posted 20 days ago on techdirt
Steven Aftergood at the FAS (Federation of American Scientists) Secrecy Blog came across this interesting redaction of mundane information while perusing the "Studies in Intelligence" journals recently released by the CIA. In an article [pdf link] touting the purchase of a product that would forever change the world of the CIA's in-house video production department, the actual purchase price has been redacted. If you can't read/see the picture, it says: We bought our first Commodore Amiga in 1987, for less than [REDACTED] including software. Twenty-seven years later, this dollar amount still can only be speculated on. (Aftergood prices it out with Wikipedia's help.) It couldn't have been much, though. The preceding paragraph states: We did not have a big budget, so we were tempted to buy the system with petty cash. Does the CIA actually believe some sort of irreparable rift in the National Security Complex might occur if this dollar amount from three decades ago (unadjusted for inflation) was made public? Probably not. Aftergood theorizes that it's a blanket exemption used to redact more sensitive dollar amounts and this innocent cost just became collateral damage during the rush to declassify several dozen documents in response to an FOIA lawsuit court order. CIA seems to have adopted a declassification rule dictating that all of its expenditures, no matter how trivial, shall be withheld from disclosure, except in extraordinary cases (or the occasional mistake). The Agency might go on to argue that such a rule actually facilitates disclosure by expediting the declassification review process. That’s because instead of needing to pause to consider the potential ramifications of any individual spending disclosure, the Agency can proceed more quickly by simply withholding all such figures. So, there's the excuse for over-redaction, even if it isn't much of one. Aftergood points out that efforts have been made to scale back overbroad classification and redactions since 1997, but little if anything has come of those attempts -- part of the reason why so many FOIA requests end in lawsuits. Also of note: the author's adoration of the new technology leads to the innocent Amiga being used for evil. We are experimenting with photo enhancement and colorization of black-and-white photography. Future Executive Summaries will include "Turnerized" ground photos. While this CIA doc is good for a few laughs at the agency's overprotective tendencies, it must be noted that these documents stem from former CIA agent Jeffrey Scudder's FOIA request -- a request that ended his career and saw his house raided by the FBI, which seized every electronic device it came across. The CIA destroyed the life of a 19-year employee who had served the agency in Africa, Afghanistan and Iraq in order to withhold things like a three-decade-old computer purchase. Permalink | Comments | Email This Story

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Five years ago, Techdirt reported that a request to the UK government to provide a copyright exception for mashups was rejected. Since then, we've been reporting on the UK's very slow progress in updating its copyright laws by bringing in various changes and exceptions. An article in the Daily Telegraph points out that there is a big problem with the new exception for parody, caricature or pastiche (found via @copyrightgirl): Under a new exception to the Copyright, Designs and Patents Act 1998, which comes into force on Wednesday, people will be allowed to re-use copyright material "for the purposes of parody, caricature or pastiche" without having to ask permission of the original author first. There is an important caveat. If a parodist is taken to court, it will be up to a judge to decide whether the disputed parody is sufficiently funny. A document from the UK government explains (pdf): In broad terms, parody imitates a work for humorous or satirical effect, commenting on the original work, its subject, author, style, or some other target. Leaving aside the fact that judges tend to be somewhat advanced in years, and are therefore likely to have a very different idea from young creative artists of what "funny" means, there is also the point that this narrow definition excludes a huge class of mashups that aren't even intended to be funny, just creative. As Mike pointed out recently in his article on Kutiman, it's all too easy for this brilliant use of elements taken from elsewhere to be seen as "infringing." The fact that the UK's exceptions do not permit such kinds of originality shows how much its new copyright is still stuck in the past. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
We've often discussed the complete farce that airport security has become since 9/11. Security theater that appears to be a performance art piece on how dumb government can get isn't something we should be looking to export, but it seems like many countries throughout the planet have incorporated many of the reactionary tactics you can find in the States. Take, for instance, the story about how a guy in Australia who accidentally walked in the wrong direction while paying too much attention to his iPad shut down a terminal and delayed flights for an hour. On Saturday morning, a man got off a plane at Sydney Airport in Australia and was so enchanted by the fascinating content on his iPad that he walked into a domestic terminal without bothering to go through security. This event was captured on CCTV and unnerved officials so much that they evacuated passengers. Flights were delayed for around an hour. One also wonders about security at Sydney Airport. Australia is currently under high alert after its prime minister, Tony Abbott, declared that a terrorist attack on his country was "likely," even though his security services hadn't discovered any "particular plots." Terrorism is an issue that should be taken seriously, but if the civilized world is going to simply give up so much sense as to let a guy accidentally walking the wrong direction to essentially shut down an airport for an hour, then we might as well just admit defeat in our own minds. I see people pulling this oblivious move on my city's streets every damn day. It's annoying, sure, but it's fairly easy to determine that these people aren't going to be blowing up any buildings any time soon. Well, maybe after they beat that Candy Crush level, but certainly not before. In the meantime, it's been over a decade, so we can all just calm down a bit when it comes to pretending to do airport security? Permalink | Comments | Email This Story

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As we've noted, the EU Data Protection Regulation has seen some of the fiercest lobbying in the history of the European Union. That's because key US Internet companies are worried that stricter controls on taking personal data out of the EU might adversely affect their business models, which are largely based on using that data quite freely. The human rights organization Access has been following this closely, and has made several freedom of information requests to both the US and EU authorities in an attempt to find out who exactly has been trying to weaken the Regulation and how. A recent Access blog post revealed that as well as many heavily-redacted documents, one interesting email was provided in its entirety: The email is between staff working at the [National Telecommunications and Information Administration] of the [US] Department of Commerce. The email makes reference to the drafting of one of the lobby documents the Obama administration produced to influence the outcome of the data protection reform package (read EDRi’s analysis on the paper here). This is one of the many documents which likely contributed to a diluting of the Data Protection Regulation even before the proposal had been made public. The email indicates that Commissioner Malmström and/or her cabinet had been sharing information with the U.S. Mission in the E.U., including appropriate times to publish the lobby document, information about internal politics within the Commission, and concerns about how the proposal for a Data Protection Directive could conflict with E.U. and U.S. Law Enforcement interests. That's pretty shocking since, if true, it means that one of the most important departments of the European Commission, headed by the senior politician Cecilia Malmström, was actively working to weaken the proposed Regulation. According to Access: For many who have been following the E.U. privacy reform debate closely, this trans-Atlantic cooperation was an open secret. However, until now, it has not been possible to demonstrate DG [Directorate-General] Home's maneuvers. Beyond the implications for the Data Protection Reform, the contents of the acquired document give cause for concern about Ms. Malmström’s suitability for leading EU negotiations with the USA on the Transatlantic Trade and Investment Partnership (TTIP), given that she has recently been chosen E.U. Commissioner-designate for Trade. That last comment refers to the fact that Malmström, the current head of the department involved, DG Home, and thus with ultimate responsibility for her staff's actions, has been proposed as the new EU commissioner for trade, who would therefore take over the negotiation of TAFTA/TTIP from Karel De Gucht. Naturally, the possibility that her department was colluding with the US side to undermine data protection in the EU would not inspire confidence in her for this new role. As part of her appointment process as trade commissioner, Malmström was questioned by Members of the European Parliament during a three-hour session on Monday. As well as being asked about key issues like corporate sovereignty -- she said that she won't take it out of CETA, but doesn't exclude the possibility of removing ISDS from TTIP -- she was also challenged on the allegations from Access, and replied as follow: I have read those allegations; I totally reject them. I have always defended the European data protection proposals internally and externally. These are based on misconception or on lies and I think I have shown to this Parliament and other committees that I can negotiate with the United States tough agreements, where we stand up for European values, and I will certainly continue to do so. So I totally reject false allegations based on alleged leaked emails. I have always stood up for this formally, publicly and in all informal discussions. Access has now replied to her statements (pdf), pointing out: You have systematically refused to comment on "these allegations" from "a leaked email". The document in question, referenced as "JN 656", is neither an allegation nor a leak. It was legally acquired by Access on July 14, 2014, through a freedom of information request. Access then went on: The clear implication of your statement is that the email in question is not genuine. We therefore demand an immediate clarification: Are you accusing Access or the US Department of Commerce of having falsified a document? Although it seems likely that Malmström will be confirmed as the new trade commissioner, it also looks like this story will rumble on for a while yet. How it will end is anyone's guess. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Blue Spike LLC is a patent litigation factory. At one point, it filed over 45 cases in two weeks. It has sued a who's who of technology companies, ranging from giants to startups, Adobe to Zeitera. Blue Spike claims not to be a troll, but any legitimate business it has pales in comparison to its patent litigation. It says it owns a "revolutionary technology" it refers to as "signal abstracting." On close inspection, however, its patents1 turn out to be nothing more than a nebulous wish list. Blue Spike's massive litigation campaign is a perfect example of how vague and abstract software patents tax innovation. The basic idea behind Blue Spike's patents is creating a digital fingerprint (which the patents refer to as an "abstract") of a file that allows it to be compared to other files (e.g. comparing audio files to see if they are the same song). In very general terms, the patents describe creating a "reference generator," an "object locator," a "feature selector," a "comparing device," and a "recorder." You will be amazed to learn that these five elements "may be implemented with software." That task, however, is left for the reader. Even worse, Blue Spike has refused to define the key term in its patents: "abstract." In a recent filing, it wrote that even though the term "abstract" is "a central component to each of the patents," a single definition of this term is "impossible to achieve." This is a remarkable admission. How are defendants (or the public, for that matter) supposed to know if they infringe a patent when the central claim term is impossible to define? This is a perfect illustration of a major problem with software patents: vague and abstract claim language that fails to inform the public about patent scope. Admitting that the key claim term in your patent is "impossible" to define is probably not a great litigation strategy. And the defendants in some of Blue Spike's cases have already protested that this means the patents are invalid. The defendants should win this argument (especially since a recent Supreme Court decision tightened the standards applied to vague and ambiguous patents). Though regardless of whether the defendants prevail, Blue Spike's litigation campaign has already imposed massive costs. Blue Spike's patents illustrate another major problem with software patents: vague descriptions of the "invention" that provide no practical help for someone trying to build a useful implementation. This is why many software engineers hold patents in low regard. As one programmer told This American Life, even his own patents were little more than "mumbo jumbo, which nobody understands, and which makes no sense from an engineering standpoint." You can judge for yourself, but we contend that Blue Spike's patents consist similarly of little more than legalese and hand waving. Real products take hard work. A commercially successful product like the Shazam app (one of Blue Spike's many targets) is likely to consist of tens of thousands lines of code. Actually writing and debugging that code can require months of effort from dozens of engineers (not to mention the fundraising, marketing, and other tasks that go into making a real-world product successful). In contrast, it's easy to suggest that someone create a "comparison device" that "may be implemented with software." Last month, we selected a bizarre patent to illustrate that the Patent Office conducts a cursory review of applications. In contrast, this month's winner is not so unusual. In fact, Blue Spike's patents are typical of the kind of software patent that we see in litigation. That such a low-quality patent family could fuel over 100 cases is a stark illustration of the problem with software patents. Dishonorable mentions: US 8,838,476 Systems and methods to provide information and connect people for real time communications (a patent on presenting an advertisement at the outset of a "telephonic connection") US 8,838,479 System and method for enabling an advertisement to follow the user to additional web pages (Lots of patentese that says put an ad in a frame and keep the frame constant as the rest of the page changes. Awesome.) US 8,818,932 Method and apparatus for creating a predictive model (this patent claims to apply the "scientific method" to "the problem of predicting and preventing violence against U.S. and friendly forces" and includes hopelessly vague claim language such as "verifying causal links" and "utilizing the social models to … predict future behavior") Reposted from the Electronic Frontier Foundation Permalink | Comments | Email This Story

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We've covered plenty of strange and interesting input devices, and usually, the aim of these things is to simplify and make it faster to input information into our technological gadgets. Sometimes, though, you can only simplify a user interface so much, and it's still really, really complicated. Designers can "make things as simple as possible, but not simpler" -- and here are just a few examples of some interfaces that enable an amazing amount of input choices. The Thrustmaster HOTAS Warthog is not your average joystick, and it's not cheap, either. This game controller is not for button-mashers. It has thousands upon thousands of possible inputs for the most complex flight simulators, and it will definitely take some time to learn how to use. [url] The Ableton Push makes digital music seemingly easy to create on a keyboard that has all kinds of hardware UI features. It looks like the 80s game Simon on steroids, and it literally demonstrates what it means to have a lot of bells and whistles. [url] Formula One steering wheels are a bit more complicated than your typical sedan's instrument panel. Ferrari test driver Marc Gene briefly explains the various buttons and knobs on his personalized steering wheel, and it looks like it could be a bit of a distraction while driving at high speeds. [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 20 days ago on techdirt
The FBI's Next Generation Identification (NGI) database has been discussed here several times, thanks to its "expeditious" blend of criminal and non-criminal data, its postponed-forever Privacy Impact Assessment the agency has been promising since 2008, the limited, four-state rollout of facial recognition software with a 20% error rate, and its peculiar exclusion of DOJ/law enforcement employees from its lifelong criminal database monitoring. It appears the FBI isn't satisfied with the wealth of biometric information it already has access to. It's grabbed everything external it can possibly get (faces, distinctive marks, fingerprints, civil/criminal records, voice recordings, iris scans [coming soon!]). Now, it's coming for what's inside you. The FBI is preparing to accelerate the collection of DNA profiles for the government's massive new biometric identification database. Developers of portable DNA analysis machines have been invited to a Nov. 13 presentation to learn about the bureau's vision for incorporating their technology into the FBI's new database. So-called rapid DNA systems can draw up a profile in about 90 minutes. DNA has been an integral part of criminal investigations for a number of years now and there's no question it has played an important role both in securing convictions and exonerating the falsely accused. But what the FBI is proposing is adding input from lab-in-a-box setups that return pass/fail DNA matches in a relative instant. Rapid DNA analysis can be performed by cops in less than two hours, rather than by technicians at a scientific lab over several days. The benefit for law enforcement is that an officer can run a cheek swab on the spot or while an arrestee is in temporary custody. If there is a database match, they can then move to lock up the suspect immediately. What used to take days in a secure, sterile lab now can apparently be accomplished in the "field" in a couple of hours. All technological improvements aside, this would appear to be a much less reliable method. Field drug testing kits have been available for years -- which utilize nothing more complex than chemical reactions -- and they've been shown to be far more unreliable than those utilizing them would have you believe. The same can most certainly be said about portable or on-site units wholly divorced from the normal constraints of a lab setting. The government (so far) realizes this. That's why DNA obtained and analyzed by these units aren't included in the national DNA database. Only results from accredited public-sector laboratories are accepted. The companies manufacturing these devices are obviously interested in seeing this law changed. In the meantime, they've pushed for states to create their own DNA databases. The FBI would like to see this changed as well, going so far as to issue a statement that is mostly wishful thinking. FBI officials say their program does not impact any laws currently governing the operation of CODIS. Rapid DNA techniques in booking stations, “will simply expedite the analysis and submission of lawfully obtained samples to the state and national DNA databases,” [Ann] Todd, the FBI spokeswoman, said. Except that it would impact laws governing CODIS… as they are today. A legislative tweak is needed to allow DNA processed by a portable machine to be entered into the FBI's systems, bureau officials acknowledge. Again, the FBI places efficiency above everything else. "Tweaking" the law to include portable devices would "expedite" the filling of the FBI's biometric database. Faster is better, even if the analysis method isn't as reliable as that performed by accredited labs. False positives/negatives are just the acceptable collateral damage of "combating crime and protecting the United States." There's a huge backlog of untested DNA waiting for CODIS-qualified lab analysis. Offloading some of the work to private labs or portable devices sounds like a great way ease that congestion, but it actually could create more problems. If the government believes that only its chosen labs are capable of producing solid analysis, fixes like those suggested by three California Congressional reps would ask law enforcement (including the FBI) to decide which evidence goes the Gold Standard labs and what gets passed along to the lesser, unproven venues. When presented with this set of options, law enforcement may prioritize cases badly, routing "time-sensitive" evidence through unproven but quicker analysis while sending out anything that can "wait" to the government's labs. Basically, without an across-the-board certification of all methods (with rigid testing and re-testing to ensure quality) as being equal, there's a good chance collected DNA will be treated just as prejudicially as the suspects themselves. And, if the expansion of CODIS inputs isn't handled with rigorous oversight, the chances of the guilty going free and the innocent being imprisoned increases. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Over the last few months, since the Supreme Court's ruling in Alice v. CLS Bank, we've been noting the good news that the courts seem to be interpreting the ruling to invalidate a ton of software patents. Even some trolls have decided to just give up after seeing how the Alice ruling is being interpreted. A new analytical study of patents held by big tech companies, done by ktMINE, suggests that more than half of Google and Microsoft's patents are invalid under Alice. The biggest loser of all, however, may be Oracle, with an astounding 76% of all of its patents vulnerable to the ruling. Twenty five companies are listed -- and there are some interesting ones. Rockstar -- which is a patent troll "privateer" set up by Microsoft and Apple has 31% of patents at risk. Intellectual Ventures has 24% of its patents at risk (I would have expected more). IBM -- which has a tremendous patent portfolio -- has 49% at risk. The article suggests that this may have a major impact as these companies lose "vitally important strategic assets," but that's generally almost entirely bogus. Other than for the trolls, where these patents are their only "asset" (if you can call them that), for operating companies, patents have always been much more of a hindrance than a benefit. Many of the companies in the list have a huge patent portfolio mainly for defensive, rather than offensive reasons, and the patents have little to do with day to day operations. They have almost no impact on how the company is actually innovating or growing. In fact, as we've seen, patents are generally only useful for companies that are on the downswing, as they lash out at innovators who are on the upswing. If there were a real concern here, it's likely that we would have seen it in the stock prices of these tech companies -- but most of the companies on the list shrugged off the decision (or are even happy about it) because they can just focus on innovating, rather than bogus, wasteful lawsuits. In fact, it might make for an interesting study to look at the impact of the Alice decision on the stock prices of these companies, and note how little the patent portfolios they hold are really worth, given the likelihood that so many are invalid.Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
All last week, we saw law enforcement types freaking out about the news that Apple and Google were making phone encryption a default. While a good step in the right direction, this was really kind of a minor thing, only protecting a small bit of information -- and yet law enforcement folks went nuts. So just imagine how crazy they'll go if Tor were embedded directly into Firefox as the default "private browsing mode," as was recently hinted at by Tor exec director Andrew Lewman. Even though private browsing mode still isn't even used that much, adding Tor automatically to it would be quite handy for those who wish to have greater control over their privacy, but haven't gone through the trouble of setting up Tor themselves. Lewman didn't name the browser that has been thinking about this, but did say it had 10 to 20% of the market, which suggests Firefox is the most likely partner. Though, frankly, it would be nice to see this as a feature on all browsers. Still, I imagine that if that happens, we'll see a similar freakout from the FBI, DOJ, NSA and others, insisting that actually protecting user privacy is somehow better enabling criminals and terrorists. Of course, the truth is that most criminals and terrorists do plenty of other things to reveal themselves. Very, very, very few people are competently able to hide any and all behavior against even semi-competent detective and intelligence work. But what further expanding Tor can do is better protect perfectly legal and innocent behavior from being tracked and abused.Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
The internet is chock full of bad legal advice, but it's a bit odd to see it posted on a site for a large insurance company. Insurance company The Hartford* apparently has a website full of "small business" advice. This, by itself, is not a bad idea. Providing good content that people want is something that many companies should be doing. But the key here is "good content." Which brings us to the following article that's been passed around a few times among lawyers on Twitter. Officially, it's an article describing "5 Easy Ways to Get Sued Over Online Content & Social Media" written by Deb McAlister-Holland. Here's the stunning thing about it: nearly every word in the thing is dead wrong. Honestly, there's so much that's flat out wrong that we wouldn't even have the time to go through it all, unless we did basically nothing else today. So we'll just pick a few of the more ridiculous low-lights. It starts off with an unsubstantiated claim that the CFAA is the cause of "much of the rise in litigation," but then jumps right into the fire with a discussion on copyright infringement that begins with this line that is, uh, just wrong: There is no defense against copyright infringement. Either you created it or paid for it, or you can’t use it. It’s that simple. Except there are many, many, many defenses against claims of infringement, from fair use to de minimis use to copyright invalidity to the statute of limitations has passed and more and more and more. A simple Google search might help. Either way, if you're unfamiliar with the concept of fair use, you shouldn't be writing about copyright. No receipt, no written permission, no link to a Creative Commons license? You lose. Except, that's not true. I mean, let's just look at just a few of the cases we've written about in just the past few months, where there was no receipt, no written permission and no link to a Creative Commons license -- and in all of those cases, the person or company using the content won. This is just bad legal advice. The automatic “remedy” for the winner is triple damages: you pay three times the value of the material on which you infringed. Who sets the value? The guy who is suing you. None of that is even close to accurate. There's an entire section of copyright law 17 USC 504 devoted to remedies for infringement that you'd think someone writing about this would have (perhaps) Googled first. First of all, there is no "automatic" remedy. The judge or the jury sets the damages within certain guidelines. Statutory damages tend to be the standard, rather than actual damages. The "value" of the material is considered almost entirely irrelevant in statutory damages (and frequently irrelevant in the rare "actual damages" cases). Treble damages are only awarded in cases of willful infringement, and is not based on "the guy who is suing you." So, if you can, take advantage of the “ safe harbor ” provision of the Digital Millennium Copyright Act (DMCA) and remove the offending content as soon as you are notified of a possible copyright problem. Just removing the offending content may not prevent you from being sued or being required to pay damages, but it can reduce the amount of damages owed in a successful suit. At least this time McAlister-Holland actually references something associated with copyright law (the DMCA), but does so almost entirely incorrectly. Since the original setup of the piece is about "content marketer" (what the hell is that?) and writers getting sued, the DMCA safe harbors almost certainly wouldn't apply in the first place, since they're about protecting service providers (intermediaries) from infringement done by end users (such as the writer). So, while it's correct to say that the service provider can be protected via the safe harbors by removing infringing content upon notification, almost everything else is wrong. Also, the whole point of the safe harbors is that it does, in fact, stop you from having to pay damages. That's why it's a safe harbor. It has nothing to do with reducing the amount of damages. The original writer, however, may be sued either way, but the safe harbors do nothing to with the damages for that individual. Either way, the entire paragraph is a confused jumble of wrong. Next up, McAlister-Holland suggests that people writing reviews online, such as on Yelp, are potentially opening themselves up to tortious interference claims. While it's true that angry plaintiffs in online review cases will almost always toss in a "tortious interference" claim in any lawsuit, the idea that a typical review will be tortious interference is laughable. And yes, you could get sued for just about anything, but it doesn't mean the lawsuit is legitimate. From there, she discusses defamation in a manner that is... misleading, at best. Here's a note: when discussing the specifics of a law, don't use non-legal dictionary definitions. She even brings up criminal defamation as a possibility, despite it being exceptionally rare. Besides, it's a very odd article that highlights criminal defamation but never gets into the details of the high bar associated with defaming a public figure (she only mentions that the rules vary based on public or private individuals, never explaining how or why). Also, this: One thing to remember here is that defamation is in the mind of the reader and the outcome. Intent may (or may not) matter. I don't even. "Intent may (or may not) matter"? NYT v Sullivan establishes that there needs to be actual malice in posting false information about public figures. Intent very much matters, and the "mind of the reader and the outcome" matter almost not at all. She then cites... a Canadian case to prove her point. She might want to research the (rather extreme) differences between US and Canadian defamation laws. I mean, she might as well pick on defamation laws from the UK or, hell, Saudi Arabia, if the intent is to warn you to avoid any global defamation. The final section is on publicity rights, and again, gets an awful lot wrong: The right of publicity is what can bite you if you’re one of those people who posts every photo you take on Facebook, with no regard to the preferences or feelings of other people in the photo, or when you use material that is strongly identified with a person. It’s why all those “tribute” bands are “tributes” instead of knock-offs: words matter, and how you present someone else’s intellectual property matters. Now, publicity rights are state-based laws, and they vary greatly by state, but I'm hard-pressed to see how any of the situations listed above have anything at all to do with any publicity rights laws. Publicity rights laws tend to be about preventing the commercial exploitation of an individual's identity -- with the most standard example being using a famous person's likeness in an advertisement without their approval, suggesting an endorsement. So get permission before you publish long excerpts from someone else’s blog (or, heaven forbid, pick up and reblog the whole thing as a “guest post” when they were never asked if they were willing to be a guest blogger on your site), and especially get permission before you publish photos of any identifiable person (that means someone who could be identified in a photo, whether you know who they are or not) without their permission. So that first part has nothing to do with rights of publicity, but is a copyright issue (which you'd think she'd know given that she has a section on copyright in this very article). And while there might be some cases where you could argue that posting a photo of an identifiable person without permission might lead to a publicity rights case, it's a stretch. There's the Katerine Heigl situation, of course, but that involved a drug store tweeting a picture of her carrying a bag walking out of one of their stores (and, even then, it seemed like a huge stretch for publicity rights). Merely posting a picture of someone famous to your Facebook? Not a publicity rights issue. There's then a paragraph that walks back what she says, suggesting it is okay to post photos of famous people if you don't suggest they endorse "you." Then there's this: The people most likely to lose their jobs or get sued for a breach of the right to privacy are health care workers, cops, teachers, and anyone who works for any government agency. Huh? I don't even know what that means. How are health care workers violating someone's publicity rights? And, then suddenly, we're back into defamation. Or something: Context is important, too. If you pick up a generic photo of a bell man or hotel desk clerk, the individual pictured could make a claim for defamation (if it might be construed by the reader that the pictured individual provided bad service because the blog post is about a bad hotel experience). Anyway, after some legal folks on Twitter started discussing the article, with Ken "Popehat" White summing it up as: "STOP MAKING PEOPLE STUPIDER, ASSHOLES," McAlister-Holland claimed that the piece was "heavily edited" from something she wrote, and that The Hartford version "introduc[ed] many errors." She further claimed that it "does not represent my work." However, others like Asher Langton pointed out that the original version, since deleted from her own website was still available via Google cache and archive.org, showing the same questionable analysis of the law. She also claims that the link is "unauthorized": Except that The Hartford's site claims it licensed it via NewsCred, a marketplace that content providers such as bloggers can use to syndicate their work. Of course, if that's false (which seems unlikely), perhaps McAlister-Holland could have a legitimate claim of copyright infringement. Wouldn't that be ironic? Anyway, there are lots and lots of problems with the article (even beyond the ones we discussed), but the real question here is why is a credible business like The Hartford reposting such crud? Not only is it woefully inaccurate, it only seems likely to encourage frivolous litigation based on repeating the bad legal theories in such a blog, now with the "credibility" of The Hartford behind it. That just seems like a bad content strategy all around. *Disclaimer: Last year, The Hartford briefly sponsored a few of our posts, but had no editorial control over the content of the posts. And, we think those posts were significantly better than the crap discussed above.Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
One of the key points that many people have been making for decades is that copyright infringement likely wouldn't be such a big problem if they actually made works more available in convenient and reasonable ways. This was never an excuse for infringement, but an explanation and a suggestion on ways to minimize the amount of infringement happening. For the past few years, the big legacy copyright holders have been trying to spin things, claiming that they've made stuff "available," and since there's still "infringement" they obviously need new laws to better "protect" their works. They're basically claiming that because the works are now available in some format, the whole "availability" argument is debunked. Except, of course, they're ignoring the full equation. It's not just about making it available, but making it convenient and reasonably available. Instead, the MPAA frequently touts annoying and inconvenient offerings no one uses, claiming disingenuously that this proves the availability argument is untrue. The latest is that NBC Universal (the driving force behind many MPAA efforts) has commissioned a study from KPMG on the availability of film and TV titles. The clever folks at KPMG have hidden the important factors in the aggregate stats, looking at a big list of 34 services, and saying that as long as a film or TV title are available on one of them, it's "available." But this conveniently buries the more important stat, dug out by TorrentFreak, that the study actually shows over 80% of top film titles are not available on Netflix, which is, by far, the most popular streaming movie service. Rather than admit this, of course, the MPAA instead has decided to trumpet its friends' misleading coverage of the misleading report (pretty sure nearly everyone in its list has received money from the MPAA). Many of the MPAA's friends insist, incorrectly, that the report shows that these films are widely available, rather than admit the truth -- which is that they're narrowly available, often in inconvenient ways, separated from how people want to watch (and pay for!) those films. It would be nice if the MPAA were legitimately interested in reducing infringement by improving innovation and allowing more services to flourish. But it has yet to show any honest intentions on that front, preferring bogus and misleading reports like this one.Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Theresa May, the current UK Home Secretary, has announced that, if re-elected, her party (the Conservatives) will push for "extremist disruption orders" which would effectively ban people declared "extremist" (using a very broad definition) from using social media or appearing on TV. Extremists will have to get posts on Facebook and Twitter approved in advance by the police under sweeping rules planned by the Conservatives. They will also be barred from speaking at public events if they represent a threat to “the functioning of democracy”, under the new Extremist Disruption Orders. The broad definitions here matter. Part of the plan is to make such rules cover a wide variety of groups and individuals, based on what the government "reasonably believes" they may be up to: Under the Tories' new proposals, groups that cannot currently be proscribed could be subject to banning orders should ministers "reasonably believe" that they intend to incite religious or racial hatred, to threaten democracy or if there is a pressing need to protect the public from harm, either from a risk of violence, public disorder, harassment or other criminal acts. Yes, if the government "reasonably believes" you engage in harassment at some point in the future, it can have you declared an extremist, bar you from TV and public events, and make sure that all your social media posts are pre-reviewed for approval. Supporters flat out admit that this would be done to get people who are currently doing things that are perfectly legal: The new orders will be part of the Government’s “Prevent” strategy, which tackles the ideology behind the terrorist threat. So-called hate preachers, who currently stay just within terrorism legislation, will be one of the targets of banning orders and Extremism Disruption Orders (EDOs). But, of course, things like that imply that it will only be used against "terrorists" or terrorist sympathizers. But, as the details make clear, this expands way beyond terrorism to those who may be involved in other offenses. Big Brother Watch details how environmental groups may be tied up by this: The fact that these Extremist Disruption Orders won’t only apply to potential terrorists, but simply to those who present a threat to public disorder, clearly highlights that this policy is the thin end of the wedge. We were told that the National Extremist Database would contain details of those who posed a nations security, yet we know members of the public who have done little more than organise meetings on environmental issues are on the database. What's especially galling is the fact that May is claiming that this is being done in the name of "British values," which certainly suggests that freedom of speech and freedom to associate are, in fact, antithetical to British values. Also, all of this assumes that speech, alone, is somehow dangerous -- despite years of proof that speech by itself is rarely dangerous. However, the suppression of speech often creates more problems.Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
This isn't a huge surprise given how similar lawsuits have gone, but the various major record labels (including Universal Music, Sony Music and Warner Music) more or less won all of their arguments against Grooveshark in a ruling yesterday. As the ruling makes clear, Grooveshark's founders more or less sunk themselves into a deep, deep hole early on by effectively admitting that their plan was to encourage lots and lots of infringement to grow really big -- and then hope that the labels would eventually do licensing deals based on their size (which actually worked, ever so briefly, with EMI). The piles of evidence supporting the early actions of the company and its execs is pretty damning, and more or less undermines the company's later claims that it was really no different from YouTube. Just the fact that company execs specifically went and reuploaded songs that were taken down by DMCA notices is incredibly damning. Basically, Grooveshark didn't even do anything to hide its attempts to infringe. There are cases where the evidence can be read in multiple ways -- including the Megaupload situation, where many of the charges against the company seem to involve taking statements out of context. But with Grooveshark, the evidence is pretty damning that the company and its execs not only knew that what they were doing was illegal, but actively sought to do more infringing things without regard to the legal impact of those decisions. Hell, the company's own DMCA alert system sent notices to tons of the company's own employees -- including top execs -- for uploading infringing works. On top of that, there was some suggestion that Grooveshark then sought to delete or hide the evidence of those uploads. Basically, almost everything Grooveshark did was incredibly stupid under the law. And they got caught for it, and will now have to pay up. Take, for example, this internal forum post one of the company's co-founders posted to everyone at the company: Please share as much music as possible from outside the office, and leave your computers on whenever you can. This initial content is what will help to get our network started—it’s very important that we all help out! If you have available hard drive space on your computer, I strongly encourage you to fill it with any music you can find. Download as many MP3’s as possible, and add them to the folders you’re sharing on Grooveshark. Some of us are setting up special “seed points” to house tens or even hundreds of thousands of files, but we can’t do this alone… There is no reason why ANYONE in the company should not be able to do this, and I expect everyone to have this done by Monday… IF I DON’T HAVE AN EMAIL FROM YOU IN MY INBOX BY MONDAY, YOU’RE ON MY OFFICIAL SHIT LIST. And there's this: In 2009, Escape received numerous Digital Millennium Copyright Act (“DMCA”) takedown notifications from copyright holders demanding that it remove infringing copies of popular copyrighted songs from Grooveshark.... These ‘takedown’ notices threatened to diminish the Grooveshark music library.... As a result, Escape considered various methods so that users would not be denied access to any songs because specific infringing files were removed.... As part of this process, Escape’s senior officers searched for infringing songs that had removed in response to DMCA takedown notices and re-uploaded infringing copies of those songs to Grooveshark to ensure that the music catalog remained complete. And then this one, on one of the co-founders (and the company's CTO) not just getting a bunch of DMCA notices (the ruling doesn't even get into the fact that it's obvious that the company's repeat infringer policy wasn't working, even if it was in place), but then having evidence disappear: Greenberg received over thirty-nine DMCA notification letters from Escape for uploading 687 files to Grooveshark.... This means that Greenberg uploaded at least 687 sound recordings onto Grooveshark and that the UsersFiles should reflect these uploads.... [....] Plaintiffs requested that Escape produce any archived copies of Greenberg’s uploading records and explain why his data was missing.... Defendants confirmed that no archived copies of Greenberg’s records exist.... Given Escape’s practices with respect to the creation and storage of upload data on the UsersFiles, Dr. Horowitz, plaintiffs’ expert, concluded that defendants deleted the uploading records associated with Greenberg’s account. In most other cases like this, there are often important legal issues, and frequent attempts at distorting what actually happened. But in this case, it honestly looks like Grooveshark just flat out did everything possible to infringe on copyrights at every turn, directly encouraging employees to do so, and having a stated policy of trying to infringe as much as possible to get as big an audience as possible in the belief that the labels would then license. It didn't work and the company and its founders are doing down because of it.Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
We've been following Capitol Records' (EMI) lawsuit against MP3Tunes and Michael Robertson for a long time now, in part because the lawsuit has been going on forever, with lots of back and forth (and it's still at the district court level!). Back in March, the jury hit Robertson with a bill for over $40 million for his personal involvement with MP3Tunes. As we noted, there were plenty of issues with the ruling, especially with the idea that MP3Tunes was "willfully blind" in creating its music locker. Robertson challenged many of the jury's findings, and we noted that the most important one was the willful blindness. The judge, William Pauley, has now ruled and it's a mixed bag of just about everything, including the judge berating both parties for their approach to this lawsuit. On the whole, Robertson still loses big time, but not quite as big as before. And, on the issue we found most important -- willful blindness -- the judge has overruled the jury, noting that under the standard in the Viacom v. YouTube case, MP3Tunes was not willfully blind (except for one track where they had been alerted to an infringing copy). That's big and very important, given the potential chilling effects the willful blindness ruling would have had on other startups in the digital locker space. Red flag knowledge requires awareness of facts that would have made specific instances of infringement objectively obvious to a reasonable person.... General knowledge is insufficient. For example, knowledge that a high percentage of content on a domain is infringing does not establish actual or red flag knowledge of particular instances of infringement.... In this case, MP3tunes lacked even general knowledge. Even if MP3tunes tracked domains posting infringing files, a fact not in evidence..., MP3tunes would still need to investigate how much content the domain hosted before it could calculate what percentage was infringing. To ascribe red flag knowledge to MP3tunes because it was possible for MP3tunes to research and identify other instances of infringing content hosted by these domains and sideloaded by users would "mandate an amorphous obligation to 'take commercially reasonable steps' in response to generalized awareness of infringement." ... But the DMCA imposes a duty on providers to track repeat infringement by users, not third parties.... The same reasoning disposes of the willful blindness argument. Imputing knowledge to MP3tunes would impose an obligation to affirmatively monitor content, which would contravene section 512(m)'s clear instruction that no such obligation exists.... Therefore, Robertson's motion for judgment as a matter of law is granted as to his liability for secondary infringement of tracks sideloaded by users from these domains. This is the good news from the ruling. Robertson also more or less won on the issue of whether or not the cover art images that showed up in MP3Tunes were infringing. That was one of the many ridiculous side notes in the whole thing. One other thing that turned out somewhat well was on the question of whether some of the penalties given to Robertson by the jury were unconstitutionally excessive. This is a claim that has previously been tried (unsuccessfully) in the famed Jamie Thomas Rasset and Joel Tenenbaum trials. But here, it actually worked somewhat. The court goes through the different factors to determine if a monetary award is excessive, given the actual harm, and concludes: Viewed holistically, the punitive damages award violates due process. Still, the judge argues there's plenty of reasons to punish Robertson, just not to the punitive damages tune of $7.5 million as the jury originally decided. The court reduces that to $750,000, but offers EMI the chance to hold yet another trial just over this issue (which would only add yet another chapter in this incredibly long saga). And of course, none of this even touches on the possibility of appeals (from both sides), which may still happen... However, there's plenty of worrisome aspects to this new ruling as well. After the willful blindness issue, our biggest concern was the tertiary liability claims that EMI was making against Robertson. That is, we've now seen that secondary liability is a possible for copyright infringement (i.e., you can be guilty for someone else's infringement), even though that makes little sense. However, in this case, EMI advanced an even more tenuous argument: that Robertson was tertiarily liable for MP3Tunes' secondary liability of its users direct infringement. Unfortunately, the judge says this is fine, arguing that while the judge in the Napster case rejected such a theory, the judge in the Limewire case accepted it, and thus "tertiary liability" is a perfectly reasonable thing. That's going to have some serious chilling effects -- just wait and see. The court also makes one interesting note concerning the Aereo ruling. EMI sought to use the Aereo ruling as evidence that MP3Tunes was guilty of "public performance" of the works as well, but the judge (thankfully) shut that down, noting that the Supreme Court in Aereo was clear that the ruling only applied narrowly to that specific case: Plaintiffs also argue that the Supreme court's opinion in Aereo establishes that the third-party websites performed the work publicly. But the Supreme Court expressly excluded "novel issues not before the Court, as to which 'Congress has not plainly marked [the] course.'" ... Because the third-party domains here are not "substantially similar" to a community antenna television provider, they are beyond Aereo's reach. Phew. Aereo bullet dodged there, for now. Then we get around to the berating. The judge gets on the EMI execs' cases for how they treated the case, and their ongoing refusal to reveal the dates of the releases of various songs, despite being asked repeatedly. But the real slamming comes for Robertson, who apparently put on quite a show on the witness stand. While that may work in Hollywood movies, or made-for-CNN trials, it doesn't often work in real life, and it appears not to have worked here. The judge's own description of Robertson's appearance indicates that no one bought the performance at all: This Court observed Robertson's demeanor on the witness stand. No transcript can capture his whole affect; you really had to be there. The judge then reposts Robertson's somewhat lengthy and bizarre discussion of childhood abuse, which seemed to serve no purpose other than to (try to) tug at the heartstrings of the jury. The court (and the jury) were not impressed: This seemingly rehearsed, five-minute fable-like narrative left the jury nonplussed and Plaintiffs' counsel shell-shocked. It was a dramatic presentation. Even if true, Robertson's decision to spin this yarn backfired on him. The jury saw it for what it was--a transparent attempt to tug at their heartstrings. Plainfiffs' counsel failed to appreciate what the jury grasped and reflexively moved for a mistrial claiming unfair prejudice. But Robertson's manipulative conduct only prejudiced him and that prejudice was not unfair. In denying Plaintiffs' motion, this Court observed "[j]urors see through performances, and the Oscars are over for this year." The jury's verdict demonstrated that this Court's observation was spot on. Ouch.Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Here on Techdirt we've been pretty scathing about the way that Big Pharma develops drugs -- often poorly -- and then uses patent monopolies to keep prices so high that only rich Westerners can afford them. Of course, it's easy to complain about the flaws of the current approach, but are there any alternatives? We've already covered one -- using prizes - and now Carl Levinson points us to another potentially powerful approach: crowdsourcing. It's already been adopted by 'Project Marilyn' to develop a patent-free anti-cancer drug: The campaign will fund a xenograft experiment, which is the next step in developing the promising anti-cancer compound "9DS". This experiment needs to be completed before 9DS can move on to clinical trials. Here are some more details of both the drug and the project: The drug candidate 9DS was developed at the University of Maryland. The last work done on the drug showed that it had activity against cancer competitive with leading cancer drugs such as taxol. Moreover, 9DS is also likely to have lower side effects than most chemotherapies, since a related compound, SJG-136, seems to have low side effects in early clinical trials. Project Marilyn involves: production of more 9DS, and submitting 9DS to a xenograft study ('curing cancer in mice'). This is the next step in drug development and an important one on the way to doing clinical (human) studies. The process we're seeking to fund should take approximately 6 months. If we receive more funding, we will add stretch goals, such as further preclinical experiments on 9DS, development 9DS analogs, or other exciting anti-cancer ideas. Of course, even if enough money is raised -- at the time of writing, just over a quarter of the crowdfunding target has been pledged -- there's still much more work to be done before the drug can be sold to the public. An article in the Times of San Diego explains what will happen next: Provided that the xenograft study goes well, 9DS will move into further preclinical trials, possibly through a collaboration with a for-profit company. Research and development at the later stages costs between $1 million and $10 million and will likely not be crowdfunded. Due the drug's patent status, the threat of competition is likely to keep the price of 9DS low, regardless of a partnership with a for-profit company. Currently, when a drug loses its patent status, the price can come down ten-fold, according to [project leader Dr. Isaac] Yonemoto. It's only a small-scale project, but it's exciting to see new funding models being tried out for drug development. Moreover, the Times of San Diego reports that Yonemoto wants his site indysci.org to host further crowdfunded projects, both from himself and other researchers. Let's hope enough pledges are made, and that others do indeed start to build on the idea. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Techdirt has written often enough about how copyright is used to censor criticism. QuestionCopyright.org has an interesting post that offers a variation on that theme: copyright getting in the way of a scientific debate. A band of researchers has been tirelessly trying to demonstrate that a body of scientific work which rests on a paper from over 10 years ago is completely wrong. The only problem is, their argument isn't being allowed to stand or fall on its merits -- instead, copyright restrictions are interfering with their ability to make their case at all. The issue is that in order to make their case, the researchers need to re-use figures from one of the papers they are questioning. Unfortunately, fair use doesn't necessarily help here, because the journal publishing their new paper, Public Library of Science (PLOS) ONE, uses the Creative Commons Attribution (CC-BY) license for all its material. Fair use cannot be used to change the license under which the images are released -- only the copyright holders can do that, which means the latter are effectively able to block their republication in PLOS ONE: [The publisher] Wiley has responded ... saying that while they'll allow re-use with no fee under standard copyright, they won't simply relicense the images to be compatible with PLOS ONE's non-restrictive distribution policy. (What Wiley actually says is that they are "unable to change [the images'] copyright status", which is simply false.) It isn't yet clear how this will be resolved. Offering the image at no fee for this one use is not a particularly helpful move on Wiley's part: the restrictions would still be quite onerous, because Wiley's one-off exception would not be passed along to PLOS ONE's readers — instead, they too would have to ask Wiley for permission if they wanted to use the figures in a scientific critique... and so on, ad infinitum. But over on the Scholary Communications blog at Duke University, Kevin Smith doesn't think that's the case: the claim that you cannot include material used as fair use in a CC-licensed article is bogus. In fact, it happens all the time. I simply do not believe that no one who publishes in PLoS journals ever quotes from the text of a prior publication; the ubiquitous academic quotation, of course, is the most common form of fair use, and I am sure PLoS publishes CC-licensed articles that rely on that form of fair use every day. The irony of this situation is that it points out that PLoS is applying a standard to imagery that it clearly does not apply to text. But that differential treatment is not called for by the law or by CC licenses; fair use is equally possible for figures, illustrations and text from prior work, and the CC licenses do not exclude reliance on such fair uses. The solution, he suggests, is the following: I think there is a way forward here, which is for PLoS to agree to publish the article with all of the borrowings under fair use or by permission clearly marked, just as they would do if those borrowings were all in the form of textual quotations. Others -- including PLOS -- may disagree. In any case, what this episode highlights is that bridging the two worlds -- journals published under traditional licenses, and those using ones from Creative Commons -- is not straightforward. Relying on fair use as Smith suggests may not be an acceptable solution for some researchers wishing to publish in open access titles, since they might be unhappy about the lack of legal certainty. With open access, that's simply not an issue, since the license is explicitly designed to allow sharing -- and thus healthy scientific debate -- as a matter of course. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
An enormous amount of cargo travels by boat, and historically, sea transport has been the largest carrier of freight. However, traveling over water isn't a very speedy mode of transportation (typically url] Fast ships taking advantage of ground effect aerodynamics have existed for decades. Russian shipbuilders had many Ekranoplan designs that could fly low over water and efficiently transport large amounts of cargo. There was even a project with a "wing in ground" design for launching spacecraft from the equator. [url] Hydrofoils were also a specialty of Russian shipbuilding, and there could be a minor resurgence in passenger hydrofoils. Some Boeing 929 Jetfoils operate in Asia, but the complexity of hydrofoil vessels is a disadvantage for economical commercial transportation. [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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Issued in 1981, updated in 1991 (to consolidate power, basically) and continuously expanded (mostly unofficially) since 2001, Executive Order 12333 (EO 12333) is what grants surveillance powers to our nation's intelligence agencies. Foreshadowing the severe twisting of the English language that follows (see also: NSA-to-English dictionary), the opening paragraphs note that what certain wording sounds like isn't actually what it means. [pdf link] In spite of the constraining appearance of all the requirements, under E.O. 12333, DoD Directive 5240 .IR, and DIAR 60-4, intelligence activities conducted by the DHS currently have much more latitude and potential for effectiveness than they have had for quite some time. Looks like "constraints" but in practice is hardly anything at all. Covert and clandestine operations ("Special Activities") -- normally limited to the CIA -- are now something any agency can participate in, if given permission to. The meaning of the proscription is not that intelligence components are prohibited from conducting all Special Activities; rather, that such activities must be directed by the President and approved by the Secretary of Defense and the respective Service Secretary. Going on from there, we see the first public instance of the government's redefinition of the word "collection." Procedure 2 introduces the reader of DoD 5240.1-R to his or her first entry into the "maze" of the regulation. To begin the journey, it is necessary to stop first and adjust your vocabulary. The terms and words used in DoD 5240.1-R have very specific meanings, and it is often the case that one can be led astray by relying on the generic or commonly understood definition of a particular word. For example, "collection of information" is defined in the Dictionary of the United States Army Terms (AR 31011 25) as: The process of gathering information for all available sources and agencies. But, for the purposes of DoD 5240.1-R, information is "collected" -... only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties ... (and) an employee takes some affirmative action that demonstrates an intent to use or retain the information. "Collection" is now defined as "collection plus action," rather than the way it's been defined for hundreds of years. "Information held" is not a "collection," according to this document. It still isn't collected, even if its been gathered, packaged and sent to a "supervisory authority." No collection happens until examination. It's Schroedinger's data, neither collected nor uncollected until the "box" has been opened. This leads to the question of aging off collected data/communications: if certain (non) collections haven't been examined at the end of the 5-year storage limit, are they allowed to be retained simply because they haven't officially been collected yet? Does the timer start when the "box" is opened or when the "box" is filled? Also of note: "incidental" collections are not collections if utilizing the same mental gymnastics. If the information is not essential to the mission of the component and it does not fit into one of those categories, then that information may not be collected. However, you will recall from our discussion in paragraph 3 -7 that "collection" means receiving plus an affirmative act to use or retain the information. Therefore, mere receipt of non-essential information does not constitute a violation of DoD 5240.1-R. More redefining is done here: Once again, we must cautiously examine the vocabulary used in DoD 5240.1-R. The term "retention" means more than merely retaining information in files - it is retention plus retrievability. As stated in DoD 5240.1-R -... the term retention as used in this procedure, refers only to the maintenance of information about United States persons which can be retrieved by reference to the person's name or other identifying data. Somewhat more positively, this section instructs analysts to a very limited view of "retrievability" and err on the side of "purging" information on US persons that cannot legally be retrieved, even if it was legally "collected" (using the DoD's expanded definition). It does, however, hedge by noting information "necessary to ongoing missions" should be retained. The document goes on to applaud the FISA court for being instrumental in protecting citizens' rights… apparently by eliminating legal barriers to domestic surveillance. The [Senate Select] Committee has reviewed the five years of experience with FISA and finds that the Act has achieved its principal objectives. Legal uncertainties that had previously inhibited legitimate electronic surveillance were resolved, and the result was enhancement of U.S. intelligence capabilities. At the same time, the Act has contributed directly to the protection of the constitutional rights and privacy interests of U.S. persons. There's a lot of information in there, very little of it redacted, but until the ACLU liberated it, completely withheld from the public. The question is, why? Despite the many paragraphs given over to rewriting the English language to better suit intelligence agencies' aims, there's also a lot of very blunt statements made about the balance between the government's counterterrorism efforts and the rights of US citizens. The ACLU highlights this particular section in its write up of the released documents. This area of DoD intelligence activities, that is, the use of special collection techniques, is the area in which there tends to be the greatest amount of confusion regarding the limitations on permissible activities. Because of this confusion, this area also tends to be the most fertile ground for both abuse and unnecessarily restrictive interpretation of the rules. To be sure, it is fundamental that abuse of the legitimate DoD intelligence and counterintelligence resources and authority must be avoided. The rights of US persons must also be protected, and no intrusion into these protected areas is permissible without first meeting constitutional standards, and then only through a system of careful scrutiny of the intruding apparatus. This is spelled out more explicitly later, reminding those entering the intelligence world that the job is necessarily difficult -- a fact many of those in the intelligence and law enforcement fields forget all too quickly. The system is complex, but it is not impossible. Its underlying structure is designed to balance the legitimate needs of the government with the rights of the individual. Given those constraints, one could not expect a system to exist which did not inherently contain adequate checks, balances, and oversight procedures. This is miles away from the DOJ's statements that cell phone search warrant requirements make it too difficult to capture criminals, a refrain now being echoed by law enforcement agencies in response to automatic encryption on iPhones and Android devices. These are the limits these entities must adhere to. These are built-in as a check against government power. But these rights are not a one-way street solely favoring the American public. The DIA guidebook discusses what the intelligence community and the administration have refused to: and it does it in plain, straightforward language. Nevertheless, we must be mindful of too much caution. We must remember that we are engaged in a real-world mission that involves unprincipled adversaries, and a plethora of sophisticated technical collection and counter-collection enterprises and devices. Terrorism and have destruction as their common denominator, and we are fueling their malignancy when we unnecessarily restrain or restrict our foreign intelligence or counterintelligence efforts, just the same as we would damage the fiber of our democracy through abusive use of our own capabilities and powers. Our business is one that involves constant vigilance and omnipresent balancing of competing interests. To survive, we must take risks. To succeed, we must minimize those risks. To preserve our precious ideals, we must carefully pursue our crafts in such a manner as to not offer up the rights and dignity of our citizens in exchange for that success. As the ACLU points out, this frank discussion of the tension between the two is a far cry from the usual "dissembling and obfuscation" the government has provided so far in its tepid responses to leaked documents. This willingness to discuss the balance in real terms may be part of the reasons a lawsuit was needed to free the document. The other, larger issue, is that this order may be the main justification for most of the NSA's surveillance and data dragnets -- an order not subject to any form of oversight. Because the executive branch issued and now implements the executive order all on its own, the programs operating under the order are subject to essentially no oversight from Congress or the courts. That's why uncovering the government's secret interpretations of the order is so important. We've already seen that the NSA has taken a "collect it all" mentality even with the authorities that are overseen by Congress and the courts. If that history is any lesson, we should expect — and, indeed, we have seen glimpses of — even more out-of-control spying under EO 12333. For all of the tough talk about respecting the public's rights, a vast amount of surveillance occurs under this order. In the document, any questions about overriding civil liberties concerns are directed towards members of the Executive branch, rather than to anywhere that might act as a check against its powers -- like courts or the legislative branch. In fact, the legislative branch has done nothing but expand its powers of the last 30+ years. So, new analysts might hear plenty about the importance of respecting civil liberties, but they'll find that in practice, those words -- like "retention" and "collection" mean next to nothing. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
This is from a little while ago, but I just had a chance to listen to a fascinating and eye-opening lecture by Professor Conor Gearty at the London School of Economics (LSE posts many of their public lectures online as podcasts, some of which are really excellent). The lecture was officially entitled: Human Rights, Security and the Rule of Law after Snowden. It caught my attention for a variety of reasons, including the inclusion of Snowden, but the bigger point of the lecture actually had very little to do with Snowden. It's really about the gradual and systematic undermining of human rights by human rights laws and regulations. Gearty's point is a powerful one: lots of people quite reasonably push for human rights laws and regulations -- but what gets left ignored are how those laws are systematically being used to actually deprive people of human rights. He focuses on UK law (for obvious reasons), but we've seen similar patterns elsewhere. The idea is that "the rule of law" is being used to chip away at actual human rights, often by setting up either exceptions to human rights law or by setting up laws that fundamentally violate human rights but which paper it over by having a process for (often secret) "review." So, in the US, for example, think of the FISA law, which set up the FISA court, which has rubber stamped all sorts of questionable invasions of privacy. Gearty points to similar situations in the UK, noting that when challenged, these are all deemed to be perfectly "consistent with human rights" because the officials who do it are "complying with the law." In fact, this kind of thing goes back to the point that John Oliver raised soon after the Snowden disclosures. He noted that the disturbing thing wasn't that the surveillance broke the law, but that it didn't break the law. In some ways, there are also parallels between this and things like the requirement for "privacy policies" for websites and apps. The laws basically require the policy, but not much actual privacy. And thus, sites actually have incentives to write a policy that says they won't respect your privacy, because that's much harder to violate. Thus, when they do violate your privacy they're still "within the law," even if the privacy violations are themselves questionable. The larger point here is really about this concept of "the rule of law" and how it can be used to actually undermine what's right. You create "rules" that can be followed, but which allow for things that, by any common sense analysis, are abusive and troublesome, but you insist that they're fine because they're "lawful." At the end, Gearty points out that he's quite fearful that this kind of "rule of law" attack on human rights is being extended in a manner to target and attack the poor as well. He gave this speech a few weeks prior to the events in Ferguson, Missouri that we've been discussing recently, but it's not hard to see the parallels there. The "rule of law" has been used in Ferguson quite a bit over the past couple weeks to justify actions that seem horrific, from killing an unarmed teenager, to teargassing protesters, to wiping out parts of the First Amendment to bringing in militarized police. And the defenders of these programs all point to the "rule of law" as justification. Increasingly, however, it seems like "the rule of law" is being used as a dangerous and misleading shield for some very corrupt behavior.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Body cameras for police officers: the cure-all that isn't. While obtaining additional footage (and in some cases, any footage) of officer-involved incidents is a step forward, there are still too many inherent flaws in the system to consider it a complete fix for misconduct and abuse. For one, cameras are only as reliable as their operators, and the police will still control the "RECORD" button in most cases. There are also issues with what they actually capture. A first-person perspective may not be the most helpful and the rolling 30-second buffers that don't capture audio (put in at the insistence of police unions) may cause some headaches in the future. That being said, it is a huge step forward from what has been deemed acceptable for years now: the incident report, a purely subjective recounting of an event, often by an unreliable narrator. The successes seen by the Rialto, California police department trial program point to the real benefit of using body cameras. It's not that questionable incidents were caught on tape and reviewed. It's that fewer questionable incidents occurred. Even with only half of the 54 uniformed patrol officers wearing cameras at any given time, the department over all had an 88 percent decline in the number of complaints filed against officers, compared with the 12 months before the study, to 3 from 24. Ethan Bernstein at Harvard Business Review has more details from that trial. In that study, incidents occurring during shifts without cameras were twice as likely to result in the use of force. Indeed, when officers wore cameras, every physical contact was initiated by a member of the public, while 24% of physical contact was initiated by officers when they weren’t wearing the cameras. Being observed results in better behavior. In this way, the police aren't so different from the public. You’ll see similar results — with an interesting twist — in a study by Washington University’s Lamar Pierce and his coauthors, who looked at employee behavior at almost 400 U.S. restaurants. Bodycams reduced restaurant employee theft by 22%, or about $24 per week. (The effect grew over time, with theft dropping $7 a week the first month and $48 a week by the third month.) But the cameras actually had a much larger impact on productivity and sales: On average, total check revenue increased by 7% ($2,975 per week), and total drink revenue by 10.5% ($927 per week). Tips went up, too, by 0.3%. There are, of course, downsides to constant observation. Bernstein notes that some people faced with this -- especially if their employment is highly dependent on their observed performance -- tend to focus on small details rather than the overall picture. They expend more energy engaged in tedium, rather than improving. He suggests a few adjustments that might result in fewer officers (or employees) succumbing to the desire to perform in an automaton-like fashion, rather than in a way that benefits both them and the people around them. If too much transparency kills innovative behavior, how can police departments improve officers’ track record on profiling without sacrificing the kind of educated risk-taking and problem solving that’s often needed to save lives? I would argue that the answer lies in focusing on developing good judgment and supporting justice, rather than on enforcing police protocol. Police in Ferguson and elsewhere can learn from companies that use cameras for coaching and development instead of evaluation and punishment. This is a very difficult balance to achieve in a law enforcement setting. The potential harm caused by rogue police behavior can be almost incalculable. Relaxing accountability and relying on cameras to deter bad behavior won't accomplish anything with those determined to game the system. Police misconduct should still be treated seriously and have serious repercussions. (This area definitely needs to be improved, cameras or no cameras.) But there are officers who just have a few rough edges to polish off in order to make them positive additions to the force. Using body cameras solely as a lead-in for punitive measures will either push these on-the-edge cops to do their own on-the-fly film editing or turn them into officers who prefer the rote comfort of reports and clockwork patrol routes, rather than actively engaging with the community in a positive fashion. Neither outcome is desirable. These issues aside, there's really very little reason to oppose the use of body cameras. An additional account of incidents, as well as the inherent deterrent effect, have too much potential benefit to be ignored. A new level of transparency and accountability is owed to the public after years and years of public servants operating under an unwritten code of silence and obfuscation. If law enforcement agencies are at all concerned about their officers' behavior, this option isn't one they can afford to ignore. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
We covered the movie studio's lawsuit against cyberlocker Hotfile, which ended in a settlement, but there was an interesting side story involving a countersuit against Warner Bros. for abusing the copyright takedown process. From Hotfile's filing at the time: Warner has acted unscrupulously and dishonestly. Not only has Warner (along with four other major motion picture studios) filed this unfounded and contrived litigation against Hotfile employing overly aggressive tactics, Warner has made repeated, reckless and irresponsible misrepresentations to Hotfile falsely claiming to own copyrights in (or to have the owners' authorization to delete) material from Hotfile.com. Worse, Warner continued to make these misrepresentations even after Hotfile explicitly brought this rampant abuse to Warner's attention, ruling out any possibility that its wrongful actions were accidental or unknowing. Thus, Warner has knowingly made misrepresentations and it has engaged in DMCA abuse on an unprecedented scale by grossly misusing the powerful anti-piracy software tool that Hotfile specially created at Warner's request. Among the works taken down by WB's bogus requests were open source software. WB admitted to sending bogus takedowns, but basically said there's nothing illegal about that and there's nothing anyone can do about it. Basically, WB says that you can take down the wrong files all day long and that's fine. The only thing you're not allowed to do in a DMCA notice is misrepresent that you're authorized by the copyright holder to file a takedown (even if the takedown is bogus). In settling, it seemed as though the issue of WB's abuse of the takedown process might fade away, but the EFF picked up that ball and ran with it, and now the court has ruled that Warner Bros. has to reveal the details of its automated takedown system to see if it's in violation of the DMCA's 512(f) clause regarding "misrepresentations" under the law. As we've described for years, 512(f) has basically been shown to be almost entirely toothless. However, there have been a number of attempts to change that. Here's EFF's summary of the judge's ruling here: A judge found that Warner might be liable under Section 512(f) of the DMCA, which prohibits sending takedowns without having a basis for believing the content is actually infringing a copyright owned by the person initiating the takedown. The judge ruled that Hotfile had presented enough evidence of abuse that a jury could decide the issue. But before the case could be heard by a jury, the parties settled, and Hotfile shut down. So there was evidence that Warner may have crossed the line, but the details have been held under seal, inaccessible to the public. In February, EFF asked the court to release the sealed records that explain the court’s decision, including aspects of Warner’s robo-takedown system that Hotfile had challenged. At an oral hearing in the Miami federal courthouse on Thursday, attorney Dineen Pashoukos Wasylik argued for EFF. Noting that court records are normally supposed to be open to the public, Judge Kathleen Williams ordered Warner to release certain information within ten days of Thursday’s ruling, and to propose a schedule for releasing the rest. While it's unlikely that anything will happen directly here, at the very least, the details here could be useful given that copyright law is up for reform, and that could (finally) include putting some teeth into punishments for abusing the DMCA takedown process to take down perfectly legitimate content.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
A few weeks ago, I first heard about a scam in which scammers were calling up unsuspecting people, claiming to be the IRS and saying that the recipient had failed to pay taxes and was at risk of arrest if they didn't pay up quickly. The caller demands that the money be sent via a "GreenDot MoneyPak," which is basically the equivalent of cash. Scams like this have been going on for a while now -- just do a simple Google search on "scam, greendot" and you'll find a lot of results. Most recently, the scam has focused either on the IRS, as mentioned above, or local utilities, with threats about turning off your power, phone, etc. New York City even put out an alert directly warning about GreenDot MoneyPak scams. However, it appears that the scammers have recently attempted to move on from just the IRS and utilities -- to two appealing alternative options: the NSA and the FBI. Lawyer David Gingras apparently spotted the FBI version upon visiting a website recently: Apparently, at least some of these are appearing because of a virus that tries to make it look like the FBI locked up your computer. I particularly like the three reasons why your computer might have been locked up: First up is copyright infringement -- which does note "Article I, Section 8, Clause 8" (though later it says "Cause 8"), which is the Constitution's copyright clause, but here it's nonsensically described as "the Copyright of the Criminal Code of the United States of America," and then there's this, which is so obviously not written by someone fluent in English: "provides for a fine of two to five hundred minimal wages or a deprivation of liberty for two to eight years." Then there's the inevitable claim of child porn (though this calls it "child porno" and "article 202 of the Criminal Code"). You'd think for all the effort put into this, they'd at least look up the relevant laws. Finally, my favorite: they point out (somewhat accurately) that you might have malware on your computer, and then say, "thus you are violating the law on Neglectful Use of Personal Computer." Perhaps that's the most accurate, except that the fine here is paid for stupidity rather than any actual criminal violation. Here's another version, using the DOJ's logo: I find it vaguely amusing that all of these scammers highlight the store logos where you can conveniently buy a GreenDot MonkeyPak to help out with the scam. Malwarebytes claims that it's seen one of these scams with the CIA logo as well. However, on Friday, the issue apparently became so serious that the NSA put out an announcement about the scam using its logo: The NSA/CSS is aware of a computer malware scam using the NSA/CSS seals and banner. Victims of this malware report that a pop-up or a locked Internet browser alerts them that they have violated the law and/or are being monitored. The scam may also request that victims pay a fine. This activity and the associated alerts have no affiliation to the federal government, NSA included, and no money should be paid to the scammers. Victims should consult a computer professional on how to address the computer infection. Victims may also contact the Internet Crime and Complaint Center, a partnership between the FBI and National White Collar Crime Center that accepts Internet-related criminal complaints. For more information about malware, users can review the NIST Guide to Malware Incident Prevention and Handling. Of course, it's no surprise that with all of the reports of NSA and FBI surveillance and abuse, that scammers would jump on the opportunity to make use of that fear in their efforts. That said, I would imagine that targeting the FBI -- which actually does investigate cybercrime -- might not be that wise of a decision for the scammers.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Comic-cons are awesome. They occur all over the country and they're literally the best place to people watch on the entire planet. You should know this. What you probably don't know is that "Comic-Con" is a trademarked term used by the famous San Diego convention, arguably the most successful of its kind. You likely don't know this because, like any other sane comics enthusiast, comic-con has become a generic term meaning a comics convention. It isn't associated with any particular company or brand any longer. It's generic. Which is what might make it surprising to learn that the San Diego Comic-Con is suddenly going after the Salt Lake City Comic Con over trademark infringement. The cease and desist letter the San Diego convention sent out makes hysterical claims. "Attendees, exhibitors and fans seeing use of 'Comic Con' in connection with your convention will incorrectly assume that your convention is in some way affiliated with SDCC and its Comic-Con convention," the letter from attorneys for San Diego Comic-Con wrote in the letter sent Friday. "In fact, we are aware of multiple instances where persons have incorrectly believed that the Salt Lake Comic Con convention was an SDCC event." Uh huh. I can remember attending a comics convention in Chicago recently and thinking, "Holy shit, I can't believe all these guys from San Diego came out here to run this convention." Because they didn't, obviously, and it takes a special kind of silly to think that anyone using the shortened version of the term "comics convention" must be the same folks from California. The term has become diluted on its own, certainly, but also due to the San Diego convention's inaction when it comes to all the other comic-cons out there. The Salt Lake City convention included this in its response. The 13-page response filed Monday in Southern California's U.S. District Court denied the bulk of San Diego's claims, including that its name violates the trademark the West Coast convention holds on the title "comic-con," with a hyphen. The non-exhaustive list of conventions includes Baltimore Comic Con in Maryland, Pittsburg Comicon in Pennsylvania, and Rose City Comic Con in Oregon, all of which remain uncontested by the flagship convention in San Diego. "(San Diego Comic-Con) has allowed competitors and consumers to use the words 'comic con' or 'comic-con' as the generic name for comic conventions," the filing states. "The general public understands the words 'comic con' or 'comic-con' to refer generally to a comic convention and does not associate these words with any particular source of such conventions." Rendering this all really silly is that the San Diego convention is both insanely successful and is also certainly not threatened by other conventions put on in other cities. On the off chance that they can find someone who thinks that all "comic-cons" are run by the SDCC, so what? They've already failed to protect their mark, which was eventually going to become generic, and I'm pretty sure folks in Salt Lake City going to the convention aren't taking anything away from the SDCC. So what's the point of all this again? DV.load("//www.documentcloud.org/documents/1305247-comicon.js", { width: 560, height: 550, sidebar: false, text: false, container: "#DV-viewer-1305247-comicon" }); Comicon (PDF) Comicon (Text) Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
We've been writing a bit about CIA director John Brennan and his continuing to misrepresent the truth and outright lie. As you probably know, back in March, Senator Dianne Feinstein revealed that the CIA had spied on the computer network being used by the Senate Intelligence Committee to investigate the CIA's torture program. As Feinstein revealed, while the computers had been set up by the CIA (for security reasons), there was a written agreement that everything on them would be considered the Senate's, and that the CIA was not to look at them. The CIA violated this agreement, after realizing (upon being questioned in a Senate hearing) that the Senate had in its hands a draft of the so-called "Panetta Report" -- an internal review of all the documents the CIA had given to the Senate staffers, which more or less confirmed all their findings about the CIA torture program. Apparently, the CIA never intended to turn over that report to the Senate staffers, but did. Rather than realize its mistake, the CIA then snooped on the network and more, including Senate staff emails. When Feinstein first revealed this, Brennan insisted: "Let me assure you the CIA was in no way spying on [the committee] or the Senate." That was a lie. Soon after, Brennan tried to release his side of the story, which we noted actually appeared to confirm nearly all of the details of Feinstein's story. And yet, the mainstream press dutifully reported that Brennan had "denied" Feinstein's claims. He did not. He denied claims she did not make in a such manner as to look like he was denying her actual charges. After the CIA's Inspector General Report came out, confirming all of Feinstein's claims (and much more, including that Brennan's CIA had further misrepresented the truth in trying to claim that it was the Senate staffers themselves who had broken the law), Brennan sent an apology letter. And yet, he's spent the last few weeks denying he lied, claims that are completely undermined by the CIA itself. So here's the thing: why won't the press say that Brennan lied? Dan Froomkin, over at the Intercept, recounts most of this history in what he calls an "anatomy of a non-denial denial," and then raises the point of why won't the press actually call out Brennan for lying: The reason you so infrequently see the word “lie” in elite media news stories is that the editors generally take the position that even when someone has said something clearly not true, a reporter’s use of the word “lie” — rather than, say, “misspoke” or “was incorrect” — requires knowledge of the subject’s intent to deceive. And a fair-minded journalist, they argue, can’t be sure what’s going on in someone else’s head. But when someone who has so clearly uttered a non-denial denial has to go back and explain how he intentionally responded to an accusation in a very circumscribed or elliptical way, and how that answer was mischaracterized as a denial — and how he made no attempt to correct the record – isn’t that prima facie evidence of intent to deceive? Even though the non-denial denial isn’t in itself strictly speaking a lie, when examined in context, isn’t that exactly what it is? Froomkin notes, (as we did at the time in part, thanks to his own research) that most of the press just ate up Brennan's initial denial (which, as we stated, actually confirmed the details, while denying stuff Feinstein did not accuse the CIA of doing). Only a few put in some caveats: Politico, the New York Times, Reuters and the Wall Street Journal all pretty much cast Brennan’s statements as a blanket denial. But I was pleasantly surprised by the AP (“He denied that the CIA ‘hacked’ into the computer network in remarks on Tuesday but did not address the question of a search”) and the Los Angeles Times (he

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posted 22 days ago on techdirt
Yeah, so you've read the headline. No criminal activity. No charges brought. And a cheap shot fired across the bow of the Fourth Amendment, not to mention Vermont's own Constitution. But let's travel back further to set this up. Twenty-one-year-old Gregory Zullo was supposedly pulled over for having his license plate registration sticker (incidentally) covered by a small amount of snow. Not a crime. From the ACLU filing [pdf link]: At all times relevant to this action, it was not a violation of Vermont law to drive a car on which the validation sticker on the rear license plate – but not the numbers and letters of the license plate itself – was touched by snow, leaves, or any other material. The lawsuit notes that the officer who stated this was the reason he initiated the event spent no further time on that subject. He didn't bother to brush the snow away from the registration sticker or have Zullo do it, despite the fact that both spent over 30 minutes no more than a few inches away from the offending plate. Officer Hatch spent most of his time trying to talk Zullo into allowing him to search the vehicle without a warrant. Hatch seemed to be convinced that Zullo was involved with the heroin traffickers he was searching for. Hatch tried everything, including lying. More than once, the defendant’s employee told Mr. Zullo that Mr. Zullo should consent to a search because the police dog in the back of his truck smelled something. But the police dog in Hatch’s truck was not a drug detection dog, and, at all times during the encounter between Hatch and Mr. Zullo, the dog remained in the truck with the truck’s windows rolled up. This isn't just a mere allegation based on Zullo's statements to the ACLU. It's confirmed during the few minutes of actual dialog captured by the dash cam's mic. (Interestingly [or not, depending on your particular faith in law enforcement], Officer Hatch was wired for sound, but either his body mic wasn't activated or was buried so far beneath his winter gear it was rendered useless.) At no point does the non-drug dog appear outside the vehicle. About 30 minutes into the recording, Hatch returns to his vehicle to inform his precinct that Zullo wouldn't agree to warrantless search, so "he's [Hatch] just going to take it [Zullo's car]." During that same call, the defendant’s employee admitted that he did not have a drug detection dog with him, but would have access to one at the state police barracks. App. A at 33:59 As the officers and Zullo waited for the tow truck, they continued to try to get his permission for a search. Zullo held firm, so the cops ditched him miles from home in 20-degree weather. Mr. Zullo asked Hatch if he could retrieve his money and cell phone from his car, because he did not know how he would get home without either item. Hatch refused, saying that getting home was “not my problem,” and warned Mr. Zullo that if he attempted to retrieve those items from the car he would be arrested. When Mr. Zullo walked towards his car, Hatch placed his hands on Mr. Zullo to restrain him from reaching the car. After the tow truck arrived and took Mr. Zullo’s car, Hatch and the second state trooper left the scene, leaving Mr. Zullo stranded on the side of Route 7. After being seized, Zullo's car was searched by Officer Hatch using an actual drug dog and an actual warrant [pdf link]. Nothing illegal was uncovered. Hatch found both a pipe and a grinder with "marijuana residue." Again, no laws were broken by Zullo's possession of these items. On June 6, 2013, Governor Shumlin signed the bill, and the relevant parts of the enactment became effective on July 1, 2013. 2013 Vt. Acts & Resolves 669. As a result, at the time of the events giving rise to this suit, Vermont law deemed possession of an ounce or less of marijuana by a person over the age of twenty-one a civil offense, punishable by no more than a fine contestable in the Judicial Bureau. Vt. Stat. Ann. tit. 18, §4230a(b)(1). That part of the state statutes reads: Except as otherwise provided in this section, a person 21 years of age or older who possesses one ounce or less of marijuana or five grams or less of hashish or who possesses paraphernalia for marijuana use shall not be penalized or sanctioned in any manner by the State or any of its political subdivisions or denied any right or privilege under State law. Both the drug angle and the registration sticker angle dead end into a search and seizure based on non-criminal actions. The state does have an out (one that will likely be deployed in its defense against Zully's lawsuit) that still allows law enforcement to search for marijuana, even if what's discovered isn't a criminal amount. This section is not intended to affect the search and seizure laws afforded to duly authorized law enforcement officers under the laws of this State. Marijuana is contraband pursuant to section 4242 of this title and subject to seizure and forfeiture unless possessed in compliance with chapter 86 of this title (therapeutic use of Cannabis). But this should have resulted in something better than the response given to Zully when he finally made his way to the precinct to retrieve his vehicle (as well as being told he was responsible for the towing fees). When Mr. Zullo asked the defendant’s employee why he had to pay for the tow, the defendant’s employee told him that the tow cost was Mr. Zullo’s fault for exercising his rights. There's the now-familiar lesson: exercise your rights and cops will make you pay -- one way or another -- for making their jobs difficult. This was plainly stated by an LAPD member shortly after the situation in Ferguson blew up: be anything but compliant and you'll be hurting. If you have problems with us steamrolling your rights, sue us. That attitude brings us to this. Another lawsuit filed against a law enforcement agency simply because a police officer couldn't handle being told, "No."Permalink | Comments | Email This Story

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