT&T device with me overseas, rather than having to grab a loaner device from Ron Amadeo (who at this point basically has a Scrooge McDuck-style money vault, but filled with Android phones instead of gold coins). Now, I'm left with the option of accepting AT&T's policies—which I won't—or canceling my contract and taking my $130 a month of revenue to one of AT&T's competitors. All because they wouldn't agree to a simple request that would have had no affect on the terms of our existing agreement. In what world does that stupid calculus work out?"Hutchinson correctly notes that even Verizon, that ever-stalwart opponent of net neutrality rules, has current unlocking rules that are much more user friendly. T-Mobile, the company that regulators blocked AT&T from acquiring, also has significantly more flexible policies (though still far from perfect) in place -- allowing you to unlock your device under contract if you've got 18 consecutive months of payments on the books. After the DMCA kerfuffle of a few years ago, Congress passed a law making cell phone unlocking legal again last July, but it not only punted on the deeper problems inherent in the DMCA, but also on simply requiring that phones be completely unlocked at sale. Changes have come glacially, but not without a large amount of carrier whining. The FCC got the big four carriers to sign off on a set of voluntary guidelines (pdf) late last year requiring that they make phone unlocking policies clear, respond to user unlock requests within a couple of days, unlock all devices for overseas military personnel, and notify customers when their phone is eligible to be unlocked (carriers balked heavily at this last one). Additional progress in killing off the long-term contract and ETF model here in the U.S. has come courtesy of T-Mobile, which, while not quite as disruptive on price as the press and CEO John Legere would have you believe, has done a great job in killing off a number of less consumer-friendly carrier policies. AT&T has responded to this competition the only way that pampered duopolists know how -- they first tried to destroy the competitor through buying it, and when that didn't work -- settled on clinging desperately to old anti-competitive policies like an old baby blanket, oblivious to the fact that you don't retain loyal customers by pissing them off.Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
As another shining example of the fading value proposition of traditional cable, Dish Network last month pulled all Turner Broadcasting stations (including CNN, Headline News, and Cartoon Network) from their lineup because the two sides couldn't agree on a new retransmission fee contract. As we just got done saying, these feuds are growing more and more annoying as paying consumers not only lose access to content, but get bombarded with marketing missives as both sides try to blame the other guy for being greedy (See Turner's SaveMyShows.com website and Dish's DishStandsForYou.com website). In Dish's case, customers have lost access to content but they're still paying the same rates. Yet speaking this week on the company's earnings call, Dish CEO Charlie Ergen told customers eager to watch election coverage that not only may they never get CNN back, they really shouldn't miss it because nobody watches cable news these days anyway:"When we take something down we’re prepared to leave it down forever. Things like CNN are not quite the product that they used to be. You can imagine: CNN down on election night would have been a disaster 15 or 20 years ago. Now there are plenty of other places for people to get news. In fact a lot of people get news not from TV but from their devices."While that might be true (given that CNN, like most cable news, is now more unintentional cultural satire than news), it's odd to hear a cable exec telling people they don't need to buy what he's selling, especially since the majority of cable channel lineup bundles are increasingly bloated with similarly-inane content. Ergen added that while the company does listen to customers, they're not going to here, since it's nice that Dish will save a buck:"If we’re not going to be in a relationship with Turner then we would not have to raise our prices next year. And that would be slightly cash positive for us from a cash flow perspective. Yes, we listen to customers. But we would save a big, big, big check from a cash flow perspective. And for those folks who don’t care about news and cartoons, we have other news and cartoon shows."Again, that's probably not particularly comforting to Dish customers who are getting less content yet paying the same amount of money to Dish. Some of this is just traditional Charlie Ergen negotiations bluster, given it's hard to sell TV content if you tell all of the people making it to go to hell. Unlike many cable execs, Dish and Ergen do see the cord cutting writing on the wall, and are planning to launch a live Internet video service sometime before the end of the year. However, that service again relies on the good graces of the broadcasters if it's going to survive; the same broadcasters who've been waging legal war against any disruptive technology that could possibly topple the traditional cable cash cow, whether it's Dish's automatic ad-skipping DVR or Aereo. Turner says they were originally on board with the project, but after the last month's feuding says they're reconsidering the green light. Even if it's a little ham-fisted, Ergen's trying to make the point that the current TV ecosystem and these often bi-annual rate hikes simply aren't sustainable. It's the same point being made by small and mid-sized cable companies that have started to leave the cable business entirely because they can't afford to participate, and it's same point being made by cord-cutters who are tired of paying an arm and a leg for an ocean of crap content.Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Techdirt has been covering for some time Carl Malamud's project to open source the "operating system of society" by placing digital versions of US laws, codes and regulations on the site Public Resource. But of course, the logic of allowing the public to be able to read all the laws and regulations that govern them applies outside the US just as much. And so it's perhaps no surprise that Malamud has joined with other campaigners (including Vint Cerf) in petitioning the Indian government to allow that country's standards to be made freely available to the public in the same way. Here's a summary of the move: Public.Resource.Org, a non-profit that works on spreading knowledge on the Internet for the benefit of the general public, along with a few other concerned folks have petitioned the [Indian] Government to make the currently pay-walled "Indian Standards" available and accessible to the general public for free. As the petition points out, since these Standards govern the safety and reliability of several thousands of day to day products & processes, there are several unnecessary negative cascading effects that the current financial barrier to accessing them creates. As these Standards also serve as edicts of the Government, the petition submits that as is the case with legislation, the general public also has a right to be able to view these Standards. Aside from this, giving the general public access to these Standards would also be in line with the work of the Government's work on maintaining and improving these Standards. It is hoped that the Ministry revisits its Copyright policy which currently disallows the free promulgation of these Standards. That comes from Swaraj Paul Barooah, on the excellent Spicy IP site. He's also one of the petitioners, and the rest of his post is an interesting discussion of the reasons why public standards should be freely available. It also explains why the petition has become necessary: In June, 2013, Carl Malamud, on behalf of Public.Resource.Org procured a complete set of Indian Standards from BIS [the Bureau of Indian Standards] and not only made them available online for public non-commercial use, but also took great pains to retype and process many of the standards to make them more useful to people -- including redrawing 202 diagrams in in SVG vector format to allow for them to be resized and cut and pasted into documents by users, retyping and reformatting the entire National Building Code of India (as well as over 700 other Standards) into valid XHTML code so that it works in modern browsers and mobile platforms etc. However, when he applied for a renewal in 2014, he received a reply stating that his efforts were against the copyright policy of BIS and was requested to remove all documents relating to the standards from his website, failing which legal action would be taken against him for violation of their copyright. That, of course, is a story with which Malamud is all-too familiar. Luckily, that means he has plenty of experience in overcoming whatever objections the authorities have to allowing the public to read key documents without having to pay for them. Let's hope he and his fellow petitioners are successful -- not just for India's sake, but also as an example for many more countries around the world to follow. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Protecting humans from the harsh environment of space isn't easy, so spacesuits are usually bulky and not too fashionable. Buzz Lightyear's outfit is actually not too unbecoming, but astronauts probably shouldn't dress like animated characters, even if they could. Astronauts shouldn't worry about what they look like as long as they're safely protected, but certain astronaut images might scare off folks (aliens?). Here are just a few spacesuit designs that future space travelers are testing out now. Alan Eustace didn't make it to space, but he did set a new world record by free falling from 25 miles above the Earth. He broke Felix Baumgartner's record by about a mile, and it took a special spacesuit to protect him during his 15-minute fall that exceeded the speed of sound. [url] MIT is working on a form-fitting spacesuit with active compression coils embedded in the fabric. This BioSuit has been under development for a few years already, and it's definitely the most fashionable spacesuit -- if it actually allows astronauts to survive in space. [url] NASA asked people to vote for their favorite new Z-2 spacesuit design, but the winning design won't go into space. The Z-2 suit will be tested for performance and comfort, but it's just a prototype that will influence the design of a future spacesuit that may one day be used for spacewalks and planetary EVAs. [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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Earlier this year, we noted that absolutely-running-for-President-while-pretending-to-think-about-it Hillary Clinton gave a stupid and vague non-answer answer to her position on government surveillance. It was the perfect politician's answer, refusing to really take a position that could be held against her at some point in the future. Except, on important issues, refusing to answer sometimes isn't an answer, and this is a perfect case of that. The leading contenders for the Republican nomination appear to have all made statements one way or the other, while Hillary has done everything possible not to take a position on the matter. If Hillary Clinton has a position on the government's domestic spying, she's doing a good job of hiding it. More than a year after Edward Snowden's leaks, the former secretary of State has yet to offer a meaningful assessment of the National Security Agency's mass-surveillance programs. She's had plenty of chances, but in interviews, speeches, and even her new book, Clinton has repeatedly ducked the issue with vagaries and cliches. The possible 2016 candidate rarely discusses NSA spying unprompted. And when she does, her remarks are often couched in opaque platitudes about the need to balance privacy and national security concerns. Again, it's not surprising from a political standpoint, but you have to wonder if it will come back to hurt her. While surveillance may not be a top voting issue these days, many inside DC seem to be underestimating just how important it is to many people.Permalink | Comments | Email This Story

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The saga of Roca Labs continues. If you're unfamiliar with it, I recommend reading the previous stories, rather than having me rehash it here, but the Florida company, which makes a substance that it claims will help people lose weight is suing PissedConsumer.com because Roca gets many of its customers to agree to a questionable clause barring any negative statements about the product, and Roca claims that PissedConsumer's encouragement of negative reviews is somehow tortious interference. Roca also has a history of threatening lots of people with defamation claims, including all three former customers who came forward as witnesses in the PissedConsumer case... and us at Techdirt for merely covering the case and quoting some of the filings. There was also this weird tangent involving a failed accusation that PissedConsumer's lawyer, Marc Randazza tried to "bribe" a state Senator (that got tossed out pretty quickly). Apparently, though, Roca Labs just keeps threatening people for covering the case. We've heard from a few others who received similar threats to the one we received, and the latest is Tracy Coenen, a fraud investigator who writes the Fraud Files blog, where she covered the Roca lawsuit, the lawsuit against a former customer and the fake implied endorsement from Alfonso Ribeiro. Apparently, Roca's "independent general counsel" Paul Berger didn't like that, and sent her a legal nastygram last week, claiming that she made "numerous false and defamatory statements." Coenen has now responded to Berger's letter, declining to retract the original, noting that the statements in question are either statements of opinion, quotes from the pleadings in the case or factual statements. At this point, I'm just kind of curious as to why Berger thinks this particular strategy is effective. Is it just the only remaining hammer in his toolbag, and thus every bit of coverage looks like a nail he has to bang? In the meantime, the case continues with yet another new lawyer representing Roca (I've lost track of how many there have been). The latest lawyer, James Hetz, who also lists himself as "independent general counsel" for Roca Labs (how many of those do they have?) recently filed a statement that the PissedConsumer case "IS NOT related to any pending or closed civil or criminal case filed with this Court or any other Federal or State court..." That struck me as somewhat interesting, given a blog post from lawyer Ron Coleman last week, in which he revealed that... before Roca had sued PissedConsumer in Florida, PissedConsumer had actually sued Roca Labs for declaratory judgment in New York, after Roca had begun sending PissedConsumer threatening letters demanding it remove all those negative reviews (and apparently claiming, hilariously, it had "suffered damages in excess of $40 million" from the negative reviews). According to the docket on that case, Roca Labs is trying to get it dismissed for lack of jurisdiction, but otherwise the case is proceeding. Given that these appear to be about the very same issue, I'm not sure how the Roca Labs filing in Florida by Hetz is an accurate statement.Permalink | Comments | Email This Story

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It was bad enough when the Australian government announced that it was joining the growing club of countries that would be retaining huge swathes of its citizens' metadata. But now people are beginning to realize that once that store of metadata exists it not only can, but probably will, be used for many other purposes that have nothing to do with the avowed aim of fighting terrorism. The first hint that this might happen came from a slip made by the Australian Federal Police Commissioner, reported here by Gizmodo Australia: When asked if stored metadata could be used to combat piracy, Australian Federal Police Commissioner, Andrew Colvin, replied at a press conference that the stored data of Australians could be used for a whole number of things, including anti-piracy: “Absolutely. Any interface or connection someone has over the internet, we need to be able to identify the parties to that collection. Illegal downloads, piracy, cyber crimes, cyber security. Our ability to investigate them is pinned to the ability to retrieve metadata,” Colvin told journalists. Understandably, this caused such a storm that the Australian government tried to backtrack. The country's Attorney-General, George Brandis, was quoted in TechWorld Australia as saying: "The mandatory metadata retention regime applies only to the most serious crime -- to terrorism, to international and transnational organised crime, to paedophilia, where the use of metadata has been particularly useful as an investigative tool," Brandis told ABC's Q&A program last night. So that's a return to the original script: metadata is for fighting terrorism and serious crimes. But Brandis then went on to say: The laws will apply "only to crime and only to the highest levels of crime," the attorney-general said. "Breach of copyright is a civil wrong. Civil wrongs have got nothing to do with this scheme." The trouble with that argument is that infringing on copyright can also be a criminal offense, as the Australian Federal Police (AFP) site explains: The AFP is committed to taking action against those believed to be the organisers, major importers and/or wholesalers of infringing products. The AFP is committed to building partnerships with industry and other law enforcement agencies to combat IP crime and wherever possible ascertain links to organised crime. Moreover, the recent leak of the TPP IP chapter shows that one of its measures aims to lower the bar for the criminalization of copyright infringement, even when there is no commercial intent: Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. {For the purposes of this Article, [US propose, CA/MY oppose: such acts of [NZ: willful] copyright or related rights piracy {on a commercial scale} include at least:] [CA/MY propose: In respect of copyright or related rights piracy, acts carried out on a commercial scale include at least:] [CL propose:181] [182] (a) acts carried out for commercial advantage or financial gain[CA propose:183]; and (b) significant acts [CA oppose: of copyright or related rights piracy], not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace.} [AU propose:184] Since it's still a draft, that's a bit of a mess, but the important parts are at the beginning -- "Each Party shall provide for criminal procedures and penalties to be applied" -- and at the end, where Australia wants criminal penalties even if "not carried out for commercial advantage or financial gain", but simply if they have "substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace". It's not hard to see how uploading a single music file might be claimed to do that, since potentially it could be copied thousands of times. That non-commercial upload would therefore be subject to criminal penalties under TPP, which opens up the possibility of using stored metadata to track down the person responsible. The transcript of an interesting radio program from the Australian broadcaster ABC reveals another way in which stored metadata might be applied to cases involving alleged copyright infringement: the Government not using metadata to fight internet piracy is one thing, the rights holders themselves using the metadata trove to expose customer details is an entirely different scenario. [Australia's Communications Minister Malcolm Turnbull] admitted as much this morning, saying that under legislation, stored metadata would be accessible by third parties via a court order. That could mean that copyright holders could sue ISPs for customer information, forcing them to reveal which user was responsible for a download, opening up the user to claims for damages. But this route could be used for any civil case, despite claims from the Australian government that data retention is only about serious crimes. A lawyer who works for Marque Lawyers, the law firm acting for the copyright owners of the film Dallas Buyers Club, explained on the program: Any civil litigation where a question arises about a person's conduct or activities or where they've been and when they've been there, which often can arise in all sorts of civil cases. This kind of information could be extremely useful. ... It's historically been quite difficult to get information out of telcos because they hold an enormous amount of data and not always in the most easily accessible way and they don't like handing it over. But if they're forced under this new regime into a protocol which establishes a very clear and consistent methodology for storing data for a particular period, then that becomes a much more easily accessible resource and much more difficult to say, "Oh, you know, we can't find it." Yeah, I think, I think it'll be quite popular. It will doubtless be especially popular among copyright trolls, who will be able to use it to track down people before sending in their "speculative" invoices.... Retaining everyone's metadata in order to tackle terrorism was always a bad idea, given the attendant risks, but it looks like it could turn into a legal and political nightmare once the lawyers start applying to Australian courts for routine access to this highly-private information. That's yet another good reason not to proceed with this ill-advised scheme at all. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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The ACLU's Jameel Jaffer alerts us to a district court ruling in NY that effectively says that by merely agreeing to AOL's terms of service, you've waived your 4th Amendment rights. The case is the United States v. Frank DiTomasso, where DiTomasso is accused of producing child porn -- with most of the evidence used against him coming from AOL. DiTomasso argues that it was obtained via an unconstitutional search in violation of the 4th Amendment, but judge Shira Scheindlin rejects that, by basically saying that AOL's terms of service make you effectively waive any 4th Amendment right you might have in any such information. To be fair, Scheindlin doesn't get to that conclusion breezily, and earlier in the ruling worries that one can just give up such 4th Amendment rights: I conclude that it would subvert the purpose of the Fourth Amendment to understand its privacy guarantee as “waivable” in the sense urged by the government. In today’s world, meaningful participation in social and professional life requires using electronic devices — and the use of electronic devices almost always requires acquiescence to some manner of consent-to-search terms. If this acquiescence were enough to waive one’s expectation of privacy, the result would either be (1) the chilling of social interaction or (2) the evisceration of the Fourth Amendment. Neither result is acceptable. Agreed. So... what's the issue here? Well, apparently AOL's terms of service are so clear to the point that it would monitor your account for illegal behavior that somehow it's okay in this case: AOL’s policy is quite different. Not only does it explicitly warn users that criminal activity is disallowed, and that AOL monitors for such activity; the policy also explains that “AOL reserves the right to take any action it deems warranted” in response to illegal behavior, including “terminating] accounts and cooperat[ing] with law enforcement.” The policy also makes clear that AOL reserves the right to reveal to law enforcement information about “crimes[s] that [have] been or [are] being committed.” In contrast to Omegle’s policy, which includes only a passing reference to law enforcement — and which gives no indication of the role Omegle intends to play in criminal investigations — AOL’s policy makes clear that AOL intends to actively assist law enforcement. For this reason, I conclude that a reasonable person familiar with AOL’s policy would understand that by agreeing to the policy, he was consenting not just to monitoring by AOL as an ISP, but also to monitoring by AOL as a government agent. Therefore, DiTomasso’s Fourth Amendment challenge fails as to the emails. I'm not entirely sure how to reconcile those two paragraphs. They seem to directly contradict one another. The fine line of difference here is that the court is saying the 4th Amendment rights aren't "waived," but that DiTomasso effectively "consented" to a search by law enforcement. This seems like a distinction without any real difference. Still, there is a separate public policy question here. Many internet service providers similarly analyze emails against a hash database of known child porn images to try to catch people sending around child porn -- and there's a reasonable argument to be made that there's a good reason that this is done. In fact, just a few months ago there was news of a similar situation involving a Gmail user, where Google's automated systems alerted NCMEC to potential child porn. But, even given that, it seems troubling to suggest, even in this somewhat narrow manner, that you could effectively give up your 4th Amendment rights just by agreeing to a terms of service. These are the kinds of loopholes that the government is known to jump all over and expand until they effectively swallow the entire rule. And, of course, almost no one wants to claim that they're trying to better defend people engaged in child porn -- but that's how basic fundamental rights get chipped away. You attack those rights against the kind of people that no one wants to defend, and then that removal of rights is expanded to more and more and more people. Even if you're against child porn (and you should be), it should be concerning that a mere terms of service can be seen as official "consent" to law enforcement to a search of otherwise private communications.Permalink | Comments | Email This Story

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We've only written about Lena Dunham once before, and it was in the context of her threatening a lawsuit against Gawker for daring to publish her book proposal and comment on it, mocking Dunham. At the time, as noted, I'd never even heard of Dunham. I've still never seen her show, but I have seen/heard her interviewed a few times, and I don't quite understand why there's so much hate directed at her some of the time. She seems to have an interesting perspective on life and has turned it into a very successful TV show. Good for her. Still, this is now the second time we've felt the need to write about Dunham and, once again, it's about an apparent legal threat from her, based on her book. This time it's not about the book proposal, but the book itself, now that it's out. The key issue? Some news sites out there interpreted part of her book to be her admitting to sexually abusing her little sister as a baby. These claims appear to be rather overblown. Various experts appear to agree that nothing Dunham did comes close to actual sexual abuse. Still, it appears that Dunham has at least threatened one site, TruthRevolt, for writing just such a story. She demanded a retraction and a (pre-written) apology. TruthRevolt, wisely, refused. Instead, it just reprinted the text from Dunham's own book that highlights the basis for the site's original post. Ken "Popehat" White has the excellent explanation of the legal ridiculousness of Dunham's lawyers' threats: If Ms. Dunham is alleging that the original Truth Revolt article about her is defamatory, she is wrong — unless it has deliberately and extensively misquoted her book. Truth Revolt has admitted that the article originally and incorrectly said that she was 17, not 7, when one of the incidents described took place. But absent proof that Truth Revolt made that misstatement intentionally, that's incompetence, not the actual malice required to prove up defamation of a public figure like Ms. Dunham. Truth Revolt's characterization of Ms. Dunham's memoir is not defamation. It's classic opinion based on specific disclosed facts. You might think that Truth Revolt's interpretation of Dunham's stories of her conduct with her sister is irrational, or unfair, or politically biased, or cruel. That doesn't make it defamatory. If I linked to one of Ben Shapiro's articles and said "this article proves that Ben Shapiro is a secret lizard person sent by Obama to discredit conservatives," that wouldn't be defamation either. It might be crazy, but it's my statement of opinion based on Shapiro's own words. If Truth Revolt had said "people have told me that Lena Dunham molested her sister" or "I have reviewed documents that suggest to me that Lena Dunham molested her sister," that would be different — that would be a statement of fact, or a statement of opinion based on undisclosed facts. Of course, White has an alternative theory as to why all of this is happening as well: Her threat, and her reaction to the coverage, are likely to trigger the Streisand Effect, driving orders of magnitude more eyes to the characterizations of her memoir. She's media-savvy enough that I can't help but wonder whether that's her intention in the first place. It will sell books. Given that this is the second time she's appeared in these pages, and both times it's about threatening some random blog for highlighting her own words and mocking them... that theory is seems to have a fair bit of support.Permalink | Comments | Email This Story

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There are times that I wonder if former NSA General Counsel Stewart Baker is just trolling with his various comments, because they're so frequently out of touch with reality, even though he's clearly an intelligent guy. His latest is to join in with the misguided attacks on Apple and Google making mobile encryption the default on iOS and Android devices, with an especially bizarre argument: protecting the privacy of your users is bad for business. Oh really? Specifically, Baker engages in some hysterically wrong historical revisionism concerning the rise and fall of RIM/Blackberry: Baker said encrypting user data had been a bad business model for Blackberry, which has had to dramatically downsize its business and refocus on business customers. “Blackberry pioneered the same business model that Google and Apple are doing now - that has not ended well for Blackberry,” said Baker. He claimed that by encrypting user data Blackberry had limited its business in countries that demand oversight of communication data, such as India and the UAE and got a bad reception in China and Russia. “They restricted their own ability to sell. We have a tendency to think that once the cyberwar is won in the US that that is the end of it - but that is the easiest war to swim.” While it's true that some countries, like India, demanded the right to spy on Blackberry devices, the idea that this was the reason for the company's downfall is ludicrous. First of all, RIM gave in to some of those demands anyway. But, more importantly, the reason that Blackberry failed was because the company just couldn't keep up from an innovation standpoint -- and that's because early on it made the decision to focus onenforcing patents, rather than truly innovating. RIM got fat and lazy by getting an early lead and then focusing on protecting it, rather than keeping up with the market. And... one of the reasons it got that early lead was because companies were willing to buy into the Blackberry in part because of its strong encryption. The idea that encryption was bad for business because China and Russia couldn't spy on people is not only ridiculous and silly, but it appears to be Baker supporting authoritarian states spying on its citizenry. What the hell, Stewart? Beyond that, Baker insists that, really, the public doesn't want encryption anyway, and if people only knew what was really going on with the "bad guys," we'd all be willing to give up our privacy: Baker said the market for absolute encryption was very small, and that few companies wanted all their employees’ data to be completely protected. “There’s a very comfortable techno-libertarian culture where you think you’re doing the right thing,” said Baker. “But I’ve worked with these companies and as soon as they get a law enforcement request no matter how liberal or enlightened they think they are, sooner to later they find some crime that is so loathsome they will do anything to find that person and identify them so they can be punished. Right. And that's what basic police and detective work is for. It doesn't mean that you need to weaken the security and privacy of everyone else. Anyway, let's see if Baker goes out and shorts Apple and Google's stock now that he believes encryption and protecting the privacy of their users is really so bad for business.Permalink | Comments | Email This Story

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As we've noted more than a few times, we live in an era where the products you think you own can be disabled, crippled or held hostage on a whim. That's been particularly apparent when it comes to video game consoles and software, with an increasing array of titles relying on server connectivity not only for multi-player content, but also for DRM authentication in order to play single player titles. The former was an issue earlier this year when Nintendo announced that the company would be killing online functionality for a wide variety of Wii and DS titles, some of which were only a year or two old. The latter was an issue with Blizzard's Diablo 3, EA's latest incarnation of SimCity, and a growing number of other games. When these servers for older titles get shut down, often gaming communities are left trying to cobble together functionality with little to no support from the companies that made them, and/or with concern they'd be violating section 1201. In their latest list of six DMCA exemption requests, the Electronic Frontier Foundation includes the right to tinker with older games. Not just for the enjoyment of keeping these gaming communities afloat, argues the EFF, but because as games become an increasingly integral part of our culture as entertainment and art, they need to be preserved for historians. That's obviously something you can no longer do if the games are utterly unusable:"The inability to play older games (because the necessary servers have been shut down) inhibits scholarship and research as well – it is much more difficult for game scholars to access older works due to a lack of playable archival copies, and archivists have less incentive to preserve games that are unplayable or only partially playable. Jerome McDonough, a professor who specializes in digital preservation, put it simply. “Digital media are inherently fragile and the ability to migrate games to new hardware/media is critical to any preservation activity we might take, whether through migration or emulation. [The] DMCA’s technological protection measure language takes the difficult case of software preservation and transforms it into a fundamentally impossible case." In the case of multi-player games, it can be impossible for scholars to replicate the experience of playing the game, since player communities often die when servers are deactivated.As the petition notes, the exemption would not apply to persistent online worlds and MMORPGs, where online functionality is all there is. Among the EFF's five other DMCA exemption requests includes two governing the right to bypass automobile DRM for repair and testing, two protecting the remixing of DVD and various online video sources, as well as the renewal and expansion of cell phone and tablet unlocking exemptions. As usual, the EFF expresses justifiable disdain at having to jump through "burdensome and confusing" hoops every three years simply to defend common sense under the dysfunctional mess that is the U.S. Copyright Office's DMCA exemption request process.Permalink | Comments | Email This Story

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Orphan works, that huge collection of older creations which are out of circulation and have no obvious owners, are more rightly called "hostage works," since they remain uselessly locked away by rigid and outdated copyright laws. Even when the issue is recognized by society, lobbyists hold so much sway over the political process that legislation crafted to "solve" the orphan works problem is often worse than useless. So perhaps we should give at least one cheer for a new UK licensing scheme that will make access to large numbers of orphan works a little easier: A new licensing scheme launched today (29 October 2014) could give wider access to at least 91 million culturally valuable creative works -- including diaries, photographs, oral history recordings and documentary films. Here's how it will work: Under the new scheme, a licence can be granted by the Intellectual Property Office so that these works can be reproduced on websites, in books and on TV without breaking the law, while protecting the rights of owners so they can be remunerated if they come forward. That's all well and good as far as it goes, but it turns out that it could have been so much better if other key legislation had been passed first. The UK's Chartered Institute of Library and Information Professionals (CILIP) explains what the issue is (pdf): Provisions in the [UK's] Enterprise and Regulatory Reform Act (ERRA) 2013 gave the government powers to amend the term of copyright for unpublished text based works, engravings and anonymous artistic works (except photographs) to life of the author plus 70 years [instead of until the fixed date of 2039, as at present.] This would bring the UK's copyright terms more closely into line with the harmonised regime across Europe, as intended by the Term Directive. However, implementation has been delayed. There is now a real danger that the issue of 2039 will be lost in parliamentary process before the [UK] General Election on 7th May 2015. That's a problem, because it means all those ancient and unpublished works that would otherwise clearly be out of copyright, are now classed as orphan works until 2039; to use them under the UK's new orphan works licensing scheme then requires considerable effort: In practical terms, because the duration of copyright in unpublished works was not dealt with at the same time that the Orphan Works solutions have been implemented, or at least implemented by March/April 2015, libraries, archives and museums will be expected to conduct due diligence searches (under the terms of the Exception) and also to pay an administration/licence fee (under the terms of the Orphan Works Licensing Scheme). This is a pointless waste of resources, for many of these works are within the scope of the reduction of term measures from 2039 in ERRA 2013. That's part of why UK libraries, lead by CILIP, started the campaign Mike recently wrote about, with libraries displaying empty cases of orphan works that won't be released until 2039. This will also have serious knock-on consequences across the whole of the EU and even beyond: The 'Orphaned' unpublished works will remain in copyright in the UK and therefore Orphan, but be out of copyright in the rest of Europe. This will lead to the works that should be dealt with by the 2039 removal being wrongly registered as Orphans on the Office for Harmonisation in the Internal Market (OHIM) database, causing confusion across Europe and the world in relation to online projects such as Europeana, and more wasted public resources subsequently to put it right. CILIP's fears seem justified. The UK government has just announced a consultation on "Reducing the duration of copyright in certain unpublished works." Since that closes on December 12, it is extremely unlikely that the necessary formalities will be completed to reduce the copyright term of unpublished works before the UK General Election next year. One issue that the consultation wants explored is "quantifiable costs to copyright owners." It's hard not to see that call, along with the unnecessary but critical delay to implementing the term reduction, as part of some backroom deal agreed with the publishing industry as the price of its acquiescence to the UK government's move to liberate millions of hostage works -- an idea that copyright maximalists hate. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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We've reported a bunch of times on the various legal fights that Airbnb has had to go through lately. Just a few weeks ago, NY's Attorney General Eric Schneiderman (who has admitted in the past that his interest in Airbnb is really about protecting NYC's big hotels), said that he believed most Airbnb listings in NY to be illegal. Under his standards, every Airbnb I've stayed at in NYC would almost certainly be illegal, despite the fact that I have had nothing but fantastic experiences with Airbnb in NYC (much better than my experiences with hotels). San Francisco seemed to be going in a different direction, however, with the city passing a new law just last week that effectively legalized many Airbnb rentals. This law was actually fought by so-called "housing interests" in San Francisco (who seem to have some trouble understanding basic economics). So you might assume that any legal challenge to the law would come from those "housing interests." Instead, however, it's Airbnb's biggest competitor, HomeAway, perhaps best known for its VRBO site (unofficial motto: "we were Airbnb before Airbnb, dammit"). HomeAway is arguing that the various restrictions that San Francisco put in this new law to appease those "housing interests" are actually unconstitutional in that it unfairly enables Airbnb's particular business model, while limiting HomeAway's. The key issue: many of the people who use HomeAway use it to rent out second homes, while the new law targets short-term rentals of primary residences only. How could that possibly be illegal? Well, that's where you have to dive into the convoluted legal argument of HomeAway, which argues that this new law violates the Commerce Clause of the Constitution by "discriminating against interstate commerce" because there's "differential treatment" between SF-based residents and non-California residents. The Ordinance violates the Commerce Clause because it discriminates against interstate commerce through differential treatment of San Francisco-based and non-San Francisco-based interests that benefits the former and burdens the latter. This unconstitutional discrimination takes two forms. First, by its express terms, the Ordinance allows only permanent San Francisco residents to rent out on a short-term basis (which the Ordinance defines as thirty days or less) residential property they own or lease in San Francisco. Non-permanent residents of San Francisco who own or lease property in San Francisco are barred on the face of the Ordinance from renting out their property on a short-term basis. Second, the Ordinance requires entities that provide “Hosting Platforms,” on which owners and lessees of property may advertise their property for short-term rentals, to conform their business operations in San Francisco to one particular model, and no other, under pain of monetary penalties. This anti-competitive measure forces those seeking to rent property to turn over control of selecting short-term tenants to entities that operate the type of Hosting Platform model sanctioned by the Ordinance and to pay whatever fees those entities might charge today or in the future. While facially neutral, the Ordinance’s Hosting Platform rules have the purpose and effect of discriminating against non-San Francisco-based interests. This seems like a massive longshot. Admittedly, many of the restrictions in the law do seem silly and pointless. It seems reasonable to let people rent out their homes for short-term rentals whether or not it's their primary residence. But to sue the city of the law? And, it seems worth noting that it's not clear that anyone was seriously enforcing the existing law (which is why Airbnb has been so successful), and even with this law in place, it's not clear that anyone would be enforcing it against VRBO owners. Still, it's interesting to see the kinds of legal fights these new kinds of services are facing from all angles these days. It's hard to innovate without a legal team, apparently.Permalink | Comments | Email This Story

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Tech news headlines often imply that a new gadget will completely kill off older devices by making them obsolete. Tablets were supposed to "kill" the PC, but that hasn't happened. On the other side of the spectrum, some folks have suggested that no tool ever completely dies. However, that's an extreme position, too. Innovation involves a succession of minor improvements, and occasionally, there are advances that are so significant that people can't help but try to explain the shifts in exaggerated black-and-white terms. The actual story is usually much more complex. We're getting more and more cool input methods beyond simple keyboards, and here are just a few nifty gadgets that probably won't replace keyboards (or mice) but might make human-to-computer communication a bit easier for people. The Sprout by HP is a PC with a novel interface that uses a camera, a projector and a touchmat (but it can also use a keyboard and mouse). Similar user interfaces have been proposed before (eg. 10/GUI), and sci-fi movies are always promoting floating gesture UI systems that replace keyboards and mice. [url] HaptoMime is a mid-air touch interaction system that uses floating images from a holographic display and provides haptic feedback to mimic a touchscreen interface. The focused ultrasound aimed at your fingertips looks cool -- but also a little bit strange and probably something you'd have to use for a bit to get accustomed to. On the other hand, no more greasy fingerprint-covered touchscreens, yay! [url] The SideSwipe system provides a gesture recognition system for mobile phones. It's far from perfected, however. It has an accuracy rate of about 87% for 14 different gestures, but it doesn't require a camera -- it relies on wireless signal reflections off a user's hand. [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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posted 24 days ago on techdirt
Many of us were excited, 11 months ago, when District Court Judge Richard Leon ruled that the NSA's bulk collection of phone metadata was unconstitutional. This was the first program revealed via the documents from Ed Snowden, and it involved the US using Section 215 of the PATRIOT Act, approved by the FISA Court with little explanation (until much later) to say that it's okay to request all phone records from Verizon. What had been often mentioned as a brief aside, is the fact that the plaintiff in the case, Larry Klayman is a bit of a conspiracy-theorist nutjob. That came out loud and clear earlier today during the oral arguments in the appeal (Klayman had tried to go straight to the Supreme Court, which failed, though pretty much everyone expects the case to get back there eventually). Dan Froomkin, over at The Intercept, briefly discusses how Klayman's nutty rantings in the court have the potential to derail the whole thing. But the lead plaintiff in this case is Larry Klayman, a bombastic and litigious conspiracy theorist who happened to file one of the first post-Snowden lawsuits. And when the three-judge panel began peppering him to substantiate his claims of standing and harm, Klayman was unable to make a cogent argument. He accused the government of consistently lying and of getting “into people’s underwear.” And he cast himself personally as the victim of government surveillance and dirty tricks, saying his phone made calls he never placed and that a client’s computer had been broken into. “I can’t talk on the phone anymore,” he complained. He told the judges they were the last defense against tyranny, and warned them of revolution should they fail. Riiiiiiiight. Thankfully, Cindy Cohn from the EFF was also on hand and provided a much more legally relevant and defensible argument: On the crucial issue of how the information being collected by the NSA differs from the information being collected in the 1979 case of Smith v. Maryland, Cohn provided the key answer that Klayman was incapable of summoning: Its size. Smith was about one robbery suspect, whose calls were monitored for three days. “This is the untargeted mass collection of the phone calls of millions of people over many years,” Cohn said. Judge David Sentelle interrupted: “Does it become an invasion because there’s lots of it? Or is a million times nothing still nothing?” Cohn said American citizens have a reasonable expectation that the government isn’t logging all their phone calls all the time for no specific reason. “There are regular people making everyday phone calls, that are swept up in this.” There's much more in the actual discussion, but this is really what the case is about. Can the courts continue to take the awful Smith v. Maryland argument, saying that it was okay to get a single phone's records from the phone company without a warrant, and extrapolate it out to mean that the government can demand every phone record of every call. There's still a lot more to go in this process, including a likely rehearing with the full DC Circuit and then the eventual Supreme Court ruling. One just hopes that Klayman's nuttiness doesn't get in the way of this important case.Permalink | Comments | Email This Story

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Do you ever get the feeling that some law enforcement agencies just do whatever the hell they want? In most areas, this is the exception rather than the rule. In Virginia, however, that ratio seems to be reversed. Last year, an ACLU FOIA request uncovered the Virginia State Police's wholesale harvesting of license plates from political rallies. The privacy expectations may have been minimal (vehicles parked in public places), but the implications of what could be done with this sort of data were much larger. Plate-and-location records could be read to determine likely political affiliations, and the state police's obvious desire to fill its database efficiently makes large gatherings of any sort attractive targets for automatic license plate readers. The revelation of the State Police's actions prompted a strong response from the State Attorney, as well as a clarification of rules governing the collection and retention of license plate data. Now, news has emerged that a handful of law enforcement agencies in Virginia have constructed their own ad hoc phone record database and are inviting others to sign up for access. The database, which affects unknown numbers of people, contains phone records that at least five police agencies in southeast Virginia have been collecting since 2012 and sharing with one another with little oversight. Some of the data appears to have been obtained by police from telecoms using only a subpoena, rather than a court order or probable-cause warrant. Other information in the database comes from mobile phones seized from suspects during an arrest. The five cities participating in the program, known as the Hampton Roads Telephone Analysis Sharing Network (HRTASN), are Hampton, Newport News, Norfolk, Chesapeake and Suffolk, according to the memorandum of understanding that established the database. The effort is being led in part by the Peninsula Narcotics Enforcement Task Force, which is responsible for a “telephone analysis room” in the city of Hampton, where the database is maintained. What it looks like is what it is: a dumping ground for any phone/phone-related records obtained by law enforcement through other means. Rather than being used in an investigation and disposed of upon conclusion, these agencies are dumping it all into a searchable pile and inviting other law enforcement agencies to do the same. The resulting mess is almost certainly illegal, and at least one invited agency -- the Virginia State Police, no less -- has refused to take part in it. The HRTASN agreement presents the database as a fully legal operation while still writing itself a blank check for haystacking. To the extent permitted by law, all participating agencies operating under this MOU agree to share telephone intelligence information derived from any source with the PNETF including: subpoenaed telephone call detail records, subpoenaed telephone subscriber information, and seized mobile devices. "Derived from any source" is an incredibly open statement. And as for the database being "permissible by law," the legislative changes prompted by the Virginia State Police's abuse of its license plate readers seem to make this sort of unstructured, untargeted collection illegal. The ACLU’s [Rob] Poggenklass said the database runs afoul of a privacy law in Virginia known as the Government Data Collection and Dissemination Practices Act, designed to curb the overcollection and misuse of digital personal information by state and local agencies… While law enforcers enjoy some exemptions from privacy laws during the course of an investigation, according to the opinion, those exemptions don’t apply when collected data “is of unknown relevance and not intended for prompt evaluation and potential use.” In other words, there must be a clear law enforcement need. Without it, Poggenklass said, police should not be permitted to collect and retain records indefinitely in a database for future queries. Right now, the database operates with no outside oversight. Worse, it operates with the explicit permission of the five communities whose representatives signed off on their local PD's participation. There's also no information forthcoming about the contents of the database -- whether it's just simple phone records, or if actual content (text messages, photos, contact lists, etc. pulled from seized phones) has made its way into long-term storage as well. Unexpected daylight altered the State Police's use of its license plate readers. There's a good chance exposure will do the same to Peninsula Narcotics Enforcement Task Force's database.Permalink | Comments | Email This Story

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