posted 23 days ago on techdirt
The big broadband players keep trying to tell us (and politicians and regulators) how good they are and how much we can trust them. Part of their whole pitch on killing net neutrality is that they'd never do anything to harm consumers. And yet... Just this week, the FTC has sued AT&T for lying to consumers about its "unlimited" plans (just weeks after AT&T was fined for "cramming" bills with unwanted charges). And in the last few days it's also come out that Comcast has agreed to pay $50 million to settle overbilling claims, and Verizon has agreed to pay $64 million to settle overbilling claims. And that was all by Wednesday. There's still more time this week. If these were one-off situations, it would be one thing. But these companies have a fairly long history of shady billing practices, dreadful customer service and similar antics. This is part of the reason why some people are so concerned about the various merger attempts by these companies and why they're all actively seeking to block meaningful regulatory oversight. Bad practices like these can be limited when there's meaningful competition -- but even the FCC is now admitting we don't have that in the broadband market. This is a real problem. Broadband access has become such a key part of how we live and how we work. And it's controlled by companies that have a long and detailed history of treating their customers horribly, lumping on bogus fees, overbilling and providing horrible, horrible service. That's not a recipe for a strong and innovative future. It's suggesting some companies are focused on squeezing as much cash as possible out of consumers, while providing a bare minimum level of service and blocking any and all attempts at meaningful competition. These latest overbilling settlements are just a few small examples of a much larger problem that has been going on for years. It's something that absolutely needs to change. And it won't change by making those companies more powerful and limiting the competition even more.Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
The big broadband players keep trying to tell us (and politicians and regulators) how good they are and how much we can trust them. Part of their whole pitch on killing net neutrality is that they'd never do anything to harm consumers. And yet... Just this week, the FTC has sued AT&T for lying to consumers about its "unlimited" plans (just weeks after AT&T was fined for "cramming" bills with unwanted charges). And in the last few days it's also come out that Comcast has agreed to pay $50 million to settle overbilling claims, and Verizon has agreed to pay $64 million to settle overbilling claims. And that was all by Wednesday. There's still more time this week. If these were one-off situations, it would be one thing. But these companies have a fairly long history of shady billing practices, dreadful customer service and similar antics. This is part of the reason why some people are so concerned about the various merger attempts by these companies and why they're all actively seeking to block meaningful regulatory oversight. Bad practices like these can be limited when there's meaningful competition -- but even the FCC is now admitting we don't have that in the broadband market. This is a real problem. Broadband access has become such a key part of how we live and how we work. And it's controlled by companies that have a long and detailed history of treating their customers horribly, lumping on bogus fees, overbilling and providing horrible, horrible service. That's not a recipe for a strong and innovative future. It's suggesting some companies are focused on squeezing as much cash as possible out of consumers, while providing a bare minimum level of service and blocking any and all attempts at meaningful competition. These latest overbilling settlements are just a few small examples of a much larger problem that has been going on for years. It's something that absolutely needs to change. And it won't change by making those companies more powerful and limiting the competition even more.Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Giving a talk at the Washington Ideas Forum, outgoing Attorney General Eric Holder spoke about two different (though, similarly named) journalists that the DOJ has been absolutely egregious in trying to abuse for the sake of questionable leak investigations. Regarding James Risen, the NY Times reporter who the DOJ has been pursuing and demanding he reveal sources concerning a leak (when it's clear the DOJ already knows the source and is just doing this to destroy Risen's credibility with sources), Holder says that the DOJ expects "a resolution" in the near future. That's not too surprising. Holder and the DOJ seem to realize that actually putting Risen in jail (the next step in the process) probably wouldn't go over very well. But it's the other journalist where things get a bit dicier. That's Fox News reporter James Rosen (note the different letter from Risen). Rosen, you may recall, had his phone, email and security badge records grabbed by the government, after the DOJ told a court that Rosen wasn't a reporter, but "an aider and abettor and/or co-conspirator" in the "crime" of leaking classified information about North Korea from the State Department. It later came out that the DOJ actually pretended Risen was involved in a bombing in its motions to the court. Holder was asked if there was a decision during his tenure that he regretted, and he brought up the Rosen story: Holder: I think that -- I think about the subpoena to the Fox reporter, Rosen. I think that I could have been a little more careful in looking at the language that was contained in the filing that we made with the court. He was labeled as a -- as a co-conspirator. I mean, you had to do that as a result of the statute, but there are ways in which I think that could have been done differently, done better. And that's one of the reasons why I thought the criticism that we received because of that -- and the AP matter as well -- was something that we had to act upon and why we put in place this review of our -- the way in which we interact with the media. Except, as Julian Sanchez points out, that's completely bogus. Holder claiming they had to do that because of the statute is flat out opposites-ville. They had to do that because the statute doesn't allow them to spy on journalists. The law was designed to stop the DOJ from spying on journalists, and so the only way to break that was to lie to the court. The law in question -- 18 USC 793 is designed to only apply to the people actually committing the crime of leaking defense information -- and not to reporters. Holder claiming that the statute effectively "forced" him into declaring Rosen a co-conspirator is ridiculous. The statute compels him not to seize Rosen's records. Holder is admitting that the DOJ lied to the court here and trying to blame the statute for that lie. That's astounding.Permalink | Comments | Email This Story

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Trademark, while generally one of the better forms of intellectual property as used in practice and in purpose, can certainly still be abused. It can also fall victim to an ever-growing ownership culture that seems to have invaded the American mind like some kind of brain-eating amoeba. And that's how we've arrived here today, a day in which I get to tell you about how there is currently a trademark dispute over the flavor of pizza. And no, I'm not joking. New York Pizzeria, Inc. is the plaintiff in this case that was brought after its former president allegedly conspired to create a knockoff restaurant chain called Gina's Italian Kitchen using NYPI's recipes, suppliers and internal documents. The lawsuit includes an allegation of a computer hack, but we'll focus on the judge's analysis of the trademark claims. "Intellectual property plays a prominent and growing role in our Information Age economy," opens Texas judge Gregg Costa's opinion this week. "In this case, though, the plaintiff seeks intellectual property protection for something quite traditional: the meal one might order at a neighborhood pizzeria." So, we have two pizza shops in a fight over ingredients and flavor. What NYPI is claiming is specifically centered around the resulting flavor of the two pizzas as a matter of trademark infringement. The claim is that their flavor is distinct. So distinct, in fact, that consumers would recognize it as solely NYPI's, even if coming from Gina's Italian Kitchen. The judge, as it turns out, was exceptionally good on this claim. "As with colors, it is unlikely that flavors can ever be inherently distinctive, because they do not 'automatically' suggest a product's source," he writes. But even if pizza fans can close their eyes, bite into one, and recognize a slice of New York Pizzeria when they taste it, Judge Costa gives a second reason why trademark protection can't extend to taste: "Functional product features are not protectable," he writes. The judge points to a prior decision at the Trademark Trial and Appeal Board as precedent. a pharmaceutical company attempted to gain a trademark on the orange flavor of its medicine, but that was ruled out-of-bounds when the TTAB decided that by flavoring a disagreeable taste, the company merely "performs a utilitarian function that cannot be monopolized without hindering competition in the pharmaceutical trade." Judge Costa goes on to note that the scrutiny of trademark law applying to the flavor of pizza logically should be much greater than even the flavor of medicine. It's a very nice way of calling this whole thing silly and telling everyone to go home. The case has been summarily dismissed, thankfully. Were this sort of dispute allowed to find any kind of foothold, a well-functioning foods industry could be tossed completely for a loop. The trademark-able flavor angle would essentially be an end-around the fact that copyright doesn't apply to recipes. After all, if you can simply protect the end result of the recipe, what would be the difference?Permalink | Comments | Email This Story

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This article is republished from The Conversation under its Creative Commons license. On a side note, apparently, The Conversation is now moving into the US after focusing on the UK and Australia in the past -- and that's pretty cool, because it's a great site. If extreme polarization is now an enduring feature of American politics — not just a bug — how does that change the game for journalists? I have some ideas, but mainly I want to put that question on the table. “Conflict makes news,” it is often said. But when gridlock becomes the norm the conflicts are endless, infinite, predictable and just plain dull: in a way, the opposite of news. This dynamic has already ruined the Sunday talk shows. Who can stand that spectacle anymore? A recent task force of American Political Science Association put it this way: The United States used to be viewed as a land of broad consensus and pragmatic politics in which sharp ideological differences were largely absent; yet, today, politics is dominated by intense party polarization and limited agreement among representatives on policy problems and solutions. In a fascinating paper on “philanthropy in a time of polarization,” three authors — Steven Teles, Heather Hurlburt and Mark Schmitt — take up the question. They point out that leaders in these grantmaking foundations operate from assumptions that extreme polarization can be overpowered by “strong ideas and persuasive research…[that] will motivate elected officials” to act. They believe in the message of bipartisanship and urge foundations to “stay above the political fray.” The way Obama’s health care reform became law shredded that script. Elites in Washington believed that a compromise would emerge by “combining a broad goal favored by liberals with ideas traditionally supported by conservatives.” Nothing like that went down. One side passed the bill. The other demonized it and continues the fight to this day. Teles, Hurlburt and Schmitt write: Foundations have traditionally seen themselves as part of civil society – as mediating institutions that form a bridge between dispassionate knowledge and political advocacy. Their resources, many in the sector have hoped, could fund objective, nonpartisan research that would take the edge off partisan conflicts and pave the way for broadly accepted social progress. That view of American politics no longer makes sense. Nothing has taken the edge off partisan warfare, least of all “objective, nonpartisan research." The battle over the Affordable Care Act showcased American’s deep ideological divide, which nonpartisan research has done nothing to lessen. dbking/Flickr, CC BY-SA, CC BY-NC-SA Is ‘objectivity’ in journalism dead ? It’s tricky to compare foundation officers and journalists because officially the mainstream press has no theory of change, no policy agenda – indeed, no politics at all. Officially, journalists are merely out to get the story, tell the truth, inform us about what’s going on, and in special circumstances share their opinion. But anyone who observes its work cannot help but notice that the Washington press corps shares a certain world view, analogous in many ways to the typical foundation officer’s. (Steve Coll moved easily from the Washington Post to the New America Foundation and on to the deanship of Columbia Journalism School. Walter Isaacson, editor of Time magazine, CEO of CNN, is now president of the Aspen Institute.) Here are some of the components of this shared world view. Recognize them? “Successful candidates move to the middle…” Politicians who know how to get things done cut deals among insiders on both sides of the aisle. (Ronald Reagan working with Tip O’Neill is the usual reference point.) To “cede the ideological center” is the political mistake par excellence. And as Thomas E. Mann and Norman J. Ornstein wrote in the Washington Post: ‘Both sides do it’ or ‘There is plenty of blame to go around’ are the traditional refuges for an American news media intent on proving its lack of bias. What if the ideological center is effectively gone? What if striking deals with insiders from both parties no longer describes the way the world works? For as authors Teles, Hurlburt and Schmitt put it: “Pundits who say that ‘nothing can get done without bipartisan support’ no longer have the evidence on their side.” What are the options? Under these conditions, political journalists have a choice. They can try to muddle through with the framework they had before extreme polarization became too obvious to ignore. If they take this route, they will write well-informed articles about the trend. They will report the data about polarization without drawing any conclusions about their own practices. Or, they can recognize that they too have a world view, and that its assumptions have gone bust. If they choose the latter, what then? Instead of trying to stay in the middle between polarized extremes and avoid criticism, political journalists and their bosses could recognize that there is no escape from charges of bias because these charges are just a further aspect of polarization. If you’re going to be attacked anyway, might as well let it rip. That’s what the Washington Post did when earlier this month it hired Chris Mooney to cover the environment in blog form. Mooney is the author of two books — The Republican War on Science and The Republican Brain (subtitle: The Science of Why They Deny Science – and Reality) — that leave no doubt about where he stands. In announcing his appointment, the Post described Mooney as a writer with a distinctive voice and a consistent argument: “that people’s preconceptions – political, religious, cultural – color the way they view science.” Being transparent about point of view is the honest approach for reporters Newsrooms are better off with reporters who know their beats, nail their arguments, make clear where they’re coming from and meet high standards of verification, always. Intellectual honesty is a more reliable basis for trust than a ritualized objectivity. A clear voice is more valuable than a nonpartisan veneer. Calling out falsehoods that have gotten traction is another thing journalists can do once they realize that extreme polarization is a feature, not a bug. Ever since the fact-checking site, Politifact, won the Pulitzer Prize for “separating rhetoric from truth to enlighten voters,” fact checking has become routine in the coverage of politics. Now the press needs to take the next step: identify the worst offenders, deny them respectability and platform, raise the cost in reputation for relying on falsehoods: in a word, fight. “Detached from the partisan fray” won’t cut it. The non-profit investigative newsroom, ProPublica.org, calls what it does “accountability journalism.” It is the only kind of journalism ProPublica is interested in doing. Here’s how they describe it: Our work focuses exclusively on truly important stories, stories with ‘moral force.’ We do this by producing journalism that shines a light on exploitation of the weak by the strong and on the failures of those with power to vindicate the trust placed in them. That is a view of the world as strong as polarization is deep. Political journalists need to adopt a similar view or they will slide into irrelevance. There is one other option: savvy analysts of the game. Winners and losers, who’s up, who’s down, strategy and tactics. That really isn’t journalism, though. It’s scorekeeping. Jay Rosen is an adviser to The Conversation. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Not so long ago, we wrote about Konami shutting down a fan-remake of the original Metal Gear, the much-beloved initial entry into the vaunted franchise. In that case, Konami did something of a flip-flop, with a company rep telling the development team initially that they had the go-ahead, only for the company's lawyers to pull the rug out from under the remake at the last moment. Well, flip-flopping seems to be becoming a thing when it comes to Metal Gear fan projects, now that the sequel to a previously released Metal Gear Solid fan-film has been nixed by the lawyers. The original fan-film was called Metal Gear Solid Philanthropy, and Part 1 was released several years ago. It was generally regarded as mega-awesome. The indie team behind the project received no contact from anyone at Konami or from the Metal Gear Solid team until they met creator Hideo Kojima in person, who told the filmmakers how much he appreciated the film. The team began to work on Part 2. Then, apparently because they just couldn't freaking help themselves, the Konami brass shut the project down. You can hear from the director himself, in a "Farewell to Philanthropy" video put out. It takes a better person than I for him to say these words. "We knew this might've happened. And we have nothing against the creators of Metal Gear, the saga that we all love and will continue to love." Good for Giacomo Talamini. He's much stronger with the jedi routine than I am, because I can assure you that if I were in his shoes I would be going full on dark-side. Mind-choking, sand-people killing, the whole bit. It's one thing to have Konami needlessly shut down a fan project instead of simply working out a zero-sum or cheap licensing arrangement, since the production of this film does absolutely nothing to harm the MGS franchise, and may indeed help spur it on further. But for the filmmakers to have received no negative feedback from Konami on their first film, and for the creator of the damned franchise to express his support, only to have the lawyers lose their lunch partway through the filming of the second film would be too much for me to bear. Hell, it's too much for me to bear as a gamer and a fan. Permalink | Comments | Email This Story

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posted 24 days ago on techdirt
There are all kinds of ways to improve on everyday items. We've talked about how wallets are a popular type of project on Kickstarter, but there are certainly plenty of other things that could be re-designed and made slightly (or significantly) better. The Ralph Waldo Emerson quote about building a better mousetrap actually didn't mention mousetraps, but we've ended up with a lot of mousetrap inventions, regardless. Here are just a few examples of umbrella inventions that the world might beat a path to. A novel umbrella (called the Sa) uses origami techniques to fold up nicely and resist inverting in strong winds. It's a $70 umbrella, though, so it's not quite for everyone. (Plus, it's not made out of a single square sheet of paper.) [url] Another Kickstarter umbrella project is selling a battery-powered wand that shoots jets of air to repel raindrops. It doesn't actually exist yet (which might be a violation of Kickstarter's terms), and it looks not unlike a fat plastic toilet plunger. Despite the drawbacks of this design and its $88 price tag, it has exceeded its funding goal by about an order of magnitude. [url] A few years ago, another Air Umbrella was designed by Je Sung Park & Woo Jung Kwon, but this concept product didn't solve the engineering challenges of creating a curtain of air that actually repelled raindrops. Perhaps someday there will be a wide selection of nice-looking, quiet, electric umbrellas, but in the meantime, noisy air-blowing umbrellas hopefully won't get too popular. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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Sometimes it's difficult to maintain any faith in our legal system, particularly when it comes to intellectual property, and perhaps even more particularly when it comes to publicity rights. Then, some former drug-running dictator comes along to sue a video game and the system actually manages to do right. Yes, the case brought by Manuel Noriega against Activision over the game's depiction of the dictator in the Call of Duty franchise has been tossed out by the judge. "This was an absurd lawsuit from the very beginning and we're gratified that in the end, a notorious criminal didn't win," said Rudy Giuliani, the former mayor of New York, who had defended Activision in the case. "This is not just a win for the makers of Call of Duty, but is a victory for works of art across the entertainment and publishing industries throughout the world." Nice of the mayor to rub it in, but he ain't wrong. In dismissing the case, the judge explicitly states that the First Amendment rights of Activision outweigh any publicity rights that may or may not be afforded to Noriega. It's an important distinction to make, since the judge likely could have simply dismissed the entire suit based on Noriega being a foreign national and not subject to the publicity rights law of California (under which he filed the claim). Instead, the dismissal brings free speech in to play, with a particular eye towards public persons. "A brief summary of defendants' uncontroverted evidence conclusively shows that Noriega is a notorious public figure, perhaps one of the more notable historical figures of the 1980's...Noriega's opposing papers do not contest any of this." The dismissal goes on to note that the depiction of Noriega in the game is clearly transformative, is not the sum total of the game's storyline, and that therefore economic considerations regarding the game being a commercial product don't factor in at all. Finally, it quotes another ruling quite beautifully, "public prominence does not confer a shield to ward off caricature, parody and satire." Bravo. Permalink | Comments | Email This Story

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Aereo's most recent effort to stay alive was to take the Supreme Court's "looks like a duck" test and to say, since the Supreme Court said it looked like cable TV (for the sake of declaring its service a "public performance"), "fine, then let us quack like a duck and pay compulsory licenses under Section 111." Only problem? Other courts have said internet services don't qualify as cable systems for Section 111, leaving them in a Schrodinger's CATV situation. Aereo is a cable TV system as far as the Supreme Court is concerned when it's talking about public performance, but it's not a cable TV system when it wants to go to the FCC and copyright office to pay a compulsory license, which is available to cable and satellite providers. It appears that FCC Commissioner Tom Wheeler may be looking to change that, beginning a process to give internet companies access to those compulsory licenses, letting "over the top" (OTT) video providers get access to network television at compulsory rates: In 1992 Congress realized that the then-nascent satellite industry would have a hard time competing because much cable programming was owned by cable companies who frequently kept it from competitors. Congress mandated access to cable channels for satellite services, and competition flourished. Today I am proposing to extend the same concept to the providers of linear, Internet-based services; to encourage new video alternatives by opening up access to content previously locked on cable channels. What could these over-the-top video providers (OTTs) supply to consumers? Many different kinds of multichannel video packages designed for different tastes and preferences. A better ability for a consumer to order the channels he or she wants to watch. Wheeler is clearly thinking of Aereo here, even noting that the company recently came to the FCC to plead for this sort of thing: In Title VI of the Communications Act, Congress created rules to ensure that cable companies that own video content can’t raise artificial barriers to competition by refusing to let their video competitors have access to the programming they own. That worked for satellite providers, and also helped telephone companies entering the video business. I believe it makes just as much sense – and will have just as positive a consumer benefit – for an OTT. Such benefits follow from innovation. Taking advantage of this rule, new OTTs may offer smaller or specialized packages of video programming, so consumers will be able to mix-and-match to suit their tastes. Aereo recently visited the Commission to make exactly this point – that updating the definition of an MVPD will provide consumers with new choices. And perhaps consumers will not be forced to pay for channels they never watch. Of course, this move may be too little, too late for Aereo. The company has been losing in court, and any final FCC rules may take a bit of time. Still, at the very least it can mean that the next Aereo or ivi may actually be able to survive, rather than have to deal with a veto from the TV networks.Permalink | Comments | Email This Story

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A few weeks ago, we wrote about how VPN company Golden Frog had quietly revealed in an FCC filing that an unnamed mobile broadband provider had been (even more) quietly blocking people from sending encrypted emails -- basically blocking users from making use of STARTTLS encryption. The Washington Post has now revealed that the mobile operator in question was Cricket -- a subsidiary of AT&T, and that it stopped blocking such encryption a few days after our post was published. Cricket did not address repeated questions about the issue and did not alert customers, many of whom rely on Cricket as their sole Internet service, that they would not be able to protect their e-mails from prying eyes. AT&T, which absorbed Cricket when it acquired Leap Wireless last spring, did not respond to a request for comment. Cricket said in a statement to The Post that it "is continuing to investigate the issue but does not intentionally prevent customers from sending encrypted emails." The issue appears to be that Cricket started using some Cisco firewall equipment to block sending encrypted emails through Port 25. It's true that many ISPs block Port 25 entirely, as it's often used for spamming. What Cricket did here was to just try to block encrypted emails over Port 25, which in some ways is being more permissive than other providers who block it entirely. Yet, still, the way it did so was somewhat misleading and still concerning. While the intent here may have been reasonable, any time you have an ISP stepping in and quietly making the decision itself to block encrypted traffic while allowing other traffic it should raise questions about the security for end users. Yes, there's a constant battle against spam, but there may be better ways to deal with it than single-handedly blocking email encryption.Permalink | Comments | Email This Story

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So, there's a story in the Washington Post that's getting a bit of attention about how Russian hackers apparently breached a White House computer network (an unclassified network, so not as troubling as it could have been). And that story is kind of interesting, but it seems like the bigger deal is this: U.S. officials were alerted to the breach by an ally, sources said. Wait a second. After all we've been told about the brilliant minds at the NSA/US Cyber Command and their "cybersecurity" skills -- it seems immensely troubling that (1) the US didn't catch this themselves and (2) that some other country did catch it. So, uh, just why is some "ally" monitoring the White House's network? As for the rest of the report, as the Washington Post notes, this isn't even that big of a deal. Foreign state hackers are always going to try to breach US government computers, and sometimes they're going to succeed. That's the nature of the beast. But, it does seem profoundly odd that it was discovered by some other country.Permalink | Comments | Email This Story

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It's not just the City of London Police demanding that websites be taken offline without any due process. It appears that the US Food & Drug Administration (FDA) is getting in on the game as well. The Wall Street Journal recently published a detailed article about how angry the FDA is with ICANN (there's also a corresponding blog post which may not face the same paywall restrictions) for not simply killing domains that the FDA deems "rogue pharmacies." That's not to say that there aren't reasonable concerns about rogue pharmacies. There are clearly some concerns about those sites, but it seems like there are better ways to deal with those than just barging in and saying that ICANN and registrars need to take down sites based solely on their say so. In July, the FDA teamed with Interpol and dozens of countries to try to shut down more than 1,300 websites suspected of selling drugs without a prescription. Officials sent a list of all the websites, carrying names such as buyoxycontinonline.com and approvedonlinepharmacy.net, to the Chinese company that registered them. The company replied with a request for a court order and then sent a terse follow-up email: “It is not possible for us to take action.” In frustration, officials turned to the Internet’s central administrator, an organization called the Internet Corp. for Assigned Names and Numbers, or Icann. Its contract with the registrar, BizCN.com, requires the company to investigate reports of illegal behavior. But here's the thing. Everyone in the articles (including the reporters) seem to take it as perfectly reasonable that ICANN and/or these registrars should have just taken down these sites. No one points out that BizCN seemed to respond properly by asking for a court order. ICANN isn't in the business of censorship. It shouldn't be the one to determine if a site is an illegal pharmacy or not. There's a reason why we have due process and courts to adjudicate decisions like that. Putting the entire burden on registrars and/or ICANN to act as internet cops, ready to take down sites at a notification's notice seems tremendously problematic. It's a recipe for censorship, stifling free speech and hindering innovation. And yet, that's what the FDA and others want: Because of its central role, regulators and law-enforcement agencies around the world say Icann could be crucial to their crackdown on illicit Internet operators of all kinds. Already, just in the online pharmacy space, we've seen how certain pharmaceutical companies like to conflate the small number of truly "rogue" pharmacies that sell either counterfeit drugs or real drugs without proper procedures, with perfectly safe and legal Canadian pharmacies that many Americans rely on for cheaper drugs. The big pharmaceutical companies would like to shut down that competition, even as American politicians have explored expanding the ability of US citizens to get their drugs from such pharmacies. And that's why it's reasonable to ask for an actual court order before taking down sites -- rather than just assuming that some bureaucrat at the FDA can accurately determine which sites are "good" and which are "bad," and then demand that registrars or ICANN automatically take action.Permalink | Comments | Email This Story

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Last week, we learned that the GCHQ certainly isn't engaged in mass surveillance -- provided you redefine the meaning of "mass" and "surveillance" in unconventional ways. Now we discover that maybe it doesn't really need to, since it can just ask the NSA and other secret services for access to their raw data without even needing a warrant, as a group of human rights organizations have discovered: Details of previously unknown internal policies, which GCHQ was forced to reveal during legal proceedings challenging their surveillance practices in the wake of the Snowden revelations, reveal that intelligence agencies can gain access to bulk data collected from US cables or through US corporate partnerships without having to obtain a warrant from the [UK's] Secretary of State. This position seems to conflict with reassurances by the Intelligence Services Committee in July 2013 that whenever GCHQ seeks information from the US a warrant is in place. The "arrangements", as they are called by Government, also suggest that intercept material received from foreign intelligence agencies is not subject to the already weak safeguards that are applied to communications that are intercepted by the UK's Tempora programme. On the face of the descriptions provided to the claimants, the British intelligence agencies can trawl through foreign intelligence material without meaningful restrictions and can keep such material, which includes both communications content and metadata, for up to two years. Once again, we see evidence that intelligence agencies are happy to do the dirty work for each other so that they can all claim to have clean hands -- just as the outgoing head of the GCHQ claimed when he said that people there would "walk out the door" rather than be involved in anything so sordid as mass surveillance. It also shows how even the weak safeguards and ineffectual oversight of spy agencies can be circumvented by this kind of mutual help, something pointed out by the organizations behind the latest information: The disclosed "arrangements" bring into sharp relief the minimal safeguards and weak restrictions on raw intelligence sharing with foreign governments, including between the UK and the United States. The fact that GCHQ can request and receive large quantities of "unanalysed" raw bulk data from foreign intelligence agencies without a warrant in place, simply because it would "not be technically feasible" to obtain it in the UK, shows the inadequacies in [the UK's Regulation of Investigatory Powers Act 2000] to deal with intelligence agency co-operation. Under these "arrangements", there is a clear risk that agencies can sidestep British legal restrictions to obtain access to vast amounts of data. There is a minor silver lining to these latest revelations that the situation in the UK is even worse than previously believed. It's the fact that a legal action against GCHQ's mass surveillance has, unexpectedly, forced the UK government to admit to even more unsavory practices. Here's how that came about: Descriptions of the policies were disclosed to the parties after a secret hearing at the Investigatory Powers Tribunal, which is currently considering a challenge to GCHQ's surveillance practices that has been brought by human rights organisations including Privacy International, Liberty and Amnesty International. A public hearing of the case was held in July, but these “arrangements" were revealed to the Tribunal in a closed hearing that the claimants were barred from attending. Some details about the policies are now disclosed in order for the claimants to provide comment. That's a useful reminder that no matter how hopeless these actions might seem, they are not only pretty much the only avenue open to human rights organizations who wish to challenge mass surveillance by governments, but they sometimes yield valuable new information that bolsters the case for greater oversight and tighter regulation of spy agencies. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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Uber's ride-sharing service has proven to be a handy measuring stick for corruption levels in local governments. Chances are that if there's serious opposition, it's tied to incumbent service providers -- cab companies and other for-hire services that aren't interested in making room for competitors. Uber's move to the Washington DC market does strange things to the "corruption index" curve. The city is politics on top of politics, a nightmarish thicket of regulatory capture and bureaucracy for its own sake, powered by the perpetual motion of revolving doors and back scratching. The DC city council voted yesterday on legislation ("Vehicle-for-Hire Act") that clears a path for Uber and Lyft to enter more markets, but asks for plenty in return. The standards codified by this bill would make Uber and Lyft drivers subject to more screening than national security contractors. [T]he bill requires background checks on Uber drivers going back seven years, annual safety inspections, a prohibition of street hails by UberX drivers, and $1 million in liability insurance when a driver is en route to a rider and when the rider is actually being transported. Another amendment gives DC cops and cab inspectors the right to search drivers' phones for evidence of illegal hails. (And issue fines if such "evidence" is found.) Fun stuff, that. Councilman Jim Graham tried to push through a few amendments of his own, heavily skewed in favor of incumbent cab companies. The only stumbling block for the bill at the meeting came when council member Jim Graham proposed an amendment to set a floor for ride prices so that Uber and Lyft couldn't undercut taxi prices, but the amendment was fairly quickly voted down. Many of the taxi drivers who had come to the council meeting... left once Graham's amendment failed. Poor Jim Graham. Not only did he fail to win one for the "home team," but he also wore his heart alliances on his sleeve planned amendments. Martin Di Caro of DC's NPR station WAMU captured this priceless screenshot of Graham's markup sheet, which included a business card for the cab union's treasurer, Nessibu Bezabeh. Someone forgot to take @Teamsters business card off eighth page of CM Graham's amendments to Uber bill. @wamu885news pic.twitter.com/NQxYzhcbJt — Martin Di Caro (@MartinDiCaro) October 28, 2014 If you can't see the tweet, it says: Someone forgot to take @Teamsters business card off eighth page of CM Graham's amendments to Uber bill. Here's a closer look at the unfortunate scanning accident: Yeah, that's a little embarrassing. Or maybe it isn't. This is how business is done in the Beltway, after all. The treasurer "works" with a council member towards a "mutual goal" and hopes for the best. And Graham did his part by striding fearlessly to the plate and promptly striking out. Hey, it happens. The important thing is that he tried. And left behind a paper trail that clearly shows the motivating force behind his consumer-unfriendly amendment. He'll have to live with that now, but considering one of his fellow council members managed to salvage a political career from the bottom of a crack pipe, there's a good chance this too will soon be forgotten.Permalink | Comments | Email This Story

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Patrick O'Neil, over at The Daily Dot, has a scoop about Verizon getting directly into our game: tech blogging. It's launched a brand new tech news website, called SugarString, which apparently is supposed to compete with other tech news sites. Now, I know that some are immediately skeptical just based on the fact that Verizon is launching a news site -- but I don't find that alone particularly troubling. In fact, I think many companies should be producing good, relevant content, because good content is good advertising. Hell, a decade ago, I was very involved with a great news site that Nokia put together called TheFeature, which involved a really spectacular group of writers covering news and commentary about the coming mobile world (sadly, TheFeature was basically wiped off the internet, though the archives can still be found). But, at least there, we had free reign to write about anything we thought was interesting at all. There was no pressure or influence from Nokia at all -- at least none that I ever felt. And, honestly, I think more companies should be engaging with people with good content. But, of course, this is Verizon, so its good intent is undermined by something silly. And, in this case, the something silly is that anyone writing for SugarString has to agree not to write about net neutrality or government surveillance, two of the biggest, most important tech topics these days. From our standpoint, I guess that takes away "competition" (though, amusingly, it does appear like at least one story on the site is a warmed over version of something that we wrote a week ago, but made more clickbaity with a "list") on two of the main stories we cover, but it really does raise questions about why anyone would ever trust the site in the first place, when, from the very outset, Verizon has made it clear that its editorial control will be focused on staying away from any stories that Verizon doesn't like. O'Neil found out about the site, and the restrictions, when he was recruited from The Daily Dot to see if he wanted to write for the site, via its editor Cole Stryker. Stryker seems like an odd choice as the editor, as the author of an entire book about anonymity and privacy online, who we interviewed a few years ago. You'd think that among his areas of focus would be things like government surveillance. And, amusingly, many of the stories on the site do dance around that topic, without getting anywhere near how Verizon might be involved: Virtually every story currently on the front page of SugarString—articles about GPS being used by law enforcement, anonymity hardware enabling digital activists, and artists on the Deep Web—would typically include information on American surveillance of the Internet and net neutrality to give the reader the context to make sure she’s fully informed. But none of articles do that. At best, they dance around the issue and talk about how other countries aside from the U.S. conduct surveillance. That self-censorship puts blinders on the reader, never giving her all the information she should have—information that, not coincidentally, tends to make Verizon and other powerful interests look very, very bad. There's plenty of talk lately about the importance of trust in journalism today (even if it's tricky to measure). I think it's absolutely possible for a big company to create great editorial content that builds up trust (we did with TheFeature those many years ago). But part of that is not denying reality or putting stupid, trust-destroying restrictions on the effort. Verizon appears to have failed that simple test, and with that, it takes away a big part of the trust that any such site would need.Permalink | Comments | Email This Story

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Last week, the Hungarian government proposed introducing what is probably the world's first Internet data tax, which would require Internet Service Providers to pay 150 Hungarian forints (around $0.60) for every gigabyte of traffic they sent to their customers. As this article on Bloomberg reports, the outrage from users was so great that tens of thousands of them took to the streets of Hungary's capital, Budapest, in what is one of the largest anti-government demonstrations since Prime Minister Viktor Orban came to power four years ago: Protesters, who gave the government until tomorrow to revoke its plan, said taxing Internet use was an attempt to restrict freedom of information by Orban, a recurrent argument against a leader whose centralization of power triggered criticism from allies including the U.S. and fellow European Union members. Demonstrators also railed against perceived corruption, after the U.S. this month barred six unidentified Hungarian officials on suspicion of corruption and called on the government to crack down on tax fraud. "Those who use the Internet see more of the world, that's why the government doesn’t want a free Internet," organizer Balazs Gulyas told the crowd. "We’re not going to pay an Internet tax to a corrupt tax authority." As that makes clear, this is not so much about the extra costs that such a tax would impose, as about the further attack on the freedom to access information, already greatly restricted in recent years under the current right-wing Hungarian government. The Facebook page that was used to organize the protests has over 220,000 likes, and was publicized by no less a person than Neelie Kroes, Vice-President of the European Commission, who tweeted this to her 116,000 followers: I urge you to join or support people outraged at #Hungary Internet tax plan who will protest 18h today #Budapest The demonstration has already had an effect: The ruling party issued a statement last night as protests were still under way that it would cap the tax at 700 forint and make telecommunication companies pay the levy instead of individual subscribers. The leaders of the protest have said that they want the new tax to be dropped completely: Organizers, on their Facebook page, said demonstrations must be free of violence and rallies would continue until the tax is withdrawn "in its entirety." However, the Hungarian government is unlikely to be willing to compromise further because it can point to backing for its policies from the Hungarian electorate: Orban has won every election since coming to power, including his re-election in April to a second four-year term. In July, Orban called for replacing liberal democracy with an "illiberal state," citing Russia and Turkey as possible examples to follow, while trying to hold on to the country's EU membership, the source of billions of euros of funding. The question is whether the protesters will be able to sustain their action, perhaps by trying to turn it into a more general challenge to the government, or whether most people who took part will see the cap on the tax as a good enough result. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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It's fairly surprising that it actually took this long, but nearly three weeks after the court hearing concerning Roca Labs' questionable lawsuit against PissedConsumer.com (actually, parent company Consumer Opinion Corp.), the magistrate judge in the case, Elizabeth Jenkins, has recommended against granting the temporary injunction Roca is seeking against PissedConsumer -- effectively blocking the site from letting people post reviews of Roca Labs' "alternative to gastric bypass surgery." We've been documenting the wackiness in this case for a few weeks now (click the "Roca Labs" link above to go through its bizarre twists and turns), so this recommendation is hardly unexpected, but is almost disappointing in how straightforward it is. Jenkins leaves the Section 230 question aside, pointing out that either way, Roca Labs doesn't do nearly enough to satisfy its claim that PissedConsumer is violating the Florida Deceptive and Unfair Trade Practices Act (FDUPTA). The court notes that even if people are scared away from buying Roca Labs' goopy substance, it would be because of the reviews of PissedConsumer's users, not PissedConsumer itself. Furthermore, Roca Labs' random assertions of PissedConsumer's "unethical" behaviors don't come with any actual support (in a footnote, the judge notes that the one case Roca cites to prove the "unethical behavior" actually works against Roca, since it shows that PissedConsumer is eligible for Section 230 protections): Plaintiff asserts Defendants' alleged actions have been found “troubling and perhaps unethical” and will be injurious to Plaintiff if not enjoined. However, Plaintiff has not offered any evidence that Defendants offered to remove the postings for a price. Further, the record indicates that businesses can respond for free to any review by using the comments section beneath the review on the website and that Defendants do not sell the option to remove reviews, although Defendants do offer monthly subscription monitoring for those businesses that desire to be notified when reviews are posted about the business. For these reasons, in addition to standing being problematic, Plaintiff has failed to prove a sufficient causal nexus between the deceptive actions alleged and any harm it has suffered, as the loss of business and reputation suffered by Plaintiff stems from the content of the reviews rather than any deceptive actions alleged by Plaintiff How about those tortious interference claims? Yeah, Judge Jenkins isn't buying those either. Although Plaintiff contends its customers are encouraged to post negative comments in exchange for Defendants' representation that Defendants will resolve the customers’ problems with Plaintiff, Plaintiff has not offered any evidence to show that its customers actually posted negative comments in reliance on Defendants’ representations of problem resolution. As with the FDUTPA claims, Plaintiff’s evidence shows only that any harm suffered by Plaintiff stems from the content of the reviews rather than from misrepresentations made by Defendants about their services. Without more, Plaintiff has failed to satisfy its burden of proof on the issue of causation and is not likely to succeed on the merits of its claims for tortious interference. There's a bit more in the recommendations, but the short version is that (as we suggested from the very beginning) the magistrate judge just doesn't see how Roca's arguments are going to work in court. It's possible the judge overseeing the case will see something different and rule differently than the magistrate judge's recommendations, but that would be a surprise. The real question is what will happen next? Roca Labs has continued to shift lawyers, as the company seems to have some significant trouble keeping any outside lawyers on the case. If you view the docket in the case, in just the past month, Roca has brought on three separate lawyers to represent them, with two of the lawyers (both from outside firms) asking to be let off the case, with at least one citing "irreconcilable differences have occurred between plaintiff and counsel." What are the chances that Roca Labs, now represented by another "independent outside counsel" will have the good sense to recognize that this case is a trainwreck in action?Permalink | Comments | Email This Story

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Ebola is scary. Absolutely. It's concerning that Ebola vaccines and treatments have not been developed as quickly as other pharmaceuticals, but the current outbreak is certainly speeding up research efforts. However, the economics of developing treatments for various ailments isn't always rational, given the examples of the wild success of the ALS ice bucket challenge and the failures of its knockoffs. If you need a reminder of other deadly diseases that still plague the world, here are just a few links on the topic. The US govt has stopped (temporarily?) funding for "gain-of-function (GOF)" experiments that could make viruses more pathogenic. This policy doesn't stop amateurs and other researchers (or Nature itself!) from creating more deadly mutations, but it could slow down the progress of developing ways to fight off certain diseases and understanding how some pathogens (eg influenza) might mutate. [url] A number of diseases pose far larger threats than Ebola does. There has been a re-emergence of measles, pertussis (or whooping cough) and antibiotic-resistant bacteria. The flu still kills thousands of people every year. [url] The WHO warns that multidrug-resistant tuberculosis (MDR-TB) is a global threat to human health. The US saw a bit under 10,000 cases of TB in 2013 and 1.4% of those were drug resistant. Worldwide, 9 million people caught TB last year, and about 3.5% of those were resistant to antibiotics. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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A couple months ago, someone sent over an interesting Virginia Law Review article from Alli Orr Larsen about how the Supreme Court is increasingly listening to amicus curiae briefs (friend of the court briefs) from parties not actually engaged in lawsuits -- and at times that's problematic because the briefs are not always, you know, factual. We frequently write about amicus curiae briefs, detailing where we agree or disagree with them, leading to some interesting discussions. When done well, these briefs really can add valuable insight. But, sometimes they allow some ridiculous claims to make it into the discussion. As the abstract of Larsen's paper notes: The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and the failure of the parties to act as an adequate check. That's definitely interesting, and certainly opens up the Supreme Court to responding to "truthiness"-type arguments. Given that, it's perhaps not that surprising that Stephen Colbert, the man who coined "truthiness" in the very first episode of his (soon to be ending) TV show, did a segment on Larsen's law review article a few weeks ago. In that segment -- which we'd embed if Colbert/Comedy Central offered SSL embeds (they don't appear to) -- he calls out a few of the examples from the paper, including an amicus brief filed by the Library Copyright Alliance in the Kirtsaeng case, concerning the potential impact on foreign-printed books now found in US libraries (the fear was that if the Supreme Court ruled in favor of Wiley, it would mean that merely lending out foreign-printed books would potentially be infringing). Thankfully, the Court went the other way, but Larsen's paper calls out that the amicus brief from the libraries cited 200 million foreign-printed books from a blog and the blog in question is "no longer available." Jonathan Band, the author of that amicus brief, took offense to his "hero," Stephen Colbert challenging his brief and hit back with an amusing letter that points out that the blog post actually is still available -- it just moved. Also, it was written by a known expert in the field who actually had access to the data necessary to make such an estimate. Still, Band jokingly mocks the whole experience of being mocked by Colbert and hits back with a few more amusing, less persuasive, counterpoints: But then I realized that you, my hero, were actually criticizing the brief because it cited to a blog post as the source for the fact that U.S. libraries possess 200 million foreign-printed books, and the post was no longer available. Now that I have recovered from the shock and humiliation of this criticism, I offer the following response: What difference does it make if the source can’t be found? This is the perfect example of truthiness. The number we cited sounds right, and we’re a bunch of librarians and librarians never lie. The law professor who wrote the article that pointed out the missing blog post, Allison Orr Larsen, teaches at William & Mary Law School. That’s a silly name for a law school; it’s like Dick & Jane Law School. It’s not our fault that the blog post was moved. The blog post is actually still available in the website’s archive. The person who wrote the blog post, Ed O’Neil, is an expert on the subject, and has access to the catalogues of the collections of every library in the country. Wiley’s lawyers had ample opportunity to challenge the number, but didn’t. In fact, no one has challenged the accuracy of the number. So, while the issue of the Supreme Court relying on amicus briefs is definitely an interesting one to follow, it appears that Larsen -- and Stephen Colbert -- may have misfired on this particular one.Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
For some reason, a Michigan Sheriff's Department has gotten itself involved in a sexting incident. An investigation into "sexting" of photographs between at least 31 teenagers in Rochester Community Schools is expected to take at least two more weeks, an Oakland County Sheriff's captain said Thursday… Capt. Michael Johnson of the Rochester Hills substation said cell phones confiscated from suspected students — 24 girls and 7 boys, ages 14 to 16 — have been turned over to the department's computer crimes section for forensic review to determine who sent photos, who was photographed, who received them and if they were shared with others. Similar concerns are being expressed by others in the community. Meanwhile, an attorney for a Rochester Hills student and another involved in a similar investigation in Romeo schools, said the activity is much more widespread and she has heard the number is likely double that under investigation. Attorney Shannon Smith said Michigan State Police are investigating reports of about 10 incidents in the Romeo school system unrelated to the Rochester cases. "This is happening everywhere, it's over the top," Smith said. "I have been contacted by schools and parents elsewhere in Oakland, Macomb and Wayne counties who have found similar photos on their children's cellphones and want to know what to do about it. The reason for police involvement -- beyond the slim chance that it could net them some cheap child porn busts, thanks to existing laws being applied badly -- is left unstated. Apparently, the discovery of suggestive and/or explicit photos couldn't be left up to the students and their parents to handle. Instead, somebody will need to be punished for something that appears to be incredibly common and often wholly voluntary. The Oakland County Sheriff's Department has already confiscated 31 phones. "Ten incidents" unrelated to these 31 cases are being investigated by the Michigan State Police. With any luck, these investigations will continue to turn up even more phones, containing more evidence, and so on, until… well, until what, exactly? Well, possibly until the shock at how common this behavior is passes and is replaced with the logistic realities of the situation, as happened to Chief Deputy Donald Lowe of the Louisa County (VA) Sheriff's Dept. [L]ouisa County High School was transformed into a crime scene, which it remained for the next month. Police cars sat parked at the school’s entrance, and inside, a few deputies who reported to Lowe began interviewing kids—starting with girls they recognized in the pictures and boys who had followed the accounts. [...] For the most part, the kids were “more than cooperative,” Lowe says. One person would give up 10 names. The next would give up five, and so on. But pretty soon this got to be a problem. Within an hour, the deputies realized just how common the sharing of nude pictures was at the school. “The boys kept telling us, ‘It’s nothing unusual. It happens all the time,’ ” Lowe recalls. Every time someone they were interviewing mentioned another kid who might have naked pictures on his or her phone, they had to call that kid in for an interview. After just a couple of days, the deputies had filled multiple evidence bins with phones, and they couldn’t see an end to it. Fears of a cabal got replaced by a more mundane concern: what to do with “hundreds of damned phones. I told the deputies, ‘We got to draw the line somewhere or we’re going to end up talking to every teenager in the damned county!’ ” So, at some point, an arbitrary line will be drawn to end the investigation. Charges may be handed down, if only to justify the use of police resources. High school students on the wrong end of the age of consent may find themselves facing child pornography charges. Students more than an arbitrary number of years removed from the age of subjects of the photos in their possession may end up similarly charged. The temptation is to handle it as a criminal offense, hence the initial instinct of the Louisa County Sheriff's Dept. to view it as a "cabal" or "ring" before it became apparent that there was no unified, sinister force compelling this prolific creation of explicit photos. But despite realizing that trying to combat this as a criminal venture was fruitless, they still use a ridiculously skewed term when discussing sexting. “I really don’t like the word sexting,” says Michael Harmony, the commander of the southern-Virginia branch of the Internet Crimes Against Children Task Force, which covers Louisa County. The term he makes his investigators use is self-production, which is law-enforcement-speak for when minors produce pictures of themselves that qualify as child porn. Harmony may not be looking to press criminal charges against "self-producers," but phrasing it in this manner makes it clear he's willing to pursue anyone else in possession of this so-called child pornography. Law enforcement entities in other states view it the same way and have pressed (along with concerned parents groups and educators) for the creation of laws that make sexting a crime. In doing so, they have completely subverted common sense. [I]n most states it is perfectly legal for two 16-year-olds to have sex. But if they take pictures, it’s a matter for the police. Even if these law enforcement agencies decide there's nothing in this pile of cell phones for them, there's still a chance an aggressive prosecutor will still look for something he or she can make stick -- punishing the children… for the children. If Lowe made an arrest, the case would land with Rusty McGuire, the main prosecutor for Louisa County. McGuire wouldn’t talk with me about this situation specifically, but he expressed his concern more generally about nude pictures of minors landing in the wrong hands: “What do you do? Turn a blind eye? You’re letting teenagers incite the prurient interest of predators around the country,” fueling a demand that “can only be met by the actual abuse of real children.” So, to keep teens from being abused by sexual predators, we need to smack them around with the same laws meant to target sexual predators? McGuire pushes a threat that exists only in his mind -- one that turns a mostly consensual and incredibly common act into something that has to be addressed by the full extent of the law ("turn a blind eye?"). Failure to do so tips the balance in favor of child predators, who will only be able to satisfy themselves with actual abusive acts. McGuire was praised here at Techdirt earlier this year for his emphasis on education over enforcement when it comes to students sexting, but a few months removed from the positive Slate profile and he's conjuring up law enforcement's favorite boogeyman to justify law enforcement's intrusion into students' personal lives. Two different law enforcement entities in Michigan are wading into this situation now, armed with enough info to make headlines but little more. Soon, they'll be swimming in cell phones and trying to find a punishment that fits the supposed crime -- or more accurately, trying to find a crime that meets their desire to see someone punished for a bunch of (mostly) consensual behavior. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
AT&T -- a company with one of the most powerful DC lobbying operations around -- is not having a very good month. Just weeks after being fined by both the FTC and the FCC for SMS cramming, the FTC has also filed a lawsuit against AT&T for lying to consumers about "unlimited" data plans, and then... throttling those same plans. The issue was that, while AT&T stopped offering an unlimited data plan, it did promise to grandfather in those users, so long as they didn't change plans. However, it didn't take long for AT&T to start throttling just those users on unlimited plans in an effort to get them to switch away from an unlimited data plan. From the complaint: In July 2011, Defendant decided to begin reducing the data speed for unlimited mobile data plan customers, a practice commonly known as “data throttling.” Under Defendant’s throttling program, if an unlimited mobile data plan customer exceeds the limit set by Defendant during a billing cycle, Defendant substantially reduces the speed at which the customer’s device receives data for the re st of that customer’s billing cycle. In October 2011, Defendant began restricting the data speed for unlimited mobile data plan customers whose data usage exceeded thresholds imposed by Defendant. Initially, the data usage threshold at which Defendant throttled customers varied across geographic markets. The threshold was as low as 2 GB per billing cycle in dense markets like New York City and the San Francisco Bay Area. In March 2012, Defendant modified its data throttling program. Under the revised version, Defendant set a uniform nationwide data usage threshold of 3 GB per billing cycle for devices using Defendant’s 3G network (e.g., iPhone 3G, 3GS, 4) and HSPA+ network (e.g., iPhone 4S), and 5 GB per billing cycle for devices using Defendant’s LTE network (e.g., iPhone 5, 5S, 6, 6 Plus). Under the original version of Defendant’s throttling program, from October 2011 through February 2012, Defendant capped the data speed at 128 Kbps for customers who exceeded the data usage threshold. Under the revised version, starting in March 2012 and continuing to the present, Defendant caps the data speed at 256 Kbps for customers with 3G and HSPA+ devices and 512 Kbps for customers with LTE devices. As the FTC notes, this throttling was drastic, decreasing speeds up to 90 to 95% in some cases. The complaint also notes that AT&T knew -- via internal focus group research -- that basically no one thinks a throttled connection is "unlimited." When it implemented its throttling program, Defendant possessed internal focus group research indicating that its throttling program was inconsistent with consumer understanding of an “unlimited” data plan. The researchers concluded that, “[a]s we’d expect, the reaction to [a proposed da ta throttling program] was negative; consumers felt ‘unlimited should mean unlimited[.’]” The focus group participants thought the idea was “clearly unfair.” The researchers highlighted a consumer’s comment that “[i]t seems a bit misleading to call it Unlimited.” The researchers observed that “[t]he more consumers talked about it the more they didn’t like it.” This led the researchers to advise that “[s]aying less is more, [so] don’t say too much” in marketing communications concerning such a program. The FTC further points out that the throttling wasn't because of any network concerns, pointing out that it went into effect even when the network had "ample capacity" and its network was not congested. All in all, AT&T throttled 3.5 million different customers more than 25 million times. It's worth pointing out that the FTC is not saying that AT&T can't throttle -- just that it can't sell a plan as unlimited and then throttle it. AT&T has already claimed the whole thing is baseless, but its argument doesn't make much sense: “The FTC’s allegations are baseless and have nothing to do with the substance of our network management program. It’s baffling as to why the FTC would choose to take this action against a company that, like all major wireless providers, manages its network resources to provide the best possible service to all customers, and does it in a way that is fully transparent and consistent with the law and our contracts. “We have been completely transparent with customers since the very beginning. We informed all unlimited data-plan customers via bill notices and a national press release that resulted in nearly 2,000 news stories, well before the program was implemented. In addition, this program has affected only about 3% of our customers, and before any customer is affected, they are also notified by text message.” Yeah, but none of that changes the fact that the company sold an "unlimited" plan, and then made it very, very limited. Of course, it's interesting to see that it's the FTC that filed this particular lawsuit. Some (mainly on the telco/anti-net neutrality side) have been trying to suggest that there's something of an ongoing turf war over regulating telcos lately between the FCC and the FTC. The earlier fine this month was done together, but this was just under the FTC's authority by itself -- though, in its press release, the FTC notes that it "worked closely on this matter with the staff" of the FCC. Just a few months ago, we know that the FCC was investigating Verizon's similar throttling plans -- under a similar theory. The FCC was concerned that Verizon's throttling was targeted based on what data plan customers were on, rather than whether or not they were heavy users on a congested network. Furthermore, underlying all of that, there's been continuing debate over the larger "net neutrality / open internet" debate, as to whether or not the FCC should be handling it or the FTC -- with some arguing that new rules might limit one or the other's ability to step in. For the most part, those conversations have basically been some parties trying to drive a wedge between the two agencies that may not exist in reality, but it's still worth noting that the two agencies appear to be swimming in similar waters at times, but so far, they seem to be able to work together pretty well.Permalink | Comments | Email This Story

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Last week, Techdirt reported on the humiliating and inevitable climbdown by German publishers in their attempt to force Google to pay for daring to drive traffic to their sites by using snippets from their publications. Despite that abject failure, it seems that the European Union's new commissioner for the digital realm, Günther Oettinger, is thinking about bringing in exactly the same misguided idea across the whole of the European Union, as the Handelsblatt newspaper reports (translation by Pirate Party MEP Julia Reda): When Google is taking intellectual works from within the EU and using them, then the EU has to protect those works and demand a tax from Google. Coming from the person who is charged with reforming European copyright, this does not augur well. If Oettinger really thinks that such a tax is the way forward for copyright in the digital age, he is evidently as clueless about the Internet as everyone feared he was, after telling the European Parliament that celebrities storing nude pictures online are stupid. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Spend enough time staring at redacted documents liberated from secretive government agencies and you're bound to miss a thing or two on the first pass. Chris Soghoian, technologist for the ACLU was browsing through some FBI documents [pdf link] obtained by the EFF and came across this: In 2007, FBI sent malware via a link intended to look like a Seattle Times/AP story. https://t.co/Se9f0NXGd1 at pages 61-62. — Christopher Soghoian (@csoghoian) October 27, 2014 In 2007, FBI sent malware via a link intended to look like a Seattle Times/AP story. https://www.eff.org/document/fbicipav-08pdf … at pages 61-62. The documents date back to 2008 and were obtained by the EFF in 2011. What Soghoian caught fills in the blanks in this story from 2007. FBI agents trying to track the source of e-mailed bomb threats against a Washington high school last month sent the suspect a secret surveillance program designed to surreptitiously monitor him and report back to a government server, according to an FBI affidavit obtained by Wired News... The software was sent to the owner of an anonymous MySpace profile linked to bomb threats against Timberline High School near Seattle. The code led the FBI to 15-year-old Josh Glazebrook, a student at the school, who on Monday pleaded guilty to making bomb threats, identity theft and felony harassment. The court documents didn't detail how the FBI managed to install the weaponized payload on Glazebook's computer. The emails obtained by the EFF, however, expose the electronic paper trail. The CIPAV (Computer and Internet Protocol Address Verifier) made its way to Glazebrook's system via a Myspace message sent by the FBI… which was impersonating the Seattle Times. Is this really what we want our investigative agencies to be doing in the name of public safety? Soghoian says no. "The ends don't justify the means. I'm not saying that the FBI shouldn't be investigating people who threaten to bomb schools. But impersonating the media is a really dangerous line to cross." The Seattle Times isn't too happy, either. Editor Kathy Best says the paper is now "seeking answers" from the FBI. Best's full statement on behalf of the Times is short, but deeply critical of the agency's actions. We, like you, just learned of this and are seeking answers ourselves from the FBI and the U.S. Attorney’s office. But we are outraged that the FBI misappropriated the name of The Seattle Times to secretly install spyware on the computer of a crime suspect. Not only does that cross the line, it erases it. Our reputation—and our ability to do our job as a government watchdog—is based on trust. And nothing is more fundamental to that trust than our independence from law enforcement, from government, from corporations and from all other special interests. The FBI’s actions, taken without our knowledge, traded on our reputation and put it at peril. The FBI has already responded (somewhat) to Best's statement, deploying the usual deferrals to public safety and agency investigatory procedures. “Every effort we made in this investigation had the goal of preventing a tragic event like what happened at Marysville and Seattle Pacific University. We identified a specific subject of an investigation and used a technique that we deemed would be effective in preventing a possible act of violence in a school setting. Use of that type of technique happens in very rare circumstances and only when there is sufficient reason to believe it could be successful in resolving a threat. We were fortunate that information provided by the public gave us the opportunity to step in to a potentially dangerous situation before it was too late.” TL; DR: The public should be counting its blessings rather than examining our questionable methods. Taken at face value, Special Agent Frank Montoya Jr. is basically saying that the FBI will abuse its power (and the reputations of others) whenever it determines such methods to be necessary to achieve its goals. Not really a comforting idea at all, and one that basically confirms Soghoian's suspicions: the ends will be used to justify the means, no matter how potentially damaging the means are.Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
A year ago, we noted a rather odd statement from President Obama, concerning some of the Snowden leaks. He more or less admitted that with each new report in the press, he then had to go ask the NSA what it was up to. That seemed somewhat concerning to us -- suggesting that the administration wasn't actually aware of what the NSA was up to until after it leaked to the press. Combine that with our more recent story of how James Clapper is basically ignoring the substance of President Obama's called for surveillance reforms, and you might begin to wonder who really runs the show when it comes to surveillance. And, indeed, according to a guy who knows quite well, the national security bureaucracy basically calls the shots, and the President has little to no power. That's the basic summary of an interview with Michael Glennon under the title Vote all you want. The secret government won't change in the Boston Globe. Glennon is the author of a new book called National Security and Double Government, as summarized by the Boston Globe: Though it’s a bedrock American principle that citizens can steer their own government by electing new officials, Glennon suggests that in practice, much of our government no longer works that way. In a new book, “National Security and Double Government,” he catalogs the ways that the defense and national security apparatus is effectively self-governing, with virtually no accountability, transparency, or checks and balances of any kind. He uses the term “double government”: There’s the one we elect, and then there’s the one behind it, steering huge swaths of policy almost unchecked. Elected officials end up serving as mere cover for the real decisions made by the bureaucracy. Glennon cites the example of Obama and his team being shocked and angry to discover upon taking office that the military gave them only two options for the war in Afghanistan: The United States could add more troops, or the United States could add a lot more troops. Hemmed in, Obama added 30,000 more troops. And, yes, of course, there have long been conspiracy theory books about the "shadow government" and the like, but this one's from someone who actually worked on these issues. He was legal counsel to the Senate Foreign Relations Committee and a consultant to various congressional committees, as well as to the State Department. “National Security and Double Government” comes favorably blurbed by former members of the Defense Department, State Department, White House, and even the CIA. And he’s not a conspiracy theorist: Rather, he sees the problem as one of “smart, hard-working, public-spirited people acting in good faith who are responding to systemic incentives”—without any meaningful oversight to rein them in. Basically, the story that Glennon describes is sort of an exact replica of the concerns that many people have about how lobbyists push legislators in a particular direction. While many like to ascribe nefarious intent to lobbying efforts, the reality is that oftentimes legislators don't fully understand a particular or specific area, and the people they turn to are the lobbyists. And, to some extent that's reasonable. You'd rather that regulators and legislators actually are informed about the issues they're making decisions on, but too often they don't understand those areas at all. The problem is that the "experts" who are readily available aren't unbiased purveyors of truth, but are those who have a very specific agenda. The same thing is true of government bureaucrats within the intelligence community. They're going to advise elected officials in ways that continually push and expand their own capabilities and powers, rather than limit them. And while what happens with lobbyists is often not directly publicly viewable, there can at least be some public recognition of policies and regulations that come out of those discussions. When it comes to the intelligence community, many of the results are kept entirely secret, so there's basically no pushback and no "other side" heard. The intelligence community acts as secret lobbyists for the expansion of the surveillance state, and the government basically says "okay." And that doesn't even begin to go down the road of recognizing how much of this "expansion" of the surveillance state also happens to massively benefit the private corporations that former intelligence officials jump to right after leaving the government. Glennon covers all that and more: It hasn’t been a conscious decision....Members of Congress are generalists and need to defer to experts within the national security realm, as elsewhere. They are particularly concerned about being caught out on a limb having made a wrong judgment about national security and tend, therefore, to defer to experts, who tend to exaggerate threats. The courts similarly tend to defer to the expertise of the network that defines national security policy. The presidency itself is not a top-down institution, as many people in the public believe, headed by a president who gives orders and causes the bureaucracy to click its heels and salute. National security policy actually bubbles up from within the bureaucracy. Many of the more controversial policies, from the mining of Nicaragua’s harbors to the NSA surveillance program, originated within the bureaucracy. John Kerry was not exaggerating when he said that some of those programs are “on autopilot.” And the end result is basically that elected officials don't really have the power to do anything, even if they're technically "in power." I think the American people are deluded... that the institutions that provide the public face actually set American national security policy. They believe that when they vote for a president or member of Congress or succeed in bringing a case before the courts, that policy is going to change. Now, there are many counter-examples in which these branches do affect policy.... But the larger picture is still true—policy by and large in the national security realm is made by the concealed institutions. All the more reason why Snowden's revelations were so important. They've helped expose just a tiny fraction of these policies being decided in near total secrecy by the intelligence community to further its own agenda -- leading to some much needed sunlight, finally forcing at least a tiny bit of debate into that corner of the world that thrives on being able to expand in secret.Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
This article has been out for a few weeks now, but I've finally had a chance to read through the whole thing. Louis Menard, over at the New Yorker, has a long piece on just how messed up copyright laws are today, going over many of the same grounds we have (for nearly two decades). The piece itself is a sort of book review of Peter Baldwin's new The Copyright Wars: Three Centuries of Trans-Atlantic Battle, but basically repeats the main point: copyright law as it is today really doesn't make much sense. The first half of the article is a great look at the problems of copyright law, but unfortunately, the second half of the article goes off the rails by leaping on familiar and misleading tropes about why people feel the way they do about copyright. Still, the first half covers a number of copyright's problems quite well. Among other things, it takes on the massive orphan works problem: As it is, few creations outlive their creators. Of the 187,280 books published between 1927 and 1946, only 2.3 per cent were still in print in 2002. But, since there is no “use it or lose it” provision in copyright law, they are all still under copyright today. Patry, in his recent book, “How to Fix Copyright,” notes that ninety-five per cent of Motown recordings are no longer available. Nevertheless, you can’t cover or imitate or even sample them without paying a licensing fee—despite the fact that your work is not competing in the marketplace with the original, since the original is no longer for sale.... In the case of Motown, at least you know whom to call. In the case of many books and photographs, the rights holders are unknown; in other cases, it’s expensive to track down the heirs or the legatees or the firms, possibly no longer in existence, to whom the copyright belongs. And so, for fear of being sued and having their work pulped or otherwise erased from the universe, people avoid the risk. Patry says that the BBC has a million hours of broadcasts in its archives that cannot be used, because no one knows who holds the rights. But much of the article talks about how, even if many of these debates have gone on for decades, the internet has really brought the problems into stark contrast: Before the Internet, the social cost of this obstacle was minimal. Only a few people had the time and the inclination to travel to where they could see or listen to archived broadcasts. But today, when everything can be made available to the entire world at minimal expense, it seems absurd to hold enormous amounts of content hostage to the threat of legal action from the odd descendant. “That a vast existing cultural patrimony, already paid for and amortized, sits locked behind legal walls, hostage to outmoded notions of property, when at the flick of a switch it could belong to all humanity—that is little short of grotesque, ” Baldwin concludes. Yet the odd descendant has the law on her side. She has the power to pulp. The article makes some really great points, but also dips into some unfortunate claims. It's particularly disappointing that Menard trots out the whole "Hollywood v. Silicon Valley" trope in simplified caricatures: Let’s call the first type of business Hollywood and the second type Silicon Valley. Hollywood, along with the music industry and the publishing industry, which are the other major analog-era corporate interests, makes money by producing and distributing content. Silicon Valley makes money by aggregating other people’s content. Hollywood fears pirates; Silicon Valley fears paywalls. Silicon Valley accuses Hollywood of “monopoly” and “artificial scarcity,” and talks about the democracy of the Internet. Hollywood accuses Silicon Valley of “free riding” and “contributory infringement, ” and talks about protecting the dignity of the artist. But each side is only trying to defend its business model. But that's not even close to accurate. Because, as we've discussed at length, "Silicon Valley" has also built all sorts of new innovations and tools that have helped "Hollywood" make a hell of a lot more money -- often in ways that have little to do with copyright protection. From there, Menard pulls in a few more misleading (to sometimes wrong) tropes about the copyright fights -- including that only academics care about the length of copyright terms, and that they really don't like copyright just because it makes it harder for them to access other academic research. It also suggests (falsely) that the DMCA's "notice and takedown" process means "you can post almost anything as long as you take it down when the rights holder complains." It doesn't. At all. Menard almost entirely ignores the free speech implications of copyright law and completely skips over how copyright can be, and often is, used as a veto on innovation. The article also ends in an odd way, suggesting that freelancers should assign their copyrights to big companies "who have the muscle to protect" them. Huh? It's a disappointing end to an article that had plenty of promise in its first half. It almost feels like Menard rushed the second half, just repeating silly old stories about "the copyright wars" in trying to find a way to end the article. That's unfortunate. Given the first half, it seems like a more interesting road to have traveled would have been to explore ideas and concepts for copyright reform, and how to bring the law into the modern era, making it more current and reasonable.Permalink | Comments | Email This Story

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