posted 29 days ago on techdirt
The Congressional Committee on Oversight and Government Reform has issued its recommendations on the use of cell site simulators (a.k.a. "Stingrays," presumably to Harris Corporation's trademark erosion dismay) by law enforcement. Its recommendations are… that something needs to be done, preferably soon-ish. (h/t Chris Soghoian) Congress should pass legislation to establish a clear, nationwide framework for when and how geolocation information can be accessed and used. Before it reaches this conclusion, the Committee spends a great deal of time recounting the history of both the devices' usage, as well as any steps taken (most of them very recently) to govern their use. The report [PDF] points to the Supreme Court's Jones decision, albeit not in a very helpful way. The justices punted on the warrant question, leaving it up to lower courts' interpretation as to whether or not tracking someone with a GPS device violated their privacy. The only thing they did agree on was the intrusion onto the property to install the device on the petitioner's vehicle. Everything else was left unclear, including the lack of a bright line for how much location tracking equals unconstitutional tracking. Cell site simulators can perform the same function and, until recently, every law enforcement agency in possession of the devices deployed them without seeking search warrants. The DOJ finally suggested warrants might be necessary in 2015, which would only be about 18 years since DOJ elements began using Stingray devices. A 1997 DOJ guidance bulletin discussed the agency’s views on what legal authority governed the various law enforcement surveillance options, including “cell-site simulator.” According to the 1997 guidance, DOJ took the position that “it does not appear that there are constitutional or statutory constraints on the warrantless use of such a device.” According to a chart that was issued with the guidance, court orders, search warrants, and subpoena requirements were not applicable when deploying this device. For most law enforcement agencies, the lack of a warrant requirement has allowed them to disguise their Stingray deployments. Most have sought pen register orders instead for this form of real-time location tracking. Others have used parallel construction to hide use of IMSI catchers from courts, defendants, and, in some cases, the prosecutors they work with. This was all heavily encouraged by the FBI's nondisclosure agreement, which it made law enforcement officials sign before allowing them to purchase the devices. Now, they're everywhere. The IRS has its own devices and feds are attaching IMSI catchers to planes and flying them over cities in hopes of tracking down suspects. What's more concerning is the devices' capabilities, which federal and local law enforcement agencies all swear they've never used. In testimony before the Committee, DOJ and DHS both confirmed the simulator devices they use do not intercept any communications or content from the cellular devices to which they connect. Specifically, DOJ confirmed that between January 1, 2010 and September 2, 2015, its component agencies using the technology—the FBI; the Drug Enforcement Administration (DEA); the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); and U.S. Marshals Service (USMS)—only collected dialing, routing, signaling and addressing information in domestic criminal investigations and did not use the devices to collect the content of communications. While the current DOJ and DHS policies require the cell-site simulators to be configured as pen registers and to not collect content, some of the cell-site simulator models used by law enforcement components within DOJ and DHS would be capable of collecting content if the devices had the necessary software installed. The Committee points out that if the federal government doesn't hand down universal controls for the deployment of these devices, the situation will only devolve from here. Further, the Committee notes that these devices are available all over the world and with even fewer usage restrictions. And the tech is more widely available than the US government would hope, which means those who care little for policies, guidance, or federal law won't hesitate to deploy these themselves. It is possible, if not likely, bad actors will use these devices to further their aims. Criminals and spies, however, will not be adopting the DOJ and DHS policies and procedures or any other ethics of surveillance. They will not be self-limiting in their use of these devices so as to not capture the content of others’ conversations. Criminals could use these devices to track potential victims or even members of law enforcement. One can imagine scenarios where criminals or foreign agents use this type of technology to intercept text messages and voice calls of law enforcement, corporate CEOs, or elected officials. The report notes that devices are already for sale on foreign websites, and those selling them are suggesting purchasers set them up in high-traffic areas (near banks, restaurants, hospitals, etc.) for maximum effectiveness. On top of that, hobbyists and researchers have been able to put together their own IMSI catchers, all without the guidance or assistance of companies who sell their devices to a highly-restricted list of government agencies. The secret is out -- and has been out for years. While any legislation would do little to deter bad actors, it would at least allow the US to act as a role model for foreign governments to emulate and give it some sort of (belated) moral high ground to stand on when restricting US companies from selling surveillance tech to governments with human rights abuse track records. If nothing else, the hope is that the legislation called for will result in a cohesive, coherent ruleset that's also Constitutionally-sound. Obviously, this will be met with law enforcement resistance, as anything that implements a warrant requirement generally does. Permalink | Comments | Email This Story

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Universal Pictures, it will not surprise you, has a long history of being overtly protectionist on anything to do with its intellectual property. This has led to stories both funny and infuriating. The studio's legal team, for instance, once asked Google to delist 127.0.0.1 for piracy, with that IP address essentially serving to denote the machine currently in operation. It's "home", in other words. On the other side, Universal's lawyers sent out licensing bills to fans its marketing team had asked to pimp one of its movies for free. Universal keeps a tight grip in an attempt to control everything to do with its products, in other words. But when the internet is involved, such attempts at control can go horribly, horribly wrong. Such is the case with the recent leak of an unfinished trailer for the upcoming film The Mummy. Yesterday morning very few people knew that a new version of The Mummy will be on the big screen next summer. That changed quickly when an unfinished trailer of the film was accidentally put online by IMAX’s YouTube account. As it turns out, the trailer where Tom Cruise is screaming without sound effects is quite an entertaining watch. Soon, the mistake was reposted all over the Internet, where it triggered a meme fest. Great promotion for the film, one would think, but the bosses at Universal Pictures weren’t smiling. Let me make this more clear: this trailer, and memes incorporating it, were everywhere these past couple of days. And, to a lesser extent, they still are out there. Not with any sort of approval by Universal, of course, whose lawyers have been firing off DMCA notices to take down the trailer wherever they can find it. On Twitter alone, several people had their postings removed over copyright infringement claims. According to the movie studio, the “leaked” trailer is not for the public’s eyes. “The uploaded trailer was a leaked version without sound fx. This was accidentally released online but is not intended to be available for public viewing. We have removed it from YouTube, but it is still populating on Twitter,” they write. Indeed it is, and it's not difficult to understand why. On the one hand, the trailer without sound effects and music is truly hilarious and entertaining. In fact, one wonders if any polished and completed trailer could garner so much attention as this unfinished one. On the other hand, it's quite interesting to get a glimpse at what the unpolished footage looks like, and to understand how much a musical score and sound work add to the experience. Whichever angle you come at it from, it's fun. And it was a massive opportunity for Universal Pictures to join in on the fun, be awesome and human, and enjoy all of the massive and free publicity its unreleased movie was suddenly getting. Sure, the trailer is goofy without the production values the completed product will enjoy. But so what? Everyone understands that. And everyone realizes that the studio had no intention of the public seeing this version of the trailer. But now that it's out, Universal should be doing everything it can to supercharge the viral nature of all of this free publicity and bending some good will from the public. Instead, they are trying to shut the whole thing down. Which, of course, isn't working. As a result, many copies that were posted on Twitter, YouTube and elsewhere are no longer working. However, there is so much interest in the trailer that Universal can’t really keep up. For every video that’s pulled offline, several others appear elsewhere. It seems virtually impossible at this point to put the genie back in the bottle. In fact, the trailer has become a fertile breeding ground for memes, with people adding their own soundtrack or using Tom Cruise’s scream as the modern-day Wilhelm scream to pimp other videos. And this sort of thing will only be furthered now that reports are out about Universal's attempt to unring the bell. So, the lawyers will accomplish nothing other than to create animosity where there was once only interest. Great job all around. Permalink | Comments | Email This Story

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Reuters has an interesting piece looking at how many experts are concerned that mass surveillance efforts by the federal government are making a mockery of the 4th Amendment. The focus of the article is on the scan of all Yahoo email that was revealed back in October, but it certainly touches on other programs as well. The concern is easily summarized by Orin Kerr: "A lot of it is unrecognizable from a Fourth Amendment perspective," said Orin Kerr, a former federal prosecutor and Georgetown University Law School expert on surveillance. "It's not where the traditional Fourth Amendment law is." But, have no fear, the General Counsel of the Office of the Director of National Intelligence, Robert Litt, says there's a reason for that, and it's all technology's fault. We've covered Litt and his somewhat nutty views on the 4th Amendment and surveillance in the past, so the following isn't new. But Litt's main defense of basically all of the NSA's various abuses and mocking of the 4th Amendment is "it's technology's fault." He's quoted twice in the article, and both times, it's all about the tech. First up, an argument that the traditional 4th Amendment doesn't apply, because technology: "Computerized scanning of communications in the same way that your email service provider scans looking for viruses - that should not be considered a search requiring a warrant for Fourth Amendment purposes," said Litt. Later he is mentioned as making a similar argument. ODNI's Litt wrote in a February Yale Law Review article that the new approach was appropriate, in part because so much personal data is willingly shared by consumers with technology companies. Litt advocated for courts to evaluate "reasonableness" by looking at the entirety of the government's activity, including the degree of transparency. Indeed, we've pointed to Litt making similar arguments many times in the past and it all comes down to "Well, people share this stuff with Facebook/Google/Yahoo, etc.," so what's the big deal? The problem is that this argument is complete nonsense. People are making the decision to share such information with these services in exchange for the value that the service provides them. They have no such "user agreement" with the US government. In fact, the "user agreement" we have with the US government is the Constitution that has a neat clause (also known as the 4th Amendment) that such searches are not allowed. Don't like it? Too bad. Those are the rules. Litt's comments are beyond dishonest. It's one thing to compare the fact that people willingly give information to tech platforms, but that's completely different than saying that people are then okay for everyone's communications to be bulk scanned by the intelligence agencies "just in case" -- and all done without a warrant. The fact that technology has changed doesn't change the Constitution. Litt took an oath to protect the Constitution and he seems to, instead, be focused on doing exactly the opposite: coming up with sleazy rationalizations for why he'd give his stamp of approval on blatantly unconstitutional activity.Permalink | Comments | Email This Story

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Free your audio from wires with these AirBeans True Wireless Stereo Earbuds, perfect for working at your desk, exercising, or just making calls throughout your day without distraction. Featuring Bluetooth 4.1 technology and noise reduction, these earbuds stream crisp, powerful sound from your device without any lag. The magnetic charging case automatically charges the earbuds up when they're not in use and can add up to 6 hours of additional playback time. The AirBeans are on sale for $69.99 in the Techdirt Deals Store. 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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With the Donald Trump administration fully taking shape, lobbyists for basically every industry (yes, including tech and internet companies) are groveling before the President with whatever their pet projects are. The latest to put together a letter is the Association of American Publishers, via its top lobbyist Allan Adler. You may recall Adler from a few years ago, in which he explained why his organization opposed a copyright treaty for the blind, noting that his members were upset about the idea of ever including user rights in international treaties, and only wanted to see international agreements that focused on stronger copyright protections. So, you get a sense of where he's coming from. The letter to Trump is pretty much what you'd expect from a lobbyist for a bunch of legacy publishers wedded to an outdated business model, but there were a few things I wanted to call out. First, Adler and the AAP blatantly misrepresent the Constitutional copyright clause to pretend it says something quite different than it really says or mean. In the U.S., publishers continue investing in innovative technologies and business models to support the creation and dissemination of works of original expression, by novice as well as celebrated authors. Their ability to get those works into the marketplace, without interference from government and with the key assets of their exclusive rights in such works acknowledged as legally-safeguarded intellectual property, is protected by the First Amendment’s guarantee of freedom of speech and the Constitution’s clear recognition that “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” will “Promote the Progress of Science and useful Arts.” (Article 1, Section 8, Clause 8) First of all, it's a neat trick to claim that copyright is "without interference from government." The entire setup of a copyright system is a government interference with the free market. Now, you can argue that that interference is necessary to prevent free-riding, but to state that copyright is somehow a free market concept is just wrong. But, more importantly, notice the Constitutional explanation, which blatantly misrepresents the actual Constitution. The trick is played by the insertion of the single word "will" between "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" and "Promote the Progress of Science and useful Arts." Nowhere in the Constitution does it say that such protections will promote the progress. Instead, it gives the power to Congress (not the President, I should note), to set up such monopolies if it is determined by Congress to promote the progress. To flip that is dishonest. It falsely suggests that any exclusive rights to authors and inventors automatically promotes the progress of science and the useful arts. And yet, we have 200+ years of examples of how that's not true -- including more than a few cases in which Mr. Adler's members have proactively blocked and harmed the progress of science through abuse of monopoly powers. To pretend that the Constitutional clause on copyrights and patents means that any and all monopolies are good is ridiculous and misleading. Next up, Adler falsely compares copyright to trademark... and (of course) tries to flatter Trump in the process: Surely you understand the role that meaningful intellectual property rights play in American entrepreneurial success, both at home and in global markets, as the ability to burnish the Trump brand through trademark registration and enforcement has helped your diverse enterprises to grow and thrive world-wide. Consistent with that understanding, your businesses have been active at the U.S. Trademark Office and in the courts when necessary to exercise your statutory rights to prevent infringement or dilution of your brand. Whether operating on a commercial or non-profit basis, publishers’ reliance on their ability to secure adequate copyright protection and effective copyright enforcement, under both federal law and a variety of international agreements, is as critical to their success as the maintenance of trademark protection has been for your business endeavors. It is essential to their ability to publish in the U.S., where readers of all ages, origins and interests can relish discovering and digesting works that entertain or inform them while enriching the cultural, historical, political, and scientific record of American society. Except, of course, that trademark and copyright are two totally different legal doctrines, and have only been merged into the mythical "intellectual property" bucket by lawyers trying to increase their billing rates. Copyright, as noted above, comes from a specific clause in the Constitution and is about promoting progress. Trademark comes from commercial codes and was, initially, a form of consumer protection against allowing one company to appropriate the brand of another for the purpose of confusing consumers. That's a very different ancestry and purpose of the law, and lumping them together is silly. The way both work is different. The way they're enforced is different. And their purpose is different. Finally, Adler and the publishers join with the RIAA and others in asking Trump to dismantle key protections built into copyright law that have enabled the internet to grow and to thrive. Because the publishers don't seem to like competition very much. Provisions of the Digital Millennium Copyright Act (“DMCA”), which Congress enacted in 1998 to encourage online availability of popular copyrighted works while promoting a balance of interests and cooperation between copyright owners and Internet service providers in dealing with online infringement of such works, wildly succeeded in encouraging such availability. However, the relevant DMCA provisions do not achieve that intended balance and cooperation due to numerous instances of judicial misapplication and the unanticipated appearance of service provider business models that foster, exploit and profit from online infringement by their users while offering only token compliance with the law. The current epidemic of online infringement harms public as well as private interests in the availability of such works, and the legal flaws that hamper the DMCA in its intended operation need to be fixed by our nation’s elected representatives. Citation needed. The "epidemic" of online infringement is not as big as they're making it out to be, and this is from an industry that has regularly charged insane monopoly rents on things like textbooks and scientific journals. In fact, for them to be complaining about "judicial misapplication" when their industry has massively benefited from a ridiculous ruling that claimed that copy shops were violating copyright law -- which allowed course packs at universities to jump in price from around $30 to around $200 -- is simply crazy. Yes, every industry is going to advocate for their own interests, but this constant lying and misrepresentation about copyright law to the incoming administration is getting pretty ridiculous. We truly have reached a post-fact society, and the lobbyists are going to exploit that as much as possible. It's only that much more ridiculous that it's coming from a representative of an industry that claims to be promoting knowledge and learning.Permalink | Comments | Email This Story

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We've seen lots of terrible responses to negative reviews and other online criticism -- most of which end with the offended party having earned plenty of new enemies and gained nothing at all in the reputation department. If it's not completely bogus libel lawsuits, it's bogus fees being charged to end users for violating non-disparagement clauses buried deep within the company's terms of service. Fortunately, a federal law going into effect next year will limit some of this bullshit behavior. It won't prevent companies and individuals from filing bogus libel lawsuits, but it will prevent entities from using contractual clauses as prior restraint on negative reviews and criticism. This tactic, however, is a new twist on the old "punish customers for negative reviews" game. A user of Ham Radio Deluxe wasn't too happy with its apparent incompatibility with Windows 10. He posted a negative review of the software at eHam.net, calling out the company for its seeming unwillingness to fix the underlying issue. I purchased HRD 6.3, only to find out Windows XP was not supported. So, I installed HRD on a brand new Windows 10 machine, and everything appeared to be working fine. Then, I installed Office 365, and it broke the LogBook. Known problem, they say. There is a whole page devoted to telling you how to tweak the registry, download things, repair files, etc, etc. Alright guys, enough is enough. If you have known problems, like compatibility issues with Microsoft products, you need to release a hotfix. It would take a day to create a script to do all of the things your page says to do, and it would be idiot proof. Nobody should ever have to edit their registry because of a compatibility issue caused by your software using an old jet driver and ODBC for communications. ESPECIALLY if the issue occurred from installing a tried and true product like Office. [...] I can see a lot of development time went into the bells and whistles, but for goodness sake, make it a little more user-friendly and a little more stable before pushing it to market. I'd expect bugs and lengthy configuration procedures in free software. Caveat emptor. Know what you're getting before you drop the money on software that, in my opinion, is not mature. Sorry guys, I've tried to love it. It just isn't worth the price. Nothing out of the ordinary here. A dissatisfied customer airs his grievances about a purchased product. The user also opened a support ticket with HRD Software hoping it could solve his problems. HRD Software replied to the ticket, telling the user to download a patch for the malfunctioning software. The version of HRD you indicated IS NOT the latest release... Current Version: V 6.3.0.610 In order to provide proper support for your issue and to insure we are all on the same version, please download and install the current version of Ham Radio Deluxe. It can be downloaded by clicking on or copying and pasting http://www.hrdsoftwarellc.com/downloads.html into your favorite browser, to take you to the HRD Software Download page on our website.   You could also click on the Current Version link in the "HRD Help Links" to begin an immediate download. Once you have downloaded and installed the current release of HRD, please test it thoroughly to see if the issue you have been having has been resolved. Seems normal enough. But more problems developed. I've tried to install the update according to your directions. Now when I click on the HRD icon, I get the splash screen from version 6.3.0.610 for about a second, and then it disappears and nothing else happens. Was I supposed to uninstall the old version first? I downloaded the setup.exe file you highlited above.   I am now completely dead because of a minor problem. This is exactly what I was trying to avoid. Please advise what steps to take from here. This is a new computer and v610 was a fresh install. Thank you The company's response? We've intentionally bricked your software because of your negative review at eHam. We would also like to request that you NOT RENEW your support nor use our software due to the review you placed on eHam back in September. Remember that? http://www.eham.net/reviews/review/143372 The "customer support" at HRD Software then pointed the user to its terms of service, stating that it had the right to do what it had just done. HRD Software reserves the "right" to "disable a customer's key at any time for any reason." Then it told him the blacklisting would be revoked if he removed his negative review. Bonus: mention of a capital-A "Attorney" for added seriousness, I guess. If you remove the eHam review, which was blatantly false, we will remove the blacklist from you call. You are not buying software, you are buying your callsign's access to the software. the so called bug you reported is not one in HRD, but one in the CAT commands of the FT­3000 radio, which have been verified with yaesu. Again refer to section 8 of the TOS, which was written by our Attorney. And with that, HRD Software set its reputation on fire. A long thread at QRZ.com is the ham enthusiast forum's version of Sherman's March to the Sea, with HRD being razed to the ground like so many antebellum mansions. But there's a twist: 37 pages into into this forum's discussion of HRD's brutally inept handling of a customer complaint, the co-owner of the company wades into the fray and apologizes. Then he spends the next twenty-plus pages engaging with the ham radio community in hopes of fixing issues, past and present, and somehow salvaging a future out of the barely-glowing embers of its reputation. So do some other members of the HRD team -- including one who threatened the user with a lawsuit on top of bricking his paid-for software. They're not met with much enthusiasm, but it's a far better response than ignoring the issue and/or sniping back with more complaints about the behavior of paying customers. In any event, this is yet another addition to the growing body of knowledge filed under the heading of "Customer Service: You're Doing It Wrong." Permalink | Comments | Email This Story

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Back in October Google Fiber confirmed that all was not entirely well at the disruptive broadband provider. The company announced that not only would it be shaking up its executive leadership, it would be eliminating some Google Fiber employees and putting a hold on fiber deployment to around nine cities (existing builds will continue, however). There were several reasons for the shift, the biggest being that the company wasn't happy with the time it was taking to build networks from scratch, and was considering a notable pivot to next-generation wireless to save both time and money. But subsequent reports have suggested there's a notable split among Google/Alphabet executives as to the future direction of Google Fiber. Bloomberg recently unveiled some additional new details on this, noting how part of the underlying issue is that Alphabet CFO Ruth Porat has been engaged in some purse string tightening at the Mountain View giant. But the report also touches on the fact that Larry Page apparently grew tired of the slow pace of disruption in the telecom space because digging ditches isn't "flying saucer shit":"But seeking permits to lay fiber is time-consuming and digging holes expensive. Former employees say Page became frustrated with Fiber’s lack of progress. “Larry just thought it wasn’t game-changing enough,” says a former Page adviser. “There’s no flying-saucer shit in laying fiber.” In October the company announced that it was dismissing around 130 staffers and halting the expansion of the fiber network in eight cities. Barratt resigned that same day."In addition to navigating a labyrinthine maze of antiquated underground urban infrastructure, Google Fiber has faced all manner of delays caused by incumbent broadband providers like AT&T and Comcast, who work tooth and nail to hamstring Google Fiber and other competitors. From protectionist state laws intended to prevent cities from striking public/private partnerships, to attempts to prevent Google Fiber from quick access to utility poles, these companies have decades of experience using cash-compromised state legislators and regional regulatory capture against would-be competitors. But this is all stuff Google Fiber knew full well before throwing its hat into the telecom arena. And while Page may not think that providing a desperately needed alternative to the existing broadband duopoly is "flying saucer shit," Google Fiber's impact on the market has been transformative all the same. Even with Google Fiber's admittedly sparse footprint, the mere presence of the service results in ISPs dramatically dropping prices and boosting their own deployments of gigabit service. Google Fiber's mere existence also created a necessary national dialogue on the sorry state of U.S. broadband competition. Previous reports have suggested that executives at Google were split over Google Fiber, with some wanting the company to stay the path with fiber, and many others believing that wireless will be good enough. But the Bloomberg report is quick to highlight how many also worry this is just the latest example of Google's inevitable shift from risk-taking disruptor, to a notably blander legacy-turf-protection machine:"These changes have prompted many in Silicon Valley to accuse Page of bowing to investor pressure—in other words, of acting like a CEO of a normal, publicly traded company. “It definitely looks like a more conventional company,” says Randy Komisar, a partner at Kleiner Perkins Caufield & Byers. “It’s the classic GE conglomerate model,” he says, comparing Page to Jack Welch, famous for turning General Electric around by shedding research divisions and slashing costs."With the incoming Trump administration making it very clear the goal is to defang and defund the FCC, Google Fiber's path could get even more complicated in the form of fewer regulatory allies in the fight against incumbents. While the Google Fiber shift to wireless could still pay notable competitive dividends, it's still entirely within the realm of possibility that Page and friends get bored with Google Fiber entirely in a few years, leaving the effort as just another footnote in the never-ending quest to bring something vaguely resembling real price competition to bear on Verizon, AT&T, Comcast and Charter.Permalink | Comments | Email This Story

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Another nice win for free speech and online criticism has been handed down by the Michigan Court of Appeals in a defamation lawsuit targeting commenters at PubPeer, a site dedicated to anonymous reviews of published research. As is often the case with any site dedicated to criticism, PubPeer's users managed to anger targets of their comments and commentary. In 2014, a prominent cancer researcher sued several anonymous PubPeer users for defamation. He alleged that they defamed him by pointing out anomalies in his research, and he claimed that their comments cost him a tenured position with a university. Through the lawsuit, the researcher obtained a subpoena requiring PubPeer to disclose the users’ identifying information. Dr. Fazlul Sarkar claimed this case was about "tortious interference" with his career and "not about free speech." He also claimed the comments were defamatory. Sarkar tried to unmask five commenters, but the Michigan trial court trimmed that number down to one. PubPeer fought back, challenging this single unmasking attempt. After reviewing the multiple pages of comments submitted as evidence of his defamation claims, the Appeals Court cannot find anything approaching the libelous subject matter Sarkar claims he sees. The court refuses to do his work for him. From the opinion [PDF]: After reviewing these paragraphs, we conclude that they are facially deficient and unable to survive a motion for summary disposition pursuant to MCR 2.116(C)(8). As stated above, “[a] plaintiff claiming defamation must plead a defamation claim with specificity by identifying the exact language that the plaintiff alleges to be defamatory.” Ghanam, 303 Mich App at 543 (citation and internal quotation marks omitted).14 Here, minimal language is specifically identified in these paragraphs in the complaint, and Dr. Sarkar apparently relies on the trial court and this Court to visit pubpeer.com and learn the underlying science at issue to determine whether the statement constitutes a potentially defamatory accusation. In essence, we would be left searching the webpages that he cites to in hopes of finding comments that do or do not support his claim. This is his, not our, burden, and we decline to do so for him. That disposes of most of Sarkar's libel claims. The few remaining comments that veer closer to defamation still aren't, as the commenters' statements were based on the thing that causes a great many libel lawsuit fatalities: facts. Assuming that these paragraphs are facially sufficient, we nevertheless conclude that they are also unable to survive a motion for summary disposition pursuant to MCR 2.116(C)(8). While we are unable to find any Michigan caselaw specifically addressing comments of this nature, other jurisdictions, both federal and state, have addressed similar issues on many occasions. In doing so, they have recognized “that when a speaker outlines the factual basis for his conclusion, his statement is protected by the First Amendment.” Partington v Bugliosi, 56 F3d 1147, 1156 (CA 9, 1995). This is true even if the speaker expresses his or her opinion anonymously. Each of the paragraphs above reflect the speaker’s opinion based on underlying facts that are available to readers. And, since Sarkar's claims fall short of the defamation mark, any effort taken to unmask the sole remaining commenter would be detrimental to their First Amendment protections. The court says Sarkar cannot unmask any of the PubPeer commenters and strongly hints that further pursuing any defamation claims against any of the commenters is just going to be a waste of the Sarkar's time and money. The court's decision to protect the anonymity of these commenters is a First Amendment win overall, but especially important for those in the scientific community, as Adam Marcus and Ivan Oransky point out. Why is anonymity so important to science? A few reasons. The first: Many people in a position to observe questionable research practices in a lab are underlings — postdocs, students, and others of similarly low station. Like the indentured servants they for all practical purposes are, they’re powerless against lab heads and senior members of the faculty. The shield of anonymity is a crucial protection against retribution. In addition, even peers may not feel comfortable making public allegations or questions about a colleague’s work, for obvious reasons. They may doze through the same department meetings, sit on the same editorial boards, or be active in the same professional societies. And, specifically for PubPeer, this means post-publication research can be examined, questioned, and criticized with a reduced fear of reprisal. The scientific process doesn't end with publication, and the court's decision here solidifies protections for this essential aspect of online discourse. Permalink | Comments | Email This Story

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I'm going to keep ringing the warning bell about how the explosive growth in the beer and wine businesses has resulted in a similar explosion in trademark disputes until people start listening. An industry that has benefited from so much interest and competition is eventually going to find itself with a massive litigious roadblock on its hands if something isn't done. That said, the typical trademark dispute in the alcohol spaces normally deals with fairly creative names, artistic labels, or cross-industry trademark concerns. Less common are the types of trademark disputes in which the trademark in question is laughably broad or common. Less common, but not completely absent, however. In Australia, for instance, one winery sued another over a trademark it holds on the word "signature." The suit failed for exactly the reasons you're thinking of. Yesterday the court dismissed an application by Yalumba against the Jacobs Creek Reserve Barossa Signature range, which claimed the Pernod Ricard term infringed on the Yalumba trade mark, “THE SIGNATURE”. The fight was provoked by Yalumba owner Robert Hill-Smith when Pernod Ricard released three Jacobs Creek red wines in September 2015 with “Barossa Signature” on the label. In her judgment today, Natalie Charlesworth said the case came down to three questions: whether Pernod Ricard used the words “Barossa Signature” appropriately under the Trade Marks Act, whether it was deceptively similar to the Yalumba Trademark, and whether Pernod Ricard used the term “in good faith to indicate the kind, quality, intended purpose, geographical origin or some other characteristic”. In the ruling itself, Charlesworth goes on to answer those three questions, though she stops herself after the second of them. She reasons that if Prenod Ricard used the words appropriately under the law, as she affirms, and that such use is not going to confuse the public into the origin of the product, as she also affirms, then the answer to the third question doesn't matter. She goes on to note the differences in trade dress and also notes that the trademarked term "The Signature" is devoid of origin-defining value. Therefore, the lawsuit is dismissed. As is typical, the ultimate fault for all of this is upon whoever thought approving a trademark for a term like "signature" for an industry overflowing with "signature" labels was a good idea. The term is generic in identifying premier products within a brand. It's used all over the place. How this trademark application ever passed the smell test in Australia is beyond me. Permalink | Comments | Email This Story

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The easiest way to thwart a public records request is to demand a ridiculous amount of money up front. The McKinney Texas Police Department tried to chase away a request for records on a controversial cop by asking for $79,000 to fulfill it. Florida's state attorney's office stiff-armed a mother requesting official documents related to her own daughter's suicide by telling her it would cost at least $180,000 to round up the records. Even the federal government gets in on this action, with the FBI telling MuckRock it would cost more than a quarter-million dollars to deliver its records on government contractor Booz Allen. Here we have more of the same… only with even higher fees and a government agency plainly uninterested in fulfilling a request. Back in February, a nonprofit group called Reclaim the Records filed requests for Missouri birth and death listings from 1910 through 2015. The California-based outfit describes itself as a “group of genealogists, historians, researchers, and open government advocates who are filing Freedom of Information requests to get public data released back into the public domain.” The group sought the information under Missouri’s Sunshine Law. After more than four months, the Missouri Department of Health and Senior Services (DHSS) finally got back to Reclaim the Records with an estimate of what its request would cost. A letter from the legal office of the department estimated the birth list would take the agency 23,376 hours to compile and the death list 11,688 hours. At $42.50 an hour, the tab came to an eye-popping $1.5 million. Faced with a $1.5 million tab, Reclaim the Records went with the cheaper option: hiring a lawyer. Kansas City attorney Bernard Rhodes wrote a letter to the department suggesting it could handle this on a range-of-years basis (rather than the per-day search the DHSS proposed) for a presumably much lower cost. The letter resulted in savings of nearly 100%. A few days after that, [DHSS General Counsel Nikki] Loethen emailed Rhodes and told him the department was revising the cost estimate down – to around $5,000, or a 99.7 percent decrease. If this fee sounds reasonable, it's only in comparison to the $1.5 million the DHSS wanted earlier. What should be a simple search of existing digital records was being made needlessly complex and expensive by the DHSS. Rhodes suggested the department utilize a single search covering several years at a time, rather than the options the DHSS had proposed. At that point, the DHSS decided it was no longer interested in working with Reclaim the Records. A few days later, however, Loethen advised Rhodes that the department would refuse to provide the records altogether. I guess this is Plan B. When Plan A -- make requesters an offer they can't refuse accept -- doesn't work out, the next move is generally summed up in two words: "Sue us." Reclaim the Records has now joined countless other individuals and entities in suing the government to release records that rightfully belong to the public. And in Missouri, the DHSS's responses are pretty much just normal government business. Reclaim the Records’ dispute with DHSS comes against the backdrop of a November report by Missouri State Auditor Nicole Galloway on local governments’ compliance with the Sunshine Law. Galloway’s office made public records requests of 326 randomly selected political subdivisions in the state, and more than a third failed to respond in a timely fashion and another 15.5 percent didn’t respond at all, the report found. Galloway estimated that 65.3 percent “would not fully comply with public record requests.” “By failing to properly and timely respond to requests or denying requests unjustifiably, political subdivisions risk fines, lawsuits, and loss of credibility with their constituency,” the report stated. Perhaps it's time for the state to come up with a new slogan. The "Show Me" state isn't showing much. And it's charging some every excessive admission. What makes this all worse is Reclaim the Records knows the records request could be fulfilled very easily. The same data the nonprofit is requesting is already available. The state sells this data to third parties but won't turn them over to a public records requester. Unlike several states, Missouri doesn't make this data openly available by publishing it online. It locks it up and charges for access, and one imagines the $1.5 million it asked Reclaim the Records for is far higher than it would have charged if the nonprofit had simply asked to buy it. Permalink | Comments | Email This Story

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Over the past few years, we've written about a series of truly nutty court decisions in Australia that have found Google and Yahoo liable for defamation for certain search results. In writing about it, we've seriously angered some of the plaintiffs in those cases, including one who went on a rampage posting a bunch of blatantly made up info about us, apparently thinking they were "proving a point" about how we'd get upset about defamatory material being posted about us. Another, Milorad Trkulja, sent us one of the nuttiest legal threats we've ever seen, which was then followed up with an even more ridiculous threat from an Australian lawyer who seemed to not fully understand the legal threats he was making (nor the difference between "drivel" and "dribble.") Mr. Trkulja is back in the news, as it seems his luck with the Australian courts has run out. If you don't recall, the origin of his case was that if you did a Google image search on Australian organized crime, sometimes Trkulja's own image would show up. Trkulja sued Google and Yahoo over this and (somewhat amazingly) won, with the effective argument being that once Trkulja alerted them to this they should have fixed the search results. There are a number of reasons why this is a bad decision, as we've discussed in previous posts, but suffice it to say, holding a search engine liable for search results people don't like opens up a huge pandora's box of problems. Anyway, it seems that these kinds of lawsuits have become more popular in Australia, with another one appearing just last month. But, Trkulja's attempt to get even more money from Google has come up short on appeal. In 2013 he launched another defamation action against Google, and the internet company responded by applying to the Supreme Court to have the proceedings set aside because, it argued, his case had no real prospect of success. A judge dismissed Google's application. But Google appealed against that ruling, and the Victorian Court of Appeal ruled on Tuesday in Google's favour when it set aside Mr Trkulja's application. The Court of Appeal found Google was not the primary publisher of the images and could not be found responsible for the results of online searches, which were produced automatically. The search results were also incapable of being found defamatory of Mr Trkulja, the appeal court ruled. Finally some good news on these kinds of cases down under. And, because Trkulja and friends may stop by here and freak out again, let's be clear about what we're saying: no one is saying that it's good that Google's search results popped up some unfortunate anomalies around your images. But it happened. That doesn't mean that Google is liable, or that you should have the right to edit Google's search results by lawsuit (or to demand lots and lots of cash from Google). Search engines aren't doing this on purpose, and it's not defamatory. It's just giving the best results it can, and sometimes those aren't perfect.Permalink | Comments | Email This Story

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Over the summer, we noted that the Advocate General for the European Court of Justice had sort of punted on the issue of whether or not the UK's Data Retention and Investigatory Powers Bill (DRIPA) was actually legal. Thankfully, the final ruling is much clearer: "general and indiscriminate retention" of emails and other electronic communications is illegal in the EU according to the court. The only thing that is allowed is targeted interception, used to combat "serious crime." This is a pretty big deal, as the original recommendation from the Advocate General had suggested that DRIPA might be found legal. Of course, DRIPA is in the process of being superseded by the even worse Investigatory Powers Bill, better known as the Snooper's Charter. If DRIPA violates the law, than the Snooper's Charter almost certainly does so at an even greater level. Of course, there is some irony in all of this, in that the case that came to the CJEU was brought by a Member of Parliament, David Davis, who is now the "Brexit Secretary," meaning that he's helping to organize the process by which the UK will be removed from the EU... such that it may not even matter what the EU's Court of Justice has to say on the matter. The UK has also made it clear it's going to appeal the decision, meaning that it will get to drag this process out as long as possible, potentially until the Brexit process is completed, at which point the ruling will not matter. Still, it should at least raise question in the UK about why their politicians are granting the government powers to snoop on every member of the public at a level that goes way beyond what is considered appropriate.Permalink | Comments | Email This Story

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For many years now we've been covering the ridiculous legal disputes over pre-1972 sound recordings. Without going into all of the history, the short version is that while music compositions have long been covered by copyright, the actual sound recordings were not until the early 1970s, going into effect in early 1972. Under the legal regime at the time, the 1909 Copyright Act, it was widely accepted that sound recordings could not qualify for copyright under federal copyright law until that law was changed in the run-up to the 1976 Copyright Act. However, due to a lot of lobbying, many states set up either state-based copyright regulations, or a common law regime through the courts, that recognized certain copyright-like exclusive rights in sound recordings. These were all basically wiped out with the 1976 Act, which included a preemption clause that basically said all copyright is now federal and state copyright law is wiped out. That left a gray area, though, for pre-1972 sound recordings, which technically weren't covered by federal copyright law, but it was unclear if state law applied. That created some problems, including extending the length of copyright on those sound recordings way, way, way beyond when they would have gone into the public domain. A few years ago, we wrote about how these state laws were potentially leading to the permanent loss of classic jazz recordings that might never reach the public domain, and which no one can actually listen to. There's an easy solution to this, which is just to extend federal copyright law to pre-1972 sound recordings and put them under the same regime as everything else (which has it's own problems, but it's better than the mess we're in now). But, of all things, the RIAA and record labels have rejected this, mainly because they see these state laws as a great tool to squeeze extra money out of companies (and to avoid those works ever reaching the public domain). After years of arguing over what to do about pre-1972 works, the recording industry finally just started suing everyone over the use of pre-1972 sound recordings. The key issue was about public performance rights. To understand this, we have to wade further into the weeds. Federal copyright law gives copyright holders a number of "exclusive rights" under copyright. The ones you mostly hear about are the reproduction right and the distribution right. But there's also the right to prepare derivative works and the right "to perform the copyrighted work publicly." That public performance right was a relatively new concept, and had never been seen in the various state copyright regimes prior to the 1976 Copyright Act that then (mostly) abolished state copyright laws. In fact, public performance rights in federal copyright explicitly excluded sound recordings -- until 1995 when a new copyright law extended public performance rights to sound recordings, but solely for digital radio services (and not to radio, restaurants, stores, bars, etc). But the recording industry's theory was that even if sound recordings weren't under federal copyright law, when federal copyright law created a public performance right, that right magically moved over into state copyright law as well... and, magically, it applied to all the stuff that federal copyright law said it didn't cover (though, at the same time, they insist that things like the DMCA's safe harbors do not translate into state copyright laws -- which is a neat trick). The lawsuits to date have been a mixed bag. Sirius lost some early rounds, upsetting decades of consensus about copyright law. The first case it lost was in California, but soon after it lost a case in New York as well, even as the judge admitted this upset decades of consensus. A court in Florida eventually sided with Sirius, but the company then quickly settled with the RIAA. However, the case in NY was appealed and Sirius has now won on appeal. This is a pretty big deal. The full ruling is long, but worth reading. As the court rightly notes (and as we did back when the original decision came out, only to be mocked by copyright maximalists) this would upset decades of widespread consensus over what state copyright laws covered, and that makes no sense at all: Indeed, it would be illogical to conclude that the right of public performance would have existed for decades without the courts recognizing such a right as a matter of state common law, and in the absence of any artist or record company attempting to enforce that right in this state until now. The absence of a right of public performance in sound recordings was discussed at the federal level for years and became acutely highlighted in 1971, upon enactment of the Sound Recording Amendment, and again in 1995, upon enactment of the DPRA. At those times, all interested parties were placed on notice of the statute's limited rights for post-1972 sound recordings. Although parties do not lose their rights merely by failing to enforce them, the fact that holders of rights to sound recordings took no action whatsoever to assert common-law protection for at least the past four decades -- when the absence of a comprehensive federal right of public performance for sound recordings was clear -- supports our conclusion that artists and copyright holders did not believe such a right existed in the common law. Instead, common sense supports the explanation, articulated by the Third Circuit, that the record companies and artists had a symbiotic relationship with radio stations, and wanted them to play their records to encourage name recognition and corresponding album sales The court notes that, yes, the industry has changed due to technology, but that's no excuse for the recording industry to suddenly pretend that these rights existed for decades and everyone ignored them until now. Simply stated, New York's common-law copyright has never recognized a right of public performance for pre-1972 sound recordings. Because the consequences of doing so could be extensive and far-reaching, and there are many competing interests at stake, which we are not equipped to address, we decline to create such a right for the first time now. Given that, the court says, if there needs to be such a right, it should be created by the legislature through laws, not the court making it up as it goes along. The court further notes that Congress carefully analyzed this issue, and it would be wrong for courts to rush in -- especially since without the balancing act of legislators, it might create a right that (you guessed it...) the record labels would use to scoop of money without giving any to the artists: We cannot ignore the fact that Congress studied the nature and scope of the right to the public performance of sound recordings for nearly two decades before revising the federal statutes to recognize a limited right. Indeed, in 1976, Congress "considered at length the arguments in favor of establishing a limited performance right, in the form of a compulsory license, for copyrighted sound recordings, but concluded that the problem require[d] further study".... As directed by the Copyright Act of 1976, the Register of Copyrights submitted a voluminous report in 1978, recommending that Congress enact a limited right to control public performances of sound recordings. Not until 1995 did Congress take action on that recommendation and enact any such right and, even then, the right it created was a narrow one circumscribed by a nuanced regulatory scheme limited to digital transmissions of post-1972 sound recordings.... Moreover, as part of that statutory scheme, Congress included a requirement that the copyright holder pay a portion of the royalties to the recording artist; even if we were to recognize a common-law copyright to public performance, there is no guarantee that the artists would receive any portion of the royalties, as many copyrights are apparently held by the record companies. Ultimately, it cannot be overstated that, if this Court were to recognize a right of public performance under the common law, we would be ill-equipped -- or simply unable -- to create a structure of rules to properly guide the application of that right. There is a dissent, that says the court can just use federal copyright law's public performance rights and move them over to state copyright law, but the majority opinion points out what a mess that would create. While the dissent notes that the federal law reflects Congress's balancing of the varied and competing interests involved, this only highlights that a legislative body -- not the courts -- should make decisions regarding such a right. Additionally, it would be highly unusual for this Court to simply adopt federal statutes as the embodiment of the scope of a state common-law right. Moreover, as a practical matter, not all aspects of the complex federal scheme can be directly incorporated under our common law. For example, in the DPRA, Congress provided a means of determining reasonable rates and royalty payments, including a dispute resolution system.... However, state courts have no authority to require the federal Copyright Royalty Judges to adjudicate challenges to royalty rates on pre-1972 sound recordings ... nor do we have the authority to create a New York State version of that dispute resolution system. There's also a somewhat weird concurring opinion, that agrees that there's no public performance right, but based on nothing at all, theorizes that services like Spotify and Apple Music (which are not parties to this particular lawsuit) may have issues with violating the exclusivity in publishing rights. With respect to the fourth step on my continuum, certain Internet broadcasters -- such as Apple Music, Spotify's premium subscription, Rhapsody, and Amazon's Music Unlimited offering -- permit users to peruse a catalog of millions of songs and to "call them up on any device, including [one's] phone, anytime [one] wants".... In determining whether there is a common law right of public performance for recordings fixed prior to February 15, 1972, we necessarily have occasion to speak to the nature and the limits of such right. In the realm of federal copyright law, "publication" is defined as "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease or lending".... To allow a user to regularly, specifically, and directly access an exact sound recording "ondemand" is not to facilitate the "public performance" of such recording, but to publish that work and therefore to infringe upon the right of the copyright holder to sell it .... [....] We must recognize that the rental or lease of sound recordings fixed prior to February 15, 1972 by Internet broadcasters who provide the public "on-demand" access to such recordings is a form of publication under copyright law. It seems weird and unnecessary (in the extreme) for a judge to try to address a totally different situation, one that the court wasn't fully briefed on) involving parties who aren't even a part of the lawsuit. Obviously the concurring opinion has no precedential value, but it's troubling that the judge would jump to such a conclusion anyway. Of course, with this ruling conflicting with other rulings, this still seems like an issue that the Supreme Court is going to have to weigh in on. And... just last week, the Supreme Court was petitioned to hear another case involving pre-1972 works. This is another one that we've been following as well, where the record labels sued the online video site Vimeo, mainly over employee uploaded "lipdubs" of various songs. Part of the issue in that case was whether or not the DMCA's safe harbors applied to those pre-1972 sound recordings. While a district court rejected most of the arguments by the label, it did accept that pre-1972 sound recordings might not qualify for DMCA safe harbor protections. The 2nd Circuit appeals court overturned that ruling earlier this year, noting that it would make no sense at all for the safe harbors not to apply to pre-1972 works, because that would undermine the very purpose of the DMCA safe harbors. Capitol Records is asking the Supreme Court to overturn the 2nd Circuit on that issue -- which may or may not get to the other issues related to pre-1972 music... but it would be nice for the Supreme Court to sort this all out one way or the other.Permalink | Comments | Email This Story

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CloudApp Storm is the all-inclusive platform for capturing, annotating, and sharing anything from screenshots and GIFs to screen video recordings. Communication with your full team is a snap with CloudApp, allowing you to share via link or integrate seamlessly with hundreds of productivity services to streamline your workflow. We're offering deals on three different subscription packages: 1 year for $30, 3 years for $90, and 5 years for $150. 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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Oh lord. Another porn blocking bill. A state senator from South Carolina thinks he can save his constituents from a mostly-imaginary parade of horribles by erecting a porn paywall. Only none of this paywall money will go to porn producers or actors. Instead, it will all go to the fine state of South Carolina… you know, theoretically... if there were actually any way to effectively enforce this. An Upstate legislator is hoping to prevent anyone who buys a computer in South Carolina from accessing pornography. State Rep. Bill Chumley, R-Spartanburg, said the Human Trafficking Prevention Act would require manufacturers or sellers to install digital blocking capabilities on computers and other devices that access the internet to prevent the viewing of obscene content. The bill would fine manufacturers or sellers that sell a device without a digital blocking system installed. But any manufacturer or seller that didn't want to install the system could pay a $20 opt-out fee for each device sold. Any buyers who want the filter lifted after purchasing a computer or device would have to pay a $20 fee, after verifying they are 18 or older. Chumley justifies his stupid idea by saying he's trying to make a dent in human trafficking, which is the hot new "think of the children" excuse, what with child porn having had the wheels run off it for the last four decades and terrorism all tied up securing Stingrays and MRAPs for cop shops. Here's how the new "porn, please" monies will be distributed. The money collected from the fines and fees would go to the S.C. Attorney General’s Office's human trafficking task force, which works with law enforcement leaders, nonprofits and state advocates to find solutions to trafficking. What does porn have to do with human trafficking? Only Chumley seems to know. His bill [PDF] provides more verbiage, but nothing in the way of explanation. Whereas, the State of South Carolina has a compelling interest in protecting the public health and protecting minors from being exposed to obscenity; and Whereas, studies have shown that pornography is a public health hazard, leading to a broad spectrum of well documented individual impacts and societal harms; and Whereas, easily accessible pornography on products that are distributed through the Internet is impacting the demand for human trafficking and prostitution; and Whereas, the General Assembly has a compelling interest to impose a narrowly tailored, common sense filter system that combats the growing epidemic of dissemination of pornographic images and the resulting demand for human trafficking while balancing the consumer’s fundamental right to regulate his own mental health. Ok, then. So, porn "impacts" the demand for trafficked humans, presumably much in the way strip clubs "impact" the "demand" for rape victims. And that's preceded by the assertion that "pornography is a public health hazard," something backed up by "studies" (none named or footnoted, but echoing Utah's stance), which is every bit as questionable as Chumley's belief he can drop a $20 porn blocker into every computer sold in the state. The bill only gets more ridiculous from there. Whatever Chumley has half-assed together here will apparently rest on the big brains of tech companies that will just have to nerd their hardest to appease the senator's puritanical desires. Read it and weep [into your palmed face]: (B)    The business, manufacturer, wholesaler, or individual must: (1)    make reasonable and ongoing efforts to ensure that the digital content blocking capability functions properly, including establishing a reporting mechanism such as a website or call center to allow for a consumer to report unblocked obscene content or report blocked content that is not obscene; (2)    ensure that all child pornography and revenge pornography is inaccessible on the product; (3)    prohibit the product from accessing any hub that facilitates prostitution; and (4)    render websites that are known to facilitate any trafficking of persons, as defined in Section 16-3-2010(9), inaccessible So… any site that also contains pornographic images like Imgur would presumably be blocked, even though it isn't technically a porn site. And any site that might "facilitate" prostitution -- which could be any site in reality, but would include everything from Backpage to Craigslist, would also be blocked. How anyone's going to proactively block "revenge porn" is beyond me, as no site delivering revenge porn utlizes that term and the many people fighting against it have yet to come up with a cohesive definition, much less one that could be turned into a proactive algorithmic block. But all hope is not lost. Sites wrongly blocked by the default filter could be removed from the state's blacklist in as little as five business days, provided two things: the site contains enough non-porn-related virtues that Chumley deems it worth saving, and that the site makes its own proactive efforts to remove "obscene" images -- which, it must be noted -- is not the same thing as pornography. Not only will the state need to come up with a blacklist, but it also will have to set up a call center for people to report sites containing porn that aren't being blocked and to whitelist sites inadvertently caught in the $20 filter. Users who would like to see porn will at least have to turn over their IDs to computer sellers to verify that they are over the age of 18, along with a $20 bill. Device resellers who violate the law will find themselves subject to the same punishments facing South Carolinians who engage in incest, bigamy, sexual explotation of children, prostitution… um... adultery, buggery, etc. Apparently, the state's laws were last updated before the New Testament went to press. If the porn filter doesn't filter enough porn (and there's no porn filter being offered by the state -- retailers are expected to solve this problem on their own), sellers could be faced with a $500 fine for each image left unblocked. I would say this bill is on its way to being laughed out of the state Senate, but after viewing the sexual conduct laws still on the books, I'm no longer as sure. For what it's worth, Sen. Chumley is now an internet laughingstock -- something he's fully earned by coming up with perhaps the stupidest porn filtering idea yet. Permalink | Comments | Email This Story

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The FBI's search warrant for Anthony Weiner's laptop was unsealed and released yesterday. This isn't the warrant the FBI originally used to seize and search the laptop. That one was looking for evidence related to allegations Weiner sexted an underage girl. This warrant is the second search warrant for the same laptop, related to the discovery of emails to and from Hillary Clinton on it. This discovery during an unrelated search prompted Comey to write a letter to Congress informing it that he was going to be diving back into the Clinton email investigation. The second dive into emails stored on the laptop by former Clinton aide (and estranged spouse of Anthony Weiner) Huma Abedin resulted in the discovery of nothing the FBI hadn't already seen. Comey apologized for getting everyone hot and bothered by his shouting of "CLASSIFIED!" in a crowded electoral season, but believed his actions were justified because he feared this information would likely leak anyway. Leaks did abound, but the emails found on the laptop were ones that had already been seen by the FBI during its earlier investigation. Since no charges are being brought against Clinton (or Abedin) for mishandling of classified information, there's likely going to be no Fourth Amendment challenges raised in regards to the evidence the FBI didn't find. If for some reason there was, I'm sure the FBI would feel the "plain view" exception (or perhaps "inevitable discovery," although plain view is a more accurate description...) would apply to its discovery of possible evidence completely unrelated to the Weiner sexting investigation at hand. As the affidavit explains, the normal process of going through emails for the Weiner investigation resulted in the viewing of email header info pointing to Hillary Clinton's private email server. Having "segregated" those emails, the FBI applied for a second warrant [PDF] to search the content of those communications for classified material. As we know now, nothing of interest was found. Still, there was only the minimum of probable cause to search the content of these stored emails: that Hillary Clinton's email address appeared in the header info. This small possibility the seized emails may have contained classified information was used to justify a second forensic imaging of the seized laptop. What's completely ridiculous about the affidavit is the agent's request that the affidavit and warrant be sealed because of the "confidential nature" of the investigation. Never mind the fact that James Comey himself blew past other FBI officials' recommendations and outed the results of the first investigation in a public press conference. Then he did it again with his letter to Congress on October 28 -- two days BEFORE this FBI agent asked for the sealing of documents because the investigation was apparently too "sensitive" to be made public. It could be the agent prepared this affidavit before Comey decided to go public with his announcement, but the signature and date of October 30th appear directly below this paragraph claiming this information needed to be withheld from the public. And the judge granted it, which is just as much of an absurdity. It's not as though no one was aware of Comey's announcement. It was literally in all the papers. But, hey, law enforcement loves boilerplate and, apparently, magistrates' eyes start glossing over by the time they get to affidavit signature pages, because no one thought this request might sound ridiculous given the circumstances surrounding it. Permalink | Comments | Email This Story

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We've already noted how large ISPs are licking their chops on reports that the incoming Trump-led FCC plans to not only gut net neutrality, but to defang and defund the FCC also. Most of Trump's telecom advisors have direct ties to telecom; one, former Sprint lobbyist Mark Jamison, doesn't think telecom monopolies are real. Verizon lawyer turned current FCC Commissioner Ajit Pai is rumored to be the most likely candidate for future FCC boss, and just last week proclaimed that net neutrality's days are numbered under Trump. Just in case the nation's incumbent ISPs didn't get the message that "happy days are here again" for Comcast, AT&T and friends, Pai and fellow FCC Commissioner Mike O'Rielly penned a letter this week to the telecom industry's five largest lobbying groups, proudly proclaiming that the new FCC will attempt to put net neutrality on the chopping block "as soon as possible":"[W]e will seek to revisit [the disclosure] requirements, and the Title II Net Neutrality proceeding more broadly, as soon as possible," they wrote, referring to the order that imposed net neutrality rules and reclassified ISPs as common carriers under Title II of the Communications Act. Pai and O'Rielly noted that they "dissented from the Commission's February 2015 Net Neutrality decision, including the Order's imposition of unnecessary and unjustified burdens on providers." Pai and O'Rielly will have a 2-1 Republican majority on the FCC after the departure of Democratic Chairman Tom Wheeler on January 20. Pai previously said that the Title II net neutrality order's "days are numbered" under Trump, while O'Rielly said he intends to "undo harmful policies" such as the Title II reclassification."Of course if you've actually paid attention you'll recall that net neutrality has broad, bipartisan support among consumers, and companies like Comcast have let slip that neutrality -- and the shift to Title II -- really have had little actual impact on their businesses despite ample hand-wringing among sector giants. And of course the rollback of Title II won't just impact net neutrality, it would hamstring the FCC as broadband consumer watchdog entirely, demolishing efforts like the FCC's recently passed privacy rules that simply require ISPs are transparent about data collection and provide working opt-out tools. This disconnect between what consumers want and what ISPs want will prove tricky for Pai and friends, who'll face major bureaucratic difficulties and a significant activist backlash in trying to roll back the rules. Doing so will require a lengthy, new comment period, during which the media and activists would only highlight how Pai and O'Rielly are undermining the very innovation they often pay empty lip service to. As such, you can expect some impressive theatrics in the new year. This will likely come in the form of a Communications Act rewrite or another bill that professes to adore net neutrality, but actively works to undermine the entire concept via the law. Much like the eleventh hour faux-neutrality bill pushed last year by Senator John Thune and Representative Fred Upton, this legislation will almost certainly contain ample, intentional loopholes, will only ban the most egregious violations (like outright banning websites, which no ISPs would do), and will act to formally make non-net neutrality the law of the land. It will then attempt to declare the matter settled, ignoring the lack of competition that makes such violations possible in the first place. This kind of net neutrality trojan horse is something Wheeler warned about last week when he announced his January 20 resignation as current boss of the agency:"Wheeler mostly declined to speak about the Trump administration's potential policies but said he hopes that net neutrality rules that forbid blocking, throttling, and paid prioritization will survive. One possibility is for Congress to eliminate Wheeler's net neutrality rules and impose a new, weaker version. "I hope that if there is legislation, that it is net neutrality in more than name," and "not some kind of false labeling where net neutrality rules are actually gutted under the name of being net neutrality," Wheeler said."Whatever form this new proposal takes you can be certain it will feature breathless adoration of consumers, innovation, and broadband competition -- while actively undermining all three.Permalink | Comments | Email This Story

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More and more entities involved in government work are coming out in support of encryption. (Unfortunately, many governments are still periodically entertaining backdoor legislation...) While recognizing the limits it places on law enforcement and surveillance agencies, they're not quite willing to sacrifice the security of everyone to make work easier for certain areas of the government. The European Union for Network and Information Security (ENISA) has just released its report [PDF] on encryption and finds it to be pretty much essential for everyone's security. Any efforts to undermine this harms the public more than it helps them. (h/t Tom's Hardware) There is a legitimate need to protect communications among individuals and between individuals and public and private organisations. Cryptography provides the electronic equivalent of letter cover, seal or rubber stamp and signature. In the light of terror attacks and organised crime, law enforcement and intelligence services have requested to create means to circumvent these protection measures. While their aims are legitimate, limiting the use of cryptographic tools will create vulnerabilities that can in turn be used by terrorists and criminals, and lower trust in electronic services, which will eventually damage industry and civil society in the EU. Mandating backdoors will hurt the countries where they're implemented, sending customers in search of secure computer equipment and services elsewhere. Beyond that, there's the fact that all backdoors can be exploited. Thousands or millions of device users could be negatively affected while very few criminals will suffer adverse effects. If a backdoor exists, it can be exploited by either "side," but only the criminal side will be able to protect itself from unwanted intrusion. Because if you're going to break a few laws, why not break one that forbids you from owning or operating devices with non-backdoored encryption? Or you could just roll your own... Technology is changing at a very fast pace. It is questionable if solutions such as backdoors will be effective given that criminals can develop their own encryption technologies. As ENISA points out, it's not just exploitation by criminals that's the problem. It's also exploitation by government agencies, which may use the handy backdoors to collect/intercept far more than they're legally allowed to. Judicial oversight may not be a perfect solution as different interpretations of the legislation may occur. One agent's facially-invalid search warrant is the same agent's legally-unassailable judicial order. This is enough of a problem in the US, where multiple federal districts have resulted in contradictory opinions on identical legal arguments. In the European Union, the problem is only exacerbated. Not only are there multiple courts, but also multiple nations, all with their own laws. Sure, there's an attempt to unify guidance on technical/legal issues under the EU, but only so much can be done. Deciding what is or isn't abusive use of government-mandated backdoors is going to be far from consistent. And that, of course, requires a unified European stance on encryption backdoors, which isn't likely to happen either. Ultimately, ENISA concludes that tech advancements do pose legitimate challenges to law enforcement/national security efforts, but backdoors are no way to solve the problem. But the solution it does suggest isn't much better. Here in the US, courts routinely defer to Congress when the remedy sought isn't within their power. Over in the EU, ENISA suggests legislative measures are the wrong approach. Other procedural approaches should be explored that focus on the power of the judicial process to find solutions. Unfortunately, ENISA does not drop any hints about how EU courts might be able to address government agencies' complaints about encryption. This suggests some sort of All Writs Ordering might be the way around being locked out of devices and computers -- blanket court orders that compel assistance from service providers and manufacturers under the threat of whatever the court can come up with. While this would cause less damage to security than mandated backdoors, a court-ordered backdoor is still a backdoor, and judicial oversight wouldn't be enough to prevent government abuse of these "one time only," purposefully-induced security holes. Permalink | Comments | Email This Story

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A Florida Court of Appeals has handed down a somewhat surprising ruling [PDF] in a case centering on evidence obtained from a teen's cellphone. (via FourthAmendment.com) Two juveniles fled their vehicle during a traffic stop, with one of them (referred to as "K.C." in the ruling) leaving behind his cellphone on the car's seat. This phone -- whose lockscreen featured a photo of someone who "looked similar" to "K.C." -- was taken by the officer. Several months later, the PD's forensic lab was asked to determine ownership of the phone. The phone was locked with a passcode, but the lab was able to unlock and retrieve this information. No warrant was obtained and the search apparently wasn't limited to determining ownership. The use of evidence obtained from the phone was challenged, but the state felt it had plenty of warrant exceptions to save its search. K.C. was charged with burglary of a conveyance. He moved to suppress the contents of the cell phone, from which the police had obtained his name, on the ground that the phone was searched without a warrant. After the presentation of the foregoing facts, the prosecutor argued that the phone was abandoned, and the owner had no expectation of privacy in the phone once abandoned. Generally speaking, abandonment of property results in privacy expectations being stripped. In this case, however, the court found that K.C.'s use of passcode meant that he retained an expectation of privacy even after leaving the phone behind. The court points to the Supreme Court's Riley decision, noting that today's smartphones are not simply "locked containers." They are more equivalent to a locked house, considering the wealth of information contained in them. If law enforcement can't search a house without a warrant simply because the resident fled when seeing them ("abandoning" the house), it can't search a locked cellphone simply because it was left behind by a fleeing suspect. It quotes this section of the Riley decision on the way to its conclusion: In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F.2d 202, 203 (C.A.2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is. It then addresses the state's claim that abandoned property of all types no longer carries an expectation of privacy. Our supreme court has recognized that “[t]he test for abandonment is whether a defendant voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy…" [...] While we acknowledge that the physical cell phone in this case was left in the stolen vehicle by the individual, and it was not claimed by anyone at the police station, its contents were still protected by a password, clearly indicating an intention to protect the privacy of all of the digital material on the cell phone or able to be accessed by it. Indeed, the password protection that most cell phone users place on their devices is designed specifically to prevent unauthorized access to the vast store of personal information which a cell phone can hold when the phone is out of the owner’s possession. It's the steps taken to protect the phone's contents that determines the expectation of privacy in abandoned phone. The court doesn't appear to be extending this protection to all abandoned cellphones. The court also points out that, given the circumstances of the case, seeking a warrant would have been a very minor inconvenience. Where a cell phone is “abandoned,” yet its contents are protected by a password, obtaining a warrant is even less problematic. In this case, how difficult and inefficient would it have been for the officer to obtain a search warrant, when the cell phone in question was in police possession for months? Also of note: the good faith exception was never raised, otherwise this decision may have gone the other way. That's rather surprising, considering it's almost always raised when evidence might be suppressed, no matter how far away removed from any common definition of "good faith" the government's actions were. It would also be interesting to see this line of thinking applied to the Third Party Doctrine. If attempts are made to limit the generation of third-party records (the use of VPNs/Tor for web browsing, shutting off GPS location for phones, etc.), does that give the records that are still generated a greater expectation of privacy? Or would it simply be assumed that, no matter what efforts are made by cellphone/computer users, anything held by a third party can still be obtained without a warrant? Permalink | Comments | Email This Story

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Abbey Dental of Las Vegas doesn't like the number of negative reviews that are piling up at Pissed Consumer. But that's about all it (and its lawyers) know. It seems to understand that taking on Pissed Consumer with a defamation lawsuit would be a complete failure, as would be any effort it made to sue individual reviewers. Nevada has an anti-SLAPP law in place, which would fit Abbey Dental's attempt to artificially resuscitate its reputation to a tee. So, instead of handling this in the normal way (which would also be the route least likely to succeed), the company has decided to take a more oblique approach: a lawsuit filed in federal court (to better dodge the state's anti-SLAPP law) centered on a variety of tremendously stupid trademark infringement claims. Pissed Consumer, represented by Marc Randazza, has decided to swerve as well -- the better to attack Abbey Dental's circuitous claims head on and ensure it doesn't escape the anti-SLAPP statute it's so desperate to avoid. As is noted in the first footnote of Pissed Consumer's motion to dismiss/summary judgment request [PDF], the defendant and its lawyer have given Abbey Dental plenty of time to back away from the precipice. [Abbey Dental's] complaint was filed on October 27, 2015. Shortly thereafter, Defendant warned Plaintiff that the case was frivolous and would be subject to an Anti-SLAPP motion. (See Email from Randazza to Amin dated Jan. 6, 2016, attached hereto as Exhibit 1.) Defendant spent more than a year trying to get Plaintiff to come to its senses. After eight extensions seeking to avoid this, Defendant finally filed its first Anti-SLAPP motion. (ECF No. 25.) Plaintiff responded by filing an Amended Complaint 1 day later. The Amended Complaint simply compounds the problem, and cures nothing. Abbey Dental's lawyers are creative, but the arguments made are novel, which is a judicial term for "wtf." The company -- in its desperation to avoid having to deal with Section 230 of the CDA -- claims that Pissed Consumer has done everything from domain name squatting to abuse of keywords/metatags (something settled a long time ago) to injure its trademarked name. Pretty much everything in its complaint is -- at best -- stupid bullshit. Abbey argues that using the words “Abbey Dental” on a web page with consumer reviews about Abbey creates a likelihood of confusion in the minds of consumers by making them think that the web site is affiliated with Abbey. This makes no sense. This use is clearly nominative fair use. [...] The first issue is Opinion’s use of search result copy on Google. The copy that accompanies a search result for the term “abbey dental” that leads users to Opinion’s web site informs users that they will arrive at a site with reviews of this particular business. The Ninth Circuit summed up the weakness of Abbey’s argument here when it recognized that internet users: fully expect to find some sites that aren’t what they imagine based on a glance at the domain name or search engine summary. Outside the special case of . . . domains that actively claim affiliation with the trademark holder, consumers don’t form any firm expectations about the sponsorship of a website until they’ve seen the landing page – if then. [...] Though it is not an element of an infringement claim, Abbey also alleges at that Opinion is diverting Internet users to Abbey’s competitors by providing advertising on its web site. Even if this were an element of an infringement claim these allegations would not help Abbey. Opinion does not create these advertising links, and they are tailored to the search patterns of visitors. That's just some of the trademark claims dispensed with. Then there's the completely ridiculous "cybersquatting" claim -- raised because Pissed Consumer's review page URL contains the words "Abbey Dental." [T]here is nothing actionable about Opinion’s use of the Abbey Dental mark in its sub-domain [abbey-dental.pissedconsumer.com]. Tabari is instructive here, and observed that, when Internet users search for a web site through a search engine the consumer will click on the link for a likely-relevant site without paying much attention to the URL. Use of a trademark in the site’s domain name isn’t materially different from use in its text or metatags in this context; a search engine can find a trademark in a site regardless of where exactly it appears. As for any "customer confusion," not even a "moron in a hurry" would think Pissed Consumer's gripe page was somehow an official extension of the Abbey Dental brand. Not only that, but it's impossible to write about a business without using the business's name. Abbey’s argument on this point is frivolous on its face; Opinion’s use is plainly a nominative fair use of the “Abbey Dental” mark; there is no way to have a review page about a business without naming the business. Opinion does nothing to create any sense of affiliation or sponsorship by the thousands of reviewed businesses. Since Abbey Dental seems intent on avoiding fights it knows it can lose (Section 230, Nevada's anti-SLAPP law), Pissed Consumer is bringing the fight to it. The combination motion asks for both a dismissal and sanctioning under the state's anti-SLAPP law. As Randazza points out in the motion, the company's federal filing shouldn't allow it to escape the reach of local statutes. Anti-SLAPP statutes apply in federal court. See Batzel v. Smith, 333 F.3d 1018, 1025-26 (9th Cir. 2003); see also Thomas v. Fry’s Elecs., Inc., 400 F.3d 1206, 1207 (9th Cir. 2005). NRS 41.650 provides that a person who engages in conduct protected under Nevada’s Anti-SLAPP statute “is immune from any civil action for claims based upon the communication” (emphasis added). NRS 41.635-670 creates a substantive immunity from certain categories of lawsuits and is substantive in nature. The motion notes that Abbey Dental's bogus trademark infringement lawsuit is just a creative way to avoid dealing with legal precedent it can't surmount and is wholly intended to make criticism of it disappear. This is made even more explicit by its requested injunction. Abbey’s claims are centered on the theory that Opinion is liable for directing consumers to through its use of industry-standard sub-domains and Google ad copy. To ensure that users actually see reviews about a company, a consumer review web site must use a given business’s name in a sub-domain and ad copy. To restrict such a site from doing so would be to effectively remove web pages containing reviews of the business from the Internet, as no one would be able to find them while performing an Internet search. Abbey’s prayer for relief makes this even clearer, as it seeks both a preliminary and permanent injunction barring Opinion from using Abbey’s name on pissedconsumer.com. Pissed Consumer is not only asking for a dismissal and a fee award under the anti-SLAPP statute, but also additional sanctions against Abbey Dental for bringing such a frivolous complaint to court. With any luck, this will all be granted. Abbey Dental has to know its trademark infringement claims are baseless. I guess it was hoping Pissed Consumer would be less familiar with IP law, or that the presiding judge would would be the "moron in a hurry," mistaking a lot of legal-sounding mumbo jumbo for actionable claims. Final note: Abbey Dental's reputation may be hurting right now, but I assume the installation of Dr. [name], [title] will soon turn things around. Permalink | Comments | Email This Story

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The internet of things has been taking plenty of flak ever since the first time someone floated the idea of a connected fridge or some-such in the 90s — but despite the knee-jerk instinct to scoff at such things, the truth is there are all sorts of interesting possibilities emerging from all these "pointless" connected devices. Of course, there are also some serious security concerns... This week, we discuss the IoT and what the ever-increasing presence of such devices means for the future. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. If you're a fan, consider supporting us on Patreon to access special bonus episodes. Permalink | Comments | Email This Story

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So, just to be upfront about stuff, reporter Kurt Eichenwald doesn't like us here at Techdirt very much. We've written about him a few times, and he's never been at all happy with our coverage because the two times we've written about him it was to call into question his reporting. The first time was a few years ago, when he made some ridiculous logical leaps in asserting that Ed Snowden was a Chinese spy and all of his leaks was just to cover up Chinese cyberattacks. Then, just a few months ago, we called him out for massively overselling a story, where he falsely claimed (and later deleted his tweets claiming this) that he had proof that Wikileaks was connected to the Russians. This was based on a long and convoluted series of events that proved no such thing. It may be true, but Eichenwald had no proof. He massively oversold a story that later turned out to just be that a part time writer based in DC at a Russian-owned publication made a mistake in misattributing a quote -- and Eichenwald assumed all sorts of ridiculous things. Suffice it to say, Kurt Eichenwald is not a fan of us at Techdirt and has me blocked personally on Twitter after I tried to point out that he was overselling his story. These aren't the only times that Eichenwald has run into trouble for his reporting. Back in 2007, there was an incredible story that came out concerning Eichenwald writing a NY Times article about child porn, where he left out the fact that he'd paid the subject of the article thousands of dollars. And, then, last week, Eichenwald appeared on Tucker Carlson in an interview that can just be described as... very, very odd. I'm not a fan of Carlson either, but they quickly get into a weird debate where Carlson wants to attack Eichenwald for "fake news" by pointing to some tweets that Eichnewald made about Donald Trump allegedly being institutionalized. Carlson keeps asking Eichenwald to explain this tweet and Eichenwald... goes all over the place, including something about his contacts at the CIA and a binder full of what he calls Tucker Carlson's "falsehoods" but he never actually answers Carlson's question. Again, I think Carlson tends to be ridiculous, but Eichenwald comes off as much, much, much more ridiculous here. He continued to make himself look worse, by later claiming that he was joking and "signaling" a source with the bogus tweet -- an excuse that makes absolutely no sense at all. And, apparently, some internet trolls agreed, but decided to take it up a notch. Back in October, Eichenwald had written an article claiming that some internet trolls tried to give him an epileptic seizure by sending him a graphic that has been known to induce seizures in epileptics (Eichenwald has epilepsy). It appears that the combination of the Carlson interview and Eichenwald's attempted defense of the interview resulted in a troll using the handle @jew_goldstein (subtle!) posting a tweet with a flashing image claiming that he deserved a seizure. Eichenwald's account later tweeted out a claim, supposedly from his wife, that the image had worked and he'd had a seizure -- and that he was pursuing legal action. This kind of attack isn't particularly new. There was a story about a decade ago of a bunch of internet trolls descending on an epilepsy forum to do the same thing -- which is really kind of fucked up. Then, Monday morning Eichenwald released a copy of some legal documents in the lawsuit, seeking expedited discovery. In short, he's suing and trying to use the discovery process to unmask who is behind the troll @jew_goldstein account, demanding that Twitter hand over the information. I think it's reasonable to question whether or not an actual lawsuit will follow or if the goal here is just to unmask the troll. Now, there are all sorts of legal questions about this -- and, thankfully, since Eichenwald wrote about this back in October, a bunch of experts have already weighed in. And the answer seems to be a combination of "well, there's an interesting legal scenario" and "yeah, it seems like he might actually have a case." Law professor Elizabeth Joh explains the basics here: Had this Twitter troll walked up to Eichenwald and pointed what appeared to be a loaded gun at the journalist, most would agree that the troll would be guilty of assault. Had the troll walked up to Eichenwald and surprised him with a tablet displaying the video, the result would likely be the same. After all, not all weapons are guns. It’s the same thing with the tweet—the distance does not change the analysis. For instance, the intentional hacking of a networked connected medical device, like an insulin pump, resulting in a person’s death would be criminal homicide even if the perpetrator were hundreds of miles away. Criminal defense and free speech lawyer Mark Bennett also sees the elements of a misdemeanor in Texas: But this assault on the journalist is interesting for another reason. It’s not only a threat to commit imminent harm — indeed, it’s arguably not even a threat to commit harm — but an attempt to cause bodily injury. That’d be a class B misdemeanor in Texas, with a maximum 180-day jail sentence and $2,000 fine. It’d be a third-degree felony — up to 10 years in prison — if the assailant intended to cause serious bodily injury. Weaponized tweets, resulting in physical harm, are cyberpunk stuff: long-distance brain hacking. The brain has a tremendous deal of influence over how we feel, and people can manipulate our brains with electronic messages. (For a really-bad-case scenario, see the chapter on electronic slot machines in Matthew Crawford’s The World Beyond Your Head). I can’t think of a good reason an electronic message sent with the intent to cause an epileptic seizure should not be treated like any other attempt to cause bodily injury. Criminal defense lawyer Scott Greenfield also concludes it's quite possible: Yes, even Twitter can be used to commit an assault, regardless of whether Eichenwald was a victim. No, it doesn’t have to be that way if you choose not to commit a crime using twitter. Just don’t do it. Lawyer Keith Lee put all of this together and looks at whether or not all of the elements of assault were accomplished here and also concludes that there's a viable claim with this lawsuit: In the situation involving Eichenwald: were the mechanics of an internet medium (Twitter) able to act as a delivery system for an assault (an intentional attempt or threat to inflict injury that places another person in fear of imminent bodily harm)? Given that the offending user (((Ari Goldstein))): Used the Twitter network system; to transmit/deliver an intentional attempt/threat; that they knew would be likely to inflict injury; and placed Eichenwald in fear of imminent bodily harm. I’d say that it’s likely that Eichenwald has some merits to his claims. Lee notes that there are some possible defenses, but again, it does make you wonder if Eichenwald actually intends to follow through on the lawsuit, or just try to expose the troll. Still, as pretty much everyone agrees, whoever did this is pretty obnoxious. I'm obviously not a big fan of Eichenwald, and find him to be a terrible reporter, an unreliable narrator and kind of a jackass but I still think whoever did this to him is a much bigger jackass -- and potentially a criminal. Eichenwald looked foolish enough with his rantings. There's simply no reason to go further to try to harm the guy physically.Permalink | Comments | Email This Story

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Remember that time when Google, Twitter, and Facebook helped shoot up a nightclub in Orlando, Florida? Me neither. But attorney Keith Altman does. He's representing the families of three of the victims of the Pulse nightclub shooting in a lawsuit alleging [sigh] that these tech companies are somehow responsible for this act of terrorism. The lawsuit, first reported by Fox News, was filed Monday in federal court in the eastern district of Michigan on behalf of the families of Tevin Crosby, Javier Jorge-Reyes and Juan Ramon Guerrero. The lawsuit is the latest to target popular Internet services for making it too easy for the Islamic State to spread its message. Like many similar lawsuits, this one is doomed to fail. First off, Section 230 immunizes these companies from being held responsible for third-party content. As this is certainly the first obstacle standing in the way of the suit's success, Altman has presented a very novel argument in hopes of avoiding it: ad placement is first party content, so immunity should be removed even when ads are attached to third-party content. From the filing [PDF]: By specifically targeting advertisements based on viewers and content, Defendants are no longer simply passing through the content of third parties. Defendants are themselves creating content because Defendants exercise control over what advertisement to match with an ISIS posting. Furthermore, Defendants’ profits are enhanced by charging advertisers extra for targeting advertisements at viewers based upon knowledge of the viewer and the content being viewed. [...] Given that ad placement on videos requires Google’s specific approval of the video according to Google’s terms and conditions, any video which is associated with advertising has been approved by Google. Because ads appear on the above video posted by ISIS, this means that Google specifically approved the video for monetization, Google earned revenue from each view of this video, and Google shared the revenue with ISIS. As a result, Google provides material support to ISIS. That's the 230 dodge presented in this lawsuit. The same goes for Twitter and Facebook, which also place ads into users' streams -- although any sort of "attachment" is a matter of perception (directly proceeding/following "terrorist" third-party content, but not placed on the content). YouTube ads are pre-roll and are part of an automated process. The lawsuit claims ISIS is profiting from ad revenue, but that remains to be seen. Collecting ad revenue involves a verification process which actual terrorists may not be willing to participate in. Going beyond this, the accusations are even more nebulous. The filing asserts that each of the named companies could "easily" do more to prevent use of their platforms by terrorists. To back up this assertion, the plaintiffs quote two tech experts (while portraying their thoughts as being representative of "most" experts) that say shutting down terrorist communications would be easy. Most technology experts agree that Defendants could and should be doing more to stop ISIS from using its social network. “When Twitter says, ‘We can’t do this,’ I don’t believe that,” said Hany Farid, chairman of the computer science department at Dartmouth College. Mr. Farid, who co-developed a child pornography tracking system with Microsoft, says that the same technology could be applied to terror content, so long as companies were motivated to do so. “There’s no fundamental technology or engineering limitation,” he said. “This is a business or policy decision. Unless the companies have decided that they just can’t be bothered.” According to Rita Katz, the director of SITE Intelligence Group, “Twitter is not doing enough. With the technology Twitter has, they can immediately stop these accounts, but they have done nothing to stop the dissemination and recruitment of lone wolf terrorists.” Neither expert explains how speech can so easily be determined to be terrorism or how blanket filtering/account blocking wouldn't result in a sizable amount of collateral damage to innocent users. Mr. Farid, in particular, seems to believe sussing out terrorist-supporting speech should be as easy as flagging known child porn with distinct hashes. A tweet isn't a JPEG and speech can't be as easily determined to be harmful. It's easier said than done, but the argument here is the same as the FBI's argument in respect to "solving" the encryption "problem:" the smart people could figure this out. They're just not trying. Altman's suggestion is even worse: just prevent Twitter accounts from being created that use any part of the handle of a previously-blocked account. When an account is taken down by a Defendant, assuredly all such names are tracked by Defendants. It would be trivial to detect names that appear to have the same name root with a numerical suffix which is incremented. By limiting the ability to simply create a new account by incrementing a numerical suffix to one which has been deleted, this will disrupt the ability of individuals and organizations from using Defendants networks as an instrument for conducting terrorist operations. It's all so easy when you're in the business of holding US-based tech companies responsible for acts of worldwide terrorism. First, this solves nothing. If the incremental option goes away, new accounts will be created with other names. Pretty soon, a great deal of innocuous handles will be auto-flagged by the system, preventing users from creating accounts with the handle they'd prefer -- including users who've never had anything to do with terrorism. Seriously a stupid idea, especially since the Twitter handle used in the example is "DriftOne" -- a completely innocuous handle the plaintiffs would like to see treated as inherently suspicious. And thank your various gods this attorney isn't an elected official, law enforcement officer, or holding a supervisory role at an intelligence agency. Because this assertion would be less ridiculous and more frightening if delivered by any of the above: Sending out large numbers of requests to connect with friends/followers from a newly created account is also suspicious activity. As shown in the “DriftOne” example above, it is clear that this individual must be keeping track of those previously connected. When an account is taken down and then re-established, the individual then uses an automated method to send out requests to all those members previously connected. Thus, accounts for ISIS and others can quickly reconstitute after being deleted. Such activity is suspicious on its face. We've seen a lot of ridiculous lawsuits fired off in the wake of tragedies, but this one appears to be the worst one yet. The lawsuit asks the court to sidestep Section 230 and order private companies to start restricting speech on their platforms. That's censorship and that's basically what the plaintiffs want -- along with fees, damages, etc. The lawsuit asks for an order finding that the named companies are violating the Anti-Terrorism Act and "grant other and further relief as justice requires." The lawsuit's allegations are no more sound than the assertion of the Congressman quoted in support of the plaintiffs' extremely novel legal theories: “Terrorists are using Twitter,” Rep. Poe added, and “[i]t seems like it’s a violation of the law.” This basically sums up the lawsuit's allegations: this all "seems" wrong and the court needs to fix it. The shooting in Orlando was horrific and tragic. But this effort doesn't fix anything and asks for the government to step in and hold companies accountable for third-party postings under terrorism laws. Not only that, but it encourages the government to pressure these companies into proactive censorship based on little more than some half-baked assumptions about how the platforms work and what tech fixes they could conceivably apply with minimal collateral damage. Permalink | Comments | Email This Story

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Unleash your inner novelist and let Scrivener help manage your writing project. Available for $20, the Scrivener household license allows you to access your work on multiple devices. Scrivener replaces bits of paper, index cards and sticky notes by allowing you to storyboard projects, to edit and work on different sections, either alone or in concert, and to post notes and access research. There's a script formatting function to help you write the next classic movie hit, a name generator, and the ability to freely edit and restore to older versions so you won't lose anything as you dive deep into the creative process. 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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Prior to the Snowden leaks making it unignorable, the NSA denied the incidental collection of Americans' communications was much of a problem. Ron Wyden and Mark Udall were two of the few members of the NSA's oversight willing to ask tough questions. One of the questions they asked -- all the way back in 2011 -- was how many Americans were spied on by the NSA's programs. The answer may shock you cause uncontrollable eyerolling. What's never made sense is why the feds simply refuse to admit how many Americans they've spied on under the law. In the past, the Director of National Intelligence has basically told Wyden and Udall that he wouldn't answer because he didn't want to. But the latest answer really takes the insanity to stunning new levels. As initially revealed at Wired, the NSA has refused to answer claiming that, not only would it be too much work to figure it out, but that figuring it out would violate the privacy of Americans. It's a terrible answer. But it's still better than the one the ODNI gave the senators earlier. Basically, James Clapper said it would be difficult to give the senators the information they sought because the NSA really didn't want to hand over that information. Not "difficult" in the technical sense, but "difficult" in the "no desire to" sense. A leaked document showed the NSA didn't think incidental collection was a big deal. Slides from an internal presentation told analysts such collections were inevitable and not to worry about the reporting collected US persons' communications to the Inspector General. Hence why the Inspector General felt it might take a bit of effort to collect this information: it never had collected or received this information previously. As the re-up for Section 702 approaches, legislators are taking a renewed interest in these still-unrevealed numbers. And Clapper's office has decided to comply: "The timely production of this information is incredibly important to informed debate on Section 702 in the next Congress— and, without it, even those of us inclined to support reauthorization would have reason for concern," said the letter signed by 11 lawmakers, all members of the House Judiciary Committee. The letter was sent on Friday to National Intelligence Director James Clapper. It said his office and National Security Agency (NSA) officials had already briefed congressional staff about how the intelligence community intends to comply with the disclosure request. There are more specifics to this, which make it more useful than the normal publicized internal memo swap. First, the legislators want this expressed in real numbers, not a meaningless percentage of the total Section 702 take. Second, the letter serves to "memorialize" Clapper's agreement to not only hand over these numbers to legislators, but to the public as well. This data should contain everyone swept up by PRISM or the NSA's upstream collection -- the latter of which pulls communications directly from domestic internet backbones. The upstream collection has no targets. Instead, it grabs everything it can (including audio communications) it can and sorts through it for targeted terms, as well as anything related to the targeted terms NSA analysts add to the filter. The potential for incidental collection in either program is huge. So it may actually involve a bit of effort to collect this data. Of course, the effort put into this may also involve making the final numbers a bit more palatable by applying internal rules as to what should or shouldn't be considered an incidental collection. Just as certainly as NSA collections are laundered (via parallel construction) before being introduced in court, one should expect the final incidental collection numbers to be purged of anything that might make them larger than the IC would like to admit publicly. Permalink | Comments | Email This Story

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