posted 18 days ago on techdirt
For the last few months, we've been discussing a few different legal disputes over the nature of drivers for services like Lyft and Uber, and whether or not they should be classified as "employees" or "contractors" (or W-2's or 1099s -- based on what kind of tax forms they get). Florida's Department of Economic Opportunity has said such drivers are employees and a judge in California appears to be leaning that way as well. However, leapfrogging that process, California's Labor Commission has now declared an Uber driver an employee, rather than a contractor. You can read the full ruling to see the reasoning. The actual dispute isn't all that interesting -- involving whether or not Uber should be paying a woman directly or a corporate entity she set up. But the key part is the analysis of "employee" v. "contractor." And under the Labor Commission's analysis, it very, very, very broadly defines these relationships. Basically, it lists out the usual factors about how much control the parties have over the job, who supplies the tools, the kind of occupation, the degree of permanence and all that... and then just says "yup, employee." Here's are the key parts, plus some analysis... Defendants argued that they exercised very little control over Plaintiff's activities. However, the Borello court found that it was not necessary that a principal exercise complete control over a worker's activities in order for that worker to be an employee. "The minimal degree of control that the employer exercised over the details of the world was not considered dispositive because the work did not require a high degree of skill and it was an integral part of the employer's business. The employer was thus determined to be exercising all necessary control over the operation as a whole." (Borello, supra, 48 Cal.3d at pp. 355-360.) That seems backwards. Basically the commission is saying "sure you own your own car, but that's not enough." But it's comparing it to a case involving an actual taxi company where the drivers owned their own cars -- but that still involved much more control by the taxi company over the drivers and what they did as compared to Uber, where you just have an app and can turn it on and off at will. By obtaining the clients in need of the service and providing the workers to conduct it, Defendants retained all necessary control over the operation as a whole. The party seeking to avoid liability has the burden of proving that persons whose services he has retained are independent contractors rather than employees. In other words, there is a presumption of employment. (Labor Code 3357; Borello, supra, at pp. 349, 354.) But under that theory anyone selling goods on eBay or Etsy should be considered employees as well. And that's crazy. It shouldn't be a presumption of employment just because someone is using your platform. Ownership of the vehicle used to perform the work may be a much less important factor in industries other than transportation. Even under the traditional, pre-Borello common law standard, a person making pizza deliveries was held to be an employee of: the pizzeria, notwithstanding the fact that the delivery person was required to provide his own car and pay for gasoline and insurance. (Toyota Motor Sales 0. Superior Court (1990) 220 Cal.App.3d 864, 876.) Again, this isn't saying anything other than "well, we don't really care who owns the car" even though the rules state that who provides the equipment is a key part of determining the status of the relationship. "The modern tendency is to find employment when the work being done is an integral part of the regular business of the employer, and when the worker, relative to the employer, does not furnish an independent business or professional service." (Borello, supra, at p. 357.) Plaintiff's work was integral to Defendants' business. Defendants are in business to provide transportation services to passengers. Plaintiff did the actual transporting of those passengers. Without drivers such as Plaintiff, Defendants' business would not exist. Again, that kind of analysis would wipe out eBay and Etsy. Just because someone is using your platform, it doesn't make them an employee. And Uber is not in the business of providing transportation. It provides a service to connect drivers to riders. That's a key distinction -- one the Labor Commission basically dismisses: Defendants hold themselves out as nothing more than a neutral technological platform, designed simply to enable drivers and passengers to transact the business oft transportation. The reality, however, is that Defendants are involved in every aspect of the operation. Defendants vet prospective drivers, who must provide to Defendants their personal banking and residence information, as well as their Social Security Number. Drivers cannot use Defendants' application unless they pass Defendants' background and DMV checks. This seems ridiculous. By this argument, Uber would be better off if it did not vet the backgrounds of its drivers? How does that make sense? Furthermore, if you were hiring a contractor for something like, say, fixing your roof, wouldn't you "vet" their background, check their contractor's license and the like? How does that make them any more of an employee? Defendants control the tools the drivers use; for example, drivers must register their cars with Defendants, and none of their cars can be more than ten years old Defendants refer to "industry standards" with respect to drivers' cars, however, it is unclear to what industry, other than the "taxi" industry, Defendants are referring. Defendants monitor the Transportation Drivers' approval ratings and terminate their access to the application if the rating falls below a specific level (4.6 stars). That's an odd definition of "control." Yes, they have standards, but that's not "control." Again, going with the roofer example, I might want to make sure that the roofer is using modern tools that will guarantee a better job, and I might make sure that they're up on the various building "industry standards" to make sure they'll do a good job. And I might fire them if they're doing a crappy job on the roof. Still doesn't make them an "employee." While Defendants permit their drivers to hire people, no one other than Defendants' approved and registered drivers are allowed to use Defendants' intellectual property. Drivers do not pay Defendants to use their intellectual property. Again, so what? No one other than approved contractors are allowed up on my roof and they don't pay a fee to access my roof. The passengers pay Defendants a set price for the trip, and Defendants, in turn, pay their drivers a non-negotiable service fee. If a passenger cancels a trip request after the driver has accepted it, and the driver has appeared at the pick-up location, the driver is not guaranteed a cancellation fee. Defendants alone have the discretion to negotiate this fed with the passenger. Defendants discourage drivers from accepting tips because it would be counterproductive to Defendants' advertising and marketing strategy. To be honest, this is the only point in the entire argument that even has some resonance, in that Uber does control the pricing. But that, alone, hardly seems to be enough to determine an employer relationship. Would that mean that a service like Fiverr -- where creative people agree to do things for $5 -- creates employees just because it sets the price. There are all different ways to create a marketplace and setting the price shouldn't determine the nature of the relationship. Plaintiff's car and her labor were her only assets. Of course, that's kind of everything involved here. And if she's providing all of those assets, it seems like a pretty strong argument for contractor, rather than employee. Plaintiff's work did not entail and "managerial" skills that could affect profit or loss. Aside from her car, Plaintiff had no investment in the business. Defendants provided the iPhone application, which was essential to the work. But for Defendants' intellectual property, Plaintiff would not have been able to perform the work. It's that "but for" line that's really ridiculous. Sure, the Plaintiff absolutely can drive people around without Uber. Or she could have signed up for any one of a number of similar platforms like Lyft or Sidecar. Or she could do deliveries for Postmates, Shyp, Instacart, Doordash or more. In light of the above, Plaintiff was Defendants' employee. Therefore, the Labor Commissioner has jurisdiction to adjudicate the instant matter. In light of the above, I'm not sure that there can be platforms on the internet that help people make money without them being declared employees. Sell music on iTunes? You might be an Apple employee. Sell toys on eBay? You might be an eBay employee. And yes, I recognize that some people will argue that Uber drivers may not be the best job in the world and they're very much at the whims of Uber (ignoring all the other companies in the space they can go work for instead...). But this kind of decision really, really hurts everyone, including Uber drivers. It will mean vastly fewer opportunities for those drivers, and much greater controls over those drivers. It will lead to much less flexibility, fewer freedoms and a much more limited role for those drivers. There is a reasonable argument to be had that perhaps we need a new form of classification that is somewhere between the traditional 1099 or W-2 worker, but it's hard to see how the Labor Commission came to this conclusion without throwing out many, many, many contractor positions and suggesting that they might all be employees. That's very dangerous for a part of the economy that is currently thriving and rapidly growing. This move to "protect" workers has a high likelihood of doing the exact opposite, creating many fewer work opportunities for everyone, and making a service that many people like to use a lot worse. And, again, I know that some people don't like Uber because of some of its business practices, but whether or not you "like" Uber should be separate from this particular question. The people celebrating this decision don't seem to recognize how much damage it actually does to their own position. Either way, Uber has already appealed the decision and it will be quite some time before any final ruling is issued.Permalink | Comments | Email This Story

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Given all the fuss over the ridiculous article this past weekend -- which has since been confirmed as government stenography rather than actual reporting -- security maven Bruce Schneier has written up an article making a key point. It's quite likely that the underlying point in the article -- that Russian and Chinese intelligence agencies have access to the documents that Snowden originally handed over to reporters -- is absolutely true. But, much more importantly, he argues, the reason likely has almost nothing to do with Snowden. First, he notes, it's quite likely that Snowden -- as he has said -- no longer has access to the documents. But other people do. And they're not as knowledgeable about encryption and spycraft as Snowden is. First, the journalists working with the documents. I’ve handled some of the Snowden documents myself, and even though I’m a paranoid cryptographer, I know how difficult it is to maintain perfect security. It’s been open season on the computers of the journalists Snowden shared documents with since this story broke in July 2013. And while they have been taking extraordinary pains to secure those computers, it’s almost certainly not enough to keep out the world’s intelligence services. There is a lot of evidence for this belief. We know from other top-secret NSA documents that as far back as 2008, the agency’s Tailored Access Operations group has extraordinary capabilities to hack into and “exfiltrate” data from specific computers, even if those computers are highly secured and not connected to the Internet. These NSA capabilities are not unique, and it’s reasonable to assume both that other countries had similar capabilities in 2008 and that everyone has improved their attack techniques in the seven years since then. But, the second point is an even bigger one, which is that it's highly likely that Russian and Chinese intelligence got these documents long before Snowden gave them to the press, because that's what spies do. Which brings me to the second potential source of these documents to foreign intelligence agencies: the US and UK governments themselves. I believe that both China and Russia had access to all the files that Snowden took well before Snowden took them because they’ve penetrated the NSA networks where those files reside. After all, the NSA has been a prime target for decades. Those government hacking examples above were against unclassified networks, but the nation-state techniques we’re seeing work against classified and unconnected networks as well. In general, it’s far easier to attack a network than it is to defend the same network. This isn’t a statement about willpower or budget; it’s how computer and network security work today. A former NSA deputy director recently said that if we were to score cyber the way we score soccer, the tally would be 462–456 twenty minutes into the game. In other words, it’s all offense and no defense. In this kind of environment, we simply have to assume that even our classified networks have been penetrated. Remember that Snowden was able to wander through the NSA’s networks with impunity, and that the agency had so few controls in place that the only way they can guess what has been taken is to extrapolate based on what has been published. Does anyone believe that Snowden was the first to take advantage of that lax security? I don’t. Remember, this is the same government that's now reeling from the Chinese hacking of OPM getting all the secrets of government employees, including those with security clearances. It was a hack so impressive that even Michael Hayden -- former CIA and NSA boss -- can't hide his appreciation of the work that was done. Hayden called it "honorable espionage work" by the Chinese and further notes that he "would not have thought twice" if he had the ability to get the same info from the Chinese. These are the games that intelligence agencies play all the time. Schneier's piece has a lot more in it, but the idea that the Russians and Chinese learned anything particularly new or useful from the Snowden documents -- or that they even got them from Snowden's document dump -- seems quite dubious.Permalink | Comments | Email This Story

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If you are looking to take your programming skills to the next level, check out the 90% off deal on the Learn Node.js course. This practical course got its start on Kickstarter this year and features 18+ hours of training through instructive videos and building 10 real-life applications. You’ll learn just about all you need to know about this open source, cross-platform runtime environment for server-side and networking applications. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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Eva Knox runs a site dedicated to the discussion of knockoff designer goods. This is probably not the best launching pad for infringement accusations, but whatever. Knox is a very prolific issuer of DMCA takedown notices. She issued 276 notices over a two-week period in May, targeting (used only in the vaguest sense) over 8,500 URLs. Her fourth notice was a monster: 486 URLs targeted. How many did Google delist? ZERO. Knox went after everybody, claiming somewhat incomprehensibly that some sort of infringement was happening, possibly due to "hacking." The article that was published on my blog together with the layout and design features of my blog have been copied and published elsewhere to manipulate Search Engine results and to redirect traffic to another website. A snippet of the article I wrote and published on my blog and that was copied and published on a hacked website can be found below: "Do You Only Love It Because You Can’t Afford It? There’s a reason that I wholeheartedly say ‘I love replica handbags’, and it’s not just the price point. Replica is created because someone wants to buy it, not because some designer skipped his morning coffee and went a little haywire with his designs! Now don’t get offended we have all seen the ugly Frankenstein creations that some of our favourite designers have turned out. My haute couture senses are tingling. This clutch is a little on the ‘arty’ side, so perhaps I can give designer Kathleen Dustin a break and … oh, pardon? What was that you said? You’ve made a clutch shaped like an artichoke and you’d like me to pay exorbitant amounts of money for the privilege of storing my car keys and in a vegetable? Right" Please note that some webpages appearing in Google’s search results, and presently notified, have been hacked in order to redirect to other websites. Who did she claim was copying and publishing her work, either intentionally or through "hacked webpages?" Well, Techdirt was named twice, for two posts having nothing to do with knockoff handbags or anything listed in her takedown notice. That's how I came across the DMCA notice. But it's not just Techdirt being accused of infringement. It's a veritable cross-section of the internet. Personal blogs, dodgier fashion sites and a variety of established internet entities were listed in her takedown notice. Here's a short list of some of the more notable inclusions: Archive.org (targeting five books archived in .txt format) Mother Jones CNN.com Reddit Barnes & Noble Metafilter New York Times TSA.gov BBC Copblock IMDb NPR.org TIME Washington Post Y Combinator Now, not only does the DMCA takedown target sites that don't contain anything approaching the disputed content (not even in the form of "CHEAP DESIGNER REPLICA BAG" spam comments), but in some cases asks for the takedown of entire sites, rather than individual posts. Of the 14 URLs listed at Wordpress.com, five ask for the takedown of entire blogs. Another site is targeted for the delisting of search results for eleven different individual letters. (ex: "http://sitesrv.tank.jp/css/us/brands/Babyliss/?Search=Y") Nothing about the takedown notices makes sense, much less Knox's decision to keep issuing them after going 0-486 on her fourth request. She doesn't seem to be deterred in the slightest, despite a success rate of only about 20%. I'm not sure how Knox's internet works, but here in the unhacked world, nearly everything she has asked to be delisted doesn't infringe on her blog posts. But that's only the tip of the WTF iceberg. Eva Knox has also targeted her own website for delisting 55 times, with one takedown notice asking for the removal of 23 of her own posts. On top of that, this same takedown request asks for the removal of two of her previous takedown requests (as spotbags.cn) at Chilling Effects. This is something she has done repeatedly -- although it's tough to tell whether this is an attempt to bury her notices or just another fundamental misunderstanding of her search results. WAIT. THERE'S MORE. Knox is also apparently issuing takedown requests under the name "Aida Brown," targeting 1,900 URLs with 58 notices. If this isn't her real name (and information on her website leads me to believe it isn't), then this is plain old perjury. I've reached out to Knox for some clarification as to how she comes to the conclusion that all these sites are ripping off her content. I'm not really expecting an answer. Someone is seeing something very strange on their end of the internet but I have a feeling this "proprietary view" won't be shared with the rest of us. Strangely, her blog posts are competently written and she's very responsive in her comment section, so this doesn't seem to be "crazy person has keyboard" sort of thing. But there's no logical connection between the requests and the posts targeted, other than discussions of replica designer goods, at best. Many of those targeted in the 0-486 takedown notice aren't even remotely connected to the blog post in question. I'll update if more information comes my way. In the meantime, everyone's welcome to play Internet Detective and compile their own theories. Permalink | Comments | Email This Story

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Stewart Baker, former NSA General Counsel and unofficial apologist for the DHS, CIA and NSA, is still trying to pin the blame for everything on everyone that isn't a member of these fine American agencies. Privacy activists are to blame for TSA groping. Civil libertarians are to blame for the 9/11 attacks. FISA minimization procedures are also to blame for the 9/11 attacks. Encryption is to blame for the Blackberry's disappearance from the cellphone market. And so on. Now, in an interview with Wired where he supposedly dispels "cyber-security myths," it's journalists who are to blame for people's distrust of government surveillance. But, you know, not in the flattering sort of way where uncomfortable truths are told and transparency is forced on reluctant, shadowy agencies. No, it's in the bad way where journalists didn't present a "fair" picture of domestic surveillance. He leads off by saying there's no possible way to hold a "conversation" about surveillance programs because to do so compromises security. We're supposed to just trust the government on this, apparently. This assertion is challenged by Wired's Caleb Garling, who asks Baker whether Snowden's leaks have served any positive purpose. Baker says there's nothing to be gained because it's journalists -- not the Executive Branch and the intelligence community -- that have been secretive and dishonest. It was a scam from the start. Greenwald, Poitras, Snowden, and Bart Gellman did exactly what people like them have been accusing the intelligence community of doing for 40 years. They used the classification to tell a partial story in the hopes of shaping the debate, and they succeeded. They released that order saying the government is scarfing up metadata about all your calls and they withheld, for roughly two weeks,* the [documentation] which they all had which showed all the limitations on that access. Why? Because they didn’t want a debate on the limitations—they wanted to leave the impression that everybody’s phone calls are looked at by NSA and they have succeeded in leaving that impression because of their manipulation of the classified information. That’s a shame. *OMG ALMOST TWO WHOLE WEEKS Left unmentioned by Baker is the fact that the government could have stepped in at any time and countered this mis-impression. But it never did. It still doesn't, at least not to any significant extent. When documents are served up by news agencies with access to them, they're routinely greeted with denials, refusals to comment or cliches about "lawful authority" and "oversight." Only very belatedly has the government experimented with transparency, and even in this, there's routinely more redaction than insight. While it's true that the debate over security vs. privacy will always be somewhat hampered by security concerns, the US government spent years hiding its expanding surveillance programs from everybody, including oversight committees and the FISA Court. It made no effort over the next decade-plus to welcome the public to the debate -- mostly because it had already held this debate in the public's absence shortly after the 9/11 attacks. Now, government apologists like Baker want to blame the press for "skewing" the perception of these agencies and their tactics. But what other view could possibly have been presented? The government -- until June of 2013 -- held (almost) all the cards. Snowden gave journalists a deck of these own and Baker wants to criticize how the press played its limited hand. Someone who spent years keeping information out of the public's hands (and applauds further efforts to do the same) is in no position to criticize the transparency efforts of others, no matter how subjectively much it looks like activists pitching skewed narratives. Permalink | Comments | Email This Story

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Comcast is currently trying to negotiate a new franchise agreement in its hometown of Philadelphia, but is running into the kind of fierce consumer disgust for the company that ultimately helped derail its failed acquisition of Time Warner Cable. Back in April, the city was criticized for refusing to publicize a city survey on Comcast that took two years to conduct, but only Comcast executives were allowed to see. When the 571-page report (pdf) was finally released, the results weren't surprising: Philadelphia locals by and large loathe Comcast and its documentably atrocious customer service. Of the roughly 1,700 people who submitted online comments for the city’s survey, around 99% of those were negative. Comcast, as you might expect, denied that the survey's findings were accurate, and promised the Philadelphia city council that it would provide evidence proving as much. Fast forward a few months, and Comcast is now facing allegations that it's engaging in misleading polling in the Philadelphia region. Apparently, Comcast hopes to use garbage polling to "disprove" the obvious reality that Comcast just isn't very good at what they do. ISP lobbyists have leaned heavily on inaccurate polls for years. Especially push polls -- often using them to scare locals away from municipal broadband ahead of local votes, sometimes by implying that tax dollars will be used to fund pornography, or that the government would come in and try to ration their TV viewing. The effort was first spotted by Eric Rosso, Political Director for Pennsylvania Working Families:Just got a ridiculous push poll call from @comcast trying to garner results that favored them as a corporate citizen. Time to @CAP_Comcast. — Eric Rosso (@ericopinion) June 7, 2015 Rosso notes that the questions were phrased in such a way as to generate positive responses to controversial programs like Comcast's Internet Essentials, a low-income broadband program we've noted as being intentionally restrictive and a bit of a PR show pony. Rosso says questions focused on Comcast's employment and tax record were also phrased in such a way as to generate limited or positive responses. Other locals well-versed in the practice of polling science agree that Comcast is up to no good:"Chris Rabb, author of Invisible Capital: How Unseen Forces Shape Entrepreneurial Opportunity and a professor at Temple University’s Fox School of Business, also took part in the phone survey. He tells Consumerist it was one of the most egregious examples of non-electoral push polling he’s seen in decades. This was particularly true, says Rabb, when the survey transitioned to questions about demands Philadelphia could make of Comcast in the company’s renewed franchise agreement, and how these could increase costs for the company."Comcast has confirmed that it has hired a "reputable third party, independent company" to conduct polls in the city, but has, rather unsurprisingly, been unable to provide an exact copy of the precise language used in the poll questions. Of course, in a few weeks the findings will be trotted out by city leaders as a shining example of Comcast's sterling reputation, and Philadelphia city leaders will likely grant Comcast a very cozy new franchise agreement that helps cement the cable giant's monopoly power in the city for another decade.Permalink | Comments | Email This Story

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Earlier this month Google announced that the company's self-driving cars have had just thirteen accidents since it began testing the technology back in 2009, none the fault of Google. The company has also started releasing monthly reports, which note Google's currently testing 23 Lexus RX450h SUVs on public streets, predominately around the company's hometown of Mountain View, California. According to the company, these vehicles have logged about 1,011,338 "autonomous" (the software is doing the driving) miles since 2009, averaging about 10,000 autonomous miles per week on public streets. With this announcement about the details of these accidents Google sent a statement to the news media informing them that while Google self-driving cars do get into accidents, the majority of them appear to involve the cars getting rear ended at stoplights, at no fault of their own:"We just got rear-ended again yesterday while stopped at a stoplight in Mountain View. That's two incidents just in the last week where a driver rear-ended us while we were completely stopped at a light! So that brings the tally to 13 minor fender-benders in more than 1.8 million miles of autonomous and manual driving—and still, not once was the self-driving car the cause of the accident."If you're into this kind of stuff, the reports (pdf) make for some interesting reading, as Google tinkers with and tweaks the software to ensure the vehicles operate as safely as possible. That includes identifying unique situations at the perimeter of traditional traffic rules, like stopping or moving for ambulances despite a green light, or calculating the possible trajectory of two cyclists blotto on Pabst Blue Ribbon and crystal meth. So far, the cars have traveled 1.8 million miles (a combination of manual and automated driving) and have yet to see a truly ugly scenario. Which is all immeasurably cool. But as Google, Tesla, Volvo and other companies tweak their automated driving software and the application expands, some much harder questions begin to emerge. Like, oh, should your automated car be programmed to kill you if it means saving the lives of a dozen other drivers or pedestrians? That's the quandary researchers at the University of Alabama at Birmingham have been pondering for some time, and it's becoming notably less theoretical as automated car technology quickly advances. The UAB bioethics team treads the ground between futurism and philosophy, and note that this particular question is rooted in a theoretical scenario known as the Trolley Problem:"Imagine you are in charge of the switch on a trolley track. The express is due any minute; but as you glance down the line you see a school bus, filled with children, stalled at the level crossing. No problem; that's why you have this switch. But on the alternate track there's more trouble: Your child, who has come to work with you, has fallen down on the rails and can't get up. That switch can save your child or a bus-full of others, but not both. What do you do?"What would a computer do? What should a Google, Tesla or Volvo automated car be programmed to do when a crash is unavoidable and it needs to calculate all possible trajectories and the safest end scenario? As it stands, Americans take around 250 billion vehicle trips killing roughly 30,000 people in traffic accidents annually, something we generally view as an acceptable-but-horrible cost for the convenience. Companies like Google argue that automated cars would dramatically reduce fatality totals, but with a few notable caveats and an obvious loss of control. When it comes to literally designing and managing the automated car's impact on death totals, UAB researchers argue the choice comes down to utilitarianism (the car automatically calculates and follows through with the option involving the fewest fatalities, potentially at the cost of the driver) and deontology (the car's calculations are in some way tethered to ethics):"Utilitarianism tells us that we should always do what will produce the greatest happiness for the greatest number of people," he explained. In other words, if it comes down to a choice between sending you into a concrete wall or swerving into the path of an oncoming bus, your car should be programmed to do the former. Deontology, on the other hand, argues that "some values are simply categorically always true," Barghi continued. "For example, murder is always wrong, and we should never do it." Going back to the trolley problem, "even if shifting the trolley will save five lives, we shouldn't do it because we would be actively killing one," Barghi said. And, despite the odds, a self-driving car shouldn't be programmed to choose to sacrifice its driver to keep others out of harm's way."Of course without some notable advancement in AI, the researchers note it's likely impossible to program a computer that can calculate every possible scenario and the myriad of ethical obligations we'd ideally like to apply to them. As such, it seems automated cars will either follow the utilitarian path, or perhaps make no choice at all (just shutting down when encountered with a no win scenario to avoid additional liability). Google and friends haven't (at least publicly) truly had this debate yet, but it's one that's coming down the road much more quickly than we think.Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
On Wednesday, the European Parliament Legal Affairs Committee (JURI) adopted a copyright reform proposal based on the report that Pirate Party MEP Julia Reda released earlier this year. There were tons of amendments and some of the important ideas in the original report were taken out or watered down -- something that Reda readily admits. Former Pirate Party MEP Amelia Andersdotter, who had complained about Reda's report from the start, is vocally upset about the outcome, arguing that accomplishing a plan with only moderate ambitions is not what the Pirate Party should be supporting. That said, there are some real reforms in there, including dropping the proposal for ancillary copyrights, better known as a "snippet tax" or "Google News tax" that many are pushing for. Missing from the final result, however, was support for "freedom of panorama" -- an important concept allowing people to photograph things in public (like the Eiffel Tower). Also troubling was the inclusion of an amendment that says copyright holders need to give express permission for works to be performed in public spaces, which could create a huge mess. In short, it's copyright reform, but like most copyright reform lately, there's a jumble of concepts mixed in -- some good, some bad. When the US Congress finally gets around to releasing its plan for comprehensive copyright reform, it's likely to be something similar. A mixed bag of decent ideas and bad ideas, each designed to trade off on each other, to try to keep "both sides" happy -- or, more realistically, to placate both sides from being too angry about the stuff they consider bad. But that's no way to create real reform. I understand how both Reda and Andersdotter feel on this issue and sympathize with both positions. Getting anything through on copyright reform is nearly impossible, so even marginally good changes can, quite reasonably, be seen as a big step -- especially after years of most reforms leaning much more heavily on bad ideas, with almost no good ones. Having a proposal move forward that at least has some good ideas in it is... progress. But, it's also messy and marginal progress that comes along with some bad ideas as well. It becomes more about the politics of getting something than getting the best result. And that's where this whole process is a bit depressing -- as is politics all too often. You focus on getting something done and it involves a lot of horse trading and marginal improvements rather than big fixes. It's also why it's so frustrating to see so many people continue to argue that copyright is about "two" competing interests -- copyright holders and the public. That's not the case. An ideal copyright system should be maximizing benefit to both. We should be looking at real policy changes that creates greater overall benefit, but no one seems willing to even entertain that possibility. And, for that reason, I share Andersdotter's dismay -- but not with Reda, rather with a process that is, itself, quite broken. Reda got something through that, frankly, would have been close to impossible a very short period of time ago. The fact that it's pretty limited speaks a lot more to the overall political system today than it does to Reda herself. But these small victories are important for the time being, so long as the overall focus is on creating real reforms in the long run.Permalink | Comments | Email This Story

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Another week, another John Oliver report that covers topics we talk about on Techdirt. This time, it's the CIA torture report, put together by the Senate Intelligence Committee. The 6,000+ page document is still classified, but the 500+ page executive summary (still with lots of redactions) was released last December as you may recall. There were plenty of interesting revelations in it -- and we're sure the full report has many more. The "true believers" in torture took the fingers-in-ears-"we're-not-listening" approach to dealing with it. The DOJ announced that it had not opened the report. Apparently, the former CIA boss Porter Goss claimed he hadn't read the executive summary either -- even though he mocked John McCain for not having read it either. Either way, John Oliver decided to do something about this, and asked famed actor Helen Mirren to create an audio book version of the work (which, you know, he can do because it's in the public domain), clips of which were played on the show. The segment highlights that torture doesn't work and that people ridiculously think it does because it works in TV shows even if basically every actual study shows it doesn't. And then it makes the more important point: even if it did work (which it doesn't), it shouldn't matter because it's the wrong thing to do. I've been searching around trying to find a link to the full audiobook, which Oliver insists was recorded, but so far can't find anything other than the snippets in the show itself. Hopefully it really does exist. Either way, kudos to Oliver for taking topics that we tend to talk about in our small corner of the world here and exposing them to a much wider audience -- and including Helen Mirren in the process.Permalink | Comments | Email This Story

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If you're looking forward to watching The Martian movie, you probably enjoy watching rockets blast off into space and seeing big explosions. However, really long distance space travel could be much less entertaining without rockets unless you like looking at the glow of a ion thruster. Spacecraft using the momentum of light won't even glow, but they could be part of more and more space ships. Check out a few of these projects. A yet-unexplained phenomenon creates propulsion when a laser hits a sheet of graphene sponge in a vacuum. A complete understanding of the momentum of light isn't too far off, and if this kind of propulsion can be harnessed, it could make some satellites much more useful. [url] Microwave propulsion technologies have been tested a bit. Microwaves might also be used for energy transmission to various kinds of vehicles, but it could be a while before anyone is powering drones or satellites with microwave signals. [url] The Planetary Society has successfully deployed its first LightSail cubesat to test its solar sail technology before it launches another LightSail cubesat next year. This test ran into a few glitches along with way, so hopefully, they'll work out all the bugs before the next mission. [url] Ikaros (Interplanetary Kite-craft Accelerated by Radiation Of the Sun) is a Japanese spacecraft that successfully used a solar sail in 2010. More solar sail spacecraft could get into space, as long as the demonstrations of the tech continue to work (and aren't cancelled). [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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I've always suspected that most famous people have outside groups managing their social media engagements for them. That is why I almost never follow celebrities on social media sites. What's the point? At the same time, with the importance of self-branding in the media today, I understand why these outside groups are used. What I don't understand, however, is why a famous person might entrust his or her social media brand to a group that might just end up making a client look foolish. Take, for example, Shaquille O'Neal. The former NBA star and current NBA commentator has quite a presence on the web, which is what made it so strange when his personal website and Facebook page suddenly began announcing that Shaq was one of those 9/11 truther types. There was more like that. On the one hand, everyone, including Shaq, is allowed to think that 9/11 was the work of government conspiracy pulled off by the evil overlords that have been running this country for their own personal benefits. On the other hand, 9/11 truthers are sadly hilarious as a general rule, but picturing the low-voiced, enormous Shaq wagging his finger about holographic 747s and shouting about the melting temperature of steel would be the kind of funny I'd pay real money to see. Turns out that hilarious scenario will never be, however, as Shaq released a statement saying some yahoos at his social media management company were the ones responsible. Digital Mavericks, the outside firm that Shaq has since fired, also released a statement. Statement from Shaquille O’Neal: This post was insulting and offensive, and I apologize to everyone who came across it. Once I learned that it was on my Facebook page and blog, I ordered it removed and fired the firm that posted it. I am not and never have been a “9/11 truther.’’ My father served our country and I am immensely proud of the sacrifices people make daily to keep us safe. The events of 9/11 were a horrible tragedy for our nation and it’s a disgrace that anyone would think otherwise. Statement from Matt Argall, CEO of Digital Mavericks: Our firm helped manage content for Shaquille O’Neal’s Facebook page and blog. Yesterday, one of our employees posted a link on Mr. O’Neal’s social media that related to the tragic events of 9/11. Mr. O’Neal had no knowledge of the posting. Further, it does not represent the views of Mr. O’Neal, our clients or our organization. We sincerely apologize. We have removed the link from Mr. O’Neal’s social media and no longer manage social media content for him. We are very sensitive to the tragedy of 9/11 and apologize greatly for this post. In the meantime, nobody reading anything on Shaq's site or social media sites will have any reason to believe that the posts are actually coming from him. Which is what makes celebrities on social media so lame. The truth is that it would have been far more fun if Shaq was a 9/11 truther. Fun and sad, yes, but still fun. Oh well, hopefully the next company he contracts with has some nonsense to say about vaccines or something. Permalink | Comments | Email This Story

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Last week, the House rejected the President's desired "fast track" authority for trade bills that would have smoothed the way to signing onto trade agreements like the TPP, TTIP and TISA. Technically, "fast track" was voted for, but a related issue around Trade Adjustment Authority (TAA) was rejected (overwhelmingly: 302 to 126). Because the Senate had linked those two, the House needed to as well. Following this, House leadership invoked a procedural move that basically set up a revote for today. Given the massive margin by which TAA failed, I wondered aloud how they would flip so many votes. However, in the back of my head, I worried that the approval of the actual fast track bill meant that the TAA rejection was something of a theatrical production, allowing people to "vote against" it and then let it pass a week later. Turns out my original thought was the correct one. There is no deal in place, and the House knows it, so it's not even going to try the vote. There was a procedural move to basically delay things through the end of July, so that it could come back, but it does seem clear that the President had no plan B, and really thought that House Demcorats -- who have been squawking for months over this -- would eventually come around to back his position. Meanwhile, on the Republican side, while they're publicly blaming the Democrats for this, they're punishing dissenters in the ranks who threatened some of the procedural shenanigans. And, at the same time, it appears that they're trying to craft a new plan that would separate fast track from the TAA and still move forward with fast track by itself, but that creates a whole host of other problems -- the biggest one being that those who voted against TAA in order to block fast track obviously know what's going on -- and this new move would likely be met with enough resistance to stop it as well. Everyone agrees that fast track authority for the TPP (and those other trade agreements) is not necessarily dead, but it is on significant life support.Permalink | Comments | Email This Story

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If you're a baseball fan, as all good Americans are, and you have never lived in St. Louis, you probably hate the Cardinals. Don't feel bad if you do, they're quite easy to hate. No other fanbase has managed to coax platitudes out of the team and local media like the common refrain that Cards fans are "the best fans in baseball." Groan. Few other teams outside of college football programs tend to go on and on about "the Cardinal way" and how they "do things the right way" like the redbirds do. The problem is that the Cardinals have been an excellent baseball team for pretty much ever, always managing success with a minimal number of lean years. Perhaps it's partly because they're cheaters on the level of committing federal crimes in order to gain an advantage -- at least according to reports coming out today. The news broke today that the FBI has become involved in investigating whether members of the Cardinals front office illegally gained entry to a proprietary database on player files, projections, statistics and trade maps owned by the Houston Astros. Investigators have uncovered evidence that Cardinals officials broke into a network of the Houston Astros that housed special databases the team had built, according to law enforcement officials. Internal discussions about trades, proprietary statistics and scouting reports were compromised, the officials said. The officials did not say which employees were the focus of the investigation or whether the team’s highest-ranking officials were aware of the hacking or authorized it. The investigation is being led by the F.B.I.’s Houston field office and has progressed to the point that subpoenas have been served on the Cardinals and Major League Baseball for electronic correspondence. Even those of you not prone to caring about professional sports will likely recognize that this is a full-on shit-hitting-fan moment for a professional organization. The "hack", as it's being called, is the kind of low-tech stuff that most of these stories involve, but that doesn't change the fact that this situation seems to be the exact kind of thing the CFAA was designed around. The background on this is that Astros General Manager used to work for the Cardinals, where he developed this database of statistics and scouting methods. When the Astros hired him away, he ported his work over to be used with his new franchise. Somehow he was allowed to use the exact same passwords from his Cardinals days, which allowed somebody from the rival team to log in and begin pulling data. Ten months ago, that data was, for some reason, released into the wild, embarrassing the Astros and yanking away any advantage the proprietary system might have yielded them. The Astros reported the hack to the league office, which involved the FBI. Word from early on in the FBI's investigation seems to leave little doubt that someone at the Cardinals, if not many someones, is involved. Oh, and very, very stupidly involved, too. The Cardinals front-office executives who hacked into the Astros’ database are extremely dumb. You can’t even give them credit for being l337 H4x0rs because all these dummies did was use one of the old passwords Astros GM Jeff Luhnow used when he worked for the Cardinals, and they did it from their own goddamn home, which made it very easy for FBI to track them down. Here is a tip: If you’re going to commit corporate espionage, don’t do it from your home computer. Go find, like, an internet cafe or something. But the thing about the CFAA is that its punishment doesn't correct for technical proficiency, so a "low-level hack," as this is being called, is still a hack and still falls under the law's purview. Dumb sports team or not, this is a federal crime, and the fact that people are going to lose their jobs may be the least of those peoples' concerns. We could be talking about real jail time here. Regardless, the Cardinals way is dead, unable to pull itself from a muck of its own making. Permalink | Comments | Email This Story

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Last week, we were joined by Upshift founder Ezra Goldman to discuss the future of mobility in a world of on-demand services like Uber. This week, Ezra is back to help us fill in the other big piece of the transportation puzzle: autonomous vehicles, and their potential to change just about everything. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, 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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Last year we wrote about a very dangerous case going to the European Court of Human Rights: Delfi AS v. Estonia, which threatened free expression across Europe. Today, the ruling came out and it's a disaster. In short, websites can be declared liable for things people post in comments. As we explained last year, the details of the case were absolutely crazy. The court had found that even if a website took down comments after people complained, it could still be held liable because it should have anticipated bad comments in the first place. Seriously. In this case, the website had published what everyone agrees was a "balanced" article about "a matter of public interest" but that the website publisher should have known that people would post nasty comments, and therefore, even though it automated a system to remove comments that people complained about, it was still liable for the complaints. The European Court of Human Rights agreed to rehear the case, and we hoped for a better outcome this time around -- but those hopes have been dashed. The ruling is terrible through and through. First off, it insists that the comments on the news story were clearly "hate speech" and that, as such, "did not require any linguistic or legal analysis since the remarks were on their face manifestly unlawful." To the court, this means that it's obvious such comments should have been censored straight out. That's troubling for a whole host of reasons at the outset, and highlights the problematic views of expressive freedom in Europe. Even worse, however, the Court then notes that freedom of expression is "interfered with" by this ruling, but it doesn't seem to care -- saying that it is deemed "necessary in a democratic society." Think about that for a second. The Court tries to play down the impact of this ruling, by saying it doesn't apply to any open forum, but does apply here because Delfi was a giant news portal, and thus (1) had the ability to check with lawyers about this and (2) was publishing the story and opening it up for comments. The rest of the ruling is... horrific. It keeps going back to this "hate speech" v. "free speech" dichotomy as if it's obvious, and even tries to balance the "right to protection of reputation" against the right of freedom of expression. In other words, it's the kind of ridiculous ruling that will make true free expression advocates scream. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 And the court insists that the two things -- reputation protection and free speech "deserve equal respect." That's bullshit, frankly. The whole concept of a right to a reputation makes no sense at all. Your reputation is based on what people think of you. You have no control over what other people think. You can certainly control your own actions, but what people think of you? The court sets up a series of areas to explore in determining if Defli should be held liable for those comments. In the US, thanks to Section 230 of the CDA, we already know the answer here would be "hell no." But without a Section 230 in Europe -- and with the bizarre ideas mentioned above -- things get tricky quickly. So even though the court readily agrees that the article Defli published "was a balanced one, contained no offensive language and gave rise to no arguments about unlawful statements" it still puts the liability on Delfi. Because the site wanted comments. It actually argues that because Delfi is a professional site and thus comments convey economic advantage, Delfi is liable: As regards the context of the comments, the Court accepts that the news article about the ferry company, published on the Delfi news portal, was a balanced one, contained no offensive language and gave rise to no arguments about unlawful statements in the domestic proceedings. The Court is aware that even such a balanced article on a seemingly neutral topic may provoke fierce discussions on the Internet. Furthermore, it attaches particular weight, in this context, to the nature of the Delfi news portal. It reiterates that Delfi was a professionally managed Internet news portal run on a commercial basis which sought to attract a large number of comments on news articles published by it. The Court observes that the Supreme Court explicitly referred to the fact that the applicant company had integrated the comment environment into its news portal, inviting visitors to the website to complement the news with their own judgments and opinions (comments). According to the findings of the Supreme Court, in the comment environment, the applicant company actively called for comments on the news items appearing on the portal. The number of visits to the applicant company’s portal depended on the number of comments; the revenue earned from advertisements published on the portal, in turn, depended on the number of visits. Thus, the Supreme Court concluded that the applicant company had an economic interest in the posting of comments. In the view of the Supreme Court, the fact that the applicant company was not the writer of the comments did not mean that it had no control over the comment environment... Also? Having "rules" posted for comments somehow increases the site's liability, rather than lessens it as any sane person would expect: The Court also notes in this regard that the “Rules of comment” on the Delfi website stated that the applicant company prohibited the posting of comments that were without substance and/or off-topic, were contrary to good practice, contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities. Such comments could be removed and their authors’ ability to post comments could be restricted. Furthermore, the actual authors of the comments could not modify or delete their comments once they were posted on the applicant company’s news portal – only the applicant company had the technical means to do this. In the light of the above and the Supreme Court’s reasoning, the Court agrees with the Chamber’s finding that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal. Yes, that's right. They get in more trouble for posting rules saying behave. It's incredible. The next key finding: because commenters are anonymous and anonymity is important -- and because it's difficult to identify anonymous commenters -- well, fuck it, just put the liability on the site instead. That really does seem to be the reasoning: According to the Supreme Court’s judgment in the present case, the injured person had the choice of bringing a claim against the applicant company or the authors of the comments. The Court considers that the uncertain effectiveness of measures allowing the identity of the authors of the comments to be established, coupled with the lack of instruments put in place by the applicant company for the same purpose with a view to making it possible for a victim of hate speech to effectively bring a claim against the authors of the comments, are factors that support a finding that the Supreme Court based its judgment on relevant and sufficient grounds. The Court also refers, in this context, to the Krone Verlag (no. 4) judgment, where it found that shifting the risk of the defamed person obtaining redress in defamation proceedings to the media company, which was usually in a better financial position than the defamer, was not as such a disproportionate interference with the media company’s right to freedom of expression.... Further on the question of liability, the court finds that because Delfi's filter wasn't good enough, that exposes it to more liability. I wish I were making this up. Thus, the Court notes that the applicant company cannot be said to have wholly neglected its duty to avoid causing harm to third parties. Nevertheless, and more importantly, the automatic word-based filter used by the applicant company failed to filter out odious hate speech and speech inciting violence posted by readers and thus limited its ability to expeditiously remove the offending comments. The Court reiterates that the majority of the words and expressions in question did not include sophisticated metaphors or contain hidden meanings or subtle threats. They were manifest expressions of hatred and blatant threats to the physical integrity of L. Thus, even if the automatic word-based filter may have been useful in some instances, the facts of the present case demonstrate that it was insufficient for detecting comments whose content did not constitute protected speech under Article 10 of the Convention.... The Court notes that as a consequence of this failure of the filtering mechanism, such clearly unlawful comments remained online for six weeks.... Then the court says that because the "victims" of "hate speech" can't police the interwebs, clearly it should be the big companies' responsibility instead: Moreover, depending on the circumstances, there may be no identifiable individual victim, for example in some cases of hate speech directed against a group of persons or speech directly inciting violence of the type manifested in several of the comments in the present case. In cases where an individual victim exists, he or she may be prevented from notifying an Internet service provider of the alleged violation of his or her rights. The Court attaches weight to the consideration that the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments. Finally, the court says that since the company has stayed in business and is still publishing, despite the earlier ruling, it proves that this ruling is no big deal for free speech. The Court also observes that it does not appear that the applicant company had to change its business model as a result of the domestic proceedings. According to the information available, the Delfi news portal has continued to be one of Estonia’s largest Internet publications and by far the most popular for posting comments, the number of which has continued to increase. Anonymous comments – now existing alongside the possibility of posting registered comments, which are displayed to readers first – are still predominant and the applicant company has set up a team of moderators carrying out follow-up moderation of comments posted on the portal (see paragraphs 32 and 83 above). In these circumstances, the Court cannot conclude that the interference with the applicant company’s freedom of expression was disproportionate on that account either. The ruling is about as bad as you can imagine. It is absolutely going to chill free expression across Europe. Things are a bit confusing because the EU Court of Justice has actually been much more concerned about issues of intermediary liability, and this ruling contradicts some of those rulings, but since the two courts are separate and not even part of the same system, it's not clear what jurisdiction prevails. It is quite likely, however, that many will seize upon this European Court of Human Rights ruling to go after many websites that allow comments and free expression in an attempt to block it. It is going to force many sites to either shut down open comments, curtail forums or moderate them much more seriously. For a Europe that is supposedly trying to build up a bigger internet industry, this ruling is a complete disaster, considering just how much internet innovation is based on enabling and allowing free expression. There is a dissenting opinion from two judges on the court, who note the "collateral censorship" that is likely to occur out of all of this. In this judgment the Court has approved a liability system that imposes a requirement of constructive knowledge on active Internet intermediaries (that is, hosts who provide their own content and open their intermediary services for third parties to comment on that content). We find the potential consequences of this standard troubling. The consequences are easy to foresee. For the sake of preventing defamation of all kinds, and perhaps all “illegal” activities, all comments will have to be monitored from the moment they are posted. As a consequence, active intermediaries and blog operators will have considerable incentives to discontinue offering a comments feature, and the fear of liability may lead to additional self-censorship by operators. This is an invitation to self-censorship at its worst. It further notes how this works -- in such a simple manner it's disturbing that the court didn't get it: Governments may not always be directly censoring expression, but by putting pressure and imposing liability on those who control the technological infrastructure (ISPs, etc.), they create an environment in which collateral or private-party censorship is the inevitable result. Collateral censorship “occurs when the state holds one private party A liable for the speech of another private party B, and A has the power to block, censor, or otherwise control access to B’s speech”. Because A is liable for someone else’s speech, A has strong incentives to over-censor, to limit access, and to deny B’s ability to communicate using the platform that A controls. In effect, the fear of liability causes A to impose prior restraints on B’s speech and to stifle even protected speech. “What looks like a problem from the standpoint of free expression ... may look like an opportunity from the standpoint of governments that cannot easily locate anonymous speakers and want to ensure that harmful or illegal speech does not propagate.” These technological tools for reviewing content before it is communicated online lead (among other things) to: deliberate overbreadth; limited procedural protections (the action is taken outside the context of a trial); and shifting of the burden of error costs (the entity in charge of filtering will err on the side of protecting its own liability, rather than protecting freedom of expression). It's disappointing they were unable to convince their colleagues on this issue. This ruling is going to cause serious problems in Europe.Permalink | Comments | Email This Story

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Last week, the Wikimedia Foundation announced that it was moving to encrypting access to all Wikipedia sites via HTTPS. This was really big news, and a long time coming. Wikipedia had been trying to move in this direction for years with fairly slow progress -- in part because some in the Wikimedia community had an irrational dislike of HTTPS. Thankfully, the Wikimedia Foundation pushed forward anyway, recognizing that the privacy of what you're browsing can be quite important. And yet, I don't think that was the most significant website shift to HTTPS-by-default in the last week. Instead, that honor has to go to... [drumroll please]... FBI.gov. No, seriously. This may surprise you. After all, this is the very same FBI that just a couple of weeks ago had its assistant director Michael Steinbach tell Congress that companies needed to "prevent encryption above all else." Really. And it's the same FBI whose director has been deliberately scaremongering about the evils of encryption. The same director who insisted the world's foremost cybersecurity experts didn't understand when they told him that his plan to backdoor encryption was bonkers. The very same FBI who used to recommend mobile encryption to keep your data safe, but quietly deleted that page (the FBI claims it was moved to another site, but...). But that very same FBI that has spent the past few months disparaging encryption at every opportunity apparently went over to Cloudflare and had the company help it get HTTPS set up. No joke. The FBI.gov site now automatically pushes you to an encrypted connection. Because, no matter what the FBI says, encryption is good. And the FBI's techies know that. Remember how, just last week, the US CIO announced that all federal governments would be moving to HTTPS. Well, thankfully, the CIO's office is also tracking how well it's doing. Just yesterday, here's what it said about FBI.gov: And, here's what it says now: (If you're interested, you can see the pull request at Github that has the change as well). Either way, kudos to the FBI for letting us encrypt our connections. Now, please don't get in the way of us encrypting our data as well.Permalink | Comments | Email This Story

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Speech-to-text software has come a long way over the years and, while it's not perfect, it can still a great tool for increasing productivity. For 50% off, we're offering Dragon NaturallySpeaking 13 PC Home from Nuance. This latest update of Dragon sets up easily and now works with most built-in laptop and some Bluetooth mics for greater flexibility. You can create custom word lists and use an audio playback option to help with proofreading. The license allows you to download Dragon to two computers, and it's offered in American English, UK English, French or German. We're offering Dragon Dictate 4 for Mac at 50% off as well. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team./iPermalink | Comments | Email This Story

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As we continue to build The Copia Institute, we'll be writing a weekly column & newsletter discussing bigger issues around innovation and abundance. These pieces will be cross-posted here on Techdirt, but we invite you to check them out on the new Copia website as well. One of the first questions that comes up when I first tell people about the Copia Institute, is "how is this different than 'x'?" with "x" being any number of organizations, from activist groups to trade groups to DC lobbying organizations. And the answer is that we're not any of those things. In fact, while we know many people in such places, and will likely have opportunities to work with them in certain cases, we're focused on doing something very different: letting innovation lead the way, rather than policymakers. That's not to say we're not interested in policy questions, we're just looking for ways to innovate solutions to them rather than waiting for policymakers in distant cities to come up with some new regulation. Over and over again we've seen policymakers and people from the policy world show up in Silicon Valley and talk about how entrepreneurs need to spend more time "bridging the gap" between DC and Silicon Valley, or something like that. But, almost inevitably, this isn't very effective. There are, certainly, connections to be made, but too often the "connection" that policymakers are talking about is getting Silicon Valley to "play the DC game." And very, very few entrepreneurs and technologists are truly interested in playing that game. To them, it's the antithesis of why they're innovators in the first place. They didn't come to Silicon Valley to change the world just to have to convince a large group of lawmakers (or worse, administrative bureaucrats) to put in place some particular piece of legislation. They came here to actually innovate. And this is not to say -- as some people like to -- that the way to treat policymakers is to ignore them, or just tell them to get out of the way. Rather, we think that we can create the best of all worlds by getting entrepreneurs and technologists and innovators to do what the do best and that means coming up with innovative policy ideas that don't necessarily involve waiting for policymakers to create some sort of regulation. We see examples of this innovative "policy without policymakers" all the time -- and it's what helped inspire the creation of Copia in the first place. One example: fifteen years ago, a group of entrepreneurs, academics, lawyers and activists realized that copyright law and the internet did not mix. And, at the same time, they knew that there was no way Congress would get around to real copyright reform that fixed that. So they built a very innovative solution: Creative Commons. It didn't fix all the problems, but it did create a really useful tool that is widespread today: a very simple licensing mechanism that encouraged content creators to freely and easily license their works, and that allowed the better sharing of information. It has had a profound effect on how content is shared online today -- and it did not require Congress to do anything. Similar examples are found with things like Twitter's Innovator's Patent Agreement that prevents any of Twitter's patents from being used for trolling. Or the recent "license on transfer" (LOT) program that a bunch of tech companies came up with a year ago. Sure, in the long run, having good copyright or patent reform would help even more, but that clearly wasn't happening in the short run, so innovators did what they do best: they innovated solutions to help out in the meantime. Copia's main focus is on bringing together innovators, entrepreneurs, and technologists and looking at the big opportunities and challenges they face -- and looking for ways to innovate solutions that don't require lobbying and waiting around for policymakers to negotiate and bicker and trade. Instead, we're focused on getting actual stuff done -- creating useful programs that can accomplish things today. That doesn't mean we'll sit out legislative or policy debates. We'll still be actively involved in those, and making sure that our members are well aware of what's happening. But we'll let the existing trade groups, activists and lobbyists focus on those battles most of the time. We're going to keep looking for ways that we can actually get stuff done in a way that Silicon Valley appreciates: by innovating, rather than waiting for someone to give us permission.Permalink | Comments | Email This Story

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Never content to simply let America take a bad idea and run with it alone, these past few years have seen our friends in the UK slowly start to lose their collective minds concerning terrorism and radical Islam. It's hard to be too terribly snarky about it, considering here in America we've done our best to perfect overreacting to terrorism, but when the UK decided to institute something like Orwellian "thought crime," it was still worth noting how dumb of an idea it was. But our British friends weren't done. Now, schools throughout the country are being offered some very special software that will allow teachers to spy on student activities to try to weed out the eventually-maybe-might-be-radicalized. Schools are being offered new software that helps teachers spy on pupils' potentially extremist online activity. It alerts teachers if pupils use specific terrorism-related terms or phrases or visit extremist websites on school computers, laptops or tablets. Teachers are encouraged to look for a pattern of behaviour rather than raise the alarm after a single warning. This software is being offered in an effort to help schools comply with the Counter Terrorism and Security Act, which puts the onus on schools to prevent children from becoming terrorists, because apparently everyone is in the business of counter-terrorism these days. It must be quite nice to be in the national security business in the UK, given how the government has managed to simply foist their responsibilities upon public citizens with nothing better to do than teach the stewards of the nation's future. And that last line in the quote, the one about how teachers are encouraged to look for ongoing patterns rather than flying off the handle if a student happens to look up "jihad" on Google? Yeah, because teachers are clearly the best able and most trained when it comes to making those kinds of judgements. They're not. You know who is? The god damned people in the counter-terrorism business. Maybe stop shirking your responsibility and do the damned job. Those producing this software are just full of the old "the internet is just the worst" tropes, too. Sally-Ann Griffiths, of Impero Software, which designed the program, said: "With a widely reported increase in the number of children being radicalised, it's vital that schools put measures in place to prevent pupils coming to harm online. By defining terms such as 'yodo', a phrase used by jihadist sympathisers meaning 'you only die once', the glossary gives teachers, who are part of the solution to the problem, the tools they need to identify, intervene and safeguard at-risk pupils." Heh, yodo, that's actually pretty good. Less good is someone pimping this privacy-invading, research-chilling, conversation-stopping spyware retreating to the argument-safe-house position of relying on "widely reported" non-statistics and appeals to protecting the children. On the other hand, I suppose it's quite a nice lesson for these children to find out what life will be like as an adult. Thanks to the NSA and its international counterparts, they can expect to be surveilled in much the same way when they're all growed up. Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
Last year, Techdirt wrote about Boston Police performing a test run of its facial recognition software on those attending a local music festival. Perhaps unsurprisingly, in the UK, land of a million CCTV cameras, the police have taken things even further. As this story in Noisey explains, drawing on a report on the Police Oracle site (registration required): This weekend's Download Festival will be subjected to strategic facial recognition technology by Leicestershire Police, making those 100,000 plus attendees the first music fans to ever be monitored to this extent at a UK music festival … The announcement article on Police Oracle reads, "the strategically placed cameras will scan faces at the Download Festival site in Donington before comparing it with a database of custody images from across Europe." The ostensible reason for this massive surveillance is to catch people who steal mobile phones, but that really doesn't stand up to scrutiny. The database that the 100,000 faces were matched against was "custody images from across Europe", but it seems improbable that criminals would travel all the way across Europe to this particular music festival in the hope that they might be able to relieve a few spaced-out musicgoers of their phones. Nor was general criminal behavior an issue: apparently, last year there were just 91 arrests with 120,000 people attending. It's more likely that the facial scans were born of a desire to see if the hardware and software were capable of capturing such large numbers and comparing them with the pan-European database. Worryingly, the Download Festival may be just the start: According to the Police Oracle article previously cited, other festival organisers have expressed widespread interest in technology, pending a successful trial. DC Kevin Walker told the Oracle, "It is one of the first times it has been trialled outside, normally it is done in a controlled environment. There has also been a lot of interest from other festivals and they are saying: 'If it works, can we borrow it?' " It's easy to see this kind of technology being rolled out ever-more widely. First at other music festivals -- purely for safety reasons, you understand -- and then, once people have started to get used to that, elsewhere too. Eventually, of course, it will become routine to scan everyone, everywhere, all the time, offering a perfect analog complement to the non-stop, pervasive surveillance that we now know takes place in the digital world. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Facebook has long made the silly argument that it has some kind of untoward iron-clad trademark on all things "book." Hell, even the site's user agreement contains a provision that by signing it, you agree that Facebook has a trademark on "book", as though such agreements actually meant anything. And, throughout time immemorial (or at least as long as the site has been popular), Facebook has aggressively pursued trademark claims on anyone who dares to use "book" within their sites' names or company names. Just in case anyone was wondering, this hasn't stopped. Most recently, Facebook has informed a startup called Designbook of its intention to oppose the startup's trademark application. "We don’t believe that any of our branding is related to theirs," [co-creator] Pollak said, in an article published yesterday by Boston magazine. "Our logo is completely different, different colors, different fonts." Pollak and Clark say their name was inspired by the design books they used in school. It's a "really specific thing when you're an engineer... It's your prototype book, where you keep track of your projects, your ideas, and your inventions." Facebook hasn't commented on the situation, but Pollak describes it as a case of "trademark extortion and corporate bullying." Yes, much like many of the other examples that people tend to cite whenever Facebook decides it's trademark-asshat time, such as phonebooks and scrapbooks, Designbook got its name from a source that has nothing to do with Facebook and isn't going to be confused for Facebook. And, while Lamebook appears to have survived Facebook's bullying, Designbook doesn't have anything like humor and parody to rest on as a defense. And it shouldn't have to. Facebook has no registered trademark for "book" in the social media space. It tries to rely on its claim of an unregistered trademark, but they're full of shit. If such a trademark could get approved, it would have been by now, rather than the claim's most solid standing existing in a EULA. Here's hoping Designbook can fight this once the opposition is filed. Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
Every service wants you to create a username and password... and it all begins to pile up after a while. Users try to make things easier for themselves by re-using passwords, but you're really not supposed to do that. What are you supposed to do? Well, password management software exists, but only the truly paranoid folks spend the time to figure out which one of those is the one that works best for particular use cases and then actually set it up. (And then shit happens anyway.) Some companies are trying to figure out other solutions -- here are a few of them. Apple has its fingerprint sensor, but a 4-digit PIN will be replaced by a 6-digit PIN soon. Yippee! It's not much of an improvement, but a brute force attack will take a bit longer for the bad guys. [url] Would you want to replace a password with a brainwave measurement? Electroencephalograms (EEGs) could verify your 'pass-thoughts' for allowing access to a secure system. Maybe it'll be harder to forget your 'pass-thoughts' or maybe it won't? Or someone might say, "Don't think about your password!" and run off with your EEG waves before you stop yourself from thinking... [url] Google is working on a way to identify users from their usage patterns -- how different people type or swipe or interact. It's supposedly "up to" 10x better than other methods, but what happens if you hurt your wrist or something? [url] Paypal is suggesting an 'ingestible' (embeddable or injectable) device to serve as a person identification dongle. Implanted devices better be painless to inject and remove! Is it safe? [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
Earlier this year, we noted that Amazon was alone among the giant internet companies in refusing to publish a transparency report providing details on government requests for information. Amazon was also absent from the legal fight that many big tech companies filed against the government over the right to disclose such information (a fight that only Twitter is still fighting). Finally, however, late on Friday, Amazon joined the party with its first ever Transparency Report (though it tries to cover up the fact that it's the first time it's ever done this by calling it the company's "bi-annual report.") In an accompanying blog post, however, the company plays up its privacy fighting bona fides -- something many privacy advocates had long questioned -- by highlighting that it "never participated in the NSA's PRISM program" and that it had challenged government subpoenas for information: Where we need to act publicly to protect customers, we do. Amazon never participated in the NSA’s PRISM program. We have repeatedly challenged government subpoenas for customer information that we believed were overbroad, winning decisions that have helped to set the legal standards for protecting customer speech and privacy interests. We also advocate in Congress to modernize outdated privacy laws to require law enforcement to obtain a search warrant from a court to get the content of customer communications. That’s the appropriate standard, and it’s the standard we follow. That may be true, but it's also been true that Amazon has been noticeably absent from a variety of efforts to stop government surveillance -- including many that involve nearly every other big internet company. Hopefully this move, joining the rest of these companies in producing a transparency report, is a step towards being even more engaged on these issues as well. Given just how much infrastructure now runs on Amazon's web services platform, it needs to be a stronger champion for privacy and against unnecessary surveillance.Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
For a few years now AT&T has taken heat for its "Sponsored Data" program, which lets certain companies pay AT&T an extra fee to let consumers access their content without it impacting their wireless data usage allotment. Critics have repeatedly charged that the program immediately creates an uneven playing field for small companies, independent and non-profits, who may not be able to afford the toll. While it's clear the plan violates net neutrality, consumers have been fortunate in that corporate interest in the idea so far appears to be minimal. In an interesting twist, AT&T appears to now be cooking up a new program called "Data Perks" that gives consumers free, additional wireless data should they "interact" with AT&T partner brands in a specific fashion. Leaked information on the program suggests it's being run by AT&T's Sponsored Data partner Aquto, who explains AT&T's new project as such:"Aquto CEO Susie Riley told VentureBeat that to many brands it’s a lead generation campaign. Subscribers are rewarded with data when they sign up for services, learn about new products, discover new apps, or click through and purchase something at a brand’s e-commerce site. If for example, an AT&T customer bought a DVD from a participating brand, they might be awarded with a gigabyte of data that they could use to browse any site, anywhere on the web, Riley said. Subscribers accumulate their data credits in their Data Perks account, then transfer the data into their AT&T wireless account when they want."So far that sounds more neutrality friendly than the company's Sponsored Data effort, as it's opt in and doesn't tilt the mobile Internet playing field in any obvious fashion. Of course this is AT&T -- the same company that's been busted time and time again for business models that trample neutrality and consumer rights -- so we'll have to see if there's any nasty caveats when the program launches next Tuesday. AT&T might be engaging in semantics here (exempting some content from the cap, versus giving away "free" data if users "interact" with a brand). With the FCC's new net neutrality rules taking effect this week (you know, the ones AT&T is suing twice to overturn), it seems possible that AT&T would tread carefully Maybe. While the FCC's new neutrality rules don't cover data caps and zero rating specifically, when they take effect on Friday there is at least a complaint mechanism for those who find a specific business model obviously anti-competitive. As such, ISPs can still violate neutrality, but as noted previously, they just have to be extra-clever about it, dressing it up as an innovative business model and a great boon for consumers (see T-Mobile's Music Freedom). We'll see next week if AT&T's actually developing a sound business model for once -- or if it's just being extra clever.Permalink | Comments | Email This Story

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Anyone remember Ray Niro? He's the lawyer who so perfected patent trolling that the term "patent trolling" was first used (by future patent troll Peter Detkin) back in the 1990s to describe... Ray Niro for his lawsuits. Niro was the original uber patent troll, demanding settlements and suing all sorts of people. Perhaps his most famous move was that he had control over a patent that he argued covered any use of a JPEG image -- and would use it to go after basically anyone who displeased him (if they had any JPEGs on their websites). This included the Green Bay Packers and a resort in Florida. When noted patent system critic Greg Aharonian described that patent as "crap," Niro sued him for infringing on it as well. Niro also put a bounty on the identify of an (at the time) anonymous blogger who called himself the "Patent Troll Tracker." Either way, Niro apparently claims that he's getting out of the patent trolling business. He's blaming the Supreme Court's ruling in the Octane Fitness case that made it easier for the victims of patent trolls to seek fees. While many people point to last year's ruling in the Alice case, which has been used to kill a bunch of software patents, as shifting the balance against patent trolling, the Octane Fitness ruling may be having an even bigger impact, because it can directly hit patent trolls in their wallets. And that's what's happening with Niro: Niro and his firm have been ordered to pay fees in a patent suit he brought against HTC on behalf of Intellect Wireless and an inventor. The parties are still litigating over the amount, but HTC is seeking $4.1 million. The fee order was "a wake-up call," Niro told Crain's. "I can take it once, twice, but am I going to take it three or four times? No. Why should I?" The Ars Technica article linked above notes that another prominent patent troll, Erich Spangenberg, has been pointing to the Octane Fitness ruling for why he's moving out of the business as well: "You invested up front to buy the patent, did the research and found infringement," Spangenberg explained to Ars in an interview last year, shortly after he made the decision to move on from IPNav. "Over and above that, you go through an IPR and spend another million there, and then you get hit with a $2 million to $3 million fee award. I don't want to be working on cases where that's what I'm worried about." But, fear not for Niro. He's moving on to other lucrative trolling areas. The Crain's article where he initially claimed to be moving out of the patent trolling business notes that he's moving more aggressively into trade secrets: Changes in patent law in the past year have gutted the business model that made it possible for law firms to represent “little guy” clients whose patents were being infringed, says Raymond Niro, founder of Niro Haller & Niro, one of the country's highest-profile plaintiff-side intellectual property boutiques. The firm, which has shrunk to 18 lawyers from 30, is considering taking more cases involving alleged breach of contract, nondisclosure agreements and misappropriation of trade secrets. I've been meaning to write more about this (and I promise I will get to it eventually)... but over the last few years, there's been a big move to ratchet up laws around "protected trade secrets" with a big push coming from the US. Because of this, there is some evidence that we're already starting to see some "trade secret trolling" going on -- and given Niro's nose for early trolling opportunities, it's little surprise that he's exploring that as a new area for business.Permalink | Comments | Email This Story

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