posted 27 days ago on techdirt
Let's say right upfront: if you are unaware, Shiva Ayyadurai is currently suing Techdirt for our posts concerning Ayyaduria's claims to have invented email. Ayyadurai's lawyer in this matter is Charles Harder, the lawyer who filed multiple lawsuits against Gawker, and is credited by many with forcing that company into bankruptcy and fire sale. Now Harder, on behalf of Ayyadurai, has sent a demand letter to try to have social media comments posted in response to the lawsuit against us taken down. We are writing about this -- despite the lawsuit against us -- because we believe it is important and we do not intend to have our own speech chilled. This is also why we believe it is so important to have a federal anti-SLAPP law in place, because the chance to chill speech with threats or actual litigation is not a hypothetical problem. It is very, very real. Harder's letter is to Diaspora, and it demands that certain posts by Roy Schestowitz be removed (which appears to have happened). Schestowitz is the guy behind the Techrights blog, which frequently covers issues related to things like free v. proprietary software and software patents. Harder's letter to Diaspora claims that Schestowitz's posts are defamatory, violate Diaspora's terms of service, and "constitute harassment and intentional infliction of emotional distress." Harder's letter makes the questionable claim that Diaspora itself is liable for Schestowitz's statements. There is tremendous caselaw on Section 230 of the CDA holding that a website cannot be held liable for speech made by users, so it's odd that Harder would argue otherwise, stating that the posts "qualify under the law to establish liability against you." One of the key reasons Section 230 of the CDA exists is to protect the freedom of expression of users, so that websites aren't pressured via legal threats to take down speech over fear of liability. That's why it grants full immunity. It is strange for an attorney as established as Harder to either not know this, or to misrepresent this. Elsewhere in the letter, he references Massachusetts law as applying, so it's not as though he's suggesting that some other jurisdiction outside the US applies. So, since Section 230 clearly applies, why would Charles Harder tell Diaspora that it is liable for these statements? Separately, Harder's letter concludes with the following statement: This letter and its contents are confidential, protected by copyright law, and not authorized for publication or dissemination. We have seen similar statements on legal letters in the past and they have generally been considered meaningless, at best. On the question of confidentiality/authorization for publication, that's not how it works. The recipient of such a letter has no obligation to not disseminate it or to ask for authorization without any prior agreement along those lines. You can't magically declare something confidential and ban anyone from sharing it. Furthermore, this is especially true when dealing with legal threat letters. While many lawyers put such language into these letters to try to scare recipients (and avoid a Streisand Effect over the attempt to silence speech), they serve no purpose other than intimidation. Separately, claims of copyright in takedown or cease & desist letters, while they do show up occasionally, are also generally considered to be overstatements of the law. First off, there are questions raised about whether or not general cease & desist threat letters have enough creativity to get any kind of copyright, but, more importantly, even if there were copyright on such a letter it would be a clear and obvious fair use case to be able to share them and distribute them publicly, as part of an effort to discuss how one has been threatened with questionable legal arguments. Either way, we believe that this fits a pattern of using legal threats and litigation to silence criticism of public figures. In an era when speaking truth to power is so important, we believe such actions need to be given attention, and need to be called out. We also think they demonstrate why we need much stronger anti-SLAPP laws, at both the state and federal level to protect people's right to speak out about public issues. If you agree, please call your elected representatives and ask them to support strong anti-SLAPP protections, like those found in the SPEAK FREE Act of 2015. Permalink | Comments | Email This Story

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AND NOW, A WORD FROM OUR NEW PRESIDENT: One of the fundamental rights of every American is to live in a safe community.1 A Trump Administration will empower our law enforcement officers to do their jobs and keep our streets free of crime and violence. The Trump Administration will be a law and order administration. President Trump will honor our men and women in uniform and will support their mission of protecting the public. The dangerous anti-police atmosphere in America is wrong. The Trump Administration will end it. 1 There is no such right. But that doesn't stop police defenders from invoking it, like this police union rep defending the burning of a toddler with a flashbang grenade: You have to draw the line between your right as a citizen to privacy and a community's right to live in a crime-free environment. You can't have them both. But is the "anti-police atmosphere" really "wrong?" Let's ask the federal government. DOJ Civil Rights Investigation of the Albuquerque PD, 2014 [O]fficers used deadly force against people who posed a minimal threat, including individuals who posed a threat only to themselves or who were unarmed. Officers also used deadly force in situations where the conduct of the officers heightened the danger and contributed to the need to use force… Officers also often used Tasers in dangerous situations. For example, officers fired Tasers numerous times at a man who had poured gasoline on himself. The Taser discharges set the man on fire, requiring another officer to extinguish the flames. This endangered all present. DOJ Investigation of the Cleveland PD, 2014 Officers also use less lethal force that is significantly out of proportion to the resistance encountered and officers too often escalate incidents with citizens instead of using effective and accepted tactics to de-escalate tension... At times, this force appears to have been applied as punishment for the person's earlier verbal or physical resistance to an officer's command, and is not based on a current threat posed by the person. This retaliatory use of force is not legally justified. Our review also revealed that officers use excessive force against individuals who are in mental health crisis or who may be unable to understand or comply with officers' commands, including when the individual is not suspected of having committed any crime at all. DOJ Civil Rights Investigation of the Ferguson PD, 2015 [O]fficers frequently make enforcement decisions based on what subjects say, or how they say it. Just as officers reflexively resort to arrest immediately upon noncompliance with their orders, whether lawful or not, they are quick to overreact to challenges and verbal slights. These incidents—sometimes called “contempt of cop” cases—are propelled by officers’ belief that arrest is an appropriate response to disrespect... FPD officers believe criticism and insolence are grounds for arrest, and... supervisors have condoned such unconstitutional policing... Many officers are quick to escalate encounters with subjects they perceive to be disobeying their orders or resisting arrest. They have come to rely on ECWs, specifically Tasers®, where less force—or no force at all—would do. They also release canines on unarmed subjects unreasonably and before attempting to use force less likely to cause injury. Some incidents of excessive force result from stops or arrests that have no basis in law. Others are punitive and retaliatory. DOJ Civil Rights Investigation of the Baltimore PD, 2016 Officers frequently resort to physical force when a subject does not immediately respond to verbal commands, even where the subject poses no imminent threat to the officer or others… BPD uses unreasonable force against people who present little or no threat to officers or others. Specifically, BPD uses excessive force against (1) individuals who are already restrained and under officers’ control and (2) individuals who are fleeing from officers and are not suspected of serious criminal offenses… DOJ Civil Rights Investigation of the Chicago PD, 2017 We found that officers engage in tactically unsound and unnecessary foot pursuits, and that these foot pursuits too often end with officers unreasonably shooting someone—including unarmed individuals. We found that officers shoot at vehicles without justification and in contradiction to CPD policy. We found further that officers exhibit poor discipline when discharging their weapons and engage in tactics that endanger themselves and public safety, including failing to await backup when they safely could and should; using unsound tactics in approaching vehicles; and using their own vehicles in a manner that is dangerous... We reviewed instances of CPD using less-lethal force, often Tasers, including in drive-stun mode, against people who posed no threat, and using unreasonable retaliatory force and unreasonable force against children. And here's more, in officers' own words. Here's an officer's greeting to a veteran who found his house surrounded after a mistaken suicide hotline call: I don’t have time to play this constitutional bullshit. We’re going to break down your door. You’re going to have to pay for a new door. Here's a police impound lot staffer, responding to the questions of a man whose car was unconstitutionally seized: When Mr. Zullo asked the defendant’s employee why he had to pay for the tow, the defendant’s employee told him that the tow cost was Mr. Zullo’s fault for exercising his rights. And here's an unnamed officer accosting someone for filming prisoner transfers from a public sidewalk: You must be doing something wrong if you invoke your rights. In exchange for a fake right, the Trump Administration is apparently willing to sacrifice citizens' actual rights. And hand out even more rights to an already-well-protected group. The only parts of the DOJ that don't actively make American law enforcement worse will be the first against the wall. At the Department of Justice, the blueprint calls for eliminating the Office of Community Oriented Policing Services, Violence Against Women Grants and the Legal Services Corporation and for reducing funding for its Civil Rights and its Environment and Natural Resources divisions. And if martial law's your kink, the Donald has you covered: If Chicago doesn't fix the horrible "carnage" going on, 228 shootings in 2017 with 42 killings (up 24% from 2016), I will send in the Feds! — Donald J. Trump (@realDonaldTrump) January 25, 2017 Until Americans are more willing to lift police morale, Trump's administration will ensure those in charge of morale-lifting beatings are fully-backed by the US government.Permalink | Comments | Email This Story

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Last year, the FCC unveiled a new plan that would require cable operators make their content available via app for third-party cable boxes and other streaming hardware. The goal was to bring a little added competition and openness to the clunky old cable box. But because the FCC's plan would have not only eroded the cable industry's walled-garden control over content -- but $20 billion in annual cable box rental fees -- the cable industry, broadcasters, Congressional allies and even the US Copyright Office got right to work lying about the plan -- repeatedly. Via an absolute sound wall of disinformation, these collective allies claimed that the FCC's plan would violate copyright (false), confuse consumers (nope), harm minorties (not true), result in skyrocketing piracy (well, no), hurt puppies, and tear a giant hole in the time-space continuum. With these claims popping up in hundreds of newspaper op-ed sections and websites nationwide, the FCC's plan soon ran into some stiff headwinds, with even some of the initial FCC supporters of the plan backing away from it. It was, frankly, one of the most effective lobbying and disinformation campaigns the cable industry has ever fielded. With the plan on life support, cable industry Congressional allies are now demanding the plan be formally put out of its misery. In a letter sent to new, ultra-industry friendly FCC boss Ajit Pai (pdf), Energy and Commerce Committee Chairman Greg Walden, Communications and Technology Subcommittee Chairman Marsha Blackburn, and Energy and Commerce Committee Vice Chairman Joe Barton urged Pai to close the docket on the set-top box proceeding. The letter unsurprisingly mirrors most of the falsehoods used by the cable industry to derail the plan, including the idea that bringing competition to the cable box would somehow hamper the cable industry's incredible knack for innovation: "The regulatory overhang of the set-top box regulation has cast a shadow over investment and innovation in traditional video programming delivery. [W]e urge you to close the proceeding and permit the industry to innovate and serve consumers free from the restrictions of a government-chosen platform." Of course the whole point of the FCC's plan was to avoid "chosen platforms" entirely, giving consumers the ability to view existing cable content on any device. The letter then proceeds to stroll casually through all of the lies the cable industry has been spreading about the plan for most of the last year, including claims that cable box competition would harm minorities, would harm copyright, and result in nobody making decent television programming ever again: "The FCC's proposal remains an unnecessary regulatory threat to the content creation and distribution industries. Content creators have argued that the proposed set-top box pan undermined their ability to protect copyrights and contracts. Without a clear indication that the Commission rejects this current proposal, content creators will be hesitant to invest in high-quality video programs. Minority programming creators, in particular, have argued that the Commission's proposal would rob them of audiences and the benefits of hard-negotiated contracts, ultimately limiting the availability of diverse programming to viewers." That is, once again, all nonsense. This has always been about control, not copyright. The FCC's plan kept all the same copyright protection and licensing contracts intact. And providing consumers access to more content viewing options over less expensive and more open hardware would have only helped minorities and consumers. Meanwhile the claim that art creation will cease to occur completely should ring a few memory bells for those familiar with the recording industry's long-standing myopic frontal assault on natural market evolution. For the record I never thought the cable box plan was the best use of the agency's time. To me, it seemed like streaming alternatives would force cable to adapt anyway, even if it would have probably taken half-a-decade longer without this FCC nudge. Instead, I thought the FCC would have been better served spending its regulatory calories on the real problem facing consumers and the streaming sector: the lack of broadband competition, and the resulting anti-competitive shenanigans this lack of competition helps cement -- from net neutrality violations to arbitrary and unnecessary broadband usage caps. Still, the government's willful participation in a massive disinformation and lobbying campaign whose sole function was to protect the cable industry revenues from competition is no less disgusting. Particularly the involvement of the US Copyright Office, and the failure of media outlets to clearly highlight the cable industry financial tethers obviously affixed to countless op-eds and media missives aimed at undermining what really was just an attempt to bring a little competition to a monopolized hardware market. Given that the new FCC boss is a former Verizon lawyer with a long, proud history of supporting incumbent ISPs and giant cable providers in absolutely everything -- it shouldn't be long before the FCC's cable box plan is finally put out of its misery. Following not-too-far behind should be the FCC's new broadband privacy rules, net neutrality, and, if Trump's advisors mean what they say, the FCC's role as a consumer watchdog itself. You know, to protect minorities, the children, and innovation. Permalink | Comments | Email This Story

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Last June, the FBI engaged in a public records lawsuit on its own behalf, seeking to prevent the city of Seattle from disclosing the locations of cameras the agency had mounted on city-owned utility poles. At the center of the case (for a short while) was privacy activist Phil Mocek, whose public records request for this information had spurred the FBI into action. In its arguments against the city's disclosure of this information, the government posited the novel theory that revealing the cameras' locations would violate the privacy of those the FBI was actively surveilling. Because of their close proximity to the subjects of surveillance, unauthorized disclosure of the locations of current or previously installed pole cameras can reasonably be expected to constitute an unwarranted invasion of privacy for those persons under investigation who have not yet been charged. It made several related arguments in hopes of keeping this info from being revealed, including a modified "mosaic" theory and that, while all surveillance cameras are nominally created equal, the FBI's were more equal than others. The FBI’s use of surveillance cameras must be distinguished from that of any other state or federal law enforcement agency on two principal grounds. First, in light of the FBI’s unique law enforcement and national security missions, there are particular sensitivities attached to the FBI’s use of surveillance equipment and the tradecraft associated with that use. Second, unlike the use of surveillance cameras by other entities, such as state and local governments or private businesses, which may operate video surveillance cameras in public locations to deter crime or promote public safety generally, the FBI utilizes surveillance cameras only in furtherance of an authorized investigation of a particular subject(s). The FBI presumably doesn't use its cameras to troll for criminal activity, at least according to its courtroom assertions. The City of Seattle, however, didn't feel particularly compelled to protect the location info of the FBI's parasitic contributions to its utility poles. Phil Mocek was removed from the FBI's suit, leaving the city to defend its proposed disclosure against the FBI's claims of a future full of unsurveilled criminal activity. The FBI's lawsuit has now wrapped up with the agency coming out on top. In a short order, federal judge Richard Jones finds the location of the FBI's publicly-mounted cameras to be deserving of ongoing secrecy. From the court's order [PDF]: The United States contends, and the Court is persuaded, that the requested information is (1) protected by the federal law enforcement privilege; (2) federal property, subject to the FBI’s right to control and prohibit the disclosure of the information by the City, absent the express authorization of the FBI; and (3) expressly protected from disclosure by the PRA. The Court is further persuaded that the disclosure of the requested information by the City will cause irreparable harm to important federal interests, namely, the ability to carry out effective investigations of criminal violations and national security threats. The order includes an injunction that prevents the city from releasing this information for the rest of forever, no matter the underlying circumstances. The City of Seattle, including any officers, agents and employees thereof, are hereby permanently enjoined from disclosing, in response to any request under the Washington PRA, or otherwise, the… information that it has received from the FBI, absent the express authorization to do so by the FBI… This includes information that seemingly would have no further law enforcement use, like those used in closed or fruitless investigations. Unless some of these cameras are located in sparsely-populated areas of the city, it's highly unlikely anyone could work their way backward from the camera's location to determine the identity of the surveillance targets. But the court sees it the way the FBI sees it: that anything it declares to be protected by "law enforcement privilege" should remain that way indefinitely. Permalink | Comments | Email This Story

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It sometimes takes a little while, but sooner or later most governments engaged in ham-fisted internet censorship get around to taking aim at VPNs. While VPNs certainly have numerous, legitimate uses (including an additional layer of security when on public WiFi), they're also great tools when it comes to preventing your government, ISP, or anybody else from nosily tracking your online behavior. As such, you'll see broadcasters or even Netflix quick to villify their use to enforce increasingly pointless geographical viewing restrictions. But such crackdowns are also a favorite tool of more restrictive governments, whether it's to protect VoIP revenue for state-run telecom monopolies, or to prevent users from tap-dancing around state-mandated filters or other restrictions. In China, home of the largest internet filter ever constructed, the Chinese government has ramped up its own long-standing war on VPNs by announcing a mass shutdown of VPN providers that have been helping citizens get around the great firewall. According to China's Ministry of Industry and Information Technology, all VPN providers now need prior government approval to operate, a move toward effectively making VPN use illegal entirely. Moving forward, all basic telecom providers and ISPs are barred from setting up or renting special lines (including VPNs) to carry out cross-border operations unless previously arranged. The new effort, which lasts till March 31, 2018, appears to focus more specifically on companies providing VPN services to individuals. This banning of a fundamental encryption tool is necessary, the Ministry said in a notice published to its website, to "strengthen cyberspace" and cure some ambiguous "disordered development" in the nation's telecom market: "China’s internet connection service market ... has signs of ­disordered development that ­require urgent regulation and governance,” the ministry said. The crackdown on unregulated internet connections aimed to "strengthen cyberspace information security management." This comes on the heels of Chinese police agencies increasingly declaring that censorship circumvention tools are terrorist software, a growing refrain among oppressive governments looking to justify draconian information crackdowns. Estimates have suggested that around 1-3% of China's 731 million internet users use tools like VPNs to access an uncensored internet feed. China's last major crackdown on VPN use was during last March's National People's Congress meeting in Beijing. This crackdown comes ahead of the once-every-five-year national congress of the Chinese Communist Party later this year, and the renewal of the Politburo Standing Committee in early 2018. Permalink | Comments | Email This Story

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As was hinted heavily three years ago, you might be better off securing your phone with a passcode than your fingerprint. While a fingerprint is definitely unique and (theoretically...) a better way to keep thieves and snoopers from breaking into your phone, it's not much help when it comes to your Fifth Amendment protections against self-incrimination. The Minnesota Appeals Court has ruled [PDF] that unlocking a phone with a fingerprint is no more "testimonial" than a blood draw, police lineup appearance, or even matching the description of a suspected criminal. (h/t Orin Kerr) Diamond relies on In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335 (11th Cir. 2012), to support his argument that supplying his fingerprint was testimonial. In In re Grand Jury, the court reasoned that requiring the defendant to decrypt and produce the contents of a computer’s hard drive, when it was unknown whether any documents were even on the encrypted drive, “would be tantamount to testimony by [the defendant] of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.” Id. at 1346. The court concluded that such a requirement is analogous to requiring production of a combination and that such a production involves implied factual statements that could potentially incriminate. Id. By being ordered to produce his fingerprint, however, Diamond was not required to disclose any knowledge he might have or to speak his guilt. See Doe, 487 U.S. at 211, 108 S. Ct. at 2348. The district court’s order is therefore distinguishable from requiring a defendant to decrypt a hard drive or produce a combination. See, e.g., In re Grand Jury, 670 F.3d at 1346; United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (holding that requiring a defendant to provide computer password violates the Fifth Amendment). Those requirements involve a level of knowledge and mental capacity that is not present in ordering Diamond to place his fingerprint on his cellphone. Instead, the task that Diamond was compelled to perform—to provide his fingerprint—is no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing. Of course, it's what's contained in the now-unlocked device that might be incriminating, which is why Diamond pointed to In re Grand Jury as being analogous to the forced provision of a fingerprint. The court's rebuttal of this argument, however, doesn't make a lot of sense. It says the process that unlocked the device requires no knowledge or mental capacity -- which is certainly true -- but that the end result, despite being the same (the production of evidence against themselves) is somehow different because of the part of the body used to obtain access (finger v. brain). In recounting the obtaining of the print, the court shows that some knowledge is imparted by this effort -- information not possessed by law enforcement or prosecutors. Diamond also argues that he “was required to identify for the police which of his fingerprints would open the phone” and that this requirement compelled a testimonial communication. This argument, however, mischaracterizes the district court’s order. The district court’s February 11 order compelled Diamond to “provide a fingerprint or thumbprint as deemed necessary by the Chaska Police Department to unlock his seized cell phone.” At the April 3 contempt hearing, the district court referred to Diamond providing his “thumbprint.” The prosecutor noted that they were “not sure if it’s an index finger or a thumb.” The district court answered, “Take whatever samples you need.” Diamond then asked the detectives which finger they wanted, and they answered, “The one that unlocks it.” This is something only Diamond would know, and by unlocking the phone, he would be demonstrating some form of control of the device as well as responsibility for its contents. So, it is still a testimonial act, even if it doesn't rise to the mental level of retaining a password or combination. (And, if so, would four-digit passcodes be less "testimonial" than a nine-digit alphanumeric password, if the bright line comes down to mental effort?) Given the reasoning of the court, it almost appears as though Diamond may have succeeded in this constitutional challenge if he had chosen to do so at the point he was ordered to produce the correct finger. It is clear that the district court permitted the state to take samples of all of Diamond’s fingerprints and thumbprints. The district court did not ask Diamond whether his prints would unlock the cellphone or which print would unlock it, nor did the district court compel Diamond to disclose that information. There is no indication that Diamond would have been asked to do more had none of his fingerprints unlocked the cellphone. Diamond himself asked which finger the detectives wanted when he was ready to comply with the order, and the detectives answered his question. Diamond did not object then, nor did he bring an additional motion to suppress the evidence based on the exchange that he initiated. And so, in first decision of its kind for this Appeals Court, the precedent established is that fingerprints are less protective of defendants' Fifth Amendment rights than passwords. Permalink | Comments | Email This Story

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District Attorney Kari Brandenburg is done with Albuquerque. More to the point, she's decided not to seek re-election because she's especially done with the city's police force. On her way out the door, Brandenburg -- who found herself locked out by the PD after bringing murder charges against two officers for shooting a homeless man -- is letting the Department of Justice knows its work with the PD isn't done yet. In early 2014, the DOJ released its report on the Albuquerque Police Department. In it were descriptions of the department's indiscriminate, unchecked uses of force. Our investigation looked at officer-involved shootings that resulted in fatalities from 2009 to 2012 and found that a majority of them were unreasonable and violated the Fourth Amendment to the United States Constitution. We found that officers used deadly force against people who did not pose an immediate threat of death or serious harm to officers or others, and against people who posed a threat only to themselves. In fact, sometimes it was the conduct of the officers themselves that heightened the danger and escalated the need to use force. We found that officers use other types of less lethal force, especially electronic control weapons, or Tasers, in an unconstitutional manner. Our investigation looked beyond just the use of deadly force and found a significant number of improper uses of force in our review of over 200 force reports generated between 2009 and early 2013. We found that officers routinely fired their Tasers, which discharge 50,000 volts of electricity, against people who were passively resisting and non-threatening or who were unable to comply with orders due to their mental state. Indeed, we found that encounters between police officers and persons with mental illness or in crisis too frequently resulted in a use of force or a higher level of force than necessary. Since that point, accusations have arisen that APD officers routinely delete and alter dashcam and body cam footage, allegedly at the behest of supervisors who don't care for recordings that don't sync up to the official narratives contained in incident reports. These allegations came in the form of a signed affidavit from a contractor who worked with the police department for several years. Former DA Brandenburg makes note of these recent allegations in her angry letter [PDF] to the DOJ. But the primary focus of her letter is the toxic Albuquerque police culture, which has turned these public servants into an unaccountable mess. Since the Settlement Agreement was reached between APD and the Department of Justice, we have seen little progress. Please refer to the independent monitor's reports for more specific information. In his most recent report, James Ginger, noted the behind the scene reality was that APD has almost no appetite for correcting behavior that violates existing policy." Further, it was pointed out that investigations looking into use of force by officers appears to rationalize or explain away officer conduct." Throughout the monitoring process, APD has failed to comply and meet agreed upon standards and measures. In fact, their performance can accurately be characterized as grossly noncompliant. This part lets the DOJ know just how useless its consent agreements are if it's not interested in doing anything to ensure the PD lives up to the promises it made to the federal government. So far, the APD appears to be rolling forward with "business as usual" policing -- virtually unchanged despite a DOJ investigation and consent decree. On top of that, the APD appears to be in the (ongoing) business of covering up misconduct and excessive force. The letter notes that whistleblowers have come forward with allegations that police supervisors tend to hand out promotions to officers who help keep department misdeeds under wrap. Brandenburg sums this up for the DOJ's convenience, using terms it understands. Frankly, if any other group of individuals were acting the way APD has allegedly been acting, some of us in law enforcement might refer to them as a continuing criminal enterprise and/or engaged in the act of racketeering. I appreciate how bold a statement that is. Brandenburg also admits her own office's culpability in the APD's toxicity. Since 2010, the APD has shot more members of the public than the NYPD despite policing a population sixteen times smaller. And it's done this largely without repercussion, thanks to a DA's office that generally considered itself to be working for cops, rather than working for the public. One of the major areas of concern are the number of officer involved shootings and instances of unreasonable use of force by APD. In all fairness, our office has been part of that controversy, as we declined to criminally prosecute any officer involved in an officer involved shooting until January 2015. Of course, Brandenburg now knows from firsthand experience why cops tend to go uncharged in incidents like these. No one wants to bite the hand that feeds it prosecutions, especially not when the bitten entity can bite back just as hard. If the DOJ's Civil Rights Division is truly serious about fixing American policing, it will need to take a trip back to Albuquerque and start throwing its federal weight around. Permalink | Comments | Email This Story

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After being handed a loss in its judicial quest to force Microsoft to hand over data held in Ireland, the DOJ asked the Second Circuit for a rehearing of its July decision. At the center of the case is the DOJ's belief that it should be able to force US companies to turn over data/communications contained in overseas servers. The government wants to have it both ways with its warrants for electronic data. On one hand, it analogizes data demands as being no different than digging through a filing cabinet found in a house it's searching. It argues that data held in servers/devices should be treated no differently than the personal papers the founding fathers tried to protect with the Fourth Amendment. Then it argues that even if the "filing cabinet" isn't located on the premises it has a warrant to search, it should be able to access the contents of that cabinet. This, from Microsoft's motion to dismiss, explains what the government is truly asking for, using the sort of physical world comparisons the DOJ understands. The Government cannot seek and a court cannot issue a warrant allowing federal agents to break down the doors of Microsoft's Dublin facility. Likewise, the Government cannot conscript Microsoft to do what it has no authority itself to do -- i.e., execute a warranted search abroad. In its original decision, the Appeals Court pointed out that Congress clearly didn't intend the wording of the Stored Communications Act to cover foreign data centers, no matter what sort of twisted, hybrid paperwork the feds served Microsoft in hopes of routing around territorial limitations. The court noted, as it often does, that if the DOJ wanted its half-warrant/half-subpoena to both skirt mutual assistance treaties and the court's interpretation of the SCA, then it needed to approach Congress directly and get the SCA updated/amended. And, indeed, the DOJ has done exactly that. It's seeking legislation specifically targeting the terroritorial limitations in the SCA that prevent it from doing what it wants to. But in the meantime, the DOJ thought the court should take another swing at it. The Second Circuit has decided to pass on this opportunity. But it has issued an affirmation [PDF] of its original ruling, with some additional dissenting voices appended. An equally divided federal appeals court refused to reconsider its landmark decision forbidding the U.S. government from forcing Microsoft Corp and other companies to turn over customer emails stored on servers outside the United States. Tuesday's 4-4 vote by the 2nd U.S. Circuit Court of Appeals in Manhattan let stand a July 14 decision that was seen as a victory for privacy advocates, and for technology companies offering cloud computing and other services worldwide. But the dissenting judges said that decision by a three-judge panel could hamstring law enforcement, and called on the U.S. Supreme Court or Congress to reverse it. "The panel majority's decision does not serve any serious, legitimate, or substantial privacy interest," Circuit Judge Jose Cabranes wrote in dissent. The opinion doesn't tell the DOJ anything it didn't tell it previously, other than that the court is evenly divided. The decision reiterates points the DOJ didn't like the first time around. And, once again, it directs the DOJ's efforts at legislators, while also pointing out the dissent's similar willingness to interpret the law in ways Congress never intended. The position of the government and the dissenters necessarily ignores situations in which the effects outside the United States are less readily dismissed, whichever label is chosen to describe the “focus” of the statute. For example, under the dissents’ reasoning (as we understand it), the SCA warrant is valid when (1) it is served in the United States on a branch office of an Irish service provider, (2) it seeks content stored in Ireland but accessible at the U.S. branch, (3) the account holding that content was opened and established in Ireland by an Irish citizen, (4) the disclosure demanded by the warrant would breach Irish law, and (5) U.S. law enforcement could request the content through the MLAT process. This hardly seems like a “domestic application” of the SCA. Rather, we find it difficult to imagine that the Congress enacting the SCA envisioned such an application, much less that it would not constitute the type of extraterritorial application with which Morrison was concerned. Indeed, calling such an application “domestic” runs roughshod over the concerns that undergird the Supreme Court’s strong presumption against extraterritoriality, and suggests the flaw in an approach to the SCA that considers only disclosure. The DOJ's flawed approach is also its most common approach. It seems genuinely baffled/irritated when its requests -- and its interpretation of the law -- are challenged. It views laws that don't allow it to do what it wants to do as broken. Rather than view limits in laws as guidance to help keep it aligned with Constitutional rights, it tends to do what it wants and let the courts sort it out. Sure, the judicial process isn't exactly speedy, but it has better odds and a faster turnaround time than guiding legislation through multiple Congressional hoops. And it will continue to play the odds because not every service provider has the resources or legal acumen to fight back against unlawful demands. Permalink | Comments | Email This Story

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We're in something of an era of firsts here in America. We have our first billionaire President, for instance. Add to that that, on his first day as President Elect, Donald Trump saw fit to take to Twitter to take aim at the First Amendment. Fears for what a Trump presidency means for the rights of the press and for free speech rights have compounded since then, supercharged by Trump himself, who has constructed a narrative in which the press is his foil, either because he truly believes that's the case or out of pure political expediency. Whichever the case, we had another first as on the very day of Trump's inauguration, his first day officially as President of the United States, police managed to arrest and charge six journalists for the crime of covering the protests coinciding with the ceremony. There had already been reports of two such arrests, but we now learn of four more. A documentary producer, a photojournalist, a live-streamer and a freelance reporter were each charged with the most serious level of offense under Washington DC’s law against rioting, after being caught up in the police action against demonstrators. The Guardian learned of their arrests after reporting on Monday that the journalists Evan Engel of Vocativ and Alex Rubinstein of RT America had also been arrested and charged with felonies while covering the same unrest on Friday morning. Six arrests, six journalists charged, and six arraignments and releases pending future hearings in the coming months. The arrest reports for each are remarkably free of any detail on specific actions these individuals are to have undertaken which would violate the law. None of the arrest reports for the six journalists makes any specific allegations about what any of them are supposed to have done wrong. Keller’s report, which also covers the arrests of an unknown number of unidentified other people, includes a note that a police vehicle was vandalized. “I had absolutely nothing to do with the vandalism,” said Keller. Reports on the arrests of five of the six journalists contain identical language alleging that “numerous crimes were occurring in police presence”. They state that windows were broken, fires were lit and vehicles were damaged. “The crowd was observed enticing a riot by organizing, promoting, encouraging and participating in acts of violence in furtherance of the riot,” the police reports said. One of the privileges of American law is typically that it avoids levying legal responsibility on one individual for the actions of others. There's little sense generally in pointing at a crowd of people, a percentage of which are engaging in unlawful behavior, and tossing a legal net over them all. There's even less sense in this when the net catches members of the press, who the public relies on for reporting on newsworthy events. And there's even less sense still when the reporting is on a political matter. Now, it's not as though it was only upon President Trump's inauguration that journalists were suddenly being arrested while performing their jobs. It happened on several occasions under Barrack Obama, beacon of transparency and press access though he claimed to be. Instead, this is something of a continuation of an attack on a free and open press, buttressed by a President engaged in open warfare with any press outlets he doesn't find favorable. The signals have been sent since before his inauguration and since: access and information is going to be cut off. In response, several press outlets have announced investments into their investigative reporting teams. If the arrest of those journalists covering their stories continues to be accepted, that doesn't leave the public with much of a press at all. Permalink | Comments | Email This Story

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The $44 Swift 3 Master Coder Bundle has everything you need to start building your own iOS apps. Over 93+ hours of content, you will learn about Xcode 8, Swift 3, Objective-C, iOS 10, and much more. 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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It appears that Donald Trump -- or, more specifically, whatever remains of the organization that was his Presidential campaign -- has asked the US Patent and Trademark Office (US PTO, which Donald Trump now controls, as President) to give the campaign a trademark on the phrase "Keep America Great!" for use on bumper stickers, signs, placards, pamphlets, clothing, campaign buttons and more. One imagines that they are already gearing up for the expected campaign slogan of the 2020 re-election campaign. Of course, as Paul Levy at Public Citizen points out, someone else had already tried to trademark that phrase last year, and had it rejected by the PTO on the (correct) grounds that a "slogan" can't be taken out of the public domain and trademarked. Indeed, the rejection letter notes many examples of the slogan already in widespread use, recognizing that giving one guy the trademark on it wouldn't make any sense. And therein lies the big question: now that the PTO is technically controlled by Trump, will it suddenly now allow the Trump campaign to register that very same trademark that it rejected from someone else two months ago? Or will it (properly) reject it on the same grounds that the phrase is already in widespread use and a political campaign can't just snatch it from public use and claim it as its own? One hopes that the PTO will do the right thing and reject this trademark application as well. Many of us will be watching. Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
In 2012, it was discovered that Annie Dookhan, a Massachusetts state drug lab technician, had falsified thousands of drug test results. Perhaps this would have been discovered before it became catastrophic, but supervisors seemed impressed with her productivity and dumped even more of the testing workload on her. The end result of Dookhan's fakery was a caseload of well over 40,000 convictions that needed to be reexamined. It also resulted in Dookhan being sent to jail for three years. Dookhan is out now, but more than 20,000 of the possibly-tainted convictions still haven't been addressed. This makes it likely there are people still falsely incarcerated while the person who helped put them there is back on the streets. Presiding over what's left of Dookhan's mess is Massachusetts' highest court. It has been weighing various solutions to expedite the processing of more than 20,000 possibly wrongful convictions. One suggestion is that all remaining convictions be immediately vacated, with the option left to state prosecutors to reopen any they feel are still legitimate. State prosecutors, however, aren't nearly as willing to see 20,000 convictions overturned. Their suggestion is the complete opposite: that they be allowed to continue doing not much about it while people continue to do time for crimes they didn't commit, or live a less-full life thanks to a bogus felony conviction on their record. In fact, as Fault Lines' Josh Kendrick points out, the DA's office seems to feel wrongful convictions aren't really a big deal. The DAs argued a majority of the affected defendants might not be interested in a remedy, because there was little adverse impact from a closed chapter in their life. The Court was skeptical of this argument, because it is bullshit highly unlikely anybody wants to keep a wrongful drug conviction on their record out of convenience. The court thinks even less of the DA's mass mailing attempt to notify those affected by Dookhan's drug lab fakery. From the decision [PDF]: The shortcomings begin with the envelope itself, which identified the source of the letter as "RG/2 Claims Administration LLC," a source that would appear inconsistent with the words on the envelope, "IMPORTANT LEGAL NOTICE FROM THE COMMONWEALTH OF MASSACHUSETTS." Such an envelope invites the risk that the notice might be unopened and discarded as "junk mail." Among the shortcomings of the letter itself are that it failed adequately to inform the Dookhan defendants that the Supreme Judicial Court has determined that they are entitled to a conclusive presumption that the drug analysis in their case was tainted by egregious government misconduct. Nor did it adequately inform them that, as a result, this court has determined that they are entitled to withdraw their guilty plea on drug charges if they can show a reasonable probability that they would not have pleaded guilty, and instead would have decided to go to trial, had they known of Dookhan's misconduct. [...] The letter also failed to inform the Dookhan defendants that they had a right to counsel if they sought to withdraw their plea or move for a new trial and that, if they could not afford counsel, one would be appointed for them. Instead, it invited them to speak to their original lawyer on the case and, if they did not know how to contact that lawyer, invited them to obtain that information from the relevant criminal clerk's office. The letter also invited them to contact the office of the district attorney who prosecuted them "[f]or more information." It did not provide a telephone number for CPCS or for any other entity that conducts criminal defense. Not only that, but nearly 6,000 of these letters were returned as undeliverable and the DA's office sent out less than 1,000 second attempts to different addresses. Half-assing its way towards cleaning up thousands of wrongful convictions isn't something the court is willing to let the DA's office continue doing. The court splits the difference. It's better than allowing the DA's office to slow-walk the conviction rollback, but it's not nearly as expedient as vacating the remaining 20-24,000 convictions. First off, the court puts a strict time limit on the reexamination of the remaining cases. Upon the issuance of this opinion, each district attorney shall commence an individualized review of every Dookhan case in his or her district that was included on the list that the district attorney earlier submitted to the single justice. No later than ninety days after the issuance of this opinion, each district attorney shall file three letters with the county clerk. This is something the DA's office has had years to do but still hasn't. Now, it will have to complete this task within the next three months. The first letter would identify any cases where defendants pled guilty before Dookhan signed the drug certification. These defendants would not be given a presumption of egregious government misconduct if their cases are reopened. The second letter would contain a list of any convictions the DA's office has proactively chosen to dismiss with prejudice, whether or not it feels the conviction might hold up under reexamination. The third letter would contain any convictions the state feels would still hold up in court despite Dookhan's misconduct. Recipients of the first and third letters would be given access to public defenders during legal proceedings. After this face, new attempts to notify Dookhan defendants will begin, with a letter whose content, envelope, and delivery method will all have to be approved by the court. The mailing should permit a relevant Dookhan defendant to declare, simply by checking a box, that the defendant wishes to discuss with counsel whether the defendant should attempt to vacate his or her drug conviction by filing a motion for a new trial, and should also include a form indigency affidavit for the defendant to fill out if he or she claims to be indigent and therefore qualifies for the assignment of counsel. CPCS is encouraged to draft and include within the mailing a separate letter providing the legal guidance and information that CPCS would generally provide to a relevant Dookhan defendant who would telephone its hotline. Better still, the court says the prosecutor's office will bear the full cost of these efforts. The financial burden of notifying defendants of egregious government misconduct that affected their criminal cases must be borne by the prosecuting district attorney's office, even if, as here, the fault belongs to the Hinton lab and Dookhan, not the prosecutors. Therefore, the cost of providing new and adequate notice, including but not limited to the cost of mailing, of locating missing defendants, and of publicity through social and other media, shall be borne by the district attorneys, with the allocation of those costs to be determined by the single justice. We recognize that this cost could be considerable, but that is a consequence of egregious government misconduct that affected more than 20,000 defendants. And if the prosecutor's' office doesn't like seeing its budget eaten up by these efforts to right the lab's wrongs, it has everything it needs to control the bleeding. We also note that a district attorney may reduce the amount of this cost by reducing the number of defendants identified in the third letter. The concurring opinion reinforces this point: stemming the bleeding relies heavily on the state's willingness to vacate convictions: Just as the success of the Bridgeman II protocol will depend on its timely and rigorous implementation, so too will its viability turn, at least initially, on the willingness of the district attorneys promptly to dismiss with prejudice a truly significant number of the roughly 20,000 relevant Dookhan defendants' cases -- at a minimum, those for simple possession in which sentences already have been served. Not doing so in the first phase of the protocol will of necessity add to the already staggering human and financial costs of the scandal and risk overloading the already strained public defense system. And it adds this chilling hint of things to come: In this regard, we cannot turn a blind eye to the potential costs of the looming crisis of thus far undetermined magnitude caused in western Massachusetts by Sonja Farak, yet another rogue chemist employed by a State laboratory. The dissenting opinion says the route the court didn't take -- immediate vacation of all affected convictions -- is the only correct way to shift the burden where it should be: from the falsely-convicted defendants to the office that convicted them. Contrary to the court's assessment of the case-by-case procedure offered as the solution to the problem the court is obliged to solve, it is neither the fairest nor the best alternative for remedying the manifest injustice to the defendants caught up in the Dookhan scandal and for restoring the integrity to our criminal justice system. It fails as the "fairest" alternative because it flouts the guiding principle that "in the wake of government misconduct that has cast a shadow over the entire criminal justice system, it is most appropriate that the benefit of the remedy inure to the defendants." [...] It also fails as the "best" alternative because it is simply unworkable as a timely and effective mechanism for addressing the due process claims of the thousands of defendants now deemed to have been convicted on Dookhan's tainted evidence. In short, the court's solution is too little and too late. The court is too timid to adopt the only remedy that's going to save the state from a nightmarish future. A justice hinted there's another set of bogus convictions on the horizon, possibly on the same scale as the Dookhan misconduct. How the hell is the state going to handle concurrent, overlapping attempts to right its drug lab's wrongs? The only way it can stay ahead of the damage done by its drug lab is to do what the court is unwilling to order: begin vacating sentences en masse. But the DA's office seems to believe it's better than plenty of innocent people remain locked up, than one guilty man go free. Permalink | Comments | Email This Story

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For years now, we've noted how state legislatures are so corrupt, they quite literally let giant ISPs like AT&T and Comcast write state telecom law. These laws, as you might expect, do everything in their power to keep the pricey, abysmal customer service broadband status quo in place by hamstringing any and every attempt to bring competition to bear on these complacent duopolists. That's particularly true of the anti-community broadband bills passed in more than 20 states that prevent towns and cities from upgrading their own local telecom infrastructure -- even in instances where incumbent providers refuse to. This kind of protectionism is precisely what's going on right now in Virginia, where incumbent broadband providers have convinced (read: thrown a lot of money at) state Delegate Kathy Byron to propose HB 2108, aka the "Virginia Broadband Deployment Act." The act does nothing to improve broadband deployment; in fact it does the exact opposite, preventing ad-hoc community broadband solutions in light of market failure. It also saddles towns and cities with all manner of restrictions, forcing them to get approval by committees stocked with incumbent ISP lobbyists if they want to even strike public/private broadband partnerships. Byron has been under notable fire the last few weeks by folks who believe, crazily, that perhaps you shouldn't let giant ISPs with decades of documented anti-competitive behavior write state telecom policy. While Byron has tried to claim that hamstringing towns and cities will somehow improve broadband expansion and pricing, other locals have been busy calling a spade a spade: "Opponents argue that the bill would discourage competition that would drive down broadband costs for poor Virginians and that it would hamper existing municipal broadband networks from providing a necessary service. The Roanoke City Council unanimously condemned HB 2108 on Tuesday, claiming it would endanger a $9.6 million investment by the city and other local governments in the Roanoke Valley Broadband Authority. “I’ll call it what it is – an effort by the legacy carriers to protect their turf,” Councilman Ray Ferris said, according to the Roanoke Times. “It’s crony capitalism at its finest." Opposition to Byron's bill includes incumbent competitors Google, Ting, Netflix and others, who collectively penned a group letter to the Chairman of the Virginia House Commerce and Labor Committee (pdf), noting that the measure actually makes broadband connectivity in the state worse: "If enacted, HB 2108 would not only hurt Virginia’s localities and their residents, but it would also harm the private sector in multiple ways. Among other things, it would derail or unnecessarily complicate and delay public-private partnerships. It would interfere with the ability of private companies to make timely sales of equipment and services to public broadband providers. It would deny private companies timely access to advanced networks over which they could offer business and residential customers an endless array of modern products and services. It would also impair economic and educational opportunities that contribute to a skilled workforce from which businesses across the state will benefit. The letter also proceeds to crazily suggest that maybe, just maybe, decisions on local infrastructure should be left up to the voters, not the CEOs of Comcast, CenturyLink, or AT&T: "Communities in Virginia are eager to work with willing established carriers, enter into public-private partnerships with new entrants, develop their own networks, if necessary, or create other innovative means of acquiring affordable access to advanced communications capabilities. These are fundamentally local decisions that should be made by the communities themselves, through the processes that their duly elected and accountable local officials ordinarily use for making comparable decisions. They should also be able to use their own resources as they deem appropriate to foster economic development, educational opportunity, public safety, and much more, without having to comply with the bottlenecks that HB 2108 would impose. As we've noted repeatedly, ISPs have been extremely successful the last fifteen years in passing these kinds of laws by framing this as a partisan debate, intentionally sowing division. But getting better broadband and improved competition has broad, bipartisan support. As does letting local communities decide for themselves what to do about the local infrastructure impact of obvious private sector failure. And these bills don't solve any problems; in fact they make fixing the problem of spotty broadband coverage significantly harder. Most consumers realize this, which is why, like so many tech policy issues incorrectly framed as partisan (net neutrality), these ad-hoc local solutions often see broad, bipartisan support among actual consumers. Permalink | Comments | Email This Story

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As we've noted before, the UK is infamous for the number of surveillance cameras that dot the land. They've become so much a part of British life that there is an official Surveillance Camera Commissioner, whose job is to encourage compliance with an official surveillance camera code of practice. The basic principle of the code is the following: Use of a surveillance camera system must always be for a specified purpose which is in pursuit of a legitimate aim and necessary to meet an identified pressing need. However, the Commissioner's powers are very circumscribed: The commissioner has no enforcement or inspection powers and works with relevant authorities to make them aware of their duty to have regard to the code. The code is not applicable to domestic use in private households. The commissioner also must consider how best to encourage voluntary adoption of the code by other operators of surveillance camera systems. As that makes clear, there are no enforcement powers to compel recalcitrant authorities to bring their surveillance into line. Still, the Surveillance Camera Commissioner does what he can, for example by pointing out situations that he regards as problematic. Here's one he spotted: the increasing use of body-worn surveillance cameras (pdf) in the UK's National Health Service (NHS) hospitals. The introduction of body-worn video cameras at several hospitals has increased my concerns. Body-worn video cameras are a particularly intrusive device as they capture audio and video simultaneously without the option of switching either off whilst recording. As the Commissioner points out, hospitals are unusually sensitive environments for surveillance cameras: The NHS trusts are complex organisations that use surveillance camera systems in public areas where people under surveillance are likely to be vulnerable and distressed, and where the privacy requirements and burden on those conducting transparent, legitimate and proportionate surveillance is surely at its highest. In order to ensure that surveillance cameras are being used appropriately, the Commissioner asked the UK government to add NHS hospitals to the list of organizations that are obliged by law to comply with the code of practice. The UK government has refused (pdf), writing to the Commissioner as follows: When we met on 18 October, I indicated that I was not minded to amend the code to expand the list of relevant authorities [that must comply with the surveillance camera code of practice] because I considered that we had not exhausted the possibilities of increasing voluntary compliance with its requirements. That remains my position. Reasonable enough, you might say. Except that the Commissioner had previously explained to the UK government that he had already tried asking for "voluntary compliance", only to be told by the hospitals that "they could not enforce compliance with guidance that was not mandatory". A cynic might almost think the UK government doesn't really care what its Surveillance Camera Commissioner recommends. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
The New Mexico legislature, which passed the most restrictive asset forfeiture reform bill in the nation, is once again targeting easily-abusable tools of the law enforcement trade. The Tenth Amendment Center reports that the proposed bill targets police use of Stingray devices, as well as other electronic data demands. The bill would require police to obtain a warrant or wiretap order before deploying a stingray device, unless they have the explicit permission of the owner or authorized possessor of the device, or if the device is lost or stolen. SB61 does provide an exception to the warrant requirement for emergency situations. Even then, police must apply for a warrant within 3 days and destroy any information obtained if the court denies the application. SB61 would also bar law enforcement agencies from compelling a service provider or any person other than the owner of the device without a warrant or wiretap order. This would include actual communication content such as phone conversations, text messages and email, location information and other metadata such as IP addresses pertaining to a person or device participating in the communication. The bill does contain a few warrantless exceptions, but they're the expected exceptions (consensual searches, exigent circumstances) and they're limited to those two. Otherwise, deployment of a Stingray device requires a warrant or wiretap order. Law enforcement agencies will no longer be able to hide Stingray use behind pen register orders or wander into providers' offices without any paperwork and ask for historical cell site location info. The bill also requires that any collected information be destroyed within ninety days. Information unrelated to the device targeted must be destroyed within thirty days. Any extended retention must be approved by a judge after the agency has shown cause for the additional storage and use of collected information. Additionally, restrictions are placed on the sharing of collected information, limiting access only to those who will comply with the boundaries contained in the court order authorizing the collection. These entities will be subject to the same data destruction periods. Stingray warrants will also receive additional judicial scrutiny. From the bill: When issuing a warrant or order for electronic information or upon a petition of the target or recipient of the warrant or order, a court may appoint a special master charged with ensuring that only the information necessary to achieve the objective of the warrant or order is produced or accessed. Emergency warrant exceptions won't be easy to obtain either. And, even if an exception is obtained, the law enforcement agency is required to notify the target within three days of the information's collection -- whether via a Stingray device or directly from the service provider. Law enforcement will be able to delay notification but this requires running more paperwork past a judge and convincing them that the delayed disclosure is essential to an ongoing investigation. All extension requests -- granted or denied -- will be publicly reported by the Attorney General's office on its website. The bill also provides for a great deal of mandatory reporting on demands for information sought under the new law. This includes the number of times requests were made, the type of request, and the data/information sought. It applies to all government agencies.There's no wording contained in it that suggests this bill is solely limited to local law enforcement. That means the federal government would have to play by the same rules when deploying Stingrays or demanding information from local service providers -- something that could possibly see the feds intervening if the bill lands on the governor's desk. The following is only part of the info list contained in the bill -- all of which must be reported to the state's Attorney General. There's a lot in there no agency is going to be in any hurry to hand over. (b) the number of persons whose information was sought or obtained; (c) the number of instances in which information sought or obtained did not specify a target natural person; (d) for demands or requests issued upon a service provider, the number of those demands or requests that were fully complied with, partially complied with and refused; (e) the number of times notice to targeted persons was delayed and the average length of the delay; (f) the number of times records were shared with other government entities or any department or agency of the federal government and the government entity, department or agency names with which the records were shared; (g) for location information, the average period for which location information was obtained or received; and (h) the number of times electronic information obtained under the Electronic Communications Privacy Act led to a conviction and the number of instances in which electronic information was sought or obtained that were relevant to the criminal proceedings leading to those convictions. If this passes, New Mexico will be leading the nation in protections of its constitutents' property and civil liberties. Expect lots of resistance as this makes its way through the legislature. And if it does become law, expect the Albuquerque PD to continue doing whatever the hell it wants to. Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
Reports started coming out this morning that the new Trump Administration had told the EPA that it needed to stop doing anything publicly without first getting approval from the White House (in addition to freezing grants and contracts). According to a memo that was sent around to EPA staff: If you can't read that, the key parts say: No press releases will be going out to external audiences. No social media will be going out. A Digital Strategist will be coming on board to oversee social media. Existing, individually controlled, social media accounts may become more centrally controlled. No blog messages. The Beach Team will review the list of upcoming webinars and decide which ones will go forward. Please send me a list of any external speaking engagements that are currently scheduled among any of your staff from today through February. Incoming media requests will be carefully screened. No new content can be place on any website. Only do clean up where essential. List servers will be reviewed. Only send out critical messages, as messages can be shared broadly and end up in the press. Why yes, such messages may end up in the press. Of course, it quickly became clear that this was not just for the EPA. The USDA received similar marching orders. Same with the Department of Health & Human Services and possibly others as well, including the Department of Commerce, being told it can't even publish the basic research it releases for US companies. It's possible to say that this is just the Trump administration hitting the pause button to figure out what's going on before moving forward again, but many in these agencies are quite worried that they're going to be muzzled for political reasons. Most of the people working in these agencies are civil servants, not political appointees, and their work is not at all political. The press releases and blog posts are generally to release new findings, research and data from taxpayer funded studies. This shouldn't be controversial or reviewed for political motives. Of course, this kind of thing is hardly unprecedented. For many years, we wrote about the ridiculousness of then Canadian Prime Minister Stephen Harper gagging Canadian scientists from talking about factual research that was politically inconvenient (including a study on fish stock). This kind of gagging on "politically sensitive" but factual science was only lifted last year once Justin Trudeau came into office. Of course, just a few months before that, the UK similarly started muzzling scientists to stop them saying anything the politicians didn't like. One hopes the Trump administration will not be putting in place similar policies. Of course, if that is the plan, it should be a huge boon for investigative journalists. And they're already hunting for sources. As the reports on the gag order came out this morning, lots of reporters stepped up on Twitter with notes on how to contact publications with information: Dear EPA employees, there are ways to reach AP investigative reporters confidentially, including https://t.co/JOGjUGz9Sm https://t.co/46lDilvkvo — Frank Bajak (@fbajak) January 24, 2017 Here’s a list of dozens of news orgs with a @SecureDrop for any EPA whistleblowers out there: https://t.co/f9qoXnueCS https://t.co/oVNaOdkBGL — Freedom of the Press (@FreedomofPress) January 24, 2017 If you work for the government and are now banned from providing basic info to the public, know that journalists will protect your identity. — Matt Pearce (@mattdpearce) January 24, 2017 Reminder for federal workers getting silence orders this week: here's a secure way to reach the Washington Post https://t.co/nHKduDCZ2s — Rebecca Sinderbrand (@sinderbrand) January 24, 2017 Here's how you can send us stuff anyway: https://t.co/gH0pfXLmar https://t.co/O2b6NBdzVO — 🔮 Amanda Cormier (@amandalcormier) January 24, 2017 So, perhaps this kind of gag order will lead to a golden age of whistleblowing. Unfortunately, it may also lead to further crackdowns on whistleblowers. Once again, as we've explained over and over again the past few years, the Obama administration was the most aggressive and proactive in cracking down on whistleblowers and the press, and they've now handed off that power and precedent to the Trump administration, which will have a pretty big opportunity to use it. Permalink | Comments | Email This Story

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After years of working on the go, Mike has the mobile office down to a science — and wherever he sets it up, nearby gadget geeks have plenty of questions and comments (here's a rundown of his set-up). So this week we're joined by Espree Devora, host of the podcasts Women In Tech and We Are L.A. Tech, for a fun discussion about today's high-tech offices-in-bags. Also: we're getting ready to record our first exclusive patron-only episode for our supporters on Patreon, which means it's time for those who backed us at a level of $5/month or more to submit questions for the Q&A portion. If you're one of those patrons, you can now find a post calling for questions in our Patreon feed and submit yours in the comments. If you're not, but you want to submit a question or just get access to the episode once it's released, now's the time to support the Techdirt Podcast on Patreon. We've only gotten a couple questions so far, but at least one is rich enough for us to do an entire episode in response — still, we want to give others a chance, so we're likely delaying the release of the episode until early next month. If you want to ask a question, don't wait around! 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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The British have a number of traditions. Some, such as drinking tea, are famous around the world. Less well-known is a habit of revealing highly-confidential information by carrying pieces of paper in public that photographers using long-focus lenses are able to snap and then magnify to read. The Guardian wrote an entire article on the subject, detailing how numerous embarrassing leaks occurred in the UK because people forgot to put the documents they were holding in some kind of opaque folder. On one occasion, an anti-terror operation had to be brought forward when Britain's most senior counterterrorism officer walked around with top secret documents on display -- a blunder that cost him his job. This mistake is so common that there are notices by the door of the UK Prime Minister's residence at Number 10 Downing Street reminding people not to walk out with confidential material that is exposed. The fact that there is a photographer with a long-focus lens who hangs around outside No 10 in the hope that they do precisely that shows how often they ignore this warning. Although the Brits have practically turned this activity into another weird sport alongside cricket, it's not unknown in the US. For example, the following happened at the end of November last year: Potential Donald Trump cabinet pick Kris Kobach accidentally leaked Department of Homeland Security plans when posing for a press photograph with the president-elect. Using photo editing tools, a zoomed-in view on the documents being carried by Kansas Secretary of State Kris Kobach reveals a plan to put Trump’s hard-line immigration platform into practice. Aside from the carelessness of the people involved, the problem has arisen because long-focus lenses are now so powerful and commonly-deployed that it is relatively easy to capture a high-quality image of an exposed document so that its contents can be read. That's a problem that will only get worse as camera technology advances, especially combined with digital enhancement techniques. If this story on the BBC's website is to be believed, it's not just documents that are now at risk as a result: A Japanese researcher says doing the peace sign in a photo could lead to your fingerprints being stolen. They might be easy to recreate if your digits are "in focus with strong lighting". That claim is from Isao Echizen, from the National Institute of Informatics (NIII), who says prints could then be made "widely available". That's clearly a big problem at a time when fingerprints are increasingly being used to unlock digital devices, and to provide access to sensitive data. The British experience shows it's hard enough to shield confidential papers; keeping fingerprints out of high-resolution photos seems like an impossible task. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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The CIA has millions of declassified records stashed away in Maryland -- something it claimed was accessible to the public. Actual access, however, resembles something out of Terry Gilliam's "Brazil," rather than what any reasonable person would call "accessible." This so-called "publicly accessible" database -- known as CREST -- has been the target of MuckRock contributor Mike Best, who kickstarted an effort to liberate records from the vault through the use of manual labor. The records can be accessed by computer, but only certain computers, and only if you know exactly where to find them. This is the CIA's "publicly available" records system front-end. And here's how you locate it. Accessing the information isn't easy. Researchers have to go to the back of the 3rd floor library at the National Archives building in Maryland, which is unfortunately unstaffed for half the day. Tucked away in the library are the only computers that can access the millions of pages of declassified records. If researchers ask the the main "Information" desk, they're answered with confused stares and incorrect directions. Researchers trying to look up on the National Archive's website where to access the computers, won't find it on the page about doing research at that location or on the page for electronic records at that location. That information is tucked away on the page for online databases - despite not being online. Best's crowdfunding effort sought to free these documents from their four-computer cage. But the only way to do so was to visit in person, print out pages, and rescan them. All of this would be done under multiple forms of surveillance at the National Archive. To expedite the process, MuckRock turned to litigation. Three years after commencing its FOIA lawsuit against the CIA, MuckRock has emerged victorious. The CIA has released the contents of the CREST vault online at its site, something it repeatedly claimed would take dozens of years and hundreds of thousands of dollars to complete. The story behind the CIA's forced transparency is amazing. The claims made by the CIA during its opacity efforts are simply astounding. MuckRock has published a long, detailed recounting of its FOIA battle against the agency at its site and I wholeheartedly encourage you to click through and read it. But here are some of the highlights. First off, everything in the database is in an unsearchable format by choice. The CIA only uses TIFF files, claiming that these are more resistant to alteration. But when faced with litigation, the CIA reversed course on the supposed hardiness of TIFF files. The declaration... says that CIA cannot release these TIFF files in electronic form because they can be so easily altered by the mere act of a CIA FOIA analyst looking at them, and that the security measures they must take to remove this accidental metadata for an electronic release (involving editing each file separately by hand) would take 28 years and 1,200 CDs. And there's where the hilarity begins. These are the DOJ's claims as to the difficulty of releasing the database it just released well ahead of its 28-year estimate. Not only is the process supposedly far too onerous to even begin to consider undertaking, but the DOJ claims the documents it just made available to the public at the CIA's website are not of public interest -- this despite being (technically) available to for public viewing at the National Archive for several years now. In another filing, the CIA admits the 1,200 CDs that would take 28 years to compile have actually already been compiled -- and there are actually 1,450 CDs of records, but it will only consider releasing the quoted 1,200 if forced to. Unless the CIA is still porting these documents over to the CREST system at the National Archive, its claim of "28 years" looks even more ridiculous. From one of MuckRock's filings: "Moreover, when [CIA] estimates that it would take 28 years just to create copies of the CREST database, it begs the question of how CIA loaded CREST in the first place. The system has only been operational since 2000.” Then it claimed it would need $108,000 and six months to make copies of the CDs it already had in hand. And it doubled down on its contradictory claims about TIFF files, stating they were so easy to alter because they were so difficult to alter. This lead to one of the best rebuttals (and lead-offs) in FOIA history: I file a sur-reply drawing on my extensive experience as a person with a working brain, closing with the following thought: “Last, CIA claims that ‘the act of a CIA employee opening a document on his or her terminal may cause metadata to embed itself on the image header.’ This is a frivolous statement for two reasons. First, files on PCs are not altered unless they are saved after the alteration. Simply opening a file and then closing it without changing it does not embed metadata on the file. Second, if this were a valid concern, it would apply to every file processed by the CIA FOIA office, not just CREST files. Since it clearly does not (which would paralyze the FOIA office), then the Court should view this claim very skeptically.” Kel McClanahan -- the author of the post and MuckRock's legal rep for this case -- digs into the DOJ/CIA's repeated assertions about the "burdensomeness" of complying with this FOIA request. By the time he's done, everyone and everything is covered with government bullshit. In 2000, using cutting edge 2000 technology, CIA populates CREST over a matter of months. For the next 15 years they insist that the only way to protect this system is to videotape people who want to access it. In 2015 they say that, using cutting edge 2015 technology, it will take them 28 years to make CD copies of CREST. Then they say that they already MADE CD copies of CREST in a matter of months if not weeks, meaning that it will only take 6 years to copy THOSE copies. But they can copy those records to the web in 4 years. Less than a year later, they say that because of the huge public interest in CREST over the last several years (that they expressly disavowed less than 6 months before, did you remember?) they will have all of CREST online within a year because nobody needs to be videotaped any more. Then, less than 2 months later, they put all of CREST online. The CIA and DOJ insist this stonewalling had nothing to do with the CIA's online release of CREST files. Apparently, it did all of this out of the goodness of its heart, forfeiting a shot at $100,000+ in FOIA fees and chance to do next to nothing for the next 30 years. It's obvious the effort to move these records online increased once it became apparent the government was going to come out on the losing end of these FOIA lawsuits (Jason Smathers was suing the CIA over the same database). Rather than be on the hook for legal fees, the CIA preempted any judicial judgment by releasing them to the public (the same public it said had "no interest" in these files) in bulk before final rulings could be made. Permalink | Comments | Email This Story

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Machine learning is a rapidly growing area of study and is becoming a large part of our everyday lives. The $49 Machine Learning with Python Course and E-Book Bundle takes you on a deep dive into machine learning with 4 e-books and 5 online courses. You'll learn about TensorFlow, data mining, Python and much more. 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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For years now we've noted how incumbent ISPs have written and purchased protectionist state laws in roughly twenty states. These laws were quietly passed by AT&T, Verizon, Comcast and other large ISPs as a response to communities that began considering building their own broadband networks. Granted these efforts only emerged because these communities were frustrated by the lack of competition, poor service, and high prices (aka market failure). Instead of shoring up service and competing, these ISPs found it more economical to simply buy legislation overriding local community rights. Virginia is just the latest state to happily do the bidding of incumbent telecom giants with a new proposal that would hamstring towns and cities with all manner of restrictions should they decide to build their own networks, or strike a public/private partnership to that same end. House lawmaker Kathy Byron has crafted the "Virginia Broadband Deployment Act" after receiving healthy campaign contributions from ISPs like Verizon and AT&T. But her proposal actually restricts broadband deployment -- or public/private partnerships like Google Fiber -- by preventing towns and cities from building networks if incumbent ISPs offer speeds of just 10 Mbps down, 1 Mbps up across 90% of their footprints:"...a locality wouldn't be allowed to offer Internet service if an existing network already provides 10Mbps download and 1Mbps upload speeds to 90 percent of potential customers. That speed threshold is low enough that it can be met by old DSL lines in areas that haven't received more modern cable and fiber networks. Of course, because expensive, last-generation DSL and pricey satellite broadband service already likely meet that metric in Virginia, this is effectively a ban on all community broadband -- without the bill's authors having to overtly admit that's what they're doing. But in addition to that restriction, the law would saddle any new municipal broadband project with all manner of logistical caveats, while giving ISPs ample ammunition to sue and cajole any effort that makes it past this first hurdle:"Moreover, the legislation would give private ISPs grounds to challenge municipal broadband projects in court. Local governments seeking to offer broadband would have to file various documents with the state Broadband Advisory Council at least 120 days before construction and "an annual certification by July 1 of each year that any expansion to or changes in its projects or system since the preceding July 1 still qualify as broadband expansion services." "Any person who believes that any part of such filings is incomplete, incorrect, or false and who is in the business of providing Internet services within the locality shall have standing to bring an action in the circuit court for the locality to seek to require the locality to either comply with the substantive and procedural content of the filings required by this section, or cease to provide services, and no bond shall be required for injunctive relief against the locality," the legislation says.Many municipal broadband providers are sued right out of the gate by incumbent broadband providers. After the lawsuits inevitably raise project costs and delay timelines, those same ISPs come in and use these struggles as proof positive that community broadband is the pinnacle of dysfunction. Not too surprisingly, Virginia's bill is being heavily promoted by the Virginia Cable Telecommunications Association, which, like most telecom lobbying arms, implies they're just nobly trying to protect taxpayers from themselves:"The VCTA believes that the General Assembly should debate and establish a state policy to determine if local governments should be risking public dollars to build duplicative networks competing with the private sector that it also regulates, taxes and serves as the gatekeeper to the rights of way used to deploy broadband."This idea that all municipal broadband deployments are automatically failures -- and that taxpayers need protection from themselves -- is a fairly standard argument from telecom industry lobbyists. But municipal broadband deployments are just business plans, and like any business plans -- some are good -- and some aren't. As such, poorly planned networks fail, and well-designed proposals succeed. But there's nothing automatically calamitous about community broadband; it's simply an organic local response to market failure in the broadband space. These bills have been successful in large part because ISP lobbyists have managed to frame municipal broadband as a partisan issue, intentionally sowing division. But the majority of such networks are built in Conservative cities and states and have broad, bipartisan consumer support (hating Comcast is pretty damn near universal). The reality remains that if ISPs really wanted to kill municipal broadband, they simply have to do a better job. But again, it's much more efficient to buy state laws protecting your stranglehold over a failing market, than to actually stand up and deliver the kind of better service broadband consumers have been demanding for fifteen years.Permalink | Comments | Email This Story

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As we've noted, sorta-porn company Perfect 10 really is the gift that keeps on giving. The company claims that it's in the porn business, but in one of the many, many lawsuits it has filed, it was suggested that the company is little more than a pure copyright troll, just looking for companies to sue. This was in a filing made by one of the companies Perfect 10 sued back in 2010: Perfect 10 is a copyright troll that does not operate a real business and instead seeks to foster the spread of infringing copies of works that it owns over the Internet in order to entrap and shakedown websites and services where copies of its images may randomly end up. Perfect 10 does not have the employees or attributes of a legitimate business. Today, Perfect 10 is essentially a paralegal service masquerading as a porn company. It is run by its founder, Norm Zada, out of his Beverly Hills home with the help of full and part time employees who are paid primarily to troll the Internet looking for (but not removing) allegedly infringing copies of Perfect 10 images for use in existing or potential future litigation and to draft declarations and other papers. One of the core elements of a Perfect 10 copyright trolling operation is that it rarely sends legitimate DMCA notices. Sometimes it just sends screenshots of images and basically says "take this down" without ever pointing to the actual location of the content. That's yet another reason why many have argued it's little more than a troll. Someone truly looking to protect its own content would actually follow the DMCA and tell service providers where the content was hosted, rather than tap dancing around such questions... and then filing lawsuits. I'm sure that some who Perfect 10 threatens just settle, but when cases go to court, Perfect 10 not only loses, but loses in impressive fashion, setting all sorts of useful and valuable precedents around the DMCA and how service providers should respond to takedowns. Among the useful cases: Perfect 10 v. Google Perfect 10 v. CCBill Perfect 10 v. Amazon Perfect 10 v. Visa And, then, in 2014, Perfect 10 lost yet again, this time to Usenet provider Giganews. The case there was so egregious that in 2015, Perfect 10 was ordered to pay $5.6 million in legal fees to Giganews for filing such a bogus claim. Perfect 10 appealed (of course) and the 9th Circuit has now given us yet another smackdown of Perfect 10, affirming the lower court decision, and saying that Perfect 10's theories about Usenet infringement are pretty crazy. One key point in the ruling, that Perfect 10 tried to argue, was that in light of the bizarre (and still nonsensical) Supreme Court Aereo ("looks like a duck") test, Giganews should be found to have been a direct infringer due to its interpretation of "volitional conduct." Specifically, Perfect 10 seemed to argue that Aereo wiped away the need to show "volitional conduct" by the parties accused of infringing. The court isn't buying it: Contrary to Perfect 10’s contention, this requirement of causation remains an element of a direct infringement claim. In Fox Broadcasting, we explained that “[i]nfringement of the reproduction right requires copying by the defendant, which comprises a requirement that the defendant cause the copying.” ... In using this language, we indicated that causation is an element of a direct infringement claim. Furthermore, the court points out that Perfect 10's interpretation of Aereo is just wrong: The volitional-conduct requirement is consistent with the Aereo majority opinion, in which the Supreme Court held that Aereo, a service that streamed broadcast television programming to subscribers over the Internet, “perform[ed] publicly” as defined by the Transmit Clause.... First, the Aereo Court did not expressly address the volitional-conduct requirement for direct liability under the Copyright Act, nor did it directly dispute or comment on Justice Scalia’s explanation of the doctrine. Thus, as one court in the Central District of California subsequently opined, because “[t]he volitional conduct doctrine is a significant and long-standing rule, adopted by all Courts of Appeal to have considered it, . . . it would be folly to presume that Aereo categorically jettisoned it by implication.” From there, the court makes quick work of each one of Perfect 10's claims, pointing out how each one appears to be divorced from the reality of the law. Perfect 10 seems to be one of the perfectly ridiculous plaintiffs. A key part of this case, for example, is that Giganews regularly pointed out that in order to remove postings from its Usenet servers, it needs the proper Message-ID and, in the rare cases where Perfect 10 passed those along, they were quickly removed. But most of the time, Perfect 10 refused to actually pass along Message-IDs, and seemed to indicate Giganews should still block those images: we hold that there were no simple measures available that Giganews failed to take to remove Perfect 10’s works from its servers. Giganews presented sufficient evidence that Perfect 10’s proposed method for locating infringing messages was onerous and unreasonably complicated. Indeed, Giganews spent more than 20 hours processing 565 Message-IDs from Perfect 10 because they were not machine-readable. Giganews calculates that Perfect 10’s method would therefore require 354,000 hours of manual work for every 10 million Message- IDs – the number of Message-IDs that Giganews receives every month. Moreover, the record is clear that when Giganews did receive machine-readable Message-IDs, it immediately processed them and subsequently removed the messages from its servers. There's also the question of "inducement" -- the Supreme Court-invented legal concept that sunk Grokster a little over a decade ago. Once again, there's nothing in what Giganews that comes even remotely close to inducing infringement: Based on the record, no reasonable juror could conclude Giganews distributed its product “with the object of promoting its use to infringe copyright.”... Perfect 10 points to entirely inconclusive evidence of any such objective to infringe copyrights. For example, Perfect 10 identifies Giganews’s advertising materials, which state that its product “has built-in MP3 and File Locators that search all Giganews newsgroups for music, pictures, and movies without having to download millions of messages.” Perfect 10 also points to a web page where a Giganews advertisement appears next to text written by another entity, which states that Giganews “provide[s] an uncensored news feed with up to 20 ssl encrypted connection and over 460 days worth of retention. That is over a years [sic] worth of access to downloadable music, movies and games.” However, neither of these advertisements nor any other evidence in the record indicates that Giganews itself promoted its product “with the object” of infringing copyright. Perfect 10 further argues that Giganews has the object of promoting infringement because it: (1) “offers 25,000 terabytes of copyrighted materials . . . without permission,” (2) “continues to commercially exploit the content of known repeat infringers,” and (3) “advertises that it does not keep track of subscriber downloads, effectively encouraging infringement.” Even if true, none of this conduct suggests that Giganews clearly expressed an intent to promote infringement or took “affirmative steps . . . to foster infringement.” The court also rejects the "vicarious" liability wackiness that Perfect 10 argues, noting that Perfect 10's theory seems to violate the very basic concept of who has standing in court: Here, Perfect 10 argues for a rule that would allow a court to hold Giganews liable under a theory of vicarious liability by showing only that Giganews benefits financially from the infringement of another’s works, regardless of whether Giganews received any financial benefit from the specific infringement alleged. Such a rule would allow cases to be built on the rights of owners and the actions of users not before the court. At the very least, Perfect 10’s proposed rule is in significant tension with Article III’s standing requirement. At most, Perfect 10’s view runs counter to the requirement that there be a “causal connection between the injury and the conduct complained of[.]” Finally, the court upheld the fee award for legal fees from Perfect 10, meaning that it may now be on the hook for many millions of dollars for bringing such a ridiculous lawsuit in the first place. Perfect 10 may, of course, ask the Supreme Court to hear a further appeal, but that seems unlikely to go anywhere. And, in the meantime, we've got another useful precedent sent by a wacky Perfect 10 case. Permalink | Comments | Email This Story

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We've repeatedly noted how the idea of a healthy and open internet, free from the meddling of incumbent giants like Comcast, is a good thing. We've also noted that until we bring some real competition to bear on the broadband sector, the FCC's inconsistent protection is about the only thing separating you from a hearty "servicing" from Comcast corporation (whether that's usage caps or abysmal service). As such, the nation's net neutrality rules (which are really quite basic and if anything didn't go far enough) have broad, bipartisan support, and holding Comcast accountable is a bipartisan, very popular idea. And while Trump's Presidential campaign endlessly promised Trump would focus on bringing power back to the people, Trump's new FCC boss Ajit Pai -- a former Verizon lawyer -- effectively represents the complete opposite of that. He's yet to seriously stand up to Comcast or any other ISP, adores media consolidation, wants to kill net neutrality, is incapable of admitting the broadband market lacks competition, and has promised to dismantle the FCC's consumer watchdog functions solely at AT&T, Comcast, Verizon and Charter's behest. On his way out of office, former FCC boss Tom Wheeler had a message for Trump supporters: you need net neutrality protections and healthy broadband competition too. "The Trump administration campaigned that they are the voice of the forgotten," Wheeler said in a phone interview with Ars yesterday. "Well you know, the half-dozen major carriers [lobbying against FCC regulations] are hardly forgotten." The people who are forgotten are the "two-thirds of consumers in America who have one or fewer broadband choices," Wheeler said. "Where are those choices most limited? In the areas where Donald Trump got the strongest response, in rural areas, outside of major cities. If indeed this is an administration that is speaking for those that feel disenfranchised, that representation has to start with saying, 'we need to make sure you have a fast, fair, and open Internet because otherwise you will not be able to connect to the 21st century.'" In many of these states, convincing people to vote against their own best interests has become an art form. Like in Tennessee, where Representative Marsha Blackburn has allowed companies like Comcast to write horrible laws protecting giant corporations from public accountability (the end result for the consumer should be obvious). Again: improving broadband networks shouldn't be partisan. Ensuring that these networks remain healthy and open shouldn't be partisan. Keeping Comcast from destroying level competitive playing fields should not be partisan. Yet here we are. For his part, Wheeler responded to indications that the incoming administration intends to kill net neutrality and neuter the FCC with sadness and alarm: "I think it would be tragic," Wheeler said of taking away the FCC's competition and consumer protection authority. "This is tragic for the American consumer and the competitive marketplace." "We’re talking about a handful of companies who are lobbying for their own self-interest, and trying to say to the new commission, 'you need to listen to us, not to consumers, not to a competitive marketplace, not to those who could be affected by a network where we act as gatekeepers,'" Wheeler said. "And if they are successful, that will put in jeopardy tens of thousands of other companies that rely on open networks and millions of consumers." Historically, most FCC bosses paid empty lip service to the competition problem in the broadband sector. Many, like former FCC boss turned top cable lobbyist Michael Powell, went comically out of their way to pretend the market was perfectly healthy. While his solutions were sometimes imperfect, Wheeler was at least capable of admitting that the core issue in the telecom sector is a lack of competition. A lack of competition not only in the last mile, but in the very cable boxes and closed hardware at the heart of the industry's control. In contrast, Pai's entire platform rests on the idea that the real problem in the broadband sector is that government has been too hard on companies like Comcast and AT&T, and that these companies need less oversight than ever before. Of course, that kind of thinking is what helped create the Comcast and the pricey, annoying broadband and cable sector most consumers know and love today. Believing that dismantling the only government agency to stand up to Comcast this decade is going to somehow fix everything is precisely the kind of thinking that gave us Comcast in the first place. Permalink | Comments | Email This Story

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The FBI has reams of documents of interest to the public. And it knows it. That's why it plays keepaway with so much of them. Sometimes it releases tons of fully-redacted pages to requesters -- a middle finger to government transparency that also serves as a "response" on the FOIA balance sheets, ensuring the agency fulfills the letter of law while spitting on its spirit. Other times it just drags it feet. Requesters are often moved to sue the agency, thanks to its tendency to spend a year or four responding to FOIA requests. And that's only if it hasn't attempted to short-circuit the FOIA process by asking requesters for a small fortune in advance of its search for documents. The FBI's internal search mechanisms are deliberately broken, forcing FOIA requesters to become intimately familiar with the FBI's multiple databases and search methods, none of which seem to overlap. And when documents are finally delivered, a vast array of exceptions are deployed to ensure the public is given only the murkiest version of transparency. So, it comes as no surprise that the FBI has quietly decided to make it even more difficult for requesters to get their hands on documents. Michael Best of MuckRock explains. According to the FBI’s website as of publication, a request still has to be 951 pages or more to qualify as large or complex. From the FBI's site: Requests are divided into three different processing tracks based on the number of pages responsive to the request. A request is routed through a small processing track if it encompasses 50 pages or less, a medium processing track if it encompasses 51 to 950 pages, or a large processing track if it encompasses 951 pages or more. Requests that encompass a high volume of responsive records will take a longer time to process than requests that encompass a small volume of responsive records. If your request encompasses more than 950 responsive pages, an FBI representative will contact you in an effort to reduce the fees and the processing time associated with your request. That's apparently been changed, although the FBI has yet to update its website more than a month after it made this internal decision. However, according to correspondence the FBI sent on December 8th, the medium track for FOIA requests has been eliminated entirely. From the FBI's letter to Best: Requests are processed in the order in which they are received through our multi-track processing system, and the FBI receives a voluminous amount of requests on a daily, weekly, monthly, and annual basis. Requests are divided into two tracks--simple (under 50 pages of potentially responsive documents) and complex (over 50 pages of potentially responsive documents). By calling more FOIA requests "complex," the FBI can spend more time fulfilling them, charge more for their processing, and up its level of "responsiveness" by eliminating the most common medium-level "track" in its entirety. The FBI likely has to do some serious number-massaging because it's ability to respond in a timely manner flat-out sucks. Even with this new definition, the FBI says that its average processing time for “simple” cases of 50 pages or less is 181 days - or slightly more than thirteen times the statutory limit. For complex cases, it’s 659 days - nearly fifty times what’s allowed by law. As Best points out, this middle-track elimination will speed up the average time it takes for the agency to respond to "complex" requests. Crank out a few dozen 50-page "complex" requests a year and the upper end will begin to slide down towards the now-nonexistent "middle" track's response times. But for a majority of requesters, processing times will now go UP, as theirs will now be called complex, even if the responsive page count barely clears the 50-page mark. There's a lot of middle ground to be exploited in the 50-950-page range, all without a single beneficial outcome for the general public. Permalink | Comments | Email This Story

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Last summer, we brought to you the story of how Bryton Mellott, a young man in Urbana, IL, was arrested for posting a picture of himself burning the American flag on his social media accounts. The story was strange on a variety of levels. First, the law utilized to arrest him, one of many flag-burning prohibitions that exist in laws at the state level, had been declared unconstitutional decades prior to it having ever been enacted. Burning the flag has been codified as a form of protected free speech, no matter how stomach-turning any individual might find it. It was for that reason that the local State's Attorney's office requested that the police let Mellott go and didn't even attempt to bring any kind of charges against him, because they couldn't. The police report also noted that Mellott had been taken in for disorderly conduct, referencing the backlash his actions caused, which is insane. Blaming a victim of threats for receiving those threats as a reaction to protected speech ought to be beneath the common citizen, nevermind those we actually entrust to enforce the law. But perhaps the strangest part of the story, previously un-noted by us in our original post, the impetus for Mellott's arrest was one officer's apparent desperate search to find something for which to arrest him. Mellott’s post was widely shared and had received 200 comments by the following morning. But just 12 hours after his post, Urbana police officers arrested him at his job at Wal-Mart after Mellott’s supervisor called and reported threats made by unknown people against Mellott and the store. Officer Jeremy Hale researched the Illinois flag-desecration statute, found it was still on the books, and decided of his own accord to enforce it. Policing in this country isn't traditionally done in this way. Complaints to a local law enforcement office aren't generally then used to scour the books for some potentially applicable law. For this reason, Mallott is suing the three arresting officers for violating his civil rights. Mellott filed a civil-rights lawsuit late Wednesday in Urbana federal court, claiming the three arresting officers knew or should have known that flag burning has been a protected means of political protest for almost 30 years. He says they violated his civil rights by arresting him. Mellott seeks compensatory damages and a court order that the Illinois flag-desecration statute is unconstitutional. He is represented by Rebecca Glenberg with the Roger Baldwin Foundation of the American Civil Liberties Union. “Open dissent is the highest form of American patriotism,” Mellott said in a statement. “And it was a frightening display of irony that on the Fourth of July, I should be taken from my workplace to sit in a county jail for exercising this liberty.” It's difficult to see how this lawsuit isn't a winner. The Illinois state law is, on its face, flatly unconstitutional. That it was enacted decades after this question was decided says everything about the Illinois legislature and the rise of nationalism nationally and nothing about whether or not it might be remotely legal or enforceable. For Mellott to have been arrested and held for hours in a zealous attempt to punish protected speech, and on Independence Day no less, is about as blatant example of an infringement on the First Amendment of which I can think. Permalink | Comments | Email This Story

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