posted 27 days ago on techdirt
Net neutrality is the idea that Internet service providers (ISPs) should treat all data that travels over their networks fairly, without improper discrimination in favor of particular apps, sites or services. It's a principle that's faced many threats over the years from ISPs and government agencies seeking to exercise control over the free and open Internet. With the roll back of net neutrality protections looming, many people are now asking, "What if there is no net neutrality?" This "what-if" debate is surprising, however, because we have a clear, documented history of the kinds of non-neutral, discriminatory practices that ISPs have actually deployed in recent years. Here are just a few ways ISPs have throttled or blocked content in the past: Packet forgery: In 2007 Comcast was caught interfering with their customers’ use of BitTorrent and other peer-to-peer file sharing Discriminatory traffic shaping that prioritizes some protocols over others: a Canadian ISP slowed down all encrypted file transfers for five years Prohibitions on tethering: the FCC fined Verizon for charging consumers for using their phone as a mobile hotspot Overreaching clauses in ISP terms of service, such as prohibitions on sharing your home Wi-Fi network Hindering innovation with "fast lane" discrimination that allows wireless customers without data plans to access certain sites but not the whole Internet Hijacking and interference with DNS, search engines, HTTP transmission, and other basic Internet functionality to inject ads and raise revenue from affiliate marketing schemes, from companies like Paxfire, FairEagle, and others Individually and collectively, these practices pose a dire threat to this purely democratic engine of innovation that has allowed hackers, startups, and kids in their college dorm rooms to create the free Internet that we know and love today. Nonetheless, Ajit Pai, the new FCC Chairman backed by many Congressmen and a very powerful lobby, is moving forward to reverse net neutrality protections. At stake are the net neutrality rules that would allow Comcast and other ISPs to once again engage in non-neutral market practices like forging packets and blocking some Internet traffic. Chairman Pai's actions ignore the overwhelming sentiment of over 22 million Internet users who have contacted the FCC in an unprecedented outreach to government to express their views on net neutrality. According to a poll this summer the public support to protect net neutrality is overwhelming. 77 percent of those surveyed support net neutrality protections, as codified in the FCC's 2015 Open Internet order. And support for the FCC's policy is bipartisan, with 73 percent of Republicans, 80 percent of Democrats, and 76 percent of Independents in favor of the rules. It is tempting to reach for easy solutions, but handing the problem over to a government agency with strong industry ties and poor mechanisms for public accountability poses a real danger of creating more problems than we’d solve. One alternative is to foster a genuinely competitive market for Internet access. If subscribers and customers had adequate information about their options and could vote with their feet, ISPs would have strong incentives to treat all network traffic fairly. But the ISP market today is under oligopoly control. Nearly one in three American households have no choice when it comes to their Internet, and for all the other consumers choices are quite limited. Another scenario would be for Congress to step in and pass net neutrality legislation that outlines what the ISPs are not allowed to do. But fighting giant ISP mega-corporations (and their army of lobbyists) in Congress promises to be a tough battle. Yet another option: empower subscribers to not just test their ISP, but challenge it in court if they detect harmful non-neutral practices. That gives all of us the chance to be watchdogs of the public interest, but it too, is likely to face powerful ISP opposition. Net neutrality is a hard problem, and will remain challenging. But one guiding principle to keep in mind is that any effort to defend net neutrality should use the lightest touch possible, encourage a competitive marketplace, and focus on preventing discriminatory conduct by ISPs. Internet freedom means that all Internet traffic should be treated fairly and without gatekeepers to determine winners and losers. Special deals with a few companies will inevitably inhibit competition, thwart innovation and suppress free speech and expression through throttling, packet forgery and paid prioritizations. There is simply no evidence that Internet users can trust the ISP oligopoly, the FCC, or any government agency with open-ended regulatory authority of the Internet. In fact the evidence is clear to the contrary. Free and open access to the Internet is a universal right. Let's seek solutions to protect net neutrality that empower users with free (as in freedom) Internet access. The power of the Internet belongs with the people. John Ottman is Chairman and co-founder of Minds, Inc. a social media network. He is also an enterprise software industry executive, and the author of Save the Database, Save the World, a book on database security. Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
As smartphones and other mobile devices have gotten smarter and smarter, they've taken over more and more of most people's general computing needs, and the importance of the classic personal computer has waned. And so for some time the question has been: will the PC ever go away entirely? That's our topic this week as we try to figure out who really needs a PC these days, and when and if that will change. 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. Permalink | Comments | Email This Story

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As promised, Ron Wyden (along with Rand Paul) has delivered an antidote to the Senate Intelligence Committee's completely terrible Section 702 "reform" bill. That bill, authored by Sen. Burr, would extend the NSA's 702 powers until 2025 while allowing US law enforcement to use collected intelligence for normal law enforcement purposes. It also would have turned the NSA's "about" collection back on, provided no one opposed it with directly-targeted legislation. This program's ability to "inadvertently" sweep up US persons' communications was so concerning the NSA voluntarily shut it off. (It asked to have it turned back on less than two months later, however.) Charlie Savage of the New York Times has published the latest draft of the Wyden reform bill, titled the USA RIGHTS Act of 2017. (His annotated version of the bill can be found here.) Wyden's bill [PDF] makes several significant changes, including codification of the NSA's voluntary "about" collection shut down. Beyond preventing the NSA from resuming a collection it has abused since inception, the bill also shortens the extension period to 2021, ensuring the next debate over Section 702 collections isn't put off for nearly a decade. (The Burr bill extended the sunset to 2025. The House Subcommittee's lukewarm reform bill set it at 2023.) It also would attempt to close the "backdoor search" loophole that allows US government agencies to obtain domestic communications without a warrant. Wyden's bill adds a warrant requirement for these searches -- including those with a national security purpose. This serves two purposes. First, it brings the collection of domestic communications via NSA surveillance back in line with the Fourth Amendment. Additionally, it provides for better accountability by ensuring any database searches leave a paper trail. It also bans the acquisition of content "known to be entirely domestic." The bill also provides for better notification of prosecutors' use of Section 702-derived evidence. It limits the use of Section 702 surveillance to national security cases, with one exception: direct approval from the Attorney General. The new notification requirements will attempt to circumvent parallel construction by preventing the government from withholding notification if there is any other conceivable way it could have obtained the same evidence (inevitable discovery, normal law enforcement surveillance methods, etc.). It also adds further reporting requirements, including mandatory production of numbers Wyden has been seeking for years: incidentally-collected US persons' communications. It would also require the FBI to turn over the number of US persons queries it performs using NSA-collected intel. There are other good aspects to the bill -- stuff normally not discussed during surveillance authority sunsetting. The bill would divest the power currently held by Chief Justice John Roberts. Chief justices have controlled FISA court judge selection for most of the last 30 years, resulting in a long stream of conservative picks, many of them former government prosecutors. This bill would allow all 13 circuits to nominate judges for FISC posts, which should help prevent future FISA judge picks from being so closely aligned with the Chief Justice's views. Finally, the bill also provides for additional Privacy and Civil Liberties Oversight Board input. The PCLOB is all but dead, but if it's revived, it would have access to Intelligence Community whistleblower complaints. This is the best reform bill we've seen offered yet. But the clock continues to tick down to 702's renewal. Chances are, Sen. Burr's control of the Senate Intelligence Committee isn't going to do much to ensure this bill moves forward intact, if it moves forward at all. Between Burr and Sen. Feinstein, the oversight committee has been internally limited in terms of actual oversight. Wyden's presence on the committee is the wild card, but entrenched powers continue to limit his effectiveness. Hopefully, some of this bill will replace the worthless, toothless "reforms" proposed by Sen. Burr and continue to nudge the Intelligence Community towards compliance with a number of Constitutional amendments. Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
The Senate Intelligence Committee has released its Section 702 reauthorization bill [PDF]. Rather than fix anything, it makes pretty much everything worse. This is largely due to Sen. Burr's influence, who probably felt he had to bring something to the debate, but couldn't bear to part completely with his "clean, forever reauthorization" dreams. Senator Burr is somehow claiming this is a "reform" bill. Marcy Wheeler has written an excellent post describing all the ways in which it isn't, especially the tail end of the bill which pretends to limit US law enforcement access to NSA collections. It does so in Section 5, in what is cynically called “End Use Restriction,” but which is in reality a vast expansion of the uses to which Section 702 data may be used (affirmatively codifying, effectively, a move the IC made in 2015). It permits the use of 702 data in a criminal proceeding for any criminal proceeding that “Affects, involves, or is related to” the national security of the United States (which will include proceedings used to flip informants on top of whatever terrorism, proliferation, or espionage and hacking crimes that would more directly fall under national security) or involves, Death Kidnapping Serious bodily injury Specified offense against a minor Incapacitation or destruction of critical infrastructure (critical infrastructure can include even campgrounds!) Cybersecurity, including violations of CFAA Transnational crime, including transnational narcotics trafficking Human trafficking (which, especially dissociated from transnational crime, is often used as a ploy to prosecute prostitution; the government also includes assisting undocumented migration to be human trafficking) So, just the "serious" crimes. This is how agencies like the FBI are using 702 collections already. All Burr's bill would do is codify the use of foreign-facing national security agency to collect and retain communications related to domestic criminal activity -- some of it potentially rather minor. Beyond that, the bill looks to give the NSA back its "about" program. This is the program the NSA abandoned after pushback from the FISA court and (perhaps) as a way to dodge uncomfortable questions about the continued collection of domestic communications. This was a voluntary move by the NSA and it was already asking to have its collection back a couple of months later. Burr's 702 bill would hand the NSA back its program with a 30-day waiting period during which the House or Senate could introduce a bill forbidding the reinstatement of the program. Should no bill be introduced within the notice period, the NSA could pick up where it left off and go back to abusing a collection program it has never not abused since its inception. It also allows the NSA to make "emergency" claims about its "about" program to bypass legislative attempts to block it. This wouldn't automatically nullify legislative efforts to end the about collection permanently, but it would allow the NSA to continue collecting while the issue is being debated. So, it's basically what one would expect from one of top hardline supporters of the NSA. Good thing Burr is one of the top men in the "oversight" committee. He's willing to give the NSA what it wants -- along with the stuff it gave up -- and for more years than the House Judiciary Committee's tepid reform option. Burr's bill would push the next renewal fight off until 2025, two years more than the 2023 sunset in the House bill. Fortunately, there may be a third option in play soon. Ron Wyden has announced he's preparing a 702 bill and is pushing the Senate Intelligence Committee to make renewal hearings public. Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Scared to look at your email sometimes? You won't be with Postbox 5. This power email app lets you access all your accounts in one place with an extremely functional, intuitive interface that lets you organize and access everything you need within a few keystrokes or clicks. Packed with features to allow you to compose messages faster, send and find attachments more easily, and clean up your inbox clutter. This single user license is on sale for $29.99. 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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So, here's a fun one. Back in May, the Justice Department -- apparently lacking anything better to do with its time -- sent a subpoena to Twitter, demanding a whole bunch of information on a five Twitter users, including a few names that regular Techdirt readers may be familiar with: If you can't see that, it's a subpoena asking for information on the following five Twitter users: @dawg8u ("Mike Honcho"), @abtnatural ("Virgil"), @Popehat (Ken White), @associatesmind (Keith Lee) and @PogoWasRight (Dissent Doe). I'm pretty sure we've talked about three of those five in previous Techdirt posts. Either way, they're folks who are quite active in legal/privacy issues on Twitter. And what info does Twitter want on them? Well, basically everything: Names (including subscriber names, user names, and screen names); Addresses (including mailing addresses, residential addresses, business addresses, and e-mail addresses); Records of session times and durations, and the temporarily assigned network addresses (such as Internet Protocol ("IP") addresses) associated with those sessions; Length of service (including start date) and types of service utilized; Telephone or instrument numbers (including MAC addresses, Electronic Serial Numbers ("ESN"), Mobile Electronic Identity Numbers ("MEIN"), Mobile Equipment Identifier ("MEID"), Mobile Identification Numbers ("MIN"), Subscriber Identity Modules ("SIM"), Mobile Subscriber Integrated Services Digital Network Numbers ("MSISDND"), International Mobile Subscriber Identifier ("IMSI"), or International Mobile Equipment Identities ("IMEI")); Other subscriber numbers or identities, or associated accounts (including the registration Internet Protocol ("IP") address); Means and source of payment for such service (including any credit card or bank account number) and billing records. That's a fair bit of information. Why the hell would the DOJ want all that? Would you believe it appears to be over a single tweet from someone to each of those five individuals that consists entirely of a smiley face? I wish I was kidding. Here's the tweet and then I'll get into the somewhat convoluted back story. The tweet is up as I write this, but here's a screenshot in case it disappears: And, just to make it clear, here are all the users "in the conversation" on that tweet (since Twitter now buries at least some of that information): You'll note that all of the names are the same names as listed in the subpoena above (as a point of clarification, the four users listed below were already in the conversation, so their metadata gets swept along, and then the tweeter, Justin Shafer, is also adding in @PogoWasRight to the conversation). So, who is Justin Shafer, and what the hell is all of this about? Buckle up, because it'll take a bit of background to get around to this tweet (and, yes, it will still feel very, very, stupid that this subpoena was ever issued). First up: Justin Shafer is a security researcher, who has some history spotting bad encryption. Go back to 2013 and he had spotted a weak not really "encryption" standard put out by Faircom. Once it was called out as weak, vulnerable and not really encryption, Faircom rebranded it from the "Faircom Standard Encryption" to "Data Camouflage" since the reporting by Shafer showed that it wasn't really encryption at all -- but just a weak attempt at obfuscation. Fast forward to late 2013, when a dentist named Rob Meaglia alerted some of his patients that a computer was stolen from his offices with "medical records and dental insurance information." But, Dr. Meaglia told his patients that the records system they were using, Dentrix, made by a company called Henry Schein, Inc., had all of that data encrypted. Except, it appeared that Dentrix was actually using Faircom's "Data Camouflage" and not actual encryption. And, as that link notes, Henry Schein, Inc. had been informed of this problem months earlier, around the time Faircom admitted it wasn't actual encryption. In May of 2016, the FTC announced a settlement with Henry Schein, Inc. over the claim that it "falsely advertised the level of encryption it provided to protect patient data." Kudos to Justin Shafer. But, literally days later, the FBI was raiding Justin Shafer's home and taking all of his computers. This was not specifically about the Harry Schein case, but since Shafer had continued to investigate poor data security practices involving dentists, he'd come across an FTP server operated by another dental software company, Patterson Dental, which makes "Eaglesoft," a dental practice management software product. Shafer had discovered an openly available anonymous FTP server with patient data. Shafer did the right thing as a security researcher, and alerted Patterson. However, rather than thanking Shafer for discovering the server they had left with patient data exposed, Patterson Dental argued that Shafer had violated the CFAA in accessing the open anonymous FTP server. Hence the FBI raid. Not surprisingly, Shafer was none too pleased with the FBI's decision to raid his home and take all of his electronics. In, particular, it appears he was especially annoyed with FBI Special Agent Nathan Hopp (who he initially believed was actually Nathan "Hawk.") Fast forward to March of this year, to an entirely different story: the FBI arresting John Rivello for "assaulting" journalist Kurt Eichenwald with a tweet. If you follow Techdirt related stuff, you probably remember that whole story. Lots of people, including us, posted the criminal complaint, that was put together by one Nathan Hopp, a special agent at the FBI. It appears that the Rivello arrest and subsequent news coverage suddenly alerted Shafer to the fact that "Nathan Hawk" was actually "Nathan Hopp" and Shafer began a bit of an open source "investigation" on Twitter. I wouldn't necessarily call the following tweets "smart," but Shafer, finally aware of the FBI agent who lead the raid on his house, started trying to find any public info on Hopp -- and his family. Now, searching out his family isn't great. But it does appear that he was just looking up publicly available information: At this point, the FBI decided to start protecting its own. Seeing as the guy whose home the FBI had ridiculously raided a year earlier was now tweeting some info about one of its special agents, the FBI started putting together a new criminal complaint arguing that all of the tweets above amounted to "Cyber Stalking" under 18 USC 2216A. This seems like a huge stretch, because that law requires "intent to kill, injure, harass, intimidate, or place under surveillance...." Either way, about the time all of this was happening, Ken "Popehat" White had started another Twitter thread about the Rivello arrest, leading Virgil and Keith Lee to respond about the criminal complaint, eventually leading Mike Honcho to note "Nathan Hopp is the least busy FBI agent of all time." It is to that tweet that Shafer replies with his smiley emoji and adds or cc's, Dissent Doe to the conversation: And that takes us to 10 days later, when a new criminal complaint against Shafer is issued* arguing that those tweets were criminal Cyber Stalking. And because part of that included his smiley emoji in response to the Popehat thread/Honcho tweet, the DOJ felt it necessary to issue a subpoena demanding basically all info on those 5 Twitter users (including Popehat, a former Assistant US Attorney whose info is pretty easily to find on Google). Perhaps the FBI somehow thinks that Shafer was really behind those other accounts or something -- but anyone with even the slightest level of competence should realize that's unlikely -- and that's got nothing to do with anything here anyway. * As an aside, look closely at that criminal complaint against Shafer. I have no idea why but it appears that the FBI/DOJ is so clueless that rather than submitting the final complaint, they actually submitted the copy showing the "comments" on the Word doc they were using to prepare the complaint -- which shows two comments that both suggest the FBI is well aware that this complaint is weak sauce and probably doesn't meet the standard under the law... but this story is crazy enough without spending too much time on that. Twitter is apparently fighting back against this subpoena. And even though it was issued back in May, a few days ago, the company alerted the individuals that the DOJ was demanding info on. Dissent Doe has already stated publicly a plan to move to quash the subpoena as well, and I wouldn't be surprised to see the others named take similar steps. But, really, take a step back and everything about this situation is crazy. Going after Shafer the first time was crazy. Going after him again for supposed "Cyber Stalking" over a few harmless tweets was clearly just the FBI trying to protect its own from being embarrassed online. Then, to subpoena a ton of info on 5 totally unrelated Twitter users... just because Shafer tweeted a smiley face emoticon at them? What the fuck is the DOJ up to? Doesn't Assistant US Attorney Douglas Gardner, who signed the subpoena, have better things to do with his time, like going after actual criminals, rather than harassing people for tweeting? Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
As the Supreme Court readies itself for an important Fourth Amendment decision, the supporting briefs are beginning to trickle in. At stake is a potential redefining of the expectation of privacy under the Fourth Amendment, something that was diminished by the 1979 Supreme Court decision that created the so-called Third Party Doctrine. In Carpenter's case, the third party records in question are something gathered by all cell phone companies: location data. The government used months of cell site location data to retrace Carpenter's movements, all without a warrant. This warrantless access turns cell phones into proxy tracking devices for the government. The government is perfectly fine with this turn of events and is asking the Supreme Court to uphold the lower court's decision. A brief [PDF] siding with the government has been submitted by George Washington University law prof (and Volokh Conspirator) Orin Kerr. In it, Kerr makes some strange arguments. The least weird argument is Kerr's assertion cell site location records shouldn't be covered by the Fourth Amendment because they are the equivalent of "observation in a public space." This is undoubtedly true, but it does allow the government to perform these "observations" without actually having to use its own eyeballs. Instead of tracking someone's movement through direct, in-person surveillance, the government can serve a subpoena to phone companies and use constantly-collected data to perform retrospective tracking. Kerr goes on to serve up an analogy to buttress his assertion the Fourth Amendment should provide no protection for ostensibly "public" activities. And that's where the arguments start going off the rails. [I]magine a world without communications networks. If Alice wants to communicate with Bob, Alice has to leave her home and travel to Bob’s house. If the police suspect that Alice and Bob are conspirators planning a crime, and they assign an officer to watch Alice’s whereabouts, the police can collect only some information without triggering the Fourth Amendment. The police cannot learn the contents of what Alice and Bob said inside Bob’s home without a warrant. On the other hand, the police can observe Alice and see what she did in public – when she left home, where she traveled, when she arrived at Bob’s house, and where they both live – without triggering the Fourth Amendment. Next imagine that Alice calls Bob on her cell phone instead of meeting him in person. Alice no longer has to travel to meet Bob. The cell phone network delivers the call from Alice to Bob, making a remote transfer that eliminates the need for a public trip. But, critically, the same information exists. What was previously the contents of the conversation in Bob’s house is now the contents of the phone call between Alice and Bob. And what was previously Alice’s publicly observable trip from her house to Bob’s house is now a record that the phone provider generated and may keep about when the call was made, to and from what numbers, and what cell towers were used to deliver it. What's glossed over in this analogy is the existence of landlines. This middle step is instructive and its absence from Kerr's brief seems almost disingenuous. For years, criminal collaborators used landlines and payphones to converse. This is what the Third Party Doctrine is predicated on: phone records. The Supreme Court's 1979 decision forced companies to comply with (and provide technical assistance for) pen register/trap-and-trace orders. These captured numbers dialed and length of conversations. The only location of interest was already known: the residence/phone booth containing the targeted phone. If law enforcement wanted information on suspects' movements, they still needed to deploy some form of additional surveillance. Kerr is arguing law enforcement should have access to people's public movements without having to do the actual legwork. And he starts this argument by ignoring the fact law enforcement has -- for years! -- been unable to do anything more than collect phone records sans location data. But now phone records also contain information about people's movements, and Kerr believes they should be inseparable and easily-accessible. This assertion is made despite Kerr attempting to draw a straight line from the good old days of walking from house to house directly through CSLI and email header info. To maintain the balance of the Fourth Amendment, courts should treat the same information in the same way in both the physical and network contexts. The contents of phone calls should be protected, as they are the telephone equivalent of protected inside space. This means, in the Internet context, that the contents of e-mails, text messages, and files that users place in cloud storage should receive full Fourth Amendment protection. On the other hand, non-content records generated by network providers – the business records they generate about how they delivered the communications – should not be protected because they are the network equivalent of the publicly observable trip that is outside such protection in the physical world. Going on from there, Kerr says the court -- along with legislators -- must maintain an "equilibrium" between expectations of privacy and lawful access. But in this case, the equilibrium must shift towards the government. Why? Because criminals use cell phones. The ways that cell phones can facilitate crime and avoid detection counsels against creating new Fourth Amendment protections for cell phone records. Obviously, most people don’t use their phones to commit crimes. But most people don’t have their records collected by court order under the Stored Communications Act, either. The key point is that the effect of cell phone technology on the “often competitive enterprise of ferreting out crime,” Johnson v. United States, 333 U.S. 10, 14 (1948), operates as a two-way street. The ability of cell phone companies to deliver communications quickly and silently over any distance cuts both ways. It can lead to records about the delivery that helps the police, and it can aid in the commission of crime that helps wrongdoers. Both should be considered. He's right that both should be considered. But his argument doesn't suggest both should be considered. Kerr believes the government's view should be given priority -- a view that allows for no narrowing of the Third Party Doctrine. No one should be granted a higher expectation of privacy because criminals use cell phones. That's basically the argument. And it leads directly to this argument, which isn't any better. The Third Party Doctrine should remain intact because people -- including criminals -- use encryption. It is too early to tell how far encryption will interfere with government investigative powers. But because users generally can’t encrypt non-content records such as historical cell-site records, the collection of such records may take on a more important role in future surveillance practices. The Court should be reluctant to introduce new constitutional protections for non-content records when the existing constitutional framework for access to contents may be impeded by new encryption technology. I'm honestly unsure what to make of that argument, which seems to imply the Court should only view the Fourth Amendment as an avenue for law enforcement access, rather than its true purpose: protecting citizens from their government. Kerr talks about maintaining a balance, but posits that relevant technological advancements should work for the government, rather than against it. If people can have encryption and little metal-and-glass rectangles that allow them to hold private, long distance conversations, then the government should have uninterrupted, warrantless access to anything the government deems to be a "third party records." This isn't the way to maintain balance. The Fourth Amendment isn't the government's enabler. And it never has been. It was written to curb government overreach and abuse. The government has been dealing with unobservable conversations for decades now. That it can now track people without ever leaving the office may be handy, but it doesn't necessarily follow it should always be able to do this without a warrant. The Supreme Court should take a close look at the implications of allowing the status quo to remain in place. Thousands of electronic devices generate millions of third party records every day, all less than a warrant away. Ignoring these implications in favor a simplistic rehashing of a forty-year-old decision is only going to cause further difficulties down the road. Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Last week we noted how Freshman Michigan Representative Michele Hoitenga has been pushing a broadband competition-killing bill she clearly neither wrote nor understands. The industry-backed bill, HB 5009 (pdf), would ban Michigan towns and cities from using taxpayer funds to build or operate community broadband networks, and would hamstring these communities' abilities to strike public/private partnerships. The bill is just the latest example of broadband industry protectionist laws ISPs ghost write, then shovel unobstructed through the corrupt state legislative process. ISPs want their cake and to eat it too; they don't want to upgrade or deploy broadband into low ROI areas, but they don't want others to either. And they certainly don't want outside added pressure disrupting the good thing (read: duopoly regulatory capture resulting in no competition and higher rates) they've enjoyed for fifteen years. While companies like AT&T could deter towns and cities from looking for creative alternatives by offering better, cheaper service, it's much less expensive to throw money at lawmakers who, with the help of groups like ALEC, craft and pass laws protecting the duopoly status quo. And while this process has played out in dozens of states repeatedly over the last fifteen years (more than twenty states have let ISPs write similar state laws), Hoitenga's lack of experience provided a closer look at the often-grotesque process. As we noted last week, Hoitenga doesn't appear to even remotely understand the broadband industry works, from her belief that Michigan residents had 37 different ISPs to choose from, to her argument that letting giant ISPs dictate what locals can do in their own communities somehow...helps the little guy. As the press began to politely highlight how Hoitenga should probably actually understand the industry she's legislating and the bill she's supporting, the lawmaker refused to comment -- and instead chose to flee Twitter: The Michigan lawmaker who is trying to ban municipal broadband doesn't seem to enjoy Twitter so much anymore https://t.co/M3CqqXQFps pic.twitter.com/Jr7s1odfhk — Jorb S. Pumpkins (@jbrodkin) October 21, 2017 For added protection, she blocked my account specifically from following her whatsoever: That should certainly fix the problem, right? While it's unclear which giant ISP wrote the bill Hoitenga couldn't bother to understand, AT&T has been particularly active on this front over the last decade and is the most likely culprit. And based on a quick look at campaign financing and lobbying disclosures, Hoitenga's fealty to the status quo appears to have come relatively cheap for the multi-billion dollar media, television and telecom conglomerate: Campaign finance records reviewed by IBT show that two of her largest campaign contributors are AT&T Michigan and the Telecommunications Association of Michigan (TAM): AT&T gave her campaign $1,500 while TAM provided her with $3,500 — large amounts for a first term state representative. The Michigan Cable Telecommunications Association — a separate entity from TAM — gave Hoitenga’s campaign $1,000. According to state lobbying records reviewed by IBT, Hoitenga met and dined with TAM lobbyists during the first half of the year. Michigan’s lobbying disclosures are filed every six months, so it is currently unknown if TAM lobbyists has met with Hoitenga since June. The $142.82 spent to take Hoitenga out for a meal appears to be the only food and beverage expense TAM has disclosed in conjunction with its lobbying since 2001 , as far back as online lobbying records go. Again, why bother to offer better and cheaper broadband service when you can quite literally buy protectionist state law for a few thousand dollars and some duck a l'orange? Permalink | Comments | Email This Story

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The last time we checked in with Long Trail Brewing, the Vermont brewery was busy fighting a Minnesota brewer that had dared to put a stick figure of a hiker on its beer can. It seems that rather than basing its trademark legal expeditions on any real or potential customer confusion, Long Trail views trademark law as a vehicle for monopoly and lawsuit-driven income. Long Trail is certainly not alone in this view, unfortunately, but it does have a penchant for taking this sort of thing to ridiculous lengths. Such as going after an apparel company for a simple t-shirt using an incredibly generic phrase, for instance. Long Trail has initiated a trademark lawsuit with a company called Chowdaheadz because the latter dared to make a shirt with the phrase "Take a hike" on it. As the filing explains, Long Trail has trademarked the phrase for its use and has sold apparel with the phrase on it. 8. Long Trail is, and it has been since the 1990's, engaged in the business of selling apparel and other products under the trademark Take a Hike. Since late last century, Long Trail has continuously used the trademark Take a Hike in connection with its apparel, beer and other products. 9. Long Trail has expended and continues to expend a substantial amount of resources using, advancing, and promoting its trademark Take a Hike and the products and services with which it uses the trademark. 10. Long Trail is engaged in a variety of socially and environmentally conscious efforts in the Vermont community and has used its trademark Take a Hike in support of those efforts. Apparel is indeed among the trademarks Long Trail has for the phrase. However, on so common a phrase as "Take a hike", one imagines the bar for customer confusion is quite high. That is all the more so when the target for an infringement suit, in this case Chowdaheadz, uses the phrase in a way that calls nothing about Long Trail, or any other beer for that matter, to mind. Long Trail can and does attempt to drive the point that its use of the phrase on a number of mediums has created a public association with the brewery... but that's ridiculous. Nobody traveling to the Chowdaheadz website and perusing the cornucopia of apparel it has there, and then coming across the following t-shirt, is going to somehow conclude that there is any association with Long Trail. If you can find customer confusion in that t-shirt, you've got a brain malfunction. It's also worth noting that there are roughly a zillion companies out there with "Take a hike" t-shirts, so why Chowdaheadz has been singled out for this legal action is puzzling. For its part, Chowdaheadz says it isn't backing down. In its response to Long Trail's initial threats, its legal team said: While we appreciate that your client has used “TAKE A HIKE” on clothing and miscellaneous items for many years, we must point out that the phrase itself appears in every English-language dictionary in publication, and has been in widespread public use since at least as early as 1809. It is the epitome of the type of common, generic phrase that should not be monopolized by a single owner. To illustrate this point, representative examples of clothing items for sale with the phrase “Take a Hike” on them are attached to this letter. You will note that Google retrieved listings for 642,000 such items in 0.46 seconds. You may also note that my client’s item appeared as the top search result, while, in contrast, your client did not appear at all. It's hard to see how a claim of either genericide or that the phrase was generic prior to Long Trail's registration won't be seen to have merit. In other words, Long Trail risks losing its trademark entirely by being the bully. I'm struggling to see how this was anything resembling an intelligent business decision by the brewery. Permalink | Comments | Email This Story

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It came as something of a shock to learn recently that several hugely-popular security protocols for Wi-Fi, including WPA (Wireless Protected Access) and WPA2, were vulnerable to a key re-installation attack (pdf). A useful introduction from the EFF puts things in context, while more technical details can be found on the krackattacks.com site, and in a great post by Matthew Green. As well as the obvious security implications, there's another angle to the Krack incident that Techdirt readers may find of note. It turns out that one important reason why what is a fairly simple flaw was not spotted earlier is that the main documentation was not easily accessible. As Wired explains: The WPA2 protocol was developed by the Wi-Fi Alliance and the Institute of Electrical and Electronics Engineers (IEEE), which acts as a standards body for numerous technical industries, including wireless security. But unlike, say, Transport Layer Security [TLS], the popular cryptographic protocol used in web encryption, WPA2 doesn't make its specifications widely available. IEEE wireless security standards carry a retail cost of hundreds of dollars to access, and costs to review multiple interoperable standards can quickly add up to thousands of dollars. The obvious way to avoid this issue is to ensure that key protocols are all freely available so that they can be scrutinized by the greatest number of people. But the Wired article points out that there's a different problem in that situation: Even open standards like TLS experience major, damaging bugs at times. Open standards have broad community oversight, but don't have the funding for deep, robust maintenance and vetting It's another well-known concern: just because protocols and software are open doesn't necessarily mean that people will find even obvious bugs. That's because they may not have the time to look for them, which in turn comes down to incentives and rewards. Peer esteem only goes to far, and even hackers have to eat. If they receive no direct reward for spending hours searching through code for bugs, they may not bother. So if we want to avoid major failures like the Krack vulnerability, we need to do two things. First, key protocols and software should be open and freely available. That's the easy part, since openness is now a well-accepted approach in the digital world. Secondly, we need to find a way to reward people for looking at all this stuff. As Krack shows, current incentives aren't working. But there's a new approach that some are touting as the way forward. It involves the fashionable idea of Initial Coin Offerings (ICO) of cryptocurrency tokens. A detailed article on qz.com explains how ICOs can be used to fund new software projects by encouraging people to buy tokens speculatively: The user would pay for a token upfront, providing funds for coders to develop the promised technology. If the technology works as advertised and gains popularity, it should attract more users, thus increasing demand for the token offered at the start. As the token value increases, those early users who bought tokens will benefit from appreciating token prices. It's that hope of future investment gains that would encourage people to buy ICO tokens from a risky venture. But it's not just the early users who benefit from a technology that takes off. A key idea of this kind of ICO is that the coders behind the technology would own a sizable proportion of the total token offering; as the technology becomes popular, and tokens gain in value, so does their holding. This novel approach could be applied to protocol development. The hope is that by creating "fat" protocols that can capture more of the value of the ecosystem that is built on top of them, there would be funds available to pay people to look for bugs in the system, which would be totally open. It's an intriguing idea -- one that may be worth trying given the problems with today's approaches. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Last month, we wrote about the crazy situation in Spain, where the government was so totally freaked out about a Catalonian referendum on independence that it shut down the operators of the .cat domain, arrested the company's head of IT for "sedition" and basically shut down a ton of websites about the referendum. The Washington Post now has an article with even more details about the digital attacks in both directions around the Catalonian independence referendum, including hack attacks and DDoS attacks. But one thing caught my eye. Apparently, the supporters of the referendum had created an app called "On Votar 1-Oct." The app had a bunch of the expected functions: The app, available on Google Play until just before 7 p.m. on Friday, helps people to find their polling station via their address and shows the closest polling stations on Google Maps via GPS, the name of the town or keywords. It also allows users to share links to polling station locations. But the Spanish government was so freaked out by the referendum and anything related to it, that it ran and got a court order demanding Google take the app out of Google's app store: The court order told Google Inc—at 1600 Amphitheatre Parkway Mountain View CA 94043 (USA)—to take down the app located at that URL and also to block or eliminate any future apps submitted by the user with e-mail address "[email protected]" or identifying as "Catalonia Voting Software". The judge says in her ruling that the tweet with the app link is "only a continuation of the actions of the [Catalan government] to block" Constitutional Court and High Court orders "repeatedly". In the Washington Post article, the CTO of the Catalonian government explains why this is so disappointing: “I’m a tech guy,” says Jordi Puigneró, chief technology officer of the Catalonian government. “So I’ve always been a great fan of Google and its principles of respect for digital rights. But now I’m really disappointed with the company.” (Puigneró’s office was also occupied by police during the referendum, he says.) And you can understand why he's disappointed. But, the real problem here, seems to be going back to the same problem we keep identifying over and over again: deep centralization of the digital world. Part of the very promise of Android was that it was supposed to be open, and people weren't supposed to be locked into just Google's app store. And, indeed, there are competing app stores -- but the general argument around them (with the possible exception of Amazon's competing Android app store) is that if you want to keep your device secure, you'll only download via Google's app store. And then we're back to a problem where there's a centralized choke point for censorship -- one which the Spanish government is able to exploit to make that app much more difficult to access. Google, for its part, said it took the app down because it had received a valid court order. And, that's true, but it's also opening up yet another path to widespread censorship. Google has stood up against similar situations in the past, but the decision of whether or not a movement should be stifled should never come down to whether or not a giant company like Google decides its worth taking a moral stand against a legal court order. The problem is much more systemic, and its built into this world where we've started to build back up gatekeepers. For nearly two decades, I've argued that the real power of the internet was not -- as many people initally argued -- that it got rid of "middlemen," but rather that the middlemen turned into enablers rather than gatekeepers. In the old world, when only some content could get released/published/sold/etc., you had to rely on gatekeepers to choose which tiny percentage would get blessed. The power of internet platforms was that they became enablers, allowing anyone to use those platforms and to publish/release/sell/distribute things themselves, often to a much wider audience. But there'a always a risk that over time, former enablers become gatekeepers. And it's a fear we should be very conscious about -- even if it's not done on purpose. To be clear, I don't think Google wants to be a gatekeeper around things like apps. It would prefer not to be. But because the marketplace has become so important, and because Google's role is so central, it almost has no choice. And when governments start issuing court orders to take down apps, suddenly Google is left with few good options. Either it censors or it picks fights with a government. And even if many of us would probably support and cheer on the latter as a choice, we should be concerned that this is even an issue at all. The solution has to be less reliance on centralized platforms and centralized choke points. Catalonians shouldn't have to rely on Google to get a simple voting app out to the public. The next big breakthroughs need to be towards getting past such bottlenecks. Permalink | Comments | Email This Story

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Consumer groups believe that the FCC is planning to formally unveil its unpopular plan to gut net neutrality the day before Thanksgiving, apparently in the hopes of burying media backlash in the hustle and bustle of holiday preparation. At that time, the FCC is expected to not only unveil the core text of their Orwell-inspired "Restore Internet Freedom" proposal, but schedule a formal date for the inevitable, final vote to kill the rules. While announcing bad news right before a holiday works in some instances, net neutrality has been such a hot-button topic for so long, the ploy isn't likely to soften criticism of Trump or the FCC in the slightest. These fairly modest consumer protections have broad, bipartisan support, since our collective disdain for uncompetitive giants like Comcast tends to bridge even the starkest partisan divide. Eliminating these rules is, by any measure, little more than a brazen gift to one of the least competitive and least popular industries in America, and anybody telling you otherwise is either financially conflicted or misinformed. Consumer groups like Fight for the Future seem to believe they can garner enough support in Congress to try and thwart the FCC's looming vote: Once the FCC announces a vote, it will become much, much harder to stop them from gutting the rules that prevent companies like Comcast, Verizon, and AT&T from charging us all extra fees to access sites like reddit, and controlling what we see and do online by throttling, blocking, and censoring websites, apps, games, and streaming services. The good news is that we are hearing from people who are meeting with Congress that there are key lawmakers who are sympathetic to the cause, and considering stepping in to slow down the FCC. But they need to be getting a lot more phone calls from constituents in order to act. While calling your lawmaker remains a good idea (for reasons we'll get to later), hoping that Congress will thwart the FCC's looming vote remains a long shot. A better chance at scuttling Ajit Pai's plan comes after that rule-killing vote is cast. Given the numerous procedural gaffes and dubious behavior by this FCC (making up bogus DDoS attacks, ignoring fraud and abuse of the FCC website in order to generate bogus support for the move), inevitable lawsuits may be able to convince a court that the FCC blatently ignored the public interest and violated procedural norms while trying to give telecom duopolies a giant, sloppy kiss. But fans of a healthy internet need to understand the telecom industry's plan to kill net neutrality remains a two-act play. The first act involves FCC boss Ajit Pai playing bad cop by blatantly ignoring the public and ramming through a 3-2 partisan party line vote. The second act will involve pushing ISP-loyal lawmakers on both sides of the aisle to support a new net neutrality law covertly written by AT&T, Verizon and Comcast lobbyists. Said law will be marketed as a "solution" to the fifteen year debate, but will be so filled with loopholes as to be effectively useless. It would, however, prevent the FCC from revisiting the issue down the road. Expect the FCC's rule-killing vote to come sometime in December, with the lobbying push for a new, ISP-crafted net-neutrality legislative "solution" gaining steam immediately in the new year. You know, for freedom. Permalink | Comments | Email This Story

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We talk quite a bit about the problem of so-called SLAPP lawsuits around here. SLAPP standing for "Strategic Lawsuit Against Public Participation." It's a terrible acronym, but what it really means is generally the rich and powerful filing bogus lawsuits against the less powerful for the purpose of harassing and silencing them. That is, even if the plaintiffs recognize that they will lose, it's worth it to them to file the lawsuit anyway, because the process itself can be so destructive to the defendants. This is why anti-SLAPP laws are so powerful, allowing defendants to both get rid of such lawsuits quickly and to get back legal fees, thus minimizing at least some of the damage of SLAPP suits. Now, there are some lawyers who seem to be specializing in filing SLAPP-style lawsuits. One law firm that appears to be building up such a reputation happens to be President Donald Trump's personal law firm, Kasowitz Benson Torres. We've discussed how its founding and managing partner, Marc Kasowitz, had threatened to sue the NY Times over its reporting on women claiming Trump had touched them inappropriately -- a threat he failed to follow through on within the statute of limitations in New York. However, others at Kasowitz's firm appear to be targeting the environmental movement with SLAPP suits, starting with Greenpeace. And, they've added a funky little twist to the traditional SLAPP suit -- the RICO SLAPP. Back in May of 2016, a company named Resolute Forest Products, represented by Kasowitz partner Michael Bowe, filed a massive (124 page) lawsuit against Greenpeace and a few others, claiming that Greenpeace is a fraud. Literally. Here's how the lawsuit opens: “Greenpeace” is a global fraud. For years, this international network of environmental groups collectively calling themselves “Greenpeace” has fraudulently induced people throughout the United States and the world to donate millions of dollars based on materially false and misleading claims about its purported environmental purpose and its “campaigns” against targeted companies. Maximizing donations, not saving the environment, is Greenpeace’s true objective. Consequently, its campaigns are consistently based on sensational misinformation untethered to facts or science, but crafted instead to induce strong emotions and, thereby, donations. Moreover, virtually all of Greenpeace’s fraudulently induced donations are used to perpetuate the corrupted entity itself and the salaries of its leaders and employees. It turns out that Resolute Forest Products (a Canadian logging company) is kind of upset that Greenpeace has been campaigning against the company, arguing that it's a "Forest Destroyer." The two organizations go back a ways -- and Greenpeace in the past did retract and apologize an erroneous statement about Resolute a few years back. But the lawsuit goes on at great length to claim that Greenpeace's actions are a form of racketeering that has cost Resolute $100 million in reputational value -- opening up Greenpeace to the potential of a $300 million penalty. And, yes, here's where I'll point you to Ken "Popehat" White's IT'S NOT RICO, DAMMIT post, where he explains how almost no case is really a RICO (racketeering) case. And it applies to this one as well. While the case was originally filed in Georgia (which has a decent anti-SLAPP law, but one facing some challenges recently), it was later transferred to California, which has a very strong and well-established anti-SLAPP law. And, thus, last week the case was thrown out on anti-SLAPP grounds. Whether or not you like Greenpeace or its methods is besides the point here. The issue is whether or not a company that is being targeted for protests can file a massive RICO lawsuit against an organization for its protests. And here, the judge said that's not how it works. The judge notes that the basic claims -- on which most of the rest of the claims rely -- of defamation don't pass the sniff test, as there's no actual malice shown (which is required for defamation of a public figure, which the court says Resolute is). It also points out that nowhere did Resolute show that any of the named defendants made "knowingly false statements." That... makes a defamation claim difficult. The court also isn't impressed with Resolute trying to turn clear statements of opinion into pretend "facts." In its quest to describe Greenpeace‟s statements as matters of fact instead of opinion, Resolute often takes an overly literal approach to obviously overemphatic speech. For instance, Resolute refers to a Greenpeace campaign that describes Resolute as a Canadian Boreal “Forest Destroyer.” ... Resolute‟s claim depends on construing the word “destroy” to mean “annihilate” or “eliminate completely.” In this vein, Resolute‟s expert witness Peter Reich states, “Resolute has not destroyed, and is not destroying, the boreal forest. Because almost all harvested stands grow back to boreal forest, Defendants‟ claims about Resolute‟s forest "destruction‟ cannot be true.”... As any reader of Greenpeace's statements will know, these are not the only permissible constructions. The word “destroy” is a perennial instrument of hyperbole. See, e.g., Edward Barsamian, “Gigi Hadid Takes on the New Look of Destroyed Denim,” Vogue (Feb. 3, 2015) (on-line ed.) (https://www.vogue.com/article/gigi-hadid-style-destroyed-denim). The Vogue writer here does not intend to convey that Ms. Barsamian's jeans have been completely annihilated, but merely that they are “worn with deliberate tears at the knee” or “riddled with curious new holes.” Similarly, when the entertainment writer Shaunee Flowers states that “Kanye West destroys Wiz Khalifa on Twitter and it's epic,” she is not suggesting that Mr. West has actually eliminated Mr. Khalifa, but only that he has made disparaging comments about him on social media.... Yes. A judge in a RICO lawsuit about environmental protests is discussing Kanye West twitter battles. We live in such amazing times. Resolute's attempts to include expert commentary on why Greenpeace is wrong, just leads the court to note that these are the kinds of things that people can disagree on, which makes it even more ripe for First Amendment protections: The submission by Resolute of two expert declarations makes more manifest, not less, the degree to which the challenged statements are protected by the First Amendment. These declarations illustrate the extent to which the challenged statements (a) concern matters of public importance and (b) are subject to professional debate. For example, declarant Frederick Cubbage undertakes a review of the FSC‟s suspensions of RFP‟s certifications and concludes: “Resolute‟s 2013 FSC audits indicate possible bias. Audits of similar forests in similar situations should have similar outcomes. That did not appear to be the case for Resolute. An applicant in full compliance with relevant laws should be certified under any standard.” ... Greenpeace‟s expert, Keith Moore, disagrees with this analysis, noting that because “[t]he FSC certification system establishes a higher standard and a broader suite of requirements,” it is possible to comply with the relevant law and still be denied FSC certification. ... Accordingly, he concludes, “[i]t is also incorrect to state that a company that meets regulatory requirements is equivalent to a company meeting all FSC certification requirements.” .. After all, as Dr. Cubbage notes, “forest certification, generally, refers to a non-state market-based policy approach to achieving sustainable forest practices and development,” ... so by definition it will encompass more than “relevant laws.” The academy, and not the courthouse, is the appropriate place to resolve scientific disagreements of this kind. As the Seventh Circuit has said, “scientific controversies must be settled by the methods of science rather than by the methods of litigation.” Underwager v. Salter, 22 F.3d 730, 736 (7th Cir. 1994). For that reason, “[c]ourts have a justifiable reticence about venturing into the thicket of scientific debate, especially in the defamation context.” The court is also not at all impressed by the RICO claims. Remember the Popehat admonition about just how difficult it is to ever properly prove RICO in court? Resolute fails. Miserably. Resolute fails to meet these heightened pleading requirements. While Resolute‟s complaint lists reports authored by Greenpeace, and includes dates of publication in many cases, in many cases it does not identify the author of the reports, and it never identifies the “misconduct” or “specific content” that constitutes fraud in the reports.13 Much of Resolute‟s pleading is even less specific. For example, Resolute claims that the Defendant “processed millions of dollars in fraudulently induced donations,” without describing a single donor, donation date or amount, nor how the donation was fraudulently induced... As such, the defendants are not on “notice of the particular misconduct which is alleged to constitute the fraud.” ... These general allegations fall far short of Rule 9(b)‟s requirements, and Resolute‟s RICO claims are therefore dismissed. There's also the claim of extortion as a part of the RICO claim. Again... nope: Resolute fails to allege predicate acts of extortion under the Hobbs Act. There is no Hobbs Act claim because the Defendants have not obtained “property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2). To show extortion, Resolute must allege that that Greenpeace demanded property from Resolute itself. Sekhar v. United States, 133 S.Ct. 2720, 2725 (2013); Scheidler v. Nat‟l Org. for Women, Inc., 537 U.S. 393, 404 (2003). In Scheidler, the Court held that the National Organization for Women (“NOW”) had not alleged extortion against activists who sought to shut down abortion clinics because although those activists sought to harm the clinics and NOW, they did not seek to obtain any property from such harm. 537 U.S. at 405 (“Petitioners may have deprived or sought to deprive respondents of their alleged property right of exclusive control of their business assets, but they did not acquire any such property. Petitioners neither pursued nor received something of value from respondents that they could exercise, transfer, or sell.”). Likewise here, even if Greenpeace sought to harm Resolute through Resolute‟s customers, it did not seek to obtain the business assets it sought to deprive Resolute of. Any alleged property transfer induced by fraud, coercion, or threats, moved between Greenpeace and its donors, or between Resolute and its customers. There was no alleged property transfer between Greenpeace and Resolute. From there, the court moves on to the anti-SLAPP motion to strike. The analysis is short and straightforward. Greenpeace was clearly engaged in protected speech on a matter of public interest, and Resolute failed to show a probability of success as a matter of law. Thus, Greenpeace wins the anti-SLAPP motion as well (on state law claims). And, thus, Resolute will now have to pay Greenpeace's legal fees. Of course, the court did allow Resolute the ability to file an amended complaint, and if that fails (as seems likely) Resolute may still appeal. However, I'd be quite surprised if the 9th Circuit ruled differently. This appears to be a fairly straightforward SLAPP case, just with a RICO twist. Of course, just a couple months earlier, while this case was still pending, a company called Energy Transfer Partners -- which might be more well known as an organization behind the controversial Dakota Access Pipeline -- filed a strikingly similar lawsuit against Greenpeace (and others, including Earth First). This one begins: This case involves a network of putative not-for-profits and rogue eco-terrorist groups who employ patterns of criminal activity and campaigns of misinformation to target legitimate companies and industries with fabricated environmental claims and other purported misconduct, inflicting billions of dollars in damage. The network’s pattern of criminal and other misconduct includes (i) defrauding charitable donors and cheating federal and state tax authorities with claims that they are legitimate tax-free charitable organizations; (ii) cyberattacks; (ii) intentional and malicious interference with their targeted victim’s business relationships; and (iv) physical violence, threats of violence and the purposeful destruction of private and federal property. Energy Transfer is the latest legitimate business targeted by this network. Incredibly, even though Greenpeace is the first named defendant, the lawsuit mostly focuses on other groups, like Earth First using what the filing calls "the Greenpeace Model" and only mentions in passing that Greenpeace was supportive of the Dakota Pipeline protests and organized some donation drives. As you read through the lawsuit, it really reads like those who wrote it believe that getting attention for your protests is somehow illegal. One of the ways the corrupt organizations conceal their true operations is to create the illusion that their “campaigns” and high-profile “events” are grassroots actions by volunteers and local “victims” who are spontaneously rallying together for the promoted cause. In fact, these events are organized, funded, and produced by these corrupt ENGOs to create sensational media attention and drive traffic and donors to their websites. Wolfpacks of corrupt ENGOs regularly collaborate on these manufactured attacks, including “old-line” ENGOs like Greenpeace and radical and fringe eco-terrorists who engage in disguised direct actions involving violence, property, and business destruction, and fabricated claims and “evidence” of misconduct by those targeted by the campaigns. These radical fringe groups create public spectacles and generate fodder for putatively legitimate environmental organizations to trumpet via-press releases and use as the basis to disseminate a parade of falsehoods deployed as part of a plea to the general public to “get involved” by donating or taking their own, more benign, direct action such as placing calls, or writing letters. Thus, at the heart of this fraudulent scheme are fundamental lies as to what these ENGOs do, their substantial funding, well-organized structures, powerful influences, and purposefully coordinated activities designed to create the appearance of an independent “grassroots” uprising by the people. These lies are perpetuated on donors, tax authorities, targets and their critical market constituencies, and the public at large. Again, even if you disagree with Greenpeace's (and others') positions and/or tactics, it's pretty crazy to argue that they're illegal in any way, let alone a form of racketeering. Much of the rest of the filing reads like an advertisement for the Dakota Access Pipeline and how wonderful and safe and amazing it will be. It seems almost written more for public consumption than to make any kind of legal argument. There's also a section on cyberattacks, in which Energy Transfer Partners argues that silly Anonymous videos, which include doxing (and, yes, the lawsuit complains of "doxing") are all a part of the grand RICO conspiracy. You'd think that someone would inform these lawyers that anyone can just declare themselves a part of Anonymous and do what they want. It's like the opposite of an actual conspiracy. And while it does appear these may have lead to DDoS attacks on Energy Transfer, we've discussed before how DDoS can be seen as a form of protest -- i.e., a form of protected expression. And, here, there's no way to tie such actions back to organizations like Greenpeace anyway. In this case, Energy Transfer is arguing that its damages are $300 million -- meaning a potential $900 million award should it prevail -- a sum that likely would put Greenpeace completely out of business. Importantly, the lawsuit was filed in North Dakota, which has no anti-SLAPP law and no caselaw around anti-SLAPP issues. So, this should be yet another reminder for why all states need stronger anti-SLAPP laws and we need a federal anti-SLAPP law, as soon as possible. Oh, and in case you're wondering, yes, the lawyers on this filing are also from Trump's favorite law firm. It's the same Michael Bowe from Kasowitz. Permalink | Comments | Email This Story

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Whether you fly a lot, work in a noisy office, or just enjoy precious silence, these Paww WaveSound 3 Headphones will give you a listening experience free from distractions. Combining a state-of-the-art CSR chipset with multiple microphones, the WaveSound 3s block out as much as 20dB of unwanted ambient noise, independent of ANC function, making them an especially great option for air travel. They also features, two 40mm Neodymium drivers to create a balanced sound, and a built-in microphone that lets you make or receive calls when connected to your phone. The headphones fold up easily into the included case for increased durability. They are on sale for $80. 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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We've been a bit perplexed about how much momentum SESTA has. As explained, it's a bill that is called the "Stop Enabling Sex Traffickers Act" but it has many serious problems that could impact just about any online service, even if they have no idea that they're being used to support sex trafficking. Also, there's some aspect of moral panic to all of this, as the actual statistics suggest that the size of the sex trafficking problem is not nearly as big as many politicians and organizations claim. That's not to say it's not a problem -- because clearly it is a problem, and an important one. But it does suggest that broad-brush solutions with massive consequences to the entire internet should be reviewed a bit more carefully. Indeed, as we've suggested, the way SESTA is currently structured, there appears to be a high likelihood that it would make the sex trafficking problem worse, by making it prohibitively risky for internet platforms to seek out and report to the authorities evidence of trafficking on their platforms. This is why a whole bunch of experts and organizations focused on stopping sex trafficking have all spoken out against SESTA, saying it's the wrong solution. Freedom Network USA, which works to reduce trafficking around the US made this point clearly: It is important to note that responsible website administration can make trafficking more visible—which can lead to increased identification. There are many cases of victims being identified online—and little doubt that without this platform, they would have not been identified. Internet sites provide a digital footprint that law enforcement can use to investigate trafficking into the sex trade, and to locate trafficking victims. When websites are shut down, the sex trade is pushed underground and sex trafficking victims are forced into even more dangerous circumstances. Similarly, the Sex Workers Outreach Project (SWOP) has spoke out against SESTA, calling it a "disguised internet censorship" bill. The Stop Enabling Sex Trafficking Act or SESTA, S. 1963, however cleverly titled, is not at all what it claims to be. It boasts of being the answer to uncovering and punishing those engaged in sex trafficking online but what it actually is about is internet censorship. It is an attempt to remove the protection websites are currently offered under Section 230 of The Communications Decency Act. Section 230 is in place to uphold freedom of expression on the internet and protects websites from being liable for what a third party might post outside of their knowledge. If this bill passes, any person or business online could be subject to civil or state penalties if the authorities “believe” there is any trafficking or condoning of trafficking on your site. How is that determined? What activities will they consider illegal online? What about consenting adults engaging in sexual online courtship? What about our favorite fetish and cruising sites? What about individuals who enjoy posting nude or nude implied photos of themselves online? Would we then have to be worried about our naked photos being considered illegal solicitation? But what about the groups supporting the bill? Well, we already looked at one group, that saw SESTA as a stepping stone to banning all porn. But I also wanted to look a little more closely at the National Center for Missing and Exploited Children -- NCMEC. NCMEC has a very good reputation, and the organization has done a lot of really amazing work. While it's a private non-profit, it was created by Congress and gets a ton of government funding. NCMEC has, at times, succumbed to moral panics and exaggerated threats around "stranger danger" and such -- but for the most part, it's a pretty respectable organization. I was a bit surprised, then, to see its General Counsel, Yiota Souras, as one of the people testifying before Congress about SESTA recently, insisting that the bill is narrowly tailored (it's not) and that it was unlikely to negatively impact most companies online (it would). But, then another story caught my eye. Recently, the powerhouse DC lobbying firm, American Continental Group, announced that it had signed up a bunch of new clients, including News Corporation, the owner of 20th Century Fox. American Continental Group has signed another five clients: Cognizant Technology Solutions, Diebold Nixdorf, News Corporation, the Onex Corporation and Textron. The firm has signed more than 30 new clients this year, helped by the reputation of David Urban, a lobbyist there who’s seen as close to Trump’s administration after serving as a senior adviser on Trump’s campaign and helping him win Pennsylvania. (Urban’s name was mentioned as a potential replacement for Reince Priebus as White House chief of staff earlier this year.) Manus Cooney, Chris Israel and Urban will lobby for News Corporation on intellectual property issues, according to the filing. The name Manus Cooney stood out to me, because it turns out... he's Chairman of the Board of NCMEC: And, first of all, good for him. It's good to see that he's on the board of non-profits and helping make the world a better place. But, it at least makes me wonder if there isn't something of a conflict here -- and perhaps one that explains NCMEC's over-enthusiastic support of such a bad bill. Yes, Cooney just took on News Corp as a client, but the firm also basically lists every other big Hollywood/legacy copyright player as a client. Viacom, Time Warner, the Authors Guild, Comcast (owners of NBC Universal), the Copyright Alliance, the Music First Coalition (an RIAA front group), Random House, Reed Elsevier, SoundExchange (an RIAA spinoff), Songwriters Guild of America, and others. And it's no secret that many of those organizations are supporters of SESTA, some more vocally than others. News Corp's 21st Century Fox has directly come out in support, for example. Hollywood really wants SESTA to pass for a variety of reasons, nearly all of them focused on its weird visceral hatred of one company: Google. You'll recall, of course, how the Sony Pictures hack a few years back revealed the existence of Project Goliath -- in which the various Hollywood studios colluded to try to support doing anything to harm Google. The key part of the Project Goliath strategy was to convinced state Attorneys' General to target Google for basically anything bad found on the internet. Its first "success" story was getting Mississippi Attorney General Jim Hood to subpoena Google and claim it was responsible for all the bad stuff people found on Google -- including counterfeit pharmaceuticals, sex trafficking and, of course, copyright infringement. It was, of course, later revealed that the letter that Hood sent to Google had actually been authored by the MPAA's outside lawyers. Google pushed back against all of this, and a judge told Hood that nearly all of his attack was barred by CDA 230 (it also noted that the subpoena appeared to have been done in "bad faith.") Now, let's pull all of this together: a big part of Hollywood's plan to handicap Google was to allow state Attorneys General to attack Google for bad stuff that people could find via Google. That flopped, in large part because of CDA 230, which protects sites from the actions of third parties. Now, along comes SESTA, whose entire point is to punch a giant hole in CDA 230, such that if a site is used to "facilitate" trafficking, the site suddenly loses its immunity. Another key point in SESTA: saying that claims brought by states Attorneys General are no longer immune from action under CDA 230. Hmmmmmm... And, then, suddenly we have NCMEC step up to make clearly misleading to downright false statements in support of SESTA at the very same time that NCMEC's chairman of the board is pushing to get a lobbying deal with News Corp. -- one of the leaders of the anti-Google effort, and it raises at least some questions about whether NCMEC's support of SESTA is really about saving children... or helping Hollywood attack the internet. Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
Amid an uptick in stories about courts issuing restraining orders that amount to prior restraint on speech, it's worth remembering that prior restraint is generally viewed as plainly unconstitutional except if it is applied narrowly and for dire reasons such as national security concerns. Despite that, prior restraint has come up quite a bit as of late, in cases ranging from trademark disputes between comic conventions to mattress review sites to anti-abortion activism. These expansions of prior restraint should concern anyone interested in free speech, of course, but it takes a special kind of judge to not only issue a prior restraint order against a news organization, but to admit it and say he doesn't care. Michigan's WXYZ Channel 7 news team were contacted by Mila Kapusta and several other families asking that attention be paid to issues in the probate guardianship system. These families were frustrated with outcomes and procedures in the probate court as family's battle over custody of loved ones amid family disputes. Kapusta, for instance, had sought guardianship over her parents, which is currently held by Kapusta's sisters, Sandy and Lorrie. As part of its reporting on the story, WXYZ was going to include photos of the parents, Janet and Milan Kapp, provided by Mila Kapusta. That is, until a judge stepped in and issued a restraining order preventing the footage from airing. Just hours before the story was supposed to air last Thursday, Lorrie and Sandy Kapp got a judge to issue a Temporary Restraining Order, preventing us from showing you old family pictures that had been provided to us by their other sister, Mila. Tuesday during a show cause hearing, Judge Daniel A. O'Brien continued that restraining order, saying his job was to protect Mr. and Mrs. Kapp, who are now in their 90s. Perhaps you are thinking that Judge O'Brien didn't realize how grossly he had overstepped his legal authority. Perhaps, you may be thinking, even judges have bad days, make mistakes, perhaps with the best of intentions in mind. Perhaps, however, you should have a look at Judge O'Brien's comments on the matter. "I am granting the injunction against Channel 7 and they are restrained. It is in fact a prior restraint I gotta admit, but they are not to use any photos or video of Milan and Janet Kapp in any broadcast," said Judge O’Brien. Whatever the narrow scope for prior restraint you might think is acceptable, this situation simply doesn't fit the bill. Preventing a news organization, of all entities, from airing pictures of two key subjects in a story that absolutely is of the public interest, all in the name of protecting two elderly people, is without any legal justification that I can think of. For its part, WXYZ isn't simply going to take this laying down. WXYZ's attorney Jim Stewart argued that Judge O'Brien's initial restraining order was unconstitutional. “A court cannot order someone not to publish something. It’s called a prior restraint of speech and it’s been held to be presumptively unconstitutional,” said Stewart. “You can’t have the government telling somebody what they can and can’t say when they’re covering a newsworthy event,” said Stewart. Because WXYZ cannot allow Judge O’Brien’s order to set a precedent for other government officials limiting our news coverage – as protected by the First Amendment – we are appealing his order. For the sake of our most basic freedoms, here's to that appeal (embedded below) succeeding with speed. Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
A ruling has been handed down by a federal judge finding the government's demands for fingerprints from multiple residents of a house does not implicate the Fifth Amendment. [h/t Brad Heath] The underlying case -- still under seal -- bears some resemblance to one we discussed here about a year ago. Law enforcement sought a search warrant for a residence, which would allegedly house devices containing child pornography. The devices were suspected to be Apple products, which can be opened with fingerprints. The warrant asked for permission to compel the residents to supply their fingerprints -- both to unlock the devices and to ascribe possession to the person whose fingerprint unlocked them. Surprisingly, the magistrate judge rejected the government's request. The government appealed the magistrate's rejection, kicking it up a level in the federal court system. The court notes in its ruling [PDF] its reviews of magistrates' decisions isn't normally adversarial, but this case raises some questions in need of additional viewpoints. Ordinarily, review of the magistrate judge’s decision on a warrant application would be ex parte. But because the magistrate judge’s thoughtful opinion addressed a novel question on the scope of the Fifth Amendment’s privilege against self-incrimination, the Court invited the Federal Defender Program in this District to file an amicus brief to defend the decision (the government did not object to the amicus participation). The Court is grateful for the Federal Defender Program’s excellent service in fulfilling this request. The decision here comes down on the side of the government, decisively so. But that may be due to the specifics of the fingerprint application. Rather than directly asking the residents of the searched home to use Apple's TouchID to unlock the devices (which would require a specific finger known only to each resident), law enforcement officers will choose which finger each suspect must apply to the device. Specifically, the constitutional text on which the right is premised only prevents the government from compelling a person from being a “witness” against himself. U.S. Const., amend. V. The Fifth Amendment provides, in pertinent part: “No person … shall be compelled in any criminal case to be a witness against himself.” Witnesses provide testimony, so that specifically is the forbidden compulsion: the government cannot force someone to provide a communication that is “testimonial” in character… The same holds true for the fingerprint seizure sought by the government here. As noted earlier, and worth emphasizing again, the government agents will pick the fingers to be pressed on the Touch ID sensor, Affidavit ¶ 39 n.9, ¶ 41, so there is no need to engage the thought process of any of the residents at all in effectuating the seizure. The application of the fingerprint to the sensor is simply the seizure of a physical characteristic, and the fingerprint by itself does not communicate anything. The court likely would have reached the same conclusion even if the government had demanded residents choose fingers themselves. (The court does not state -- nor is it reflected anywhere in the court's discussion -- that law enforcement is limited to one finger from each resident. To keep this from becoming a mockery of the court's intent, you would think this would be the case. Nothing on the record indicates, however, that the government gets one finger per person.) What's depicted here clearly falls in line with previous decisions related to the Fifth Amendment implications of providing fingerprints to unlock devices. Physical properties like fingerprints haven't been considered testimonial because they're apparent, visible, and clearly linked to the individual under suspicion. Handing over a fingerprint requires no "testimonial" effort, courts have decided, even if the non-testimonial action produces a wealth of incriminating evidence. The compelled production of passwords and PINs is still an open issue. How open is a matter of (judicial) opinion. So far, refusing the government's offer to provide the keys to possibly incriminating evidence has only conclusively proven to be a good way to spend an indefinite amount of time in jail. But it at least provides the slimmest hope a judge will find demands for passwords a violation of the Fifth Amendment. The case for fingerprints being testimonial hasn't found much sympathy in the courts, despite the application of fingerprints ultimately being every bit as revealing as typing in a password. Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
Sorry for the late post, everyone! A glitch crept into our admin system and I was unable to access the leaderboards for most of the day. But now, without further delay, our top comments of the week... First place on the insightful side is a simple, no-nonsense response from Mononymous Tim to a fired cop's complaints about public release of his body camera footage turning people against him: It's called accountability. Deal with it!! In second place, we've got a proposal from That One Guy for a way to fix the civil asset forfeiture system: How to fix the problem in five minutes: 'Any seized property and/or money without proper, verifiable documentation tracking who it was taken from, when it was seized, and the legal justification for the seizure shall be considered to have been acquired illegally. The property/funds shall be immediately transferred to a neutral third party, which shall hold on to it for a period of six months, during which members of the public may present evidence to demonstrate that they were the previous owners of a given pieces of property. Any property left unclaimed after this period has expired shall be liquidated, and the resulting funds shall be transferred in their entirety to the public defender's office, to be used to pay the legal fees of those that would otherwise be unable to do so.' Wouldn't be perfect(those that couldn't provide proper documentation would still be screwed, but I'm really not sure how to get around that offhand), but it would remove the NYPD's main motivation for stealing anything they can get their hands on, and provide a good motivation not to do so at the same time. For editor's choice on the insightful side, we start out with a response from takitus to the sneaky choice by copyright trolls to start calling settlement offers "fines": I’d imagine most people think of a “fine” as something they’re required (by a government or other authority) to pay as a form of punishment, whereas a settlement suggests a negotiated, voluntary agreement between parties. By replacing the latter term with the former, these letters suggest that the recipient has already been tried and found guilty. I’m sure this choice of language was completely accidental... Next, we've got a story from ShadowNinja suggesting that the main reason ISPs don't want to have to provide more accurate broadband maps is that they are just really bad at it: Story time, I think part of why the ISP's don't like this is because they're so incompetent that their own internal maps are wrong. Years ago the business I worked at wanted to upgrade to get Verizon FIOS. But we were told repeatedly that it wasn't available in our area. This was despite the fact that: Our next door neighbor, a dental office, already had FIOS. We could clearly see the FIOS boxes outside of our window on the cable lines. After some arguing with them over the phone we finally got them to send a technician out, to verify that their maps were wrong and we could get FIOS. But the best part? A few years later we got a knock on our door from a Verizon salesman, asking us if we wanted to upgrade to the FIOS we already had! So yes, despite them having several years to fix their maps, and being told by us that FIOS was available in the area, and despite the fact that we were paying for it, Verizon was incompetent enough to send a salesman to our door offering to sell it to us. Over on the funny side, both our winners came in response to the Canadian couple that is suing their neighbour for building a similarly designed house to their own. The first place winner is an anonymous commenter who was quickest to the comments with a healthy dose of eye-rolling sarcasm: They copied other things too Both homes have walls, roofs and floors clearly copying the first. They also have lawns, use outside air and have water and electrical incorporated right into the home itself. Madness. Next thing you know, they will be installing a driveway, walkway and wait... They already copied those too. Those bastards are going to pay now. Some people really need to just be barred from every using the court to demonstrate their insanity. Maybe they should be wearing a helmet and bite guard to prevent the online assaults that they deserve for bringing a lawsuit like this in the first place. And the second place winner was a different anonymous commenter with an entirely different kind of joke: It's an infringing day in the neighbourhood, an infringing day in the neighbourhood, and won't you be my plaintiff... For editor's choice on the funny side, we've got two more responses to the effort by ISPs to silence calls for more accurate broadband maps. Orbitalinsertion proposed a shortcut solution: Maybe the FCC should just ask the NSA. Those ISPs have already handed over everything to them. But I think this anonymous commenter had the most efficient suggestion: A truly accurate map would just be the United States, shaded in all one color, with the key reading "Not Good Enough." That's all for this week, folks! Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
Five Years Ago This week in 2012, we saw more copyright nonsense as South Park was sued over a character design and textbook publisher Pearson managed to take down 15-million student and teacher blogs with a single DMCA notice — but of course, being punished for a bad DMCA notice was and is almost impossible. As we approached the 30-year anniversary of the CD, we lamented the lack of music industry innovation, while the numbers continued to show that file sharers are also big media buyers. And Harvey Weinstein made an appearance on Techdirt — over an unhinged rant about piracy. Ten Years Ago This week in 2007 things weren't much different, though perhaps even sillier, with one law firm trying to use copyright to claim you can't look at its website's source code, a bunch of media companies claiming it's infringement to skip commercials, Congress pushing for anti-P2P laws with claims that P2P promotes identity theft, and the RIAA launching its lawsuit against Usenet.com. Amidst all this, YouTube made a major announcement and ContentID was born. Fifteen Years Ago And guess what? More of the same this week in 2002 — but it was a week when more people were noticing the problems. Some were (rightly) worrying about the future of expanding DRM, and talking about copyright law as the new prohibition and a tool that lets corporations destroy America's cultural heritage, and asking if we really want to put the dinosaurs in charge of evolution. Copyright defenders were hitting back weakly, with arguments amounting to "trust me" and "shut up, Gary Shapiro, we don't like you". Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
The NYPD is actively opposed to transparency. It does all it can to thwart outsiders from accessing any info about the department's inner workings. This has led to numerous lawsuits from public records requesters. It has also led to a long-running lawsuit featuring the Bronx Defenders, which has been trying to gain access to civil forfeiture documents for years. The NYPD has repeatedly claimed it simply cannot provide the records the Bronx Defenders (as well as other records requesters) have requested. Not because it doesn't want to, even though it surely doesn't. But because it can't. The department has spent $25 million on a forfeiture tracking system that can't even do the one thing it's supposed to do: track forfeitures. The Property and Evidence Tracking System (PETS) is apparently so complex and so badly constructed, the NYPD can't compile the records being sought. Oddly enough, the Bronx Defenders has pieced together enough data from the NYPD's broken PETS (along with other public records) to at least point out the glaring discrepancy between what the department publicly claims it has in its forfeiture accounts and what the database says it does. At the hearing, the NYPD claimed that it only legally forfeited $11,653 in currency last year — that is, gone to court and actually made a case as to why the NYPD should be taking this money. [...] In the accounting summaries which the Bronx Defenders submitted as part of its testimony, the NYPD reports that as of December 2013, its property clerk had almost $69 million in seized cash on hand. This amount had been carried over from previous years, showing an annual accumulation of seized cash that has reached an enormous amount. The documents also show that each month, the five property clerk’s offices across the city took in tens of thousands of dollars in cash, ultimately generating over $6 million in revenue for the department. When pressed in court, NYPD experts claim the NYPD lacks the expertise to extract the sought data from its forfeiture database. These assertions are at odds with the NYPD's self-perception: that it is fastest and smartest law enforcement agency in the US (better than the FBI, in fact) and foreign governments should be grateful its officers and analysts are showing up uninvited at scenes of overseas terrorist attacks. Somehow, these highly-trained officers are unable to extract data from a $25 million database. Maybe it's not the lack of talent. Maybe it's the lack of desire. Maybe the NYPD has zero interest in tracking this data because it doesn't want the public to see how much it has hoovered up or make it any easier for citizens to challenge forfeitures. The lawsuit continues, with the NYPD continuing to top itself with each round of expert testimony. As Adam Klasfield reports for Courthouse News, the NYPD's $25 million database is worth even less than previously assumed. New York City is one power surge away from losing all of the data police have on millions of dollars in unclaimed forfeitures, a city attorney admitted to a flabbergasted judge on Tuesday. “That’s insane,” Manhattan Supreme Court Judge Arlene Bluth said repeatedly from the bench. It is insane. There's no way around it. The assumption would be that a $25 million database has built-in redundancy. But of course it wouldn't. Not with the NYPD running it and not with its active disinterest in providing records to records requesters or having any accountability present in its forfeiture system. And why should the NYPD fix it? From its perspective, this is fine. Data goes in and never comes out. If it all disappears because someone trips over the power cord, the NYPD suffers no negative consequences. Everything it has taken over the years defaults to the NYPD until proven otherwise by claimants. And that's going to be a lot tougher to do when the NYPD has no records related to the forfeiture. The court is in no position to do anything about this. It can't order the NYPD to fix its system. All it can do is demand it comply with records requests and pay the legal fees of prevailing parties. But the NYPD can continue to run a useless system for the rest of whatever. The burden of proof in forfeiture cases is already shifted to claimants. A broken system places even more of a burden on those seeking return of their property, thanks to PETS being unable to confirm or deny existence of responsive records. It's GlomarDb and it makes a mockery of public records laws and due process simultaneously. Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
If you've followed our series of posts about Denuvo, the DRM once claimed to be the end of video game piracy, you may have thought we had reached the end of its saga a couple of weeks ago when Denuvo-"protected" title Total War: Warhammer 2 was cracked and defeated within a day of its release. After all, once a game has been cracked in a time increment that can be measured in hours, you likely thought that was the finish line of Denuvo's lifespan. You were wrong. In the past week or so, multiple games that used Denuvo have been cracked on the same day as their release, with most of them being AAA titles from big publishers. This week's release of South Park: The Fractured but Whole is the latest to see its protections broken less than 24 hours after its release, but it's not alone. Middle Earth: Shadow of War was broken within a day last week, and last month saw cracks for Total War: Warhammer 2 and FIFA 18the very same day as their public release. Those nearly instant Denuvo cracks follow summer releases like Sonic Mania, Tekken 7, and Prey, all of which saw DRM protection cracked within four to nine days of release. But even that small difference in the "uncracked" protection window can be important for game publishers, who usually see a large proportion of their legitimate sales in those first few days of availability. With that window shrunk down to roughly zero days of protection for what is now multiple games coming out in a similar time period, it sure seems like the cracking groups have been able to replicate their successes in cracking this DRM with enough speed to make it wholly irrelevant. One imagines the folks behind Denuvo are at this point quite worried. And they should be, because even games that used Denuvo in their early-release versions are beginning to just drop it from their games as useless. Then there's The Evil Within 2, which reportedly used Denuvo in prerelease review copies but then launched without that protection last week, effectively ceding the game to immediate potential piracy. Now, the Ars post goes on to state that there have been rumors of a 5th release of Denuvo, with an update that the company hopes will once again render the DRM software something other than completely obsolete. But with publishers now dropping the software from their releases, even when they had fully planned on using Denuvo from the pre-release stage, you have to wonder just how much confidence any game publisher is going to have in release number 5. Given the precipitous fall Denuvo has had over its first four releases, any confidence on display by the publishers or Denuvo itself would certainly raise my eyebrows. Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
A few weeks ago, we wrote about a hellishly sketchy plan by a drug company, Allergan, to avoid the process as known as "Inter Partes Review" of its weak patents. In the weeks since that post a bunch has happened, but before we catch you up, a refresher is important. One of the biggest problems of the patent system for years has been the US Patent Office's willingness to grant terrible patents. This is only partially the Patent Office's own fault -- as some of it is just the nature of how our patent system is designed. As it is, patent examiners have limited time to review patents, and all of the incentives are to approve them, rather than reject them (a rejection can be endlessly appealed, granting gets it off the examiner's plate and improves the "productivity" of the office). On top of that, there's no adversarial process -- an examiner only gets info on why the patent should be granted, and not reasons it shouldn't. In an age where unscrupulous patent attorneys push to patent absolutely everything and many view patents as a lottery ticket, you have a situation where an overwhelmed Patent Office is approving a ton of bad patents, and letting the courts deal with it down the road. That, of course, has been a disaster for actual innovators who don't have time and money to waste in court fighting bogus patent lawsuits. In the last round of patent reform, the America Invents Act, in 2010, a small, but smart, change was added to the system: the IPR setup. The idea was that it was a way to get a tribunal at the patent office to take another look -- by creating the adversarial process that is lacking from the original patent review process. This enables third parties to raise issues about the patent to the tribunal -- called the Patent Trial and Appeal Board (PTAB) -- and lets the PTAB review whether the patent should have been granted in the first place. Many patent system supporters hate the whole IPR thing, because they don't like the fact that their bad patents can be more easily invalidated. It certainly cuts off one part of the patent troll shakedown game. The Supreme Court is currently considering a case right now to throw out the PTAB as unconstitutional, while Congress has been kicking around ideas to kill it as well. In the meantime, though, some lawyers have come up with a truly sneaky, and truly awful "work around" that they've basically now productized. After a decision by the PTAB earlier this year to refuse to even hear an IPR request involving a patent held by the University of Florida after the University (a part of the state of Florida) argued "sovereign immunity", lawyers realized that anyone could get out of the IPR process if they just "sold" their patent to a government entity who could claim sovereign immunity. From there is was only a few logical leaps to realize that Native American nations could claim such sovereign immunity. Hence, the deal to "sell" Allergan's patents to the St. Regis Mohawk Tribe. Basically everyone recognizes this is a sham sale. The St. Regis Mohawk Tribe has no interest in this patent. Or the other patents its now "buying." It just gets some cash, which the original patent holder finds worth paying because it helps them avoid the IPR process. Everything gets "licensed" back to the original patent holder anyway, so the actual transaction is quite clear: patent holders paying Native American tribes solely to avoid a review by the patent office of their sketchy patents. When the Allergan deal became public, lots of people grew concerned. It seemed like such a naked attempt to game the system. The House Oversight Committee began investigating the issue, noting its serious concerns with what was happening. On top of that, the issue flowed into the case involving the patents in question. Remember: the IPR process is handled at a special tribunal at the patent office. But there can still be lawsuits going on in parallel, and that's what was happening with Allergan in its patent fight against Teva Phramaceuticals (who is challenging the validity of Allergan's patents). The case still goes on no matter what happens with the IPR process, but Teva raised the issue of whether or not the Mohawk tribe now needed to become a plaintiff in the case too. After a pretty quick back and forth of papers flying in the court, the judge has, in fact, added the tribe as a plaintiff to the case, while issuing an order that raises serious concerns about this practice of laundering the patents through a Native American tribe to avoid IPR. While the court doesn't directly claim that the transfer is invalid, it certainly suggests the court does not look kindly on the practice: The Court has serious concerns about the legitimacy of the tactic that Allergan and the Tribe have employed. The essence of the matter is this: Allergan purports to have sold the patents to the Tribe, but in reality it has paid the Tribe to allow Allergan to purchase—or perhaps more precisely, to rent—the Tribe’s sovereign immunity in order to defeat the pending IPR proceedings in the PTO. This is not a situation in which the patentee was entitled to sovereign immunity in the first instance. Rather, Allergan, which does not enjoy sovereign immunity, has invoked the benefits of the patent system and has obtained valuable patent protection for its product, Restasis. But when faced with the possibility that the PTO would determine that those patents should not have been issued, Allergan has sought to prevent the PTO from reconsidering its original issuance decision. What Allergan seeks is the right to continue to enjoy the considerable benefits of the U.S. patent system without accepting the limits that Congress has placed on those benefits through the administrative mechanism for canceling invalid patents. If that ploy succeeds, any patentee facing IPR proceedings would presumably be able to defeat those proceedings by employing the same artifice. In short, Allergan’s tactic, if successful, could spell the end of the PTO’s IPR program, which was a central component of the America Invents Act of 2011. In its brief, Allergan is conspicuously silent about the broader consequences of the course it has chosen, but it does not suggest that there is anything unusual about its situation that would make Allergan’s tactic “a restricted railroad ticket, good for this day and train only.”... Although sovereign immunity has been tempered over the years by statute and court decisions, it survives because there are sound reasons that sovereigns should be protected from at least some kinds of lawsuits. But sovereign immunity should not be treated as a monetizable commodity that can be purchased by private entities as part of a scheme to evade their legal responsibilities. It is not an inexhaustible asset that can be sold to any party that might find it convenient to purchase immunity from suit. Because that is in essence is what the agreement between Allergan and the Tribe does, the Court has serious reservations about whether the contract between Allergan and the Tribe should be recognized as valid, rather than being held void as being contrary to public policy. The court doesn't go quite that far, noting that it doesn't need to determine this issue at this time, and the issue maybe better suited for the PTAB rather than federal court, but it certainly is noteworthy to see such strong language condemning the plan. Of course, that ruling was probably the least of Allergan's worries, as at the same time, the judge also invalidated the patents in question for obviousness. This post is about a different aspect of Allergan's sketchy plans, so we won't even bother digging into the 100+ pages in the judge's decision on this, other than to note that it appears to include even more sketchy behavior on the part of Allergan. Of course, this is not stopping others from following in Allergan's footsteps. Just days after that court ruling, the very same "Mohawk Tribe" had magically teamed up with a company called SRC Labs, and filed a patent infringement case against Amazon and Microsoft. SRC Labs, if you're wondering, appears to be the estate of Seymour Cray, the founder of Cray Inc. (who was just involved in another important case unrelated to all of this). And, this is not the only such case. It's hard to see this loophole lasting very long. Hopefully the IPR process survives the various challenges its facing, but on top of that, hopefully the PTAB and/or the courts, shut down this obvious gamesmanship for patent holders to avoid accountability. Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
For years we've noted how if you want to really understand the dysfunction at the heart of the U.S. broadband industry, you should take a closer look at West Virginia. Like most states, West Virginia's state legislature is so awash in ISP campaign contributions it literally lets incumbent ISPs write state law, only amplifying the existing lack of broadband competition in the state. So when the state received $126.3 million in broadband stimulus funds, it's not particularly surprising that a report by the US Commerce Department's Office of Inspector General (pdf) found more than a few examples of fraud and waste. More specifically, Frontier was accused of buying and storing miles of unused fiber to drive up costs, as well as the use of various "loading" and "invoice processing" fees to milk taxpayers for an additional $5 million. The report's findings come on the heels of previous reports that found Frontier and the state used taxpayer money on unused, overpowered routers and overpaid, redundant, and seemingly purposeless consultants. As is often the case with regulatory capture, efforts to hold anybody accountable for any of this have so far gone nowhere. But after the Inspector General's report, the federal government decided it might be a good idea to at least ask for some of this misspent money back from Frontier and the State. According to the Charleston Gazette Mail, of particular interest were these additional "loading" surcharges, and the fact Frontier stockpiled 49 miles of unused fiber to drive up build costs: "The Commerce Department letter cites findings that Frontier misled the public about the amount of unused fiber cable — called “maintenance coil” — the company installed across the state. The extra fiber, which is stored at public buildings and used for repairs, drove up the broadband expansion project’s cost. Frontier placed 49 miles of spooled-up, unused fiber in West Virginia, four times the amount the company had disclosed to state officials.The feds have ordered state officials to disclose whether the extra coil was included in the total miles of fiber the state claimed Frontier built with stimulus funds. The state also must get an “explanation from Frontier for the reason it misrepresented the maintenance coil mileage to the public,” according to the Commerce Department’s Aug. 21 letter. This sort of stuff happens pretty much constantly in telecom as companies pay empty lip service to "bridging the digital divide." But whereas giants like Comcast, AT&T and Verizon have the lobbying and policy chops to obfuscate such graft, West Virginia is so dysfunctional Frontier doesn't even have to try. Case in point: a Frontier executive has spent years also employed as State Senate leader -- without anybody raising much of an eyebrow. That employee was only recently fired -- but only because he finally failed to oppose a bill Frontier wanted killed. With that kind of support, it's not too surprising that Frontier executives say they won't be returning the misspent taxpayer money anytime soon: "In a letter to West Virginia Chief Technology Officer John Dunlap this week, Frontier asserted that any funds the state might return to the federal government “are, of course, not recoverable from Frontier.”...Frontier also disputed the federal government’s determination that the state must return $4.7 million, urging the state to file an appeal. "To avoid the waste of millions of West Virginia taxpayer dollars, the [state] should appeal,” wrote Mark McKenzie, a Frontier engineer who oversaw the company’s role in the project. Again, if you've tracked the similar reports bubbling out of the state for years, the $4.7 million the feds want returned is likely only the tip of the iceberg. But because state legislatures are often little more than glorified rubber stamps for the interests of giant telecom operators, it's less than likely that these inquiries result in anything vaguely resembling genuine accountability. As a result, West Virginia remains one of the least broadband-connected states in the union, a story of graft and regulatory capture that plays out in countless states across the country on a daily basis. This is, as they say, why we can't have nice things. Permalink | Comments | Email This Story

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Think we're unduly worried about how "trafficking" charges will get used to punish legitimate online speech? We're not. A few weeks ago a Mississippi mom posted an obviously joking tweet offering to sell her three-year old for $12. I tweeted a funny conversation I had with him about using the potty, followed by an equally-as-funny offer to my followers: 3-year-old for sale. $12 or best offer. The next thing she knew, Mississippi authorities decided to investigate her for child trafficking. The saga began when a caseworker and supervisor from Child Protection Services dropped by my office with a Lafayette County sheriff’s deputy. You know, a typical Monday afternoon. They told me an anonymous male tipster called Mississippi’s child abuse hotline days earlier to report me for attempting to sell my 3-year-old son, citing a history of mental illness that probably drove me to do it. Beyond notifying me of the charges, they said I’d have to take my son out of school so they could see him and talk to him that day, presumably protocol to ensure children aren’t in immediate danger. So I went to his preschool, pulled my son out of a deep sleep during naptime, and did everything in my power not to cry in front of him on the drive back to my office. All of this for a joke tweet. This story is bad enough on its own. As it stands now, actions by the Mississippi authorities will chill other Mississippi parents from blowing off steam with facetious remarks on social media. But at least the chilling harm is contained within Mississippi's borders. If SESTA passes, that chill will spread throughout the country. If SESTA were on the books, the Mississippi authorities would not have had to stop with the mom. Its next stop could be Twitter itself. No matter how unreasonable its suspicions, it could threaten criminal investigation on Twitter for having facilitated this allegedly trafficking-related speech. The unlimited legal exposure these potential prosecutions pose will force platforms to pre-emptively remove not just the speech of parents from Mississippi but any speech from any parent anywhere that might inflame the humorless judgment of overzealous Mississippi authorities – or authorities from anywhere else where humor and judicious sense is also impaired. In fact, it won't even be limited to parents. Authorities anywhere could come after anyone who posted anything that they decided to misinterpret as a credible threat. These warnings might sound like hyperbole, but that's what hangs in the balance: hyperbole. The ability to say ridiculous things because sometimes we need to say ridiculous things. If anything that gets said can be so willfully misconstrued as evidence of a crime it will chill a lot of speech, and to an exponentially unlimited extent far beyond any authority's jurisdictional boundaries if it can force platforms to fear enabling any such speech that might happen to set any of them off. Permalink | Comments | Email This Story

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Maximize your peace of mind on the road with this Hi-Res DashCam. Simply turn it on when you're driving, and it'll record footage of the road on a continuous loop. It offers up to 2 hours of recording time with an 8GB microSD card, and can take still shots as well. It automatically records when your car suddenly jerks or shakes, even if the device is turned off. The dashcam is on sale for $25. 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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