posted 21 days ago on techdirt
Europol is probably not very well-known outside the EU. Here's how it describes itself: Europol is the European Union's law enforcement agency whose main goal is to help achieve a safer Europe for the benefit of all EU citizens. We do this by assisting the European Union's Member States in their fight against serious international crime and terrorism. The emphasis is in the original. You may notice that it mentions Europe a few times, which underlines the fact that Europol is a European organization based in Europe, run by Europeans and serving Europeans. But the US seems to take a different view: The head of the EU police agency Europol is taking instructions from the Americans on what EU-drafted documents he can and cannot release to EU lawmakers. The story in the EUobserver quoted above explains: The issue came up over the summer when US ambassador to the EU Anthony Gardner told EU ombudsman Emily O'Reilly she cannot inspect an annual Europol report drafted by the agency's own internal data protection review board. And if you are thinking there might be some top-secret US information in that report, the Dutch MEP Sophie In't Veld says that isn't the case: "There is no operational information, there is no intelligence, there is nothing in the document. So you really wonder why it is kept a secret." The problem seems to be simply that the uppity Europeans dared to write their report without asking for US permission first: The Americans are unhappy because Europol had drafted the report "without prior written authorisation from the information owner (in this case the Treasury Department)." The fact that the Treasury Department thinks that it "owns" information about how the Terrorist Finance Tracking Program (TFTP) complies with European data protection laws is rather telling. No wonder that back in March, the European Parliament called for the TFTP to be suspended in the wake of revelations that the US was going outside the program, and accessing EU citizens' bank data illegally. The latest high-handed action by the US ambassador to the EU is unlikely to encourage them to change their mind. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Under the European Copyright Directive, Member States may bring in an exception to copyright that allows works to be used without consent for the purposes of caricature, parody or pastiche. Following a long-drawn-out process, the UK will be doing exactly that, with effect from October 1. But a new judgment from Europe's highest court, the Court of Justice of the European Union, has added a new limitation to the parody exception (pdf). Here's the background to the case, as explained by the court's press release: At a reception held by the [Belgian] city of Ghent to celebrate the New Year, Mr Deckmyn, a member of the Vlaams Belang (a Flemish political party), handed out calendars for the year 2011. The cover page of those calendars featured a drawing which resembled that appearing on the cover of one of the Suske en Wiske -- known in English as Spike and Suzy -- comic books with the original title 'De Wilde Weldoener' (which may be rendered as 'The compulsive benefactor'), produced in 1961 by Willy Vandersteen. The original drawing represented an allegorical character in the series wearing a white tunic and surrounded by people trying to pick to pick up the coins he was scattering all around. In the drawing appearing on Mr Deckmyn's calendars, that character was replaced by the mayor of the city of Ghent, while the people picking up the coins were replaced by people wearing veils and people of colour. Several of Vandersteen's heirs and other holders of the rights to the comic book series brought an action against Deckmyn and the organization that financed the Vlaams Belang, claiming copyright infringement. These last two said that the calendar was satire, and therefore was covered by the EU's parody exception. The copyright holders asserted that parody must display originality, and that anyway the drawing conveyed a discriminatory message. Faced by all these claims, the Court of Appeal in Brussels asked the EU Court of Justice to clarify the conditions that a work must fulfill in order to be classified as parody. Here's the good news from the EU court's decision: A parody need not display an original character of its own, other than that of displaying noticeable differences with respect to the original work parodied. But there's less-good news in the form of this additional comment: The Court notes that the application of the exception for parody, established by the directive, must strike a fair balance between, on the one hand, the interests and rights of authors and other rightsholders and, on the other, the freedom of expression of the person who wishes to rely on that exception. In that context, the Court declares that, if a parody conveys a discriminatory message (for example, by replacing the original characters with people wearing veils and people of colour), the holders of the rights to the work parodied have, in principle, a legitimate interest in ensuring that their work is not associated with such a message. As is usual, the EU Court of Justice has passed the case back to the original Belgian court to apply its judgment. The latter will have to decide whether the parody in this case does indeed convey a discriminatory message, and whether the copyright holders can therefore require that the work is not "associated with such a message" -- which presumably means that they can insist that it is not distributed. What's problematic here is that, by its very nature, parody is pushing the boundaries of good taste; it's quite likely to use images that upset some people, and that are maybe borderline discriminatory in some way (whatever that means). The risk is that the rather vague ruling from the European court will encourage more legal action to be taken against works of parody, and for social and political commentary to suffer as a result. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
The struggle to force the government to behave in a transparent fashion often runs through the FOIA process. When the government responds, it often takes out meaningful information by abusing FOIA exemptions. When the government doesn't respond, the "free" request becomes a rather expensive trip through the nation's courts. Even when the government responds, it may decide not to waive fees, leaving the requester to come up with anything from several hundred to several thousand dollars in order to see documents created with taxpayer funds by federal employees. Entities like MuckRock deal with this obstacle through crowdfunding. But not every requester has access to this sort of support. If the documents are delivered without full payment (some just require a first installment of a certain percentage), the government can come after you for the uncollected fees. But the government's collection efforts go beyond series of increasingly angry letters. According to information compiled by indispensable blog Unredacted, the government has the option to start docking your paycheck. In a letter to the FOIA Advisory Committee, Michael Ravnitzky points to an article at Washington-focused blog The Hill that indicates that some government agencies are willing to use this method to collect unpaid FOIA fees. [pdf link] I would like to bring the following issue to the Committee’s attention: application of Administrative Wage Garnishment to fees assessed for Freedom of Information Act requests. Federal agencies have begun exploring and instituting a new weapon to use against FOIA requesters: wage garnishment. Here is a link to an article that mentions two agencies: one that is implementing wage garnishment and one that has decided not to do so after receiving some unfavorable feedback. http://tinyurl.com/FeeGarnishment In this case, two agencies have already sought permission to use wage garnishment in FOIA cases for unpaid fees. A number of other agencies have established rules implementing the Administrative Wage Garnishment - AWG - provisions of the Debt Collection Improvement Act of 1996 - DCIA, but do not mention FOIA specifically. Other agencies are in the process of such rules, or are planning to add such rules. As he cautions, the use of this collection method will only further encourage onerous and abusive fees. Agencies often impose disproportionate fees that have the effect of deterring certain types of requests. For example, requesters frequently receive large fee letters without benefit of a preliminary call or note from the agency to discuss the possibility of a narrowed or more specified request, or to help clarify fee status. Agency staff often charge review fees to noncommercial requesters, despite the fact that such fees are inapplicable. Agency staff frequently seek to charge search fees to newsmedia requesters, again despite the fact that such fees are inapplicable. Noncommercial requesters are subject to search and review fees when responses are not provided within the statutory deadlines, even though the law precludes such fees, agencies asserting that all or nearly all the records requests they receive are subject to unusual and exceptional circumstances. Agencies even have imposed large page by page duplication fees, even when supplying electronic copies of records that already exist in electronic form. As Ravnitsky notes, this form of collection is particularly intrusive and can have adverse effects on requesters. For the citizen on the receiving end, this can adversely affect current and future employment, as well as possibly prevent them from obtaining housing or vehicles. For those already employed, it informs employers of little more than the fact that their employee owes the government money -- which implies all sorts of unseen dishonesty. Ravnitsky calls it the "nuclear option," one which certain agencies might deploy as further discouragement for future FOIA requests. Every government agency has many other options to resolve this issue (blocking of further requests and withholding of remaining responsive documents, to name a few) that this fee extraction method shouldn't even be on the table. The most disgusting aspect of this is that certain agencies (and I imagine there will be more who warm to the idea) feel entitled to take funds (well, additional funds) right out of citizens' paychecks to pay for documents created, stored and distributed by taxpayer-funded agencies and taxpayer-funded employees. This isn't like a federally-funded school loan where the government has spotted a member of the public the money to finish their education. This is the government extracting fees for information it won't release until asked and charging ridiculous amounts for it. The fact that this method is available to government agencies is its own chilling effect, running directly contrary to the spirit of the Freedom of Information Act.Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Electric vehicles are gaining some increasing acceptance on the roads, as some drivers realize that the vast majority of their trips are less than a 40-mile roundtrip. The "range anxiety" factor is still a concern for a lot of people, but there might be some alternatives to the existing rechargeable batteries in use today. Here are just a few examples of possible solutions to improve the energy storage capacity in electric cars. A German car maker is using a 'nanoFLOWCELL' technology to power its all electric vehicle. The Quant e-Sportlimousine might have a horrible name compared to a Tesla S/3/X, but it claims a range of 600 kilometers (372 miles). [url] Batteries might not be the best way to store energy for an electric vehicle, but the alternatives aren't quite ready for commercial vehicles. One of these alternatives is based on a phenomenon called 'thermopower wave' where a fuel is ignited at the end of a carbon nanotube, and the resulting heat pushes electrons and creates electricity. These nanogenerators are far from being perfected, but they have the potential to efficiently turn high energy density fuels into electricity much more efficiently than an internal combustion engine. [url] Phinergy and Alcoa have an aluminum-air battery that could power a small EV for 1,000 miles. The catch is that when your aluminum-air battery is depleted, you'd have to replace an aluminum-containing cartridge at a special service station (so you couldn't just recharge the aluminum-air battery by plugging it into a standard wall outlet). Still, it would could be a nice way to extend the range of an all-electric vehicle significantly with an energy storage technology that has a not-so-complex, closed-loop life cycle. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Just how many entities have their hands on your data when the NSA makes requests? Well, it's not just the service providers and any number of analysts at the NSA. There's a whole industry subset of third parties that actually handle requests, implement wiretaps, direct searches for communications/data and deliver this information to the intelligence agency. ZDNet's Zack Whittaker has the details. With permission from their ISP customers, these third-parties discreetly wiretap their networks at the behest of law enforcement agencies, like the Federal Bureau of Investigation (FBI), and even intelligence agencies like the National Security Agency (NSA). By implementing these government data requests with precision and accuracy, trusted third-parties — like Neustar, Subsentio, and Yaana — can turn reasonable profits for their services. Little is known about these types of companies, which act as outsourced data brokers between small and major U.S. ISPs and phone companies, and the federal government. Under the 1994 law, the Communications Assistance for Law Enforcement Act (CALEA), any company considered a "communications provider" has to allow government agencies access when a valid court order is served. No matter how big or small, even companies whose legal and financial resources are limited do not escape federal wiretapping laws. Subpoenas, search warrants, court orders -- even those from the FISA court -- run through these trusted third parties. From the information Whittaker has gathered, this market seems to have evolved out of limited legal resources retained by smaller ISPs and service providers. Incoming requests are forwarded to these companies, which vet them for legal issues and determine what exactly needs to be done to satisfy them. Some of this is just CYA -- an extra insulating layer to serve as a buffer between the service provider and the possibly aggrieved customer(s). Some of it is due to practicality. Smaller ISPs and service providers do not retain lawyers with the security clearance needed to inspect/challenge certain orders. One of those attorneys, who declined to be named for the story because the person holds top-secret security clearance, explained that although hundreds of lawyers have the same clearance — including those serving terror suspects in Guantanamo Bay — very few have been in front of the FISA Court to defend their clients. These clearance-holding lawyers have been in high demand over the past year representing major Silicon Valley companies implicated in the NSA's surveillance programs. For the majority of smaller companies (as well as larger ones, who have refused to comment on challenging such warrants), complying with data demands may be their only option. The vast majority, however, do not have the resources to handle such requests. "If they don't have an internal lawyer [reviewing FISA warrants], they could use a third-party service. That third-party can't provide legal advice, but it can create a system for reviewing the data, pulling, and processing the data," the security clearance-holding attorney said. Because these companies have the sort of clearance the ISPs lack, smaller ISPs are often nothing more than dumb terminals for government agencies to manipulate. The trusted third parties are often the only entities that see certain court orders and requests, and ISP participation in the approval and response processes is often non-existent. In many cases, the ISP cannot even see the court order it's being directed to comply with. "Of what worth is our permission when we don't even know what we're being asked to give access to?" a senior staffer at [ISP] Cbeyond admitted. In the unlikely event that a request is rejected, it's usually done by the third parties, again without the participation of the ISP itself. The trusted third parties are better equipped -- in terms of legal team security clearance -- to do this than smaller ISPs are, but that additional expertise is of little use should ISPs decide to directly challenge a court order. If the ISP or phone company decides to fight a warrant, the third-party can stand back and wash its hands of it. Burr said Neustar "has and will" reject subpoenas that are inadequate for one reason or another. But should its clients choose to fight a FISA warrant or court order it believes to be overbroad, Neustar will not join the battle in court. Other trusted third-parties take a similar approach. "We're out of the picture," said Marcus Thomas, chief technology officer at Subsentio, another trusted third-party company, founded in 2004, and based out of Littleton, Colorado. While the third parties may be collecting money from ISPs for handling data and intercept requests, their desire to stay in the government's good graces appears to outweigh any loyalty to the businesses that retain their services. "It's the provider's problem," [Yaana Executive VP Tony] Rutkowski said. "The nice part about the trusted third-party business is that just from a liability standpoint, we don't want to be left holding the bag here." [Yaana CTO David] Grootwassink agreed. "We provide the gears. We don't get involved in fights between the governments and our clients." And therein lies part of the problem. While it may be easier to turn over what is largely a compliance function to third parties, there's very little oversight into these companies' actions and processes. Even the ISPs that hire them seem to have limited insight into what's actually being done. These go-betweens have carefully dodged liability by refusing to be involved in legal challenges, leaving underequipped ISPs to fight their own battles. While some trusted third parties have issued transparency reports detailing the requests they've facilitated, this basically leaves the public to perform the oversight, something of very limited use. About all the public can do is switch providers, which, if even an option, only puts them in the hands of another company using the same practices.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
David Kravets, over at Ars Technica, has a good post detailing how Comcast is doing questionable packet injection to put its own javascript ads onto websites if you're surfing via Comcast's public WiFi access points. The practice was spotted by Ryan Singel, who saw the following "XFINITY WIFI: Peppy" ad scoot across his screen: Comcast, in typical Comcast fashion, appears to be totally and completely oblivious as to why this could possibly be seen as a problem: A Comcast spokesman told Ars the program began months ago. One facet of it is designed to alert consumers that they are connected to Comcast's Xfinity service. Other ads remind Web surfers to download Xfinity apps, Comcast spokesman Charlie Douglas told Ars in telephone interviews. The advertisements may appear about every seven minutes or so, he said, and they last for just seconds before trailing away. Douglas said the advertising campaign only applies to Xfinity's publicly available Wi-Fi hot spots that dot the landscape. Comcast customers connected to their own Xfinity Wi-Fi routers when they're at home are not affected, he said. "We think it's a courtesy, and it helps address some concerns that people might not be absolutely sure they're on a hotspot from Comcast," Douglas said. It's a courtesy to hijack the page a person asked for and insert something that no one asked for on it? I don't think so. There's a reason that packet injection is considered an attack and a security risk -- and it's got nothing to do with courtesy. Certainly, the website that Singel was browsing when he spotted it, Mediagzer, was not pleased about having its own site hijacked and defaced: "Indeed, they were not ours," Gabe Rivera, who runs Mediagazer and Techmeme, said in an e-mail. In another e-mail, he said, "someone else is inserting them in a sneaky way." Kravets also talks to Robb Topolski, the guy who first provided the evidence to show that Comcast was throttling BitTorrent a while back, kicking off one of the first big net neutrality fights (which resulted in the FCC slapping Comcast's wrists). Topolski notes that what they're doing here is technically equivalent: To Topolski, what Comcast is now doing is no different from before: Comcast is adding data into the broadband packet stream. In 2007, it was packets serving up disconnection commands. Today, Comcast is inserting JavaScript that is serving up advertisements, according to Topolski, who reviewed Singel's data. "It's the duty of the service provider to pull packets without treating them or modifying them or injecting stuff or forging packets. None of that should be in the province of the service provider," he said. "Imagine every Web page with a Comcast bug in the lower righthand corner. It's the antithesis of what a service provider is supposed to do. We want Internet access, not another version of cable TV." But, of course, to the big broadband players, the last few years have been all about them trying to make the internet much more like cable TV, where they get to act as the gatekeepers and have much more control. The ability to inject their own ads into various webpages is just another bonus.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
The government's predilection for waiting until late Friday to deliver bad news remains unchanged. Two memos justifying wireless wiretapping were released Friday night, buying it a few days time to prep before dealing with any uncomfortable questions raised by these documents. Both memos [PDF links: first, second] have multiple redactions. The first memo has had entire groups of pages withheld, as well as pages so heavily-redacted they may as well have been deleted. Additional details are scant, leaving readers to read between the redactions in hopes of cobbling together the government's rationale for the warrantless wiretapping of calls originating in the United States. What does remain is mostly post-9/11 justifications about needing to respond to a new threat in new ways. And that "new way" was apparently to give the President a blank surveillance check to do with what he wished. The broad outlines of the argument — that the president has inherent constitutional power to monitor Americans’ communications without a warrant in a time of war — were known, but the sweep of the reasoning becomes even clearer in the memos written by then-Assistant Attorney General Jack Goldsmith, who was head of President George W. Bush’s Office of Legal Counsel. “We conclude only that when the nation has been thrust into an armed conflict by a foreign attack on the United States and the president determines in his role as commander in chief . . . that it is essential for defense against a further foreign attack to use the [wiretapping] capabilities of the [National Security Agency] within the United States, he has inherent constitutional authority” to order warrantless wiretapping — “an authority that Congress cannot curtail,” Goldsmith wrote in a redacted 108-page memo dated May 6, 2004. The Stellar Wind program, as it was known, was implemented in the wake of the 9/11 attacks, without Congressional approval. The warrantless wiretapping was rationalized into legality years after implementation, and memos like these were the delivery vehicles. The government doesn't trust Americans to understand why it believes a pseudo-war justifies violations of civil liberties. Those parts are blacked out. What we're left with is supposed to be enough. And it's not just Stellar Wind. Other dragnet programs (internet/email/phone metadata) are rationalized as well in these pages. The May 6, 2004 memo by Jack Goldsmith does everything it can to eliminate Fourth Amendment protections, as Marcy Wheeler points out. It shows that the memo discusses content, discusses telephony metadata, discusses something else, then concludes that content and metadata are both kosher under the Fourth Amendment. The second memo, also written by Goldsmith, does more of the same. This one throws in the then-recent decision by the Supreme Court, finding the detainment of a US citizen (Yaser Esam Hamdi) in Afghanistan was justified because it occurred during a time of war. According to Goldsmith, intercepting communications without a warrant is a "fundamental and accepted" part of waging war. Again, the argument finds in favor of the Executive Branch acting unilaterally to combat terrorism. Anything more detailed or subtly written is buried behind black bars or removed entirely. But the gist of it is: Smith v. Maryland means intelligence agencies can collect nearly anything they deem metadata without tripping over the Fourth Amendment -- and if these small limits are exceeded, the Executive Branch has the power to override any objections.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Cab companies are still fighting Uber and Lyft, and each turf war seems to drag out the worst rhetorical devices and statements from these companies which have enjoyed long, monopolistic runs. Most have gone running to city legislators, hoping to add further regulatory hurdles to the upstart companies, asking for anything from limits on number of vehicles in service to rates considerably higher than cab companies charge. But because you can only do so much arguing on behalf of an entrenched incumbent before you start sound like you truly loathe the public, taxi defenders are also finding creative ways to attack the new services in hopes of making them seem sketchier than cab companies themselves. In New Orleans, the argument took the form of a bunch of words tumbling out of a flustered cab company owner's mouth. Owner of Liberty Bell Cabs in New Orleans, Tony Makhoul, called Uber a “cyber terrorist organization.” Based on…? Well, the report at WDSU doesn't specify. [CAUTION: Autoplay in effect.] Apparently the fact that's its an app-based ride service was enough for Makhoul to float this claim during the city council's discussion. Presumably, Makhoul was using this metaphorically, presenting the company as a cyber-threat (because it's from the internet) to poor, downtrodden cab companies who have enjoyed years of uninterrupted success thanks to protective walls of regulation. Makhoul previously showed his propensity for using words without regard for clarity or meaning in a statement made in July. “It’s hypocritical, preposterous and indeed disgusting that we are entertaining Uber in our market today." Those words may mean something subjectively to Makhoul but they don't make much sense to anyone else listening in. There's nothing "hypocritical" about considering a new entrant into a market, and the only thing that's preposterous and disgusting is the amount of resistance being deployed by incumbent service providers. But this is the same cab company owner that pushed back against the deputy director of the city's Taxi Cab Bureau for enforcing existing regulations -- like requiring credit card readers in all cabs and setting a limit on how many years the same vehicle could be in service. But this one tops his previous wordsplosions. Uber -- which will be forced to charge the highest minimum fee in the nation ($15) as a concession to New Orleans' cab companies -- is here to destroy computers… by driving people in cars. Or destroy Makhoul's business… by providing customers with a competing service. Competition is the new terrorism. Inform the NSA. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Maybe the time has come for Facebook to implement a [Not a Threat] tag to go with its new [Satire] tag. That way, precious law enforcement resources won't be expended hunting down and arresting someone who really isn't threatening anyone. WFIE 14 News is reporting that 31-year-old James Evans of Muhlenberg County, Kentucky was arrested on terroristic threatening charges after he posted lyrics from a song by the heavy metal band Exodus on Facebook. On August 24, Evans posted the following quote from the song “Class Dismissed (A Hate Primer)”, “Student bodies lying dead in the halls, a blood splattered treatise of hate. Class dismissed is my hypothesis, gun fire ends [the] debate.” Shortly thereafter, he was taken into custody by authorities under the rationale that his posting constituted a threat “to kill students and or staff at school,” according to his arrest warrant. Evans ended up spending 8 days in jail for exercising his First Amendment rights. Terroristic threat charges haven't been dropped but his case has been deferred for six months. He's also been ordered to undergo a mandatory mental health evaluation -- all for posting lyrics written by someone else. According to Evans, even some of the officers he spoke to felt there was no reason he should have been arrested. But the statement made by (why?) the county's school resource officer seems to indicate this response was perfectly justified. Resource officer Mike Drake said "multiple agencies" received calls about Evan's post. When you have multiple complainants babbling about school shootings, you really can't just sit around the precinct doing nothing. What you can do, however, is get a little context before booking someone on criminal charges. Turning someone into a criminal simply because they showed a little lack of judgement isn't the appropriate response. Beyond that, there's the First Amendment -- which doesn't cover actual threats but definitely protects stuff a bunch of people mistakenly viewed as a threat.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
The lawyers for Ross Ulbricht have been tossing an awful lot of speculative legal theories at the legal wall in his defense in the past few months, and none of them seem to be sticking. The most recent attempt was to argue that the process by which the DOJ/FBI got access to Silk Road's servers must have violated the 4th Amendment, mainly because it was "hidden" via Tor and Ulbricht couldn't figure out how else the FBI tracked down the servers. In response, the DOJ has revealed the details of how it tracked down the servers via a very readable court filing where you can almost feel the snark dripping from the US Attorneys Office, as they mock both the speculative and hyperbolic nature of the claims, and reveal that Ulbricht basically misconfigured his CAPTCHA login feature to leak the IP address. Contrary to Ulbricht’s conjecture that the server hosting the Silk Road website (the “SR Server”) was located by the NSA, the server was in fact located by the FBI New York Field Office in or about June 2013.... The Internet protocol (“IP”) address of the SR Server (the “Subject IP Address”) was “leaking” from the site due to an apparent misconfiguration of the user login interface by the site administrator – i.e., Ulbricht.... FBI agents noticed the leak upon reviewing the data sent back by the Silk Road website when they logged on or attempted to log on as users of the site.... A close examination of the headers in this data revealed a certain IP address not associated with the Tor network (the “Subject IP Address”) as the source of some of the data.... FBI personnel entered the Subject IP Address directly into an ordinary (non-Tor) web browser, and it brought up a screen associated with the Silk Road login interface, confirming that the IP address belonged to the SR Server.... Based on publicly available information, the Subject IP Address was associated with a server housed at a data center operated by a foreign server-hosting company in Iceland.... Accordingly, on June 12, 2013, the United States issued a request to Iceland for Icelandic authorities to take certain investigative measures with respect to the server, including collecting routing information for communications sent to and from the server, and covertly imaging the contents of the server.... The Reykjavik Metropolitan Police (“RMP”) provided routing information for the server soon thereafter, which showed a high volume of Tor traffic flowing to the server – further confirming that it was hosting a large website on Tor.... Subsequently, after obtaining the legal process required under Icelandic law to search the server, and after consulting with U.S. authorities concerning the timing of the search, the RMP covertly imaged the server and shared the results with the FBI on or about July 29, 2013.... Forensic examination of the image by the FBI immediately and fully confirmed that the server was in fact hosting the Silk Road website, i.e., that it was in fact the SR Server.... The server contained what were clearly the contents of the Silk Road website – including databases of vendor postings, transaction records, private messages between users, and other data reflecting user activity – as well as the computer code used to operate the website. Later, the filing points out: It does not matter that Ulbricht intended to conceal the IP address of the SR Server from public view. He failed to do so competently, and as a result the IP address was transmitted to another party – which turned out to be the FBI – who could lawfully take notice of it. While the DOJ's story is compelling (and while I'm sure some will still insist "parallel construction" but it seems like there would need to be a lot more evidence of that happening) there are some other interesting tidbits in the filing. Ulbricht had argued that the search of the server was unconsitutional because his property was searched without a warrant. However, the DOJ points out that since the server was in Iceland, the 4th Amendment doesn't apply. But in defending the lack of a warrant, it's interesting that the DOJ admits that under the Stored Communications Act a "warrant was not even an option... given that the SR Server was controlled by a foreign data center." That seems to contradict the DOJ's claims in its ongoing fight with Microsoft over accessing emails stored in Ireland. There, the DOJ insists that a warrant under the SCA is not only very much an option, but that it requires Microsoft to hand over the data. The DOJ says the cases are different since Microsoft is a US entity, and thus the SCA compels the US entity to reveal data no matter where it is, but that doesn't apply since the Silk Road server was controlled by an Icelandic company. There remain some interesting legal questions raised by the prosecution against Ulbricht, but so far, the extremely speculative nature of his defense doesn't seem particularly likely to get anywhere. Also, the leaky CAPTCHA should serve as a reminder that, despite all the freakouts and concerns from law enforcement about how the internet and things like Tor will make it impossible to catch criminals, people will almost always mess up somehow and reveal breadcrumbs back to who they are.Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
As per usual, the latest copyright war of words (this one in the UK) came complete with a lot of misleading language and twisted ideas. TruthHurts scored first place for insightful this week by reminding everyone what copyright is for: Copyrights aren't about passion or money. Copyrights are about getting works into public domain after a reasonable period of time. Only corporations have twisted it to mean money. A lot of this week's discussion was focused on the claims of non-inventor of email Shiva Ayyadurai. Some people tried to compare Ayyadurai's nonsense with that old rumour about Al Gore claiming to have invented the internet. John Fenderson took second place for insightful by setting the record straight on that front: There are two major problems with this comparison: 1) Gore never claimed to have invented the internet 2) When people started saying that he did claim that, he didn't devolve into batshit insanity in his attempt to continue to make a claim he never made in the first place. For editor's choice on the insightful side, we start with tomczerniawski and another response to the UK Culture Secretary's comments: “technology companies should be the partners of rights companies, not their masters” he says, while implicitly wishing for rights companies to become the masters of tech companies. Meanwhile, with Deadmau5 picking on Disney to make a point about trademark hypocrisy, Tim R has noted that the double standard is already being exposed: I think the real question to be asked here is why hasn't the entire domain been taken down yet. I mean, that is the correct and measured response that we've been told. Isn't it? Over on the funny side, first place goes to another reaction to the invention-of-email debacle — a simple, anonymous and inspired one: I say we forward all spam to the inventor of email Second place for funny comes from Michael in response to Ferrari's restrictive after-sale terms and conditions: I was just about to buy one of those, but now that I read this, I'm going to get a Dodge Dart instead. For editor's choice on the funny side, let's go ahead and grab two more responses to Shiva Ayyadurai. First we've got Crazy Canuck leaving the 56th comment on the post: First comment This is actually the first comment here as the first comment is defined as having a subject "First comment", starting with "This" and being exactly twenty nine words long. And last but not least, after the Huffington Post claimed to have not received one of our emails inquiring about their coverage, one anonymous commenter made the connection: You know who to blame for that don't you? That's all for this week, folks! Permalink | Comments | Email This Story

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posted 24 days ago on techdirt
Five Years Ago... This week in 2009, we've got a whole bunch of companies reacting badly to technology. The NFL banned social media for refs, and live-tweeting by reporters; DigiProtect admitted it shares files itself just to find downloaders and demand settlements from them; Cash4Gold sued blogs for reporting on its practices; the MPAA renewed its calls for selectable output control; and the BSA joined the chorus in support of a "three strikes" plan. It wasn't all bad news though. This was also the week that the Lori Drew case was officially dropped, an Israeli judge declared watching streaming games online to be fair use, and a silly lawsuit over Yahoo search results was dismissed (though if you recognize the name Beverly Stayart, you know that particular story wasn't over). The Canadian Human Rights Tribunal refused to enforce a new internet hate speech law on the grounds that it was unconstitutional, and another study showed that, contrary to popular belief, technology is making kids better writers (a subject beautifully summed up by a recent XKCD). Ten Years Ago... One of the big topics this week in 2004 was still-new RFID technology. Though some were calling for regulation, others rightly pointed out that it was too early for that. Of course, one way or another, the bottom line was that the technology was coming, like it or not. In a broader sense, this was the time that the earliest generations of true digital natives were coming of age, and the world was beginning to explore the implications of that. Some, of course, were treating it as a problem, such as claiming that broadband is killing "patience" and just generally blaming everything on the internet and text messaging. Video games were going more and more mainstream (though, after a series of PR blunders, Acclaim went out of business). Schools were experimenting with PDAs and wireless networks. And the soon-to-retire MPAA president Jack Valenti was misunderstanding technology right up to the end. Fifteen Years Ago... In 1999, the internet was rocked by a huge Hotmail security breach that allowed anyone to read anyone else's email. In general, the world was realizing that online privacy was a big deal calling for a lot of vigilance. Sun bought Star Office, which was then open sourced and lives on with us today in the form of OpenOffice. Burger King installed internet kiosks, and the US government was worried out about the high speed of Apple's G4 chip, giving them the kind of marketing money can't buy. Alanis Morrissette made out very well on a deal with MP3.com. Also in 1999, we held a contest to come up with a tagline for Techdirt. As far as I know, none were adopted, but there are some interesting ideas in the comments — maybe it's time to reopen the subject? 522, 492 and 394 Years Ago Today, September 6th, is home to an interesting trifecta of great moments in the history of sea voyages. Firstly, it was this day in 1492 that Christopher Columbus left his last port of call before crossing the Atlantic for the first time. Thirty years later on this day in 1522, the only surviving ship of Ferdinand Magellan's expedition arrived in Spain and became the first ship to ever circumnavigate the globe. And finally, nearly a century after that on this day in 1620, the Pilgrims set sail on the Mayflower, bound for North America. Permalink | Comments | Email This Story

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This week's awesome stuff post takes a break from gadgets to look at some crowdfunded content creators working in the vast field of history — because no matter what you do or what your interests are, there's always something to be learned (and a lot of fun to be had) studying the past. Extra History Some of you might be familiar with Extra Credits, a video series discussing a wide variety of topics related to videogame design and the game industry (it's excellent, if you're interested in that kind of thing). A while ago, thanks to a really cool sponsorship opportunity, they did a spinoff series called Extra History that brought their explanatory prowess to bear on the Second Punic War (of Hannibal-crossing-the-Alps fame) and it was similarly excellent. Now, with the help of crowdfunding through Patreon, they are bringing Extra History back as a regular twice-a-month feature: The first episode, kicking off a series about WW1 is already out, and well worth watching. The show has been successfully funded on Patreon and hit the necessary goal to remove YouTube ads — and with a bit more support, it could hit the necessary funding level to become a weekly series. Beep While the video game experts are discussing history, a new documentary will be exploring them both, and specifically the sounds therein: Beep: A Documentary History of Video Game Music & Sound looks well on the way to hitting its goal. The story should prove interesting, as it ties together the worlds of music and technology in a way that doesn't always get explored, with so much of the discussion around videogame tech focusing on graphics and physics these days (even though in the early days of games, things like the ability to play polyphonic sound were huge advancements). Designers & Dragons Before there were videogames, there were tabletop roleplaying games, and it's not as though the latter has done much waning in popularity. From the live games at PAX to the many games and accessories on Kickstarter, tabletop gaming is going strong — which might explain why this book about its history blasted past its funding goal: Designers & Dragons is set to be a four-volume history, with each volume focusing on a decade from the '70s through the '00s. It's way, way beyond its goal, having raised $93,684 on a funding target of only $7,500. But although it doesn't really need your help anymore, there are still three days left to back the project and secure advance copies: Permalink | Comments | Email This Story

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Before Snowden, Tor was an important but rather obscure tool, mostly of interest to those living under oppressive regimes who wanted to access the Internet freely without risking imprisonment or worse. Post-Snowden, things are more complicated. On the one hand, it is clearly one of the key tools that we can all use to thwart attempts by intelligence agencies to monitor what we are doing online. On the other hand, for that very reason, Tor has been the subject of serious attempts by the NSA, GCHQ and the Russian Ministry of Internal Affairs to compromise it so that they can gain information about its users. The fact that, as far as the NSA and GCHQ are concerned,Tor -- "The Onion Router" -- "stinks", as one of the slides leaked by Snowden puts it, is an excellent reason for people to support its recent "call to arms": We used to think there are two main ways that the Tor network can fail. First, legal or policy pressure can make it so nobody is willing to run a relay. Second, pressure on or from Internet Service Providers can reduce the number of places willing to host exit relays, which in turn squeezes down the anonymity that the network can provide. Both of these threats are hard to solve, but they are challenges that we've known about for a decade, and due in large part to strong ongoing collaborations we have a pretty good handle on them. But lately, the people behind Tor have realized there is a new problem they must deal with: We missed a third threat to Tor's success: a growing number of websites treat users from anonymity services differently. Slashdot doesn't let you post comments over Tor, Wikipedia won't let you edit over Tor, and Google sometimes gives you a captcha when you try to search (depending on what other activity they've seen from that exit relay lately). Some sites like Yelp go further and refuse to even serve pages to Tor users. The rest of the post explores possible solutions to this growing rejection of Tor, such as technical mechanisms that allow anonymous users to interact with websites, and social mechanisms -- using a community to help police problems with anonymous users. But as the post notes, these haven't worked too well in past. It therefore suggests a third approach: The solution I envision is to get a person who is both technical and good at activism to focus on this topic. Step one is to enumerate the set of websites and other Internet services that handle Tor connections differently from normal connections, and look for patterns that help us identify the common (centralized) services that impact many sites. At the same time, we should make a list of solutions -- technical and social -- that are in use today. There are a few community-led starts on the Tor wiki already, like the DontBlockMe page and a List of Services Blocking Tor. Step two is to sort the problem websites based on how amenable they would be to our help. Armed with the toolkit of options we found in step one, we should go to the first (most promising) site on the list and work with them to understand their problem. Ideally we can adapt one of the ideas from the toolkit; otherwise we'll need to invent and develop a new approach tailored to their situation and needs. Then we should go to the second site on the list with our (now bigger) toolkit, and so on down the list. Once we have some success stories, we can consider how to scale better, such as holding a conference where we invite the five best success cases plus the next five unsolved sites on our list. It's good to see such a key project both identifying problems and coming up with possible ways to tackle them. The post contains further details of future plans, the people and organizations involved -- and even an offer of funding for those who want to help ensure that The Onion Router's stink continues to make the people at the NSA and GCHQ cry. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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A few days ago, Twitpic, which was the original third party service for hosting images for your tweets, announced that it was shutting down "unexpectedly" because Twitter was threatening to pull its API access if the company didn't drop its trademark application for Twitpic -- an application that had been pending since 2009. Considering that Twitpic was one of the earliest of many third party services built on top of Twitter that helped make Twitter so valuable in the early days, it's certainly disappointing to see it go. It's also something of a legacy reminder that Twitter has been slowly, but surely, destroying all such third party services that helped make it so popular. That's disappointing, if not all that surprising. Platforms all too frequently end up swallowing those who rely too strongly upon them -- and, these days, to be honest, there's little reason to use Twitpic instead of Twitter's own image hosting (or some other options as well). It's even more disappointing that this is all happening over a trademark dispute. Back in 2009, in fact, we highlighted Twitpic as one example (of a few) of how Twitter seemed to take a very open attitude towards its trademarks and let the various companies building on its platform make use of different forms of "twitter" and "tweet." A year later, the company was even more explicit in offering "free" licenses for its trademark for third party services. That's pretty clearly changed these days, and building Twitter as a more closed system where all of the innovation has to come from within, rather than from third parties, is unfortunate (and potentially quite limiting for the future). All that said... I'm really not sure I buy this excuse for why Twitpic is shutting down: We originally filed for our trademark in 2009 and our first use in commerce dates back to February 2008 when we launched. We encountered several hurdles and difficulties in getting our trademark approved even though our first use in commerce predated other applications, but we worked through each challenge and in fact had just recently finished the last one. During the “published for opposition” phase of the trademark is when Twitter reached out to our counsel and implied we could be denied access to their API if we did not give up our mark. Unfortunately we do not have the resources to fend off a large company like Twitter to maintain our mark which we believe whole heartedly is rightfully ours. Therefore, we have decided to shut down Twitpic. But... that makes no sense at all. Twitpic does not need a registered trademark in order to stay in business. It has no need to fight Twitter on this, and if it's concern is the legal fees, why not just drop the whole trademark application. Registered trademarks have some uses, but common law trademarks are nearly as powerful for most important cases. Twitpic could easily just drop the trademark application process (saving legal fees there as well) and stay in business. The idea that you need a registered trademark makes no sense. The idea that you'd shut down the entire business just because Twitter opposed the trademark also makes no sense. It sounds much more like this was a convenient excuse for Twitpic to shut down while "blaming" Twitter for something, but without pointing out that the real problem might have been back when Twitter built in its own photo hosting service.Permalink | Comments | Email This Story

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Freakonomics had an interesting podcast discussing which is more dangerous: alcohol or marijuana? If alcohol didn't exist and was discovered tomorrow, would it be as acceptable as it currently is? It probably would have hard time getting FDA approval, but then the same could be said of Aspirin, if it didn't have its long history as a wonder drug. Here are a few more questions to ponder about alcohol the next time you're not so sober, perhaps. There are a bunch of supposedly effective ways to reduce drunkenness, but how effective are they really? Jim Koch (founder of Sam Adams beer) swears by a teaspoon of yeast to minimize the effects of alcohol, but a small sample test -- along with some microbiologists' opinions -- suggest that this is an urban legend. So cancel that order of yeast, unless you want to try your own experimental procedure. [url] As with many medications and drugs, we don't actually know how alcohol induces intoxication. The causes of hangovers are similarly unknown, even though there seem to be no shortage of recommended cures (of dubious effectiveness). [url] Professor David Nutt has been working on an alternative to alcohol for years, but it's not easy to displace ethanol in our culture (or in our legal regulations). We've mentioned this synthehol-like project before, but more recently, Nutt is appealing to investors to fund his research to develop an alcohol substitute that has an antidote -- which he claims could have a significantly positive impact on human health since it might eliminate drunk driving and other unwanted effects of intoxication. Perhaps a crowdfunding campaign is in order? [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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I actually don't think that Disney's trademark opposition to Deadmau5's attempt to trademark his mouse-shaped helmet thing is that crazy. Disney hasn't gone after Deadmau5/Joel Zimmerman all these years for using it. They're just saying "hey, maybe he shouldn't have a registered trademark on that." And they may have a point. Yes, the designs are different, and no, there isn't likely to be much confusion between Deadmau5 and Mickey, but why is Deadmau5 seeking to get a registered trademark on this in the first place? That said, if notorious copyright maximalists Disney were going to pick an intellectual property fight with someone, it would probably make sense to make sure their own mouse house is in order, no? Apparently, it's not, because Deadmau5 has discovered that... Disney (yes, I'll repeat that: Disney) has uploaded some of his music on its website without permission. The music was on a "re-micks" (ha ha, get it?) page on Disney's website that has since been taken down -- but not before Deadmau5's lawyers sent a takedown letter over it. The letter also, amusingly, makes a trademark claim, though frankly the trademark claim is quite weak. Deadmau5's lawyer is basically claiming trademark infringement over the video as well. That almost certainly wouldn't fly in court. I tend to not be a fan of takedowns in general, but it's pretty clear that this is basically just being done to call out Disney's hypocrisy here. Not that I expect the message to get through. Still it's surprising that such a copyright maximalist company would be posting videos like that...Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Dennis Toeppen is at it again. The owner of Suburban Express, Midwestern bussing company that works the university circuit, is best known for filing ridiculous lawsuits against its own customers and online critics, and for running away whenever any serious media attention is paid to its actions, only to re-file those same suits later. Toeppen himself is also known to be someone who harasses those same online critics personally and also occasionally does his best stalker impression for them. Now, according to Champaign-native Kionae, Toeppen is back at it again, choosing to re-re-file those same lawsuits a third time. Toeppen was arrested in Champaign County last month after a former customer complained that Toeppen had posted rude comments regarding him and another customer on Reddit. He appeared in Lake County Court Aug. 8 for his arraignment, pleading not guilty. Shortly after his arrest, Suburban Express re-filed five of its 126 tort or contract damage lawsuits on July 17 in Cook County. These lawsuits were originally filed in Ford County and dismissed by Judge Steve Pacey in July 2013. Jeremy Leval, the Redditor who got this whole saga started after being sued and harrassed by Toeppen simply for sticking up for a foreign exchange student who a bus driver was mocking, is of course among those Toeppen is re-re-filing against. One begins to get the impression that Toeppen and Suburban Express are masochistic, getting some kind of perverse joy out of getting blasted in the media and online. I'm at a loss as to what other forces could be at work here. Though, judging by some of the other customers' stories from those being attacked legally by Suburban Express, the simple answer may be that Toeppen is simply a jerk. A case has also been re-filed against Manfred Kubler, junior in LAS, and his mother, Laurie Casas, for delaying a bus on Jan. 13, 2013. Kubler said he needed to retrieve a backpack, which contained an EpiPen, from his mother’s car after he had boarded his bus. After retrieving the bag, Toeppen asked Kubler to board another bus at the stop after he had sat down. He complied, but after learning that the second bus arrived in Champaign an hour later than the first bus, Kubler was concerned he would not be able to retrieve his luggage, which he said contained his nebulizer and other important medicines, on arrival. He said the first bus began to roll earlier than its planned departure time, but the driver stopped as Kubler walked toward it, inviting him to re-board. Following an altercation between Toeppen, Casas and Kubler after re-boarding, Kubler said Toeppen retrieved his luggage from the first bus’ undercarriage, hitting his mother with the door, and called the police on the two of them. Delightful. What's insane about all of this is that the re-re-filings come the day after Toeppen was arrested for harassment, indicating that it will take more than the justice system to slow down his brand of insanity. I imagine being sanctioned out of existence by some anti-SLAPP legislation that has actual teeth might do the job far better, reminding us again what a shame it is that the US doesn't have such a thing. In the meantime, it might seem reasonable for whichever judge picks up these cases to lay a little lumber to Mr. Toeppen and his clear abuse of the legal system. That and pushing stories about his underhanded behavior up the search engine rankings, as well. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Over the last week, we've been debunking a bizarre "series" of stories over at Huffington Post, which is claiming to be about "the history of email" but is not. It's about a guy, Shiva Ayyadurai, who may have written an implementation of email in the late 1970s, but which was clearly well after email was in widespread use. Ayyadurai's actual program (and as far as I can tell, he has not released any screenshots of what the program actually looked like) may have worked well for the University of Medicine and Dentistry of New Jersey (UMDNJ) where he wrote it as a 14-year-old, but it contributed nothing to the future of email. Beyond email existing in various forms long before that, nothing that happened later in the email space appears to have happened because of Ayyadurai's program. Each of the advancements in email came from elsewhere, with no indication that anyone anywhere was even aware of what Ayyadurai had done in New Jersey. Ayyadurai has waged an incredibly bizarre public relations campaign, and the more you look at it, the more bizarre it becomes. However, anyone who looks over any of the primary documentation (much of which we've linked to in our previous posts) can only conclude that while Ayyadurai may have independently come up with some ideas, he most certainly did not invent email. It was widely in use. The key arguments in his claim are obviously false, and prey on (1) a misunderstanding or misrepresetation of copyright law and (2) an almost fraudulent misquoting of Dave Crocker, a guy who really was heavily involved in early email efforts. Again, all of that is discussed in the earlier posts. What I still cannot fathom is how the Huffington Post can stand behind this "reporting." I've now heard from three different HuffPost reporters on the news side who all say that they're horrified that no one at the company has done anything about this. The only official response I got stood by the stories, but actual reporters at the company recognize that their own credibility has been absolutely destroyed by this. It's been pointed out that the five part series is on HuffPo's "blogging" side -- which gives a platform to PR folks with no editorial oversight. But, because HuffPo does little to separate out its "news" division from those open "blogs," the blogs get filed with all sorts of clearly bogus crap. Much of it gets totally ignored, but some (apparently including PR "guru" Larry Weber and his business partner Shiva Ayyadurai) are willing to exploit the fact that no one recognizes the blogging platform has no editorial review, to pretend that a "reputable source" has "confirmed" the story. Ayyadurai himself keeps pointing to the HuffPo stories as some sort of "vindication" (while hilarious suggesting that I'm being paid off by Raytheon...). He leaves out that these are all blog posts by his friends and partners, put up on the site with no editorial review. Again: every serious look into the history has found that he is not the inventor of email. And that's why it's so damaging to the good reporting that some actual HuffPo reporters do, to find out that the company won't retract and renounce this series as a PR campaign for a series of blatantly fraudulent claims -- obvious to anyone who looks at the documentation. Even worse, however, is the fact that part of the HuffPo journalism side -- HuffPo Live -- picked up on the completely bogus campaign and did a whole fawning interview with Ayyadurai, never once presenting the evidence that he's fraudulently misrepresenting basic facts. And, contrary to the claims from Huffington Post's PR people, the HuffPo Live articles, written by Emily Tess Katz do not have any "clarification" -- bogus or not. I've now asked the author of the HuffPo live stories, Emily Tess Katz, multiple times if she still stands by this story, and she has refused to respond. Journalistic integrity! According to one report, she had said she stood by it, and then deleted the tweet. We've talked in the past about the concept of "he said/she said" journalism -- what Journalism Professor Jay Rosen likes to call "the view from nowhere" -- in which journalists feel (incorrectly) that "being objective" means giving "both sides equal weight and letting the reader decide." That's bad. Journalism should be about the search for truth. The thing that's truly baffling here isn't that HuffPo and HuffPo Live are doing "the view from nowhere," but that they're actually actively promoting a lie. It's the view from Bogustan. Rather than promoting the truth or presenting false balance, Huffington Post is actively claiming that a clearly false story is true -- and when presented with reams of evidence on that front, it appears that the company is simply throwing up its hands and hoping the whole story just blows over. Beyond the reporter, I've emailed Huffington Post PR people, and they, too, are now refusing to comment. Meanwhile, some of the company's very good reporters are hanging their heads in shame. My suggestion: perhaps it's time to start looking for a publication to work for that actually takes journalistic integrity seriously.Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Following the horrific actions of ISIS/ISIL, in which the group beheaded American journalist James Foley and plastered the video in online forums like Twitter and YouTube, I argued that it is important that the American Public be given the chance to repudiate the aim of the video: paralyzing us with fear. Adding to that thought, Glenn Greenwald argued that the reason one must fight against censorship in the most egregious of speech cases is that such cases are often where the limitation of speech is legitimized. While this may not be a First Amendment consideration, since those sites are not affiliated with the government, it would be a mistake to suggest that free speech is limited as a concept to that narrow legal definition. Free and open speech is an ideal, one that is codified into law in some places, and one which enjoys a more relaxed but important status within societal norms. I can only assume it's a lack of understanding in both arguments above that has led one Forbes writer to rush to praise YouTube for taking down the latest ISIS/ISIL video. You've almost certainly heard that another American has been beheaded at the hands of civilization's enemy, yet you'll have a much harder time finding the video of Steven Sotloff's death on YouTube this time around. Jeff Bercovici suggests this is a good thing. With 100 hours of new footage uploaded every minute, YouTube says it doesn’t, and couldn’t, prescreen content, relying on users to flag violations. In this case, its monitors were, unfortunately, expecting the Sotloff video to be posted after weeks of threats by his captors and a widely circulated video plea by his mother to spare his life. That readiness allowed them to remove the video and shut down the account that posted it within hours. This is how you get an American public uninformed about the brutality of groups like ISIS/ISIL. It's how you legitimize terror groups who themselves wish to impose limitations on the types of things the people under their rule are allowed to see and do. It's the start of how the American public is refused the opportunity to witness the full story. And that last part is especially egregious in a time and place where images rule the news cycle. Here the public is, inundated with the story of an American journalist being murdered at the hands of a group that considers that public a target for violence, and the public isn't even given the opportunity to see the images at hand. This, of course, isn't to argue that people should be forced to watch the brutality. But, as I argued before, denying the American people the opportunity to disabuse ISIS/ISIL of the notion that they can scare us into inaction is something we shouldn't stand for. YouTube can do this, but they shouldn't, and they certainly shouldn't be praised for it. YouTube, on the other hand, has given itself more latitude to make judgement calls by basing its policies on common sense rather than First Amendment absolutism...For tech companies to embrace the principle of free expression is laudable — but they should also leave themselves the maneuverability to deal with bad actors who care nothing for that or any other civilized value. This misunderstands the most important value of free speech: allowing the evil in the world to identify itself. Once we start down the road of disappearing the speech we deem to not have any value, you open the door for alternative interpretations of the value on a whole host of other speech. Censoring the bad actors doesn't make them go away, it only refuses to shine the public light on them. It keeps people from being able to confront the horrible reality that exists and the group that wants to do us harm. That can't be allowed to continue. Permalink | Comments | Email This Story

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Politico is known as the snarky DC-based publication that seems to thrive on considering itself part of the infamous "church of the savvy," where reporting on the play-by-play of the horse race of politics is more important than exposing the truth. However, it apparently has a bit of an inferiority complex when it comes to Glenn Greenwald. A bizarre "profile" of Greenwald by Michael Hirsh tries to make the argument that Greenwald has "peaked" mainly because Politico appears to really, really, really want that to be true. Of course, as Jay Rosen pointed out, this is hardly the first time that Politico has asserted that Glenn Greenwald was over as a story. The site did so back in July of 2013, just a month after the first Snowden revelations, claiming "the new cycle has moved on" and "Greenwald doesn't seem to have any more big revelations up his sleeve." Of course, in the 14 months since that was published, Greenwald has broken numerous huge stories about the intelligence community (many much bigger than the original stories), including how the NSA/GCHQ abused the information they had to destroy reputations, plans to infect millions of computers with malware, how the NSA has an internal blog where an analyst brags about "hunting sysadmins" at powerful companies, how the NSA has recorded every phone call in a couple of countries, and how the FBI spied on prominent Muslim Americans. And much more. Plus he wrote a book. But, you know, no more big revelations. The new piece from Hirsh has this perfectly ridiculous line about Greenwald, which shows the level of misguided "snark" in the article: The rest is history. Or journalism. Or treason. Or something. What is it? Who cares? We're just calling the horse races, and this Greenwald guy is a distraction, apparently. This sort of tone is found throughout the piece, including this bizarre line: Will there be many more Snowdens to come, based on Greenwald’s “model”? Perhaps. But it’s more likely that Greenwald Inc. has already peaked. Of course, this comes just weeks after it was recognized (even by Politico!) that The Intercept is working with a new leaker who is clearly not Snowden, because the terrorism watchlist guidelines that Greenwald's The Intercept published came out after Snowden had already fled. But, why bother with facts when the goal is to smear Greenwald as an also-ran? There are many more problems with the piece, starting with the idea that anyone can even measure whether someone has "peaked" or not. But the whole thing has no facts in it, but just appears to be Politico's wishful thinking that this pesky outsider might just fade away.Permalink | Comments | Email This Story

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Over at The Intercept, there's an article claiming that the AP's national security reporter Ken Dilanian had a too cozy relationship with the CIA while he was at the Tribune Company. It's an interesting read, based on pages upon pages of emails between reporters and the CIA that were released under a FOIA request. However, what caught my attention, more than the full story, was something in all of those emails, spotted by Katherine Hawkins. And it's that, on page 363, it seems clear that the CIA, when releasing these emails, redacted the line "Off the record, no comment." It's rather obvious, because Dilanian immediately repeats that line right back, somewhat angrily at the ridiculousness of it. Rather than using the all purpose b(5) redaction, it appears that the CIA is claiming a b(3) and b(6) reason for this comment being "redacted" (even though they left it in in Dilanian's reply). b(3) is for documents "specifically exempted from disclosure by statute" and b(6) is for documents "personnel and medical and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." I'm curious how "off the record, no comment" qualifies as either. It appears to be redactions for redactions' sake.Permalink | Comments | Email This Story

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Via Parker Higgins we learn that Automattic (better known as the Wordpress people) have added singer Janet Jackson to their "Hall of Shame" for sending totally bogus takedowns. Apparently, her people made the wacky claim that this post on "what would your WWE smackdown name be?" represented trademark infringement. It doesn't. The only place it even mentions Jackson is in showing a picture of Sacha Baron Cohen with the following explanation: Costume and entrance: Picture Sacha Baron Cohen in, what else? his movie The Dictator. Elaborate General’s outfit, hat, etc. He walks in flanked by half a dozen sexy female soldiers inspired by the Janet Jackson Rhythm Nation video. Uh, yeah. That's not trademark infringement. It's not copyright infringement. It's not anything but someone writing. The other takedown is equally problematic. It claims the following image is copyright infringement: As you can clearly see that's using a photo of Jackson's famous "wardrobe malfunction" from the Superbowl many years ago, and applying the Things Tim Howard Could Save meme to it. Marginally funny. But not copyright infringement. Not only does Jackson not hold the copyright on that image, it's obvious fair use for whoever does hold the copyright. Still, Automattic's lawyers had some fun with their response, noting that they "tried to use as many Janet Jackson song titles as possible" in the response (while also noting they hope that doesn't lead to another takedown demand): It seems like you believe the use of the trademark “Janet Jackson” is reserved all for you, but we were hoping you’d be open to some feedback because your attempt to control every use of the mark is pretty nasty. If you read up on nominative use, you’ll discover that it doesn’t really matter that “Janet Jackson” is used on this site. If you believe there are any other alleged infringements, would you mind submitting a notice again via our trademark form? http://automattic.com/trademark-policy/ So excited to work with you going forward Nicely done.Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Two weeks ago, the DOJ Inspector General released a report on the FBI's use of National Security Letters (NSLs)—the controversial (and unconstitutional) surveillance instruments used to gather personal information of Americans without any prior oversight from a judge. In a little-noticed passage buried in the report, the IG describes how NSLs have been used on journalists in the past, and indicates that the FBI can currently circumvent the Justice Department's media guidelines to do so in the future. When and precisely how can they do so? Well, apparently that's classified. First, some background: In July, after a torrent of criticism that the Justice Department (DOJ) was targeting reporters in the wake of the Associated Press and Fox News scandals, Attorney General Eric Holder issued new guidelines for DOJ that tightened the rules for when they could secretly obtain records from reporters. Notably, the guidelines excluded National Security Letters. This is critical because past IG reports, as well as the new one, have harshly criticized the FBI for circumventing the old media guidelines and using NSLs to gain access to reporters' records on at least three occasions. Earlier this year Pulitzer Prize winner Barton Gellman revealed his telephone records had once been targeted by an NSL. As the New York Times reported when the new guidelines were issued in July: There is no change to how the F.B.I. may obtain reporters' calling records via "national security letters," which are exempt from the regular guidelines. A Justice spokesman said the device is "subject to an extensive oversight regime." What is the "extensive oversight regime"? The IG report discusses it, but the FBI has brazenly redacted the whole thing. From page 178 of the new report: The above passage is referencing the FBI's response to the IG's criticism of a leak investigation in which a journalist's telephone records were accessed with an NSL. 28 C.F.R. § 50.10 refers to the media guidelines. Reading between the redactions, it seems that Attorney General approval may required in some classified circumstances but not in others. The FBI thinks those circumstances should be secret. Worse, it seems the FBI has so far ignored another IG recommendation regarding the use of NSLs against reporters. From page 192 of the report: Unfortunately, the redactions in this section make it nearly unintelligible, but it's clear from the reference to the DOJ's media guidelines in the second paragraph that they are writing about leak investigations and journalists. It should be noted from the very first footnote of the 196-page report that the IG strongly objected to many of the redactions within the report, including both information that was made public in previous reports and information they "believe is important to the public's understanding of the FBI's compliance with NSL requirements." And that's the crux of the issue: how can the public be expected to have confidence in a so-called "extensive oversight regime", without any transparency or inkling of what it is? All too often the government has expected us to trust that such authorities are not being abused, while their own investigations continually uncover problems with compliance. Beyond the fact that the whole NSL statute was ruled unconstitutional last year (the ruling is on hold pending appeal), journalists—at the bare minimum—deserve to know when the FBI thinks it can secretly conduct surveillance on them without court approval. As the IG states, this has significant First Amendment implications and it's a travesty that the FBI continues to keep their policies for spying on the press a secret. Reposted from Freedom of the Press Foundation Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
As we wrote back in July, it seems that the trade agreement between Canada and the EU, generally known as CETA, is finally nearing completion, after premature claims to that effect. One reason why we might believe so is that thanks to some public-spirited whistleblower(s), we now have both CETA's main text (pdf) and the annexes (zip). This has permitted Michael Geist to perform an analysis of how the copyright provisions in CETA have evolved since the first leak of the chapter covering intellectual monopolies, posted by Wikileaks back in 2009. At that time, the European Union was pushing for some serious beefing-up of Canadian law in this area: the starting point for copyright in CETA as reflected in 2009 leaked document was typical of European demands in its trade agreements. It wanted Canada to extend the term of copyright to life of the author plus 70 years (Canada is currently at the international standard of life plus 50 years), adopt tough new rules for Internet provider liability, create criminal sanctions for some copyright infringement, implement new rights for broadcasters and visual artists, introduce strict digital lock rules with minimal exceptions, and beef up enforcement powers. In other words, it was looking for Canada to mirror its approach on copyright. Geist's post explores how that gradually changed, as reflected in subsequent leaks, culminating in the latest one, of the full text. Rather remarkably, he finds: The major European copyright demands were ultimately dropped and remaining issues were crafted in a manner consistent with Canadian law. He sees four main reasons for this: First, the domestic policy situation in both Canada and the EU surely had a significant impact as ACTA protests in Europe and consumer interest in copyright in Canada led to the elimination of the criminal provisions and the adoption of better-balanced, consumer-oriented rules. ... Second, while there is much bluster about "strong" European rules or "weak" Canadian laws, the reality is that both are compliant with international standards that offer considerable flexibility in implementation. ... Third, the "made-in-Canada" approach is gradually garnering increased attention around the world as a creative, viable alternative. ... Four, when the European Union was pressed to prioritize its top intellectual property issues during the negotiations, copyright ultimately took a back seat to pharmaceutical patents and protection for geographical indications. While it's great that the copyright provisions of CETA are not nearly as bad as we had feared, there's a worrying implication here for TTIP/TAFTA. The EU's maximalist approach to copyright was only dropped in CETA because Canada fought back. In TTIP, there is zero chance the US will do that -- on the contrary, it may well want the EU to become even more extreme. That means we can probably expect some really awful copyright measures in TTIP, confirming earlier fears about what backroom discussions may be preparing for us. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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