posted 23 days ago on techdirt
In a move that will have major implications for the online world in India and beyond, nine Supreme Court judges have ruled unanimously that privacy is a fundamental right under the Indian Constitution. As part of a decision spanning 547 pages (pdf) they declared: Privacy is the constitutional core of human dignity. The case was brought as a result of a legal challenge to India's huge biometric database, Aadhaar, whose rise Techdirt has been charting for some years. A post on the EFF Web site explains the legal background, and why the Supreme Court decision was necessary: The right to privacy in India has developed through a series of decisions over the past 60 years. Over the years, inconsistency from two early judgments created a divergence of opinion on whether the right to privacy is a fundamental right. Last week's judgment reconciles those different interpretations to unequivocally declare that it is. Moreover, constitutional provisions must be read and interpreted in a manner which would enhance their conformity with international human rights instruments ratified by India. The judgment also concludes that privacy is a necessary condition for the meaningful exercise of other guaranteed freedoms. Now that a solid constitutional foundation for privacy in India has been affirmed, other judges will proceed with examining the legality of Aadhaar in the light of the many relevant points made in the ruling: The Aadhaar hearings, which were cut short, are expected to resume under a smaller three- or five-judge bench later this month. Outside of the pending Aadhaar challenge, the ruling can also form the basis of new legal challenges to the architecture and implementation of Aadhaar. For example, with growing evidence that state governments are already using Aadhaar to build databases to profile citizens, the security of data and limitations on data convergence and profiling may be areas for future privacy-related challenges to Aadhaar. A case challenging WhatsApp's new privacy policy that allows content sharing with Facebook is also certain to be affected by the ruling, but the ramifications go far beyond Aadhaar and the digital world. As an analysis in the Economic Times notes, the judgment could lead to the decriminalization of homosexuality in India, as well as affecting laws that restrict a person's right to convert to a different religion, and state-level rules that impose restrictions on animal slaughter. The breadth of those possible impacts underlines just how epoch-making last week's decision is likely to prove. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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We've noted time after time how the trend du jour in online media is to kill your news comment section, muzzle your valuable on-site community, then couch the decision under all manner of disingenuous prattle. Reuters and Recode, for example, killed visitor news comments several years ago because, they claimed, the companies really value conversation. The Verge also tinkered with killing comments, purportedly because it just really valued relationships. As we all know, nothing quite "builds relationships" and gets the conversation going like a muzzle, a wave, and a swift digital kick in the ass. Other websites couch their decision to mute their users under the pretense that it's just an "experiment," and the website will return with something more interactive and wonderful down the line. More often than not, this never happens. Case in point is NPR, which announced last summer that it too would be banning all public community feedback out of a deep rooted love for building community and audience engagement: "After much experimentation and discussion, we've concluded that the comment sections on NPR.org stories are not providing a useful experience for the vast majority of our users. In order to prioritize and strengthen other ways of building community and engagement with our audience, we will discontinue story-page comments on NPR.org on August 23." Ironically, public comments on NPR's post at the time were hugely negative, with numerous loyal readers saying the act of pushing them over to Facebook was, in effect, a giant middle finger to the readership. But because interesting discourse and community can't always be directly monetized by bean counters, this blowback was largely ignored. While NPR hinted that it might bring back comments eventually after some experimentation, a new blog post points out that won't be happening. Why? NPR traffic went up anyway despite the decision: "At the time commenting was ended, there was speculation that the number of users coming to NPR.org would drop. In fact, the number of users for the May-to-July period grew 18 percent in 2017 compared with the year-earlier period, according to Google Analytics numbers Goo provided. (Year-over-year monthly growth has been as high as 37 percent.)" Except the spike in NPR traffic many have had nothing to do with comments one way or the other, and could be easily attributable to the fact that the current U.S. political environment has obtained historical levels of batshit. It's also myopic to weigh the benefits of news comments by just traffic. Comments, when managed to minimize idiocy, provide an easy, public way to hold writers and publishers accountable for misleading claims or story errors in a highly visible location. Though few publishers can admit it, eliminating this public forum and returning to era of non-transparent letters to the editor is a major incentive for this shift. At the end of the day, this fashionable assault on ye olde comment section has little to do with valuing community and conversation, and everything to do with illusory control and trying to save money. NPR admitted as much to the latter last year when asked about the decision on Twitter: honestly, it was a tough call. We just have to prioritize our resources and the scale of user interactions had shifted. — Scott Montgomery (@scottmdc) August 17, 2016 Except this narrative that giving a damn about your online community has to be time consuming and expensive is also not really supported by the facts. Studies have shown it's not really that hard to cultivate a healthier on-site comment section by simply having site employees and writers show up and treat the readership like human beings. Again, though, because the act of actually caring about quality discourse can't be directly monitored and displayed on a pie chart, it's being ignored. And that's a mistake in an era where news as a community conversation is more important than ever. Will the world end with the loss of online news comments? No. But they do provide users with an easy and transparent way to debate, discuss and treat news as exactly what it is in the modern era: a conversation. Removing this public forum is a disservice to the news industry at large, and pretending it's being done out of some noble regard for higher human interaction only adds insult to injury. Permalink | Comments | Email This Story

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On June 14th, the New York Times published an editorial concerning violent rhetoric being deployed during political races. In it, the author made an incredibly bad claim: Was this attack [by Hodgkinson] evidence of how vicious American politics has become? Probably. In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear. Before the shooting, Sarah Palin's political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs. This just simply wasn't true. To begin with, Palin's map contained only political districts under stylized crosshairs, not faces of legislators. Not only that, but there's been no conclusive link between Palin's crosshair map and Loughner's shooting. This was noted in two corrections published by the New York Times the next day, which also excised the two false statements. Sarah Palin sued the New York Times for defamation a few weeks later because it apparently just wasn't enough to catch a "fake news" purveyor making some truly laughable assertions in an op-ed. The defamation suit has died a quick death, although Palin's claims were investigated with a bit more thoroughness than usual once the parties had entered their motions. An examination of the run-up to the publication of the erroneous op-ed showed there was no actual malice in the New York Times' assertions -- just some really bad op-edmanship. The statements were provably false, which is key to defamation claims, but there also has to actual malice. And while many people think they know what's meant by actual malice, it's probably not what you think. In the legal context, actual malice requires "knowledge" of falsity before publication or reckless disregard. It doesn't just mean that you were trying to be mean (indeed, you could argue that "actual malice" doesn't require any... um... actual... malice). In this case, the court just can't find any knowledge of falsity -- and thus, no actual malice. [PDF link] [E]ven then, a defamation complaint by a public figure must allege sufficient particularized facts to support a claim of actual malice by clear and convincing evidence, or the complaint must be dismissed. Here, as already mentioned, the complaint fails on its face to adequately allege actual malice, because it fails to identify any individual who possessed the requisite knowledge and intent and, instead, attributes it to the Times in general. This will not suffice. The court also points to the proactive measures taken by the Times to correct the misstatements after they were brought to its attention as evidence of a lack of actual malice. The corrections weren't prompted a lawsuit or threats of a lawsuit, but rather by readers displeased the Times would make a connection between Palin and Loughner that had never been established. Even if the Times hadn't made these immediate efforts, the court still would likely have cut the paper as much slack as it could, given the First Amendment implications of the lawsuit. Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States. In the exercise of that freedom, mistakes will be made, some of which will be hurtful to others. Responsible journals will promptly correct their errors; others will not. But if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously, that is, with knowledge it was false or with reckless disregard of its falsity. To entertain the theory the press can be held civilly responsible for swiftly-corrected errors would chill reporting on pretty much anything. To take the press to court is to take the First Amendment to court. A higher standard must be met by plaintiffs. Permalink | Comments | Email This Story

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Just over a year ago, when Pokémon Go was taking the world by storm, we dedicated an episode of the podcast to discussing what made it so successful, and ended up with some differing predictions about what its future would be. Now, with the hype long and truly over but the game still far from dead (though just how far is up for debate), it's time to revisit the subject and figure out who, if anyone, was right about the future of Pokémon Go. 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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Late last year, we wrote about ridiculous charges by California's then Attorney General, Kamala Harris, against Backpage.com for "pimping." As we pointed out at the time, Harris clearly knew the case was a loser. It completely exaggerated what Backpage had done, and Harris herself had earlier admitted that she had no authority to go after an internet platform for how people used it. A judge quickly threw out the charges against Backpage... and Harris turned around and filed even more charges against Backpage's execs, including repeating the pimping charge and adding in "money laundering." As we noted at the time, the money laundering charges seemed pretty questionable. It's based on the fact that Backpage had set up a separate (and separately named operation) to handle billing. The complaint argues that this was a form of money laundering, to hide from credit card companies that the money was being spent on prostitution. That leaves out, of course, that part of the reason why Backpage likely had to set up such a structure was because Cook County Sheriff Thomas Dart had threatened credit card companies if they didn't stop working with Backpage -- a move that was later deemed to be a clear First Amendment violation against the company by Sheriff Dart. In a new ruling in the case in California, the court has thrown out nearly all of the charges -- including the "pimping" charges that were already previously thrown out. But they are allowing the money laundering charge to go forward -- though it does appear the court recognizes that the state will have a hard time winning it's case. This Court agrees the complaint is not a model of clarity. However, the nature of the charges and theories of prosecution are ascertainable from the amended charging instrument. Specifically, the People now allege that Defendants conspired to orchestrate a bank fraud by misrepresenting to credit payment processors that they were not processing transactions from Backpage, and this misrepresentation would trigger a release of funds from banks. The overt acts alleged clarify that Defendants created multiple classified websites, and when applying for (at least one) merchant account, Defendant Ferrer omitted any reference to Backpage, despite intending to process Backpage transactions through the account. The People allege that credit payment processors, along with American Express, would not have knowingly processed the payments for Backpage and the banks would not have released funds absent Defendants’ trickery. These allegations provide sufficient notice for Defendants to understand the nature of the charges and prepare a defense. Essentially, either Defendants did - or did not - materially represent to credit payment processors in a scheme to fraudulently obtain money from banks. If Defendants did so, this may form the basis for a money laundering charge. (Cf. United States v. Mason (9th Cir. 1990) 902 F.2d 1434, 14431 [federal money laundering conviction supported by evidence that bank would not have opened a merchant account had it known it was laundering credit charges for prostitution; the false representation to the credit processor influenced the bank’s release of funds].) The factual resolution to that question, however, is not at issue here. What is at issue is whether the First Amended Complaint has been sufficiently pled to meet statutory and due process requirements. The ruling goes on to note that California prosecutors "must show that the profits came solely from that underlying criminal activity" which may be difficult, given that it's repeatedly failed to show any underlying criminal activity done by Backpage itself (rather than Backpage's users -- many of whom may, in fact, be engaged in criminal behavior). The court also does toss out some of the money laundering charges: the ones based on the completely bogus "pimping" charges. Of course, it's important to note that this case continues against the backdrop of Congress rushing headlong towards trying to amend CDA 230 to allow states, like California, to bring charges against companies like Backpage (and to allow individuals to sue in civil court as well). As we've discussed, that bill, called "SESTA," will almost certainly do a lot more harm than good for the victims of sex trafficking. However, it is important to note that when the bill was introduced, it was clearly designed to target one company in particular: Backpage. Just read the quotes from various Senators co-sponsoring the bill, who make it clear that the bill is to take down Backpage: Senator Portman: “Stopping trafficking is one of the great humanitarian and human rights causes of the 21st century. Our bipartisan investigation showed that Backpage knowingly facilitated sex trafficking on its website to increase its own profits, all at the expense of vulnerable women and young girls. For too long, courts around the country have ruled that Backpage can continue to facilitate illegal sex trafficking online with no repercussions. The Communications Decency Act is a well-intentioned law, but it was never intended to help protect sex traffickers who prey on the most innocent and vulnerable among us. This bipartisan, narrowly-crafted bill will help protect vulnerable women and young girls from these horrific crimes.” Senator Blumenthal: “Our narrowly tailored legislation would give victims of sex trafficking their day in court. For too long, countless young people have been victims of prostitution, human trafficking, and horrendous violence through ads on websites like Backpage.com. This is not an abstract debate: these advertisements come with a real, unconscionable human cost.” Senator McCain: “For years, Backpage.com has knowingly facilitated online sex trafficking and child exploitation, destroying the lives of innocent young women and girls,” said Senator McCain. “It is disgraceful that the law as written has protected Backpage from being held liable for enabling these horrific crimes. Our legislation would eliminate these legal protections and ensure companies like Backpage are brought to justice for violating the rights of the most innocent among us.” Senator McCaskill: “Until our investigation showed Backpage was actively facilitating sex trafficking, the company had repeatedly used the federal law that protects online platforms to escape accountability for the disgusting crimes it aided. But even as we’ve helped deny Backpage its legal shield in these cases, we need a broader effort to stop the next Backpage, before it starts. And that’s what this bipartisan bill is all about—better protecting Missouri’s families from sex trafficking by making clear to any company considering going into business with sexual predators, that the law won’t protect them from responsibility.” Senator Heitkamp: “For too long, websites like Backpage.com have profited from knowingly facilitating the sex trafficking of minors and others through the use of their online platform – in many instances, helping traffickers skirt law enforcement and their own standards to advertise minors for sex. And what’s worse: they’ve been able to continue doing this without penalty by claiming protection under the First Amendment. That’s a disgusting and cowardly invocation of one of our nation’s most cherished freedoms – neither the First Amendment nor the Communications Decency Act was written to shield those who help enslave and sell children for sex. It’s past time to hold websites that make money from sex trafficking accountable, just as our laws already do for traffickers, for the enslavement and abuse of men, women, and even children – who have been reportedly trafficked at a near 850 percent increase since 2010 largely because of the anonymity internet sales provide – and our bipartisan bill would work to do that by cracking down on these horrific crimes online.” Senator Klobuchar: “Websites like Backpage.com facilitate sex trafficking across Minnesota and our country. But shutting down these sites isn’t enough, we need to stop protecting perpetrators and ensure victims are able to seek the justice they deserve. The bipartisan Stop Enabling Sex Traffickers Act is another step forward to putting an end to these crimes once and for all.” Senator Lankford: “Heinous crimes like sex trafficking deserve to be met with the fullest extent of the law. We must eliminate loopholes to prevent any entity from avoiding the justice they deserve. This legislation is needed to help protect vulnerable people from modern-day slavery, which unfortunately has been facilitated more and more online. I’m proud to work with my colleagues on the PSI Subcommittee to not only investigate Backpage, but to address the urgent, moral issue of human trafficking.” Senator Lee: “The Communications Decency Act was never meant to provide immunity to websites like Backpage.com. Today’s legislation will deter others from facilitating sex trafficking and allow victims the possibility of restitution, while preserving the core protections of Section 230.” Senator Rubio: “Perpetrators of human trafficking and websites like Backpage.com that knowingly facilitate sex trafficking of children must be held accountable. Sex trafficking is an ongoing issue in Florida and across our nation, and this legislation is an important step forward in ensuring that those engaging in and helping to facilitate these crimes are held responsible and all victims receive the justice they deserve.” And yet, as we pointed out, nothing in CDA prevents the DOJ from going after Backpage if it actually engaged in prostitution or sex trafficking. Indeed, it's been widely reported that the DOJ has been investigating Backpage. The fact that no charges have been brought by the DOJ is at least worth noting. It's possible that more investigation is needed, or it's possible that there actually isn't a violation that the DOJ could find. But, either way, this latest ruling, allowing at least some of the money laundering charges to move forward raises the question of why we need to rush forward with this new bill, that will have massive and much wider consequences for the internet. Law professor Eric Goldman has a thoughtful analysis of this latest ruling, in which he suggests this shows that calling out Backpage by all those Senators has likely always been a smokescreen for attacking the underpinnings of the internet: This ruling has potentially important consequences for the pending bills to amend Section 230. Much of the rhetoric about the bills has specifically targeted and called out Backpage–and only Backpage. A key assumption for the bills is that Backpage needs to be crushed and existing law isn’t getting the job done because of Section 230. As this ruling shows, existing law may in fact be sufficient to crush Backpage irrespective of Section 230. As a result, there is no need–and certainly no urgency–to rush through amendments to Section 230, with potentially major consequences for the entire Internet, while courts are still resolving the matter. (Indeed, that would be true even without this ruling because of the pending grand jury investigation into Backpage in Phoenix that may use the SAVE Act, the anti-Backpage law Congress just enacted in 2015). However, it’s possible that, despite the anti-Backpage rhetoric, the advocates supporting the pending bills aren’t really targeting just Backpage but have larger objectives to undermine or eviscerate Section 230. I expect this ruling will expose the advocates’ true agendas. Because a state prosecution of Backpage is making progress without any changes to Section 230, those advocates should be willing to acknowledge that amendments to Section 230 aren’t essential to achieve their anti-Backpage goal. More likely, I expect the bill supporters to shift the rhetoric about the need for the bills to deemphasize Backpage as the target. If so, this would highlight that Backpage was only a surrogate target–and other Internet entities are also in the bills’ target sights. Once that rhetorical shift occurs, I think we deserve clear answers about who else the proponents expect will be affected by the bills–and how. Again, SESTA is a huge threat to the way the internet works today -- and in a way that will actually do great harm to actual victims of sex trafficking. It's really depressing that those whose true aims are to undermine the internet are so coldly hiding behind false claims of protecting victims of sex trafficking just to attacking the internet. Permalink | Comments | Email This Story

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As you will already know, a boxing match recently took place between Floyd Mayweather Jr. and Conor McGregor. The fight itself was far better than it should have been, but you may not know it if you couldn't manage to actually see it. Much as it did in the run up to the Mayweather v. Pacquiao fight of a couple of years ago, Showtime went out and got some rather questionable injunctions against 44 sites it believed would be offering up the fight via an illegitimate stream during the live pay-per-view broadcast. That effort resulted in, ahem, only three million viewers watching the fight via illegal live streams. Thousands more downloaded video of the fight illicitly after it occurred. So, Showtime got a court to agree to questionable pre-crime activities with the result being rather mixed. But if the steady mantra from the content industries that "every infringement is a lost sale" were true, then perhaps Showtime should be thanking its lucky stars that illegal streams were available, because its own streaming service wasn't able to handle the viewership load it did have. Showtime was hit with a federal class-action lawsuit amid reports that it delivered shoddy or non-existent $99 streams of the Floyd Mayweather-Conor McGregor fight Saturday. This is contrary to Showtime's promise of 1080p resolution at 60 frames per second. "Instead of being a 'witness to history' as defendant had promised, the only thing plaintiff witnessed was grainy video, error screens, buffer events, and stalls," declared the lawsuit (PDF) filed in federal court on behalf of a Portland man named Zack Bartel. The suit seeks to represent "thousands of other consumers" unable to stream the Mayweather fight in HD as Showtime advertised. By all accounts, it was bad. Really bad. The fight was delayed for paying streamers for over half an hour as Showtime's service was unable to handle all of those customers who paid for the fight. I don't want to spend any time on this class lawsuit, because these kinds of class lawsuits are generally pretty silly and the fact that Showtime failed to deliver on its own streaming product isn't in and of itself the point. The point is that if the company really wanted to go to war with streaming sites prior to the fight, it should have made sure that money and effort wouldn't have been better spent actually catering to its paying customers. What if the content industries were right and the injunctions had worked? What if Showtime had to accommodate three million more customers with pirate streams unavailable? How bad would the streaming experience to all of those paying customers have been then? Likely it would have merely added 3 million more individuals to the class action lawsuit. Meanwhile, of those that did pay for the fight and had their experience range from "delayed and sub-par" to "holy shit, I can't even watch this thing", how many might give this whole pirate stream thing a whirl the next time Showtime puts on a fight? All because Showtime would rather play whac-a-mole with streaming sites than make its own product function, never mind actually competitively good. Permalink | Comments | Email This Story

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Get up to speed with the newest Android release, Oreo, and learn how to utilize all the new features to build your own Android apps from scratch. Through hands-on work, you'll gain an understanding of how to program for the world's most popular OS with the $34 Complete Android Oreo with Kotlin Bundle. Learn Kotlin, a statically-typed programming language that has been steadily adopted onto Android over the years. This extensible, powerful language is growing in popularity, and is a valuable language to learn as it works seamlessly side by side with Java and C++ on Android. You'll also get a handle on Android Studio, IntelliJ IDEA, Firebase and more over the 4 courses. 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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In a disturbing case involving the sex trafficking of minors, the 11th Circuit Appeals Court has reached a few interesting conclusions involving digital searches and the Fourth Amendment. Included in the court's findings are rulings on the use of the All Writs Act to force Apple to unlock a device, an email warrant served to Microsoft, and warrants used to obtain a vast amount of information from Facebook. [h/t Orin Kerr] The All Writs Act received a ton of free publicity thanks to Apple's fight with the DOJ over the (forced) unlocking of the San Bernardino shooter's iPhone. Ultimately, the DOJ hired outside help to crack open the phone, abandoning its search for helpful precedent. (And, ultimately, the phone -- the shooter's work-issued phone -- contained nothing of interest.) Here, the Appeals Court finds [PDF] there's nothing wrong with using the 1789 All Writs Act to paper over holes in the 200+ years of legislation. The authority granted by the All Writs Act is broad but not boundless. The Act “is a residual source of authority” that permits issuing writs only if they “are not otherwise covered by statute.” Penn. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43, 106 S. Ct. 355, 361 (1985). It is a gap filler. “Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.” Id. And where Congress has proscribed a certain type of judicial action, the Act cannot overcome that proscription. See id. The bypass order meets this requirement because no statute expressly permits or prohibits it. Using somewhat circular reasoning, the court states the All Writs warrant issued here doesn't produce any Fourth Amendment difficulties because Apple willingly complied with it. To comply with the bypass order, Apple simply had to have an employee plug the iPad into a special computer and then transfer the iPad’s data to a thumb drive. That is not an unreasonable burden, especially in light of the fact that Apple did not object to the bypass order’s requirements. More helpfully, the court seems to suggest it's amenable to challenges like the one raised here. In most cases, challenging an All Writs warrant can only be done by the company receiving it. The court doesn't have to meet the issue of whether or not the defendants had standing to challenge the warrant served to Apple, but doesn't immediately dismiss their attempt to establish standing. Moving on, the court examines the warrant served to Microsoft for emails related to the criminal charges. The court finds the warrant was not overbroad. Viewed against that constitutional history, the Microsoft warrant complied with the particularity requirement. It limited the emails to be turned over to the government, ensuring that only those that had the potential to contain incriminating evidence would be disclosed. Those limitations prevented “a general, exploratory rummaging” through Moore’s email correspondence. The Microsoft warrant was okay. How often does a court describe a warrant as merely "okay?" I'm guessing it's probably not that often. Here's why it did in this case, explained in the footnote attached to the "okay" descriptor. It is somewhat troubling that the Microsoft warrant did not limit the emails sought to emails sent or received within the time period of Moore’s suspected participation in the conspiracy. Nevertheless, the warrant was appropriately limited in scope because it sought only discrete categories of emails that were connected to the alleged crimes. As a result, the lack of a time limitation did not render the warrant unconstitutional. The government passes this warrant examination with C-. The work needs improvement and the government just isn't applying itself. Unfortunately, neither is the court if it's going to allow third parties do the government's particularity work for it. The Facebook warrant, however, doesn't live up to the court's "okay" standard. The Facebook warrants are another matter. They required disclosure to the government of virtually every kind of data that could be found in a social media account… And unnecessarily so. With respect to private instant messages, for example, the warrants could have limited the request to messages sent to or from persons suspected at that time of being prostitutes or customers. And the warrants should have requested data only from the period of time during which Moore was suspected of taking part in the prostitution conspiracy. Disclosures consistent with those limitations might then have provided probable cause for a broader, although still targeted, search of Moore’s Facebook account. That procedure would have undermined any claim that the Facebook warrants were the internet-era version of a “general warrant.” If there's one thing law enforcement doesn't want to hear from a judge, it's the term "general warrant." Being compared to an occupying force is never a good thing. And these warrants are definitely not "okay." The two warrants required Facebook to “disclose” to the government virtually every type of data that could be located in a Facebook account, including every private instant message Moore had ever sent or received, every IP address she had ever logged in from, every photograph she had ever uploaded or been “tagged” in, every private or public group she had ever been a member of, every search on the website she had ever conducted, and every purchase she had ever made through “Facebook Marketplace,” as well as her entire contact list. The disclosures were not limited to data from the period of time during which Moore managed the prostitution ring; one warrant asked for all data “from the period of the creation of the account” and the other did not specify what period of time was requested. The government claimed the Facebook warrant was no different than warrants used to search electronic devices. In the latter case, the government generally takes possession of the device and digs through it until it finds what it needs. (This is an area of jurisprudence that is slowly shifting. With "persons' entire lives" often located on devices like smartphones, the analog equivalent is the government seizing the entire contents of a person's home before taking what's actually relevant to the case at hand.) The court has no sympathy for this argument, pointing out the warrant should have asked Facebook for only what was relevant and allow a non-government party to dig through the suspects' digital personal effects. The means of hiding evidence on a hard drive — obscure folders, misnamed files, encrypted data — are not currently possible in the context of a Facebook account. Hard drive searches require time-consuming electronic forensic investigation with special equipment, and conducting that kind of search in the defendant’s home would be impractical, if not impossible. By contrast, when it comes to Facebook account searches, the government need only send a request with the specific data sought and Facebook will respond with precisely that data. And the government should know this, because it does this thousands of times a year. That procedure does not appear to be impractical for Facebook or for the government. Facebook produced data in response to over 9500 search warrants in the six-month period between July and December 2015. Unfortunately, the government is allowed to keep the Facebook evidence under the "good faith" exception. The Facebook warrants do not fall within either category of excludable warrants. As we have already explained, probable cause supported issuance of the warrants. And while the warrants may have violated the particularity requirement, whether they did is not an open and shut matter; it is a close enough question that the warrants were not “so facially deficient” that the FBI agents who executed them could not have reasonably believed them to be valid. This suggests a two-step process for warrants served to service providers might be the better path to take in the future. While particularity is difficult to nail down when you're not sure exactly what you're looking for, trimming down demands for data and communications to relevant time periods raises the chances of warrants surviving suppression challenges. The court sets no precedent in this decision thanks to its good faith ruling, but the footnote addressing the Microsoft warrant and the multiple paragraphs devoted to the government's Facebook haul hints the government really needs to tighten up its search warrant procedures. Permalink | Comments | Email This Story

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With its quest to gut net neutrality, privacy and other consumer broadband protections, the FCC is rushing face first toward stripping meaningful oversight of some of the least-liked -- and least competitive -- companies in America. The FCC's plan, based on flimsy to no data and in stark contrast to the will of the public, involves gutting most FCC oversight of broadband providers, then shoveling any remaining authority to an FTC we've noted is ill-suited, under-funded, and legally ill-equipped for the job. That's a real problem for a sector that's actually getting less competitive than ever in many markets. Giant ISPs and their armies of policy allies often try to frame the effort as a noble quest for deregulation, often insisting they're somehow "restoring internet freedom" in a bare-knuckled attempt to pander to partisan constituents. But by any sane measure the FCC's quest is little more than a massive gift to despised duopolies like Comcast -- at what might be the worst possible time for a severely dysfunctional industry. But there are signs that even many traditional big ISP allies think Ajit Pai's plan is absurdly extreme. Hal Singer is an economist the telecom industry has often hired to manipulate data in order to make all manner of flimsy claims (from falsely stating net neutrality stifled network investment to falsely claiming net neutrality would dramatically raise taxes). But last week even Singer came forward to acknowledge that the FCC's plan to shovel net neutrality and other ISP oversight to the FTC won't fly. While Pai has repeatedly claimed that FTC authority and existing antitrust laws are enough to protect consumers from companies like Comcast, Singer disagrees: "Singer lists several roadblocks to stopping discriminatory paid prioritization via antitrust. "Monopolists are generally free from legal constraints to choose their suppliers and engage in price discrimination under the antitrust laws," he wrote. Antitrust laws are designed to protect competition, but "competition is not the only value that net neutrality aims to address: end-to-end neutrality or non-discrimination is a principle that many believe is worth protecting on its own," he wrote. "Moreover, antitrust litigation imposes significant costs on private litigants, and it does not provide timely relief; if the net neutrality concern is a loss to edge innovation, a slow-paced antitrust court is not the right venue," he also wrote." Of course there's also the fact that AT&T is currently engaged in a legal battle with the FTC over its network throttling that could hamstring the agency's authority over ISPs even further. If AT&T wins that court fight, the FTC has previously warned that it could open the door to all manner of companies dodging responsibility for unfair or deceptive business practices -- provided some small fraction of their business enjoys common carrier status. That could result in tiny acquisitions specifically designed to free any number of non-telecom companies from accountability, noted the FTC last year: "Many companies provide both common-carrier and non-common-carrier services—not just telephone companies like AT&T, but also cable companies like Comcast, technology companies like Google, and energy companies like ExxonMobil (which operate common carrier oil pipelines). Companies that are not common carriers today may gain that status by offering new services or through corporate acquisitions. For example, AOL and Yahoo, which are not common carriers, are (or soon will be) owned by Verizon." If you're the type of non-nuanced thinker that truly believes that all regulation is automatically evil without bothering to actually analyze the regulation, this whole idea probably sounds good to you. But telecom isn't a normal industry; it suffers from regulatory capture on both the state and federal level, which acts to prop up noncompetitive duopoly fiefdoms nationwide. Removing oversight of this sector doesn't magically forge Utopia; it simply makes companies like Comcast less accountable than ever. And again, with broadband competition diminishing as many telcos refuse to upgrade their networks, that's a recipe for disaster. Said disaster would likely result in greater calls than ever for tougher oversight and rules governing ISP behavior (aka monumental backlash during any post-Trump Presidency), which is likely why you're seeing Singer -- and even industry-backed groups like the ITIF -- calling for a more measured approach than Pai and friends are offering: Interesting because ITIF was a prominent voice opposing Title II for net neutrality rules. @AjitPaiFCC's proposal is pretty extreme. https://t.co/WzL09HWnbL — The real Jon Brodkin (@jbrodkin) August 28, 2017 Of course this may have been Pai's plan all along; to offer an extreme frontal assault on net neutrality and FCC authority that would subsequently make any resulting "compromises" seem almost sane. But these end proposals would all likely be far weaker than the somewhat flimsy net neutrality protections we already enjoy. We've noted that's one of the reasons ISPs are pushing for a new Congressional law they claim would "settle the issue once and for all," hoping the public won't realize said law would be notably more tepid than the existing FCC protections -- since ISP lobbyists and lawyers would be the ones writing it. Again, there's a far-simpler trajectory than the chaotic, disruptive and despised one proposed by Ajit Pai: leave FCC authority, and the popular. existing net neutrality rules, alone. Permalink | Comments | Email This Story

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posted 24 days ago on techdirt
Using nothing more than one of the easiest things the government can obtain -- a grand jury indictment -- accused criminals can be locked out of their choice of representation. In essence, the government, right up until the Supreme Court's 2016 Luis decision, was allowed to take everything a defendant had, whether or not the property could be linked to criminal activity. What this did was make a mockery of the Sixth Amendment. Prior to even taking the case to court, much less securing a conviction, the government could leave defendants with no funds to hire a lawyer. The Supreme Court rolled this back, limiting the government to taking tainted assets. It wasn't a complete win. A complete win would have required the government to secure a conviction before taking any assets, or at least not until it was proven certain assets were tied to criminal activity. It was a limited win for the Sixth Amendment, very much restricted to the facts of the case -- one in which the government had admitted the disputed property was untainted by criminal acts. Still, it was better than leaving it untouched and giving the government the option to bankrupt defendants supposedly considered innocent until proven guilty. This precedent is starting to play a part in the lower courts. The Fourth Circuit Appeals Court has just struck down previous rulings allowing the government to seize untainted property pre-trial. The government's operating theory has been that, despite the Supreme Court ruling, untainted assets can be seized as a "substitution" for tainted assets to ensure the collection of fines and fees, as well as the replacement of any fraudulently-obtained property. The government still argued the Luis decision didn't apply. From the decision [PDF]: [T]he government conceded that the property at issue is not traceable to any alleged crime and is thus subject to pretrial restraint, if at all, as substitute property pursuant to 21 U.S.C. § 853(p). The government also agreed that, following Luis, the Constitution prohibits the pretrial restraint of innocently-obtained property when it is needed by a criminal defendant to obtain counsel. The government nonetheless asserted that the restraining order was proper under our existing rule that the government may restrain a criminal defendant’s “substitute property” pending trial under 21 U.S.C. § 853(e)(1)(A), see United States v. Bollin, 264 F.3d 391, 421–22 (4th Cir. 2001)—a rule, the government maintained, that Luis did not abrogate. In this case, the government sought to prevent a defendant from selling some property completely unconnected to the fraud charges. The defendant admitted the sale of the property had nothing to do with raising money for legal costs, prompting the government to assert blocking the sale under the "substitute property" clause wouldn't harm the defendant's Sixth Amendment rights. The lower court didn't exactly agree with the government's arguments, but allowed pre-Luis precedent to control its ruling granting the government's restraining order against the sale of assets. The Appeals Court goes off into the Section 853 weeds for awhile before coming to the following conclusion: the government can still seize "substitute" assets, but not the way it's doing it here -- not after the Supreme Court's Luis decision. While the government can attempt to deter the dissipation of tainted assets prior to trial, locking defendants out of their untainted assets isn't the solution. Deliberate dissipation of assets opens defendants to more criminal charges or, at minimum, a greater chance of an adverse ruling. That is the deterrent. Depriving the accused of assets the government acknowledges are untainted isn't. [A]lthough we have interpreted Section 853(a) to permit courts to issue money judgments covering a convicted defendant’s substitute assets, United States v. McHan, 345 F.3d 262, 272 (4th Cir. 2003), it does not follow that Section 853(e) is similarly permissive. Indeed, Section 853(p) authorizes courts to order the forfeiture of substitute property only where property “described in [Section 853(a)]” is rendered unavailable “as a result of any act or omission of the defendant.” 21 U.S.C § 853(p). Framed in the past tense, this provision means that a forfeiture order covering substitute property may issue only upon a showing, after conviction, that directly forfeitable assets have been rendered unavailable. The use of Section 853 to seize substitute assets now comes with a conviction requirement. In sum, the Supreme Court has signaled that there is a firm distinction between the government’s authority to restrain tainted and untainted assets in construing Section 853 and related restraint provisions. Consistent with this important distinction, when Congress intends to permit the government to restrain both tainted and untainted assets before trial, it has clearly provided for such authority. Lacking such express authorization, Section 853(e) does not by its terms permit pretrial restraint of substitute assets. Conviction requirements are good. The government has plenty of leeway already when it comes to taking control of people's assets. In most places, civil asset forfeiture is just that: a judicial process that pretty much eliminates the input of the seized property's owner and hardly requires the government to prove anything about the property's "guilt." Pre-trial seizures of assets the government has yet to prove are derived from criminal activity allows the government to perform what amounts to civil forfeiture based on nothing more than some unproven accusations. By helping lock people out of obtaining the best possible legal representation, the government increases the odds it will be able to hold onto everything it has seized, whether criminally-derived or not. Now, if only the courts would apply this thinking to actual civil asset forfeiture... Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Techdirt has written a number of stories about facial recognition software being paired with CCTV cameras in public and private places. As the hardware gets cheaper and more powerful, and the algorithms underlying recognition become more reliable, it's likely that the technology will be deployed even more routinely. But if you think loss of public anonymity is the end of your troubles, you might like to think again: Lip-reading CCTV software could soon be used to capture unsuspecting customer's private conversations about products and services as they browse in high street stores. Security experts say the technology will offer companies the chance to collect more "honest" market research but privacy campaigners have described the proposals as "creepy" and "completely irresponsible". That story from the Sunday Herald in Scotland focuses on the commercial "opportunities" this technology offers. It's easy to imagine the future scenarios as shop assistants are primed to descend upon people who speak favorably about goods on sale, or who express a wish for something that is not immediately visible to them. But even more troubling are the non-commercial uses, for example when applied to CCTV feeds supposedly for "security" purposes. How companies and law enforcement use CCTV+lip-reading software will presumably be subject to legislation, either existing or introduced specially. But given the lax standards for digital surveillance, and the apparent presumption by many state agencies that they can listen to anything they are able to grab, it would be na&iumlve to think they won't deploy this technology as much as they can. In fact, they probably already have. 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 some time now we've noted how poorly secured IOT devices provide a myriad of opportunities for hackers looking for new attack vectors into homes and businesses. That's of course when these devices aren't just coughing up your personal data voluntarily. Whether it's your smart fridge leaking your Gmail credentials or your internet-connected TV transmitting your personal conversations over the internet unencrypted, we've noted time and time again how IOT manufacturers consistently make privacy and security an afterthought -- one that's going to ultimately cost us more than some minor inconvenience. But in addition to the internet of broken things being a privacy and security dumpster fire, these devices are providing a wonderful new opportunity for larger ISPs looking to monetize the data you feed into their networks on a daily basis. A new study out of Princeton recently constructed a fake home, filled it with real IOT devices, and then monitored just how much additional data an ISP could collect on you based in these devices' network traffic. Their findings? It's relatively trivial for ISPs to build even deeper behavior profiles on you based on everything from your internet-connected baby monitor to your not so smart vibrator. We've long noted that while encryption and VPNs are wonderful tools for privacy, they're not some kind of panacea -- and the researchers found the same thing here: "...encryption doesn’t stop ISPs from knowing which internet-of-things devices their users have, nor does it stop them seeing when we use those devices. In the Princeton study, ISPs could track a user’s sleep patterns by detecting when a sleep tracker was connecting to the internet. It also revealed that ISPs could identify when a home security camera detected movement and when someone was watching a live stream from their security camera." Similar concerns have been raised (and promptly ignored in most areas) regarding information collected from smart energy meters by your power utility, since power usage can similarly provide all manner of monetizeable insight into your daily behavior. The researchers do note that more sophisticated users could use a VPN to confuse their ISP, but the full study indicates there will be some impact on network performance that could be a problem on slower connections: "The authors say there might be ways to cut down the snooping abilities of ISPs. One possible defence involves deliberately filling a network with small amounts of traffic. This could be done by running all your internet traffic through a VPN and then programming the VPN to record and play back that traffic even when the IOT device is not in use, making it tricky for ISPs to work out when a particular device is actually being used. However, this would probably slow down the network, making it a somewhat impractical defence against network observations." Aren't you glad Congress recently voted to kill consumer broadband privacy protections solely for the financial benefit of Comcast, AT&T, Verizon and Charter (Spectrum)? Those fairly basic rules required that ISPs be entirely transparent about what data they're collecting and who they're selling it to. The rules, proposed after Verizon was caught modifying user data packets to track online behavior (without telling anyone), also would have required customers opt in to more sensitive financial data collection. Without them, oversight of ISP data collection is sketchy at best, no matter what large ISPs and their friends claim. While the lack of ISP transparency as to what's being collected and sold is one problem, so too is the fact that most of these devices offer little to no insight or control over what kind of data and information they're transmitting. That leaves the onus entirely on the consumer to try and cobble together an imperfect array of technical solutions to minimize ISP snooping and protect themselves (often impossible for your average grandparent or Luddite), or to take the smarter path in the smart home era and resort to older, dumber technologies whenever and wherever possible. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
As part of his ongoing effort to reverse everything President Obama ever did, President Trump will be rolling back the previous administration's 1033 program ban. The program allowed local law enforcement agencies to help themselves to Defense Department equipment -- often paid for with federal grants -- as long as they said the magic words (terrorism/drugs) on the application. Attorney General Jeff Sessions, who led the campaign for the program's reinstatement, outlined the President Trump's new executive order Monday in an address at the annual meeting of the Fraternal Order of Police, the nation's largest police union. The administration's action, first disclosed by USA TODAY, would restore "the full scope of a longstanding program for recycling surplus, lifesaving gear from the Department of Defense, along with restoring the full scope of grants used to purchase this type of equipment from other sources,'' according to a administration summary of the new program recently circulated to some law enforcement groups. "Assets that would otherwise be scrapped can be re-purposed to help state, local and tribal law enforcement better protect public safety and reduce crime." Attorney General Sessions loves rolling things back. This will give police departments access to mine-resistant vehicles, grenade launchers, and firearms, which should "assist" them in fighting the Drug War 1980s-style and/or pitching in with ICE's efforts to pitch migrants back over the wall Trump can't seem to get built. This is prime law-and-order stuff. Trump has made it clear law enforcement is on the right side of history. Everyone who doubts or criticizes cops is simply wrong. A ban put in place as a reaction to militarized police responses is being reversed because no one up top cares how police are perceived. AG Sessions has already killed off federal civil rights investigations of local law enforcement agencies. Now, police will find it easier than ever to dude up as war-fighters, rather than easily-identifiable public servants. As Radley Balko pointed out on Twitter, Obama's rollback didn't put a huge dent in military gear acquisitions. But it did attempt to head off further development of law enforcement's "us vs. them" mentality by making it a bit more difficult to look and act like an occupying force, rather than law enforcement agencies. Balko notes plenty of gear can still be obtained from other sources, like the DHS, state agencies, and donations. But the ultimate point of the ban was to reduce the gap between public servants and the people they serve -- something explicitly noted by Obama's law enforcement guidance task force. The Task Force on 21st Century Policing, chaired by former Philadelphia Police Commissioner Charles Ramsey and Laurie Robinson, a former assistant attorney general, called on law enforcement officials to "minimize the appearance of a military operation'' when policing mass demonstrations. "Avoid using provocative tactics and equipment that undermine civilian trust," the task force urged. The previously-banned equipment also included tracked armored vehicles, bayonets and grenade launchers. Trump's ban reversal sends the opposite message. Combined with his public statements, proclamations, and executive orders, the future of policing will make cities and towns feel like occupied territory and turn citizens into civilians. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Over the last few weeks, we've been talking about SESTA -- the Stop Enabling Sex Traffickers Act. Part of our argument is that the bill will be completely counterproductive to its own goals. As we explained in a letter to Congress (signed by a bunch of tech companies), after two decades of watching CDA 230 in practice, it's clear that SESTA will do the exact opposite of what supporters claim it will do. But that's from the point of view of internet companies who know how the law intersects with technology. But what about experts in trafficking. In our letter, we admitted that area is not our expertise, but that we're all supportive of the idea of stopping trafficking. However, someone who is an expert in trafficking is Alexandra Levy, a law professor at Notre Dame, who works at the Human Trafficking Pro Bono Legal Center and teaches a class entirely about human trafficking. She's written up a fascinating blog post for professor Eric Goldman's blog where she explains why SESTA will be a total disaster for human trafficking. More than two decades later, Section 230 allows people to do more than just set the terms of acceptable speech. It also empowers countless users — including the FBI, victim advocates, concerned citizens, family members, and nonprofit organizations, among others — to proactively fight atrocities such as human trafficking. By removing liability from internet intermediaries (such as Backpage), Section 230 enables intermediaries to serve as a natural pathway between victims and those who want to help them. Due to its wide accessibility, Backpage has enabled people to find and recover family members (including with the help of journalists); nonprofits point to it as a resource for identifying and reaching out to victims; and scores of criminal indictments reveal its value as a point of connection between police and victims. Statistics also show how Section 230 may assist the fight against human trafficking: the National Center for Missing and Exploited Children (NCMEC), among others, reports that the majority of child sex trafficking reported to them involve Backpage. None of this should be surprising: after all, it stands to reason that victims whose services are advertised in more visible places, like Backpage, are more visible to everyone — and thus easier to recover. In this way, Backpage sets a trap for traffickers: lured by the prospect of reaching a large, centralized repository of customers, traffickers end up revealing themselves to law enforcement and victim advocates. There’s nothing to suggest that Backpage causes them to be victimized, but plenty of reason to believe that, without it, they would be much harder to find. Section 230 allows Backpage to serve as a lifeline between trafficking victims and those who want to usher them to safety. As Levy goes on to explain, while so many seem quick to blame Backpage for trafficking, they're confusing Backpage being used to rescue victims and track down traffickers as somehow being responsible for the trafficking happening in the first place. She notes, as we suggested, that Section 230 makes it possible for sites to shine a light on trafficking, to alert authorities, and to play a strong role in preventing or stopping trafficking. Taking that away will kill that. Hiding trafficking doesn't stop the trafficking. In fact, it can make things worse. But while Backpage isn’t allowed to traffic people, Section 230 currently prevents it from getting in trouble for shining a light on human trafficking. That’s the crucial distinction at the heart of Section 230, and it’s the provision that proves most infuriating to those who insist that causing victims to disappear from Backpage is going to somehow return them to safety. Because of Section 230, people who try to sue Backpage for simply revealing trafficking have been unsuccessful (if they could show that Backpage had engaged in trafficking, their suits would not be dismissed). In order to get trafficking victims to stop appearing on Backpage, these advocates call for legislation to limit its Section 230 protection. Their most recent move is the “Stop Enabling Sex Traffickers Act of 2017” (“SESTA”), introduced in the Senate in early August. Among other things, SESTA would allow people to directly sue Backpage (and other intermediaries) for damages for human trafficking — even if Backpage didn’t do anything more than shine a light. This is part of what's so infuriating about the rush to pass SESTA. It's one of those bills that makes claims that nearly everyone supports. Sex trafficking is bad and of course we should support efforts to stop it. But, this bill wouldn't do that -- and, in fact, would almost certainly make the problem worse. Tech companies who have dealt with CDA 230 know that already, and it's good to see some sex trafficking experts come to the same conclusion. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Listen to your music and take calls without the hassle of cords. The $29.95 FRESHeBUDS Pro Magnetic Bluetooth Earbuds connect automatically to your device via Bluetooth as soon as you pull apart the magnetic earbuds. They are sweat and water resistant, feature a battery that lasts for up to 10 hours of playtime, fully charge in 90 minutes, and are designed to be comfortably lightweight and secure in your ears. 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
Seamus Hughes, the Deputy Director of George Washington University's Program on Extremism, happened across an extraordinary story -- told in warrant affidavit form -- of a man who faked up a research lab and started scoring himself truckloads of free equipment from the US government. According to the allegations in the warrant [PDF], Patrick R. Budic discovered a nifty way to exploit government excess equipment giveaways, utilizing a nonexistent company to make off with nearly $11 million in equipment ranging from GPS units to aircraft radios to hospital beds. The figure might have been much, much higher. The affidavit shows Budic tried (but failed) to acquire aircraft on more than one occasion. The setup echoes the sting operation the Government Accountability Office performed as part of its investigation of the Defense Department's 1033 program. The GAO set up a fake law enforcement agency and was able to obtain over $1 million in excess military gear before wrapping up its investigation. In that case, there appeared to be almost zero follow-up by the agencies in charge of disbursement. No one called. No one visited the fake address to verify the fake law enforcement agency's existence. Some of that appears to have come into play here. Budic -- along with David G. Rosseau, a US Navy engineer -- allegedly set up a fake nonprofit called Northridge National Laboratories (NNL) in Wyoming. According to the state's Department of State, Wyoming does not engage in much regulation of registered nonprofits. No follow-up was done to ensure the nonprofit actually existed and the only verification the state required for its nonprofit status was… the declaration it was a nonprofit on the registration paperwork. However, the principal address for NNL was Milwaukee, Wisconsin, where Budic lived. Budic also set up a for-profit company, PMR Research, and got it registered with the Government Services Administration's (GSA) award management system. Using these two companies and some allegedly false claims about being a Defense Department contractor, Budic went to work. He began exploiting the GSA's surplus property program, which allows government agencies (at all levels) and their contractors to obtain excess equipment for little to no cost. It all began to fall apart when Budic started thinking big. He ran into problems trying to acquire a Learjet. Closer vetting apparently begins when the requested property runs into the millions of dollars per unit. The specialist assisting Budic couldn't find anything verifying Budic's claim NNL was a Defense Dept. contractor "working on top secret research." Budic admitted NNL wasn't a federal laboratory "yet," but was "on its way" to becoming one. "This is how you get there," he told the specialist. Actually, this is how you get got. The GSA Inspector General stepped in and made a recorded call to Budic. Budic claimed he needed the aircraft for Defense Dept. research, claiming he had research labs "all over the place," but principally operated out of Wisconsin. Following that, Budic was interviewed by an undercover GSA agent and a Defense Criminal Investigative Service (DCIS) agent. Budic thought he was there to complain about the holdup on his aircraft order. The story started to change the more Budic talked. The million-square-foot lab Budic said NNL already owned in his earlier phone call became a lab NNL was trying to acquire. Asked where all the government equipment he already had obtained was, Budic said some was in Wisconsin but the rest of it was in California. Based on this information, the agents were able to locate the Wisconsin storage unit. Talking to the unit's owner, the GSA discovered Budic was behind on his rent and was locked out. The owner also said Budic had "offered him a laptop" in an effort to get back into his storage space. According to the owner, the storage unit contained computers, a large printer, docking stations, more than a dozen servers, and "a lot of other stuff." Undeterred by his inability to score an airplane, Budic next tried to acquire a 27' boat. He claimed in his request he was authorized to receive it under law and it would be used for "development projects pertinent to national security." As the investigation continued, Budic became more evasive. He refused to divulge the location of his apparently fake lab, citing national security reasons. He did the same when asked for proof of the lab's ties to the DoD. When asked where the requested aircraft was headed, Budic said operational security prevented him from speaking about it. Those asking questions were told to take it up with other agencies. Budic called someone "Colonel" to imply he was close to DoD officials but couldn't provide a name. The conversations -- many of them partly-transcribed in the warrant application -- are an amazing read. Budic dodged questions by stating he was on medication or replied with veiled threats more questioning would rain down DoD hell on the people standing between him and "his" aircraft. Apparently, Budic was quite the bullshitter. For a brief period of time, he talked his way into office space on a military base. When not hauling away whatever the GSA would part with, Budic was going after the GSA for "unfairly" denying him millions of dollars worth of equipment, including a plane, a boat, and a $10 million supercomputer. Among the things Budic was able to obtain were chemicals from a Defense Dept. chemical disposal facility, a seismograph from the Dept. of the Interior, and pharmacy equipment from Veterans Administration. The entire affidavit reads like a spec script for an unmade blockbuster. Sadly, it also shows what someone can get away with using little more than some letterhead, a plausible backstory, and a decent knowledge of government acquisition programs. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Village Roadshow, an Australian film distributor, has always been something of a strange anomaly. Like many others in the copyright industries, the organization has embraced copyright trolling as a business model, even touting the kind of trolling-automation that has since seen so much backlash over its inherent collateral damage toll. On the other hand, Village Roadshow was also one of the few film distributors I've seen actually come out and state that windowed releases are really, really stupid. On the other, other hand, the distributor subsequently went ahead with windowed releases anyway. Ambiguity appears to be somewhat in Village Roadshow's DNA. So, perhaps it isn't entirely surprising that upon announcing plans to take Australia back to the early 2000s by suing individuals for piracy, the company also made sure to inform the public that it will do so with almost perfect inequity. Let's start with Village Roadshow's plan, which is essentially to ape the RIAA from the days of peer to peer filesharing. It was a strategy, it should be noted, that was dropped because it wasn't particularly effective. But that isn't going to stop Village Roadshow from giving it another go. Many thousands of people were fined and the campaign raised awareness, but it did nothing to stop millions of file-sharers who continue to this day. That’s something that Village Roadshow co-chief Graham Burke now wants to do something about. He says his company will effectively mimic the RIAA’s campaign of 14 years ago and begin suing Internet pirates Down Under. He told AFR that his company is already setting things up, ready to begin suing later in the year. This plan will rely on ISPs to give up customer information, which will likely lead to a fight in Australian court. While the outcome of that fight is uncertain, it can be reliably claimed that what Village Roadshow actually wants is for pirates to pay fines to not go to court. This reads like classic copyright trolling, except that village Roadshow is making a great deal of noise about being prepared for actual lawsuits, while most copyright trolls avoid the courtroom at all (literal) costs. That won't win them many fans in the public, if the American experience is anything to go on. It's perhaps in anticipation of that, however, that Village Roadshow commits its worst sin, although I am sure it thought it was going to win points with the following. “We will identify people who are stealing our product, we will ask them do they have ill health or dire circumstances, and if they do and undertake to stop, we’ll drop the case,” Burke says. While being upfront about such a policy has its pros and cons, Burke is also reducing his range of targets, particularly if likes to be seen as a man of his word, whenever those words were delivered. In March 2016, when he restated his intention to begin suing pirates, he also excluded some other groups from legal action. “We don’t want to sue 16-year-olds or mums and dads,” Burke said. “It takes 18 months to go through the courts and all that does is make lawyers rich and clog the court system. It’s not effective.” This says everything you need to know about how closely Village Roadshow's plan intersects with actual justice. The concept of real justice rarely makes full exemptions for teenagers and parents, never mind the poor or ill. In criminal cases, sentencing guidelines may take those circumstances into consideration, but Burke is essentially saying that teenagers and the poor or ill get a free pass on copyright infringement. I am sure he thinks he's going to win points of sympathy from the public with this stance, and perhaps he will, but he certainly should not. Either this plan is a valid form of combat against infringement or it isn't, full stop. If your justice can't survive the PR surrounding having it meted out against a poor teenager, then it isn't justice at all. It's rent-seeking from those that can afford it, based, as always, on the flimsiest of evidence and predicated on the public being scared of actual lawsuits that Village Roadshow may actually want to file. That isn't justice. It's gross. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
The problem with border searches making a mockery of rights respected (for the most part) elsewhere in the nation isn't limited to the United States. Up in Canada, courts (and lawyers) are asking the same questions: how well are old, pre-smartphone laws holding up to today's reality? Everyone already knows what the answer is: not well. The question is: when will the Canadian government do anything about it? Canadians -- like Americans -- have the right to be free of unreasonable searches. Unfortunately, just like in America, this right seems to evaporate when one approaches the border. According to the Canadian customs law, border guards can search a lot of stuff travelers carry without a warrant. [S]ection 99(1)(a) of the Customs Act… gives border officers the power to, "at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts." According to the government, this means smartphones, tablets, and laptops should be treated as "containers," with the "entire lives" stored within being nothing more than items in a box. The Canadian government has chosen to equate smartphones with briefcases, arguing the incredible amount of personal information stored on phones is just a stack of papers. It's not much different than the arguments made on this side of the border, where the government has equated smartphones to pants pockets or address books, even though smartphones contain boxes full of documents (metaphorically) -- often far more information than anyone actually keeps physically in their homes. Border security is a bit different than regular law enforcement. Law enforcement is able to empty the pockets of detainees and make limited searches of backpacks, luggage, etc. for officer safety reasons -- mainly to prevent overlooking a weapon that could be used against them. This analogy fails when it's a smartphone, which can't be used as a weapon. Outdated analogies are part of the reason the US Supreme Court erected a warrant requirement for cellphone searches. Canadian courts appear to be headed in the same direction, but the border location of these searches complicates matters. Unlike a briefcase or a filing cabinet, judges have found, a smartphone can contain "immense amounts of information" that touch a person's "biographical core." They've acknowledged that laptops create detailed logs and trails of data that can be used to retrace a person's steps in ways that physical documents can't. And lawyers have successfully argued that smartphones and laptops, far from being static stores of information, are in fact portals to the near-limitless volumes of data stored in the cloud — from social media profiles to email accounts and file-sharing apps. It was in this context that a Manitoba provincial court judge last year made a significant ruling: just as Section 8 of the Charter of Rights and Freedoms protects Canadians from unreasonable search and seizure, that right should also apply at the border when an officer asks to search your smartphone or laptop. If this decision is upheld, there would be a warrant requirement for cellphone searches, even at the border. This would place Canada ahead of the US in terms of privacy protections. While there is a warrant requirement in place for cellphone searches of arrestees, courts in the US have held national security priorities trump the Fourth Amendment at the border. In response, there's been a surge in the number of devices searched without a warrant, jumping from 5,000 to nearly 20,000 from 2015 to 2016 -- and nearly 5,000 PER MONTH have been searched so far this year. And while all the discussion about warrantless device searches at the border tends to revolve around national security, three of the four cases seeking to challenge the Canadian government's stance on device searches deal with child porn. The fourth involves drug trafficking. Not exactly as advertised when pitched to the public. Cases where privacy protections would have demanded a warrant have been exempted thanks solely to the physical location of the search. Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
Our winning comment on the insightful side comes in response to a rather confusing comment on Tim Geigner's post about Nintendo's classic consoles proving that people are willing to pay for what's easily available for free, which accused the post of setting up a "straw man" then went on to describe exactly what the post said. One anonymous commenter racked up lots of votes by pointing this out: Umm, that's less a strawman and more...the point. For second place, we head to Tim Cushing's post about the horrendous record of the police deputy who rear-ended a driver at 104mph, where one commenter asked if we ever post any "pro-police" articles and requested we do so. Tim responded in detail: Short answer is: Yes, we do. https://www.techdirt.com/articles/20110725/17451715249/how-should-law-enforcement-handle-being-fi lmed-officer-lyons-provides-perfect-example.shtml https://www.techdirt.com/articles/20131212/15041325 552/canadian-cop-puts-impromptu-clinic-how-to-deal-with-critics-cameras.shtml https://www.techdirt.co m/articles/20161024/08421935871/leaked-recording-austin-police-chief-tears-into-commanders-fatal-sho otings-use-excessive-force.shtml https://www.techdirt.com/articles/20150526/10575331115/body-cam-foot age-clears-police-officer-bogus-sexual-assault-allegations.shtml https://www.techdirt.com/articles/20 151123/09292832888/body-cameras-save-another-law-enforcement-officer-bogus-sexual-misconduct-complai nt.shtml https://www.techdirt.com/articles/20170528/11063337468/this-machine-kills-accountability-ong oing-persecution-good-cops.shtml The longer answer is this: Police misconduct in the US is epidemic. While the number of officers making headlines for misdeeds is indeed a small percentage of the overall whole, the fact is there is little accountability in most law enforcement agencies. It's very rare we see law enforcement officers engaged in exemplary behavior. Asking why we don't publish celebrations of competence and basic human decency is a question that answers itself. We expect law enforcement officers to hold themselves to a higher standard. Far too often, it appears they're uninterested in doing so. There's really no reason to lower standards on our end -- especially when our collective signature is on their paychecks -- just to appear more "fair" in our coverage. I have no objection to publishing more positive stories about law enforcement. The problem is much that's suggested would reduce us to patting officers on the back for not being complete assholes when dealing with their fellow humans. There are amazing men and women out there in the world of law enforcement. Unfortunately, they're a minority. And, for the most part, they're an extremely un-vocal minority. Accountability begins at the top, but that's no excuse for officers refusing to hold each other accountable when management fails to do so. This isn't meant as a criticism of you or your concern. I would prefer a nation where stories like these -- ones that often include long histories of unaddressed misconduct -- weren't daily occurrences. As for your suggestion: do you have some recent instances that come to mind re: police doing amazing things? I am sincere when I say I'd love to see them. For editor's choice on the insightful side, we start out with one more reply to that same comment, from an anonymous commenter who rightfully thought the request was a bit absurd: Your request is silly. There are sites that report on medical malpractice issues. No one is asking them to report on doctors doing amazing things every day. There are sites that report on issues with legal representation. No one is asking them to report on lawyers doing amazing things every day. There are sites that report on restaurants with poor health inspections. No one is asking them to report on restaurants serving amazing food every day. You can "love and support your police" all you want, but if you can't handle seeing some negative articles about them without a need for false, irrelevant balance, then maybe you aren't really supporting them very well. Next, we've got a comment from aerinai pointing out one more thing that journalists writing about the high cost of cord-cutting always get wrong: Something else these journalists are leaving out... the option to MONTH BY MONTH decide when to cancel a service... If I want to watch a single show on CBS's streaming service, I can subscribe for ONE MONTH, then cancel it. Wait a year... do it again. Can you do that with cable? Nope... you have a $5 surcharge for changing anything on your account and that pesky 2 year service agreement and don't forget install fees when you want it back... You could easily subscribe to 1 streaming service a month and switch which one that is and only pay at most $15. Good luck finding a cable provider that will let you do anything like that... I feel like this is the same type of journalism like they had when trains were first coming out comparing the speed of a train to that of a horse... "Well the horse is faster in this very short race we set up, so obviously this new fangled train thing will never catch on..." Over on the funny side, we start out on our post about Trump's recent nonsensical comments about censoring the internet, where one commenter noted that you can no more ban people from the internet than you can phones or mail, and Roger Strong chimed in and won first place for funny: IPv6 is coming, and they STILL don't have an "I am a terrorist" bit in the packet header. And Roger is a double-winner this week, taking second place on the funny side too with a response to the TV station suing pranksters that fooled them for fraud: Gray Television filed a lawsuit against the pair, alleging fraud, conspiracy, and copyright infringement. WAIT! What about RICO? (Checks the lawsuit...) They then demonstrated “activities that really anybody can do to promote strength,” like slamming tennis rackets against each other until they broke. They boasted that in their live shows the tennis rackets are on fire when they do the demonstration. It IS racketeering! For editor's choice on the funny side, we start out with a comment from Radix highlighting just how ridiculous the FBI's latest terrorist sting was: Just to be clear: They took an actual Paranoid Schizophrenic and actually concocted a government conspiracy to have him arrested. Let that sink in a while, then tell me who the crazy party in this debacle really is. Finally, it has to be said that when we published Mike's take on the Daily Stormer this week and waited for the comments (many of which were great) to start coming in, we did have a laugh at the very first one: Well written, Mike, and the timing was perfect as I just happened to bring my 10 foot pole to work with me today. That said, both it and I will be staying away from the rest of the comments on this one! That's all for this week, folks! Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
As you likely know by now, we're celebrating Techdirt's 20th anniversary this week. We've got a podcast episode about our history as well as some limited edition gear featuring a revamped version of the very first Techdirt logo: And today, instead of our usual history round-up, we're taking a look back at the very first post — which was actually not a post originally, but a newsletter, containing a selection of tech news from the week. On that day — August 23rd, 1997 — there was a fair bit of buzz around the so-called "Internet 2" being built by various universities and researchers, and the first item in the first Techdirt used that as a basis of comparison for a new distributed supercomputing project in California. Next there was a quick list of headlines, with one amusing and notable detail: in describing Apple as a competitor to Microsoft, it was at the time not inappropriate to put "competitor" in irony quotes. Later, the newsletter includes some predictions. The first was that a new web portal called "Snap!" from CNET would fail — though some news stories from later years suggest it didn't happen quite as quickly as expected, the difficulty I had in finding any information about it today suggests the prediction came true eventually. The second was right on the money: Mike predicted that Netscape would stop charging for its browser, Communicator. Five months later, not only did Netscape announce that the browser would be free, it launched the Mozilla Open Source project and shared the code with everyone. The word "meme" hadn't morphed into its specific modern internet meaning just yet, and so under a category entitled Meme Watch the newsletter noted something more in line with the original notion — a particular idea popping up again and again and spreading from place to place. In this case it was the habit of comparing every standards battle in tech (DVD, HDTV, wireless connectivity) to the famous VHS versus Beta showdown of the 1980s. While not a useless analogy, it was certainly overused and oversimplified — and the nuanced nonsense of these standards fights would provide plenty of Techdirt fodder in the years to come. Finally, the newsletter ends by noting that the FBI had released all its files related to Elvis Presley — yes, though the saga of Elvis and the FBI feels like mostly common knowledge now, it was only revealed in full in 1997. And that's all for this anniversary week, folks! Once again, be sure to check out our post and podcast about our history, and pick up some original Techdirt logo gear before Sunday, September 3rd! Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Earlier this week, the new documentary by Annie Goldson about Kim Dotcom, Kim Dotcom: Caught In The Web was released. It's available on basically any authorized platform (and, not surprisingly, quickly showed up on a number of unauthorized platforms as well). I should note that I sat for two interviews with the filmmakers, and am very briefly in the film. It's really worth watching. While it doesn't go as deep into the weeds of the specific legal issues at play as I, as a legal geek, might enjoy, that's understandable as a more mass market documentary. And I think it does a really great job of at least getting across the basic issues, of how people in Hollywood, the DOJ and New Zealand law enforcement, intelligence and government were so won over by the image of Kim Dotcom, that they didn't bother much with the legal details. One aspect of the legal case that is definitely discussed in the documentary is the fact that the New Zealand intelligence service, GCSB, illegally spied on Kim Dotcom on behalf of the US government. That's supposed to be forbidden, as the GCSB is only supposed to spy on foreigners, and not citizens or permanent residents. This came out fairly early on in the case against Dotcom, but there's been an ongoing legal battle (one of many...) into what it means concerning the case against him. GCSB had said that they didn't mean to break the law, so it shouldn't matter. And New Zealand moved to change the law to expand GCSB's surveillance powers over New Zealanders in the future. But on Friday, New Zealand's High Court officially unveiled a ruling from back in December, saying that the surveillance of two of Dotcom's colleagues was illegal. This goes beyond what was previously revealed a few years back. Of course, it appears that part of the ruling is based on GCSB refusing to provide any details, claiming they are "top secret" and that to respond to the charges would "jeopardise the national security of New Zealand." Yes, or perhaps just jeopardize GCSB. It's not entirely clear that this will have much of an impact on the case for Dotcom directly, though it once again highlights how the investigation and case against him involved an awful lot of cut corners by officials who totally bought into Hollywood's repeated story about how Dotcom was "Dr. Evil." Dotcom's lawyer, Ira Rothken, is arguing that this is yet another reason why the case should be dropped -- but so far the courts haven't really seemed to care much about all of the errors, law breaking and over reaction in building the case against Dotcom. However, as Rothken notes: "This case and extradition should now be dismissed in the interests of justice. "The government's illegal conduct has reached such an extreme level that we believe that no court should entertain an extradition proceeding so tainted with state sponsored abuse and violations of basic human rights." For years now, I've explained why the case against Dotcom has serious problems -- mainly in that it makes up elements of criminal activity that simply don't exist in the law. The fact that there was also illegal spying on Dotcom and his partners only raises more questions. Yet, so far, the courts don't seem very interested in dealing with any of that, preferring to smooth things over with a simple "but bad stuff happened, therefore he should be punished." It's one of the most extreme examples we've seen of what law professor Eric Goldman has called out concerning lawsuit about infringement online: the courts frequently ignore the actual law if they sense there was "too much infringement." The fact that the government also got some of its information through illegal spying may not be enough to counteract the massive gravitational pull of "but... but... infringement." Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
A few decades ago, Atari was one of the few indisputable titans in the the early gaming industry. With early titles like Pong and Breakout, Atari became a household name for gamers. At the present, however, Atari is little more than an intellectual property troll, scouring the world for anything it might frame as copyright or trademark infringement, often to laughable lengths. For the rest of this post, it is important to keep in your mind the fact that this is now Atari's chief industry: licensing and lawsuits. In 2016, Nestle unveiled a new commercial for its KitKat candy. That commercial, entitled "Breakout", can't currently be shown as it appears it's no longer available on YouTube or Vimeo. It's unclear who is responsible for the commercial no longer appearing on those sites, but it's certainly clear that they were taken down in relation to a lawsuit filed by Atari against Nestle for both trademark and copyright infringement around the video. In a complaint filed on Thursday in federal court in San Francisco, Atari said Nestle knowingly exploited the “Breakout” name, look and feel through social media and a video, hoping to leverage “the special place it holds among nostalgic Baby Boomers, Generation X, and even today’s Millennial and post-Millennial ’gamers.’” The commercial did this by encouraging customers to "breakout" and eat KitKat bars, while replacing all of the iconic imagery from the original game Breakout with Nestle imagery, such as replacing the blocks in the game with KitKat bars. For these sins, the lawsuit filed by Atari claims both that customers could be confused into thinking there was some association between the two companies and that the imagery Nestle used in the commercial constituted copyright infringement on the original game. Both claims stretch this writer's credulity quite thin. On the trademark claim, Atari goes to some lengths to detail the history of the game and the vaunted status the company once held in the industry. In doing this, it notes that it has held trademarks on varieties of the term Breakout for nearly forty years. The problem is that all of these trademarks are for goods and services that have nothing to do with the food or confection industries. To get around that, Atari itself admits it isn't really in the gaming business any longer, but rather in the licensing business. So, by using the term "breakout" in its ad campaign, Atari claims it has been harmed by Nestle's use of the term in that it wasn't allowed to license that term to the very same Nestle. Atari’s IP licensing activities are responsible for a significant portion of its annual revenues. Revenues from its best-known games make up a significant portion of those revenues. Without the benefit of its licensing revenues, profits of Atari would be significantly lower. As an initial, straightforward matter, Nestlé has denied Atari the licensing fees it would have charged Nestlé for use of Atari’s intellectual property in the widely distributed KIT KAT “Breakout” campaign, had Atari agreed to such use. Sophistry in a trademark case? Gross. Nestle goes on to note that it has been harmed because now it won't have the opportunity to license other classic games like Asteroids and Centipede to the massive candy market. The problem is that this isn't how trademarks work. Certainly, had Nestle attempted to make an actual video game to market its KitKat bars and called it Breakout, Atari would have valid reason to go ballistic. This isn't what happened. Nestle made a commercial for candy. Atari does not sell candy, nor does it hold any trademarks for "breakout" for the candy industry. On the copyright side, the claims are even more laughable. In at least one video advertisement, Nestlé’s ad begins with four actors – two young, two middle-aged, in keeping with Breakout’s multi-generational appeal – sitting on a couch playing a video game. The game is revealed to be Breakout, with the nominal and insignificant difference between the classic version and Nestlé’s unauthorized version being that the long, rectangular bricks players “break” in the former are replaced with long, rectangular bricks made of KIT KAT chocolate bars in the latter. Nestlé’s “Breakout” video advertisements depict imagery of the Breakout game which is covered and protected by Atari’s valid registered copyrights. The game simulation depicted in Nestlé’s video advertisement is substantially similar to the Breakout graphics covered by Atari’s valid registered copyrights. Here again, Atari seems to be confused what its intellectual property rights actually protect it against. The copyright for Breakout covers its specific expression. By Atari's own admission, Nestle transformed that expression to serve as an homage to the game while relating it to KitKat bars. On top of that, Nestle did not make a video game. They simply created images that looked like one. Calling this copyright infringement is akin to the NFL suing Mars for its "Want to get away" Snickers commercial that showed an NFL referee in the middle of a football game as if Mars was putting on a football event. That would rightly be called crazy. Claiming copyright here is the same thing. Too many lawsuits these days try to marry trademark and copyright infringement claims, trying to bolster one with the other. But this one from Atari is pretty special in its brave hilarity. Fortunately, Nestle is an organization with the resources to fight back against a once proud gamemaker that has since gone full on troll. Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
For a long time, we've been trying to debunk the "But people just want stuff for free" myth that purports to explain why the only proper strategy for infringement is heavy enforcement. Everyone should have instantly recognized that this was a dumb meme put forth by the content industries, so simple was the offered explanation for what is a vastly complex issue. Still, the meme persists, even in the face of contrary evidence. Evidence such as the fact that Nintendo has had trouble keeping its classic consoles in stock to meet consumer demand. Earlier this year, Nintendo hit the brakes on manufacturing the classic NES mini console after selling over two million of them. The result on the secondary market was immediate. Prices for the retro console skyrocketed, with people desperately searching for one. The interest from the public was high enough that, as Nintendo is set to release the SNES mini console as a follow up, the company is going out of its way to assure the public that it is making enough of them to meet demands. Earlier today, Nintendo announced that it will launch the SNES Classic on Sept. 29 for $79.99. The system will come preloaded with 21 games, and the package will include two SNES Classic Controllers. That’s all well and good, but considering that Nintendo vastly underestimated demand for the NES Classic last year, the question on everyone’s minds right now is this: Will the SNES Classic be just as impossible to find as its 8-bit predecessor was? “We aren’t providing specific numbers, but we will produce significantly more units of Super NES Classic Edition than we did of NES Classic Edition,” Nintendo said in a statement to Polygon. So, I have a question: doesn't pretty much everyone who can afford these retro consoles also have a computer and smart phone capable of running emulators? And can't pretty much everyone fairly easily find these same games coming preloaded on these mini systems for free on the internet? The answer to both questions is "yes", except that Nintendo is still having to go out of its way to assure it will meet the paying customer's demand for these retro consoles. Why? Well, the answer can't be "because everyone just wants free stuff", or there would be zero customer demand and everyone would be emulating. The actual answer is more likely that most people don't simply want everything for free and are happy to pay for something they want when its available. Add to that the nostalgia of actually having a familiar console from the good 'ol days connected to their TV and it's easy to see where all these sales are coming from, particularly when Nintendo's price points on the consoles and the bundles they come with are fairly good. It's worth specifically noting that these consoles come loaded with 20 or so classic games, while the internet comes bundled with all the games for free. Again, you cannot simply say that everyone just wants everything for free. Leave it to Nintendo of all companies to finally put this one to rest. Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
You may recall that in 2014 we wrote about a strange occurrence having to do with Chase Bank refusing to provide its banking services to Teagan Presley, a rather well known adult film actress. When it became clear that Presley wasn't the only performer to whom this was happening, it initially looked as though banks were engaging in a form of slut-shaming of adult film actors. It turned out, however, that it was the federal government doing the slut-shaming, with the emergence of the Department of Justice's Operation Choke Point. This DOJ policy that was developed to combat financial fraud somehow bled over the stencil lines and became a sort of banking morality police, encouraging banks to cut off services to industries like adult film, fireworks retail stores, and sellers engaged in what the DOJ deemed to be "racist materials." It's worth highlighting that all of these industries and actions, whether you like them or not, are legal, yet the DOJ was essentially attempting to extra-judiciously scuttle them through secretive federal policy. That should have terrified everyone, but didn't, and so the program went on. Until recently. The justice department recently announced that Operation Choke Point will be ended. The move hands a big victory to Republican lawmakers who charged that the initiative — dubbed "Operation Choke Point" — was hurting legitimate businesses. In a letter to House Judiciary Chairman Bob Goodlatte (R-Va.), Assistant Attorney General Stephen Boyd referred to the program as "a misguided initiative." “We share your view that law abiding businesses should not be targeted simply for operating in an industry that a particular administration might disfavor,” says the letter, obtained by progressive activist group Allied Progress and later provided to POLITICO by Goodlatte's office. “Enforcement decisions should always be made based on facts and the applicable law. We reiterate that the Department will not discourage the provision of financial services to lawful industries, including businesses engaged in short-term lending and firearms-related activities,” it adds. A nearly identical letter was sent to Sens. Thom Tillis (R-N.C.) and Mike Crapo (R-Idaho). We tend to stay away from partisan politics here at Techdirt, but I cannot write this post without pointing out the oddity that is an Obama-era policy preventing adult film stars from getting banking services and a GOP administration then restoring them. Obviously, per Boyd's letter, there are many more industries that were persecuted that are more in the realm of typical conservative fodder, but it seems that the DOJ is ending the operation in full and is doing so as a matter of principle. Good principle, it should be noted, because attempting to punish lawful businesses through banking back-deals is an especially scummy way to do government. Several applauding members of the government rightly point out that temporary presidential administrations ought not be able to choke out (their word, not mine) legal businesses at their whim and fancy. Goodlatte and House Financial Services Chairman Jeb Hensarling (R-Texas), along with Reps. Tom Marino (R-Pa.), Blaine Luetkemeyer (R-Mo.) and Darrell Issa (R-Calif.) praised the department in a joint statement. “We applaud the Trump Justice Department for decisively ending Operation Choke Point," they said. "The Obama Administration created this ill-advised program to suffocate legitimate businesses to which it was ideologically opposed by intimidating financial institutions into denying banking services to those businesses." Now, some of these industries themselves are industries we may not want to applaud. Some of us have severe issues with payday loan companies, for instance, and some of us surely don't care for the adult film business. But if they're legal, and they are, this sort of thing is no way to deal with these industries. Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
I'm going to try to do something that's generally not recommended on the internet: I'm going to try to discuss a complicated issue that has many nuances and gray areas. That often fails, because all too often people online immediately leap to black or white positions, because it's easy to miss the nuance when arguing about an emotionally potent issue. In this case, I want to discuss an issue that's already received plenty of attention: how various platforms -- starting with GoDaddy and Google, but with much of the attention placed on Cloudflare -- decided to stop serving the neo-Nazi forum site the Daily Stormer. Now, I'll note that as all that went down, I was focused on a multi-day drive out to (and then back from) the middle of absolute nowhere (a beautiful place) to watch the solar eclipse thing that everyone was talking about -- meaning that for the past week I've been disconnected from the internet quite a bit, which meant that I (a) missed much of the quick takes on this and (b) had plenty of time to really think about it. And, the simple fact is that it is a complicated issue, no matter what anyone says. So let's dig in. Let's start with the basics: Nazis -- both the old kind and the new kind -- are bad. My grandfather fought Nazis in Europe and Northern Africa during WWII, and I have no interest in seeing Nazis in America of all places. But even if you believe that Nazis and whoever else uses the Daily Stormer are the worst of the absolute worst, there are many other issues at play here beyond just "don't provide them service." Of course, lots of services are choosing not to. Indeed, both the Washington Post and Quartz are keeping running tallies of all the services that have been booting Nazis and other racist groups. And, I think it's fairly important to state that these platforms have their own First Amendment rights, which allow them to deny service to anyone. There's certainly no fundamental First Amendment right for people to use any service they want. That's not how free speech works. A second complicating factor is that there are different levels of services and their decisions can have very different impacts. So, for example, if some blog doesn't allow you to comment, that's not a big deal on the free speech front since there are millions of other places you can comment online. But if no one will even provide you any access to the internet, then there are some larger questions there about your right to access the entire network that everyone uses to speak. And there's a spectrum between those two end points. There are only a few ISPs, so if Comcast and Verizon decide you can't be online, you may not be online at all. There are multiple places where you can register domains, but if all the registrars blacklist certain providers, then you can effectively be banned from the open internet entirely. It's harder to say where things like Facebook, Google and even Cloudflare fall along that spectrum. Some might argue that you don't need any of those services -- while others might say that Google and Facebook are so central to everyday life that being forced off of them puts people at a serious disadvantage. Cloudflare is even more complicated, since it's just a middleman CDN/DDoS protection/security provider. But, as the company's CEO admitted in kicked off the Daily Stormer, there are very few other services online that could protect a site like that from the kinds of DDoS attacks that the site regularly gets (the fact that Daily Stormer briefly popped up on Dream Host this week and almost all of Dream Host was hit with massive, debilitating DDoS attacks just emphasizes that point). But this issue is key: not all internet services are the same, and no single rule should apply across all of them. It simply wouldn't make sense. Recognize: this is more complicated than you think As many experts in the field have noted, these things are complicated. And while I know many people have been cheering on each and every service kicking off these users, we should be careful about what that could lead to. Asking platforms to be the arbiters of what speech is good and what speech is bad is frought with serious problems. As Jillian York eloquently put it: I’m not so worried about companies censoring Nazis, but I am worried about the implications it has for everyone else. I’m worried about the unelected bros of Silicon Valley being the judge and jury, and thinking that mere censorship solves the problem. I’m worried that, just like Cloudflare CEO Matthew Prince woke up one morning and decided he’d had enough of the Daily Stormer, some other CEO might wake up and do the same for Black Lives Matter or antifa. I’m worried that we’re not thinking about this problem holistically. Kate Knibbs, over at The Ringer, also has a nuanced article about this, pointing out how relying on internet platforms to "police hate" results in all sorts of potential problems and contradictions. Even if we all agree that Nazi propaganda is bad, there's a big question about whether or not this (censorship by platforms) is the proper response: The world will be a better place if technology companies are able to disrupt the spread of propaganda. But while their post-Charlottesville efforts are an encouraging sign that technology companies are finally treating the prospect of domestic right-wing extremist groups as a serious threat, the way these companies have chosen to address that threat is an unsettling reminder that they are near-unfettered gatekeepers of speech. We are online at the whim and for the profit of a few extremely wealthy multinational corporations with faulty track records for moderating content. As overdue and appreciated as their efforts to root out hate groups from the digital world are, their efforts to preserve an open internet should be undertaken with equal urgency. This, in fact, is the same very public struggle that Cloudflare's CEO, Matthew Prince, has been having over the issue. As he explained in his original statement, he's not really comfortable with the fact that one person -- even himself -- basically has the power to kick someone off the internet entirely. A few days later, in a (possibly paywalled) piece at the Wall Street Journal, he's still second guessing himself. Your black and white quick take on this misses the point: Yes, I know that some of you are angrily getting ready to scream one of two (contradictory) things in the comments: (1) free speech should mean that all these sites should be allowed to remain up or (2) oh, come on: Nazis are obviously bad and there's no slippery slope in denying them internet services. But there are strong responses to both of those extreme viewpoints, which come from opposite ends of the spectrum. Again, free speech also means that platforms have rights to choose what speech they host and what speech they don't host. Don't like it? Start your own platform. Similarly, no one truly believes that all content must be allowed on all platforms at all times. For anyone who claims that's not true, I'll just point to the email filter you use to show you're wrong. We accept filtering decisions in our email because we know that a completely unfiltered experience is so filled with garbage as to make it unusable. The question then becomes one of where do we draw the lines for moderation. As for potential comment (2): yes, Nazis are obviously bad. But here's the problem: there are plenty of people (including some of those who are desperately typing out argument (1) above) who will argue that other groups -- antifa, BLM, the SLPC -- are just as bad. And then... you're just left with a fight on your hands about who's bad. And that doesn't solve anything. Even worse, it puts tremendous subjective power into the hands of those in charge. And, specifically for those who are making this "Nazis are obviously bad, so there's no slippery slope" argument, think about who's in charge right now. Do you really want them defining who's "bad" and who's "good"? On top of that, we're constantly pointing to example after example after example of platforms being really bad at properly determining what's really bad and what's good. Doing so requires time and context -- which are two things that don't come easily on the internet. At the very least, putting the onus on the internet platforms to be required to make these kinds of calls means that you're trusting a very small number of self-appointed people -- with very different incentives -- to be the world's speech police. And that should be concerning. Some argue there's no slippery slope argument in banning Nazis because they're Nazis. But there is a different slippery slope: the appointment of private, for-profit platforms being the speech police and the arbiters of what's good speech and what's bad speech. Yes, as noted, those platforms have every right to determine what they don't want on their own platforms, but as we move along that spectrum discussed above, and the power of a centarlized platform could mean cutting people off entirely, the overall impact of these decisions becomes greater and greater. And rushing headlong into a world where we trust private companies to make speech determinations just because they built a scalable platform seems like the wrong way to go about things. Just because you can build a big platform doesn't mean you're good at determining who should be allowed to speak. Merely censoring doesn't solve the problem This is a key point that hasn't been brought up very much, but as the coiner of "The Streisand Effect," I'm kind of obliged to do so: it's a pretty common gut reaction to really awful content that the best (and sometimes "only") option is to silence it. And there may be some narrow cases where that actually works. But all too often, attempts to silence or censor content only lead to more attention getting paid to that content. And, in the case of Nazis, it actually has a reinforcing impact that isn't widely considered. Many of the ignorant folks who jump on board with these groups (and, yes, they are ignorant) believe that they're being "edgy" and "contrarian" and "outside the norm." And pulling down their websites reinforces this view. It doesn't make them rethink their ignorant hate. It makes them think they're on to something. They interpret it as "the establishment" or "the swamp" or whoever not being able to handle the truth that they're bringing. It certainly doesn't do much to educate the ignorant of why their beliefs are ignorant. This is why we often talk about the importance of counterspeech, which can be surprisingly effective, even in dealing with Nazis. But counterspeech isn't always the answer and isn't always effective. There is no counterspeech to deal with spam, for example. But that's why we've developed a system of tools and filters to deal with spam, but don't legally mandate that, say, domain registrars stomp out spammers. This is why it's complicated: Up top, I noted that the whole thing is more complicated than many people are willing to recognize. And it's because of the competing factors I discussed above. Some level of moderation is fundamental, necessary and right. Your email spam filter reveals that you know this is true. And platforms do have every right (including the First Amendment) to refuse service to assholes. But, at the same time, we should be concerned about a few centralized powers, or even individuals, being in a position to make these decisions on an ad hoc basis. This may not apply to smaller platforms, but the big guys that are often seen as "necessary" for participating in public life, certainly raise some questions. So, how the hell do you weigh these seemingly competing factors? Some moderation is necessary, but expecting platforms to police opens up a whole host of problems from arbitrariness to the powerful silencing the less powerful and more. Towards a (still complicated) solution: Not surprisingly, EFF's take on the whole situation brings us closer to a framework for thinking about this issue. In fact, while they don't state this directly, in much of the world, we do have at least some history with a system that has faced similar complications and has a process. That system is the existing judicial system, and that process is due process. It is, of course, far from perfect. But there may be lessons we can learn from it. EFF suggests pulling in some of its features including transparency and a right of appeal. Other elements of the Net risk less when they are selective about who they host. But even for hosts, there’s always a risk that others—including governments—will use the opaqueness of the takedown process to silence legitimate voices. For any content hosts that do reject content as part of the enforcement of their terms of service, or are pressured by states to secretly censor, we have long recommended that they implement procedural protections to mitigate mistakes—specifically, the Manila Principles on Intermediary Liability. The principles state, in part: Before any content is restricted on the basis of an order or a request, the intermediary and the user content provider must be provided an effective right to be heard except in exceptional circumstances, in which case a post facto review of the order and its implementation must take place as soon as practicable. Intermediaries should provide user content providers with mechanisms to review decisions to restrict content in violation of the intermediary’s content restriction policies. Intermediaries should publish their content restriction policies online, in clear language and accessible formats, and keep them updated as they evolve, and notify users of changes when applicable. In other words, for these core, centralized chokepoints, there needs to be transparency and due process. Of course, there are dangers in that as well. Last year, in hosting a panel on just this subject at Rightscon, we discussed the idea of internal corporate "due process" for moderating content. Medium's Alex Feerst discussed how they argue these issues out, as if they're in court, with someone representing each side. But when I asked about whether or not the "internal case law" would ever be made public, the answer was likely no. And you can also understand why. Because there are certainly some individuals and people who specifically are seeking to game the system (think: spammers and trolls). Revealing the exact policies upfront gives them extra ammo on how to game the system, violating the spirit of those rules, while not the letter. In other words, some would argue (compellingly) that some aspects of transparency here could make the problems even worse. So while I'm certainly all for more due process, and some associated transparency, I worry that the requirements of transparency are not entirely realistic either -- especially in areas with rapidly changing activities and norms. Can we rethink the internet? To me, this keeps reminding me of an article I wrote two years ago, about why we should be looking at protocols, not platforms. The early days of the internet were built on protocols -- and the power was in the end-to-end nature of things. But with those protocols, people could build their own implementations and software to work with those protocols. The power was thus at the ends. Individuals could choose how they interact with the protocols and they could implement their own solutions without being completely cut off. You could filter out the content you didn't want. But the choice was yours. Over the last decade, especially, we've moved far away from that ideal (in part because there appears to be more money in locked-in, centralized platforms, rather than more distributed protocols). But, opening things up offers some opportunity to allow good things to happen. Let the ignorant Nazis gather -- they're going to figure out a way to do so anyway. But have widely available (and recommended) filters to allow most decent people to ignore them. Or, let others focus on using counterspeech against them. Let various attempts at responding to and diffusing the power of ignorant propaganda bloom, rather than assuming that the best response is to just make it all disappear entirely. This, of course, does not solve everything. But it certainly seems like a better solution than hoping a few giant companies magically figure out how to become benevolent dictators over what content is allowed online. In the end, there isn't an "easy" solution to any of this, and anyone pitching one is almost certainly selling snake oil. Expecting to solve "hate" by allowing a small number of internet platforms to censor "bad" people is a fool's errand. First, it's likely to be ineffective, and second, it will inevitably lead to bad results, with content you don't think should be blocked getting blocked. Platforms may have the right to police and moderate their own content, but demanding that they do so in all cases is going to lead to bad results. In the end, some of it needs to come down to a recognition of the different levels of service along the spectrum. Further down the line, with smaller services on the network, any moderation should be seen as a choice those platforms make. But as you move up the chain, at some point we need to be a lot more careful about the power of certain players to completely cut people off from the internet. This is the problem of an internet that has become too centralized in some areas. And, to me, it still feels the better solution isn't putting more power in the hands of massive centralized "infrastructure" providers, but pushing the power out to the ends, in the spirit of the original, open end-to-end internet. Give the ends of the network the power. Let them share tools and filters among each other, but let's not rush to demand that a few key centralized players be the final arbiters of speech online. Permalink | Comments | Email This Story

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