posted 20 days ago on techdirt
Post sponsored by As part of our funding campaign for our coverage of encryption, we reached out to some companies that care about these issues to ask them to show their support. This post is sponsored by Golden Frog, a company dedicated to online privacy, security and freedom. Recently, there have been plenty of Techdirt stories about the authorities in the US and elsewhere making increasingly strident attacks on encryption, with claims that things are "going dark," and that Silicon Valley is foolishly aiding terrorism thanks to its "obsession" with privacy etc. etc. Against that background, it's easy to get swept up by a narrative that pits us, the freedom fighters, against them, the dark forces of repression, and to celebrate the occasional wins that come our way. But suppose all this is just for show -- not so much security theater, but as privacy theater to divert our attention from what is really happening. That's one possible conclusion that cynics might draw after watching a brilliant presentation made back in 2014, and highlighted recently by a post on Boing Boing that includes a video of the talk and a link to the slides (pdf): In 2014, Poul-Henning Kamp, a prolific and respected contributor to many core free/open projects gave the closing keynote at the Free and Open Source Developers' European Meeting (FOSDEM) in Belgium, and he did something incredibly clever: he presented a status report on a fictional NSA project (ORCHESTRA) whose mission was to make it cheaper to spy on the Internet without breaking any laws or getting any warrants. NSA's fictional operation achieves that by exploiting the way the computing industry works, with different challenges dealt with using completely legal means. For example, the "ABBA" program handles the following situation: Somebody comes up with an idea that would make [communications intelligence] collection harder and/or more expensive The novel solution is for the NSA to exploit "raw capitalism," and to "throw money at the problem" by playing the role of a friendly local venture capitalist that wants to turn the idea into a company. At the same time, the NSA finds a relevant patent held by one of its "friends" in the industry, and then asks those friends to send around their patent lawyers to the new startup it is funding, to get it shut down in a perfectly non-suspicious way. The "QUEEN" program to tame the potentially dangerous world of open source is even more subtle. The NSA takes advantage of the open development process to place its own people within the system, so that they can subvert it using the following: FUD Play GPL vs BSD card "Bikeshed" discussions Soak mental bandwidth with bogus crypto proposals A key technique is to exploit the fact that free software is based on trust, and that once a coder is trusted as a result of building up a record of good work, nothing they do thereafter is subject to much scrutiny. That phenomenon potentially allows patches with strategic weaknesses to be included in key projects with massive knock-on effects. Kamp dubs the exploitation of this fact the "BOYS" program, whose "crown jewel" is OpenSSL. The impact of the "Heartbleed" vulnerability discovered in OpenSSL two years ago was so great and convenient that many wondered at the time whether it had been placed there by the NSA. That's just one indication that Kamp's witty re-imagining of recent computer history is not so far-fetched. Even assuming -- hoping -- that Kamp's talk is largely a thought experiment, it has an importance that goes beyond its undoubted entertainment value. By turning everything on its head, and showing how easy it would be for the NSA -- or other well-funded agencies -- to subvert today's computing industry in perfectly legal ways, it provides an important warning about what's wrong and what we need to do to address it. Unfortunately, as Kamp himself admits in his keynote speech, the problems are so deep and fundamental that fixing them won't be easy. But at least, thanks to him, we have been reminded that they exist, which is a start. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Privacy & Security on the Golden Frog Blog: You Are the Product: The Price of Free in the Growing Privacy Industry AT&T, Shame on You for Helping the NSA Spy on Us What Exactly is Data Retention and How Does it Effect Me? VyprVPN from Golden Frog is the world's fastest highly-secure VPN.Get 25% off VyprVPN now » Permalink | Comments | Email This Story

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Techdirt has been following with interest the ways in which the delicate sensibility of Turkey's President, Recep Tayyip Erdoğan, is being wounded. First there was Gollum; then the filing of 1,845 cases of allegedly insulting the Turkish President; and finally, a mild satirical video that Erdoğan didn't want you to see. The last of these not only caused the Streisand Effect to kick in with a vengeance, but has provoked a German comedian to take things up a notch, as reported here by the Guardian: In a short clip from a late-night programme screened on the German state broadcaster ZDF at the end of last month, comedian Jan Böhmermann sits in front of a Turkish flag beneath a small, framed portrait of Erdoğan, reading out a poem that accuses the Turkish president of, among other things, "repressing minorities, kicking Kurds and slapping Christians while watching child porn". Exactly as Böhmermann doubtless intended, this has caused a huge political stink. The broadcaster ZDF took down the video, and the German Chancellor, Angela Merkel, told Turkey's prime minister that the poem was a "deliberately offensive text" that she personally disapproved of. Most significantly, the Turkish government has filed a formal request for Böhmermann's prosecution. So what? you might ask. Germany isn't Turkey, and so surely there's no way that somebody would be prosecuted just for a few rude lyrics about a foreign leader. Well, it turns out that's not the case: On 6 April it emerged that Germany's state prosecutor was investigating Böhmermann for violation of the little-used paragraph 103 of the criminal code, which concerns insulting organs or representatives of foreign states. At worst the comedian was facing a prison sentence of up to three years. Although some people in Germany have condemned Böhmermann for being coarse, an attention-seeker and even racist, Merkel does not want to be seen as a world leader who harms freedom of speech: In a government press conference on Monday, [Merkel's spokesperson] Seibert said Merkel wanted to make it unequivocally clear that freedom of speech was "naturally the highest good", irrespective of whether she considered a satirical piece "tasteful or tasteless". On the other hand, Merkel desperately needs Turkey's help in dealing with the huge numbers of refugees from the Middle East flooding into southern Europe. A deal between the EU and Turkey has been agreed to help address this problem, although doubts remain about whether it is a realistic solution. In any case, Erdoğan is in a very strong position -- and knows it. This really puts Merkel and the German government on the spot, and it will be intriguing to see how -- or even if -- they manage to reconcile the conflicting pressures. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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As we've been discussing, the FCC has started working more seriously on opening the cable set top box to real competition. As it stands, 99% of consumers currently pay about $231 annually in rental fees for aging hardware that's often worth about half that much. The FCC's goal is ultimately to let consumers access cable content using the hardware of their choice, creating a healthy new competitive market, and by proxy better hardware at lower prices. But monthly set top box rental fees represent $20 billion in annual revenue to cable providers, which is why they've been having a hissy fit about the FCC's plan. This manufactured outrage has involved claiming that more set top box competition will somehow hurt diversity (despite the plan providing access to a more diverse array of content than ever before). Or claiming that consumers having a choice of hardware will harm children's safety and user security. The latest attack on the FCC's plan? Having The Walking Dead producer and Producers Guild of America secretary Gale Anne Hurd pen a missive over at USAToday claiming that more set top box competition somehow automatically means a huge spike in piracy:"If the Federal Communications Commission (FCC) approves Chairman Tom Wheeler’s regulatory proposal to “open” set-top boxes, it will make piracy as easy and dangerous in the living room as it is on laptop and mobile devices. Wait, you didn’t know piracy was rampant on the Internet? Well, the figures shocked even me, and as a producer of horror and science fiction, I’m not easily scared. The season five premiere of my show, The Walking Dead, was illegally downloaded by roughly 1.27 million unique IP addresses worldwide within 24 hours of its debut."Right, people pirate content. No debate there. That's in part because despite some notable progress, finding legitimate content online remains a bit of an expensive mole hunt (made worse by exclusive streaming arrangements), making piracy just cheaper and easier. But it's also because while copy protection on cable hardware (including the latest HDCP 2.2 standard for 4K) does a great job in annoying paying customers, it repeatedly fails to actually secure content. That's not going to change under a system where users have access to cheaper, better hardware. What will change is that users will no longer be trapped in the cable industry's set top box walled garden, and will have access to more ways to buy and watch legitimate content than ever before, including AMC's own website and streaming service. Outrageous! Hurd doesn't appear to understand this, or how the FCC's plan actually works, since the outline the FCC has provided (pdf) notes that the FCC's plan leaves it up to cable providers to still "determine the content protection systems it deems sufficient to prevent theft and misuse" and "will not impede the introduction of new content protection systems." In other words, from a copy protection perspective, nothing will really change (unfortunately). But Hurd somehow tries to claim that the FCC's plan means that Google would somehow be driving users to pirated content:"It would also allow Google — and for that matter set-top box manufacturers from all over the world, including China (where rogue boxes are being built by the millions) — to create and market applications or boxes with software that will treat legitimate and stolen material exactly the same, and may in many cases help to steer consumers to piracy."Note again how Hurd just ignores the fact that set top box competition would also drive users to more legitimate options than ever before. No, apparently Hurd is worried that because these new set top boxes might actually connect people to the Internet (which is already happening in streaming boxes and game consoles), they'll be more likely to pirate:"This is a real threat. Google's search engine does this today. Here’s what happens when I search “watch Fear the Walking Dead." After the paid results, the first option is AMC and the second is a pirate site — literally, side by side. Chairman Wheeler’s set-top box proposal places no restrictions on search results. If approved, it would allow device-makers to prominently display pirated content from the Internet alongside legitimate options — just like in my "watch Fear the Walking Dead" Google search.So wait, because The Walking Dead shows up in a Google search result we shouldn't support the push for more set top box competition? Kind of throwing the baby away with the bathwater, aren't we? The FCC is proposing a system whereby users will have access to more content and cheaper, better content than ever, but because these set tops might have a browser we should run in terror? Hurd basically just takes some vague fear about piracy and uses it to villainize a reform effort that could potentially drive more legitimate viewers her direction than ever before. Of course the idea that set top box reform is some kind of villainous Google plot to ruin the cable industry's day has been a cable industry industry narrative since the FCC's plan was unveiled. The fact that you'll see a huge number of editorials just like Hurd's popping up in newspapers and various websites nationwide isn't mystical coincidence, it's a concerted cable industry PR stunt. Given Comcast is playing a starring role in this PR offensive, Comcast's top spokesperson was quick to applaud Hurd's editorial on Twitter:why would the gov reward Google w rules that will put stolen content in competition with legit contenthttps://t.co/fms26jk0C3 via @usatoday — Sena Fitzmaurice (@SenaFitz) April 12, 2016 Make no mistake though. Opposition to the FCC's plan isn't about piracy, or a love of diversity, or Google, or privacy and security. It's about protecting $20 billion in captive rental fee revenue from competition. And because the cable industry can't just come out and say this fight is all about money (because we'd all just laugh at them), they're pushing an army of editorials that try to claim real set top box competition will be notably worse than a zombie apocalypse.Permalink | Comments | Email This Story

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The FBI's Inspector General has released a report on the New Jersey FBI branch's Computer Forensics Laboratory. For the most part, the report is positive and shows this branch tends to handle its forensics work competently. The problem comes when it opens up its tools up to local law enforcement. The FBI lab has a phone/media forensics kiosk located in the lobby of its building. The Cell Phone Investigative Kiosk (Kiosk) allows users to quickly and easily view data stored on a cell phone, extract the data to use as evidence, put the data into a report, and copy the report to an electronic storage device such as a compact disk.8 In addition to the Kiosk, there is also a Loose Media Kiosk, which processes digital evidence stored on loose media, such as a DVD or memory card. Because it's outside of the actual lab, the FBI apparently feels it's ok if it doesn't track who's using the kiosk. To use the Kiosk, law enforcement personnel are required to schedule an appointment. However, the NJRCFL does not require Kiosk users to sign its Visitors Log since users do not go beyond the reception area or enter the NJRCFL’s laboratory space. That leads to this sort of thing. According to the Director, sometimes one investigator will schedule a Kiosk appointment and another investigator will show up in his or her place, or more than one investigator may accompany the scheduled investigator to use the Kiosk. According to the Director, NJRCFL personnel assume that all of the personnel who arrive for a scheduled appointment are part of the same case. However, he said that the NJRCFL does not verify that everyone arriving for a scheduled appointment is working on the same investigative matter. This is a problem because there are rules in place for use of the forensics kiosk, which include law enforcement officers having the proper authority to perform the search, the training to do so and the permission of the local AUSA (Assistant US Attorney). The FBI's decision to skip this verification step by not requiring signatures on the visitor's log means anyone could show up and use the kiosk without having secured the permission to do so. The FBI does have this control in place, which couldn't possibly be circumvented. While the Kiosk is housed in the reception area, the cables necessary to connect the Kiosk to a cell phone are not stored with the Kiosk. Instead, the NJRCFL examiner responsible for supervising the Kiosk provides the cables to a visiting user. Without the cables, cell phones cannot be connected to the Kiosk, ensuring that the examiner on duty would have to know that a person was attempting to use the Kiosk because the examiner would have to supply the appropriate cable. These "cables" sound a lot like your standard USB cables. There may be a proprietary connection on the FBI kiosk which prevents the use of off-the-shelf cables, but it's not as though no one in law enforcement could secure this sort of cable through other means. Even if these are cables that are only found at FBI offices, there's nothing stopping law enforcement officers from searching removable media without checking in with the reception desk first. On top of that, there's nothing preventing law enforcement officers from asking for a cable and then performing illegal searches or using the forensics software for non-law enforcement reasons. As a result of the procedures and practices described above, we found that the NJRCFL did not have adequate controls over the access to and use of its Kiosk. FBI policy requires Kiosk users to confirm they possess the proper legal authority for the search of data on cell phones or loose media. During our fieldwork, neither the FBI nor the NJRCFL provided any confirmation to show that NJRCFL Kiosk users possessed the proper legal authority to search for evidence on the devices examined. In addition, the FBI did not provide us with any information regarding controls in place at the NJRCFL to ensure that users do not use the Kiosk for nonlaw enforcement matters, an inherent risk of Kiosks without adequate controls. While the form officers are required to fill out to use the kiosk contain statements about having the legal authority to perform the search, the documents do not ask for any specifics about these authorities. It's just boilerplate text that anyone can sign, knowing that the lack of a visitor's log means no one can cross-reference possibly bogus affirmations with kiosk use. This same problem is likely found at most other FBI offices with forensics kiosks. The report notes the same issues were discovered during its audit of the Philadelphia field office. The form -- and the "best practices" -- provide only the most minimal of safeguards against abuse. And the fact that the changes made in Philadelphia in response to the OIG's investigation never trickled down to the New Jersey office suggests this problem will be corrected on a case-by-case basis following an Inspector General's audit, rather than adopted across all offices. A new form has been put into use -- at least at the New Jersey office -- that will capture more information about the legal authorities used to perform kiosk searches. However, there's nothing in the report that indicates this office -- or any others -- have stepped up to require kiosk users to sign a visitor's log. In addition, more than a quarter of kiosk users reported they did not have the training in place to use the equipment, yet are accessing it anyway. Until more improvements are put in place, FBI offices can't say they're doing everything they can to ensure lawful use of its forensic equipment. 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We talk a great deal of the problems that are created when the government approves trademark applications for words that are either common or generic. But does the generic nature of a word change when that word is foreign in nature? We won't have a definitive answer to that question in this case, but we certainly will see some of the problems that could arise. Hofbrau Steak House and American Grille has been serving up German food in Northern Michigan for over six decades. Staatliches Hofbrauhaus has been brewing beer and operating eateries since the late eighteen-hundreds. Yet it was only recently that the brewer sent letters to Hofbrau demanding it change its name, claiming that it had a trademark on "hofbrau." Hofbrau Steak House & American Grille shared the news on Facebook Wednesday, along with photos of a letter from Staatliches Hofbräuhaus, HB, that demands the Northern Michigan restaurant change its name. "Hofbrau NO more?!? Well, after all these years, it's looks like everyone's favorite Interlochen hangout is in need of a NEW Name!!," the owners wrote on Facebook. "..., HOW do you come up with a name?? We are asking for your help!" The letter from Hofbräu München states the Munich brewery owns the trademark to Hofbrau and has used it since as early as 1894. Now, we could analyze the likelihood of confusion for eaters in Northern Michigan between a local restaurant and a massive German brewery. Or we could try to parse out whether Hofbrauhaus is actually competing with the restaurant in that market. Those are worthy discussions to have, but I would rather point the finger at the USPTO for approving a trademark on "hofbrau" in the first place. The word "hofbrau" is a shortened version of the longer German word "hofbrauhaus", from which the brewery takes its name. You might think that this would strengthen the brewery's claim, except that looking into the definition of the word brings with it questions about why the trademark was ever approved in the first place. noun 1. an informal, German-style restaurant or tavern. In other words, the word means German restaurant or tavern. If that isn't the very definition of a generic mark, then I don't know what would be. It's like trademarking "cafeteria", but in Spanish. Does a foreign language version of an ultra-generic trademark suddenly render it permissible for trademark enforcement? Every reasonable intuition screams "no", particularly in America, the cultural and national melting pot that we are. So, whose fault is it that a small eatery in Northern Michigan is now going to change its name after sixty years of use? The brewery, yes, but the trademark office first. Permalink | Comments | Email This Story

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It wasn't that long ago that people were highly skeptical of the entire concept of human flight. A few crazy people dressed up in bird-inspired outfits with wings and tried to jump from various heights in order to fly or glide -- and they were generally met with mockery. Nowadays, we know just how hard it is to achieve human-powered flight, but it has been achieved -- in several different ways. The Igor I. Sikorsky Human-Powered Helicopter Prize was awarded in 2013, and the Kremer Prize was won back in 1977. If you're not willing to work up a sweat, check out some of these aircraft. Martin Aircraft is going to start selling a jetpack designed for first responders like firefighters -- not for recreational use (yet). The company aims to have this jetpack classified as ultralight aircraft, so it won't require a pilot's license. It'll also have a built-in parachute. [url] Urban Aeronautics has an autonomous flying drone called the AirMule that can lift over 1,000 pounds of stuff for about 30 miles. A civilian version of this aircraft from its Metro Skyways division is a VTOL personal flying vehicle that's kind of a flying car. [url] Singaporean engineering students have built a personal flying machine called 'Snowstorm' -- powered by batteries for short 5-minute flights. We've seen these kinds of personal multicopters before, and we're still waiting for battery technology to make these things fly for more enjoyable amounts of time. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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There are lots of dumb ways for companies to combat online critics. You can simply claim copyright over the criticism as a way to try to silence it, although that tends to end poorly for the silencer thanks to public backlash. You can go to the court to ask for an injunction against the critic as a way to try to silence it, although that tends to end poorly for the silencer thanks to the Streisand Effect. Or you can ask the courts to test whether the criticism amounts to defamation, although, again, The Streisand Effect, the public backlash, and the fact that those types of suits are rarely successful. This story is an extended example of the last of those, with game developer Digital Homicide deciding to file suit against game critic Jim Sterling to the tune of ten million dollars, all because Sterling's shtick is to post online reviews mocking what he considers to be crappy video games. Digital Homicide claims Sterling, whose real name is James Stanton, has "falsely accused [Digital Homicide] and caused damage" to the company. According to court documents, the company is asking for $2.26 million in direct product damage; $4.3 million in emotional, reputational, and financial distress; and $5 million in punitive damage requests. That adds up to $10.76 million, and it's nothing to scoff at. The claims are, frankly, ludicrous, but they're the kind you occasionally see levied against an online critic. As most of you will know, the claims being made will typically need to be shown to have been willfully fallacious to get past what will surely be Sterling's defense, that his criticism is either his opinion or that it is valid, or both. The monetary damages asked for are equally silly. The only real potential meat to this whole thing is the accusation that Sterling falsely accused Digital Homicide of committing offenses or crimes. In an article titled "Digital Homicide And The Case Of The Sockpuppet Developers," Sterling remarked that another Digital Homicide game, Galactic Hitman, had artwork taken from elsewhere. Specifically, it may have been lifted from an artist on DeviantArt. Sterling later edited the piece to say it "may" have been purchased from Shutterstock, an online repository of media. In the lawsuit, Digital Homicide presented a July 2015 receipt for a Shutterstock subscription. As Sterling dug into other companies Digital Homicide was connected to, he discovered that the people behind the studio had also started a company called ECC Games, which seemed to take its name from a different game publisher in Poland. Digital Homicide points to a line in Sterling's article where he argued it could lead to "potential legal trouble for folks who rebranded and accidentally defamed a completely different studio." In the piece, Sterling spoke with the Polish publisher, who said it had "already taken legal actions." In other words, you have a commentator or critic raising the issue of potential legal issues, while not directly claiming them to exist as a matter of certainty. That couching language is likely going to mean that the false accusation portion of the suit will fail, as there's very little difference between how Sterling discusses this and how any media outlet deals with the existence of potential criminal or civil actions. And that's really all a side show, because the fact is that Digital Homicide appears to be chiefly angry about the criticism of its games as levied by Sterling. The drama began when Sterling published a 10-minute video of Digital Homicide's first-person shooter Slaughtering Grounds in November 2014, dubbing it the "new" worst game of 2014 "contender" and a game where "the awfulness just doesn't stop." The game did not get much attention outside of Sterling's videos; in fact, one of Sterling's critical videos is the second Google result for Slaughtering Grounds and the first result when you do a search on YouTube. In response to this criticism, Digital Homicide published two videos — both removed, though archived on Sterling's channel — where the developers call Sterling "a fucking idiot" and accuse him of not playing the game correctly. In another — again, now deleted — post, Digital Homicide explained its position. "In the sole instance of Jim Sterling's 'Squirty Play' video," said the developer, "We find the usage of the terms 'WORST GAME OF 2014 CONTENDER!' and 'Absolute Failure' to describe the entirety of our product while not actually evaluating it in its entirety unfair and unreasonable use of our copyright material. While the reader may disagree with our claim, we believe the unbiased perspective of a court will agree there has been a violation of our copyright and for this reason we will be pursuing an attorney and proceeding with our complaint." That last bit had originally come along with a DMCA takedown of Sterling's review, but Sterling appealed the takedown to YouTube, which put the video back up, because the claim that this kind of criticism is copyright infringement is insane. So, how's everyone in the public reacting to the DMCA takedowns and the lawsuit? Well, Digital Homicide had put up a crowdsourcing site to fund its legal efforts against Sterling, but had to take it down because of the sheer number of people trolling the page. The press, meanwhile, is reporting on this issue, and not in a manner favorable to Digital Homicide. In true Streisand Effect form, Sterling's reviews are spreading as a result, and Digital Homicide comes off looking petty. In other words, they had better win that ten million dollars, because it doesn't sound like the public is going to be happily buying their games at the same volume as they did before all this nonsense began. Permalink | Comments | Email This Story

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An anti-SLAPP win has just been handed down in Nevada, one of the few states with a strong anti-SLAPP law. At the center of the failed defamation lawsuit is (you guessed it) a negative review of a business posted at Yelp. Pamela Boling (represented by Marc Randazza) hired IQTaxx to prepare her taxes, including the filing of a hardship notice. IQTaxx failed to do so. Boling tried to speak to the company about its failure to file the hardship paperwork, but after several attempts she was routed to a third-party number which informed her that the tax preparer's number was no longer in service. Boling turned to Yelp and left a review detailing her experience with the company. Her review was headlined "This is MALPRACTICE!" Shortly thereafter, IQTaxx sent a cease-and-desist to Boling over her "exaggerated emotional rant review" -- wording it should have known would be fatal to its claims of defamation. Defamation does not cover exaggerations or emotional rants, but rather false statements purporting to be facts. The court finds the company has failed to satisfy both prongs of Nevada's anti-SLAPP test. Not only that, but it has failed in pretty much all respects when it comes to pursuing a libel suit. There is no dispute that Yelp is a well-known public forum. and Defendant has provided evidence that her allegedly defamatory statements were not made with knowledge of their falsity. Plaintiff failed to provide evidence tending to show that Defendant knew her statements were false when she made them. Defendant thus made the statements at issue in good faith under NRS 41.637(4). Defendant proved by a preponderance of the evidence that her statements were on a matter of public interest, in a public forum, and were made without knowledge of their falsity. As for the second prong -- prevailing on the suit's merits -- the court similarly finds almost nothing to work with. Plaintiff has failed to meet its burden under NRS 41.660(3)(b). Statements of opinion and rhetorical hyperbole are not actionable, as Supreme Court precedent establishes that "there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Robert Welch, 418 US. 323, 339-40 (1974). In other words, the Supreme Court has said the best defense against speech one doesn't like is more speech, not lawsuits. The court adds that the context of the disputed assertions also plays a significant part in its interpretation. Context is vitally important in determining whether a reasonable person is likely to view a statement as one of fact, or one of protected opinion or rhetorical hyperbole. The context of Defendant's statements is Yelp, a well-known online forum for consumer reviews. The Internet is the modern equivalent of the soapbox on the sidewalk, and web sites such as Yelp are the type of public forum that is protected under the First Amendment. The public has become accustomed to seeing fiery rhetoric on online fora, and courts recognize that this context makes it less likely that a reader will interpret statements published in such places as actionable statements of fact. The court then notes that IQTaxx's sole claim basically doomed its lawsuit from the start. Plaintiff only asserts that the statement "This is MALPRACTICE!" is defamatory, meaning that only Defendant's September 11, 2015 Yelp review is properly considered in determining whether Plaintiff has met its burden. The statement "This is MALPRACTICE!" with the term "malpractice" in all capital letters and with an exclamation mark, in the context of a Yelp review, is a protected statement of rhetorical hyperbole that cannot make out a claim for defamation. [...] Defendant's statements are protected statements of emotional hyperbolic opinion. The average Yelp user would not read the statement "This is MALPRACTICE!" with the central term in all capital letters and with an exclamation mark as a carefully considered legal opinion. IQTaxx must now pay Boling $1,000 in statutory damages, and the person it tried to sue in shutting up can also go after it for legal fees. The tax preparer has several options available to address the negative review, but chose the one that hurt it the most. Rather than just being known for questionable customer service, the company is now known for suing critics and losing badly. Permalink | Comments | Email This Story

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Last week we were joined by Justin Peters, author of the new book The Idealist all about Aaron Swartz, free culture and digital activism. The first half of the discussion focused on that broader context, and this week we continue with a closer look at Aaron himself. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, 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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While we've certainly seen a fair share of ridiculous intellectual property protectionism stemming from the Star Wars Franchise, including overreaches like trying to silence people from photographing legally purchased toys and keeping breweries from making beer-themed puns, one area where Lucasfilm was generally pretty good on was fan participation, at least before the acquisition of the Star Wars rights by Disney. This included fan-fiction and films, gatherings, and role-playing events. That's what makes it so strange to see Lucasfilm decide to bully a non-profit group for daring to put together a "lightsaber battle" event. Event company Newmindspace had organized the record-setting battles in December involving 9,951 combatants, with 2,000 in San Francisco. In January, it heard from lawyers for Lucasfilm, the San Francisco movie company that brought Star Wars to the world, and holds the rights to the characters, names and concepts within the Star Wars films. “For three months we have been aggressively pursued by Lucasfilm over the use of the word ‘lightsaber’ in our events,” said Newmindspace co-founder Kevin Bracken. Newmindspace had been putting on “lightsaber battles” for eight years with no pushback, but in January, perhaps because the multi-city battles had drawn media coverage, a letter arrived from the Lucasfilm lawyers. “We immediately stopped using the words ‘lightsaber,’ ‘Jedi,’ ‘Sith’ and ‘The Force,'” Bracken said. Newmindspace, which also puts on other gathering events, such as massive pillow fights and bubble-gun battles, changed the name of its "lightsaber battle" event, calling it the "Light Battle Tour", and referring to lightsabers and "light swords." As you've probably already anticipated, Lucasfilm immediately declared that the changes weren't enough. The lawyers sent more notices demanding more changes. Which is how what was supposed to be a fun gathering of Star Wars fans engaging in a fake lightsaber battle turned into a space battle between cats. Since the agreement with Lucasfilm, Newmindspace has pivoted, and although it has more battles planned – including one on April 30 in San Jose’s St. James Park at 8 p.m. – it has put entire galaxies between itself and any Star Wars-related language. Lightsabers have been replaced with “Catblades,” which it must be said bear a certain resemblance to the famed movie weapon of Luke and Obi-Wan. And the sword-fight events are now dubbed “Cats in Space” because, said Bracken, “with the simple addition of whiskers to anyone’s face, they can be completely transformed into a galactic warrior – all it takes is a few brushstrokes and you’re ready to help us defeat evil mice across the galaxy.” And the galaxy was saved, apparently, from a non-profit having a lightsaber battle, which obviously would have ended all the things for the Star Wars franchise. I don't even understand what the dispute here is. It can't be copyright, because the lightsabers to be used were Star Wars toys that were legally bought. I'm struggling to see how it could be trademark, as this use wasn't commercial and the likelihood of any confusion that the free battle was something put on by Lucasfilm is likely null. Yet, because one side is big and the other is small, now we have a battle of space-cats. Great job, everyone. Permalink | Comments | Email This Story

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We've mostly focused on the impact of the TPP and trade deals on the internet (and also on national sovereignty), because that's the kind of stuff that interests us most around here. We've spent a lot less time looking at the more traditional free trade arguments, in part because that's not nearly as controversial, and in part because -- despite claims to the contrary -- there really aren't that many tariff-related barriers that make a big difference any more. It's generally good to reduce such tariffs, and in response you see the typical response from firms based on whether or not they benefit from those reduced tariffs. The "benefits" of free trade tend to be focused on the companies looking to expand into those markets where tariffs are being lowered or abandoned -- and not so much for companies competing against products from those same countries. Frankly, I find arguments that the companies who freak out about trade deals because it will mean more competition against them a bit tiresome, because I tend to believe competition is a good thing for innovation. However, the Boston Globe has quite a story about one such company, the sneaker company New Balance, which was quite worried about how the TPP would increase competition from shoemakers in Vietnam. Again, I find those concerns to be overblown, but the next part of the story is where it gets interesting: New Balance is now claiming that it stopped publicly complaining about the TPP after the US government more or less promised it a big government contract, which never came through: After several years of resistance to the Trans-Pacific Partnership, a pact aimed at making it easier to conduct trade among the United States and 11 other countries, the Boston company had gone quiet last year. New Balance officials say one big reason is that they were told the Department of Defense would give them serious consideration for a contract to outfit recruits with athletic shoes. But no order has been placed, and New Balance officials say the Pentagon is intentionally delaying any purchase. New Balance is reviving its fight against the trade deal... The US government, of course, is insisting the issue of a contract is entirely separate from the TPP, but New Balance said an explicit offer was made. The company notes that while most of the uniform worn by the military is American made, there has always been an exception for sneakers because so few were actually fully made in the US. New Balance apparently decided to change that in hopes of getting a government contract, and the administration more or less said that this would work if New Balance shut up about opposing the TPP: In 2014, the Pentagon relented. With competition among US manufacturers, officials said they were ready to consider domestically made shoes. LeBretton said a representative for the Obama administration then asked New Balance to accept a compromise version of the trade deal, partly in exchange for a pledge of help getting the Department the Defense to expedite the purchase of US-made shoes. The Globe claims that the Defense Department says the reason that it didn't give New Balance a deal was because its shoes weren't durable or cheap enough, but even if that's true, the very idea that the government more or less tried to buy off the company's opposition to the TPP seems highly questionable. Of course, I wonder, should the TPP get ratified and should the Defense Department then agree that it will only buy American made sneakers... one wonders if Vietnamese sneaker makers would then have an ISDS corporate sovereignty case against the US government? After all, it would be harming "future profits" that the Vietnamese sneaker-makers would have been expecting, and a "buy American" rule could clearly be seen as a non-tariff trade barrier to foreign goods, no?Permalink | Comments | Email This Story

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The sleekly styled Pebble Time Smartwatch has everything you want from a smartwatch without having to break the bank to get it. With its unique timeline interface, Pebble displays everything you care about (notifications, calendar events, weather, sports scores, news & more) in any easy-to-view timeline. It can track your activity and sleep patterns and can be worn for 7 days before needing a charge. It is compatible with iPhone 4S and later running at least IOS 8, and all Android devices running ice cream sandwich and later, and is available for $119.99 in the Techdirt Deals Store. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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We've already written a bit about the technologically ignorant bill from Senators Richard Burr and Dianne Feinstein that basically outlaws any encryption system that doesn't include backdoors for law enforcement. However, there are still some points in the bill that have left some folks scratching their heads. In particular, the lack of any penalty at all has some commenters wondering what the bill actually does. The bill both says that it doesn't "require or prohibit any specific design or operating system," but at the same time does require that anyone offering or supporting any kind of encryption be able to pass along unencrypted versions of the communication to law enforcement when presented with a legitimate court order or warrant (so not just a warrant...). As Orin Kerr noted, the bill mandates assistance, rather than using the more typical requirement of "reasonable" assistance. Instead, the bill is explicit that if you receive an order, you have to hand over the unencrypted data. The law specifically reads: "a covered entity that receives a court order from a government for information or data shall provide such information or data to such government in an intelligible format; or provide such technical assistance as is necessary to obtain such information or data in an intelligible format or to achieve the purpose of the court order." No best efforts. No reasonable assistance in the face of situations where that can't be done. The bill requires that you provide unencrypted data. Or else. Or else... what? The bill includes absolutely nothing on the penalties for failing to comply. This has led some on Twitter (including a guy I've been discussing it with who deletes all his tweets after tweeting them or I'd post them here...) to argue that the bill actually promotes encryption, since if a company can't provide unencrypted data, then the law has no impact. That's not true however. First of all, both Burr and Feinstein have been going on and on about demanding backdoors and whining about encryption for a long time. There's no way they wrote a bill that would support stronger encryption. Second, all of the rest of the language in the bill includes various statements like "shall provide" and other items that leave no wiggle room at all. Providing any kind of encryption without providing a backdoor for law enforcement would violate this law. So... why the lack of penalties? There are a few theories floating around. (1) This is still a draft of the bill. Those penalties will be added in later, after everyone's fought over the rest of the bill. Leaving out the penalties at this stage lets Feinstein and Burr focus the fight. (2) The bill will allow courts to claim that any company not providing such unencrypted text is in contempt and issue increasingly large fines that make it practically impossible to be a business in the US without providing backdoors to encryption and basically demolishing everyone's security. Neither option is appealing. This bill is bad in so many ways and no one's focusing on the punishment part because it's not even in the bill yet -- but make no mistake -- if this bill passes, there will be punishment (potentially severe punishment) for any company that wants to use actual encryption.Permalink | Comments | Email This Story

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I guess the real accomplishment of "The Most Transparent Administration" is how much it exposed Americans to domestic surveillance. I suppose that's its own form of "transparency." Just Security's Patrick Toomey notes that this administration has embraced legal theories wilder and more expansive than those presented by John Yoo on behalf of the Bush administration. Yoo, despite his willingness to treat the collection of communications like a DUI checkpoint for terrorism, had his limits. This administration, however, has seen those limits and lowered them. Like Yoo, the Obama administration has argued that Americans have a “greatly reduced” expectation of privacy in their international communications — so diminished, in fact, that no warrant is necessary for the government to intercept and search those communications. That might come as a surprise to the millions of Americans who regularly engage in personal or confidential communications with family, friends, business associates, and others overseas. When you pick up the phone to call a family member abroad, there is no reason to believe that your communication is any less private than calling a friend across town. The Supreme Court has certainly never said any such thing. Indeed, Yoo eventually admitted in his memo that the case law did not support the suspicionless interception of “the contents of telephone or other electronic communication[s]” — though he then proceeded to ignore his own conclusion. But that has not stopped the government from making the same claims in the Section 702 cases now moving through the courts. The government has embraced Yoo’s position, arguing that the privacy interests of US persons in international communications are “significantly diminished, if not completely eliminated,” when those communications are sent to or from foreigners abroad. Going further, this administration has decided to believe that any communication traveling outside of US borders is a communication with a foreigner, even if it's a domestic-to-domestic conversation taking an extremely circuitous route. If it crosses one of the overseas backbones the NSA has tapped into, it's fair game, no matter who the ultimate recipient of the communication actually is, or where they reside. This is the NSA's upstream collection under Section 702, which now goes much, much further than Yoo's version ever did. Toomey notes Yoo assured FISA Court Judge Kollar-Cotelly that this collection was not the Bush administration giving itself permission to seize and search every international communication. But that's exactly how the Obama administration has chosen to interpret its powers. As the ACLU recently explained in Wikimedia v. NSA, this surveillance is the digital analogue of having a government agent open every letter that comes through a mail processing center to read its contents before determining which letters to keep. In other words, today the Obama administration is defending surveillance that was a bridge too far for even John Yoo. So, John Yoo, the architect of what was once thought to be the greatest expansion of government surveillance powers, is now just the guy who laid the foundation for the intelligence community today. What the Bush administration considered to be too far is the Obama administration's starting point. Considering the breathtaking reach of the NSA under this administration, it's hardly surprising a few leakers have taken it upon themselves to reveal to the public what's being done to them by their government in the name of national security. Permalink | Comments | Email This Story

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In recent weeks, we've noted how ISPs are now moving beyond broadband usage caps and overage fees, and have begun charging users a $30-$35 premium if they want to avoid usage caps entirely. While the industry often dresses this up as everything from "improved flexibility and choice" to something necessary for the sake of fairness, it is, quite simply, an aggressive rate hike on uncompetitive markets. Users are being socked with dramatic new limits and fees -- simply because most have no real competitors to flee to. Entirely uncoincidentally, the House is now pushing for new legislation that would hamstring the FCC's ability to regulate broadband rates. The "No Rate Regulation of Broadband Internet Access Act" (pdf) is set to be debated this week in Congress, and would, according to a press release by the Energy and Commerce Committee, prevent the FCC from regulating rates charged for broadband Internet, "just as the administration promised when they reclassified access to the Internet as a utility under Title II of the Communications Act." Except according to a Medium post by attorney Harold Feld, the bill tries to use a special definition of "rate regulation" to ban the FCC from, well, doing much of anything:"H.R. 2666’s language would protect broadband providers from any “review” or “enforcement” of their prices, and prevent the FCC from even “declaring” — let alone addressing — any broadband prices or fees as even “unreasonable.” To make this even more clear, the bill prohibits the FCC from reviewing any prices, fees, or overages “regardless of any other provision of law.” That goes way beyond the FCC’s traditional rate setting authority. “Any other provision of law” includes the FCC’s mandate to promote competition and its consumer protection authority."So basically, the House, at the behest of large ISPs, is looking to further neuter the FCC. Not only so it can't protect consumers from usage caps and price gouging, but to try and derail the FCC's plan to expand consumer broadband privacy protections, or say, open up the cable set top box to additional competition. It should probably be reiterated that while the FCC says it does have the authority to regulate some rates under Title II and its net neutrality rules (preventing "paid prioritization," for example), the agency so far has shown no interest in really doing so. Whether it's a $300 million national broadband map that fails to show broadband prices (at industry behest), to the agency's continued blind eye to hidden fees, usage caps and zero rating, the FCC has made it abundantly clear that it finds a large amount of the broadband industry's current price gouging just "creative experimentation." But while the FCC hasn't done much about broadband prices directly, it has tried to shore up competition in the market so prices drop organically, including support for municipal broadband. Between this, the agency's push for privacy rules, and net neutrality, the House has made it abundantly clear it plans to punish the FCC for standing up to giant ISPs like AT&T, Verizon and Comcast. As such, if it isn't a series of pointless, FCC "fact finding" hearings, it's yet another bill like this one that aims to tie the FCC's arms securely behind its back. As it stands, there remain just two serious ways to roll back net neutrality and the FCC's decision to reclassify ISPs as common carriers under Title II: win the election and gut the FCC and its decision, or win the ongoing lawsuits against the FCC (a ruling on that front is expected soon). The House likely knows this, but is apparently keen to try and earn its telecom campaign contributions by putting on one hell of a taxpayer-funded show.Permalink | Comments | Email This Story

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Setting up fake social media accounts: law enforcement officers do it, even though it's the same sort of activity they arrest others for. The DEA does it, but it ended up setting the DOJ taxpayers back $134,000. Generally, it's a bad idea. There's nothing inherently private about public social media accounts, but lines are crossed when law enforcement sets up fake accounts and interacts with suspects, rather than just quietly lurking and snagging passing public communications. An assistant county prosecutor assigned to a murder case decided he could crack the case by pretending to be the jilted lover of one of the suspects. The attorney, Aaron Brockler, made several questionable moves on his way to being fired and having his license to practice law suspended by the Supreme Court of Ohio. (h/t Courthouse News) Brockler first took advantage of the fact that calls from jails are routinely recorded. As part of his investigation, Brockler listened to recordings of telephone calls that Dunn had made from the Cuyahoga County Jail. On the morning of December 14, 2012, he listened to a recording of a heated conversation in which Dunn and Mossor argued over Dunn’s fear that Mossor would not be a reliable witness and Mossor’s belief that Dunn had not been faithful to her. Mossor suspected that Dunn had had a romantic relationship with a woman named “Taisha” and indicated that if her suspicion was true, she would end her relationship with Dunn. Believing that Mossor’s relationship with Dunn was near a breaking point, Brockler saw an opportunity to exploit her feelings of distrust and get her to recant her support for Dunn. Using this info, Brockler set up a fake Facebook account under the name of "Taisha Little." He populated his friends list with people linked to Dunn via HIS Facebook page, as well as info gathered from phone call recordings. Brockler did attempt to coordinate with local law enforcement in this effort, but apparently felt they weren't moving fast enough. So, he struck out on his own, initiating Facebook chats with Dunn's girlfriend, claiming his alter ego had an 18-month-old child fathered by the suspect. He also made comments about the credibility of Dunn's alibi, hoping to receive verification that it was false. After several hours of this, Brockler felt the two people he was chatting with were growing suspicious, so he shut down the account and deleted. He also printed out copies of his conversations. Of course, all of this was done with the purest of intentions, including the withholding of this information from defense counsel. He testified that he printed copies of the chats and placed them in a file—with the intent to provide copies to defense counsel—before he deleted the account, but those copies were never found. He attended five pretrial conferences from January through April 2013 but did not disclose the circumstances or content of his conversations with Mossor or Lewis. [...] Brockler also disclosed that he might need to be a witness at trial because both Mossor and Lewis had told him they would not support Dunn’s alibi, although they were afraid to say so in court. Brockler did not disclose how he obtained that information. Brockler went on medical leave and the files were turned over to another assistant prosecutor. This one immediately turned over the information to the defense counsel and began to investigate "Taisha Little." Brockler did not inform the new assistant prosecutor that he was "Taisha Little" until three weeks later. Brockler was fired shortly thereafter. He defended himself in an interview with the Cleveland Plain Dealer, stating he had really done nothing wrong. The subsequently published article and broadcasted interview included statements by Brockler—which he does not dispute—to the effect that (1) prosecutors have long engaged in ruses to obtain the truth, (2) his firing was an overreaction because he only did what the police should have done, (3) he engaged in an investigative ruse to uncover the truth and keep a murderer behind bars, (4) the public was better off because of his actions, (5) if he had not taken these actions, a murderer might be walking the streets, (6) he promised the victim’s mother that he would not let a horrible killer walk out of the courthouse to kill someone else, and (7) McGinty chose to follow the technical rules of ethics, while he chose to protect the public. He then went to the disciplinary board and asked it to carve out an exception for his misconduct. The board refused to do so. Instead, the board found that Prof.Cond.R. 8.4(c) requires an assistant prosecutor to refrain from dishonesty, fraud, deceit, or misrepresentation when personally engaging in investigatory activity and that Brockler’s Facebook ruse therefore violated the rule. Furthermore, the board found Brockler's misconduct aggravated by several factors. [T]he board found that Brockler’s deceptions and misrepresentations in his contacts with Mossor and Lewis resulted in multiple violations of Prof.Cond.R. 8.4(c) and (d), though it treated them as a single instance of misconduct. See Gov.Bar R. V(13)(B)(4). The board also found that his extrajudicial statements to the media, deflecting blame for his own misconduct to the police department and the prosecutor’s office, undermined the public’s confidence in the criminal-justice process. Unfortunately, the end result is a slap on the wrist: a 12-month suspension, fully-stayed, which means Brockler can continue to practice law during the duration of his "punishment." He may not be able to do this at his "dream job" (the county prosecutor's office) but he's not prevented from earning income as an attorney either. Two judges dissented, however. Hearteningly, they're not concerned the court has come down too heavily on the disgraced former prosecutor. Instead, they're both of the opinion the punishment is far, far too light. Chief Justice O'Connor: By imposing a marginal sanction—a fully stayed one-year suspension—on respondent, Aaron Brockler, the majority minimizes his significant ethical violations and does so based upon a myopic view of the Rules of Professional Conduct. The men and women who serve as prosecutors in this state are authorized to enforce the law and administer justice, one of the noblest pursuits an attorney can enjoy. Accordingly, they must meet or exceed the highest ethical standards imposed on our profession. Given the significant ethical violations Brockler committed, I cannot implicitly condone the imposition of a negligible sanction for his egregious misconduct. O'Connor (along with two other dissenting judges) finds a much harsher punishment better fits Brockler's wrongdoing. Because I believe that the court’s sanction in this case is entirely incongruous with Brockler’s behavior, I cannot subscribe to it. For his ethical misdeeds, I would indefinitely suspend Brockler’s license to practice law in the state of Ohio. In Brockler's own words, the ends justifies the means. Fortunately, the disciplinary board and the state Supreme Court didn't agree with him. Unfortunately, the majority decision makes it clear the state is willing to put up with a lot of misconduct before it will consider someone unfit to practice law. Permalink | Comments | Email This Story

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You may recall a story from a few years back involving self-proclaimed "corporate virtue advisor" Dov Seidman and his quest to sue Chobani for using the phrase "How food is made matters" and the social media hashtag #howmatters. Seidman's problem with all of this? He had a trademark registered for the word "how." Yeah, seriously. Seidman claimed that his super-awesome transformational use of "how" as a noun instead of a verb had been trademarked and that this somehow meant that a company that sells yogurt couldn't use the word in any way similar. Well, it turns out that Seidman has since sought to drop that case, because he claims that Chobani is no longer using the hashtag and slogan, so all is fine in the world again. Except that he's now suing his own agent for breach of fiduciary duty, because that Chobani campaign came out of an advertising company called Droga5, in which the agent's agency, William Morris Endeavor, holds partial ownership. "WME actively encouraged Droga5 to use WME's own client's intellectual property to land this lucrative advertising contract with Chobani and then to create a campaign that would make use of, and dilute the value of, its client's intellectual property — all without the knowledge or permission of its client," states the complaint filed Monday. "Seidman's use of 'how' as a noun has given it a distinct meaning, expressing the values-based ethos of individual and organizational behavior at the center of his how philosophy," states the complaint. "Phrases such as 'how is the answer,' 'how matters,' and 'get your hows right' are uniquely identified with Seidman." The suit claims Seidman's agent, WME partner Jay Mandel, not only knew of his philosophy but actually helped him develop it over a decade of working together. Seidman says Mandel also failed to disclose WME's involvement in the Chobani campaign when Seidman approached him after it launched. Okay, let's summarize so you can get a clear understanding of what's occurring here. Seidman has a federal trademark registration on the word "how" as a noun for his business, which is corporate virtue advising. Consulting, in other words. Chobani uses the word "how" in a way that Seidman declares to be infringing, then stops, placating him. Seidman's agent helped Seidman come up with this transformational use of the word "how" and works for a company that holds a 49 percent stake in the advertising agency that produced the Chobani ad he was previously upset about. The claim is that the agent used Seidman's intellectual property by pushing the ad agency to use it, getting the Chobani campaign contract and enriching the agency. Except we're still talking about the word "how" here. And Seidman and Chobani, who actually used the word in the marketplace, aren't in remotely the same industries. If the claim about breach of fiduciary responsibility centers on Seidman's trademark property, and it does, then there's nothing here, because there was no infringement to be had. As for the fiduciary responsibility bit, it's obvious that Chobani wanted an ad campaign, not someone to advise them on corporate virtue, so I'm not clear what Seidman is even talking about here. And yet Seidman must share the blame for this stupid, idiotic mess with the USPTO, who granted a federal trademark on the word "how". Were it to have never done so, absolutely none of this nonsense would be occurring. Trademarking the word "how" sounds like one of the sarcastic exaggerations we see in the comments section whenever we write about a slightly less abusive trademark case. But, with the culture of permission fermenting, parody has given way to real life examples of just how ridiculous this has all become. Permalink | Comments | Email This Story

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We've seen space travel getting cheaper over time, but it's still pretty expensive to get a person into low earth orbit. Some billionaires are optimistic that space travel will be accessible to more than just astronauts and other billionaires, and we're seeing some progress. Reusable rockets and more affordable space stations could lead to some pretty cool space-based vacations -- if you remember to bring your SPF infinity sunblock. SpaceX has successfully landed one of its rockets on a barge at sea. This is only the second time the company has been able to land a rocket safely, but it shows that it can be done. The next step is actually reusing one of these rockets (for less than the cost of building a new one). [url] The Bigelow Expandable Activity Module (BEAM) is going to be added to the International Space Station, and this inflatable habitat might point the way towards cheaper space stations. There are only a few ways to build space stations: launch large spaceworthy structures into orbit (say, in the bay of a space shuttle or actually on top of a rocket), bring up the pieces and put them together in space, or some combination of pre-fab structures and in-space construction. Inflatable space stations make it slightly easier to construct large structures in space -- and we'll see how spaceworthy they are. [url] A metal composite foam material might be lightweight and strong enough to protect people from dangerous radiation -- AND bullets, too. These materials can block X-rays, gamma rays and neutron radiation better (compared to bulk metals of the same weight), but they're not ready for trips to Mars just yet. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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Multiple government agencies have gone all-in on cybersecurity. CISA was pushed through late last year -- dumped into the back pages of a "must pass" omnibus spending bill. Just like that, the government expanded its surveillance power and cleared its cyberthreat inboxes to make way for all the information non-governmental entities might want to share with it. It promised to share right back -- making this all equitable -- but no one really believed the government would give as much as it would take. Right on cue, a university heavily involved in scientific research says the government really isn't interested in sharing information. Virginia Tech is no stranger to hackers. Randy Marchany, the school's chief information security officer, says he assumes the attackers are already inside the networks. The university's attack space includes power generation networks, campus police databases, research files, student records and retail payment systems, among other sensitive digital operations, he said. [...] Marchany lamented what he says has been a growing trend during the last couple of years of the government restricting information about ongoing hack campaigns — information that could help his staff identify the suspicious activity they already glimpse on systems. "The federal government now has this tendency to try to put a classified label on everything, and so I have to sometimes go to a dark room and have people hand me information that I can only look at," he said. The government wants to have its secrecy and eat its portion of the "sharing" cake, too. Oh, it may be "sharing" in the sense that it's not completely withholding some information pertinent to its partners' interests. But it doesn't share information. It holds onto the information, delivers it only on its terms, and any entities it does decide to share info with should consider themselves lucky its hasn't decided the information is so "sensitive" as to be withheld completely. Not only will sharing partners need to pass intrusive background checks and obtain security clearances, but they'll also need to have superhuman retention skills, seeing as they aren't allowed to make copies or view information for any longer than the government feels is necessary. Marchany notes that information he's been allowed to glance at in underlit rooms has been useful in correlating unusual events witnessed on Virginia Tech's end, but still feels the government could do a much better job disseminating information. This is what tech companies and other entities feared: that the government's idea of sharing was mostly one-way. Private entities would be considered too insecure to trust with the government's threat info, but are expected to pass along anything of interest to a government which has proven multiple times it's far less secure than its sharing partners. Permalink | Comments | Email This Story

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With the world mocking the sheer ignorance of their anti-encryption bill, Senators Richard Burr and Dianne Feinstein are doubling down by planning a staff "briefing" on the issue of "going dark" with a panel that is made up entirely of law enforcement folks. As far as we can tell, it hasn't been announced publicly, but an emailed announcement was forwarded to us, in which they announce the "briefing" (notably not a "hearing") on "barriers to law enforcement’s ability to lawfully access the electronic evidence they need to identify suspects, solve crimes, exonerate the innocent and protect communities from further crime." The idea here is to convince others in Congress to support their ridiculous bill by gathering a bunch of staffers and scaring them with bogeyman stories of "encryption caused a crime wave!" As such, it's no surprise that the panelists aren't just weighted heavily in one direction, they're practically flipping the boat. Everyone on the panel comes from the same perspective, and will lay out of the argument for "encryption bad!" PANELISTS Chief Terrence M. Cunningham President, International Association of Chiefs of Police Wellesley, MA, Police Department Hillar C. Moore, III District Attorney, 19th Judicial District Attorney's Office Baton Rouge, LA Sheriff James Alton Cannon, Jr. Charleston County, SC, Sheriff's Office Chief Commissioner Patrick Stevens Chief Commissioner, Liaison Officer for the Belgian Federal Police to the United States, Canada, Mexico, and the Bahamas Colonel Joseph R. Fuentes Superintendent, New Jersey State Police As Marcy Wheeler points out, it does seem odd that these two Senators who are on the Senate Intelligence Committee are pushing so strongly on this issue, when the focus on law enforcement should put it squarely in the Senate Judiciary Committee. In fact, it's not even clear that this briefing is officially Intelligence Committee business at all, but rather just a chance for Burr and Feinsten to push their story from the one side that's already been the most vocal in trying to turn something that isn't actually a problem into something that they insist must be a problem. The briefing is scheduled to be held this coming Wednesday morning in the Capitol Visitor Center and will be the Senators latest effort to scare the logic out of their colleagues.Permalink | Comments | Email This Story

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This decision was handed down by the Supreme Court more than a week ago, but it's worth reporting. Late last year, the Court decided to take a look at an issue related to asset forfeiture and the implications it has for the Sixth Amendment. In this case, the defendant, Sila Luis, argued that the government's seizure of her assets -- pre-conviction -- denied her the right to defend herself fully against its charges. She could still use an attorney, but it would have to be one appointed to her or one willing to work for deferred compensation (in the hopes that assets would eventually be returned). The problem here isn't a small one. The government has the power to seize assets pre-conviction using nothing more than a grand jury's indictment as the basis. This is done to provide some sort of assurance that the accused can compensate those wronged (as well as pay any fines, fees, etc. associated with the conviction) when the trial is concluded. But this assumes the government will win its case, even before it heads to trial. And, by freezing/seizing funds, the government can increase the chances of a decision in its favor by limiting the defendant's choice of representation. The government doesn't mind playing with a stacked deck and it justifies this hobbling of defendants by pointing out that earned cash is almost impossible to separate from cash acquired through criminal means. It's correct, of course, but it makes this assertion before a verdict has been reached -- presuming both the defendant and their money to be guilty. The government -- along with the dissenting justices -- argue that allowing defendants to pay for representation out of funds on hand will only encourage criminals to spend ill-gotten gains faster in hopes of denying sought retribution while availing itself of the most expensive defense lawyers they can afford. While there undoubtedly is a chance something like that will happen, the alternative -- seriously diminishing defendants' representation options -- is pretty much a violation of their Sixth Amendment rights. The Supreme Court -- in a 5-3 decision -- noted that the seizure of untainted assets is a violation of Sixth Amendment rights when it prevents defendants from seeking the best possible representation. It's somewhat of a limited win, as it relies on the specifics of this case, where seized assets were deemed by the government to be "untainted." That didn't stop it from seizing them, though, as it was holding them for expected future repatriation when Luis was found guilty. That it did so before even going to trial is where the problem lies. [T]he nature of the competing interests argues against this kind of court order. On the one side we find, as we have previously explained, a Sixth Amendment right to assistance of counsel that is a fundamental constituent of due process of law. And that right includes “the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire.” The order at issue in this case would seriously undermine that constitutional right. On the other side we find interests that include the Government’s contingent interest in securing its punishment of choice (namely, criminal forfeiture) as well as the victims’ interest in securing restitution (notably, from funds belonging to the defendant, not the victims). While these interests are important, to deny the Government the order it requests will not inevitably undermine them, for, at least sometimes, the defendant may possess other assets—say, “tainted” property—that might be used for forfeitures and restitution.. Nor do the interests in obtaining payment of a criminal forfeiture or restitution order enjoy constitutional protection. Rather, despite their importance, compared to the right to counsel of choice, these interests would seem to lie somewhat further from the heart of a fair, effective criminal justice system. It seems to be a very obvious conclusion. As legal blog Grand Jury Target points out, the point at which the assets are seized is far in advance of the guilty verdict the government believes it will obtain. There is a very real and very important difference between seizing assets that are tainted and assets that are not tainted when the seizure happens before trial: At that point, the government has proven nothing. It has merely run the false “gauntlet” of a grand jury. Before a fact-finder has heard the case, the defendant should have every opportunity to hire her counsel of choice to defend against the indictment. As Charles Pierce noted at Esquire, this decision is one the Supreme Court shouldn't even have had to reach. On Wednesday, the Supreme Court did a thing that my every instinct tells me that the Supreme Court shouldn't have to do. But apparently, the United States, a country with a Bill of Rights that you can buy at the gift shoppe on your way out, needed clarification on the subject of whether or not you can pauperize a criminal defendant as a way of making sure this person's Sixth Amendment right to counsel is a sad and tattered joke. The dissenting opinions seem to believe a sad and tattered joke is better than the alternative: criminal defendants blowing through "guilty money" while socking away the legit stuff in order to mount a better defense in the future. The dissent envisions a world where the government wins every case, so it makes no difference whether it seizes the money pre- or post-conviction, just so long as no one accused of anything avails themselves of the best defense possible. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
One of the more darkly entertaining aspects of the massive Panama Leaks has been watching exposed politicians attempting to reconcile past promises to get tougher on financial wrongdoers with their own tax-dodging efforts. UK Prime Minister David Cameron has spent several years in crackdown mode, as the New York Times notes. Going all the way back to 2012, Cameron has made a habit of promising better regulation, stricter enforcement and harsher penalties for tax-dodging corporations while selling himself to voters and small businesses. He also singled out individuals, like comedian Jimmy Carr, for his use of "dodgy tax-avoiding schemes." He also promised to close a loophole that allowed wealthy UK residents to avoid paying taxes and suggested those that did should face prison time. He capped it all off with this 2015 election pledge: “Tackling tax evasion and aggressive tax avoidance and tax planning is an important part of our long-term economic plan,” Mr. Cameron said ahead of his Conservative Party’s electoral victory. He has repeatedly said that “no government has done more than this one to crack down on tax evasion and aggressive tax avoidance.” Obviously, things are different when it's the Prime Minister doing the tax dodging. His first reaction, when asked about holdings he inherited from his late father, was to develop a sudden interest in privacy. Asked on Monday whether she could confirm that no family money was still invested in the fund, Mr Cameron's spokeswoman said: "That is a private matter". To his credit, Cameron swiftly walked back that defensive statement. He pointed out that, yes, he did own some shares in an offshore holding scheme as the result of an inheritance, but sold them off in 2010. His wife still owns shares in an offshore trust, but those are declared yearly on her tax returns. Better yet, he has acknowledged that his first response was the wrong response. Addressing the Tories' spring forum, he said he was to blame for the handling of revelations about his holding in his late father's offshore fund. Days after questions were first raised, the PM admitted this week he had owned and later sold units in the fund. Cameron has followed through on his promise to release his tax returns so they can be examined for any other irregularities. However, Cameron's openness is not wholehearted. What has been released only shows his tax payments since selling off his shares in the offshore holding company. Pre-2010 documents -- when he still may have benefitted from the tax shelter -- have not been released. He also hasn't extended his transparency to cover his advisors or members of his party, so the party's tough stance on tax dodging still may only mostly extend outward. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
How do we know whether information is classified? Well, because the government tells us it is. But what does that mean? It turns out it means whatever the government wants it to mean, subject to time, place, personnel involved, etc. Classified material handed over to movie producers by Leon Panetta? Probably not a big deal. Classified material handed over to journalists by whistleblowers? That's a prosecutin'. No one explains this slippery approach to classification better than President Obama, who was gamely trying to answer questions about an ongoing investigation (Hillary Clinton and her famous emails) during an interview with Fox News. “There’s classified, and then there’s classified,” the president said. That clears everything up. Clinton sent, received and stored classified info on a private email server. This cannot be disputed. But some classified info is more equal than others. It all depends on who has it and how the current administration feels about that person. It's also about how the current administration feels about whistleblowers. It doesn't like them. So, Clinton playing fast and loose with classified info is subject to an entirely different standard than the large number of whistleblowers the Obama administration has prosecuted over the years. Obama, again, digs deep into his feels to provide a technical explanation of this dichotomy. President Obama said in an interview broadcast on Sunday that while Hillary Clinton had been careless in managing her emails as secretary of state, she would never intentionally do anything to endanger the country. I believe this is true. Hillary Clinton does love this country -- or at least the part of its she's intimately familiar with: the highly-insulated Beltway interior. She certainly would never do anything intentionally to harm her position of power or her chances of a November promotion. We can tell how much she wants to keep the country safe by how much effort she's put into keeping her communications out of the hands of the public. This is the Administration Way. There's nothing more dangerous to the US government than transparency and accountability. Clinton knows this. Obama definitely knows this. The problem is, as Trevor Timm points out, violating the Espionage Act doesn't require an intent to harm. Handling classified material carelessly can open one up to charges… provided you're not part of the government's inner circle. Obama's interview also explained why government agencies redact or withhold information already in the public domain. It all traces back to "classified" being an almost-entirely subjective term when deployed by the government. “There’s stuff that is really top-secret top-secret, and there’s stuff that is being presented to the president or the secretary of state that you might not want on the transom, or going out over the wire, but is basically stuff that you could get in open-source.” Classification: all things to all people, as long as it allows officials and agencies to control narratives and disrupt public accountability. No matter what the FBI concludes from its investigation into Hillary Clinton, Obama has already granted her a pardon. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
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posted 22 days ago on techdirt
Brian Bergstein should know better. As the executive editor of the MIT Technology Review with fifteen years of technology journalism under his belt, he really shouldn't be asking "What if Apple is Wrong?" -- at least not in the way he does. Bergstein glosses over the security implications of requiring phone manufacturers to hold the decryption keys for devices and services and instead presents his argument as an appeal to emotion. Those on Apple's side -- including Apple CEO Tim Cook -- are given only the briefest of nods before alarmists like Manhattan District Attorney Cy Vance are given the stage. Bergstein does at least ask an interesting question: what if exonerating evidence is locked up in a phone? But his test case for "What if Apple is wrong?" doesn't apply as well as he seems to hope it does. Devon Godfrey was killed in his apartment in 2010 -- and police arrested the wrong person. Somehow, Bergstein wants to blame the police screwing up on Apple. Investigators had only a week to pull evidence together to present to a grand jury. Some of that evidence happened to be located on a passcode-locked iPhone. But the evidence ultimately compiled and used has nearly nothing to do with that locked phone. Cell phones had been found in Godfrey’s apartment, including an iPhone that was locked by its passcode. Arnold recalls doing what he always did in homicides back then: he obtained a search warrant for the phone and put a detective on a plane to Cupertino, California. The detective would wait in Apple’s headquarters and return with the data Arnold needed. Meanwhile, investigators looked more closely at the apartment building’s surveillance video, and Arnold examined records sent by Godfrey’s wireless carrier of when calls and texts were last made on the phones. With this new evidence in hand, the case suddenly looked quite different. From the wireless carrier, Arnold saw that someone—presumably Godfrey—had sent a text from the iPhone at a certain time. But the recipient of that text had used a disposable “burner” phone not registered under a true name. So who was it? The iPhone itself had the crucial clue. Arnold could see that Godfrey referred to the person by a nickname. People who knew Godfrey helped police identify the man who went by that nickname. It was not the man who was originally arrested. It was Rafael Rosario—who also appeared in the apartment surveillance footage. Rosario confessed and later pleaded guilty. A text message and a contact list, both of which are usually backed up to cloud storage, where they can be accessed without cracking the phone or breaking its encryption. As James Comey himself has pointed out while making an argument against Apple's stance in several ongoing All Writs-involved cases, law enforcement can access iCloud contents without breaking phone encryption. “Today, Apple encrypts the iCloud but decrypts it in response to court orders,” he said. “So are they materially insecure because of that?” Comey later reiterated this point, saying, “I see Apple today encrypting the iCloud and decrypting it in response to court orders. Is there a hole in their code?” The frequency of the backups will vary from person to person, but this still gives investigators access to plenty of information supposedly "stored" in an uncrackable phone. From there, the argument against Apple only gets worse, as the arguments themselves are sourced from the sort of people who'd rather see insecure devices than face obstacles when prosecuting suspects. Cy Vance, of course, has argued for outright encryption bans. Vance also loves a good appeal to emotion. Vance makes no dramatic claims about “going dark,” preferring a measured, lawyerly form of argument. When I tell him that his statistics on inaccessible iPhones don’t yet impress many computer scientists, he makes a facial expression equivalent to a shrug. “Some people have made the determination that not being able to do the kinds of work we do is an acceptable collateral damage,” he says. “I’m not sure how the individual would respond if someone close to him or her were the victim of a crime and the case might depend on the ability to access a phone. Easy to say, unless it’s you. We deal with a lot of victims. We talk to the people it’s actually happened to.” The assumption is that everyone loves locking cops out of phones until they're a crime victim. But this assertion is just as false as Comey's exaggerated laments about "going dark." But even in the most famous case involving a locked iPhone -- one that involved an apparent act of terrorism manifesting itself as a mass shooting -- the relatives of victims were far from unanimous in their support of the FBI's efforts. Two people who lost close relations in the shooting -- including a mother who lost her son -- spoke out against the FBI's efforts to undermine cell phone security. Her son was killed in the San Bernardino, Calif., massacre — but Carole Adams agrees with Apple that personal privacy trumps the feds’ demands for new software to break into iPhones, including the phone of her son’s killer. The mom of Robert Adams — a 40-year-old environmental health specialist who was shot dead by Syed Rizwan Farook and his wife — told The Post on Thursday that the constitutional right to privacy “is what makes America great to begin with.” Then there's the belief -- offered by Vance, Comey and others -- that law enforcement should have access to communications simply because they have a warrant. But what isn't acknowledged is that this is unprecedented access. Texting/messaging has largely replaced telephone calls and face-to-face conversations. Prior to the advent of texting, these conversations could not have been recorded without a wiretap warrant, which is a last resort effort that has to be carried out in real time. What law enforcement has access to now -- if not walled off by encryption -- are hundreds or thousands of conversations it never would have had access to before, even with a search warrant, which does not cover the interception of communications. And it's a technique that would be almost completely useless to investigators after a criminal act like a murder has been committed. The fact that a murder victim had a phone in the house would have prompted detectives to look at call records -- something they can still do without breaking a phone's encryption. What was said during those phone calls would still remain a mystery, warrant or no. So, law enforcement isn't as far behind technology as it likes to pretend it is. Bergstein, along with Lawfare's Susan Hennessey (who Bergstein quotes), both claim a corporation can't possibly decide what's best for Americans. So is Apple ultimately fighting to uphold personal privacy and civil liberties? Or is it fighting for the right to sell any kind of phone it thinks its customers want while other people deal with the negative consequences? If it’s the latter, that’s understandable; like any public company, Apple is obligated to maximize its value to its shareholders. But society is not necessarily best served by letting Apple make whatever phones are optimal for its chosen business strategy, which is to create a shiny mobile vault that people will trust with every aspect of their lives. But somehow they both feel it's perfectly acceptable for another party with a vested interest in total access to make that same decision for Americans. Permalink | Comments | Email This Story

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