posted 21 days ago on techdirt
Last year, we talked about an important copyright case in the EU regarding whether or not linking to infringing material was, in itself, infringing. The case involved a blogger in the Netherlands, Geen Stijl News ("GS Media") linking to some pre-publication Playboy photos. There had been an earlier case, the Svensson case where the European Court of Justice got things right with regards to whether or not hyperlinks could be infringing, but there were some questions left open in that ruling. The court in the Svensson case found that linking to authorized content wasn't infringing. But what about unauthorized content? And now we have the ruling and it's not very good. Some are trying to spin it as a good ruling, because it basically says that if the link is not for profit, then it's not infringing, but the worrisome part is that if the link is considered "for profit" then it can be direct infringement. Basically, the court tries to split the baby here. It notes concerns that many people had about how posting a mere link to content could be infringement, in that many times those posting the link will have no idea if the original content is authorized. But rather than actually deal with that specific issue, it just basically said "well, if it's a for profit effort, then they can afford to figure out if the content is authorized." when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. Some are celebrating the flip side, which says that if the linking is not for profit and without knowledge that the work is infringing, then it's not infringing, but even that is troubling. Here's what the court says for the "not for profit" linking: For the purposes of the individualised assessment of the existence of a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, it is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder. Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it (see, to that effect, judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 18 to 23) does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In addition, where the work in question was already available with unrestricted access on the website to which the hyperlink provides access, all internet users could, in principle, already have access to it even the absence of that intervention. But what the hell does all that mean in practice? Well, that's a complete mess. First of all, as we've been discussing for many, many, many years, drawing the line between "commercial" and "non-commercial" is not nearly as easy as it seems -- and it's basically the same for "for profit" and "not for profit" in the EU's new standard. Just last week we wrote about yet another legal dispute over that exact fuzzy boundary. In an age where anyone can put ads on their site, or use social media to promote their own work or business, how do you determine what's for profit? It's not hard to see how a copyright holder may, for example, point to someone linking to an unauthorized copy of their work and then point to a tweet promoting their work, and say that "well this person uses social media for profit, so this link is infringing." And, of course, it's even worse for aggregators, search engines and the media. All of those will be considered for profit, so any link to infringing content may now be considered infringing itself. That's... really bad for the internet in Europe. You can see why the Court of Justice tried to split the baby here, but you should remember that splitting the baby isn't a good result. It's designed to threaten to kill the baby to flush out a better result. In this case, one hopes that the end result of this dangerous ruling will flush out an improved copyright law in the EU that doesn't make links infringing. Instead, we seem likely to be getting the exact opposite.Permalink | Comments | Email This Story

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The FBI is suffering from an image problem. Its boss has spent a great deal of time arguing against protecting phone owners from thieves and malicious hackers. Its anti-terrorism program seems to be focused on pushing vulnerable people into doing things they'd never do on their own. And it has, along with the NSA, seen whatever street cred it might have had stripped away by leaked documents, litigation, and the realization that all Americans and their rights are subject to the agency's chants of "national security." In order for an agency to keep up with the hacking Joneses, it needs periodic injections of new blood. The problem is, the only decently-skilled hackers the FBI can apparently press into service are those it's arrested. It's having a difficult time attracting new hires that honestly want to use their skills in the ways the FBI would like to deploy them. So, the FBI is trying to alter its stance on hiring, as well as the public's perception of the agency. And, of course, it's failing to do so because it's allowing Jim "Nerd Harder" Comey to act as spokesperson for the FBI's youth movement. After being informed by his daughter that the FBI = "The Man," Comey is using this dad anecdote to lead into a series of dad jokes that seem better suited for attracting people like him, rather than the people his agency actually needs. His daughter was right, he said. But the agency is trying to get more hip to attract recruits who will help the agency keep pace with a digital landscape in constant flux, according to Comey. "We’re working very hard inside the FBI to be a whole lot cooler than you may think we are," he said during his remarks at a Symantec Government Symposium this week. The agency hasn't added "beanbags and granola and a lot of whiteboards" — stereotypical hallmarks of West Coast start-up culture — at least not yet, Comey said. And much dad LOL-ing ensued. Comey's joke doesn't work -- at least not in terms of convincing people the agency is "hip" enough for youngsters -- because it relies heavily on an out-of-touch person's stereotype of what a "hip" tech company's campus might look like. The fact that the agency already doesn't use "a lot of whiteboards" suggests it is more than just a few years removed from hipness. It suggests the agency is several decades behind, presumably relying on overhead projectors and chalkboards to present info to agents. While the FBI has occasionally discussed relaxing hiring standards in order to attract fresh blood, it will never relax them to the point needed. The FBI wants young hackers to help develop its tech tools, but it expects them to have the same sort of background as its field agents: free from drug use, criminal activity, and presumably interested in pursuing a degree in criminal law during their spare time. If the FBI can't find the hires it needs, it will continue to slide into tech irrelevance. But it created this downhill slope itself. It's going to be impossible to attract new talent when the unspoken part of Comey's pitch is that this talent will be used to punch holes in encryption and strip internet users of their anonymity. It's "us vs. them" all over again, but Comey thinks he can get hackers to switch sides by promising them beanbags and granola at some point in the future. The problem is that Comey appears to be relying on jingoism and patriotism to make up for the concessions he's unwilling to make. But it's been a long time since younger generations felt a moral obligation to serve their country -- something that headed downhill quickly with the Vietnam War draft and the War on Drugs that followed shortly thereafter. Around this same time, the FBI's dirty laundry was being aired, showing it routinely engaged in pervasive surveillance and civil rights violations by targeting anyone who wasn't a straight, white, Protestant male who routinely voted Republican. Comey isn't just working against recent revelations. He's working against more than 40 years of "The Man" viewing younger generations and countercultural activity as threats or investigative targets, rather than just healthy parts of a nation that will always be engaged in growing pains. It's not even clear that Comey actually wants to make the FBI more attractive to the tech talent it needs. It looks more as though he just wants to give that impression, rather than make the sort of necessary cultural changes within his agency that might actually attract private sector talent. If they're ever going to buy in, the public needs to see actions, rather than more words. The FBI wants top tech talent, but so far, it's only willing to send out its worst possible selection for "Youth Ambassador" to spread the word. Permalink | Comments | Email This Story

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Grab the $49 1-year all access pass to Codeplace and start learning Ruby on Rails by building real world applications -- from marketplaces to social networks. Codeplace's format combines contextualization, step-by-step navigation, an interactive dictionary, source code, progress tracking and much more so you can learn Ruby on Rails at your own pace. 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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If you've followed the telecom sector for any amount of time, you've probably noticed that the merger conditions affixed to its rotating crop of mega-mergers are usually hot garbage. Frequently the ankle-height goals are proposed by the companies themselves, and are usually something the companies planned on doing anyway. Telecom companies also know full well that regulators historically can't be bothered to check their math on such promises, letting them essentially trot out a rotating crop of feel good, but totally hollow "obligations" before they get to work laying off redundant employees and raising rates. It's a win-win relationship of dysfunction, where giant companies get to grow ever larger, and regulators score cheap political points for "toughness" thanks to a media that can't be bothered to actually read the fine print of such deals, lest readership get bored. When Comcast was pushing for its 2011 acquisition of NBC Universal it crafted a new wrinkle in this old story. It proposed offering $10, 5 Mbps broadband to low-income homes if regulators signed off on the deal. And while regulators were happy to promote this as yeoman's work in bridging the digital divide, it didn't take long before low-income families began protesting in the streets, pointing out the plan was hard to find, hard to qualify for, and difficult to sign up for. Still, Comcast's "Internet Essentials" plan has been a PR bonanza, with the cable giant holding an endless barrage of PR junkets advertising its selfless altruism. To get regulators to sign off on its $69 billion DirecTV acquisition, AT&T proposed a similar $10 low-income broadband program it calls "Access." Under Access, low-income homes can get discounted, slow DSL service for an unspecified limited time -- provided they are in AT&T territory, have no outstanding debt with AT&T, and have at least one resident who participates in the US Supplemental Nutrition Assistance Program (SNAP). Under the program, users can get 5 Mbps or 10 Mbps DSL for the $10 price point, or 3 Mbps for $5 a month, which certainly sounds promising. But the National Digital Inclusion Alliance this week issued a report noting that the company oddly omitted homes that can only get speeds of 1.5 Mbps. Given ISPs' tendency to refuse to upgrade many low-income areas, this naturally exempted a significant number of inner city applicants that might otherwise qualify for the service:"You might think we're talking about a few isolated rural areas here. Think again. According to data published by the FCC from its Form 477 surveys of providers, AT&T's fastest reported download connection for VDSL (its current version of Digital Subscriber Line service) was 1.5 mbps or less for households in about 21% of all Census blocks in the cities of Cleveland and Detroit. Those blocks are mostly in inner-city neighborhoods with many low income households."In a city like Cleveland, where AT&T has had little competitive incentive to upgrade its low-income urban networks, you're ultimately talking about a significant number of the poorest communities being unable to get speeds much faster than 1.5 Mbps: So the group asked AT&T if they wouldn't mind, you know, actually offering the discounted service to these slower-lines, and found their request flatly refused:"About two months ago, NDIA contacted senior management at AT&T and proposed a change in the program to allow SNAP participants living at addresses with 1.5 Mbps to qualify for Access service at $5/mo. Yes, we know we were asking for the minimum speed to be lower than it should be, but paying $5/mo is better than paying full price and in many neighborhoods, both urban and rural, Access is the only low-cost broadband service option. I'm sorry to report that, after considering NDIA's proposal for over a month, AT&T said no. “AT&T is not prepared to expand the low income offer to additional speed tiers beyond those established as a condition of the merger approval."That shouldn't be too surprising. These low-income programs sound great upon shallow inspection, but once you've weeded out consumers that already have service, or owe their phone or cable company money (kind of common when you're struggling to pay the bills), you've already eliminated a huge swath of qualified applicants. AT&T apparently thought they could shave off another few million qualified households countrywide by refusing to provide service to its slower 1.5 Mbps DSL customers, hoping nobody would notice. Of course, it's possible that AT&T will buckle should this story gain some mainstream media attention (unlikely), and promote its inclusion of 1.5 Mbps as just another generous act of altruism in the company's neverending quest to protect the poor. AT&T's other "major" DirecTV merger condition was that it would deploy fiber to millions of additional homes, but as we've long noted, the company has a long history of fiddling with numbers to falsely inflate its deployment projections for such services. When it comes to fiber deployments, AT&T's often just lighting up some existing, already buried fiber at high-end housing developments, then crowing in a rotating crop of press releases that it has "launched" yet another market -- despite the fact that few can actually get the service. After more than a generation, AT&T is the master of the merger condition two-step, having effectively tap danced around conditions affixed to most of its previous acquisitions, including BellSouth. For that deal, AT&T promised stand alone DSL at a discounted rate, then went out of its way to hide the offer from consumers. Regulators often don't bother to fact check or enforce such flagrant middle fingers after the fact since it would be an admission that the conditions -- and the mega-mergers they help prop up -- quite often actively harm the consumers regulators are supposed to be looking out for.Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
You don't often see a journalist argue for more government secrecy. In fact, you never see this. This makes Matt Yglesias' piece for Vox more than an oddity. His argument for a broad FOIA exemption covering the single most-used form of government communications appears to be motivated by two things: 1. His belief that nearly anything critical of Hillary Clinton is overblown. 2. He doesn't like talking on the phone. When Yglesias seeks a comment from a public official, they often want to call. Why? Because a phone call doesn't create a permanent record of the conversation. This is exactly why journalists would much rather take comments in the form of an email. Or should want to. It's a much better reason than Yglesias', which is that he just doesn't want to be hassled by phone calls. Yglesias feels the real problem here isn't public officials not wanting to go on the record, but the Freedom of Information Act's supposedly inconsistent take on communications. The issue is that while common sense sees email and phone calls as close substitutes, federal transparency law views them very differently. The relevant laws were written decades ago, in an era when the dichotomy between written words (memos and letters) and spoken words (phone calls and meetings) was much starker than it is today. And because they are written down, emails are treated like formal memos rather than like informal conversations. They are archived, and if journalists or ideologically motivated activists want to get their hands on them, they can. This argument might make some sense if Yglesias had ever advocated for the alteration of federal statutes like the Electronic Communications Privacy Act or the Third Party Doctrine that have been abused for years by government agencies with complete disregard for wholesale changes in personal communication preferences. (Under the Yglesias theory, phone calls = emails, so the government should need a wiretap warrant to access the contents of these communications, rather than just regular search warrants.) Furthermore, he's simply wrong about the FOIA's treatment of phone calls and emails. If a public record is generated by a phone call, it too can be accessed with a FOIA request. One example would be 911 calls, which are always recorded and are considered public records. This was pointed out to Yglesias by USA Today journalist Steve Reilly. Yglesias responded once, indicating he was making a point, rather than aiming for accuracy. An actual reporter got a hold of Yglesias, and it went about as well as you'd expect. pic.twitter.com/Vk0kKV7olT — Bob George (@Odd_Hack) September 6, 2016 But searching through the hundreds of pieces Yglesias has written won't uncover anything that indicates he feels the American public should also be a beneficiary of updated laws that better reflect the shift away from phone calls as a primary communications method. It's too late for Hillary Clinton to benefit from this proposed alteration, but presumably other politicians Yglesias cares deeply for will find themselves freed from the tyranny of transparency. Part of Yglesias' argument for a blanket email exception is that these are often informal communications -- not really the sort of thing the government should feel compelled to hand over. Yglesias says there's "no public interest" in documents that don't contain official policy directives, etc. But he's wrong. There's an incredible amount of public interest in government communications, as these often provide glimpses of the government's inner workings that just aren't visible when boiled down to policy memos and talking points. His next justification, however, is baffling in its inadvertent self-contradiction. Under current law, if Bill Clinton wants to ask his wife to do something wildly inappropriate as a favor to one of his Clinton Foundation donors, all he has to do is ask her in person. But disclosure laws sit as a constant threat to the adoption and use of efficient communications tools. Your smartphone isn’t primarily for making phone calls, but the stuff you do on your “phone” — communicating with other human beings in your life — is the social and economic equivalent of a phone call. It ought to be legally treated that way too. In other words, public figures have a number of ways to avoid generating public records about questionable activities. The solution, according to Yglesias, is to GIVE THEM ANOTHER ONE. Yglesias says there are all sort of communications government officials should never need to worry about being made public. This will supposedly give us a more "effective" government, unconstrained by worries about what the public might think. There are a lot of things that colleagues might have good reason to say to one another in private that would nonetheless be very damaging if they went viral on Facebook: Healthy brainstorming processes often involve tossing out bad or half-baked ideas in order to stimulate thought and elevate better ones. A realistic survey of options may require a blunt assessment of the strengths and weaknesses of different members of the team or of outside groups that would be insulting if publicized. Policy decisions need to be made with political sustainability in mind, but part of making a politically sustainable policy decision is you don’t come out and say you made the decision with politics in mind. Someone may want to describe an actual or potential problem in vivid terms to spur action, without wanting to provoke public panic or hysteria through public discussion. If a previously embarked-upon course of action isn’t working, you may want to quietly change course rather than publicly admit failure. It's as if Yglesias is completely unaware that there are existing FOIA exemptions that cover the sort of "deliberative documents" that these conversations -- if handled via email -- would generate. Not that it ultimately matters. Yglesias' argument is in service of Hillary Clinton and those like her, rather than journalists, the public, or anyone else not so wholeheartedly engaged in supporting this particular presidential candidate. But in the context of the Clinton email scandal -- which Yglesias himself says can't be "ignored" when discussing a shift away from government transparency -- this proposal would have prevented the public from learning the following about the leading presidential candidate: - She deployed her own private email server despite being warned against doing so, and while receiving input from other officials who hinted it might be a good way to route around public record requirements. - She handled classified information carelessly and incompetently. This is stuff the public needs to know, but Yglesias apparently feels anything contained in a public official's inbox should be treated as the ephemeral contents of a phone call or a whispered conversation. And he offers up this proposal with seemingly complete unawareness of how combative the FOIA process already is -- and how often the government stalls, levies fees, abuses exemptions, performs deliberately inadequate searches, etc. to further distance requesters from the records they not only seek, but federal law says they're entitled to. And, if you think I'm being too harsh on Yglesias for taking an implicit pro-Clinton stance in his call for less government transparency, his track record speaks for itself. This is why we steer clear of partisanship here at Techdirt. This makes advocating for greater transparency, changes in law, etc. sincere, rather than motivated by how it will affect various writers' "teams." Yglesias has dug himself into a hole with this article. He'll presumably keep his head down when politicians he doesn't care for start making noise about "too much transparency." This post shows he's not quite the journalist he believes he is and his ignorance of the reality of the FOIA process is on full display. In support of god-knows-what, Yglesias is calling for the most common method of government communication to become the government's most-used FOIA dodge. That's a dangerous proposal, especially when issued by a self-professed member of the Fourth Estate, whose job it is to help rein in the government and hold it accountable -- not give it more ideas on how to hide stuff from the people paying for it. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Back in February, the FCC approved a new plan to bring some much-needed competition to the old cable box, resulting in better, cheaper, and more open hardware. But fearing a loss of control (and $21 billion in annual cable box rental fees) the cable industry launched an unprecedented lobbying campaign featuring an endless barrage of editorials attacking the plan for encouraging piracy and even being racist. The cable industry even managed to get the Copyright Office to fight on its behalf, spreading false claims that the plan would "harm copyright" despite having really nothing to do with the subject. This lobbying and disinformation plan caused several of the Commissioners who voted yes on the plan to unfortunately waffle on the original proposal. As such, FCC boss Tom Wheeler had to return to the drawing board, and is cooking up a heavily modified "compromise" plan that would focus on forcing cable providers to provide their content via an app:The purpose of the proposal would be to make apps more ubiquitous across streaming devices, and allow subscribers to forgo the cable box altogether. Wheeler has criticized the industry for collecting monthly rental fees for their set-top boxes from consumers, even after the cost of the devices have been recouped. The proposal would require that cable companies make their apps available to other devices, such as smart TVs and gaming consoles, according to sources familiar with the plan and filings from industry representatives. Wheeler appears to be cooking up a plan that looks a lot like an underwhelming cable industry counterproposal circulated back in June. But as we noted at the time, providing content via tightly-controlled apps isn't the same thing as open hardware, and isn't all that different from what the cable sector offers today. Such apps usually are just as tightly controlled and restrictive as the cable boxes they're meant to supplement or ultimately replace. The cable industry has also strongly hinted that if it's forced to offer programming via app, it will just seek its pound of flesh in other ways -- such as charging consumers a new fee if they want to record and store content via cloud DVR. And while the FCC's plan hasn't been released yet, consumer groups and hardware vendor groups like INCOMPAS worry that an "app-based" proposal could simply swap out one ham-fisted attempt at control with another. Given the cable industry spent millions to successfully manipulate the press, public, politicians and The Copyright Office to protect its anti-competitive cable box fiefdom, you'd think it would be happy about its success in weakening the FCC proposal. But the sector is still complaining, and is worried that the FCC would still be able to dictate terms of their license agreements with streaming box manufacturers like TiVO or Google:"Cable operators and media companies also are suspicious of a proposed new FCC process for licensing their apps to device makers, viewing it as a chance for the FCC to meddle in their contracts. The FCC’s “updated proposal will unequivocally fail if there is a possibility of governmental or other third-party intervention in the programming rights, obligations and restrictions negotiated by program suppliers, broadcasters and [cable firms],” the National Association of Broadcasters said in written comments to the agency Friday."Again, if the cable industry is forced to kill the cable box and shift its content to apps, it's going to want to develop all manner of creative new ways to recoup that $21 billion in lost cable box rental fees. Whether that takes the shape of a $20 per month DVR recording fee or a $10 per month "because we said so" fee isn't clear, but it is very clear the cable sector doesn't want the FCC policing how these apps are licensed and presented. It took no time at all for stories to pop up online proclaiming that the FCC was on a power-hungry quest to create a "copyright licensing office within the FCC":"Instead, FCC Chairman Tom Wheeler is now considering the creation of a copyright licensing office within the FCC, replacing complex separate arrangements with device manufacturers with a single contract overseen and possibly written by the Commission’s staff....It would also unilaterally substitute the FCC for the Copyright Office in establishing and enforcing compulsory licenses for programming, without any indication–let alone legislation–from Congress authorizing such a radical shift.But like so much said about the FCC's plan over the last seven months, that's simply not true. The FCC would primarily act to ensure the cable industry didn't just supplement one bad idea (the locked down cable box) with another (apps saddled with onerous restrictions and fees), which is a pretty far cry from an entirely new copyright apparatus being forged in the belly of the FCC. And again, contrary to the Copyright Office's claim, this debate has absolutely nothing to do with copyright, and everything to do with control. If the FCC can't get its own commissioners to support a meaningful cable box reform plan, it may not be worth the fight. A regulator-mandated attempt to replace the cable box with a half-cooked app-based approach may just deliver more of the same shenanigans in a different hat. An easier path may be for the FCC to give up on cable box reform, let the pay TV sector evolve or die organically, and focus its efforts on the biggest problem of the streaming video age: the lack of broadband competition and all of the anti-competitive chicanery (usage caps, net neutrality violations, zero rating) such dysfunction enables.Permalink | Comments | Email This Story

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The ACLU would like to take a closer look at the government's activities regarding its seizure of Freedom Hosting back in 2013. To date, the docket remains sealed -- as is the case in far too many DOJ prosecutions. In this case, the FBI basically took over Freedom Hosting to serve up its Network Investigative Tool to unmask anonymous Tor users. The difference between this and its more recent NIT deployment in the Playpen child porn case is that many of those exposed by the malware weren't suspected of any wrongdoing. While letting the exploit run its course, the FBI also helped itself to TorMail's email database, later acquiring a warrant to access the contents of the seized communications. The ACLU would like to take a look at the warrant authorizing the NIT deployment, especially in light of recent Playpen prosecutions where federal judges have found the warrant used invalid. But the first step is unlocking the docket itself, which remains blocked from public view. Joseph Cox of Motherboard was the first to report on the ACLU's recent filing. The Washington Post recently confirmed that the FBI used a “network investigative technique” or NIT—the agency's term for a hacking tool—on the TorMail site. According to the article, the FBI had obtained a warrant to hack the owners of certain email accounts suspected of being involved in child pornography, and anonymous sources claimed that, with this approach, only suspects who had been linked to child pornography would be hacked. But journalists, dissidents, and other individuals used TorMail too, and it seems that the error page was presented to every TorMail user—raising questions about how broad the operation really was. “That the FBI engaged in a bulk hacking operation against all visitors to TorMail, which had many lawful, valid uses, raises serious concerns about the appropriateness of bulk hacking, and the extents to which courts should be authorizing and supervising such operations,” reads the motion to unseal the docket, which was written by ACLU attorneys Brett Kaufman, Nathan Wessler, and David Rocah and filed last week. As the ACLU points out in its filing [PDF], the public should be apprised of the details of questionable actions taken by the FBI -- especially the contents of the warrant supposedly authorizing the bulk distribution of malware to Tor users who weren't suspects in criminal investigations. Even if the government were to argue that unsealing the docket and the contents of the warrant would negatively affect future investigations/prosecutions (and it surely will argue this…), the court shouldn't find that assertion particularly compelling. From the motion to unseal: Once the First Amendment right of access attaches, the burden to overcome it “rests on the party seeking to restrict access, and that party must present specific reasons in support of its position.” Access may only be denied if the party can demonstrate a “compelling governmental interest” in support of closure and prove that closure is “narrowly tailored to serve that interest.” There is, to be sure, a legitimate governmental interest in protecting the integrity of an ongoing investigation. As the Fourth Circuit has recognized, however, “it is not enough simply to assert this general principle without providing specific underlying reasons for the district court to understand how the integrity of the investigation reasonably could be affected by the release of [the] information [sought].” [...] The malware warrant in question here was issued by this Court in mid-2013, and by the end of 2014 the sole prosecution known to the ACLU to have resulted from it had already been resolved. See Klein Press Release. The existence of the malware operation, moreover, has been officially acknowledged by the FBI. 2013 Pouslen Article. Thus, “the genie is out of the bottle” with respect to information the government may have once had a legitimate interest in protecting. What remains secret, however, is the very “index” to the proceedings that authorized the deployment of malware. Perversely, then, the public is aware of the investigation’s existence, and experts have even been able to analyze the malware used by the government, but the most basic details regarding the circumstances under which this operation was judicially authorized remain hidden. The public has a vital interest in knowing this information, which would greatly contribute to the ongoing public debate about the use of malware by law enforcement, and the government has no legitimate interest in keeping it secret. The deployment of malware by a law enforcement agency -- a deployment that affected website visitors from around the world -- using a single warrant issued by a single judge is something that has never specifically been addressed by legislators. When cases like this arrive, the DOJ is quick to point out that the lack of a specific legislative permission slip should be construed as a lack of definitive "no," rather than a suggestion the agency shouldn't allow its reach to extend its statutory grasp. But despite having the permanent ear of many sympathetic legislators, the FBI has never sought to codify its questionable hacking tactics. The closest it's come is the proposed Rule 41 changes, which would allow the agency to obtain a search warrant from the most accommodating magistrate judges and deploy them in jurisdictions where permission might not be so easily obtained. As the ACLU points out, the FBI's refusal to discuss this openly with legislators is being aided and abetted by courts far too willing to lock up any supposedly public documents the DOJ feels the public -- including legislators -- shouldn't be able to access. “The breadth and potency of malware as a law-enforcement tool raises concerns that can only be properly debated if legislators and the general public are aware of instances in which it is being used, the ways in which law enforcement seeks to use it, and the extent of judicial supervision,” the motion reads. “The sealing of docket sheets with warrants authorizing the use of malware prevents this critical public debate from happening, in violation of the public’s right of access.” Allowing the government to maintain this secrecy only encourages further abuse of existing statutes. The longer secrets can be protected, the longer the FBI can use questionable methods backed by even more questionable legal authority. The DOJ's insistence on secrecy in all things tech-related has led it to directly encourage parallel construction, order prosecutors to drop cases rather than reveal means and methods, and basically turn normal law enforcement into Black Ops: Domestic Edition. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Copyright trolls still plague the world, unfortunately. While many are the group and individuals that advocate against this form of legal extortion, nearly always built upon shaky evidence at best, too silent have been the ISPs that copyright trolls utilize to send out their settlement letters. For whatever reason, ISPs en masse have decided that it isn't prudent to advocate for their clients. But not all ISPs behave this way. In Sweden, ISP Bahnhof, which we have written about previously for its client-friendly practices, is fighting back against one copyright troll on behalf of its customers in the best way possible: by turning the intellectual property tables back upon them. Sweden has recently become something of a target for copyright trolls, with Spridningskollen leading the charge. This group, the name of which translates into English as "Distribution Check," uses data gathered by anti-piracy groups to send out the typical threat letters and settlement requests to people who have IP addresses accused of infringing on copyrighted material. A spokesman for Spridningskollen, Gordon Odenbark, insisted that his group's work was necessary for both providing revenue to rights holders and, more importantly, to deter the general public from violating the intellectual property rights of others. There's just one problem: Bahnhof has a valid trademark for the term "spridningskollen." “Bahnhof was the first to apply for the Spridningskollen trademark rights at the Swedish Patent and Registration Office,” the ISP announced. Earlier this year Bahnhof was the first ISP to warn the public about the looming flood of settlement requests. To help the public understand the severity of the issue the ISP launched the site Spridningskollen.org, which they say maps the “spread of extortion letters” from copyright holders. It's somewhat poetic that a consumer-friendly ISP started a website and got a trademark on a term that a copyright troll then chose to adopt as its name. Bahnhof appears to have started this website in April or so of this year, while the copyright troll's operations appear to have started more recently, which means that this isn't a case of Bahnhof squatting. Instead, it appears that the copyright troll, so concerned in appearance with piracy, didn't bother to do its homework in the trademark arena. And Bahnhof, seeing an opportunity to strike back legitimately in its customers' interests, isn't going to let this chance go by quietly. Now that the anti-piracy group has ‘stolen’ their name, Bahnhof plans to take action over the apparent trademark infringement. “It is surprising that those who claim to defend intellectual property rights don’t track it better themselves. It says a lot about the quality level of their so-called initiative,” Bahnhof CEO Jon Karlung says. The ISP is demanding that the website of the anti-piracy group, Spridningskollen.se, is shut down. “Our lawyers are looking into it. We see the many different ways that interfere with their operation. Extortion letters are unethical, anachronistic and counter-productive,” Karlung says. The rest of the world needs ISPs like this to assist in the stamping out of disease-fire that is copyright trolls. One can only hope that Sweden will successfully export the concept of an ISP that actually looks out for its customers. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Last week, Mike wrote about an important case involving one of the Creative Commons licenses. The fact that some 15 years after the CC movement started and the courts are still trying to bring legal clarity to the use of CC licenses is further proof that the law tends to lag far behind technology. Given their rarity, it's interesting to see another recent case involving a CC license, this time in Austria, pointed out by Alan Toner on his blog. As the timeline (in German) of the events indicates, the story began in January 2014, when thousands of left-wing protesters demonstrated against a ball organized by the far-right Freedom Party of Austria (FPÖ), held annually in Vienna. Following attacks on property and the police during the protest, one person was arrested, and in June 2014 his trial began. The left-wing film collective Filmpiraten published a couple of short videos relating to the person involved. Shortly afterwards, the FPÖ used excerpts from the two Filmpiraten videos as part of a report published on its YouTube channel. The FPÖ video was released under the standard YouTube license, which claims full copyright in the material. However, both the Filmpiraten videos used a Creative Commons license -- specifically, the BY-NC-SA license. Under its terms, others may use the material free of charge, but are required to release the resulting work under the same CC license. The FPÖ video did not respect that condition, so Filmpiraten's lawyers sent a letter asking for its material not to be used. The FPÖ responded by taking Filmpiraten to court, demanding €35,000 (about $40,000) in compensation for what it said were false accusations about its use of copyrighted material. The court case finally began in February 2015, and in July 2016 the judge ruled in favor of Filmpiraten, effectively upholding the Creative Commons license. One worrying aspect of the case is that Filmpiraten struggled to find the resources to conduct such an expensive and time-consuming legal battle. As a spokesperson for the organization told the Austrian site futurezone, that may be why the FPÖ has adopted this approach -- and why it is now appealing to a higher court in an attempt to get the judge's ruling overturned. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Touched on briefly during our rundown of police unions demanding better pay for better behavior and accountability was the San Antonio Police Officers Association's (SAPOA) demand that the city should be willing to raise wages if it really expected its officers to perform their duties without veering into abuse or misconduct. Part of what's keeping a deal from being struck between the city and the union is the amount of money on the table. This gives the union the appearance of holding the city's safety hostage until its demands are met. That may not be an entirely fair characterization (there's some "hostage-taking" on the other side as well), but there's something far more worrying in the proposed contract that's keeping this from being resolved. The San Antonio police union wants changes to disciplinary procedures that would effectively whitewash past misconduct by officers. Michael Barajas, writing for the San Antonio Current, takes a close look at the controversial clause, and how it's likely to allow bad officers to not only stay employed longer, but possibly rise through the ranks as well. At issue is the deal SAPOA and Mayor Ivy Taylor’s office negotiated this past summer to put an end to years of litigation over an evergreen clause in the union’s previous contract, which the city in court had argued was unconstitutional. Only recently, however, has police reform come to dominate discussions around the deal. As the Express-News first reported, Saldaña explained in an email to Taylor’s office last month why he wouldn’t vote on a negotiated contract that contained disciplinary procedures he called unacceptable. [...] Saldaña’s opposition to the agreement is rooted in disciplinary procedures outlined in Article 28 of the contract, which is set to go before council for approval next week. Under those rules, department officials and arbitrators hearing a case of officer misconduct won’t always get to consider an officer’s full disciplinary history when deciding what punishment to give. As it currently stands, if Chief William McManus wants to discipline an officer, he can’t cite as justification any drug- or alcohol-related violations more than 10 years old; infractions involving “intentional violence” only follow a cop for five years; any other disciplinary action only shows up for two years. If an officer is suspended for three days or less, the department, per the contract, automatically lowers the suspension to a “written reprimand” after a couple of years. Local activists calling for police reform say the policy amounts to government-sanctioned falsification of records. The passage of time may alter perceptions, but it shouldn't be allowed to alter facts. That's what the union's proposal would do: rewrite disciplinary records after the fact. There will be no such thing as a "permanent record" for the city's officers. With enough years on the force, every disciplined officer will morph into someone better-behaved than they actually are. Of course, union president Mike Helle thinks this is a perfectly acceptable way to handle misconduct issues. He claims this clause levels the disciplinary playing field. He wonders why a 10-year officer with a few minor infractions should be treated more harshly than a rookie with no prior incidents when punished for identical acts of misconduct. It should go without saying (but apparently Helle actually needs to hear it) that those with more seniority should be screwing up less and should receive harsher punishments than those without as much experience. It's not as though the current disciplinary process prevents supervisors from considering multiple factors and exercising personal discretion when handing down punishments. Helle just wants to ensure that the longer someone's on the force, the more likely they are to escape severe punishment. In practice, the union's suggested change would play out like this: As Express-News columnist Brian Chasnoff wrote last week, Saldaña has seized on the case of one former SAPD officer convicted of raping a teenager on duty to highlight the disciplinary policy’s troubling implications. More than two years before Jackie Neal pleaded no contest to “improper sexual activity with a person in custody,” he was reprimanded for having sex with an 18-year-old high school student he was tasked with supervising in the department’s youth police explorer program. For that, he received a three-day suspension—which, if you follow the department’s disciplinary policies, would have been changed to a written reprimand by the time he was accused of pulling someone identified only as Jane Doe in court records over on the south side, handcuffing her and raping her in the back of his police SUV. The officer ended up being convicted and having to surrender his peace officer's license. But what about those whose misconduct investigations are handled completely internally? If the union's plan was in place, the officer's file would have shown nothing more than a written reprimand -- hardly indicative of past issues with sexual misconduct. Helle calls the councilman's opposition to the whitewashing clause the "tantrum" of a "spoiled child." But he glosses over the fact that the union is still threatening to hold its breath until it gets its way. Helle claims he can't change the clause without undoing current negotiations and possibly ending up in court. That seems unlikely to be the only outcome of removing the stipulation. Occam's Razor (and columnist Michael Barajas) says the union boss just doesn't want to remove the clause as it gives the union much more leverage when representing officers during disciplinary hearings. What it doesn't do, however, is any favors for the public, which will be asked to pay the salaries of bad officers and underwrite the retconning of their permanent records. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
As we recently announced, on Monday, we'll be hosting the first in a new series of events we're running, called the Techdirt Greenhouse Salons. The first one is on The Battle For Copyright Reform, and will take place Monday evening in San Francisco (thanks to Automattic and Pinterest for sponsoring/hosting the event). You can request an invite at that page. The event will involve some very brief presentations upfront, but the main event will be the specific discussions among attendees about the upcoming fights for copyright reform (both good and bad) around the globe. If you would like to attend, please fill out the form requesting an invite (though, don't do what one person did and just use the form to rant about how evil we all were for destroying the music industry, without leaving a name or any other such info). It'll be a fun and enlightening event, so let us know if you'd like to join. We've also received tons of feedback from folks interested in future such Greenhouse Salons, so stay tuned...Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
While Hillary Clinton's tech policy proposals seem to be the standard mix of empty promises and vague nothingness designed to not pin her down on anything really serious, Donald Trump's tech policy proposals have basically been incomprehensible nonsense. Trump apparently feels that this kind of incomprehensible nonsense is working for him, so he doubled down this week. As first noted by CNN reporter Sopan Deb, Trump responded to a question from (Trump supporter) General Michael Flynn about ISIS and cybersecurity with a word salad of complete nonsense: Trump on his plan to fight ISIS: "And now the cyber is so big" - pivots to positive CNN poll. pic.twitter.com/L9nbFCPqaU — Sopan Deb (@SopanDeb) September 6, 2016 If you can't read that here's the key part: Michael Flynn: And to stay on ISIS a little bit because this is a really -- I think this is an important topic - it's one of the national security threats that our country faces today. You have described at times different components of a strategy. Military, cyber, financial and ideological. Can you just expand on those four a little bit? Donald Trump: Well, that's it. And you know cyber is becoming so big today. It's becoming something that a number of years ago, short number of years ago, wasn't even a word. And now the cyber is so big. And you know you look at what they're doing with the Internet, how they're taking and recruiting people through the Internet. And part of it is the psychology because so many people think they're winning. Any you know, there's a whole big thing. Even today's psychology — where CNN came out with a big poll. Their big poll came out today that Trump is winning. It's good psychology, you know. It's good psychology. I know that for a fact because people they didn't call me yesterday, they're calling me today. So that's the way life works, right? But I think we're doing very well and I really thank the state of Virginia, so many different places have been so incredible. So I thank you very much. But cyber has been very, very important and it's becoming more and more important as you look and a lot of it does have to do with ideology and psychology and lots of other things. You know, we're in a different world today than we were in 20 years ago, 30 years ago. And one of the biggest problems and one of the reasons that we have to knock them out is because the weaponry is so powerful today. You know, in the old days, you could've said, "Well look they have rifles. We have rifles. We should at they have uniforms." This is a whole different war. The weaponry is so powerful. And we have to beat them over there. We're allowing people to come over here. We're allowing, think of it. Your military people -- we're allowing people to come over here. And you know, I used to watch the migration, and I'd see people with cell phones, I said, "where did they get cell phones?" And some of those people had very horrible things on their cell phones including the ISIS flag. And you say, what are we doing? What are we doing? But we're allowing people to come here and we don't know. Do they turn on us? Are a small percentage of them bad? Because if a small percentage is bad, that's not acceptable. That's not acceptable. We can't take the risk. Just a small percentage can do such damage. So we can't take the risk. So, General, the bottom line is we have to get very tough and we have to get very smart or we're not gonna have much of a country left. I can tell you that right now. So, uh, wait. What? Apparently Donald Trump's "cybersecurity" policy is "Hey, look at this poll that says I'm winning!" And also "How did ISIS get cell phones?" Meanwhile, the brave Philip Bump over at the Washington Post tried to fact check the only clear factual statement in that rambling mess: that the word "cyber" was just created a few years ago. Of course, that's not true (though I guess that depends on what you consider to be a "short number of years ago"), but I'd argue that the fact that "cyber" predates the birth of one Donald Trump, that the statement isn't all that accurate. But, really, who gives a fuck concerning when Donald Trump thinks the word "cyber" was first coined? The real question should be on what's the actual policy here, because in those three paragraphs above there's nothing even remotely resembling a policy, or a coherent idea. Clinton's tech policy is a hot mess of emptiness, but at least there's a policy that people can look at and talk about. Trump, on the other hand doesn't even seem to recognize what cybersecurity means and what a policy would entail. Oh, and as for the claims about how ISIS is "recruiting people through the internet" multiple studies on that have suggested that ISIS's internet recruitment strategy isn't all that effective -- that most recruiting is done through real world networks, rather than virtual ones. But you know which groups really are having success growing their online presence? White nationalists and neo Nazis, with many of them strongly supporting... Donald Trump. “On Twitter, Isis' preferred social platform, American white nationalist movements have seen their followers grow by more than 600 per cent since 2012,” the study, authored by JM Berger, stated. “Today, they outperform Isis in nearly every social metric, from follower counts to tweets per day.” [....] Donald Trump is a prominent subject among white nationalists on Twitter. According to the study, white nationalist users are “heavily invested” in the Republican’s candidacy. Tweets mentioned Mr Trump more than other popular topics among the groups. So, yeah. I wonder what Donald Trump's "cyber policy" to deal with those folks would be.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
When the FCC crafted its new net neutrality rules, we noted that the agency's failure to ban "zero rating" (exempting your own company's content from usage caps) was going to be a problem. And lo and behold, with the FCC AWOL on the subject, companies are starting to take full advantage. Verizon and Comcast now exempt their own streaming video services from usage caps without penalty, while companies like T-Mobile and Sprint have launched new confusing and punitive data plans that throttle games, music and video content -- unless users pay a premium. These were all concepts net neutrality rules were supposed to prevent. But because the FCC's rules didn't go quite far enough, we're effectively looking at rules that make net neutrality violations ok -- provided you're just a little bit creative about it. Outside of the vague promise of an "information inquiry" that began last January, the FCC hasn't said much of anything as ISPs test the limits of the existing rules and pretty much finds that so far -- there really aren't any. Encouraged by the FCC's apathy on the subject, AT&T this week quietly began exempting DirecTV video content from its usage caps after buying the satellite TV provider last year for $69 billion. A quiet update to the DirecTV app indicates that the company is now pushing this as a new "data free TV" option":AT&T is getting into the messy business of zero-rating, offering wireless data subscribers the opportunity to stream video from the DirecTV mobile app with no data costs at all. According to update notes from the latest version of the app released today, users can "stream DirecTV on your devices, anywhere — without using your data." This promise was tested by Verge staff this morning, who were able to play DirecTV content on their mobile without any noticeable impact to their data allowance. However, the release notes for the app warn that there are restrictions. Under some unspecified circumstances users may still "incur data charges," says DirecTV, and any free video streaming is subject to "network management, including speed reduction."Much like T-Mobile's Binge On efforts (which zero rate only the biggest video services) the idea of getting something for "free" sounds wonderful upon superficial inspection. At least until you realize that AT&T's decision to give its own content an unfair leg up in this fashion puts its competitors, like Netflix and Amazon, at a distinct disadvantage. That's why so many people had urged the FCC to follow India, Japan, Finland, Iceland, Estonia, Latvia, Norway, The Netherlands, and Chile's approach to net neutrality rules and ban zero rating entirely. The FCC didn't, and thanks to its failure, we now face a scenario where net neutrality can be trampled without repercussion -- and may even be celebrated by the press and public -- provided you just use the right shade of public relations paint. And there's every indication AT&T's just getting started. This particular announcement (made on Apple product announcement day to capitalize on the tech media's distraction) was just AT&T dipping its toe into the zero rating water. The company plans to launch three different streaming services under the DirecTV brand later this year, and you can be fairly sure that AT&T intends to use zero rating to give all of them a distinct, and notably unfair, market advantage.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Brush up your coding skills and get ahead of the curve with the Complete iOS 9 and 10 Development Bundle. For $35, you'll learn Apple's programming language, Swift, from scratch and start building iOS apps like a pro. You will also learn about how the new iOS 10 apps can extend to Messages, Siri, Phone, and Maps to provide more engaging functionality than ever, so you can be ahead of the curve in learning the upcoming update. StackCommerce is also hosting an iPhone 7 Giveaway. Sign up to enter into the sweepstakes and you could win a free iPhone 7. Please see official rules for more information. 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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posted 22 days ago on techdirt
We've discussed a few times in the past how Google's seemingly arbitrary policies are a potential problem for various media companies that often rely on the company. We've detailed ridiculous warnings we've received because our news stories covered topics that Google deemed offensive, because apparently no one at Google can distinguish between reporting on something offensive and just posting something offensive. We've also discussed how Google tends to present itself as a great white monolith to those who run up against its seemingly arbitrary policy decisions where there's basically no recourse and no human to speak to. The latest such example of this happened over the long weekend and seems to have impacted plenty of websites -- including us. And, yes, part of this is our own damn fault in relying on a service from Google, which we've now routed around. The short version is that, many years ago, we signed up with a service from FeedBurner, to manage our RSS feeds. We did so somewhat reluctantly. We had first published an RSS feed back in April of 2001 (along with an apology for being so "late" to the RSS game) and we'd run it ourselves for years. Eventually, FeedBurner added enough features that we felt it was worthwhile to let it run our RSS feed -- though that came with promises from the then FeedBurner team that if there were any problems we could easily dump it. Over time, FeedBurner got purchased by Google and subsumed into the Google machine. At some point, a few years ago, anyone still using FeedBurner had all links in those RSS feeds automatically switched to using Google's URL shortener. Also, several years back, we used the fact that FeedBurner had a one-click integration with Twitter to easily send all Techdirt stories to Twitter, which has become an important source of traffic. So that's how it came to be that all of our RSS links and all of our Twitter links had Google shortened links in them. And, yes, go ahead and laugh at us for being this reliant on Google. We should have known better. And we did know better. I'd been meaning to write an article about how the Supreme Court actually used a Google shortened link in a recent decision, leading Parker Higgins from the EFF to point out some serious potential problems with this, including the fact that Google could arbitrarily change where the link goes, or if it goes anywhere at all. That seems... problematic for a Supreme Court citation. In fact, because of all of this, some libraries (led by Harvard's Law School Library), set up Perma.cc, which is designed with the promise of allowing "scholars, courts and others to create web citation links that will never break." It promises to even archive the content of any link, so that if it does break, the content will still be available. And so, yes, we were totally aware that there were potential issues, and obviously we were aware that Google sometimes makes totally arbitrary decisions that fuck with people and companies who rely on them... but sometimes even when you know all that, if it's not a priority, you let it slide. And it wasn't a priority, because we've got lots of other stuff going on these days. Well, it wasn't a priority until yesterday. That's because yesterday morning when we all got back to work from the long weekend (I was completely disconnected, off camping in the mountains) we had a ton of emails, messages and tweets from Techdirt readers and supporters about how all our links were broken -- with every one of them pointing to a page on Google's site saying that we had violated Google's terms of service. So... yeah. For what it's worth, we received absolutely no notifications from Google about this. No explanation of how we had "violated" their policy. And it was doubly nice of them to do this over a long weekend when we were all off and away, so that nothing worked for multiple days before we had a chance to dump their RSS feed system completely. And... apparently we were not alone. A bunch of other sites had the exact same experience and there are a bunch of people asking what the hell happened. With no explanation, no notification, Google just made a lot of websites' RSS and Twitter feeds break completely. And this includes some other high-profile bloggers as well, like Violet Blue. The leading theory that I've seen going around is that Google is actually blocking all links in any FeedBurner feed, because it's a violation of its own terms of service. Seriously. The link-shortener "goo.gl", run by Google, is blocking all URLs generated by Feedburner, run by Google. pic.twitter.com/IR7wrlv6xj — Great Again Also (@agentdero) September 6, 2016 That's because Google's URL shortener's terms of service bans "URL re-directors" and it appears that the genius engineers at Google have decided that Google-run FeedBurner is nothing more than a URL re-director and killed off everyone's links without notice or explanation. This despite the fact that they're the same damn company and that FeedBurner unilaterally moved everyone's RSS feed to use Goo.gl links in the first place. Bravo, guys. Meanwhile, despite lots of sites complaining, and people reaching out, the Great White Monolith remained silent. Well, until an hour or so ago -- just as I was putting the finishing touches on this post, after having reached out to multiple people at Google, I heard back from someone saying that this was a mistake that had been "fixed." There's still no official explanation of why it happened. No explanation of why no one at Google seemed to notice that all of its FeedBurner feeds were throwing up errors on every link due to Google's own use of its own URL shortener. How that could last for five days while a bunch of sites that relied on the product were left with no recourse wasn't explained either. So, yeah, we've moved our RSS feed away from FeedBurner/Google. And you can argue that we should have done so a while ago -- and you're probably right. But, really, can't a company as big as Google figure out how not to fuck over a bunch of media websites that make use of its services?Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
The government doesn't care much for a level judicial playing field. That whole checks and balances thing? It's just getting in the way of speedy prosecutions. Federal and state prosecutors have engaged in routine Brady violations -- the withholding of exculpatory evidence from defendants. Immigration and Customs Enforcement (ICE) is taking this to a whole new level. It's refusing to turn over FOIAed records to a defendant's lawyer expressly because they could be used to mount a defense against the government's charges. Of course, ICE doesn't say so in those exact words, but the words it does use leave that distinct impression. The ACLU of Colorado notes that defense lawyers in immigration cases are even more hamstrung than most when going up against the government. Jennifer Smith, an immigration attorney, filed a FOIA request to U.S. Citizen and Immigration Services (USCIS) for records related to the immigration status of one of her clients. Immigration attorneys have limited discovery options and can generally gain access to a client’s immigration file only by filing a FOIA request. From the FOIA lawsuit [PDF]: In order for Ms. Smith to determine what steps, if any, needed to be taken on behalf of Ms. Sanchez, on or around May 22, 2013, Ms. Smith submitted a FOIA request to USCIS. Specifically, Ms. Smith’s FOIA request sought Ms. Sanchez’s “Complete Alien File (A-File)” and “any and all records of entry into the United States or departures from the United States after January 1, 2005” and “any and all records of I-94s pertaining to this person after January 1, 2005.” This information was necessary for Ms. Smith to properly analyze how best to advocate on behalf of Ms. Sanchez. ICE doesn't want Smith's client to be advocated for with any sort of skill or competence or even with documents the agency has no right to withhold. It withheld the records in full. ICE stated no applicable FOIA exemption when doing so. Instead, it simply claimed it's standard procedure for it to prevent defendants in immigration proceedings from being defended properly. And it delivered this FOIA GFY after a delay of more than two years. When USCIS produced documents to Ms. Smith, the 18 pages that had been referred to ICE were blank except for the words “Referred to Immigration and Customs Enforcement” printed at the top. USCIS provided no basis for withholding the 18 pages of documents under any of the FOIA exceptions enumerated above, or for any reason at all. Instead, USCIS apparently takes the position that it satisfied its FOIA obligations by “referring” the documents and FOIA request to ICE for further handling. [...] On September 3, 2015 (more than two years after the FOIA request was submitted to USCIS), ICE responded to Ms. Smith as follows: ICE’s records indicate that as of September 3, 2015, the subject of your request is a fugitive under the Immigration and Nationality Act of the United States. It is ICE’s practice to deny fugitive alien FOIA requesters access to the FOIA process when the records requested could assist the alien in continuing to evade immigration enforcement efforts. ICE doesn't want the defendant to "evade" justice. That's why it's decided it won't allow the defendant's lawyer to view any documents related to her. This is ICE's "practice:" to withhold documents possibly vital to a suspect's defense under the theory -- but not under any actual FOIA exemption -- that the information sought might somehow be used to defend against enforcement efforts. To ICE, files helpful to the defense are little more than getaway cars for fugitive aliens. By refusing to hand over these documents, ICE hopes to prevent its prosecutions from being slowed by the adversarial process. Smith's lawsuit points out that the agency's "practice" erects obstacles that become almost insurmountable when combined with language barriers and the plethora of federal agencies involved in securing our nation's borders. ICE’s “practice” of denying access to the FOIA process imposes significant burdens on lawyers who represent non-citizens in connection with immigration issues. In many cases, lawyers cannot effectively represent their non-citizen clients—or even determine whether there is a way to help them—without access to information or records the client may be unable to provide. Many non-citizens lack familiarity with the immigration system and U.S. law enforcement in general, and do not know or understand the difference between various agencies with which they might interact. The Department of Homeland Security, for example, has several branches that a non-citizen may encounter, but with different roles within the system. These agencies include, among others, Customs and Border Patrol, ICE, and USCIS. Often, noncitizens (and citizen non-lawyers, for that matter) may simply know they are talking to an officer wearing a badge, without understanding what jurisdiction and/or authority that person represents. Thus, anon-citizen’s understanding of a contact with government agents is often insufficient to inform an immigration attorney as to what occurred and the outcome of any agency investigation. Furthermore, the client may not remember events that occurred long ago, or may not have received mailings or notices from USCIS and/or ICE. In other cases, the non-citizen might be unaware of proceedings that occurred where the non-citizen was not present, or if present, where the non-citizen failed to understand what happened, or the significance of what happened. Or there may be procedural irregularities that a lawyer could discern from the government’s documents that her client, as a layperson, might not recognize. Or, in some cases it is possible that a deportation order issued in absentia that the non-citizen knows nothing about. Or a non-citizen may not know whether a claim of asylum was properly acted on, or was even presented to the proper agency. As a result, immigrants seeking legal advice may be unable to explain to their attorney which agency they met with, and what type of interaction transpired, and what the legal issues may be. In these circumstances the only way the non-citizen’s lawyer may obtain this kind of information is through a FOIA request. Without access to the FOIA process, a lawyer may have literally no place to start in assisting her client. "No place to start" is exactly where ICE likes opposing lawyers. Smith and the ACLU are hoping to change this. They're seeking not only a judgment that will force ICE to turn over the requested files, but also prevent it from using its wholly-madeup FOIA "practice" to deny records in the future. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
While hacking and "cybersecurity" threats have long been used to justify awful government policy, the entire concept is clearly about to be turbocharged. With the rise in hacking attacks on the DNC, many were quick to call for renewed cyberattacks on Russia despite the fact that hard, transparent proof of Russian nation state involvement remains hard to come by (the idea being unsound either way). But in a speech last week, Presidential hopeful Hillary Clinton took things one step further by suggesting that she'll make it an administration goal to respond to cyberattacks with real-world military force: "As President, I will make it clear that the United States will treat cyberattacks just like any other attack. We will be ready with serious political, economic, and military responses," she told the attendees, largely made up of veterans and their supporters. "We are going to invest in protecting our governmental networks and our national infrastructure," she continued. "I want us to lead the world in setting the rules in cyberspace. If America doesn't, others will." There are several things wrong with this narrative. The US government and Western media seem to frequently go out of their way to imply that the United States is an innocent little hacking daisy, nobly defending itself from a wide variety of evil international threats. But as we saw with Stuxnet, the United States is very often the country doing the attacking, often with major negative impact on countries, companies and civilians worldwide. That the US has the moral high ground on cybersecurity is little more than a stale meme, and it needs to be put out of its misery. And granted, while Clinton was clearly trying to appeal to her veteran audience at the American Legion National Conference (most of whom likely can't tell a terabyte from T-Mobile), America's moral cybersecurity superiority was on proud display all the same:"We need to respond to evolving threats from states like Russia, China, Iran and North Korea," Clinton said in the speech. "We need a military that is ready and agile so it can meet the full range of threats and operate on short notice across every domain – not just land, sea, air and space but also cyberspace. "You've seen reports. Russia's hacked into a lot of things, China has hacked into a lot of things. Russia even hacked into the Democratic National Committee, maybe even some state election systems. So we have got to step up our game. Make sure we are well defended and able to take the fight to those who go after us." Again, you'll note that the United States is portrayed as an innocent and noble defender of cybersecurity freedom, when it's the one often engaging in frequently-unprovoked attacks the world over. Of course, Clinton and friends are well aware that the vast majority of the time it's impossible to know where an attack came from, and any hacker worth his or her salt simply doesn't leave footprints. That makes a real-world military or economic response to a nebulous, usually-unprovable threat simply idiotic. You'd assume Clinton knows this and was just doing some light pandering to the audience. But this rhetoric alone is still dangerous in that it opens the door wide to using hacking -- much like communism and Islamic extremism before it -- as a nebulous, endlessly mutable justification for a litany of bad US behavior. You could, for example, covertly hack a government, publicize its hacking response to your hack, using the press to help you justify military action. Given the US and global media's historical complicity in helping governments begin wars with jack shit for evidence, it shouldn't be hard to see how hacking is going to be a useful bad policy bogeyman du jour for decades to come. Despite some repeated, painful lessons on this front stretching back generations, forcing the government to show its math before it resorts to violence is simply not the US media's strong suit. And with hacking and cybersecurity being subjects the press and public are extra-violently ignorant about, we've created the opportunity for some incredible new sleight of hand when it comes to framing and justifying US domestic and international policy. If history is any indication, by next time this year we'll be blaming everything under the sun on Russian hackers because after all, two anonymous senior government officials said so. Healthy skepticism will be our ally as we stumble down the rabbit hole. While it's no surprise that Russia, like the United States is deeply-involved in nation state hacking, you'll note that actual evidence linking the Putin Administration to the recent rise in US hacking attacks remains fleeting. Most reports simply cite a single anonymous US government source, or security firms with a vested interest in selling services and products. That's not to say Putin and friends aren't busy hacking the US, but whether a country is responding to similar attacks by the United States (pdf) -- or is actually involved at all -- is rather important to transparently document before you begin trotting out awful new policies or worse, real world bombs.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Last spring, New Mexico's governor signed a bill into law that would prevent law enforcement from seizing people's assets without securing a criminal conviction. This was likely prompted by the New York Times' publication of footage from Las Cruces asset forfeiture seminar in which the speaker basically said asset forfeiture is used by law enforcement to "shop" for things they want. Several months later, the city of Albuquerque was sued by state legislators because its police refused to stop seizing assets -- mainly vehicles -- without obtaining convictions. The city claimed the new law only applied to state police, and anyway, it was only performing a valuable community service by taking cars away from members of the community. “Our ordinance is a narrowly-tailored nuisance abatement law to protect the public from dangerous, repeat DWI offenders and the vehicles they use committing DWI offenses, placing innocent citizens’ lives and property at risk,” city attorney Jessica Hernandez said in a statement to BuzzFeed News. “The ordinance provides defenses to forfeiture to protect innocent owners and has been upheld by the courts.” lol. "Defenses." Here's what really happens when the Albuquerque police blow off state law and perform "nuisance abatement." After her son was arrested in April for drunk driving while at the wheel of her borrowed Nissan Verso, Arlene Harjo, 56, found herself in court being told that she had to transfer ownership of the car to the city, or else settle the case for $4,000 to get it back. Those are the "defenses." Sign your car over or pay a fine large enough to discourage most people from recovering their vehicles. Note that the vehicle's owner wasn't suspected of any criminal activity. And there's nothing in The Guardian's story that suggests her son had even been convicted or pled guilty before the city demanded she relinquish ownership of her car. For most people, $4,000 is an insurmountable obstacle. What makes this even worse is Arlene Harjo is still on the hook for the loan covering the vehicle she can't use. Harjo has found herself stuck in a bureaucratic labyrinth in which she is making loan payments on a car as it sits in a government impound. On top of that, if she signs over ownership to the city, for resale, she will still have to keep making loan payments for a car she no longer possesses. On top of that, even if Harjo comes up with $4,000, she still won't be able to use the car. C.J. Ciaramella of Reason (who broke the story) has more details on the city's vindictively-slanted legal playing field. In Harjo's case, the city offered to give her car back in exchange for $4,000 and having it booted for 18 months. And here's the "defenses to forfeiture" the city claims makes the process equitable. At her hearing, Harjo was supposed to have a neutral arbiter, but the Chief Hearing Officer in Albuquerque is Stanley Harada, the same person who crafted the city's asset forfeiture program back when he was a city attorney. Harada lectured Harjo, arguing she shouldn't have trusted her son, according to audio of the hearing. Harjo's son had several drunk driving offenses in the past, but the last one occurred in 2009. "By providing him with a vehicle you're taking a big, big risk," Harada said. "This law is here to try and prevent people from getting killed and injured." It seems like the best way to keep people from being killed and injured is to take drunk drivers off the street, rather than a third party's vehicle -- one that hasn't been known to kill or injure anyone when driven by its owner. Why is this system -- which may still be found to be illegal under state law -- so antagonistic to people in Harjo's situation? Because it is designed from the ground up to feed money directly to the same law enforcement entities that perform the seizures. According to last year's lawsuit against the city, Albuquerque forecasts how many vehicles it will not only seize, but sell at auction. The city's 2016 budget estimates it will have 1,200 vehicle seizure hearings, release 350 vehicles under agreements with the property owners, immobilize 600 vehicles, and to sell 625 vehicles at auction. In fact, the Albuquerque city council approved a $2.5 million bond to build a bigger parking lot for cars seized under the DWI program. The revenue to pay for the bond will come from the DWI program. As Ciaramella points out, the city of Albuquerque currently seizes around 1,000 cars a year and city law enforcement directly benefits from the $8.3 million the program has brought in since 2010. The incentives are completely broken. The city isn't interested in scaling back its seizures because it has already decided how many cars it needs to take possession of to hit its budget numbers for this year. Without a ruling declaring these seizures illegal under state law, Albuquerque police (when not shooting a bunch of the city's residents) will be viewing every minor traffic stop as an opportunity to take another "criminal" vehicle off the streets. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
We've spent some time and energy in these pages poking at Bethesda and its parent company, Zenimax, over each's overtly ridiculous stances on protecting what it views as its intellectual property in the past. But even a bad actor in the IP arena can get things right in other ways and Bethesda has shown itself to be fairly good in the past in the area of connecting with its fans. This is one of the more underappreciated aspects involved in digital business models, in which the digital realms where we operate open up content producers to direct interaction with their customers. Done right, this will ingratiate a business with its community, fostering a loyalty it might otherwise not have. Done really right, it gets a company all of that plus a PR bonus that can only come from these organic interactions. Which brings us back to Bethesda, makers of Fallout 4. The company recently heard from one fan showing his appreciation for its work on the game and the game's help in getting him through some fairly rough times. “I have spent over 500 [hours] in this game,” NoohjXLVII wrote on theFallout 4 Reddit (via Eurogamer). “Partly due to the fun gameplay, the new survival mode, and just the game in general. My dad passed away last year (age 56)... I didn’t take it well.” To deal with the pain, he made a bipedal sentry bot and named it after his father. “The name of the bot was GR-36, as his name was Greg.” Then, this summer, when NoohjXLVII finished Fallout 4, he got a call that his 24-year-old brother was in the ICU. Sadly, his brother passed away. (His friends started a GoFundMe, which goes into more detail about his medical condition.) “Thank you Bethesda for providing me with this wonderful game and distraction for everything I’m going through,” NoohjXLVII wrote. Entertainment has always worked this way, whether it's professional sports, books, movies or music, an artistic medium's capacity to whisk us away from the troubles of life has always been a primary motivator. Those troubles can be mundane, or they can be of the more extreme variety. The ability to lose oneself is no different in the art of video games. Still, stories and feedback like this are not especially rare. I've seen them all over the place. More rare is Bethesda's decision to thank NoohjXLVII not only by sending him a very nice care package, but by writing his late brother into the game as a character. Bethesda not only sent NoohjXLVII a care package, but added his brother to the game’s Nuka World DLC. “The words they use sound exactly like him, however he was also a pretty funny guy, full of puns,” NoohjXLVII wrote yesterday, thanking Bethesda and saying he would forever be in their debt. The character is overtly kind and caring to the player, mirroring what NoohjXLVII says of his real life sibling. It's touching for the public, but must have been a deeper kind of experience for this one person who lost two family members. Whatever we might say about the company's stance on intellectual property protectionism, this is connecting with fans done very, very well. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
If you're a gadget watcher or an Apple fanatic, then you already know that tomorrow is Apple's big fall event when it announces new hardware products. Unlike basically every other tech blog in the world, we tend not to cover the announcements (or all of the rumors leading up to those announcements). Every so often something interesting will come out of them and we'll write up that, but for the most part, we recognize that other sites are going to cover the basic beats and we're not the kind of publication that wants to spend our time writing up promotional copy for tech companies. But, sometimes there's some overlap in our usual coverage and these kinds of events. Brian Conroy, a trademark lawyer in Ireland who has a fun blog of trademark-related issues realized that Apple may have leaked some details via its trademark applications. For example, while there are rumors of three new iPhones, Conroy notes that Apple has only applied for two trademarks related to the iPhone 7: "iPhone 7" and "iPhone 7 Plus." That doesn't necessarily mean that there isn't a third option, but the trademark applications seem to suggest only two. Conroy has also dug deep into global trademark filings to basically prove that Apple is the company behind the trademark filing for "Airpods" which many expect to be the name of the new earbuds or something similar that Apple may announce. The trademark itself was noticed a long time ago, filed for a company named "Entertainment in Flight LLC," presumed to be a dummy corporation set up by Apple. But Conroy goes further and shows that Apple may have slipped up in hiding some of this, and that the same Airpods trademark filing in countries like Norway, Malaysia and India came directly from Apple -- and the one in Malaysia points back to the original Entertainment in Flight filing in the US -- more or less proving that Entertainment in Flight is really Apple. Here's Conroy's video explaining this: Trademark law: finally useful for something.Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Hopefully you will recall that Take Two Interactive had been facing down two lawsuits brought by Lindsay Lohan and Karen Gravano over character depictions in the company's opus, Grand Theft Auto V. Both filed suit over publicity rights and likeness concerns in New York. Lohan claimed that a character in the game that evaded paparazzi after having sex in public and made some oblique references to similar-sounding movies that Lohan had acted in, along with a female character on the game's cover art, were both ripping off her personage. Gravano, meanwhile, claimed that a different character, one which made references to starring in a reality show about mobster wives and evading mob retribution, was ripping off her personage. While both suits failed to address the fictional differences in the characters, which were both composite characters parodying their celebrity archetypes, Take Two attempted to defend itself with those facts and tried to get the case dismissed. Strangely, the court at the time allowed the case to move forward... ...and now the appellate division has reversed course and tossed both cases out. On Thursday, New York's appellate division first department took a look at both this case as well as one involving ex-Mob Wives star Karen Gravano, who brought a similar lawsuit against Take-Two over Grand Theft Auto V. Gravano had filed a $40 million complaint over the character of "Andrea Bottino," who allegedly used the same phrases the plaintiff did, had a father who was a government informant and had a mutual connection with reality television. Gravano's suit was given a green light by the same trial judge in the Lohan lawsuit. The court's decision makes it clear that both lawsuits, brought for publicity rights reasons, don't stand up to New York's law. First and foremost, this is because the characters in the game aren't a direct composite of either plaintiff. Both Gravano's and Lohan's respective causes of action under Civil Rights Law § 51 "must fail because defendants did not use [plaintiffs'] name, portrait, or picture'" (see Costanza v Seinfeld , 279 AD2d 255, 255 [1st Dept 2001], citing Wojtowicz v Delacorte Press , 43 NY2d 858, 860 [1978]). Despite Gravano's contention that the video game depicts her, defendants never referred to Gravano by name or used her actual name in the video game, never used Gravano herself as an actor for the video game, and never used a photograph of her (see Costanza at 255; see generally Wojtowicz at 860). As to Lohan's claim that an avatar in the video game is she and that her image is used in various images, defendants also never referred to Lohan by name or used her actual name in the video game, never used Lohan herself as an actor for the video game, and never used a photograph of Lohan (see Costanza at 255). And, second, because the kind of depiction being discussed in these cases is protected First Amendment speech, as should have been obvious from the outset. Even if we accept plaintiffs' contentions that the video game depictions are close enough to be considered representations of the respective plaintiffs, plaintiffs' claims should be dismissed because this video game does not fall under the statutory definitions of "advertising" or "trade" (see Costanza at 255, citing Hampton v Guare , 195 AD2d 366, 366 [1st Dept 1993], lv denied 82 NY2d 659 [1993] [stating that "works of fiction and satire do not fall within the narrow scope of the statutory phrases advertising' and trade'"]; see generally Brown v Entertainment Merchants Assn. , 564 US 786, 790 [2011] ["(l)ike the protected books, plays, and movies that preceded them, video games communicate ideas . . ." and deserve First Amendment protection]). This video game's unique story, characters, dialogue, and environment, combined with the player's ability to choose how to proceed in the game, render it a work of fiction and satire. Meanwhile, one imagines that the legal teams for both women have been handsomely paid for not informing their respective clients of the futility of these lawsuits from the outset. I mentioned early on in these posts that the legal team for Take Two ought to have been able to stroll into court in their underwear, scream "Parody! First Amendment!" and immediately walk out of the courtroom victorious. That it had to go to much more trouble than that is unfortunate, but it's still good to see the court get this right. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Not all Kickstarter campaigns are created equal. Even the mostly-good ones that eventually satisfy their backers are often plagued with delays and poor communication. But once in a while, there's a campaign that runs smoothly, communicates openly, and delivers a great product on time as promised — and Minaal is one company that pulled off such a campaign to launch its line of travel bags. This week, we're joined by co-founder Jimmy Hayes to discuss how they pulled it off and what their experience can teach us about other campaigns and the broader crowdfunding ecosystem. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
The latest leak about the NSA's overseas spying transgressions took the unlikely form of a little-noticed YouTube video -- one that covered mostly-wonkish subject matter. The details of the NSA's malware attack on the French "White House" were revealed during an interview with Bernard Barbier, the former head of the French Intelligence Service, by a local engineering school. The video, of course, has since been removed, but not before French paper Le Monde picked up on the content of the interview. Matt Suiche parses it all out -- an inadvertent confirmation of a Snowden document leaked in 2013 that contained an itinerary item about a discussion between French and US intelligence officials concerning a (at that time "alleged") "May 2012 cyber attack on the French Presidential network." Sure, spies are known for spying on foreign governments. But allied countries were supposed to keep this sort of non-brotherly spying to a minimum. The former head of the French Intelligence Agency described the meeting this way: “I received the order from the successor of Mr Sarkozy (Francois Hollande) to go in the U.S. to shout at them. We were sure it was them. At the end of the meeting, Keith Alexander (Director of the NSA) was not happy. When we were in the bus, he told me he was disappointed because he never thought we would detect them and he even added “You guys are good”. The major Allied Powers, we do not spy on them. The fact the U.S. broke this rule was a shock”  Note that Keith Alexander wasn't sorry the NSA had breached international spy agency decorum, much less attacked the presidential network of a foreign ally. He was only sorry his agency had been caught -- and by a comparatively-unpowered agency at that. Barbier notes elsewhere in his interview that the agency that sniffed out the NSA intrusion did it with 1/20th of the workforce and 1/40th of the budget. The NSA, in his view, is an argument against government bloat. More dollars do not equate to better spying. Indiscriminate targeting and even more indiscriminate collecting lead to a lot of analyst busywork. Despite this disagreement over NSA hacking, it appears Keith Alexander found some common ground with the head of French Intelligence. One of the things the NSA does with the data it collects is kill. France is apparently using its collections the same way. Another surreal part is when Keith Alexander told Bernard Barbier about the “Find & Fire” projects they have in Iraq to identify (within a 7km radius) & eliminate bad guys with drones. So apparently France is working on similar technologies as Barbier managed to convinced them to do the same… So, there's that. Even if spy agencies can't agree on the propriety of snooping on world neighbors, at least they both believe metadata is an indispensable part of their respective extrajudicial killing programs. And, given the nature of this leak, both agencies will probably be taking a closer look at the non-disclosure agreements foisted upon departing employees. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
The FBI generally likes to keep as much information as possible out of the public's hands, so its decision to release its files on the Hillary Clinton email investigation are probably best viewed as a one-off, rather than the leading edge of a new era of transparency. The agency certainly couldn't pretend there isn't significant public interest in the content of the investigative files. The outcome of a presidential election could very well hinge on the voting public's interpretation of the documents' content. And the FBI certainly has an interest in clearing the air of any hints of politically-motivated favoritism. That the investigation occurred at all does some damage to Clinton's credibility, while the decision not to pursue prosecution doesn't do much for the FBI's. A closer look at the investigative documents simply gives more credence to the FBI's assertion that it found evidence of stupidity, but not criminal intent. At worst, the private email server allowed Hillary Clinton to better avoid FOIA requests (an effect now nullified by the State Department's ongoing release of nearly every email it's been able to recover) -- something that's a civil violation, rather than a criminal one. From the Washington Post's Matt Zapotosky and Rosalind Helderman's dive into the FBI's docs: [PDF vol. 1, PDF vol. 2] Clinton told the FBI that she used the private server for convenience, not to evade public record laws. But the documents show that former secretary of state Colin Powell appeared to advise her early in her term that private email could give her more control over her communications in the face of public inquiries. In January 2009, according to the FBI, Clinton contacted Powell, who also used a personal email account during his time in office, to ask about his use of a BlackBerry. According to the FBI, Powell “warned Clinton that if it became ‘public’ that Clinton had a BlackBerry, and she used it to ‘do business,’ her e-mails could become ‘official record[s] and subject to the law.’” “Be very careful,” Powell advised Clinton, according to the FBI. “I got around it all by not saying much and not using systems that captured the data.” Clinton's defense of her private email server was that she was using it for convenience and figured any public records requirements were being met by third-party recipients using official government email accounts. Supposedly, this indicates she wasn't trying to duck FOIA requests. However, this explanation doesn't really mesh with her decision to give staffers email addresses on her private server. Once that happened, there were no third parties preserving records. It was all left up to Clinton. Plenty of efforts were made -- deletion, destruction of devices, etc. -- to purge emails that possibly should have been preserved as public records. The only criminal issue would have been the mishandling of sensitive information, something Clinton did regularly. But the FBI found no evidence of maliciousness. Just a surprising amount of stupidity from someone who should have known better. Clinton told FBI agents that she did not know much about how the government classified information. For instance, she said she did not pay attention to the difference between levels of classification, like “top secret” and “secret,” indicating she took “all classified information seriously.” When shown an email she received in which a paragraph had been marked with a “C,” a standard way of indicating it included “confidential” information, Clinton at first speculated to agents that the marking was indicating that email contained bullet points in alphabetical order. Clinton may have pled ignorance when questioned by the FBI, but these statements directly contradict assertions she made to reporters on Monday: “I went into the State Department understanding classification. I’ve been on the Senate Armed Services Committee for years before I was Secretary of State. I take classification seriously. The fact I couldn’t remember certain meetings, whether or not they had occurred, doesn’t in any way affect the treatment I had and still have of classified material.” Clinton says she "understands" classification -- certainly a much different self-assessment than she presented to FBI interviewers. She then says nothing "affects the treatment" of sensitive material. She always handled it "seriously." I certainly hope that word isn't meant to define actions like these: The FBI’s report traced the history of Clinton’s private server use, detailing ad hoc efforts to backup data and respond to requests for records. In one instance, after Clinton left office, someone created a personal Gmail account to move an archive of Clinton’s email on a laptop to a server run by Platte River Networks, a company Clinton had hired. The person then attempted to ship the laptop back to another person connected to Clinton. According the FBI report, the laptop, which had not been wiped, got lost in transit. And the FBI would come to find on the Gmail account dozens of classified emails. While Hillary Clinton may not be directly responsible for a laptop full of email (some of them sensitive) being lost in transit, it was her decision to cobble together a personal email server that led to this mishap. Additionally, while the FBI may not have found any evidence of breach by malicious entities, the private server undoubtedly made an attractive target. With Clinton in sole control of her end of official communications, any breach may have either gone unnoticed or undisclosed for far longer than a similar attack on government-owned servers. This is just another way Clinton sacrificed accountability for "simplicity" by setting up her own server. The denials contained in the FBI report are expected. No one in a similar position is going to admit they set up a personal server to route around FOIA requests and/or more restrictive official government policies. Even if that's not criminal activity, it's still a bad look for a presidential candidate. More concerning is Clinton's blase attitude towards handling sensitive information, something she'll be seeing even more of if elected. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Stop re-upping on low quality charging cables that tear after just a few months. The $17 Zus Kevlar MicroUSB Cable is built with the same aramid fiber technology used in aerospace and military applications so normal wear and tear just won't affect them. They are tangle free and come with a velcro tie to keep them neat and tidy. The Deals store is also offering aMFi Certified Lightning Cable and a USB-C cable. 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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