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Yesterday we wrote about coal company Murray Energy and its CEO, Bob Murray, actually following through and suing John Oliver -- something that Murray's lawyers had threatened to do when Oliver and his team had reached out to Murray for a piece Oliver was doing on coal. The result of being threatened was that Oliver spent nearly half of the 24 minute segment on Murray, carefully detailing some of Murray's history and positions. If you missed it, watch it again here: Anyway, when we wrote about the case yesterday, we noted that we had to do it based solely on the reporting of the Daily Beast, as they broke the story and -- for reasons I still don't understand -- refused to post the actual complaint. However, now we've obtained the full complaint and can dig in on how incredibly silly it is. It appears to be a quintessential SLAPP lawsuit, where the entire point is not to bring a legitimate cause of action, but to chill free speech that criticizes Bob Murray. As Ken "Popehat" White notes, it's "lawsuit as theater" and "an unapologetic political screed" -- that is, apparently designed to rile people up, rather than to present a reasonable legal argument. Let's dig in. It certainly starts out on a high note with the rhetoric: On June 18, 2017, Defendants executed a meticulously planned attempt to assassinate the character and reputation of Mr. Robert E. Murray and his companies, including Murray Energy Corporation and those in West Virginia, on a world stage. They did so for their personal financial gain by knowingly broadcasting false, injurious, and defamatory comments to HBO's approximately 134 million paying subscribers, while also knowing that their malicious broadcast would be repeated to countless more individuals through various outlets (including other media owned by certain Defendants. I've now watched the video four times and I fail to see anywhere that it goes after "those in West Virginia." Indeed, it's actually quite sympathetic to the plight of miners and former miners in the area who have run into problems or lost their jobs. The only people that it holds out as problematic... are the CEOs of various mining companies and the President of the United States. And even if Murray's reputation is mocked in the piece, as long as there aren't false statements of fact, presented with knowledge of their falsity or reckless disregard for the truth, it's all perfectly legal. Making Bob Murray look foolish or mean isn't illegal, as long as it's based on statements of opinion or those backed up with evidence. But, Murray's lawyers appear to suggest that because Murray is in poor health, that somehow makes this entirely different. It's... an odd sympathy play in a lawsuit: They did this to a man who needs a lung transplant, a man who does not expect to live to see the end of this case. They attacked him in a forum in which he had no opportunity to defend himself, and so he has brought this suit to try to set the record straight. The health stuff is pure "theater" as Ken noted. The "no opportunity to defend" himself is weird, because I thought Republicans like Murray were completely 100% against a "fairness doctrine" that required equal time for political opponents (which is the right position to take). But, even beyond that, the idea that Murray had no choice but to file a lawsuit to defend himself or to set the record straight is laughable. As Oliver's report clearly showed, Murray is regularly on TV and could easily get a message onto the various TV news programs that have him on as a guest. And, either way (again) that's got absolutely nothing to do with defamation law and how it works. The sob story continues: Worse yet, Defendants employed techniques designed solely to harass and embarrass Plaintiffs, including Mr. Murray, a seventy-seven year old citizen in ill health and dependent on an oxygen tank for survival, who, despite the foregoing, continuously devotes his life, including by working seven days each week, to save the jobs and better the lives of the thousands of coal miners that he employs in West Virginia and elsewhere. Defendants childishly demeaned and disparaged Mr. Murray and his companies, made jokes about Mr. Murray's age, health, and appearance, made light of a tragic mining incident, broadcasted false statements, and incited television and internet viewers to do harm to Mr. Murray and his companies, all before a worldwide audience--including the thousands of people that work for and do business with Mr. Murray and his companies in West Virginia. In fact, medical doctors have informed Mr. Murray that he should stop working because the stress is shortening his life. Mr. Murray must, however, continue working because of all those individuals who rely on him. But nothing has ever stressed him more than this vicious and untruthful attack. Bravo! Quite a performance there. This seems clearly targeted towards pulling at the heartstrings of folks in West Virginia, but, again seems to have little to nothing to do with the actual law. Again, Murray's health is not an issue here -- and if this has caused him more stress than anything else in his life ever, then Mr. Murray has led an incredibly low stress life. Is he really saying that a late night British comedian on a premium channel has caused him more stress than the time that one of his mines collapsed and killed a group of his employees? If so... that's... weird. Separately, making fun of someone's age, health or appearance (and I don't recall any actual jokes about his age or health...) is, again, not defamation. It's sort of protected by the First Amendment. The only thing that could be defamation is "false statements" and notice how the lawsuit seems to be playing up everything else, rather than that? When you start to dig into the actual meat of the lawsuit... there's almost nothing there. It complains that Oliver's staff may have contacted Murray Energy under false pretenses, saying that they "were under the false impression that Defendants would use this supplied information to accurately and responsibly broadcast the facts and circumstances regarding the topics," but that, again, makes little difference to the question of defamation. Just because a news company doesn't present your version of the events exactly as you want it presented, doesn't make it defamation. Not by any stretch of the imagination. The lawsuit does provide plenty of additional bits of information concerning the Crandall Canyon mine collapse and how Murray reacted to it. And all of that is perhaps interesting, but again, none of it requires Oliver to portray the story in the way that Murray Energy likes. And, again, if you go back and review the actual story that Oliver did, he does not contradict any of the factual claims laid out by Murray's lawyers. Rather, he highlights the stories of miners or families of miners who were impacted by the collapse and were not happy with how Murray responded. The crux of the argument on Murray's side is "but we tried real hard." And, great. But highlighting how others felt about the effort and actions is not defamation. It's presenting other viewpoints. The only possible "factual" point where there could be some controversy is over whether or not the mine collapsed due to an earthquake, as Murray has insisted since the day of the collapse itself. Oliver pointed to the US government report on the incident put together by the Mine Safety and Health Administration (MSHA), a part of the US Department of Labor. That report concluded: "The August 6 catastrophic accident was the result of an inadequate mine design," and, on top of it: "MSHA found no evidence that a naturally occurring earthquake caused the collapse on August 6." In the lawsuit, Murray's evidence that this is false seems to focus on semantics and making fun of the MSHA inspectors (you know they're making fun of them because it puts "experts" in quote marks): The Federal Mine Safety and Health Administration's report regarding the collapse (the "MSHA Report") contained multiple concessions that a sudden change in stresses due to a "slip along a joint" or "joint slip in the overburden," which is very similar to the United States Geological Survey's definition of an "earthquake" (i.e., "both sudden slip on a fault, and the resulting ground shaking and radiated seismic energy caused by the slip"), "could have been a factor in triggering the collapse" and was one of the "likely candidates" for triggering the collapse, but MSHA and its "experts" chose not to analyze the seismic data of the triggering event and instead focused on the secondary collapse, which was a disservice to the lost miners, their families and the truth. Studies have shown that the Mine collapse was a seismic event originating in the Joe's Valley Fault Zone. More specifically, these studies indicated that the triggering event for the seismic disturbance, which was not consistent with normal mining-induced seismicity resulting in the collapse, occurred on a subsidiary fault parallel to the Joe's Valley Fault. This is a more technical manner of stating that the collapse was caused by what many would characterize as an earthquake. So that first paragraph is nonsense. It's not "actual malice" if you have clear evidence to back up your statements, and the official MSHA report sure seems like pretty good evidence to support that Oliver and his team believed what Oliver said was true. The fact that Murray doesn't like the MSHA "experts" doesn't magically make using their report "defamation." Second, notice that all of the talk about the earthquake comes with qualifying language: "very similar to... definition of an 'earthquake'", "what many would characterize as an earthquake." Even beyond the other stuff, this further undermines any defamation claim over the one sort of "fact" the lawsuit focuses on: if there's a dispute over whether or not what happened was truly an earthquake, then choosing a side in that dispute is not defamation. It's an opinion. That's protected. Mr. Murray and his companies warned Defendants to cease and desist from a broadcast of defamatory comments or any misguided attempt at humor regarding the tragic mine collapse and loss of life, which Plaintiffs believed would be cruel and heartless. So, uh, earlier in the complaint, Murray's lawyers argue that they believed that when Oliver and his team reached out they were ordinary journalists, claiming that they reached out "under the guise of responsible and ethical journalism." And, yet, here they admit that that they knew that he's a comedian who regularly satirizes people and companies, thus they didn't want to see a humorous take on the situation. Also, there's no law against "misguided" humor (and, uh, many folks found the humor to be quite on target). Finally, there is nothing in defamation law about it being illegal for you to have "cruel and heartless" comedy. And, in actuality, Oliver's piece was neither cruel, nor heartless. Many would likely argue that it was incredibly sympathetic and empathetic to the plight of struggling coal miners, who are facing a radical transformation of their industry. The complaint, once again, then hits on the idea that because Oliver's story didn't represent the collapse the way Bob Murray wanted it portrayed, that's defamation. That's... not how it works. It's not how any of this works. In the ensuing broadcast, Defendants deliberately omitted the facts Plaintiffs provided regarding the Crandall Canyon Mine incident. There was no mention of the efforts Mr. Murray personally made to save the trapped miners. Defendant Oliver did not tell his audience that Mr. Murray arrived at the Crandall Canyon Mine in Utah within four hours of the collapse. Nor did Defendant Oliver say anything about the twenty-eight straight days Mr. Murray then spent on that mountain overseeing the massive rescue efforts, and administering to the families. Nor did he mention that Mr. Murray personally led the rescue efforts when rescue workers were injured and killed in a subsequent event ten days after the initial seismic event, in fact pulling rescue workers from the debris and attending to their injuries with his own hands and administering to them. That's nice and all... but it's totally meaningless. Not reporting those things is not defamation. Murray has every right to then put out a statement, or go on TV, or get another reporter to tell these stories. But in a lawsuit? Just because the story is about Bob Murray doesn't mean that Bob Murray gets editorial control. That's not how it works, Bob. Then it gets even more bizarre: Instead, presumably to boost ratings, line their pockets with profits, and advance the show's anti-coal agenda, Defendant Oliver intentionally, falsely, and outrageously conveyed that Mr. Murray has no evidence to support his statements that an earthquake caused the tragedy that took the lives of Murray Energy miners during the course of their work for the organization. Rather than fairly characterizing the evidence that he had in his possession on the subject, Defendant Oliver instead quoted an out-of-context snippet from a single report stating that there was "no evidence that a naturally occurring earthquake caused the collapse." Because Defendant Oliver omitted any mention of the other reports he was aware of that evidence that an earthquake caused the collapse, as Mr. Murray correctly stated following the collapse, Defendant Oliver's presentation intentionally and falsely implied that there is no such evidence. Yeah. So, about that. The above just isn't true. Watch the video again. Oliver directly says that Murray relies on other evidence to support the earthquake claim ("to this day, Murray says the evidence proves that he was correct.") Then Oliver notes (correctly and accurately) that the government report says otherwise: "that was decidedly not the conclusion of the government's investigation." So, for Murray's lawyers to argue that Oliver ignored the evidence on the other side is... simply not accurate. Oliver notes that Murray points to evidence on his side, but he then points to the government's conclusions. Yes, Oliver makes it clear he believes the government's report, but, um, it's the US government. You're not going to win a defamation lawsuit by arguing that relying on the conclusions of a federal government investigation is defamation, just because you have "other evidence" that you claim disagrees with the government's evidence. Worse still, as discussed, Defendant Oliver's Senior News Producer, Defendant Wilson, obtained from Plaintiffs detailed information evidencing an earthquake or earthquake-like event did trigger and cause the Crandall Canyon Mine collapse. Note the immediate caveats of an "earthquake-like event." Again, this undermines the argument that saying a government report concluded it wasn't an earthquake is somehow defamation. They also did this despite knowing that determinations of causation are vastly complex and can take years before a reliable conclusion can be reached. So, uh, yeah. About that. This is true, but remember, part of the joke here, from Oliver, was that Murray declared definitively in a press conference the day of the collapse that it was clearly an earthquake that caused this and not the company itself. So, if Murray's own lawyers are now admitting that this is vastly complex and "can take years," it sort of reinforces the key point that Oliver was making, that Murray himself immediately jumped to the conclusion that it was an earthquake and not his fault, when that was not at all clearly know. This filing seems to do more to undermine Murray than Oliver. Defendants also aired a clip of congressional testimony of a relative of a former employee of Murray Energy that appeared to be dissatisfied with Mr. Murray's handling of the Crandall Canyon Mine collapse, when upon information and belief the statements of that employee were not his own, but were instead scripted by adverse counsel in a lawsuit against Murray Energy and given to the employee to further the agenda of such counsel and their clients. Right, so this is similar to the whole dismissing the MSHA report by calling its experts "experts." Oliver accurately reported what this relative said. Who wrote it is immaterial. If what that relative said was defamatory, then Murray could go after that relative. But there's no defamation in Oliver playing a clip of Congressional testimony. Again, that's not how it works. There's a lot more in the lawsuit, which you can read below, but it pretty much all falls into the same issues as the parts described above. It's no surprise that, looking over the website of Murray's lawyers, they don't list defamation as a specialty, but tend to focus on personal injury. There's a lot of complaining and theatricality, but very little of substance, and nothing that I can see that comes anywhere close to defamation. And that makes this a pretty clear SLAPP suit, designed to chill the speech not just of Oliver and HBO, but of any other reporters looking to cover Bob Murray and Murray Energy. This is the nature of chilling effects created by SLAPP suits. They try to punish people for actually speaking out and sharing their opinion while scaring off others from doing the same. Once again: this is an example of why we need much stronger anti-SLAPP laws at the state and federal level. Laws that require plaintiffs to pay up for filing bogus SLAPP suits, as a deterrent. And, again, one hopes that now that he's facing such a lawsuit (which, as I've said from personal experience is no fun at all, no matter how sure you are that you're in the right), John Oliver will become as outspoken in favor of anti-SLAPP laws as he's been about other important issues. Permalink | Comments | Email This Story

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Here on Techdirt we've written much about the way Western pharma companies fight for their "right" to charge unaffordable prices for medicines in emerging and developing economies. In particular, they routinely take governments and local generic suppliers to court in an attempt to shore up highly-profitable monopolies on life-saving drugs. But to be fair, it's not only poorer people who are dying as a result of Big Pharma's desire to maximize profits: Western drug companies are equally happy to charge even higher prices in richer countries -- notably in the US. That's old news. But there is a pharmaceutical saga unfolding that manages to combine all the worst aspects of this kind of behavior, and to throw in a few new ones. It concerns something really exciting and important: a vaccine that shows great promise against the devastating Zika virus, which can cause microcephaly, blindness, deafness, and calcification of the brain in children whose mothers were infected during their pregnancy. If effective, such a vaccine could be a tremendous boon not just for developing countries, but for Western ones too, since the Zika virus has already begun to spread in the US, and Europe. The vaccine was developed at the Walter Reed Army Institute for Research, and the Department of the Army funded its development. Great news, you might think: the US public paid for it, so it's only right that it should have low-cost access to it. Moreover, as an act of compassion -- and to burnish its international image -- the US could allow other countries to produce it cheaply too. But an article in The Nation reports that the US Army has other ideas: the Army is planning to grant exclusive rights to this potentially groundbreaking medicine -- along with as much as $173 million in funding from the Department of Health and Human Services -- to the French pharmaceutical corporation Sanofi Pasteur. Sanofi manufactures a number of vaccines, but it's also faced repeated allegations of overcharges and fraud. Should the vaccine prove effective, Sanofi would be free to charge whatever it wants for it in the United States. Ultimately, the vaccine could end up being unaffordable for those most vulnerable to Zika, and for cash-strapped states. The Knowledge Ecology Institute (KEI), led by Jamie Love, made a reasonable suggestion to ensure that those most at need would have access to the drug at a reasonable price. KEI asked that, if Sanofi does get an exclusive deal, it should be obliged to make the vaccine available at an affordable price. The Army said it lacked the ability to enforce price controls, but it would ask those nice people at Sanofi to commit to affordable pricing on a voluntary basis. According to The Nation, those nice people at Sanofi refused. Speaking of nice people at Sanofi, the article notes the following: Sanofi's record also includes a number of controversies related to its pricing practices, from a $190 million fine to settle charges that it defrauded Medicare and other government programs, to a $109 million fine to settle charges that it illegally provided product kickbacks to doctors. In 2014, a whistle-blower alleged the company engaged in another kickback scheme and the destruction of legal evidence. KEI maintains a comprehensive list of Sanofi's fraud fines, including the latest: a $19.9 million settlement, reached this April, for overcharging the Department of Veterans’ Affairs. When there is an entire Web page dedicated to listing Sanofi's problems going back to 2009, you really have to wonder why the US Army is so keen to give the company a monopoly on this promising new treatment. The usual argument for the sky-high prices of drugs is that firms must be rewarded for taking on the financial risk of drug development, otherwise they won't proceed, and the world would be the poorer. Except, of course, in this case that risk was entirely borne by the US public, which paid for the early stage development of the vaccine with their taxes. So Sanofi risked nothing, but now looks likely to reap the benefits by being allowed to price the vaccine out of the reach of the people who most need it. You might think there ought to be a law against this kind of behavior. It turns out that there is: KEI's Jamie Love pointed out that under the Bayh-Dole Act of 1980, it is already illegal to grant exclusive rights to a federally owned invention unless the license holder agrees to make it available at reasonable pricing. But that provision has rarely, if ever, been enforced. Now would be a really great time to start enforcing that law. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Wall Street is finally starting to realize there's a storm brewing on the horizon for the nation's biggest cable companies. Cable stocks took a notable dip this week after MoffettNathanson analyst Craig Moffett downgraded the entire cable sector because of worries surrounding cord cutting and streaming video competition. Moffett, who not that long ago used to mock cord cutters for being irrelevant basement dwellers, has seen the light -- more recently noting that 2016's 1.7% decline in traditional cable TV viewers was the biggest cord cutting acceleration on record. And in a lengthy research note to investors this week, the analyst warned that the cable industry's approach to cord cutting (raising rates and offering horrible customer service while hoping it all works out) simply isn't going to cut it given the competitive threats to come: "Broadband growth will inevitably slow, and it will likely do so at precisely the same time that video growth rates also come under pressure from OTT substitution," Moffett said in his Tuesday-morning note. "And while cable operators have the pricing power to offset these headwinds via their broadband business, we believe it is likely that investors will (appropriately) apply a somewhat lower terminal growth rate assumption to a business that is achieving its growth through pricing rather than unit growth." Wall Street and the cable sector's optimism in the face of a massive sector (r)evolution is running out of oxygen, Moffett insists: "The cable stocks have climbed a wall of worry to get here," Moffett wrote to clients. “But as any mountain climber knows, the higher you go, the thinner the air." It's an interesting position for Moffett to take, given the fact that for years the analyst breathlessly supported broadband usage caps and overage fees as a fail-safe solution to this problem, once going so far as to declare usage caps "the next generation of communications." Arbitrary and utterly unnecessary usage caps are one trick Comcast has been using to hamstring streaming competitors, while raising prices on broadband to counter any potential TV revenue loss. For the moment, Comcast has been cushioned from the cord cutting threat by its growing monopoly over fixed-line broadband service. Companies like AT&T and Verizon have shifted their attentions to media and advertising, and other major telcos like Windstream, Frontier, and CenturyLink lack the courage, money or incentive to upgrade their aging DSL lines at any real scale. So in many markets, customers looking for next-gen broadband speeds only have one option: cable. And when they show up, they're forced to sign up for TV services they may not want. You'd think that a growing broadband monopoly, usage caps, and the government's decision to gut most meaningful oversight of one of the least-competitive sectors in America would have Wall Street stock jocks pretty damn excited. The fact that many of them are still very worried about the cord cutting threat to come -- despite Comcast's immense position of power -- tells you precisely what kind of threat we're looking at. Permalink | Comments | Email This Story

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The history of Wikileaks and its founder Julian Assange is a tortured one, to be sure. Once the darling of the left for exposing important misdeeds by the American government, the site then became a tool for the right in the last Presidential election with the publishing of emails stolen in a hack of the DNC. From there, some have accused Wikileaks of being an arm of Moscow's intelligence efforts, while the America government has made noise about prosecuting the site and Assange under the Espionage Act. Still others support the site for its efforts in exposing the secrets governments wish to keep hidden from the citizens to whom they are beholden. Through it all, Assange and Wikileaks have remained firm in their mission to expose information and secrets that were previously kept from the public. Except, it seems, when that information has to do with Wikileaks itself. According to the makers of a documentary about Wikileaks entitled Risk, on the topic of Wikileaks, Wikileaks is chiefly interested not in open journalism and unvarnished truth, but rather on its own image. And apparently the site is willing to wield legal threats and lawyers in a way that is almost absurdly hypocritical. We are the producers of Risk , a documentary film about Julian Assange and WikiLeaks. We unequivocally defend WikiLeaks’ journalistic right to publish true and newsworthy information...We were disturbed, however, to learn that Julian Assange and WikiLeaks sent cease and desist letters to our distributors demanding they stop the release of Risk: “We therefore demand that you immediately cease the use and distribution of all images of the Named Participants and that you desist from this or any other infringement of the rights of the Named Participants in the future.” From there, the filmmakers go into what lengths they went to work directly with Wikileaks and Assange on the film starting back in 2011. Assange himself provided content to be used in the film and even signed a licensing agreement to use Wikileaks footage for it. Some people involved with Wikileaks requested not to be in the film and the filmmakers complied. People from the site and their lawyers have been shown screenings of the film before every regional release, including as recently as April of this year. There is no claim made thus far that any of the content of the film is false. So, what is the weighty harm over which Wikileaks is firing off C&Ds? Its image and the image of Assange. Since 2016, Assange and his lawyers have repeatedly demanded that we remove scenes from the film in which Assange speaks about the two women who made sexual assault allegations against him in 2010 and Sweden’s investigation which has since been discontinued. WikiLeaks’ comments have consistently been about image management, including: demands to remove scenes from the film where Assange discusses sexual assault allegations against him; requests to remove images of alcohol bottles in the embassy because Ecuador is a Catholic country and it looks bad; requests to include mentions of WikiLeaks in the 2016 U.S. presidential debates; and, requests to add more scenes with attorney Amal Clooney because she makes WikiLeaks look good. The opinion that Assange is an egomaniac has been floating around for some time. With actions like these, there seems to be some evidence of that. But that charge aside, what should be abundantly clear is that the ideals of the site appear to have fallen by the wayside when it comes to a simple documentary that has refused to cinematically stroke Wikileaks to the degree it wishes. That's not a good look for a site that survives on people's belief that it is committed to open and honest information. In fact, this looks to be the sort of thing that the Wikileaks from years gone by would have dug into and exposed. Permalink | Comments | Email This Story

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Facial recognition software is getting to the point where there are some very interesting things that can be done with it in everyday life. That includes really bad ideas like enabling the police to run record checks on everyone who passes in front of their body-worn cameras. But it also means that businesses can start applying the technology in novel ways. Here's what is happening on a trial basis in some German supermarkets and post offices, as reported by Deutsche Welle: There's a camera and a screen set up by the check-out. A visual sensor scans the faces of waiting customers who have looked directly at the camera and detects whether they're male or female and how old they are. Marketing company Echion is running the cameras and screens. The brands that advertise with them have clearly delineated target groups. If the visual sensor detects that enough people who fall into a company's target demographic are looking at the screen, an ad by this company will start playing. Being shown ads that are likely to be more relevant to you is probably no bad thing. But once cameras are in place, it would be natural for shops to start using them for other more complex tasks, like spotting known shoplifters: faces of individuals caught on camera are converted into a biometric template and cross-referenced with a database for a possible match with past shoplifters or known criminals. Some stores in the US give shoplifting suspects the option of allowing themselves to be photographed, rather than arrested. All this had been made possible by the arrival of networked, high-resolution security cameras and rapidly advancing analytical capabilities. That's from a story in the Guardian last year, so it's likely that the technology has moved on considerably since then. It's easy to think of more troubling extensions to the idea of scanning shoppers: for example, linking up to other databases of troublemakers and ne'er-do-wells, or to selfies derived from social networks. As well as obvious privacy issues, explored in the Deutsche Welle report, a more general concern is the normalization this latest application of facial scanning might produce. Once cameras coupled with facial recognition software are routinely installed in everyday settings like supermarkets -- with appropriate warnings -- perhaps we will begin to accept them as the norm, and barely notice their silent spread to other locations and situations. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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The Miami-Dade Police Department has decided to drop its wide-area surveillance plan in the face of public backlash. The MDPD tried to slip it past residents and the county government by claiming the acquisition of a secret spy plane was too important to be done properly. Documents submitted by the commission, first reported by New Times last Thursday, showed that MDPD has already applied for a $500,000 Department of Justice grant to begin testing the program. The department claimed the deadline to apply for the grants had allegedly been too pressing to wait to notify the public, and so County Mayor Carlos Gimenez's office applied for the DOJ money without first getting public approval. A classic case of asking forgiveness rather than permission, coupled with a deliberate attempt to circumvent the part of the process that would have caused the most problems for the MDPD's surveillance plans: the public's comments. Once the document was posted publicly, the backlash began, led by a number of rights groups including the ACLU and the Defending Rights and Dissent Foundation. The surveillance system sought is repurposed Iraq War tech: a high-powered camera system mounted on an airplane that proponents and opponents both describe as a "DVR for real life." Capable of capturing a 32-square-mile area, the cameras don't provide much in terms of close-up detail, but do allow law enforcement agencies to track people's movements over a several hour period, whether in real-time or by replaying recordings. As the Miami New Times reports, the MDPD has offered no justification for this expansion of its surveillance powers. Apparently, the new surveillance tech was supposed to sell itself, what with most of the cost being offset by a $500,000 DOJ grant. Just as disturbing is the fact that so few county lawmakers questioned the acquisition, even after being made aware the MDPD had already applied for the grant without running it by them first. Fortunately, the plan is now dead. The MDPD may still want its eye in the sky, but its top official has decided he won't go against the public's will... for now. [A]fter New Times broke news of the plan two weeks ago, MDPD Director Juan Perez announced in an email to the American Civil Liberties Union today that he's scrapping the program. "There is some good news on the horizon for you," Perez told ACLU Florida Director Howard Simon at 10:20 a.m., according to a copy Simon sent New Times. "I am scrapping the project, but would like to get your opinion on the matter." The ACLU is obviously pleased with this decision, but still hasn't heard from the MDPD director whether this includes trashing its DOJ grant request, or whether this grant money might be still be used to purchase other surveillance gear the public won't know about until it's on the doorstep of approval. The good news is the public's voice was heard, if a little after the fact. The invaluable reporting by the Miami New Times was instrumental in mobilizing opposition, something good journalism has a tendency to do. The real test of the MDPD's new outlook will be when the next opportunity to buy up surveillance gear with federal grants arrives. Hopefully, it will seek out public comment first, rather than only react when the backlash becomes too much to ignore. Permalink | Comments | Email This Story

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With the ubiquity of social media presence in people's daily lives, the past few years has seen the rise of concern over people's privacy of their social media accounts, as well as concern over how content shared on those accounts could be used against the account holder. In America, this commonly breaks mostly into concerns about prospective employers reviewing social media accounts during the hiring process and how government reviews social media accounts for law enforcement purposes. While there are real concerns to be had in both cases, however, it's useful to be reminded that there are places where it is so much worse. Useful in that it's good to be reminded what privacy advocates are fighting to keep us from. Such as death. In Pakistan, the government there has reached the unfortunate milestone of sentencing its first ever person to death over content he put on Facebook. On Saturday, 30-year-old Taimoor Raza became the first person to receive a death sentence in a Pakistan anti-terrorism court for "using derogatory remarks ... in respect of the Holy Prophet" on social media. Amnesty International's Pakistan campaigner, Nadia Rahman, said in a statement the conviction set a "dangerous precedent." "No one one should be hauled before an anti-terrorism court or any other court solely for peacefully exercising their rights to freedom of expression and freedom of thought, conscience, religion or belief online," she said. While the rules and laws of countries vary greatly, it should be an uncontroversial stance to state that no person should be sentenced to death over what amounts to speech and thought. Even those confused into thinking that supporting multiculturalism requires the absence of a moral stance on whether criticism of any particular faith ought to come with any punishment whatsoever must be capable of acknowledging that death sentences ought not be on the table for consideration. But, should someone want to argue that point, it should at least be understood that these kinds of laws pretty much have abuse of the law baked into them. A 2016 report by Amnesty International found the laws are "open to abuse" and anyone who is accused is usually presumed to be guilty, leaving them open to mob retribution. There were 91 blasphemy cases concerning the Prophet or his companions registered between 2011 and 2015, the report said. Specific blasphemy laws which punished perceived insults to Islam were introduced between 1980 and 1986, during a period of martial law under the military government of General Zia-ul-Haq. They were never removed once martial law ended. The genesis of these laws should tell you all you need to know about their virtue, which is to say they have none. It also demonstrates the fear that regimes of this kind have in regards to the sort of wide-ranging communications tool that Facebook represents. This all comes down to controlling thought within the citizenry out of fear of a change in social opinion, which would deprive that regime of the power it wields so perniciously. With that in mind, actions taken by governments of this kind deserve the broadest and harshest condemnation, and damn well ought to weigh on foreign policy as well. Put more simply, if governments, including America's, can't take a stand against death sentences over Facebook posts, it cedes the moral high ground to an astounding degree. Permalink | Comments | Email This Story

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Under the guise of fighting sex trafficking, legislators have been offering up a slew of bills that will make things much worse for plenty of people not involved in this heinous crime. Elizabeth Nolan Brown, who is the go-to expert on all sorts of government abuse done in the name of sex-trafficked children, has tallied up the current stack of legislative paperwork floating around the halls of Congress. Spoiler alert: it's a lot. So far this year, federal lawmakers have introduced more than 30 bills related to "sex trafficking," which many in government now define to mean all prostitution. This week alone brought three new efforts. And following the familiar pattern of the drug war, these measures mostly focus on giving federal law enforcement more "tools" to find, prosecute, and punish people for actions only tangentially, if at all, connected to causing harm. Currently, the forerunner for "worst" is one that makes a mockery of federal wiretap statutes. The laws governing government eavesdropping have been modified over the years with an eye on protecting something even more sacrosanct than someone's home: someone's private conversations. Wiretaps are only supposed to be used for felonies -- dangerous, possibly life-threatening criminal activities. They're supposed to be issued only when law enforcement has exhausted all other options and subjected to strict oversight to prevent their abuse. (Note: what's supposed to happen and what actually happens are two very different things.) What they're not supposed to be used for is small-time stuff -- misdemeanors and other low-level, non-dangerous crimes. But that's exactly what legislators are hoping to do: expand wiretap authority to cover the consensual exchange of money for services. One such measure would expand state and local government authority "to seek wiretap warrants in sexual exploitation and prostitution cases" (emphasis mine) and mandate the Centers for Disease Control and Prevention and National Institute of Justice conduct a "study on the long-term physical and psychological effects of the commercial sex trade." It would also give the Department of Homeland Security a mandate to develop protocols "for implementation across federal, state, and local law enforcement" on how to screen people "suspected of engaging in commercial sex acts" for the possibility that they have been trafficked. The screening process would also be applied to people suspected of working in violation of any labor regulations, including occupational licensing rules. Combine this new authority with government officials' natural tendency to name-and-shame anyone involved with consensual sex work and you've got a whole can of wiretapped worms just waiting to be exploited for maximum public damage. Add to that the underlying assertion that sex work is some sort of illness that must be studied by the CDC and, presumably, "remedied" by even more ridiculous, harmful legislation. And no one really wants to see the DHS getting involved in local vice cases. The DHS has already proven it knows almost nothing about securing the homeland. Asking it to dip into prostitution busts is basically asking for widespread rights violations, especially if this activity takes places in the so-called "Constitution-Free Zone," which covers areas where a large majority of the US population resides. Also included: more federal targeting of customers and a potential to add "hate crime" sentencing enhancements to the crime of buying sex. Brown points out the bill orders the DOJ to view buying sex as a "form of gender-based violence." And there's more, which hardly seems possible. Prostitutes could possibly be legally considered "criminal street gang members" under proposed legislation. And some bills would allow the government to start seizing personal property if fines are not paid. The named target is sex trafficking and the supposed beneficiaries would be children, who are kidnapped and exploited all the damn time according to stats made up out of thin air. But the real targets will be the oldest profession, which includes plenty of un-exploited sex workers voluntarily providing services to paying customers. But the end result will be a spectacular amount of collateral damage -- and that's not just limited to customers having their conversations intercepted or being hit with hate crime enhancements. The proposed legislation would also wreak havoc on the internet. Grassley's bill cobbles together a host of changes that give federal prosecuting agencies more power. Among other things, it would create a federal mandate to fight "sextortion" (without defining what this means); ask the quasi-governmental National Center for Missing and Exploited to assist the government in identifying "misleading domain names" and "misleading words or digital images on the Internet"; and more than quadruple annual appropriations for grants related to these activities. Starting with this premise, those caught up in these supposed anti-sex trafficking efforts will find themselves in the position of proving a negative. If the government decides you're looking for child porn or exploited children (or offering either of these) but can't find images or terminology affirming this hunch, it can still go after you for being "misleading." These bills may namecheck sex trafficking and carry the veneer of honest law enforcement work, but underneath every one of them lies the Puritanical notion that buying and selling sex is immoral and must be punished not by God, but by the government itself. Permalink | Comments | Email This Story

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Editor's Note from Mike Masnick: Tim alerted me that he was writing on this subject, based on the article he found in the Deseret News, and I realized that we separately needed to reveal some stuff that happened earlier this year in relation to Tim's earlier reporting on this story. As Tim mentions in the story below, he first wrote about this case in 2014 (again, based on an article he found in the Deseret News) and then mentioned it obliquely in 2015 when discussing another lawsuit, and until now, had not written about it again. Back in February, one evening, I received a knock on my front door at home, with a process server handing me a subpoena. I was... confused. The subpoena was from a lawyer, Michelle Herrera, of the very large law firm Pillsbury Winthrop Shaw Pittman, on behalf of San Diego Comic Con. I was still confused. The subpoena demanded all sorts of information from us, including any "business relationship" we might have with the people who ran the Salt Lake City Comic Con (including whether or not they held any ownership stake in our company), any communications we had ever had with the organizers of Salt Lake City Comic Con and... incredibly... "all documents concerning SDCC or any SDCC Convention." Yes, because three years ago we had written a story -- clearly based on coverage in the Deseret News -- San Diego Comic Con was demanding that we cough up every document we have that even mentions San Diego Comic Con, while similarly implying that merely having written about a legal dispute (something we do all the damn time), it meant that we were somehow in cahoots with the folks who run Salt Lake City Comic Con -- people neither Tim nor I (nor anyone else working here) have ever spoken to in any context for any reason. Such a request, beyond being overbroad and completely misguided, is also a nuisance and a burden. At best, it appeared to be a wild and unnecessary fishing expedition. At worst, it could certainly be seen as an attempt to stifle reporting that was critical of San Diego Comic Con's litigation strategy. It also wasted our time and resources, while at least creating something of a chilling effect in making us think twice about whether it was even worth it to publish the article below, because who knows if it will lead to another knock on my door, and more time having to talk with lawyers and whatnot. Either way, soon after receiving the subpoena, lawyer Ken "Popehat" White, filed our response, noting that we had no responsive documents for most of it, but also objecting to the overly broad nature of the request. The key part: With respect to request 7, seeking “All documents concerning SDCC or any SDCC convention,” Witness responds that the request is overbroad, burdensome, harassing, not reasonably calculated to lead to production of admissible evidence, and seeks documents equally available to Plaintiff. Witness operates a popular blog, Techdirt.com, that has covered legal issues surrounding technology and internet culture since 1997. Plaintiff has served this subpoena because Witness has published two posts critical of Plaintiff’s case. The public posts Witness has published about SDCC or mentioning SDCC are equally available to Plaintiff at https://www.techdirt.com/blog/?tag=comic+con or https://www.techdirt.com/search-g.php?q=comicon. It would be extremely burdensome and expensive for Witness to review 20 years of records of reporting to determine if it has any document mentioning SDCC or any SDCC convention, whether or not those documents have any relationship to this case. Moreover, Plaintiff’s motive to seek such a wide range of documents unrelated to this case is clearly to harass and retaliate against Witness for critical coverage of Plaintiff’s case. Moreover, Witness objects pursuant to California Evidence Code § 1070 that the subpoena seeks unpublished information from a publisher. O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006) [Section 1070 protects online news magazine]. Witness stands on its objections and will not produce documents in response to this request. We filed that in response and never heard another peep from San Diego Comic Con. But, Tim found this latest bit of news and wished to report on it, and we felt it necessary to waste even more time putting together this bit of disclosure about SDCC's subpoena to us. No wonder the damn case is still going. Anyway... on to Tim's post: Nearly three years ago, we wrote about a rather silly trademark dispute between the folks that run the San Diego Comic-Con and Don Farr Productions, organizers of the Salt Lake City Comic Con. The SDCC has a registered trademark for "comic-con" and suggested that iterations such as "comic con" infringed on that trademark. We pointed out at the time that there are all kinds of comic conventions using similar or identical terms, and many had done so for many years, resulting in the term "comic con" being rendered generic. Add to that the low likelihood that anyone would actually be confused into thinking these other conventions were the product of the SDCC and this whole episode seemed head-scratchingly silly. Except it isn't silly for those targeted by these kinds of bullying trademark lawsuits. Despite the SDCC filing its suit in the summer of 2014, I want to take a moment to point out that this legal dispute is still going on and has finally reached the deposition phase. Co-founders Dan Farr and Bryan Brandenburg will each face a full day of deposition Tuesday and Wednesday, leading up to a final settlement conference before a federal judge in San Diego on Thursday. Following that conference, the judge will decide whether the case will continue to advance toward a trial scheduled in October. While the organizers staunchly maintain they are in the right, Brandenburg says that after investing approximately $1 million in their defense, they are ready to focus exclusively on their event. "I would just as soon use those creative juices to really level up (the event)," Brandenburg said. "I think we've done a great job putting on great events over the past two years in spite of this thing going on, but you know, just imagine what we could do if it wasn't." This is the largely unheralded toll that is paid when these kinds of trademark disputes arise. Sure, there is the cost of legal fees to consider, and the annoyance of having to defend themselves in court as well. But there is a cost to the public as well, paid in terms of a lack of production that would otherwise exist by the accused. When individuals or companies that are not truly infringing upon a trademark get caught up in this sort of legal web, their customers suffer along with them. What's truly irritating about all of this is how the SDCC appears to have decided to enforce this trademark at the flip of a switch, having spent years failing to do so. The Salt Lake City folks, meanwhile, remain rather sweet in their disposition by comparison. Brandenburg emphasized that despite the prolonged litigation, he and Farr hold no ill will toward San Diego Comic-Con but continue to admire the iconic event. He speculated that the lawsuit represents a kind of "Custer's last stand" for San Diego Comic-Con, which has dabbled for years in taking action about other events using the name "comic con," ultimately latching onto the Salt Lake event after Brandenburg and Farr drove their branded Audi to the competing event in July 2014. In the lawsuit, the San Diego convention claims legal ownership over the term "comic con" in its various forms, though similar events around the country — including the recently renamed "Stan Lee's Los Angeles Comic Con" — have used the name for years. The San Diego Comic-Con remains a wildly successful event. By all accounts, it is one hell of a show, one that I personally have wanted to visit for some time. It reached that level of success despite years of other conventions using some form of the "comic con" term. What harm it may have suffered that would warrant three years worth of litigation, and all of the legal costs associated with that litigation, is absolutely beyond me. Permalink | Comments | Email This Story

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We've covered a lot of ridiculous defamation lawsuits here at Techdirt. A ton. MANY. We like covering them so much we bought the company. But this defamation lawsuit passed on to us by Adam Steinbaugh is just baffling. Even more baffling, it's been filed with professional representation. Its attempt to fashion a libel lawsuit out of nothing bears far more resemblance to those filed by plaintiffs with fools for lawyers. In March of last year, Jim Myers of the The Tennessean wrote an article about some staff changes at a local university's culinary arts program. If this seems like extraordinarily innocuous subject matter, you're obviously not former director Tom Loftis or his legal representation. Loftis has formally shouted "defamation" in a crowded courthouse. But his accusations aren't levied against Myers or The Tennessean, but rather against someone featured in the article: new culinary arts director Randy Rayburn. His complaint [PDF] tries to turn Rayburn into the libelous villain by attributing things Myers wrote about Loftis and Rayburn into direct quotes by Rayburn. On March 2, 2016, The Tennessean published an article, which is attached hereto as Exhibit A and incorporated herein by reference, under the byline of Jim Myers. The words in the article were spoken by Randy Rayburn and published by Mr. Myers in The Tennessean. This opening assertion is then immediately proven false by Loftis' next allegations. (Emphasis mine.) "It starts and ends on the cooking line," wrote Mr. Myers, "regardless of the talent of the chef or the quality of the wait staff." The article promoted an event called "Tennessee Flavors," purportedly the product of the Defendant, Randy Rayburn, as a benefit for the culinary arts program of Nashville State Community College. Myers claimed to have written before about "the dearth of qualified line cooks in town, from our best restaurants to the hotels and convention centers ...." Rayburn, according to Myers, "recognized this need every day in his kitchens at the old Sunset Grill, Midtown Cafe, and Cabana, so he decided to do something about it by dedicating himself to helping build a Culinary Arts program at what used to be called Nashville Tech." These words of self-aggrandizement portray Rayburn as the savior of culinary arts from the incompetence of Plaintiff. The school had chosen to name its new facility at the former Hickory Hollow Mali in Antioch, "The Randy Rayburn School of Culinary Arts." Reputation isn't zero-sum. Self-aggrandizement isn't defamation, even if it makes someone else look worse by comparison. And we still have yet to see any direct quotes from Rayburn -- only the columnist's impression of Rayburn and his activities. Myers quoted Rayburn as willing to tell you "it hasn't been easy." When he sought the help of local restaurateurs and chefs to offer feedback on the program and the quality of his graduates, he was quoted, "the reports he got back weren't flattering. The program was simply turning out unqualified students." Rayburn, "with his name on the building" chose to apply his experience in "how to cut losses and move on quickly," and "decided to get more involved." Myers then wrote: "they started by cleaning house from the top by removing director Tom Loftis. It was a politically inexpedient move last year since Loftis was the brother-in-law of Bill Freeman who was running for Mayor at the time. If the election had gone a different way, it might have affected funding for the school." And we still have yet to see Rayburn quote with anything more damning in it than his assessment of returned assessments. But Loftis isn't going to let facts stand in the way of a $1.5 million defamation suit. These boastful and unseemly comments were reckless and made with a conscience [sic] indifference to the truth. No specific deficiencies were described nor was it revealed in this article whether any of the individuals about whom complaints were made had even attended the school much less graduated from it. No effort was made to determine whether these deficiencies were a function of a failure of instruction rather than an inadequacy of the individual. Among the chefs mentioned in the article were individuals who, to the knowledge of the Plaintiff, had never employed a graduate of the school. And on and on it goes. Normally, a stupid defamation lawsuit is filed against the biggest target, be it Google or Yelp, etc., rather than the person actually engaging in alleged libel. This suit goes for the smaller target -- Randy Rayburn -- either out of spite (because Rayburn replaced Loftis and had a building named after him and appears to be better liked by local writers, etc.) or because Loftis thinks Rayburn will put up less of a fight than The Tennessean. The motion to dismiss [PDF], filed by Rayburn's lawyer, Daniel Horwitz, does a thorough job explaining why this should be laughed out of court. It points out that Rayburn is never directly quoted -- at least not saying anything remotely defamatory -- and that the lawsuit states repeatedly that the words Loftis is bothered by were written by Myers and published by The Tennessean, neither of which are party to this lawsuit. The problem here is Rayburn has to defend himself against these completely baseless allegations or get hit with an expensive default judgment. The best case scenario is the lawsuit being tossed as soon as a judge reviews the motion to dismiss. Unfortunately, this state has no anti-SLAPP law, so it will be extremely difficult to hold Loftis financially culpable for Rayburn's legal fees. Hurt feelings often result in bogus lawsuits, but this one appears to be almost entirely motivated by the fact the plaintiff's successor at the university appears to be both better-liked and better at the job. Permalink | Comments | Email This Story

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Some enterprising Colorado residents have turned a small tech panic into a stupid ballot measure. (via Free Range Kids) Dr. Timothy J. Farnum apparently doesn't like the way his teenaged kids act. He blames this on smartphones. "They would get the phone and lock themselves in their room and change who they were," he said. With one of his sons, then 12, he thought the problem became bad enough to warrant taking the phone away. "(With smartphones), the internet is always begging for your attention," he said. "The apps are all designed to addict you. ... For children, it's not a good thing." Because parenting is hard, Farnum has decided to see if the state can't pick up his parenting slack. He has introduced a ballot measure that would ban retailers from selling phones to preteens, even indirectly. If this anesthesiologist can find 300,000 like-minded idiots willing to follow him into legislative infamy, his proposal could possibly become law. To drum up support for his idea, Farnum has cobbled together a website that probably looks terrible on mobile devices. It certainly looks awful on the regular web. And it's full of terribleness -- half-arguments and citation-less assertions, not exactly the sort of thing you'd expect from a board of directors composed of people with medical degrees. Here's just a few of the convincing arguments Farnum deploys: Years from now parents will look back on our time and shake their heads and wonder how we allowed this atrocity. Allowing our children to be robbed of their carefree days of wonder, laughter, and normal natural development. Yes, they will wonder, didn't they see it?, didn't they see their children stop achieving, stop playing, stop laughing, ceasing to be free? Instead, isolating themselves in their rooms choosing soft and cushy electronic lives over their real ones. Didn't they see the damage? Or: Currently, parents are supposed to do everything, and the manufacturers, content and service providers, basically everyone in the whole industry gets a free pass. Parents are somehow supposed to be up to date on the current recommendations on usage from experts, and enforce these recommendations, plus guard their children everywhere they go. This is not only unfair, it is altogether impossible given the saturation of our children's environment. Or: The wild west free for all that we have now has left parents with little clear direction, and has caused incalculable damage to children. The American Academy of Pediatricians came out in 2000 with their recommendations, reaffirmed them in 2012, and yet parents are unaware, and children continue to be harmed. FINALLY. A citation to something other than Farnum's gut instinct, or how the world should change to better accommodate his strained relationship with his sullen, withdrawn children. Something written by someone other than an anesthesiologist. Or not. There's no link to these recommendations or direct quotes from any AAP report. It's as if Farnum believes you can just type something on the internet and readers are obligated to believe it. The AAP certainly doesn't suggest legislation should take the place of parenting, no matter how Farnum skews it. The AAP recommends that parents and caregivers develop a family media plan that takes into account the health, education and entertainment needs of each child as well as the whole family. “Families should proactively think about their children’s media use and talk with children about it, because too much media use can mean that children don’t have enough time during the day to play, study, talk, or sleep,” said Jenny Radesky, MD, FAAP, lead author of the policy statement, “Media and Young Minds,” which focuses on infants, toddlers and pre-school children. “What’s most important is that parents be their child’s ‘media mentor.’ That means teaching them how to use it as a tool to create, connect and learn.” What a revolutionary idea: parents engaging in the act of parenting! But if that's not for you, there's Farnum's ballot measure [PDF], which is prefaced with phrasing guaranteeing it will never be taken seriously. WE THE PARENTS AND CONCERNED CITIZENS OF THIS MOST MAGNIFICENT STATE THROUGH FIRST HAND EXPERIENCE AND MOUNTING SCIENTIFIC DATA HAVE COME TO BELIEVE THAT SMARTPHONES ARE ADDICTIVE, HARMFUL, AND DANGEROUS IN THE HANDS OF CHILDREN. THE MANUFACTURES AND SERVICE PROVIDERS OF SMARTPHONES HAVE CONTINUED UNABATED TO PROMOTE THEIR USE IN A RECKLESS AND WANTON MANNER, WITH NO CONCERN FOR OUR CHILDREN'S HEALTH OR SAFETY. OUR GOVERNMENT BODIES ON ALL LEVELS HAVE FAILED TO GRASP THE LEVEL OF ADDICTION, THE SEVERITY OF THE HARM, OR THE UNMENTIONABLE STARK DEPRAVITY OF THE DANGERS. WE AS PARENTS FIND THIS MATTER TO BE SO WIDESPREAD, SO INSIDIOUS AND OF THE VERY HIGHEST PRIORITY. NO HALF MEASURES, INEFFECTUAL EDUCATION CAMPAIGNS, NEW APPLICATIONS, OR PROMISES FROM MEGA-CORPORATIONS OF IMPROVEMENT WILL SUFFICE TO CAUSE THE GREAT CHANGE NECESSARY TO RESCUE THIS AND GENERATIONS OF CHILDREN TO COME FROM THE CARELESS AND EXPERIMENTAL INTRODUCTION OF SIMILAR TECHNOLOGIC[AL] DEVICES AND ADVANCEMENTS BY PROFIT DRIVEN CORPORATIONS. It's pretty much a conspiracy theorist's message board post, only with some nonsensical legislation attached. The proposal would require retailers to ask customers if they're buying phones for preteens and, apparently, refuse the sale if the answer is "yes." Retailers are also required to put up signage informing customers of the new state-enforced policy and train employees to dig into the details of customers' purchases. Then they'll have to turn this information over to the state. (4) RETAILER SHALL VERBALLY INQUIRE ABOUT THE AGE OF INTENDED PRIMARY OWNER PRIOR TO COMPLETING THE SALE OF ANY SMARTPHONE. (5) RETAILER MUST DOCUMENT THE RESPONSE OF PURCHASER AND KEEP A RECORD OF THIS RESPONSE. (6) RETAILER MUST FILE A MONTHLY REPORT TO THE DEPARTMENT THAT PROVIDES A LISTING OF: (a) THE TYPE OF PHONE THAT WAS PURCHASED EITHER SMARTPHONE OR CELLULAR (b) THE AGE OF THE INTENDED PRIMARY OWNER AT TIME OF PURCHASE This is a really disturbing addition, as it places smartphone sellers under a more pervasive form of regulation than sellers of other age-controlled items like alcohol, cigarettes, and porn. And it makes no sense at all to maintain these records, as the proposal contains no avenue of state recourse against parents who lie to retailers about the cellphone recipient's age. Retailers who violate the law face steadily-increasing fines, starting at $500 and topping out at $20,000. Retailers are given an "affirmative defense" to use when accused of violating the law, but can only use this defense twice in a 24-month period. And it's not really an affirmative defense. It's really nothing more than a statement of compliance with mandated sales policy changes that can be used to shield the retailer from fines if it's determined to have violated the law. Finally, to cap off the nonsense this is, Farnum's own site presents this contradictory argument: It absolutely is a parents right to choose how to raise their child. But it is also our American parents right to form an alliance together and try to make manufacturers and service providers accountable for the mess they have created. It is a parent's right to choose. Here's some legislation taking that choice away! And some sort of plan to collect reparations from local retailers for the evils perpetrated on society by manufacturers. Somehow this proposal managed to survive the scrutiny of state ballot officials, which doesn't say much for their judgment skills. Permalink | Comments | Email This Story

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Back when Verizon first began expressing interest in pivoting from broadband duopolist to media and advertising, you might recall that it launched a short-lived technology blog named Sugarstring. Sugarstring quickly made headlines for all the wrong reasons however, after it was revealed that Verizon was banning any new hires from writing about hot-button subjects like net neutrality, or the fact that companies like Verizon and AT&T are now bone-grafted to the nation's intelligence and surveillance apparatus. Sugarstring is long-since dead, replaced in large part by Verizon's acquisitions of Yahoo and AOL, which also brought Huffpo, Engadget, and Techcrunch under the Verizon umbrella. And while Verizon itself has been busy using fake reporters to blatantly lie about the company's ongoing role in killing net neutrality, there's no indication (yet) that the company has pressured any of its own news outlets to quiet down on the subject. In fact, we've noted previously that some of the best reporting on net neutrality in recent months has originated at TechCrunch (this piece in particular is worth a read). But while Verizon hasn't yet tried to get its own news outlets to quiet down on net neutrality, other now-Verizon-owned companies that used to be very active on the subject have gone dead quiet. Case in point: Tumblr, which was an integral ally in the SOPA/PIPA fight and an outspoken protector of net neutrality, is now utterly radio silent as FCC boss Ajit Pai attempts to kill the popular consumer protections. Insiders at the company this week expressed their concern to the Verge that Verizon is pressuring CEO David Karp to keep his mouth shut on the subject: "Now, multiple sources tell The Verge that employees are concerned that Karp has been discouraged from speaking publicly on the issue, and one engineer conveyed that Karp told a group of engineers and engineering directors as much in a weekly meeting that took place shortly after SXSW. “Karp has talked about the net neutrality stuff internally, but won’t commit to supporting it externally anymore,” the engineer said. “[He] assures [us] that he is gonna keep trying to fight for the ability to fight for it publicly.” Karp did not respond to four emails asking for comment, and neither Yahoo nor Tumblr would speak about the matter on the record." Granted Karp may just have toned down the company's rhetoric voluntarily to avoid ruffling feathers during the transition. And obviously any time a smaller company gets acquired by a larger conglomerate (especially from the historically droll and stodgy telecom sector) you'll see a major culture shift that often isn't for the better. Still, Verizon's positions on subjects like net neutrality are so hostile, Tumblr employees have grown increasingly uneasy in recent weeks, which could lead to an exodus of talent at the company: “Some of our previous stances on issues that are really important to Tumblr employees and its community are being silenced,” said the former employee. “We've been really noisy about things like net neutrality in the past. We asked the new Head, Simon Khalaf, about it in an all-hands a few weeks ago and he said it was ‘not his problem’ and ‘above his pay grade.’” A current employee and another former employee corroborated this account." It's unfortunate to have lost Tumblr's voice in the net neutrality fight, especially given that other industry giants like Google and Netflix have similarly gone mute on the subject, leaving consumers and small businesses increasingly alone in fighting for something vaguely resembling an open and healthy internet. And while you'd like to think Verizon is above trampling the editorial independence of former AOL and Yahoo news outlets, Verizon's Sugarstring experiment should make it pretty clear that ham-fisted attempts at censorship aren't exactly out of character for the telco. For now, however, Verizon appears content to try and use entirely fake journalists like "Jeremy" to spread misinformation on net neutrality, as evident by this recent, comically misleading video by the company: Permalink | Comments | Email This Story

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This one is clearly no surprise at all, given that -- as we wrote about just a couple days ago -- Bob Murray and his company Murray Energy were threatening John Oliver with a SLAPP suit if Oliver's satirical report about the coal industry was used to "defame, harass, or otherwise injure Mr. Murray or Murray Energy." Of course, Oliver's report did no such thing... but, alas, Murray has now sued Oliver, HBO, Time Warner... and the writers of the story. The lawsuit was filed in West Virginia state court. In my original post, I suggested it might be filed in Ohio, where Murray Energy is headquartered, but it does also have operations in West Virginia as well. Either way, as with Ohio, West Virginia is a state with no anti-SLAPP law. Unfortunately, I don't have the full lawsuit. The Daily Beast, which first wrote about the case has chosen -- for whatever reason -- not to post the document, which is pretty lame. However, having watched the John Oliver piece multiple times, I can't see how any of it comes anywhere even remotely near defamatory. It falls into a variety of clearly protected categories, including opinion, satire and rhetorical hyperbole. The idea that there were materially false and defamatory statements that were put forth knowing they were false (or with reckless disregard for the truth) is laughable. There is no way that this lawsuit succeeds -- but, as we've been pointing out -- that's not really the point of most of these kinds of lawsuits. SLAPP lawsuits are designed to create a chill on free speech, by making that speech costly. Obviously, HBO/Time Warner can afford this, and have access to great lawyers, so there's almost no chance that Murray wins the lawsuit, but that's not the point. It will still cost money and lots of time to deal with the lawsuit and that's a hassle. Murray Energy put out a bizarre statement that does little to support the idea that Murray has an actual case here: The false and defamatory statements in this broadcast severely and destructively impact Mr. Murray, and all of Murray Energy, particularly our Mines in the State of West Virginia, where we are the largest coal mining employer in the State, as well as coal mining itself, one of the primary foundations of that State's economy. Murray Energy filed this lawsuit, in part, in order to protect these lives and family livelihoods from the further damage by people who do not want to see coal mined, and want all of those lives destroyed, and will stop at nothing, including lying and fabrications, to accomplish their goal. This is... laughable if you actually watched the Oliver segment, which is clearly standing up for the workers in these mines, but pointing out how the interests of the bosses -- such as Bob Murray -- are often different than the workers, and highlights a few examples of employees of Murray Energy not appreciating the way Bob Murray ran the company and treated the employees. Similarly, disparaging coal mining itself (which the Oliver report really doesn't even do) is not, in any way, defamatory. The Daily Beast -- while not posting the complaint -- did get Ken "Popehat" White's opinion on it: “Overall I’d say it appears frivolous and vexatious,” he said. “Any core of merit is buried in nonsense.” “It does arguably cite one or two statements (like the bit about earthquakes) that could possibly be defamatory, since they involve fact,” he said. “But for the most part the section describing the purportedly false statements is rambling and semi-coherent, mixing fact with opinion and insult.” As White notes, the defendants will likely get the case removed to federal court, which should be fairly easy, as there's diversity with most or all of the defendants being in New York, not West Virginia. Of course, it also depends which federal court they remove the case to -- but in some sense, it won't matter at all for anti-SLAPP purposes, since New York (the most likely other destination) has a very weak anti-SLAPP law and it would be tough to apply it here. So, once again, we can only hope that out of this stupid situation, John Oliver will now become a proponent of much stronger anti-SLAPP laws. If his staff is looking into that issue, I'd be happy to point them to lots and lots of useful experts and resources on anti-SLAPP laws. It's a big issue (that we're living through ourselves) that needs more attention -- the kind of attention that John Oliver is now uniquely positioned to help bring to it. Permalink | Comments | Email This Story

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Remember CETA, the "Comprehensive Economic and Trade Agreement" between the EU and Canada? After years of on-off moments, including one last burst of uncertainty in March of this year, it finally seemed that everything had been settled, and that the deal would soon come into force. But it turns out that there is another, hitherto-unsuspected problem -- cheese: Canada's CBC reported on its website that plans to have CETA (the Comprehensive Economic Trade Agreement) in place on 1 July were "threatened by a new cheese dispute". It said Europeans were upset at how Canada would allocate import quotas for new EU products, including 18,000 additional tonnes of cheese that Canada has agreed to import tariff-free. Euractiv has all the details of the problem, which turns out to be bickering over how EU cheese producers will share that new tariff-free allowance. That's just last-minute haggling, and presumably will be solved with some appropriate sticks and carrots on both sides of the Atlantic. But an earlier report on the same site indicates there are deeper issues with CETA that remain unresolved: In France, 110 MPs have demanded the opinion of the Constitutional Council on the legality of CETA. A ruling is due this summer. And Belgium, whose calls for additional guarantees had led to a confrontation with Brussels, has promised to take its concerns to the Court of Justice of the European Union in the coming weeks. Most recently, it is France's new President Emmanuel Macron who has put the issue back on the negotiating table, promising in the last days of his presidential campaign to set up an expert committee to examine the CETA agreement before ratification. The last one of these is particularly problematic. Macron has adopted a surprisingly muscular style in his first few days as French President, most famously in his handshake with Donald Trump, and won't want to be seen backing down from his promise to seek expert scrutiny of CETA before ratification. Looks like there's life in that cheesy CETA saga yet. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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The Orange County (CA) District Attorney's office remains in the news. It's not often an entire prosecutors' office gets booted off a high-profile murder case, but that's what happens when misconduct occurs on a massive scale. An open-and-shut murder case with eight victims is now the DA's perpetual nightmare. Judge Thomas Goethals kicked the agency to the curb after uncovering repeated discovery violations committed by prosecutors. But the problems go back further than this case. The office has hidden the existence of a law enforcement database from defense lawyers (and judges) for a quarter century -- a database holding all sorts of information about jailhouse snitches that may have made the difference in a number of cases. A quarter-century of obfuscation followed by outright lying on the stand by prosecution witnesses is something you'd think would be addressed by a swift housecleaning. You'd be wrong. So far, there have been no announcements from the DA about pending investigations -- either into its own misconduct, or the repeated abuses of the jail's snitch program run by the local sheriff's office. Add to that yet another revelation from the current criminal case: the sheriff's office shredded documents ahead of an announced investigation by the DOJ. Sheriff's deputies doctored and shredded records after the announced launch of a U.S. Department of Justice (DOJ) probe eight years ago into suspected police corruption, according to the latest courthouse bombshell filed March 30 in what is known nationally as the Orange County Jailhouse Informant Scandal. Revealed in a brief filed by Scott Sanders, the assistant public defender in People v. Scott Dekraai, a pending death penalty case marred by astonishing law enforcement misconduct, Deputy Michael Carrillo wrote an entry never intended for public consumption: "ADUJSTED (sic) THE DISCIPLINARY ISOLATION LOGS FOR THE DOJ TO MATCH THE LOGS FOR AD-SEG AND PC LOGS, PER SGT JOHNSON." Those in charge of the sheriff's snitch program have been asked to testify in response to perjury allegations. They have chosen not to, with each sheriff's office witness called pleading the Fifth. This chain of events has led to the most jaw-dropping law enforcement statement I have ever read, and that includes arguments made in support of setting toddlers on fire with carelessly-tossed flashbang grenades. Sheriff Sandra Hutchens claims the veteran officers were unaware they were required to testify honestly during prior court appearances for the death penalty case marred by astonishing degrees of government cheating. Officers, especially veteran ones, are aware they are required to testify honestly. This is why they're sworn in before testimony. There's a promise made at that point. Not testifying honestly is called "perjury," as the officers are surely aware. High school students taking civics classes are aware of this. No one's really unclear on the whole "tell the truth in court" thing. This is R. Scott Moxley's paraphrasing of what was actually asserted by the sheriff. The paraphrasing strips the original quote of its defensive obfuscation, but the real quote is no less damning, if not as direct. (Original quote obtained from Moxley.) [T]he OC sheriff was asked why a veteran deputy had lied about the existence of incriminating agency TRED records after swearing in open court he would tell the "whole truth" and she replied, "I believe he was unclear about what he could or couldn't say about that system." I'm not sure what the deputy thought was unclear, other than it seemed wiser for him to lie to the court than reveal the database the sheriff's office had kept hidden from defendants for years. If there was a question about what could be said in open court, the sheriff's witnesses could have asked to discuss the specifics in camera and allow the judge to decided whether it could be discussed publicly. Denying the existence of records that exist is still perjury, no matter how the sheriff wants to spin it. Hutchens and every "veteran officer" she's referring to should be fired immediately. Anyone who honestly believes testifying in court is subject to discretion calls by the sheriff's office about what can and can't be discussed needs to replaced with those who understands and respects the oaths they take. If they're actually stupid enough to believe being a law enforcement officer makes truth-telling under oath optional, they should be forced to tattoo "THIS END UP" on their foreheads to prevent them from making unfortunate decisions about which method of bipedal ambulation works most efficiently and have "DON'T LIE IN COURT" notes safety-pinned to their chests if they're going to be within 1000 feet of any US courthouse. Permalink | Comments | Email This Story

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While Congress is still doing its thing to try to make the US healthcare system an even bigger laughingstock around the world, the White House is apparently considering an executive order targeting high drug prices. Of course, it handed this power over to Joe Grogan, a (very recent) former lobbyist for a giant pharma company, Gilead, that has been at the center of some controversy over its highly priced drugs. Grogan is apparently leading this effort despite not having an ethics waiver, which means he's supposed to recuse himself from these discussions, rather than lead them. But, you know, that's not happening in the swampy, swampy waters of Washington DC. So just what would Grogan suggest as a way to lower drug prices? How about extending pharmaceutical patents? Yes. Extending. The documents reveal behind-the-scenes discussions influenced by the pharmaceutical industry. Joe Grogan, associate director of health programs for the Office of Management and Budget (OMB), has led the group. Until March, Grogan served as a lobbyist for Gilead Sciences, the pharmaceutical company that priced its hepatitis C drugs at $1,000 per pill. To solve the crisis of high drug prices, the group discussed strengthening the monopoly rights of pharmaceuticals overseas, ending discounts for low-income hospitals and accelerating drug approvals by the Food and Drug Administration. The White House declined to comment on the working group. In what world does anyone with even the slightest economic knowledge think that extending/expanding monopoly powers would bring prices down rather than up? Want to know one of the reasons why drugs are so crazy expensive right now? It's because those monopoly rights have already gone way too far. If you want lower prices, you want competition in the market, not monopoly suppliers who know they're dealing with major health issues -- and the willingness of insurance companies to pay through the nose. You can criticize all sorts of things about the way healthcare is handled in this country, or how drug prices are determined. But, it's impossible to see how anyone with a straight face could possibly claim that increasing patent rights would lead to lower prices. Of course, the argument here is effectively that by making patent powers greater overseas, the big pharma companies can milk foreigners for higher drug prices... which would make it easier for them to drop drug prices at home. Here are the details from the report: Extending the patent life of drugs in foreign markets to “provide for protection and enforcement of intellectual property rights.” This will ensure “that American consumers do not unfairly subsidize research and development for people throughout the globe.” Except, raise your hand if you think that drug companies would voluntarily lower drug prices in the US, just because they can now also price gouge sick people in other countries? Yeah, didn't think so. If you want to lower drug prices, the way to do it is to cut back the monopoly powers of Big Pharma so that they're actually forced to compete more. This isn't a theoretical or academic claim. Just look at the price of drugs after one goes off patent. They immediately drop. Want cheaper drugs? Ditch the patents and watch the market do its thing. Permalink | Comments | Email This Story

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James Comey may have been unceremoniously dumped by the Commander-in-Chief, but his device encryption legacy lives on. The Justice Department is requesting more than $20 million in federal funding to bankroll efforts related to resolving the government’s continuing “Going Dark” problem, Deputy Attorney General Rod Rosenstein said Tuesday, signaling one of the Trump administration’s first attempts at tackling the issue of ubiquitous, hard-to-crack encryption amid growing concerns involving its impact on criminal investigations. The request came during Rosenstein's testimony before the Appropriations Committee -- the place where all government officials perform their most sincere acts of begging. Not that the FBI was likely to be faced with budget cuts -- not with a "law and order" president running the country and overseen by an Attorney General who appears to believe we're currently engulfed in a massive drug-and-immigrant crimewave. Here's Rosenstein's full "going dark" budget request: Department of Justice must continue to take a leading role in enhancing the capabilities of the law enforcement and national security communities. This budget request will provide $21.6 million in funding to counter the “Going Dark” threat. The seriousness of this threat cannot be overstated. “Going Dark” refers to law enforcement’s increasing inability to lawfully access, collect, and intercept real-time communications and stored data, even with a warrant, due to fundamental shifts in communications services and technologies. This phenomenon is severely impairing our ability to conduct investigations and bring criminals to justice. The FBI will use this funding to develop and acquire tools for electronic device analysis, cryptanalytic capability, and forensic tools. The Department’s role has been to collect, house, analyze, and share critical data among our federal, state, local, and tribal partners. Beg to differ, but the "seriousness of this threat" can be overstated. Comey did so on multiple occasions. Sometimes others -- mainly Manhattan DA Cyrus Vance -- followed suit. Both claimed to have a large number of phones in their possession that couldn't be cracked. Even if the underlying assumption that all of these phones contained valuable evidence directly related to investigations, one still had to wonder how hard investigators were trying to get into these phones. Or how many other options they'd explored before throwing their hands up in frustration and resigning the devices to a dismal future as press conference props. Take, for instance, this quote from the Washington Times article: Days before leaving office on May 9, Mr. Comey said federal investigators had legally seized more than 6,000 smartphones and electronic devices during a recent six-month span but found that 46 percent couldn’t be opened “with any technique.” This stat is almost completely unbelievable. Documents obtained from local law enforcement agencies with much smaller budgets show investigators are finding multiple ways to obtain data and communications from locked phones. We're also not hearing these sentiments echoed by law enforcement officials at the local level. If it's this much of a problem for the FBI -- nearly half of all devices seized -- one would think smaller agencies would be seeing a much higher access failure rate, followed directly by public complaints about device encryption. But we're just not seeing that. Hopefully whatever's handed to the FBI to solve its apparently singular "going dark" program is put to use wisely. But nothing about the "going dark" hype suggests this will be the case. It may just disappear into some sort of talking points war fund and used to promote the spread of "going dark" hysteria until enough legislators are on the hook. If the money is deployed intelligently, it could actually make a difference for the agency. But all evidence points to the agency angling for legislation and favorable court precedent that will make the rest of us pay the price for the agency's inability or unwillingness to see anything but darkness when confronted with technical hurdles. Permalink | Comments | Email This Story

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Earlier this week, we wrote about the details of the Supreme Court's ruling in Packingham v. North Carolina -- the case that said a North Carolina law that barred convicted sex offenders from using social media was unconstitutional. There were some good lines in the ruling, but this may be the most important: Even with these assumptions about the scope of the law and the State’s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind.... By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with anInternet connection to “become a town crier with a voice that resonates farther than it could from any soapbox."... In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives. As we noted in our original post, I expect that to be quoted in many other cases -- and a big one may be the ongoing attempts right now by the legacy entertainment industry to force ISPs to kick people off of their service based on accusations (not convictions) of infringement. Those cases, like this Packingham case, involve using a law to claim that people should be blocked from using the internet. And based on the quotes above, it seems quite likely that parts of the DMCA are clearly unconstitutional. The lawsuits -- mainly the BMG v. Cox ruling which is currently on appeal, and the more recent UMG v. Grande Communications (which follows the same basic outlines of the Cox case) -- involve arguing that 512(i) of the DMCA requires ISPs to kick users off their service entirely based on accusations of infringement. As we've explained, this already appears to be a twisted interpretation of 512(i), but now it appears there's a very reasonable chance that the Supreme Court could find 512(i) outright unconstitutional under the First Amendment for broadly blocking internet access in a way that harms free speech rights. As noted by copyright professor Annemarie Bridy, this clearly could impact those other cases following this ruling: Packingham is relevant to this conversation because it stands quite clearly for the proposition that broadly defined state-mandated limits on access to the Internet raise serious First Amendment issues. Packingham challenged the constitutionality of a North Carolina criminal statute prohibiting registered sex offenders from accessing “commercial social networking sites” on the Internet. In striking down the statute on First Amendment grounds, the Court emphasized the critical importance of the Internet in general, and social media platforms in particular, to everyday life in the “Cyber Age.” While the Court recognized a significant governmental interest in preventing use of the Internet for criminal activity, it held that North Carolina’s ban on social media access swept too broadly. Interestingly, the Court elected not to decide with precision how much of the Internet the challenged statute put off limits. It declined to say—because it didn’t think it had to—whether the statute’s prohibition reached sites like Amazon.com, Washingtonpost.com, and WebMD.com in addition to “commonly understood” social networking sites like Facebook, LinkedIn, and Twitter. The Court concluded that the statute couldn’t survive First Amendment scrutiny even if it were narrowly construed to cover only the social media platforms that everyone can agree are social media platforms. To put it another way, the statute’s prohibition was broad enough to offend the First Amendment even when narrowly construed to cover only parts of the Web. Bridy doesn't go so far as to argue that Packingham means 512(i) is unconstitutional -- in fact, she notes that it's more limited than the North Carolina law that was struck down. But, she notes: Packingham’s holding should serve as a reminder to lower courts interpreting section 512(i) that termination of access to the Internet implicates core First Amendment values: “While in the past there may have been difficulty in identifying the most important places (in the spatial sense) for the exchange of views, today the answer is clear. It is cyberspace.” Consequently, courts should consider it reasonable, and within the bounds of the DMCA safe harbor, for broadband providers to determine that “appropriate circumstances” for terminating a user’s access to the whole Internet for infringing copyright are very rare. Harold Feld, from Public Knowledge, goes a bit further in his own analysis, arguing that when it comes to internet access providers, it seems clear that parts of 512(i) requiring termination, should be seen as unconstitutional, while also pointing out that to argue against this might mean Hollywood arguing that copyright infringement is somehow worse that child molestation. Granted, Hollywood lobbyists and their wholly owned subsidiaries in Congress are capable of arguing with a straight face that copyright infringement is actually worse than child molestation and therefore the government purpose is sufficiently compelling to override all First Amendment concerns. And some judges, like the district court judge in the BMG v. Cox decision, would probably agree. (Read his opinion here to see if you agree.) But I’m doubtful that the majority of appeals court judges will agree. Whether or not one treats the majority opinion’s public forum analysis of social networks as “dicta” (which is legalese for “stuff in an opinion I don’t like so I don’t consider binding”), all 8 Supreme Court justices agreed that subscribers have a First Amendment right to access information and speak online, and that the government cannot prohibit a person from accessing content that has nothing to do with preventing repeat offenses — even when the repeat offense is child molestation, and the evidence arguably supported that child molesters were particularly prone to repetition. Sorry, if molesting minors doesn’t justify permanently kicking you off the Internet, downloading 3 advance copies of Transformers: The Last Knight shouldn’t either. Congress cannot require ISPs to terminate subscribers accused of downloading pirating material (which is what Section 512(i) amounts to) anymore than it can criminalize accessing the Internet after being accused of downloading pirated material. Nor do I expect Big Content to prevail by arguing that getting you thrown off your ISP isn’t blocking you from accessing the Internet, because of all the amazing broadband options you have to replace your loss of service. While America boasted thousands of dial-up ISPs in 1998 when the DMCA was passed, most folks are lucky to have a choice of two landline providers capable of providing reliable, always on broadband of sufficient quality to allow me to engage in all my protected First Amendment online activity. There is the separate question of whether or not this ruling would also kill off 512(i) as it applies to service providers on the network (e.g., Facebook, Twitter, Techdirt, etc...) rather than internet access providers, such as Comcast, AT&T, etc. Feld thinks there is an argument that the opinion could be read to block such rulings as well: Whether Packingham makes Section 512(i)’s requirement that all social media sites and other “covered entities” have termination policies for “repeat infringers” is somewhat less clear. Taking the majority analysis as actual opinion rather than “undisciplined dicta,” then the answer is clearly yes for major social network sites and platforms including — wait for it — Youtube. It’s kind of hard to argue that the largest online video platform, whose videos include some of the most important raw footage of critical events and which has become a central location for debate, doesn’t qualify as the kind of online public forum Kennedy described. Nor does it make much sense to say access to Facebook and Twitter are protected under the First Amendment while access to Youtube isn’t. OTOH, I’m not sure the same analysis applies to cloud storage or other services that don’t share the attributes of a general public forum. And, of course, websites or services that are set up expressly to facilitate the exchange of infringing material don’t qualify for safe harbor protection anyway, so the hypothetical Doctor Evil Sing Along Piracy Exchange is already subject to liability. Of course, none of this should apply to the platforms making decisions themselves over removing content or users from their own platforms (for which the platforms have their own First Amendment protections). Yet, I would not be at all surprised to see someone raise this issue in court, and argue that Packingham means that major social networks (Facebook, especially, but likely Twitter and YouTube as well) have no right to bar users. I think that would be a bad result, but the language in the Packingham ruling at least makes such a ruling a lot more plausible than it was last week. The Packingham ruling is likely to have quite a lot of impact, and as predicted yesterday, I expect it to be quoted frequently in cases involving the internet over the next few years. Permalink | Comments | Email This Story

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Streamline your app creation workflow with over 57 hours of training in this hot development platform. The $35 Xamarin Cross Platform Development Bundle will teach you to use the C# programming language to build fully-functional apps for iOS and Android at the same time. Over the 6 courses you'll explore basic C# programming, learn how to leverage the most common coding requirements for Xamarin iOS apps, learn basic and advanced UI elements on Android, and much more. 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 addition to high costs and the slow pace of digging up streets, one of the reasons Google Fiber is contemplating a pivot from fiber to next-gen wireless broadband is the boring old utility pole. As it stands now, new market competitors often have to navigate an archaic, elaborate and expensive process to attach fiber to poles. Quite often, attaching fiber requires having any other ISPs in the area notified in writing, then waiting for each one to move their own equipment piecemeal, one of several bureaucratic processes incumbents have long abused to slow down the arrival of new competitors. When Google Fiber began more seriously deploying fiber, it proposed new "one touch make ready rules" in many municipalities. Under these revised rules, a licensed, insured third-party contractor is allowed to move any equipment on utility poles with owner approval. In many instances, these contractors are the very same ones used by large ISPs themselves. The regulatory reform is estimated to streamline the pole attachment process by six months to a year. But because this regulatory reform would make it easier for broadband competitors to come to market, large ISPs like AT&T, Comcast and Charter (Spectrum) decided to sue cities like Louisville and Nashville for proposing such reforms. Of course these regional mono/duopolies can't admit they're predominately motivated by anti-competitive reasons, so they've tried to argue they're simply worried that the reform will cause rampant outages (again, these are licensed, insured contractors already employed by many ISPs). Charter even tried to claim the reforms violated its First Amendment rights. But something shifted this week in this long-standing, if under-noticed and important debate. Verizon has decided to buck AT&T and Comcast, and has published a blog post throwing its full-throated support behind Google's one touch utility pole reform (though you'll note they're careful not to mention their arch-nemisis Google by name). Verizon is quick to highlight the often-absurd bureaucracy at the heart of this process: Under the current system, a new attacher must contact a pole owner to get permission to attach, wait for a survey, and then, wait some more as each existing attacher moves or adjusts their attachments – a process called “make-ready” (literally, making-the-pole-ready for the new attachment). Right now, this often proceeds sequentially, with multiple reviews and truck rolls for each of the providers already attached to the pole. It can take six months to a year – and piles of paperwork – to get a new attachment approved and placed on a pole. Having deployed $25 billion or so in fiber to the home, the company proceeds to note that it, if anyone, should know a little something about this process. As such, it notes that a streamlined pole attachment process would bring a lot of efficiency to the entire affair, helping to speed up broadband deployment nationwide: Instead of the current ungainly process, there would be one truck roll to make all of the adjustments to existing attachments and to add the new attachment. Just one disruption to traffic instead of multiple trucks. And to care for legitimate concerns about protecting networks and ensuring safety, the FCC could limit participation to qualified, licensed contractors who are approved by pole-owners, agree to abide by all applicable safety standards, and who, along with the new attacher, will indemnify pole owners and existing attachers if things go wrong. The question of the hour is: why isn't Verizon siding with AT&T, Comcast and Charter out of a desire to protect itself from added fixed-line broadband competition? Verizon no longer cares about fixed-line broadband competition. As we've long noted, Verizon's FiOS expansion is all but frozen, and it's been selling off its unwanted fixed-line customers and networks piecemeal. Verizon's plan now is to gobble up AOL and Yahoo, and become an advertising and media company like Google -- but one that controls the conduit and the message via its nationwide wireless network. And most of the current hotbeds for fiber deployment (pretty much everywhere but Verizon's territory in the Northeast) won't impact Verizon's remaining fixed-line infrastructure. But these fiber deployments outside of Verizon's territory will help fuel Verizon's fifth-generation (5G) expansion plans, which is why, for once, Verizon is actually on the right side of the issues -- instead of trying to keep the bureaucratic status quo intact. Permalink | Comments | Email This Story

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Distracted driving laws and the crusade against distractions in the car have a history that goes back many years. Generally, the trend has been to try to ban each new distraction that comes along, and to seek to place the blame on device makers and automakers for not figuring out how to reliably disable those devices. There was even a ruling in California that made it illegal for a driver to use a mapping app. But now, the state of Colorado has done something unexpected, and perhaps even... reasonable. The state has made it legal to text while behind the wheel, unless it's done in a "careless or imprudent manner." While the new law does give a reprieve to those who use their phones in a safe manner (e.g., while at red light, or stopped in traffic), it also significantly increases the penalties for those who run afoul of the "carelessness" provision. As we've written before, there are many potential distractions inside a vehicle, and eliminating them all would be impractical, if not impossible. So this new law puts the focus on the dangerous behavior instead of the potential distraction itself, holding the driver responsible for unsafe actions. Before now, any text messaging or manual data entry by a motorist was prohibited. “The simple fact is that if you are texting while driving but not being careless, it’s no longer illegal,” said Tim Lane at the Colorado District Attorneys’ Council. While the change does appear to have support among law enforcement, it is still understandably controversial. “The focus of the law isn’t for people who are stopped at stop lights or pulled over on the road texting,” said Mike Phibbs, the legislative chair for the Colorado Association of Chiefs of Police. “I think it’s actually helped clarify the issue and targets what’s really causing the problem.” But officials acknowledge that it is now harder to issue citations to drivers for texting while driving — and that the law opens the door to more legal challenges in court. There is a reasonable concern that having what amounts to a conditional ban will embolden people to push the limits of what is acceptable behavior, or just make it more likely that people won't worry as much about texting while driving, since it is now "legal." However, the hope is that the severity of the penalties for the illegal behavior -- even for first time offenders -- will make drivers more cautious in how they use their phones. Either way, it's good to see a focus on actual bad behavior, rather than a broad ban on activity that might be bad, depending on circumstances. Permalink | Comments | Email This Story

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Prosecutors seeking to justify a lengthy sentence (and the abuses that had already occurred) in the Chelsea Manning case insisted the documents she leaked had caused serious damage to those exposed by them. They said this even as multiple government officials admitted the most the United States had suffered was some embarrassment. Jason Leopold has obtained an official assessment of the Manning leaks which shows the same thing: no real damage was done. Regarding the hundreds of thousands of Iraq-related military documents and State Department cables provided by the Army private Chelsea Manning, the report assessed “with high confidence that disclosure of the Iraq data set will have no direct personal impact on current and former U.S. leadership in Iraq.” This doesn't necessarily mean no damage was done. But the report confirms the United States didn't suffer from the Manning leaks. The report also determined that a different set of documents that was published the same year, relating to the U.S. war in Afghanistan, would not result in “significant impact” to U.S. operations. It did, however, have the potential to cause “serious damage” to “intelligence sources, informants and the Afghan population” and U.S and NATO intelligence collection efforts. The report [PDF] also notes investigators located the encrypted Wikileaks "insurance" file -- one Julian Assange says he'll release the key to if he feels his ability to disseminate information is threatened. (Stay tuned!) The assessment concludes it's unlikely this file contains anything damaging either. Based on public statements by Assange, the IRTF assesses with moderate confidence that the "Insurance File" does not contain any USG data beyond what the IRTF has already reviewed. The document dates back to 2011. It may have been some use in Manning's defense during the trial (a defense severely limited by the nature of espionage proceedings). As Leopold notes, Manning was not allowed to view this report. Instead, she was forced to fight the charges blind while prosecutors cherry-picked portions of the report to bolster their arguments. Not that any of this matters at this point. The damage has already been done to Manning's life. And Manning's prosecution likely serves as a low-key chilling effect to dissuade potential leakers and whistleblowers from publicly humiliating the US government. But it does show the government is willing to use evidence that doesn't actually exist to secure a conviction. Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
Whether it's rolling back already agreed upon merger conditions, killing net neutrality, or eliminating broadband privacy protections, giant ISP lobbyists are having a field day under the Trump administration, slowly but surely stripping away oversight of one of the least competitive -- and most anti-competitive -- sectors in American industry. We've noted repeatedly that as giant cable providers like Comcast nab an ever larger monopoly over next-gen broadband services, the end result of this myopic pursuit will be even higher rates -- and even worse customer service -- for everyone. But there's a problem in this quest to create a new, golden era of telecom sector monopoly dysfunction: individual states. In the wake of the attack on the FCC privacy rules, more than a dozen states have rushed to enact new privacy protections for consumers, requiring that ISPs are very clear about what data they're collecting and who they're selling it to. And in the wake of federal apathy to consumer complaints about some of the worst customer service in any industry, individual states have also started pushing back, as evidenced by New York Attorney General Eric Schneiderman's lawsuit against Charter Communications for advertising speeds company execs knew they couldn't deliver. Ironically, cable lobbyists (and the politicians, sock puppets, think tankers and policy wonks paid to love them) have quickly rushed to defend "states' rights!" when it comes to giant ISPs' ability to write protectionist state laws that hamper broadband competition. But now that several states are actually passing legislation that might help consumers, the broadband industry and current FCC have launched a concerted effort to keep states from meddling in their attempts to build utterly-unaccountable media, advertising, broadband and television conglomerates. Case in point: the FCC is already making noise about their plans to somehow prevent states from passing consumer broadband privacy laws. And last week, cable industry lobbyists began petitioning the FCC in the hopes of making it much more difficult for states to investigate claims of substandard broadband service and speeds, allowing them to hide behind the "up to" marketing language most of us are familiar with: "NCTA-The Internet & Television Association and USTelecom, lobby groups for the cable and telecom industries, last month petitioned the Federal Communications Commission for a declaratory ruling that would help ISPs defend themselves against state-level investigations. The FCC should declare that advertisements of speeds "up to" a certain level of megabits per second are consistent with federal law as long as ISPs meet their disclosure obligations under the net neutrality rules, the groups said. There should be a national standard enforced by the FCC instead of a state-by-state "patchwork of inconsistent requirements," they argue. While there are valid concerns that individual state requirements could make life more complicated for large ISPs, ignored by the NCTA is the fact that their efforts to gut meaningful federal oversight of telecom providers is the primary reason that's happening in the first place. And a bipartisan filing by 34 state attorneys general (pdf) points out that this effort has nothing to do with wanting to avoid "inconsistent requirements," and everything to do with wanting to dodge accountability for poor service on both the state and federal level: "[I]t appears that the petition is really seeking to alter disclosure obligations under state law, including state consumer protection laws’ prohibitions on false and misleading statements and material omissions in consumer-facing advertisements," they wrote. "Such a ruling would plainly exceed the scope of the Commission’s authority granted by Congress, and would be improper." There is also "no factual basis" to determine that ISPs' speed disclosures meet the FCC's "just and reasonable" standard, they argued. "The request is plainly seeking a factual finding, despite the complete lack of any factual record to support such a conclusion," they wrote." It's worth reiterating: when states have come under fire for letting ISP lobbyists directly write horrible protectionist legislation that hamstrings local community rights and hinders broadband competition, cable lobbyists are quick to rush to the defense of state rights. When those states actually try to hold these same broadband providers accountable for substandard service courtesy of a lack of competition, it's suddenly all a bridge too far. Meanwhile, those that still believe that blindly deregulating the telecom market will somehow magically make Comcast behave, are in for a nasty surprise over the next decade. Again, deregulation can help competitive markets thrive. But the telecom sector, as we've long illustrated, is neither competitive nor that simple. In fact, earlier efforts to blindly deregulate an uncompetitive, utterly-dysfunctional, taxpayer-subsidized broadband industry is the precise reason most of you are currently stuck on hold with Comcast in the first place. And the sooner we collectively realize that giving some of the least ethical companies in America carte blanche doesn't magically result in connectivity Utopia, the sooner the quest for cheaper, better, and more broadly-available broadband will be fulfilled. Permalink | Comments | Email This Story

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