posted 22 days ago on techdirt
The impact the dropping of the "about" collection will have on the NSA's upstream harvesting will either be massive or minimal, depending on who you ask. The Privacy and Civil Liberties Oversight Board's report on the "about" collection noted a few things, one of them being the supposed impossibility of preventing inadvertent collection. All of these types of “about” communications can provide intelligence value, helping the government learn more about terrorist networks and their plans or obtain other foreign intelligence. While “about” collection is valued by the government for its unique intelligence benefits, it is, to a large degree, an inevitable byproduct of the way the NSA conducts much of its upstream collection. As discussed earlier in this Report, because of the technical manner in which this collection is performed, the NSA cannot entirely stop acquiring “about” communications without also missing a significant portion of “to/from” communications. Nor does the agency have the capability to selectively acquire certain types of “about” communications but not others. At least some forms of “about” collection present novel and difficult issues regarding the balance between privacy and national security. But current technological limits make any debate about the proper balance somewhat academic, because it is largely unfeasible to limit “about” collection without also eliminating a substantial portion of upstream’s “to/from” collection, which would more drastically hinder the government’s counterterrorism efforts. According to the PCLOB's interpretation, the "about" collection -- despite its many civil liberties issues -- could not be dropped without causing a significant loss of intel. In fact, the report goes so far as to claim the "about" collection itself is an "inevitable byproduct" of upstream surveillance -- rather than the way it actually appears to be: the inadvertent collection of US persons' communications is an inevitable byproduct of the "about" collection. The NSA's statements on the ending of this program don't seem to cohere with the PCLOB's assertions, something pointed out by Jake Laperruque on Twitter. Two statements were released by the NSA. The first seems more aligned with the PCLOB report's assertions about tech impossibilities and intel loss. Even though NSA does not have the ability at this time to stop collecting "about" information without losing some other important data, the Agency will stop the practice to reduce the chance that it would acquire communications of U.S. persons or others who are not in direct contact with a foreign intelligence target. The second statement, however, hints that the intel loss will not be nearly as significant as it's being portrayed... and that the "about" part was never a necessary part of intercepting "to/from" communications. After considerable evaluation of the program and available technology, NSA has decided that its Section 702 foreign intelligence surveillance activities will no longer include any upstream internet communications that are solely "about" a foreign intelligence target. Instead, this surveillance will now be limited to only those communications that are directly "to" or "from" a foreign intelligence target. These changes are designed to retain the upstream collection that provides the greatest value to national security while reducing the likelihood that NSA will acquire communications of U.S. persons or others who are not in direct contact with one of the Agency's foreign intelligence targets. The PCLOB's assertion that the "about" collection was an "inevitable byproduct" of upstream surveillance is nowhere to be found. The NSA itself states it can still perform upstream interception without nearly as much inadvertent collection simply by eliminating the "about" variable. If this is true, the NSA always had the capability to reduce the amount of inadvertently-collected communications. It just chose not to. In any event, the upstream collection lives on, albeit in a slightly more constitutional form. The technical problem the NSA claimed prevented it from inadvertently collecting US persons' communications turns out to be something else: a minimal-impact search variable the agency could have eliminated years ago, bringing back some semblance of targeting to its surveillance work. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
If defense lawyers did this, you can bet the local prosecutor's office would be there in an instant to file charges. But since it's a prosecutor's office doing it, local prosecutors see nothing wrong with lying to witnesses to obtain testimony. Charles Maldonado of The Lens looks into the unethical practices of the Orleans Parish District Attorney's Office. The notice Tiffany Lacroix received in November had “SUBPOENA” printed at the top, next to a logo of the Orleans Parish District Attorney’s Office. It ordered her to meet with a prosecutor to discuss the upcoming trial of Cardell Hayes, charged with murdering former Saints player Will Smith. “A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE,” it declared. But it wasn’t authorized by a judge. It wasn’t issued by the Clerk of Court, which sends out subpoenas. And Lacroix wouldn’t have gone to jail if she had ignored it. In other words, it was fake. According to the DA's office, it's done nothing wrong. Assistant District Attorney Chris Bowman says these documents used to trick people into talking to prosecutors are nothing more than "notices" or "notifications." He compares the use of fake subpoenas to methods used by other, more honest prosecutors' offices, which use legal letterhead to make the same request, in a much more congenial tone wholly separated from false threats of arrest. Bowman also says legal letterhead just doesn't get as much cooperation as his office's fake subpoenas, which he refuses to refer to as fake subpoenas. Instead, Bowman says these fake legal documents are just a more "formal" version of legitimate methods used elsewhere. Of course, it's easy to see how locals might be confused by this "more formal" request, which looks exactly like this [PDF]: According to Bowman, the subpoenas that aren't have been used for decades. Unlike the nicer, more ethical legal letterhead used elsewhere, the DA's office's faux subpoenas highlight the potential (but completely unenforceable) downside of blowing off local prosecutors. In big, bold letters directly under the word SUBPOENA is the following phrase: A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE. Subpoenas -- the real ones -- are used every day to compel cooperation. These aren't the real thing, but come across as legitimate demands for cooperation backed with the threat of jailing. The real things are run by judges and issued by clerks. These pieces of paper -- backed by zero legal authority -- are issued by the DA's office whenever a prosecutor wants to. When recipients have challenged these before an actual judge, the DA's office has finally done the right thing and secured an actual subpoena. But since they're rarely challenged, the DA's office has used them far more frequently than their legitimate, court-approved counterpart. And it's not the only weapon in the DA's arsenal, should it desire additional dialogue with people who shouldn't need to fear being tossed in the clink. As the saying goes, "Don't be a victim of a crime if you can't do the time." [E]arlier this month, the watchdog group Court Watch NOLA found several cases in which the DA’s office obtained arrest warrants for victims of crimes because they did not cooperate with prosecutors. There seems to be no question this practice is unethical, but is it illegal? Unfortunately, there's no clear answer. Defense attorney Anthony Ibert -- who has appeared multiple times before judges to get the DA's fake subpoenas quashed -- theorizes it might be prosecutable. Ibert said he thinks the fake subpoenas may be a type of forgery. The documents don’t include a judge’s name or signature. But Louisiana’s law on forgery includes “to alter, make, complete, execute, or authenticate any writing so that it purports … to be the act of another who did not authorize that act.” Without a judge's (forged) signature, forgery charges are a tough sell. (I'll bet the DA's office could make the charge stick... to itself... if it wanted to.) The good news is -- without giving the DA's office any credit whatsoever -- prosecutors will no longer be using this deception to obtain interviews. On Wednesday, prosecutors announced they are dropping the ominous heading on those notices, acknowledging that the DA's Office does not have the authority to issue subpoenas by itself. [...] The DA's Office will now send a request called a “notice to appear” instead. “I have today again gone out and said this is the only acceptable notice to appear that we will be sending to people,” First Assistant District Attorney Graymond Martin said. Unfortunately, this still sounds almost as mandatory. The Advocate -- which first reported the DA's change of heart in the face of bad press -- wasn't provided a sample of the new document. Hopefully, it will be free of statements that might lead recipients to believe they'll be fined or jailed if they fail to "appear." Undercutting the grandiosity of the office's slightly-less-dickish move is the statement accompanying the official statement. “It’s an assertive invitation for you to come and talk to us,” Martin said. Fun. Sounds like being "voluntold." Also this: "Our obligation is to the community at large, not necessarily to the victims or the witnesses," said Assistant District Attorney Chris Bowman, a spokesman for the office. "We want to make the process both for victims and witnesses as user-friendly as possible, but we are not going to allow them to determine the future of the case." For the good of the community, the DA's office is going to misrepresent the mandatory-ness of requests for interviews. There will be no end credits statement to the effect of "no witnesses or crime victims were harmed during the course of this prosecution." So, things will get marginally better in Orleans Parish, where local prosecutors believe it's better that ten witnesses or crime victims be pushed around by thuggish prosecutors than one guilty man go free. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
It seems that this spring really is the time for obscure copyright disputes with odd connections to the US's weak-kneed compliance with the Berne Convention on copyright. We've already written a few times about the moral rights claim by the guy who created the giant "Wall St. Bull" statue, as well as a lawsuit against a Wall St. church for moving a 9/11 memorial -- both of which reference VARA, the Visual Artists Rights Act of 1990. VARA was passed as part of the US's slapdash attempt to pretend it complied with the Berne Convention, a document that was created in 1886, and which the US took over 100 years to even pretend to comply with. VARA wasn't the only such move in 1990. That very same year, Congress also passed the Architectural Works Copyright Protection Act of 1990, or AWCPA. Now, hold that thought as we get into the meat of what this story is about. It's a posting on Reddit's /r/legaladvice/ subreddit, which is kind of famous for absolutely awful questions and even worse answers -- so take it with a grain of salt. But the posting claims that it's from a homeowner, who had customized things done to a model home which then burned down. In trying to have the home rebuilt as it was before, the original developer refused to rebuild it, and also refused to hand over the blueprints. Instead, the homeowner more or less recreated the plans from memory (and photographs and a neighbor's house that was similar) and had another builder start to rebuild -- only to receive a cease & desist letter from the original builder, threatening a copyright claim: Here's what's going on: My house burnt down early this year. Total loss. No one was injured, but all my personal belongings are just gone. The source of the fire was electrical related (not my fault). The fire department said it was likely a charging lithium battery (my homeowners insurance is dealing with that situation) The house is only 3 years old. I purchased the house brand new, had some semi-custom things done to it, and actually had a great time with the home builder Two months ago, once the dust settled, I reached out to the home builder (who is well known) to see how we could acquire the blueprints for my home...or at a minimum, the blueprints for my model. I also inquired about how I could engage them to rebuild my home as I am not planning on moving out of this neighborhood (I really like it here). They took my info and said that they would get back to me. A few days later I heard from them regarding me/my insurance hiring them to rebuild. They said they are not set up for that and would like to help, but could not...bummer, but no big deal. I once again inquired about the blueprints. They said they would have to get back to me. Eventually they got back to me after several days and said that they would not release the blueprints to me as they are their intellectual property. Serious bummer, but whatever... My insurance company found a local reputable home builder and they started the rebuild 5 weeks ago. Last week I got a cease and desist letter (with a threat to sue) form the original home builder saying that I/we were infringing on their intellectual property, they specifically called out the design of the house. Basically they know (due to the home being in an HOA) that the house will be designed back to the exact way it was before the home burned down. So... yeah. Whether or not this is true, if I were a copyright professor, I'd be using this as an exam question. Because, damn. Prior to AWCPA, it was generally recognized that blueprints could be covered by copyright, but the buildings constructed based on those blueprints were not covered by copyright. AWCPA changed that, and made "architectural works" a category of protected works under copyright (see: 17 USC 102(a)(8)). There have been some lawsuits on the question of whether or not residential houses are protected under AWCPA, with a key one being Richmond Homes v. Raintree, which found that, thanks to AWCPA, residential homes absolutely could be covered by copyright. But that case was about developers copying a style of other developers in different developments. Flipping that around and arguing that the same would apply to someone rebuilding a house that burned down... certainly makes for an interesting question. From a purely objective standpoint it sounds insane that someone wouldn't be able to rebuild their own house because the original developer (who refuses to rebuild it) claims copyright on the design. But, thanks to our dumb laws, that copyright claim may be legit. Which is yet another reason why we should ditch the Berne Convention and not accept dumb ideas like allowing for a copyright in building architecture. There may, of course, be other issues here -- such as other contracts, or something with the Homeowner's Association that may negate the copyright issue. Or, perhaps the homeowner can argue that the "custom" designs were authored by him or herself, rather than the original developer. There are, to put it mildly, lots of questions here, but I have to keep returning to the big one: why do we make copyright law so ridiculous that it could ever be considered to do something like block someone from rebuilding their own house? For what it's worth, nearly all of the commentary on Reddit seems completely wrong or clueless, with many people tossing out theories that have no basis in reality, including a clearly false claim that there aren't copyrights in architectural works. I would be very surprised if this actually ended up in court. It would look really bad for the original developer, and the situation is so bizarre that a judge might be hard pressed to actually agree with the copyright claim. But, still, here we are with another example of copyright expansion causing all sorts of trouble. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Stories develop almost daily that remind us about the importance of protecting our privacy on the internet. For $89, you can buy a little more peace of mind with a subscription to PureVPN. The subscription gives you access to over 550 servers in 141 countries and includes updates to the system. Use it to ensure a safer connection over public WiFi. You can use it on up to 5 devices (including routers, gaming consoles and more) at the same time and take advantage of the unlimited bandwidth. Check out their answers to TorrentFreak's annual VPN survey. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Did you hear the story this weekend about how Trump's Chief of Staff Reince Priebus went on TV and said that the administration is "looking at" changing libel laws or amending the 1st Amendment of the Constitution? You probably did. It's dumb and wrong and it makes no sense, but that doesn't mean that the President isn't already doing great harm to free speech. But first, let's cover Priebus's nonsensical comments. If you somehow missed it, here's what he said: Q: Is POTUS considering a constitutional amendment to change press laws? PRIEBUS: "I think it's something that we've looked at." pic.twitter.com/fwZRMvsEjz — Kyle Griffin (@kylegriffin1) April 30, 2017 And here's a basic transcript. After ABC's Jonathan Karl read a month-old tweet from President Trump whining about the NY Times and suggesting "change libel laws," he continues: Karl: That would require, as I understand it, a Constitutional amendment. Is he really going to pursue that? Is that something he wants to pursue? Priebus: I think it's something that we've looked at. How that gets executed or whether that goes anywhere is a different story. But when you have articles out there that have no basis in fact and we're sitting here on 24/7 cable companies writing stories about constant contacts with Russia and all these matters... Karl: So you think the President should be able to sue the NY Times for these stories that he doesn't like? Priebus: Here's what I think. I think that newspapers and news agencies need to be more responsible with how they report the news. I am so tired... Karl: I don't think anyone with that. It's about whether or not the President should have the right to sue them... Priebus: And I already answered the question. I said this is something that's being looked at. But as far as how it gets executed, where we go with it, that's another issue. Okay, so, first of all, as has been explained many times in the past, the President cannot change libel laws. That's not how it works. First, defamation law is at the state, rather than federal, level. The federal government has no say in how they work. More importantly, the Constitution has put some very, very clear boundaries on defamation law, primarily in NY Times v. Sullivan, and this is pretty much considered totally settled law. There are no big debates about overturning that decision. There is no deep bench of judges who resent or try to reshape it. It's not happening. So, yes, as Karl alluded to in the beginning, it would take a Constitutional Amendment that opens up and changes the First Amendment, and that's not happening. So by "we looked at it" immediately followed with the caveat that he has no idea how it would happen or even if it would happen, Priebus is more or less admitting that people know that this is an impossibility, but they "looked at it" because the President said something and they have to. I think David Frum's take on this story is exactly right. Everyone minus the President (and maybe some of his supporters) know that you can't just change libel laws as President. But, because he's the President, his staff need to pretend to take the issue seriously, and the media then needs to report on it as if it's a serious debate even though it's not. So why couldn’t Priebus simply dismiss the question? Question answers itself: Trump had threatened it, so staff can’t disavow it — David Frum (@davidfrum) April 30, 2017 So by itself, this is something of a non-story. However, that does not mean that free speech is not under attack by this administration. As we noted a year ago when Trump first threatened to "open up" libel laws, even if he can't change them, he can create serious problems for free speech and a free press -- and he's already doing that. Backchannel has a story about how internet censorship is "advancing" around the globe, mainly focusing on attacks on social media. It mostly covers what's happening in other countries, though as we've written, many are using things like the President declaring news he doesn't like as "fake news" as an excuse to censor news they don't like. The Backchannel story also mentions the attempt by government officials to uncover a "rogue" Twitter account as an example of an attack on free speech -- as well as the attempt to roll back net neutrality. Not everyone thinks of rolling back net neutrality as a free speech issue, but it absolutely is. If ISPs can effectively slow down or block certain content, suddenly that's a tool to silence speech that powerful people don't like. A separate issue is anti-SLAPP laws. These laws, which protect people who criticize others from burdensome lawsuits that were filed for the purpose of silencing that speech, currently exist in a little over half the states (with varying quality). But there's been an effort under way to create a much needed federal anti-SLAPP law, which would actually be a useful deterrent to defamation lawsuits that have no legitimacy, and are only filed to silence or intimidate critics. But, given Trump's ongoing claims that he desires to make defamation laws stronger, rather than protect those on the receiving end of such lawsuits, it seems unfortunately unlikely that any federal anti-SLAPP law will get signed. But, really, the biggest threat to free speech may be the alleged intent to charge Julian Assange under the Espionage Act for publishing leaks. That would be a massive problem for the press, because any argument that allows the federal government to go after Wikileaks/Assange would also, absolutely, allow it to go after the NY Times, Washington Post and many, many more. Steve Vladeck, at Just Security had a very clear explanation of why. The really short version is that the US government has never really tried to use the Espionage Act to go after publishers, because it might open a can of worms, but Vladeck believes they could and he's not convinced the Supreme Court would pay much attention to the First Amendment concerns. There's much more to the explanation at that link, but it concludes: Finally, and turning to the First Amendment question, the Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act. To be sure, the Court has held that, in some circumstances, the First Amendment protects public disclosure of confidential information (and has applied what’s known as “Pickering balancing” to assess when the public interest in disclosure outweighs the government’s interest in preserving confidentiality), but even the Bartnicki decision–in which the Court ruled that the First Amendment protects a radio station’s broadcasting of an unlawfully recorded audio conversation–turned to a large degree on the parties’ stipulation that the radio station itself had acquired the recording “lawfully.” Because of the Espionage Act, there’s no way for a third party “lawfully” to acquire classified national security information that they are unauthorized to possess. So I’m skeptical that Assange (or the New York Times, for that matter) would have a clear-cut First Amendment defense to the publication of classified information in anything but the most extreme case of public concern (and perhaps even then). That’s not to say that there aren’t incredibly serious First Amendment concerns lurking in the background here; among other things, I have to think that the First Amendment might at least protect a right to publish information on unlawful government programs (which, by law, could not properly be kept secret in the first place), especially where the existence of the program is a matter of significant public concern. I’m just not that sanguine about the prospect of the Supreme Court recognizing a First Amendment right to publish national security secrets in anything but such a compelling case (and wonder, for example, if Snowden’s disclosures, at least of the phone records program, would fit the bill). Simply put, the principal historical constraint on prosecutions of the press for publishing national security secrets has been prosecutorial discretion, not constitutional law. And so one does not need to have a particular view about Assange (or think that he is or is not a journalist) to have a view on the implications here; the key is if he’s prosecuted as a third party under the Espionage Act, which, of itself, would set a dangerous precedent for press freedom. So, free speech absolutely is under attack, and people need to keep their eyes on the ball here. There's not going to be an opening up of libel laws by the President or a change in the First Amendment. But there are lots and lots of ways to attack and chip away at huge parts of free speech, and there are indications that this administration absolutely is moving in that direction. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
For several years now cable and broadband providers have been using hidden fees to covertly jack up their advertised rates. These fees, which utilize a rotating crop of bullshit names, help these companies falsely advertise one rate, then sock the consumer with a significantly higher-rate post sale (often when locked into a long-term contract). The practice also allows the company to falsely claim they're not raising rates on consumers. They omit that they're talking about the above the line rate being charged, implying that anything below the line (where real fees like taxes are levied) is outside of their control. For example, for several years now, CenturyLink has been charging its broadband customers an "internet cost recovery fee," which the company's website insists "helps defray costs associated with building and maintaining CenturyLink's High-Speed Internet broadband network" (that's what the full bill is supposed to be for). Comcast and other cable companies have similarly begun charging users a "broadcast TV fee," which simply takes a portion of the costs of programming, and hides it below the line. The names differ but the goal's the same: falsely advertise one rate, then charge consumers with a higher price. Comcast was sued for the practice last year. Amusingly, the company responded to the suit by trying to claim that covertly jacking up their advertised rate was just their way of being "transparent" (nothing quite says "transparency" like not knowing what your bill is going to be until after you've signed up for service). Despite this being false advertising, you'd be hard pressed to find any U.S. regulator, federal or state-level, that gives much of a damn. The sense one gets is that the government, slathered with campaign contributions, has been conditioned to see this kind of behavior as simply creative expression. In Oregon, regional TV regulators have bucked the apathetic trend and are urging Oregon's Department of Justice to begin investigating Comcast's (and other providers') abuse of this kind of pricing. In a letter to the Oregon Department of Justice (pdf), the smaller regulators for Multnomah and Washington counties point out that under current law they're forbidden from regulating cable prices. But, they note, they're being inundated with complaints from Comcast subscribers tired of having their rates covertly jacked up while under contract: For example, a complaint received in January from Ms. Sisson, a Comcast cable customer, mirrors those of Comcast and other cable company customers across the state. She signed a term contract for a specific cable package at a specific advertised rate, only to learn later the extent of the additional fees and that these fees are often increased again during the agreed upon contract period with no apparent limit to the increases... We began receiving complaints about add-on fees in December 2013. This practice was first implemented by Comcast and other cable companies have followed their lead and adopted similar fees. Currently the add-on fees can result in monthly programming package rates of at least $10 more than the contracted or advertised rates. The fees in question are not government imposed fees/taxes, fees for leasing equipment, or one-time fees for a service. It's interesting, because even folks that generally despise regulation tend to agree that this is a behavior that needs cracking down on, and doing so wouldn't be particularly difficult (just mandate that only taxes and government-mandated charges can be used below the line). Yet it never happens. The former FCC had proposed a voluntary "nutrition label" for broadband that would have required that providers clearly disclose all fees -- but it fell well short of banning such behavior. And the current FCC is far too busy gutting existing consumer protections to be bothered. Comcast, for its part, also continues to pretend it's just an innocent little daisy in the dance between broadcasters and cable companies: "The cost of retransmission imposed by broadcasters continues to increase significantly as do the costs charged by regional sports programmers, and while these fees are increasing they only defray a portion of what we are being charged to be able to carry these channels," the company said in a written statement. So one, the fact that broadcasters raise rates doesn't somehow justify taking a part of those increases and hiding them below the line. The increased cost of content is the cost of doing business, and should be included in the overall price. Two, Comcast ignores that fact that it itself is a broadcaster (owning NBC and a number or regional sports networks), so blaming this all on broadcasters doesn't negate Comcast's role in the billing shenanigans. This practice remains false advertising and someday, maybe, we'll live in a world where companies like Comcast are actually held accountable for it. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
The surprising shutdown of the NSA's email harvesting program -- one that operated "upstream" and grabbed not just communications to and from surveillance targets, but also those "about" surveillance targets -- is good news. Considering the NSA had done nothing but abuse this specific privilege, the shutdown is a welcome surprise. But it's not great news, for a variety of reasons. First, the shutdown arrives on the heels of a yearlong denial of surveillance requests by the FISA court. This indicates the NSA was either still abusing its collection or the court no longer felt the program was Constitutional, at least not the way the NSA was running it. The shutdown seems to reflect the NSA's inability or unwillingness to shift towards more targeted surveillance methods -- ones that won't sweep up lots of US persons' communications inadvertently. It also suggests the program -- at least the upstream part of it -- is no longer as useful as it used to be. The rise in default encryption by email providers may be preventing the NSA from gathering as much info as it used to, as Julian Sanchez explains at Just Security. [I]t is entirely possible that the change is driven in significant part by the broader post-Snowden adoption of STARTTLS encryption of communications between e-mail servers. That is, it is quite plausible that a large and growing percentage of transiting e-mail traffic is simply no longer visible to NSA, and must be accessed “downstream” at the e-mail server itself, rendering this form of collection less worth picking fights with the FISC over. The NSA's statements about the shutdown mention that it will still be performing upstream collections but removing the "about" search variable. The agency notes this will decrease the amount of captured communications. But it's quite possible it was seeing fewer and fewer communications before it made this decision. The NSA shouldn't be too concerned about this loss (and it likely isn't), considering it has other options it can use to capture the communications it says it won't be capturing anymore. [T]o the extent the traffic remains visible to NSA, they may simply have decided that it is easier to do the same “about” scans outside the borders of the United States, beyond the purview of either FISA or the FISC. This is an option the NSA has deployed before. In 2011, the NSA killed off its bulk domestic collection of US persons' email metadata. Or so it said. In reality, it simply stopped gathering this data from domestic providers. The [Inspector General's] report explained that there were two other legal ways to get such data. One was the collection of bulk data that had been gathered in other countries, where the N.S.A.’s activities are largely not subject to regulation by the Foreign Intelligence Surveillance Act and oversight by the intelligence court. Because of the way the Internet operates, domestic data is often found on fiber optic cables abroad. This option is still viable and possibly of much more use to the NSA. If so, the NSA may be giving up part of its upstream collection in hopes of preventing its offshore and downstream collections from being scrutinized as thoroughly in the runup to the renewal of the FISA Amendments Act. This is just what isn't being done upstream or under Section 702. The NSA still can gather plenty of US persons' communications -- incidentally or not -- under Executive Order 12333. [T]he NSA’s authorities under executive order 12333 are vast, undisclosed and unconstrained by any need to explain its collections to the Fisa court. A former state department official who has warned Congress about 12333, John Napier Tye, has alleged that the NSA uses 12333 as a backup plan to route around legal restrictions on US surveillance. “To the extent US person information is either stored outside the United States, routed outside the United States, in transit outside the United States, it’s possible for it to be incidentally collected under 12333,” Tye told the Guardian in 2014. Whatever the NSA might be losing, it can only be a small percentage of its total take. It also has the option of asking friendly foreign intelligence agencies to perform these searches for it -- again without having to notify the FISA court. The final problem with the NSA's announcement is it's unmoored from legislation. Unlike the drastic modification of the Section 215 metadata program -- which was tied to statutory requirements laid down by the USA Freedom Act -- the voluntary shutdown of the "about" collection doesn't contain anything legally-binding. As the ACLU points out, without codification the NSA could start its collection up again without notice, provided it has found a way to comply with the FISA court's demands… or found a better way to look like it's in compliance. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
This week, we were all appalled by the astonishing move by the Oregon government to fine a man who criticized the traffic camera system for practicing engineering without a license. One anonymous commenter won most insightful comment of the week by pointing out what this teaches about similar notions: And people wonder why allowing the government to decide who is and is not a journalist is a bad thing. Next, we heard about the latest moral panic in the UK, where the National Crime Agency claimed that modding videogames could be a gateway to criminal hacking for kids. That One Guy joined them in their absurd handwringing: While they've got the attention of hysterical parents, they should take the time to highlight other potential 'criminal gateways'. Let a kid fiddle with taking stuff apart and putting it back together, and they might end up trashing houses for laughs. Or get a job designing and/or repairing stuff. Let a kid play around in the dirt and try their hand at gardening and the next thing you know they've got a dozen-acre weed farm. Or go into more legitimate farming. Let a kid watch shows about automobiles and how they're put together and before you know it they're out stealing cars and stripping them for parts. Or I suppose get a job in the field of automobile repair. Let a kid get away with blatant lies and misrepresentations of the facts and the next thing you know they go into politics, lying through their teeth in order to further their own careers, or fearmongering for the same reason. Truly, the threats to the minds and morals of tomorrow's youth are legion. For editor's choice on the insightful side, we start out on our post about a new survey showing that most millennials pay for streaming services but also use pirate streams when the content they want isn't legally available or convenient. Thad highlighted how natural an instinct this is when faced with restrictive media: I spent a good big chunk of yesterday going through my collection of legally-purchased Blu-Rays to see which ones will play under VLC for Linux. It has not escaped my notice that it would have been much, much easier just to pirate the fucking movies. Next, we've got a short comment from Dan J. highlighting an extremely important point about innovation (that we make often around here) in response to the idea that Google entered the search engine market with "a better idea": Largely agree with you but have to pick one nit: Google didn't have a better idea. They had a better implementation of the same idea. Ideas are cheap and worthless. Implementation is the difference between success and failure. Over on the funny side, we start out with our post about an excellent example of the ridiculous overreach of those who want to eliminate "non-tariff barriers" in trade policy — a claim that promoting breastfeeding is an unfair barrier to manufacturers of formula milk. Roger Strong won first place for funny with some new propaganda slogans: Home breastfeeding is killing trade! If you're not feeding on formula milk, you're feeding on communism. For second place, we return to our story about Oregon's "engineering license" fiasco where Dave explored all the way to the bottom of the slippery slope: Coming up next: People getting sued for stating "I am Spartacus" without being registered as a slave. For editor's choice on the funny side, we've got a pair of comments from our post about Paul Hansmeier's attempt to dig himself out from under a legal landslide with a hefty court filing full of many interesting if flawed and misleading ideas. Given its length and scope, one anonymous commenter searched for a kitchen sink: surprised he didn't mention plate tectonics. ...But Roger Strong did some digging and found something that might fit the bill: Page 55, "Global defects with this prosecution" That's all for this week, folks! Permalink | Comments | Email This Story

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posted 24 days ago on techdirt
Since I'm here at the Creative Commons 2017 Global Summit this weekend, I want to take a break from our usual Techdirt history posts and highlight the new State Of The Commons report that has been released. These annual reports are a key part of the CC community — here at Techdirt, most of our readers already understand the importance of the free culture licensing options that CC provides to creators, but it's important to step back and look at just how much content is being created and shared thanks to this system. It also provides some good insight into exactly how people are using CC licenses, through both data and (moreso than in previous years) close-up case studies. In the coming week we'll be taking a deeper dive into some of the specifics of the report and this year's summit, but for now I want to highlight a few key points — and encourage you to check out the full report for yourself. Public Domain Dedications Are Gaining Steam Even within the CC community itself, there is some debate as to the effectiveness and appropriateness of various licensing options like no-derivatives and non-commercial. Here at Techdirt we've always encouraged creators to strongly consider the CC0 option that puts their work fully into the public domain (or at least as fully as you can under a copyright system that provides no clear legal mechanism for doing so). In the past year, the use of CC0 has been growing, largely thanks to some specific projects like the the release of a large collection from the Metropolitan Museum of Art which I wrote about a couple months ago, and the public-domain-focused photography platform Unsplash. Hopefully the success and usefulness of these projects drives even more creators and platform operators to embrace CC0 (many content sharing platforms still don't even give uploaders the option, with CC-BY as the least restrictive license available). Non-Commercial Licenses Are The Minority Casting the net a little wider than pure public domain dedications, there's an even bigger trend away from the more restrictive CC options. We've discussed many times in the past how "non-commercial" is an extremely problematic requirement in an era where the lines between commercial and non- are often extremely blurry. Similarly, "no derivatives" cuts of countless avenues of positive, productive use of content, and creates even more uncertainty around exactly what is allowed — and under a harsh copyright regime with hefty penalties for infringement, uncertainty is functionally pretty close to just being blocked altogether. So it's great to see that licenses which allow remixing and commercial use are continuing to increase as a proportion of all CC licenses, reaching 65% this year. The Commons Is Huge In 2016, there were 1.2-billion works published with Creative Commons licenses. Though growth has slowed slightly since the count passed the one-billion mark last year, it shows no signs of stopping. Ten years ago, there were only 140-million such works. Many of the discussions at the summit are focused on how to push these trends forwards even further, both in specific areas of interest and in the commons as a whole. We'll have closer looks at some of these ideas soon, but for now check out the full report to learn more — and get ready for the Made With Creative Commons book (a collection of examples of CC work, plus insights from artists on how they have built sustainable open culture businesses, and advice on using CC with your own work) which will be available as a free ebook on May 5th. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
As was noted here earlier, the NSA surprised many people by shutting down its email collection. This collection was authorized by the FISA Amendments Act, which is due for renewal at the end of this year. Since the point the collection began, it was clear the NSA was also harvesting (inadvertently, it said) US persons' communications. Ron Wyden, along with a few other lawmakers, has been asking the NSA for years to turn over information on this program -- specifically, how many US persons had been swept up "incidentally" in the bulk collection. For years, the NSA has refused to do so, claiming it would be impossible to compile this information and, somewhat hilariously, claiming it would violate the privacy of those swept up in the collection to query the database for incidental collections. This decision to shut down the program may result in that answer never being given to Wyden. The ODNI (Office of the Director of National Intelligence) may decide the shutdown renders this particular query moot. It shouldn't. Now that the email program has been shut down EXPLICITLY because it sweeps up too many US persons' in the dragnet, the answer is more important than ever. And the ODNI has recently (and very belatedly) promised to deliver this number and should keep that promise even though the program has been shut down. Not only that, but this shutdown only affects the collection of email. It doesn't prevent the NSA from collecting other internet-based communications. With fewer people using email as their primary communication method, the NSA will still have plenty of communications to harvest. There's another good reason for turning over that number: the Section 702 collection has been plagued with problems pretty much since its inception. The FISA court determined in 2011 that the program -- as operated by the NSA -- was unconstitutional. Apparently some fixes were made as the program was allowed to continue. But as Marcy Wheeler pointed out a year ago, the program has never not been violating the Foreign Intelligence Surveillance Act. In his November 6, 2015 opinion reauthorizing Section 702, presiding judge Thomas Hogan described two more definite violations of 50 U.S.C. §1809(a)(2), and one potential one, bringing the list of times the FISC caught NSA illegally surveilling Americans to four, and potentially five, times. Fall 2009 confession/July 2010 opinion: Collection of categories of data under the bulk PRTT program not permitted by the FISC (Bates’ opinion describes a category violation reported to FISC in the very first PRTT docket, along with NSA’s assurances it would never happen again) June 2010 confession/December 10 2010, May 13, 2011 opinions: Retention of overcollected data from a traditional FISA warrant in mission management systems ultimately not deemed necessary for collection avoidance May 2011 confession/October 3, 2011 opinion: Collection of entirely domestic communications on upstream surveillance MCTs July 13, 2015 confession/November 6, 2015 opinion: Retention of 702 communications that had been otherwise purged in mission management systems, even though FISC had ruled against such retention in 2011 [Potential] July 13, 2015 confession/November 6, 2015 opinion: Retention of data that should have been purged or aged off in compliance databases This is the authority the NSA wants approved at the end of the year. This shutdown might be an attempt to finally make the program legal -- or at least legal enough to survive a closer examination as the issue heads towards a vote. This shutdown -- along with the NSA's long history of abuse -- also explains why there were no Section 702 approvals from the FISA court. As Wheeler suggested when the information was first released, the lack of approvals in 2016 indicated the program had "serious issues." Her post from last year shows the program has always had "serious issues." The number of requests the government made in 2016 was redacted from the report, but the footnote attached to it suggests it was more than one. Perhaps the court no longer found the program Constitutional, at least not the way the NSA routinely operated it. While incidental collection is always a problem with bulk surveillance, the internal controls, which NSA talking points claim prevent abuse, apparently aren't controlling much or preventing much. It appears the NSA can't find a way to operate this part of the Section 702 program without collecting (and querying) US persons' communications, so it has decided to shut it down, rather than spend any more time and effort trying to talk the FISA court into approving its ritualistic abuse. Despite having years to improve its practices and improve its segregation of collected data, the agency apparently did very little to rein this program in. A 2014 DOJ/ODNI report quoted by Wheeler shows misuse of collected data continued to increase even as the NSA sought orders to collect even more. The joint oversight team, however, is concerned about the increase in incidents involving improper queries using United States person identifiers, including incidents involving NSA’s querying of Section 702-acquired data in upstream data using United States Person identifiers. Specifically, although section 3(b)(5) of NSA’s Section 702 minimization procedures permits the scanning of media using United States person identifiers, this same section prohibits using United States person identifiers to query Internet communications acquired through NSA’s upstream collection techniques. NSA [redacted] incidents of non-compliance with this subsection of its minimization procedures, many of which involved analysts inadvertently searching upstream collection. For example, [redacted], the NSA analyst conducted approved querying with United States persons identifiers ([long redaction]), but inadvertently forgot to exclude Section 702-acquired upstream data from his query. This continued abuse and misuse is highly problematic, although the ODNI has been the last entity to officially recognize this. The "upstream" collection not only results in vast amounts of intercepted communications, but is one the FBI's favorite sources for intel. The ODNI denies to this day the FBI's searches of the NSA's collections are "backdoor searches," but it's information and communications the FBI certainly can't collect itself under its legal authorities. The supposedly foreign-facing collection is routinely used by a domestic law enforcement agency to obtain US persons' communications without a warrant. That's a "backdoor" search, no matter how the ODNI portrays it. No matter what else comes of it, this shutdown is huge. Even though it's a smaller part of a larger internet communications collection program, it's still a significant closure. And once again, this is a result of Snowden's leaks. Wyden's persistent pestering about incidental collection likely played a small part as well. But without documents clearly showing how much the program collected and how it was being used, the NSA would most likely still be trying to find a way to push these requests past the FISA court. And without this additional scrutiny, the court itself might have found itself more easily persuaded. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
We had just been talking about Ed Sheeran suggesting that piracy actually helped his career rather than hurt it, as well as his decision to go to bat against his label for a fan who covered one of his songs, but he's not the only one out there who doesn't see filesharing as the great music Satan the labels would have us believe. Artist Mac DeMarco announced on stage at Coachella that his latest album had leaked online. The instructions he then gave the concert-goers is not the norm amongst artists, to say the least. However, instead of begging fans to wait for the official release to come out, DeMarco said that he didn’t give a shit and encouraged them to download it from pirate sites. “We’re going to play a song we’ve only played twice before. It’s a new song, came out a couple of days ago. But you know what? The album leaked yesterday, so I don’t give a shit anymore.” “Download it. Pirate Bay, Torrents.to, Soulseek, Napster, Limewire, Kazaa. Just get it, just get it,” DeMarco added. And, yes, much has been made in reports about this that DeMarco specifically instructed fans to go pirate his music on platforms that no longer exist, like Napster and Limewire, but I'm somewhat sure that this part of the line was done tongue in cheek. It's unlikely that a 26-year-old musician who is aware of The Pirate Bay is somehow not aware of older filesharing platforms no longer being in use. Instead, it seems at least as likely to be a subtle nod to how long the music industry has managed to survive from all of the supposedly dire threats at its doors all these years, but that part is purely speculation. What's not is that DeMarco doesn't see a threat in filesharing. Telling fans at a concert to go get an album from torrent sites before it has even hit the shelves is a pretty clear message: DeMarco isn't worried about piracy. And why should he be? He was performing in front of paying fans despite the certainty that all of his previously released music is likely available online for free as well. Yet here's DeMarco, making money by making music. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Creative Commons launched its 2017 Global Summit today with a rather moving surprise: a seven-foot-tall 3D printed replica of the Tetrapylon from Palmyra, Syria. For those who don't know the tragic situation, Palmyra is one of the most historic cities in the world — but it is being steadily destroyed by ISIS, robbing the world of countless irreplaceable artifacts and murdering those who have tried to protect them (the folks at Extra History have a pair of good summary videos discussing the history and the current situation in the city). Among ISIS's human targets was Bassel Khartabil, who launched Syria's CC community several years ago and began a project to take 3D scans of the city, which CC has been gathering and releasing under a CC0 Public Domain license. He was captured and imprisoned, and for the past five years his whereabouts and status have been unknown. As the #FreeBassel campaign continues, Creative Commons is now working to bring his invaluable scans to life in the form of 3D-printed replicas, starting with today's unveiling of the Tetrapylon — which was destroyed in January along with part of a Roman theatre after ISIS captured the city for a second time. This isn't the only such project — the Institute of Digital Archaeology and UNESCO unveiled a replica of part of the Temple of Bel in London last year — and these combined efforts are a critical bulwark between ISIS and its goal of eliminating this part of our shared cultural history. You can read more about CC's project — including status updates on the other artifacts, monuments and architecture that they are reproducing — on the #newpalmyra website (at the time of writing it still lists the Tetrapylon as "coming soon", though that will likely change shortly). Much of this weekend's summit is likely to revolve around the ongoing tension between open culture and intellectual property regimes, but I can't think of a better way to kick things off than with something that even the staunchest copyright maximalist can surely agree with: that the treasures of this 2,000-year-old city belong to us all, their destruction is a travesty, and the ability to preserve them even in some small way is a triumph of technology and the cultural commons. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Look, we warned everyone about this. Right after Congress stupidly stripped privacy protections so that ISPs could more actively sell your data (and make it harder for you to realize it or do anything about it), there were a few crowdfunding campaigns that popped up on GoFundMe, claiming that they were raising money to then buy the web browsing data of Congress. We pointed out at the time that this was dumb and dangerous because you can't just go buy someone's web surfing data. That's not how any of this works. But, you know, it was one of those stories that people just really, really wanted to believe, so apparently unaware of it being flat out impossible (more people should read Techdirt...), tons and tons of people donated tons and tons of money, without realizing there was absolutely no way these campaigns could do what they they claimed. The more well-known campaign, by a self-declared "privacy activist" named Adam McElhaney, ended up raising over $200k (despite others claiming that it looked like a pure scam). The slightly lesser well-known one, by actor Misha Collins, took in just under $90k. Between them, they raised about $300k... with promises of obtaining data that anyone with any knowledge of the situation would know they couldn't obtain. So, uh, take a wild guess what has happened? If you guess they didn't get any data with that money, well give yourself a prize, because that's exactly 100% what happened. And... some of the folks snookered into handing over the cash for something that was pretty clearly bogus are... not happy. Many have been requesting refunds. McElhaney is now claiming that he was never planning to buy the data from ISPs, but rather get it by FOIA, though he's now admitting in a GoFundMe update that it's not working either: When I started, I said I wanted to get the internet histories of those who voted for this law. That has not changed. What I didn't mention was *WHERE* I planned on getting the data. If I told you that I was going to come after your web habits, your search history, you might - as I imagine many of you did - change what you look up on your home computers. This is what I wanted our legislators to think - their home internet connections where being targeted. When in fact I was coming for their office server data. That data is subject to Freedom of Information Act requests and very obtainable. Even if they didn't change their habits the data stored in their work proxy servers would still be a trove of information. Maybe even more telling than home. The reason I am telling this to you now is, I think the cat is out-of-the-bag. After the first forty paper requests went out, a few days later I was contacted by a friend who happens to work in the offices of a senators. She said that word is getting around that "the GoFundMe guy that has raised all that money for privacy is trying to get our work internet history." Now after about 80 paper requests have gone out, I have received responses back from three. They simply stated they do not have the data I requested. Oddly enough they were all requests for the same person, Marsha Blackburn. But, it makes sense. I am in Tennessee and three of her offices are in Tennessee so the mail would have gotten to her offices faster. After that I have received no other responses. He then notes that anyone who wants a refund should request it and GoFundMe would return the money -- but for those who didn't request a return, he'd hand the money over to EFF. Hopefully that is true -- EFF obviously does great work. But, still, this whole episode is an unfortunate one. There remain very real issues around the privacy rules being killed and the way in which ISPs handle our private info. But going nuts and exaggerating the situation helped no one (well, perhaps EFF will benefit in the end... but still not the best way to handle this). Keeping things in perspective and accurate is important. Flying off the handle and assuming you can just go buy everyone's internet browsing history without actually understanding the legal change that was happening was dumb -- and it was dumb that many in the press helped make the story go viral without any explanation that it was bullshit. If you want to donate to organizations for doing good work, donate to them directly -- not through some sketchy scheme like these. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
There aren't many details yet, but Charlie Savage at the NY Times has a major scoop: apparently, the NSA has halted "about" email collections. This is important. As we've discussed in the past, under Section 702 of the FISA Amendments Act, the NSA can collect info on approved "foreign targets." But here's where it got sketchy: they could collect the communications "to" them or "from" them -- which most people would expect -- but also they could collect any communications "about" them. In other words, did you joke about Osama bin Laden in an email? It's possible that under Section 702, the NSA could collect that email without a warrant. That was massively concerning because the "about" emails from Americans could contain lots of other info, and once sucked up into the NSA's system and made available to the FBI for "backdoor" incidental collection searches, could expose people to lots and lots of trouble. There have been pushes over the past few years to limit the collection to no longer include "about" communications, but those had been (as far as we knew!) unsuccessful. And, for an unclear reason, the NSA has stopped doing that. Trevor Timm speculates that perhaps the FISA court ruled that collection illegal, which is possible (also we just noted that there were no new 702 approvals by the FISA Court last year), so perhaps the FISC is finally taking its job a bit more seriously. We've also pointed out that there have been legal fights over the fact that the DOJ lied to the Supreme Court about the nature of these "about" collections, which may have created more pressure to stop them from happening. I'm sure that we'll find out more about what happened in the near future, but this will certainly play a large role in the upcoming debate about renewing Section 702. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Learn how to create, effectively manage and deliver desired results by learning Project Managment skills. For $49.99, the Project Management Professional Training will help you learn the skills needed. It features over 35 hours of training approved by the Project Management Institute. At the end, you will have knocked out the 35 contact hours requirement and be ready to sit for the PMP and CAPM exams (not included in the deal) in order to gain your certification and set yourself apart in the job market. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
As most people know, babies who are breastfed from birth enjoy a wide range of benefits. Here's what the United Nations Children's Fund (Unicef), a global organization with nearly $5 billion of funding, has to say on the topic of breastfeeding: It has profound impact on a child's survival, health, nutrition and development. Breast milk provides all of the nutrients, vitamins and minerals an infant needs for growth for the first six months, and no other liquids or food are needed. In addition, breast milk carries antibodies from the mother that help combat disease. … Breastfeeding also lowers the risk of chronic conditions later in life, such as obesity, high cholesterol, high blood pressure, diabetes, childhood asthma and childhood leukaemias. Studies have shown that breastfed infants do better on intelligence and behaviour tests into adulthood than formula-fed babies. Formula milk, by contrast, can actively harm babies: Formula is not an acceptable substitute for breastmilk because formula, at its best, only replaces most of the nutritional components of breast milk: it is just a food, whereas breast milk is a complex living nutritional fluid containing anti-bodies, enzymes, long chain fatty acids and hormones, many of which simply cannot be included in formula. Furthermore, in the first few months, it is hard for the baby's gut to absorb anything other than breastmilk. Even one feeding of formula or other foods can cause injuries to the gut, taking weeks for the baby to recover. The case for breastfeeding, and against formula milk, seems pretty clear. But a new publication from the Office of the United States Trade Representative (USTR), the "2017 National Trade Estimate Report on Foreign Trade Barriers" (pdf), begs to differ. As a post on the Public Citizen site explains, the USTR calls out several countries for promoting breastfeeding over formula as a "technical barrier to trade" that might harm the profits of US industries. These are some of the polices that the USTR wants eliminated: Hong Kong: The Report criticizes a Hong Kong draft code, designed to "protect breastfeeding and contribute to the provision of safe and adequate nutrition for infants and young children." USTR labels the policy as a technical barrier to trade due to its potential to reduce sales of "food products for infants and young children." Indonesia: USTR labels a draft regulation in Indonesia that would prohibit the "advertising or promotion of milk products for children up to two years of age" as a technical barrier to trade. Malaysia: USTR questions Malaysia's proposed revisions to "its existing Code of Ethics for the Marketing of Infant Foods and Related Products" that would restrict corporate marketing practices aimed at toddlers and young children. Thailand: The report critiques Thailand for introducing a new regulation that would impose penalties on corporations that violate domestic laws restricting the "promotional, and marketing activities for modified milk for infants, follow-up formula for infants and young children, and supplemental foods for infants." Although "technical barriers to trade" sound like a minor issue, they lie at the heart of modern trade deals. Traditional tariffs are now relatively low in many parts of the world, which means that the hard part of trade negotiations is often these "non-tariff barriers" (NTBs). Indeed, it was in large part a failure to agree on the removal of NTBs that caused the TAFTA/TTIP talks to grind to a halt, and then end up in limbo when the Trump administration took them over. The USTR's attack on policies that promote breastfeeding over formula milk may seem extreme. But they are typical of the way the USTR views the world primarily through the optic of boosting the profits of US companies, with no thought to the harms this may inflict on people in other nations as a result. No wonder that trade deals are viewed so negatively in many parts of the world. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
For years ESPN has been the perfect personification of the cable and broadcast industry's almost-comic denial regarding cord cutting and market evolution. Long propped up by a system that forces consumers to buy massive bundles of largely-unwatched channels, ESPN has struggled with the rise of streaming alternatives and sleeker, "skinny" channel bundles. The sports network, which has lost 10 million viewers in just the last few years, has been trying to argue that these losses (which caused Disney stock to lose $22 billion in value in just two days at one point) are simply part of some kind of overblown, mass hallucination. Surveys have shown that 56% of consumers would drop ESPN in a heartbeat if it meant a reduction in the $8 per subscriber the channel is believed to cost. But last year, ESPN exec John Skipper suggested that these departing customers weren't worth keeping anyway: "People trading down to lighter cable packages. That impact hasn't leaked into ad revenue, nor has it leaked into ratings. The people who’ve traded down have tended to not be sports fans, and have tended to be older and less affluent. We still see people coming into pay TV. It remains the widest spread household service in the country after heat and electricity." All is well! Nothing to see here! This narrative that cord cutters are somehow uneducated, too old, or otherwise not worth keeping (which isn't true) sits at the heart of cable and broadcast executive denial. And while execs like Skipper consistently insisted that everything was under control, former ESPN talent like Bill Simmons have noted that the cord cutting revolution came out of left field and surprised the hell out of the self-proclaimed worldwide leader in sports, which had spent years spending millions on SportsCenter set updates and licensing deals with nary a care in the world. Instead of identifying market evolution and quickly adapting, ESPN did, instead, what any other legacy company would do. One, it began suing companies that tried to offer more innovative, disruptive cable TV packages that didn't include ESPN by default. Two, it began yelling at companies like Nielsen simply for showing company executives the truth: ESPN was losing subscribers at an alarming rate. In short, executives doubled down on bad behavior and denial, something fans had noticed for several years: Pretty amazing sign on ESPN's College Gameday. pic.twitter.com/o2NfeMalSf — Jason Abbruzzese (@JasonAbbruzzese) December 5, 2015 This week, some ESPN employees began paying the price. Including long-standing workhorse beat reporters like Ed Werder, who was among 100 on-air personalities and writers given pink slips this week. After 17 years reporting on #NFL, I've been informed that I'm being laid off by ESPN effective immediately. I have no plans to retire — Ed Werder (@EdwerderFA) April 26, 2017 Poured my heart and soul into ESPN for last 8 years. Moved my wife and 3 kids to CT to go "all in" 5 years ago. Bummed it ended in 3 minutes — Danny Kanell (@dannykanell) April 26, 2017 Laid off by ESPN today.Although sad cause I loved my job, mostly filled w/gratitude & appreciation for the 9 years #GreatFriendsAndTeammates — Trent Dilfer (@DilfersDime) April 26, 2017 In a memo posted to the ESPN website, Skipper proclaimed the staff reductions were necessary to "manage change" (something Skipper has shown himself incapable of doing while somehow remaining employed): "A necessary component of managing change involves constantly evaluating how we best utilize all of our resources, and that sometimes involves difficult decisions...Dynamic change demands an increased focus on versatility and value, and as a result, we have been engaged in the challenging process of determining the talent—anchors, analysts, reporters, writers and those who handle play-by-play—necessary to meet those demands. We will implement changes in our talent lineup this week. A limited number of other positions will also be affected and a handful of new jobs will be posted to fill various needs." That's great and all, but purging your on-air talent won't magically make executives like Skipper less myopic and more flexible. After losing an estimated 10,000 viewers per day, ESPN recently stated it will finally offer a standalone streaming service. But that won't solve ESPN's woes either. I'm told many of Disney/ESPN's contracts with cable providers contain provisions that prohibit cable providers from offering channel bundles without ESPN -- unless ESPN offers a standalone streaming service. In other words, even if ESPN adapts, it opens the door to new skinny, sport-free bundles without ESPN -- accelerating subscriber declines. None of this is pretty, and were I a betting man I'd wonder if Disney/ESPN doesn't get swallowed up completely by a company like Verizon sometime in the next year. At that point you'd have to wonder if ESPN execs, like John Skipper (you know, the ones actually responsible for the channel's monumental implosion) might actually face something vaguely-resembling accountability. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
The weird, sickening persecution of Barrett Brown continues. Whether or not you like the guy (and every time we post about him, we hear from people who provide reasons why they dislike him), the way he's been treated by our justice system is despicable. If you don't recall, Brown is an award winning journalist, who certainly went deep with Anonymous and other online groups. Eventually that resulted in him being arrested and harassed by prosecutors for sharing a link. When the infamous Stratfor hacks were released, he shared a link to the files to get people to sift through them. Because some of the files included swiped credit card numbers, he was charged with "trafficking" in stolen credit cards. Oddly, right before trial -- realizing how insane it was to charge him over this -- the feds dropped the charges around linking, but pushed forward on other charges because he hid a laptop in a cabinet and (stupidly...) got angry at the FBI when they came to investigate. The odd part is that following a plea deal, the judge sentenced him to an astounding 63 months in jail -- and cited the sharing of the link (again, those charges were dropped, but it sometimes appeared the judge didn't realize that) to explain why. But the odder part throughout all of this was just how vindictive and petty everyone in the system were towards Brown -- and specifically towards his interactions with the press. The feds sought to stop the media from reporting on Brown's case and got a judge to block Brown or his lawyers from talking to the media. And once he was in prison, the feds cut off his email. All this weird petty shit, just to stop him from talking to the media. Late last year, he was released from prison (earlier than expected) and has been complying with all the terms of his release... except, apparently, officials disagreed with that... because he was conducting interview with the media, according to D Magazine, where Brown has been working since his release. The Intercept, which employed Brown as a columnist while he was in prison, has more details, claiming that his check-in officer suddenly claimed that he needed permission before he could conduct media interviews -- something he had not been told at all. According to his mother, who spoke with Brown by phone after his arrest, Brown believes the reason for his re-arrest was a failure to obtain “permission” to give interviews to media organizations. Several weeks ago, Brown was told by his check-in officer that he needed to fill out permission forms before giving interviews. Since his release, Brown has given numerous interviews, on camera and by phone. But according to his mother, Brown said that the Bureau of Prisons never informed him about a paperwork requirement. When he followed up with his check-in officer, he was given a different form: a liability form for media entering prisons. Just last week, Brown was interviewed for two days by VICE, and his PBS interview was set for Friday. Leiderman said he had not been presented with a formal justification for the arrest but was told that it had “to do with failing to abide by BOP restrictions on interviews.” That's both astounding and frightening at the same time, and seems like a fairly blatant kick in the face to the First Amendment. There appears to be no other reason for his arrest other than his speech in the form of conducting media interviews (often critical of criminal justice system). Nothing about this makes sense, other than out of pure vindictiveness. And, of course, if the idea was to shut him up about this, it seems quite likely to backfire massively. Not only will Brown continue to be able to talk about on this, but it's drawing much more attention to the issue from many others in the press, wondering what kind of world we live in when you can be arrested for agreeing to do media interviews. Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
We've seen random attempts by governments to block access to social media sites or even the internet as a whole, but the Indian state of Kashmir has ordered 22 social networks to be blocked for at least a month. Journalist Nazir Masoodi, who is in Kashmir, tweeted out screen shots of the government order, noting "This could be my last tweet." This could be my last tweet.Govt bans twitter, whataapp, Facebook and all other social networking sites in Kashmir pic.twitter.com/IF6YJiHAf8 — Nazir Masoodi (@nazir_masoodi) April 26, 2017 We've taken those images and turned them into a PDF if you'd prefer to view them that way. But you can see that basically every big name social network is listed: Facebook, Twitter, Tumblr, Skype, Snapchat, Reddit, YouTube (apparently they just want YouTube uploads blocked, but you can visit the site) and more. MySpace is still available. As the NY Times points out, this pointless and heavy handed approach is apparently a terrible response to protests: The move illuminated a government increasingly vexed by civilian protests, by a newly budding homegrown militancy in south Kashmir and by a series of video clips, distributed on social media, depicting confrontations between civilians and Indian security forces. The order, signed by the principal secretary in the state’s Home Department, contended that social media was being used by “anti-national and subversive elements” for “vitiating peace and tranquillity” in the state. As always, when governments resort to out-and-out censorship, it's difficult to see how this will do any good at all. There are always alternative ways to communicate and share information, and these kinds of actions tend to galvanize those being censored into being even more aggressive in sharing such info. Indeed, the NY Times quotes protesting students pointing out how pointless such a ban really is: “The government has to understand that there is a sentiment which forces students to come out on the streets: it is not the internet, it is not Facebook or any other social media platform,” said Aqib Shah, a 19-year-old student at Amar Singh College, who has been participating in protests in Srinagar for the last several days. “It is because of the overwhelming presence of forces that are deployed here.” Instead of trying to shut people up on the internet, maybe it would be a better idea to listen to them. Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
As we noted yesterday, FCC Chair Ajit Pai has officially kicked off his plan to kill net neutrality -- and unfortunately did so by spouting debunked myths and fantasies about how much damage net neutrality was causing for investment. As we pointed out that, that's complete hogwash. If you actually looked at what telcos and ISPs were spending it showed no impact from the open internet rules. And, really, why should it have changed investment plans? As we've noted, the rules had basically no impact on ISPs unless those ISPs were looking to screw over consumers. And if it harmed those ISPs' investment plans, that doesn't seem like a very big loss. Otherwise, the open internet rules just provided clear "rules of the road" for ISPs to treat internet data fairly and to not screw over end users. Either way, that's not the only "investment" that Pai should be looking at. Because one of the other key aspects of having an open internet is the massive amount of investment that has resulted for companies that operate on the internet. Pai seems (bizarrely) exclusively focused on investment in the infrastructure (which, again, has not dropped despite his claims) and totally ignores all the investment layers above (which also helps funds the infrastructure). So, just as Pai is (wrongly) whining that net neutrality harmed investment, over 800 startups, from all 50 states, sent him a letter urging him not to get rid of the open internet rules (and, yes, we were among those who signed onto the letter). This is important. Pai is making all sorts of misleading to nonsensical claims about the impact on the economy of the net neutrality rules, but in doing so he's trying to ignore all of the business that's created because the internet is kept open and free and the giant incumbent access providers are unable to favor their own services or throttle and stifle innovative upstarts. Pai talks a good game about how he wants the "democratization of entrepreneurship" thanks to a fast internet. That's great. But if he kills off net neutrality we lose that. We get a system where each startup has to go begging and pleading to each access provider for a deal they probably can't get or couldn't afford even if they were able to. We've seen that world. It's the world that existed on mobile phones in the early 2000s when the providers got to control (i.e., charge ridiculous sums for) who had access to their customers. That was not a good world to live in and it vastly limited the economic opportunities of the mobile world. It was only when smartphones broke away from the carriers' control that things changed. We shouldn't move back towards that kind of world, yet that appears to be the clear end result of the plans that Pai is pushing. This is a mistake and over 800 startups are letting him know that. Pai may think he can ignore them all, but he should note that each of those companies has a lot of users, and it's not difficult to ask them to speak up too. Pai is playing with fire if he thinks that the public won't speak out about his attempts to kill off net neutrality and to harm the most innovative companies out there, in favor for the slow, lumbering duopolists who control the pipes. Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
It doesn't take many stories of people suffering due to unaffordable medicine to make you question the state of pharmaceutical patents, but the arguments in their defense are loud and frequent. Most are variations on the same theme: without the promise of a monopoly, important drugs would never be researched and developed. But does this argument truly hold up? It's come up as a tangent in previous episodes of the podcast, but this week we're dedicating a full episode to questioning the popular defenses of pharma patents and looking for a better way forward. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
Anyone familiar with internet culture will be familiar with Godwin's law. It goes roughly something like this: the longer a discussion goes on on the internet, the higher the probability that a comparison to Hitler or the Nazis will be made. This axiom enjoys lofty status on the internet -- so often have we seen its claim played out in threads and discussions. Godwin's Law is, of course, not a real law. But there may soon be a real Godwin's Law on the books, stemming from the murder of Robert Godwin Sr. and the subsequent video upload to Facebook of the murder. Erie Feinberg, heads a company called GIPEC, specializing in deep Internet searches looking for criminals or terrorists. He is now calling for new federal regulations so what happened in Godwin’s case doesn’t happen again. “I think it starts in Cleveland, in Ohio right now, where everybody calls their congressman and their senator," Feinberg told the FOX 8 I-Team. He wants new limits on websites posting horrific crimes. "They created this world, and it's not an excuse to say, ‘You can't expect us to police every bit of content post and video.’ Well, you created this. You should secure it." Feinberg isn't the first person to stamp his or her feet in the wake of Robert Godwin's murder with calls for social media sites to do something, anything, to keep this type of content from ever being shared on the computer screens of the masses. What's frustrating about these types of screeds is how clear it is, at times even to the person screeding, that there is little if anything that can be done by companies like Facebook beyond what they do already to stop any of this. The problem is how tantalizing it is to those grieving, as well as to those of us viewing what happened to Godwin from afar, to try to place blame on a site like Facebook for ever having shown us this type of terrible content. You can hear it in Feinberg's words: "You created this. You should secure it." (And let's not even bother digging into the more cynical take that this kind of "do something!" regulation might benefit Feinberg's own company... ) Facebook already works quite hard to take down violent videos of this kind from its pages. However, there is little it can do to prevent the content from being uploaded initially. The site relies on users to report when images and videos ought to be taken down. The takedowns can only happen after the upload. The fundamental question is: do we want a world where user videos can be uploaded to Facebook? If we do, we need to understand the collateral content that may come with that. No Godwin's Law that would pass constitutional muster is going to solve the problem. And no amount of fist-shaking at this tragedy is going to make Facebook magically able to solve it either. The calls for something to be done are calls based on emotion. Understandable emotion. You can, again, hear it in Feinberg's words as he pushes for a real-life Godwin's Law. "There's gotta be some good or some positives out of this heinous act," Feinberg said. No, there doesn't. This isn't a movie. Bad things happen and there isn't always something that can, or should, be done about it. Certainly, laying blame at the feet of Facebook because a single user uploaded a murder video is wholly inappropriate. Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
Section 702 -- the statute that allows the NSA to collect internet communications and data in bulk -- is up for renewal at the end of this year. The NSA, thanks to Ed Snowden, faced more of an uphill battle than usual when renewing Section 215 (bulk metadata collections). For the first time in its existence, the NSA ended up with a compromise (the USA Freedom Act), rather than a straight renewal. The Intelligence Community appears to be trying to get out ahead of straight renewal opponents. The Office of the Director of National Intelligence has released a Section 702 Q&A at millennial watering hole Tumblr. By returning its own soft serve questions with canned talking points, the ODNI is hoping to show just how lawful its upstream collection is. It also hopes to obscure something that's been around since the 2008 FISA Amendments Act: backdoor searches. Other government agencies have had the ability to peruse the NSA's collections, which were ostensibly gathered solely for national security use. The FBI is the most frequent backdoor searcher, seeing as it has rebranded as a counterterrorism unit over the past several years, which has allowed it to expand its surveillance capabilities and increase exploitation of the NSA's data stores. The ODNI's Q&A document sort of admits this, but tries to downplay the implications of allowing a domestic law enforcement agency free access to national security-focused surveillance intake. The government’s minimization procedures restrict the ability of analysts to query the databases that hold “raw” Section 702 information (i.e., where information identifying a U.S. person has not yet been minimized for permanent retention) using an identifier, such as a name or telephone number, that is associated with a U.S. person. Generally, queries of raw content are only permitted if they are reasonably designed to identify foreign intelligence information, although the FBI also may conduct such queries to identify evidence of a crime. As part of Section 702’s extensive oversight, DOJ and ODNI review the agencies’ U.S. person queries of content to ensure the query satisfies the legal standard. Any compliance incidents are reported to Congress and the FISC. It still sort of sounds like a backdoor search, even with supposed strict oversight, but the ODNI adds a footnote claiming it isn't: Queries of Section 702 data using U.S. person identifiers are sometimes mischaracterized in the public discourse as “backdoor searches.” Oh, that crazy "public discourse." Won't it get anything right? Here's Emptywheel's Marcy Wheeler to explain what the ODNI won't. While it’s true that NSA and CIA minimization procedures impose limits on when an analyst can query raw data for content (but not for metadata at CIA), that’s simply not true at FBI, where the primary rule is that if someone is not cleared for FISA themselves, they ask a buddy to access the information. As a result — and because FBI queries FISA data for any national security assessment and “with some frequency” in the course of criminal investigations. In other words, partly because FBI is a domestic agency and partly because it has broader querying authorities, it conduct a “substantial” number of queries as opposed to the thousands done by CIA. Wheeler goes on to point to the Privacy and Civil Liberty Oversight Board's (RIP) report on Section 702 as evidence of this common FBI practice. While the PCLOB mostly punted on Section 702, finding it to be less blatantly-unconstitutional than the Section 215 program, it still found the FBI perused raw NSA collections quite frequently, both for foreign intelligence information and evidence of criminal activity. The PCLOB was unable to assess how frequently these "none dare call it a backdoor" searches occurred because the FBI has no way of tracking how often it dips into the NSA's collections. With no data and no reporting, it's pretty disingenuous to claim there's effective oversight over the Section 702 program. Marcy Wheeler also noticed something unusual in the brand new FISC Section 702 report -- newly-required by the USA Freedom Act. According to the numbers released by the FISA Court, zero 702 applications were approved in 2016. Wheeler points out the process for Section 702 approval runs much like that of Section 215, with applications either being approved by the FISA court or sent back for fixes. Once approved, extensions can be requested, but only for up to 60 days at a time. As she notes, the last 702 submission wouldn't have been able to coast through 2016 without a renewal. The prior approval before last year was November 6, 2015, so it would only have had to have been extended 2 months to get into this year. So that seems to suggest there was at least a three month (application time plus extension) delay in approving the certifications for this year. Note, too, that the report shows the only amicus appointed last year was Marc Zwillinger for a known PRTT application, so this hold up wasn’t even related to an amicus complaint. In any case, this may reflect significant issues with 702. The Snowden documents -- along with some from other unidentified leakers -- generated far more scrutiny of Section 702 than the NSA has ever experienced. It's not tough to imagine at least a couple of FISA judges being surprised with the scope of what they were approving. The number of submissions is redacted, but the footnote attached makes it clear the government submitted more than one application. This span with zero approvals dates back to the middle of last year, so it's been a bit of a dry run for the NSA. The NSA has run into issues before with Section 702, the last time being in 2011, when the FISA court found the "upstream collection" of internet data to be "deficient on constitutional and statutory grounds." The NSA obtained extensions and apparently modified the order until it reached the FISA court's standards. This long delay between approvals could suggest the NSA is back in constitutionally-deficient waters, which definitely isn't where it wants to be as the program heads for renewal. Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
Everyday computer users are juggling huge amounts of data, so it makes sense that you're taking care of that data responsibly. With the $60 Degoo Premium 2TB Backup Plan, you get unlimited lifetime access to secured data storage. You can easily send files to friends and coworkers via email or link, and you can replicate your backups while you perform them for a little extra peace of mind. Your backups will be updated automatically thanks to automatic file change detection. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
Even though stories of copyright collecting societies failing to distribute the monies that they collect to artists abound -- we wrote about one just a few weeks ago -- this doesn't seem to discourage others from continuing to bend the rules somewhat. Here, for example, is a story from Australia, where there is a major battle to switch to a US-style fair use approach to copyright. Naturally, the affected industries there hate the idea of allowing the public a little more leeway in the use of copyright materials. So Australia's copyright collection agency decided to build up a war-chest to lobby against such changes. The Sydney Morning Herald explains where the money for that fighting fund is coming from: Australia's government-mandated copyright collection agency has been diverting payments intended for journalists and authors to a [$11 million] "future fund" to fight changes to the law. Specifically, the monies come from payments made by educational establishments in order to use orphan works. That's a major change of the agency's policy that was not disclosed to the Australian government's Productivity Commission that oversees this area: [The Copyright Agency] has been criticised in a Productivity Commission review that is before the government over the transparency of its accounts and its practice of retaining, rather than returning, millions of dollars collected from schools and universities on behalf of the owners of "orphan works" who can't be traced. An examination of accounts shows that in a change not disclosed to the commission or to its members in annual reports, since 2013 it has been channelling that income into a fund set up to campaign against changes to the copyright law. Between 2013 and 2016 the fund amassed [$11 million]. In other words, schools and universities have effectively been paying to lobby against changes to Australian copyright laws that would be very much in the interest of themselves, the public, and writers, who could use copyright materials more freely under a fair use system. According to the Sydney Morning Herald article, the top three executives at Australia's Copyright Agency are all paid around $200,000 a year to come up with these kinds of ideas. It would be interesting to know whether Australian authors consider that $600,000 well spent. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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