posted 28 days ago on techdirt
For years now, we've highlighted how these days -- you don't technically own the things you buy. And thanks to a rotating crop of firmware and privacy policy updates delivered over the internet, what you thought you owned can very easily change -- or be taken away from you entirely. Time and tine again we've discussed how companies love to impose new restrictions on hardware via software update, then act shocked when consumers are annoyed because they've had either their rights -- or device functionality -- stripped away from them. The latest example of this comes courtesy of Sonos, which informed users this week that "over time," they won't be able to use their pricey speaker systems if they refuse a new privacy policy update: "A spokesperson for the home sound system maker told ZDNet that, "if a customer chooses not to acknowledge the privacy statement, the customer will not be able to update the software on their Sonos system, and over time the functionality of the product will decrease." "The customer can choose to acknowledge the policy, or can accept that over time their product may cease to function," the spokesperson said. In an e-mail to users, Sonos informed customers that they can "opt out of submitting certain types of personal information to the company; for instance, additional usage data such as performance and activity information." But users won't be able to opt out of data collection Sonos deems necessary to the system's core functionality. The problem with that, as we've seen with companies like Microsoft, is that companies aren't traditionally transparent about just what this "necessary" data entails, and tend to be overly generous when it comes to determining what personal data is "essential" in the first place. In this case, the "functional data" Sonos won't let you avoid collection of includes email addresses, IP addresses, Sonos account login information, device data, information about Wi-Fi antennas and other hardware information, room names, system error data, and more. Needless to say, privacy advocacy groups like the EFF and the Center for Democracy and Technology aren't thrilled about users having to choose between their privacy rights or working hardware. Nor are they impressed by companies' apparent inability to cordon off essential functionality from data collection and sales: "Sonos is a perfect illustration of how effective privacy, when it comes to not just services but also physical objects, requires more than just 'more transparency' -- it also requires choices and effective controls for users," said Joe Jerome, a policy analyst at the Center for Democracy & Technology. "We're going to see this more and more where core services for things that people paid for are going to be conditioned on accepting ever-evolving privacy policies and terms of use," he said. "That's not going to be fair unless companies start providing users with meaningful choices and ensure that basic functionality continues if users say no to new terms." Occasionally, consumer revolt is enough to change the tide. Media software developer Plex was forced to backtrack this week from an announcement that it would be issuing a new privacy policy that prevented users of its software from opting out of data collection and sales, including users that had paid for lifetime access to the service. Plex's retreat was forced after the company's forums lit up with complaints about what one customer called "super-duper bullshit." A subsequent Plex blog post stated that the company heard its users loud and clear, and would be reversing course on the decision. Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
If you're looking to learn new skills or languages, the Cudoo Online Language And Professional Development Library can help. For only $29, you get full access for two years to a massive library of self-study courses and videos representing a range of languages, professions, and computer skills. Professional development course cover sales, business writing, body language, and more. They offer over 160 languages, uniquely mapped to international CEFR Can-Do statements. With your subscription, you get access to new content as it becomes available. 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 28 days ago on techdirt
We more or less broke the news of this with yesterday's podcast, but Techdirt turns 20 years old today if you trace it back to its true origins. It was, initially, an email newsletter I wrote up to send to other students at Cornell's MBA program and (more realistically) a way to bolster my resume to help me get a job in the tech industry. And, damn, did it ever get me a job -- just not the one that I expected. After a few years as a hobby, in which it grew and grew and grew, Techdirt became my full-time job, and it's been that way ever since. I can't believe that it's gone on for 20 years. What I do remember was staying up late on that Saturday, August 23rd, twenty years ago, crafting the very first newsletter. Initially, it was supposed to be an email newsletter on the intersection of technology and business, based on Danny O'Brien's brilliant NTK newsletter (which was much more pure tech, and much funnier) -- though I'm only just now realizing that NTK had only begun a few months earlier. In my head, at the time, NTK was an established giant in the space and I was just some kid. Danny eventually discovered my newsletter and was quite kind about it (though, when I finally met him in person many years later, he jokingly pretended to wind up to punch me for copying him). I, unfortunately, can't find it now, but I believe Danny's initial response to me was something along the lines of "don't worry: the only IP we believe in stands for 'Internet Protocol'." But, knowing Danny, I'm sure what he actually said was much wittier. Techdirt has obviously grown and changed and grown and changed some more over the years (we certainly didn't focus nearly so much on legal and policy issues at first). And a huge part of what's driven the success of Techdirt has been the community here. We didn't always have a huge community, but it's always been supportive and educational. The community around Techdirt has challenged me, educated me, and inspired me over and over and over again. I've met (both virtually and in real life) so many amazing and wonderful people that I likely never would have met without Techdirt. And, it still excites me every single day. I have no idea what I would have done if I hadn't started Techdirt on a whim 20 years ago, but I can't imagine how it could possibly have resulted in a life as fulfilling as the one I've had, even through various challenges along the way. If you want to know more about the history, please go listen to yesterday's podcast, which was a fun discussion about those early days and how the site changed over time. However, I did want to thank all of you reading this, who are a part of the larger Techdirt community for being around, for sharing stories, for giving us feedback, for participating, for commenting, and for just reading what we put out. And because it's so often the community here that is more interesting and knowledgeable than the writers here, I'm curious -- to anyone reading this, let us know in the comments: when did you discover Techdirt, and how? Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
This administration has made it clear "securing" the borders is one of our nation's top priorities. In all honesty, the administration probably couldn't care less about the Canadian border. Almost all of its attention is focused on the southern border, but it also wants to make sure visitors/immigrants from certain countries are hassled extensively no matter where they first set foot in this country. The nation's borders have long been a place where certain rights become privileges. Legislators and courts have done little to roll this back, usually favoring national security over individual rights. Border searches of electronic devices were already on the rise before Trump took office, jumping from 5,000 in 2015 to nearly 20,000 in 2016. 2016's gaudy record numbers will soon be overwritten, though. And we're barely three-quarters of the way through 2017. On April 11, 2017 the CBP announced in a press release that they'd searched 14,993 electronic devices being carried by international travelers (they don't say how many were American citizens). In all of 2016 CBP says they searched 19,033 devices. In 2015, reports say they searched about 5,000. At the rate reported, visitors and US citizens will have been on the receiving end of nearly 60,000 devices searches by the end of the year. And that's only if the last reported numbers remain steady. But there's every reason to believe these numbers will increase exponentially. The administration has actively encouraged more intrusiveness at the borders, something that has bled into potential rights violations even at our northern border, where things were generally more relaxed. The DHS is fine with this wholesale write-off of Fourth Amendment protections. It frequently points to a 2009 Privacy Impact Assessment which bluntly states plenty of privacy will be impacted and the CBP is more than welcome to generate probable cause after the fact. CBP will contact you by telephone when the examination of the electronic device(s) is complete, to notify you that you may pick-up the item(s) during regular business hours from the location where the item(s) was detained. If it is impractical for you to pick up the device, CBP can make arrangements to ship the device to you at our expense. CBP may retain documents or information relating to immigration, customs, and other enforcement matters only if such retention is consistent with the privacy and data protection standards of the system in which such information is retained. Otherwise, if there is no probable cause to seize information after review, CBP will not retain any copies. But this increased focus on searching as many electronic devices as possible has the potential to do damage to rights beyond those enshrined in the Fourth Amendment. Frank Miniter of The American Conservative points out so-called "routine" searches cause problems for the First Amendment. While doing research for my novel Kill Big Brother I had off-the-record conversations with men and women from U.S. intelligence agencies. I also interviewed Dark Web types who insisted they stay on background. None of these individuals told me about secret government programs or anything at all that would make an interesting scene in a Jason Bourne movie. All I got was background and perspective—invaluable things to a journalist who wants to get things right. But recordings of some of those conversations are on my iPhone. Other sources are there, too. So I’ve password protected the encrypted data. It will automatically erase all the texts, audio and more if someone tries to guess their way into my phone. That’s my reason for being concerned that U.S. Customs and Border Protection (CBP) has the power to disregard my Fourth Amendment rights and to demand I give them access to my digital devices if I fly internationally or even decide to drive to Montreal. I’m a journalist and I must protect my sources, but I also don’t think my private photos, my social media, my texts and more are the government’s business. A couple pieces of legislation aimed at creating a border search warrant requirement have been introduced, but will be facing more opposition than usual. The DOJ and DHS have never welcomed new warrant requirements and, given the directives issued during the first few months of the Trump presidency, will certainly feel any such requirement would undermine their ability to carry out the president's orders. Permalink | Comments | Email This Story

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A litigant hoping to retain ownership of more than 750 domain names containing the word "google" has asked the Supreme Court to take a look at his recent Appeals Court loss. David Elliott first filed a lawsuit against Google back in 2012, claiming the term "google" was now a generic word meaning "to use a search engine." If the term had become generic -- like aspirin, kleenex, and others before it -- Google no longer could claim control of the trademark and should relinquish his hundreds of domain names. While it's true many people refer to running searches as "googling," nearly 100% of the time these people actually use Google's search engine. (I assume the small percentage that don't either don't know how to change their default search engine or simply don't care where their search results come from.) Elliott's attempted judicial genericide doesn't have much going for it, but at least he's not making assertions about Google and the Philadelphia 76ers colluding to expose his Social Security number to the world. (True story.) The 9th Circuit Appeals Court [PDF] clearly didn't think Elliott had much of a case. It upheld the lower court's denial of Elliott's claims, pointing out that Google, as a trademarked term, covered far more than just its titular search engine. Thanks to its diversification, it's unlikely Google will become solely synonymous with search engines. Having suffered two losses in a row, Elliott (along with co-plaintiff Chris Gillespie) is asking the Supreme Court to "undo the chaos" created by the Appeals Court decision. Elliott's main argument appears to be that if the general public verbs a trademarked noun, the owner of the trademark should lose all protection. From the petition [PDF]: The Ninth Circuit’s opinion contradicts the advice given by scholars, leaving trademark owners and the appropriating public standing on uncertain ground. The Ninth Circuit found that trademarks used as verbs can be used either discriminately (in a manner which indicates source) or indiscriminately. These terms were coined by the Ninth Circuit in its opinion in this case and are not derived from any existing trademark law or precedent. However, the Ninth Circuit found neither discriminate nor indiscriminate verb usage affects the mark’s status as generic or non-generic. The Ninth Circuit found that only usage of the mark as the name (noun) for the class of goods or services on or in connection with which the trademark was used is relevant to the genericness of a mark. First, taking this decision to its logical end results in untenable and conflicting consequences. A mark may be used ubiquitously as an indiscriminate verb to the point where no one remembers the term’s origin as a trademark and yet, pursuant to the Ninth Circuit’s opinion, the mark’s status would remain unchanged, existing in perpetuity. Second, the Ninth Circuit’s decision only begs more questions. If a verb can be discriminate, does that mean it can be registered as a trademark itself? On the other hand, if verb usage is not trademark usage, then can competitors fairly use verbs which originated with trademarks indiscriminately to describe the action of using their own products? Some interesting arguments, but ones that kind of skirt around the issue underlying the case: the registration of URLs containing the word "google," most likely done in hopes of selling them off to the search engine giant or simply to harvest traffic from inept Googlers. Not only that, but some of the 763 domains registered would likely have caused problems down the road for the plaintiffs, as they also included names of other trademark holders. The Ninth Circuit opinion lists just a few of the registered domains and there's already an aggressive IP enforcer in the mix: "googledisney.com," "googlebarackobama. net," and "googlenewtvs.com." It seems highly unlikely the Supreme Court will pick this case for review. While there may be a credible argument out there that Google's headed to genericide in terms of its search engine, the fact that it offers a number of non-search engine products under the Google brand makes it extremely difficult to simply declare "google" means nothing more than running a search. And I don't see the Supreme Court viewing someone's attempt to salvage cybersquatted domain names as being worthy of setting new precedent. Permalink | Comments | Email This Story

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Normally, I wouldn't grab an isolated story about police misconduct and present it here. The misconduct is indeed serious -- an officer involved in high-speed crash that left another man critically injured -- but one cop doing something dumb is barely even newsworthy these days. But the more you read about this law enforcement officer, the worse it gets. And it starts with Deputy Brandon Hegele nailing a smart car driven by a sixty-year-old man while Hegle was travelling 100+ MPH towards a suspect he'd already been told repeatedly not to pursue. The dashcam video (which can be viewed at the link above) shows Hegle weaving in and out of traffic. It then shows the accident victim safely executing a U-turn… well, would have safely executed a U-turn if Deputy Hegle hadn't been driving at over 100 MPH without his lights or siren on. Hegele got lucky. The other driver, not so much. That crash was into the rear of a Smart car driven by Harry Deshommes. While Hegele did not suffer any serious injuries, Deshommes had to have his spleen removed and suffered from a skull fracture, a traumatic brain injury, a broken left arm, a broken back, several broken ribs and a broken pelvis, according to CBS 12. Deshommes’ Smart car reportedly rolled several times after impact. Deputy Hegele was placed on unpaid leave after the accident. HOLD YOUR APPLAUSE. Well before that critical crash, the sheriff's office documented several traffic-related incidents in the deputy's career, starting early on, Internal Affairs records show. Let the record[s] show that Deputy Hegele: - backed into a parked cruiser - fell asleep at the wheel, hitting a median and causing more than $1000 worth of damage - rear-ended a car at an intersection, causing $4000 worth of damage - rear-ended yet another car, causing $12,000 worth of damage And, finally, the coup de grace of Hegele's super-shitty law enforcement driving career (not including the event above): Failed to report a crash until hours after it happened and once he had replaced the car’s flat tires. Investigators believe Hegele attempted to respond to a robbery call and hit either a curb or a sidewalk that slashed two of his tires. The report said Hegele called to let dispatch know he was having issues with his vehicle and to put him out of service, but did not say what happened. Then, he called another deputy to bring him spare tires, went to a restaurant for dinner and then called a sergeant nearly two hours after the incident happened to report the damage. In most of these cases, Hegele only received a written reprimand. In a couple of them, he was suspended without pay -- for a total of two days between both incidents. Hegle has lost his driving privileges twice, for a total of 120 days. But there's even more: Other than traffic crashes, Hegele has been cited numerous times for “indifference to policies and procedures.” In 2012, Internal Affairs investigators said in the first three months of the year Hegele had 72 calls for service he responded to. Of those, 52 cases required log entries by the deputies to document the case to go along with a case number. Hegele only submitted nine, according to records. There was a chance to send Hegele packing before he did any more damage. He failed a vehicle inspection for leaving his personal weapon in the patrol car, wedged between the seat and the console with a bullet missing. The weapon was "clearly visible" from outside the vehicle. Hegele couldn't explain why a bullet was missing but said he put the gun there to keep it away from his 4-year-old daughter while he was moving. Also inside the vehicle? A signed Miranda rights waiver card, wholly separated from the investigation file it apparently went with. Instead of being fired, the department gave Hegele -- who at that point had already been involved in five car accidents and multiple Internal Affairs investigations -- a "last chance:" 15 days suspension and a transfer. The only upside of this "last chance" was the agreement revoked Hegele's option to challenge any future for-cause firings, which is what should follow his latest accident. Hegele is now on trial for reckless driving, which is extremely lenient considering the number of charges he could face for his actions. Undoubtedly, he will be leaving behind a bunch of frustrated, angry co-workers who likely cannot understand why someone so toxic was allowed to pollute their ranks for so long. But if anything's going to prevent future Hegeles, it's his agency realizing it's far too lax when it comes to handing out punishment for misconduct. Hegele managed to rack up several thousand dollars-worth of damages in his career, along with whatever collateral damage accrued from his sloppy habits and policework. In return, he received some stern paper-waving and two unpaid days off. Calling that "absurd" makes the word "absurd" as meaningless as "literally." It's horrendous and inexcusable. Hegele may be on his way out, but if Palm Beach County Sheriff's Department wants to be taken seriously, it will be sending a lot of supervisors and officials packing as well. Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
The Australian government has released its latest report [PDF] on its domestic metadata collection efforts and it has a bit of surprising news in it. Josh Taylor and Paul Farrell of Buzzfeed report the Australian government isn't keeping all the domestic metadata it's hoovered up to itself. It's sharing it with several other countries, including one surprising name: There were a total of 23 disclosures of information from the Australian Federal Police to enforcement agencies in other countries in that year. In addition to China, Australia handed over metadata to Taiwan, Hong Kong, Serbia, Switzerland, Solomon Islands, United Kingdom, New Zealand, Zimbabwe, Argentina, Slovenia, Canada, Germany, Singapore, Indonesia, the United States of America, Papua New Guinea, the Republic of Ireland, Netherlands, Spain, and France. China's the odd one here and it only makes the list of Australian data-sharing partners because Australia has a distinct interest in extraditing criminals from China for prosecution. A 2007 mutual assistance treaty laid the groundwork for the handover of Australians' metadata, but this appears to be the first time Australia has actually done so. The spokesperson for the Australian Attorney-General's office says this is perfectly fine. In fact, Australia has already handed over metadata to Hong Kong, so why not China? Everyone's rights are being looked out for by the Australian government… according to the Australian government. This is from AG George Brandis' office: "Given the global nature of serious transnational and organised crime, effective international cooperation is critical. Any cooperation, including with China, is subject to safeguards to ensure compliance with our international human rights obligations." Adding a twist to this data-sharing arrangement is there might not have been any metadata to share in the first place. The government actually had to put a law in place demanding ISPs retain metadata for the government for an extended period of time… just in case the government decided it needed it. Left to their own devices, ISPs would have dumped the data as soon as practical (read: ran out of interested private partners). Now they're obliged to keep it… just in case Australia wants to hand it over to known humans rights violators like the Chinese government in exchange for extradition. There are other discomfiting details in the latest report. Last year, 33 authorizations were made to collect metadata on Australian journalists -- all of them coming from a single agency, the Western Australia Police. This low-key surveillance of journalists also comes courtesy of the same law changes that compelled ISPs to retain this metadata in the first place. As Taylor and Farrell report, the concessions made to pass the law limited the number of agencies with access to the data, but allowed law enforcement to target journalists -- provided they secure something called a "journalist information warrant," which is done in secret and allows the government to grab the information without the target being notified. Overall, the government accessed Australians' metadata (which may include web browsing history) thousands of times, mostly for banal reasons. Selling data retention to the public and hesitant legislators meant talking a lot about terrorism and child exploitation, but the numbers show those requests are far outnumbered by normal law enforcement work. Of these requests, 57,166 were related to illicit drug offences, 25,245 requests were for homicide offences, and 4,454 requests were made to assist terrorism investigations. For an outlay of $66 million in metadata costs (paid to ISPs, reimbursing 80% of their compliance costs), the government netted 366 arrests in 2015-16. This raises the question of how often metadata is accessed just because it can be accessed or for purely speculative reasons. Permalink | Comments | Email This Story

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Can you believe it? Tomorrow is our 20th anniversary! Techdirt has come a long way since Mike started it as a newsletter on August 23rd, 1997, and this week's episode of the podcast is a celebration and exploration of that history. Mike and Dennis are joined by Medium's Alex Feerst acting as moderator/interviewer to discuss the past 20 years of Techdirt. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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Thanks to a little something called competition, Verizon Wireless was forced recently to bring back unlimited data plans, after spending the last few years trying to tell consumers they neither wanted nor needed such plans (narrator: they did). But all has not been well in Verizon-land since, with several network performance reports indicating that Verizon's network configuration was struggling a little under the load of these new unlimited users. That's a problem for a company that justifies its higher prices by insisting it offers the best-available wireless network. A few weeks back, customers complained when Verizon began throttling YouTube and Netflix customers without telling anybody, only to subsequently admit they were conducting a "test." Fast forward to this week, and Verizon Wireless has announced a complete revamp of its "unlimited" data plans that severely restrict how your mobile connection can be used. The short version: Verizon is moving away from its fairly decent, competition-induced unlimited data plan (which generally let you do what you wanted with your connection), and replacing it with three, worse "unlimited" options: Go Unlimited: $75/month for one line. Video capped to 480p on smartphones, 720p on tablets.Beyond Unlimited: $85/month for one line. Video capped to 720p on smartphones, 1080p on tablets.Business Unlimited: Price varies. Video capped to 480p on smartphones, 720p on tablets. A few things of note. One, with this move, Verizon is joining the rest of the wireless sector in charging you more money to use your wireless connection as you'd like, requiring you pay $10 more just to stream HD video as transmitted. Two, the company is effectively banning 4K streaming, and no matter what kind of device you're using, won't be delivering more than 10 Mbps to any traffic Verizon's network gear identifies as video. So, if for some reason you wanted fully unthrottled video from a company server -- there's no way to get it. Verizon's not letting you access unthrottled video, period. On its surface, this isn't something most consumers will notice... yet. The difference between 720p and 1080p on a small smartphone screen is negligible, so Verizon quite correctly assumes that most customers won't care. It's also worth noting that even under former FCC boss Tom Wheeler and his 2015 rules, the FCC was turning a blind eye to both this (charging users more to avoid having games, video and music throttled) and zero rating (exempting an ISPs own content from usage caps while hindering competitors), something we have repeatedly stated was a mistake that would come back to bite consumers eventually. The bigger issue moving forward is of the slippery slope variety. Today, Verizon has decided that it's the one that gets to determine how much more you get to pay for higher-quality video, or if you have the option at all. With the company at the vanguard of an assault on existing net neutrality protections, you can be guaranteed that restrictions like this will only grow. The value proposition will also steadily decline as Verizon takes full advantage of Ajit Pai's quest to free some of the least liked, and most anti-competitive companies in America of most meaningful regulatory oversight . With said oversight on vacation, that leaves it to competition to keep Verizon Wireless on its best behavior. But with those same apathetic regulators resulting in a wave of almost-mindless merger mania, there's no indication that competition will be sticking around. Once Sprint merges with T-Mobile (which most expect to happen this year), there's going to be less pressure than ever on Verizon to avoid hamstringing your wireless connection further. So while you might not care about what Verizon's doing today, the company is only laying the foundation for some truly obnoxious behavior you're going to care a lot about tomorrow. Permalink | Comments | Email This Story

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We've discussed the junk science masquerading as forensic science in criminal cases. Coming in slightly ahead of chatting with psychics is "bite mark analysis." According to these so-called experts, each bite mark is just as unique as a fingerprint. But if so, why have so many cases been overturned when actual science -- usually DNA evidence -- is examined? Bite mark analysts have no answers. Fortunately, there's been less and less reliance on this highly-questionable evidence over the years. But bite mark analysis was in vogue long enough to do serious damage to people's lives. The 7th Circuit Appeals Court has just decided a wrongly imprisoned man can continue with his civil rights lawsuit against the two forensic odontologists who allegedly conspired to fabricate their expert opinions. Here's how the plaintiff spent most of the last quarter-decade, from the opening of the court's decision [PDF]: Robert Stinson spent twenty‐three years in jail for a murder he did not commit. No eyewitness testimony or fingerprints connected him to the murder. Two dentists testified as experts that Stinson’s dentition matched the teeth marks on the victim’s body, and a jury found Stinson guilty. The court chronicles the long path law enforcement -- aided by two dentists -- took to Stinson in prison for a murder he didn't commit. The opinion, somewhat unfortunately, doesn't question the use of bite mark analysis as evidence. Instead, it focuses on the fabrication and other missteps/misconduct allegedly perpetrated by the analysts as they assisted law enforcement and prosecutors in building the murder case. Dr. Lowell Johnson was the first dentist to be brought in. Examining photos of bite marks on the victim's body, Johnson informed officers the suspect would have a missing or broken lateral incisor -- a tooth one over from the upper front teeth. When Stinson was interviewed by officers at his home, they noticed he had a missing right front tooth, which is not the same tooth as indicated by their bite mark expert. Nevertheless, they persisted. After they finished their interviews, the two detectives met at the front of the house, and Jackelen told Gauger, “We have him.” The detectives then went back to speak with Stinson and intentionally said something to make Stinson laugh so that his teeth would be visible. When Gauger saw that Stinson had a missing upper front tooth, he thought, according to his later memoir, The Memo Book, published long after Stinson’s conviction, “There it was. The broken front tooth and the twisted tooth just like on the diagram and pictures.” (At his deposition in this case, however, Gauger said that the missing tooth was on the upper right side and to the right of the front tooth.) [...] On November 15, 1984, Gauger and Jackelen met with Johnson. The November 15 police report states that Johnson said the offender would have a missing or broken right central incisor (i.e., the upper right front tooth). That is the same tooth that the detectives had observed that Stinson was missing when they questioned him. Then came more "expert" work from law enforcement's expert: The next day, the detectives interviewed and photographed two other men with at least one missing or broken tooth. Johnson ruled them out as suspects in Cychosz’s murder based only on looking at the photographs. Stinson’s odontological expert in the current case, Dr. Michael Bowers, states there was no scientific basis for Johnson to exclude these two men by just looking at photographs. Despite Stinson missing the wrong tooth, the dentist and law enforcement continued to build a case against him. Dr. Johnson had another sketch of the bite marks drawn up -- again with the missing lateral incisor. Then this drawing simply vanished. Dr. Johnson referred to it in court during a pre-trial hearing, while remarking Stinson's teeth (with the missing incisor, rather than lateral incisor) matched up with the imprints and missing sketch -- a statement that followed Johnson's 20-second "examination" of Stinson's teeth. A cast of Stinson's teeth was ordered by the court. Johnson examined the cast and claimed it was a match -- again, despite the wrong tooth being missing. Law enforcement officers used this assertion to push for a search warrant but the DA pushed back, saying there still wasn't enough probable cause despite the declared "match." So, Dr. Johnson brought in a friend of his -- Dr. Raymond Rawson -- to act as a second bite mark expert. Rawson reviewed the bite mark evidence in a Las Vegas hotel room and unsurprisingly sided with his longtime friend and colleague. Dr. Rawson did not personally examine Stinson's mouth at any time. Johnson prepared an "expert report" on these findings and submitted it to the court with Rawson's approval. The trial began, with the state offering nothing but two dentists and some highly-questionable bite mark examinations as evidence. The prosecution did not offer any evidence of motive, nor did it produce any eyewitness testimony that connected Stinson to Cychosz’s murder. Some testimony suggested that Stinson had given conflicting versions of his whereabouts on the night of Cychosz’s death. Stinson’s counsel moved to exclude any forensic odontology evidence from trial, but that request was denied. Johnson testified at trial that the bite marks on Cychosz must have been made by teeth identical in relevant characteristics to those that Johnson examined on Stinson. Rawson testified that Johnson performed “a very good work‐up” and that he agreed with Johnson’s conclusion to a reasonable degree of scientific certainty that Stinson caused the bite marks on Cychosz’s body. Stinson got locked up for the next 23 years and Dr. Johnson went on to use this case to further his career as a forensic expert, despite the ringing up a person with the wrong missing tooth on murder charges. Twenty-three years later, experts not named Rawson or Johnson examined the so-called evidence. [A] panel of four forensic odontologists reanalyzed the bite mark evidence and concluded that Stinson could not have made the bite marks found on Cychosz. DNA testing of blood found on Cychosz’s clothing also excluded Stinson. Stinson’s conviction was vacated on January 30, 2009, and he was released from prison. The State of Wisconsin dismissed all charges against him that July. In April 2010, the Wisconsin State Crime DNA Database matched the DNA profile of the blood found on Cychosz’s clothing with that of a convicted felon, Moses Price. Price later pled guilty to Cychosz’s murder. Another expert had more to say about the state's supposed experts: Stinson’s expert in this case, Dr. Bowers, reviewed the bite mark evidence and concluded that the bite marks found on Cychosz excluded Stinson. Consistent with the panel, Bowers concluded that Johnson’s and Rawson’s explanations of why a bite mark appeared on Cychosz’s body where Stinson has a missing tooth has “no empirical or scientific basis and does not account for the absence of any marks by the adjacent, fully developed teeth.” Bowers believed that the methods Johnson and Rawson used “were flawed and did not comport with the accepted standards of practice in the field of forensic odontology at the time.” Bowers concluded that “to a reasonable degree of scientific certainty as a forensic odontologist … Johnson and Rawson knowingly manipulated the bite mark evidence and Stinson’s dentition to appear to ‘match’ when there was in fact no correlation between Stinson’s teeth and the bite marks inflicted on Cychosz’s body.” At this point, the Appeals Court can't rule on the issue of qualified immunity for the law enforcement officers involved in this case, but it can take away the absolute immunity asked for by the state's dental experts. As the court notes, the allegations all concern pre-trial evidence preparation. Statements made in court usually confer absolute immunity, but nothing like that shields state experts from actions taken prior to the case going to court. As the court here sees it, Stinson has alleged more than enough to continue with his lawsuit. It quotes the lower court's decision summary of the actions taken by the two dentists, which raises serious questions about the fabrication of evidence. The evidence in the record about Johnson’s shift regarding which tooth was missing after the detectives thought they had their man, the lack of a sketch at the John Doe hearing, Johnson’s call to Rawson, Rawson’s extremely brief initial review of the physical evidence in Las Vegas, and the existence of gross errors in Johnson's and Rawson’s review of the physical evidence (which another expert says could not be honestly made) provides enough to allow Stinson to get Johnson, Rawson, and Gauger before the jury for evaluation. These two dentists will now have to face the court and defend themselves against charges they fabricated evidence and conspired (along with officers) to withhold exculpatory evidence from the defendant. There's a lot at stake here with 23 years of prison time involved. This doesn't make Stinson whole again, but it at least gives him a shot at receiving something in exchange for the two dozen years the government took away from him. 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Machine learning is a rapidly growing area of study and is becoming a large part of our everyday lives. The $49 Machine Learning with Python Course and E-Book Bundle takes you on a deep dive into machine learning with 4 e-books and 5 online courses. You'll learn about TensorFlow, data mining, Python and much more. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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We've noted a few times that the FCC's claim it suffered a DDoS attack -- at the precise moment John Oliver was directing annoyed net neutrality supporters to the agency's website -- is more than a little shaky. After initially insisting that major "analysis" had led the agency to conclude it was attacked the same evening Oliver was informing viewers about the FCC's plan to gut popular net neutrality protections, press FOIA requests indicated that no such analysis occurred. Security analysts have stated there were none of the usual indicators surrounding a traditional DDoS attack, fueling skepticism of the FCC's claims. When media outlets began pointing out that the FCC was acting really suspicious about this whole thing, the agency lambasted news outlets for being "completely irresponsible." And while the FCC has consistently tried to claim it has oodles of evidence proving the DDoS attack occurred, agency lawyers are telling journalists that have filed FOIA requests that no such evidence exists. Skepticism has only mounted after additional Gizmodo reports indicated that at least one FCC staffer appears to have a habit of manufacturing cyber attacks out of whole cloth. Needless to say, the FCC's odd behavior, combined with its decision to turn a blind eye to comment system fraud during the net neutrality proceeding, have raised a few eyebrows among lawmakers. Senator Ron Wyden recently argued that "it would be hard for a government agency to do more to give off the impression that it was engaged in a cover up." Similarly, Senator Brian Schatz and Rep. Frank Pallone fired off a letter last week to the GAO, urging it to investigate the FCC's handling of cyber attacks and its ability to protect the agency website: "While the FCC and the FBI have responded to Congressional inquiries into these DDoS attacks, they have not released any records or documentation that would allow for confirmation that an attack occurred, that it was effectively dealt with, and that the FCC has begun to institute measures to thwart future attacks and ensure the security of its systems. As a result, questions remain about the attack itself and more generally about the state of cybersecurity at the FCC—questions that warrant an independent review." The duo also were quick to highlight how the FCC is similarly refusing to adequately police comment fraud during its net neutrality proceeding: “The FCC’s lack of action in preventing or mitigating this issue is also cause for concern. In fact, taken together, these situations raise serious questions about how the public makes its thoughts known to the FCC and how the FCC develops the record it uses to justify decisions reached by the agency." The journalist theory du-jour remains that the FCC idiotically made up a DDOS attack to downplay the massive opposition to the agency's plan to gut net neutrality (we aren't doing something in violent opposition to the public interest, we were just unfairly attacked!) Similarly, it's believed Trump's FCC is refusing to police comment fraud so it can try and claim that the more than 20 million public comments filed with the agency (the majority in support of net neutrality) are compromised and therefore shouldn't be taken seriously. And whether the GAO launches an investigation or not, expect the FCC's behavior here to be front and center when it's inevitably sued for ignoring the public interest and voting to kill popular net neutrality protections later this year. Permalink | Comments | Email This Story

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Here we go again. Want to keep citizens away from their requested public records? Do what you can to ensure they can't afford it. Nathanael King sent a request via Muckrock to the Texas Department of Criminal Justice. He was seeking records on all investigations of alleged sexual abuse in Texas prisons. Either the problem with prison sexual abuse is completely out of hand or the Texas DCJ really really really wants to keep King from seeing these investigative records. Our request for investigations of sexual assault in Texas correctional facilities since 2013 returned a price tag of $1,132,024.30 from the Department of Criminal Justice (TDCJ), which says there are more than 260,000 pages of responsive documents that would require more than 61,000 hours to process. Considering the agency had pretty much already told King it wouldn't be turning over a ton of info thanks to a wide variety of exemptions, the cost estimate seems completely unhinged from reality. Obviously, very few private parties have a million in cash laying around for public records fees. I'm sure this is what the DCJ is counting on. A great majority of detailed info will be stripped and the agency has agreed to turn over only "basic information" on 2,000 cases. Apparently each case averages around 130 pages requiring nearly 15 minutes per to "process." All told, the Department suggests it will take nearly 3,000 hours just to search for responsive documents. From there, it's on to the pricey processing and a fee request that would make Texas oil magnates balk. To its credit, the Texas Attorney General suggested it might be less expensive to ask another agency entirely for the information King is seeking. The Office of the Attorney General recommended filing with the Prison Rape Elimination Act offices, who subsequently requested a far more reasonable, though still costly, $551.39 for copies of their division level audits of the Safe Prisons/PREA program since 2016. Safe Prisons Program Management Office records report that in 2016 alone, the OIG opened 238 sexual assault cases in state-run facilities and another 4 in private prisons. Of course, $500 only gets you a little more than a year of reports that only cover Inspector General investigations, rather than every investigation opened by state prisons for the last four years. The Department can't seriously be thinking of allocating 61,000 hours to this task so the fee estimate is mainly there to discourage King from pursuing this request any further. Permalink | Comments | Email This Story

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There's plenty of methods incumbent ISPs use to keep broadband competition at bay, from buying protectionist state laws to a steady supply of revolving door regulators and lobbyists with a vested interest in protecting the status quo. This regulatory capture goes a long way toward explaining why Americans pay more money for slower broadband than most developed nations. Keeping this dysfunction intact despite a growing resentment from America's under-served and over-charged broadband consumers isn't easy, and has required decades of yeoman's work on the part of entrenched duopolies and their lobbyists. Case in point: Google Fiber recently tried to build new fiber networks in a large number of cities like Nashville and Louisville, but ran face first into an antiquated utility pole attachment process. As it stands, when a new competitor tries to enter a market, it needs to contact each individual ISP to have them move their own utility pole gear. This convoluted and bureaucratic process can take months, and incumbent ISPs (which often own the poles in question) often slow things down even further by intentionally dragging their feet. So in cities like Nashville and Louisville, Google Fiber and other competitors have pushed for so-called "one touch make ready" utility pole reform. These reforms let a licensed an insured contractor move any ISP's pole-mounted gear if necessary (usually a matter of inches), as long as the ISP is notified in advance and the contractor pays for any damages. Under these regulatory reforms, the pole attachment process can be reduced from six months or more to just a month or so -- dramatically speeding up fiber deployment. ISPs like Verizon (in part because Google Fiber isn't encroaching on their East Coast turf) has supported the changes. But because this would speed up competitor broadband deployments as well, incumbent ISPs like AT&T and Charter did what they do best: they filed lawsuits against both Nashville and Louisville -- claiming they'd exceeded their legal authority in updating the rules. The companies proclaim they're simply concerned about the potential damage to their lines (ignored is the fact that the contractors doing the work are often the same people employed by ISPs), but the lawsuits are driven by one thing: fear of competition. In Louisville, things haven't worked out very well for AT&T, with a Judge recently declaring that the ISP's claim that Louisville had somehow exceeded its authority doesn't make any legal sense: "AT&T claimed that Louisville has no jurisdiction under federal or state law to regulate pole attachments, an argument that the district court judge picked apart. AT&T argued that the rule referred to in-court documents as Ordinance No. 21 "impermissibly regulates the terms and conditions of pole attachments," but in doing so AT&T "narrowly characterize[d] Ordinance No. 21 as one that regulates pole attachments," the judge wrote. In reality, "the ordinance actually prescribes the 'method or manner of encumbering or placing burdens on' public rights-of-way," Hale wrote. "Kentucky's state Public Service Commission has exclusive jurisdiction over regulation of rates and services of utilities, but cities are allowed to "regulate local utilities in every area except as to rates and service," the judge wrote. That's good news for Louisville and people looking for beefed up broadband competition, but the damage is still done, and the delay still benefited AT&T (who'll likely appeal) all the same. Google Fiber wound up being forced to consider a pivot to wireless in Louisville after the company's efforts to deploy gigabit-capable fiber in the city took notably longer than expected. Thanks, in large part, to large incumbent ISPs like AT&T, which at one point publicly mocked Google Fiber's struggles while omitting its lawyers were a major reason for the delays in the first place. Permalink | Comments | Email This Story

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Somehow newspaper publishers -- especially those located in Europe -- believe the road to recovery is paved with income siphoned off Google. There have been plenty of proposed "snippet taxes" and other demands Google pay online publications for sending traffic their way. So far, nothing has panned out as the papers had hoped. In extreme cases, Google has offered to just stop sending any traffic their way by pulling out of the snippet-taxed market. The newspapers claim Google would be nothing without them, which is, at best, extremely dubious. There's a wealth of news and information out there that doesn't come from legacy newspaper publishers. The internet isn't going to be bereft of news services if certain papers decide to pull the plug because Google isn't propping them up. But even if they were right about this, there's a very good chance Google can't save them from drying up and blowing away. Media consultant Thomas Baekdal has done the math on proposed snippet taxes. Even with Google serving up more than a trillion search results a year, there's no money in taxing clicks. Baekdal's back-of-the-envelope math starts out big -- the only thing publications see when they start demanding link/snippet taxes: First of all, Google is big, in fact, the current estimate is that Google is serving up between 1.5 to 2 trillion searches per year. That amounts to 125 billion searches per month. Google also makes a lot of money. In the last quarter, it made a stunning $26 billion, of which $4.1 billion was profit. This is where most publications stop when griping about Google's billions in comparison to their declining net worths. Assuming the equation is zero sum is only part of the problem. The rest of it's the math they don't feel like doing. But Baekdal follows through. Not all of this profit is related to Google's searches. Alphabet -- Google's parent company -- has a lot of irons in the internet fire, some of them actually profitable. Stripping everything out but search revenue, we end up with this: Google Search has a revenue of $4.65 billion per month, of which about $700 million (not billion) is profit per month. Smaller, but still hundreds of millions more in profit than most papers make. Again, these are dollar signs in publications' eyes, each of them apparently believing a revenue-"sharing" plan forcibly applied to Google with net thousands of dollars in new revenue for each participant. Not so: Now, we can take the $700 million in profit and divide that by the 125 billion searches to get the profit per search query. The result is that Google makes... $0.0056 per search query. That's almost nothing, even for a publication receiving millions of hits via Google every month. As Baekdal does the math, the revenue per month is obviously nothing compared to what publications believe it should be. Even with every search monetized by Google's ad placement (which nets higher revenue for Google and more to "share" with publications), the total payout for a site receiving 3 million hits per month (Baekdal uses Denmark's largest paper as an example) would be between $930-1000/month. Not exactly business model-saving $$$. And not every search is monetized, so the payout would likely be even less. Nate Hoffelder of the Digital Reader points out Baekdal's math is slightly off, thanks to a misconception about how the snippet tax would be collected. Baekdal made a couple goofs in his calculations (he thought Google would be paying for clicks rather than for impressions)... But even so, there's no money there: Google is making under 4 cents per search, and turning a profit of around a half a cent per search. Of course, that is an average across all of Google's search results, and it includes search terms and even whole verticals which are not monetized (Google News, for example). And that is also a global average and not based on EU revenues, so it is not 100% applicable. (And those calculations are based on a bunch of unsupported assumptions.) Leaving those caveats aside, the point that matters is that news publishers want Google to pay for the use of their links and snippets. This means that Google would need to take that 3.7 cents and divide it between all of the relevant links returned with each click of the search button (after taking a cut for itself). That money is not going to go nearly as far as the news publishers think. Would having this math in front them cause publishers to rethink their plans to divert Google's "billions" into their own pockets? Probably not. Not understanding how this all actually works is extremely helpful when demanding a billion-dollar tech company start handing over cash for directing more traffic to the publications' sites. The very premise is beyond stupid, but it gets even more stupid when each publisher acts like the biggest cut of an apparently minuscule payout won't have to be shared with every other publisher whose sites end up in the same search results. If these publications are dying, it's not because of Google. And they apparently have enough cash flow to pay lawyers and lobbyists to keep pushing local governments to craft anti-internet legislation on their behalf. Permalink | Comments | Email This Story

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It has become the laziest "hot take" in technology media. About once a month or so, a writer somewhere decides to subscribe to as many streaming video services as possible, then proudly declare that this whole cord cutting thing (ditching traditional cable TV for streaming video) is a waste of time. Why? Because the writers usually wind up trying to precisely mirror their bloated, expensive traditional cable subscription by signing up for oodles of streaming services, after which they act surprised that they didn't save all that much money. Each time one of these stories pops up (from Gizmodo to USAToday,) we note how these writers are completely missing the point. Cord cutters aren't trying to precisely mirror traditional cable bundle, they're simply looking for greater flexibility. Cord cutting provides just that, in that if you don't like sports -- for example -- you don't have to subscribe to any services that offer it. As such, "cord cutting is really expensive when I subscribe to every streaming service in the known universe" is just an odd narrative that just keeps bubbling up across various media outlets despite not really making much sense. The latest culprit is the New York Post, which recently penned a missive declaring that "streaming TV is getting as bad as cable." Why? Again, it's apparently because that gosh, when you sign up for every streaming service imaginable, it can get expensive: "Home entertainment is really starting to add up. Want to watch “The Crown,” “The Handmaid’s Tale,” “Transparent,” “Game of Thrones” and “Homeland”? Prepare to drop $51 a month — minimum. And that number doesn’t even include your Internet package or basic options such as Food Network, Travel Channel and Syfy...And just when we thought we’d reached maximum capacity, in September, CBS will resurrect “Star Trek” for a new series called “Discovery.” Fans rejoiced at the announcement — they’d been without a “Trek” series for 12 years — until they made a rude discovery of their own: The new show would only be available on the CBS All Access app. That’s $5.99 a month to basically watch one show. Absolutely nobody is signing up for the “NCIS” reruns. So now we’re at $57 a month. So, several things. One, $57 a month is still significantly less money that what many people pay for cable. Two, writers like this ignore a number of obvious realities that can lower your costs further, including the fact that countless people share streaming service passwords (something most streaming companies don't care about because they see it as free advertising). You also need to factor in things like over the air antennas (and the rising number of solutions that let you record this content to DVR), which provide additional options for less money -- or free. Writers like this also hysterically like to avoid so much as mentioning piracy. Too many writers bizarrely act as if you're not allowed to even acknowledge piracy exists because it's naughty. But if you're "analyzing" how much it costs for an ordinary consumer to get TV content and you're not factoring in piracy, you're missing a fairly massive part of the overall picture. It doesn't really matter if you or your publisher don't like it, or don't think people should be doing it. It's happening, it's part of the overall cost-saving picture, and it's something companies have to compete with. Yet it's never even mentioned in these reports. That said, journalists pushing the "if I buy everything in the store it gets expensive" narrative are missing the most important point: actual consumers repeatedly say cord cutting saves them significant sums of money each and every month. And if any of these writers had actually bothered to, say, talk to actual cord cutters, they would tell them the same thing. Every time a story like this pops up I enjoy heading over to Reddit where users quickly point out how cord cutting is saving them plenty of money. Why? Because it provides something most traditional cable providers aren't willing to: flexibility and choice. With cord cutting, the end user gets to decide how to best balance their viewing options to build a content package that works for them and their budget. That's in contrast to your cable provider, who'll consistently pay empty lip service to choice and flexibility, right before it raises both your cable bill and set top box rental fee. Yet somehow the reality that consumers are truly saving money escapes these pearl-clutching authors. Like in this recent story at Wired pushing the same, stale narrative. One user at Reddit put their objection to these reports rather succinctly: "I don't know why every article like this dives into recreating cable, and then laments that it's not that much cheaper than cable. He's way more concerned with watching channels than watching shows or entertainment." Look, if you really like paying a significant sum of money for 500 channels to a company with a worse customer service rating than the IRS nobody's stopping you. In fact, if you truly need to access every shred of programming imaginable and have oodles of disposable income, cable remains your best bet. But the idea that cord cutting is somehow "failing" just because it's not good at mirroring the abysmal value presented by the traditional cable bundle makes no coherent sense. At the very least, the next time you proudly declare that cord cutting doesn't save consumers money -- perhaps talk to some actual consumers first? Permalink | Comments | Email This Story

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Fake news is old news now. The hope has to be that we have all become slightly more suspicious when we read astonishing stories online (well, we can hope). It also means that those peddling fake news have to work a little bit harder to make us fall for their tricks. Like this: Fake articles made to look like they have been published by legitimate news websites have emerged as a new avenue for propaganda on the internet, with experts concerned about the increasing sophistication of the latest attempts to spread disinformation. Kremlin supporters are suspected to be behind a collection of fraudulent articles published this year that were mocked up to appear as if they were from al-Jazeera, the Atlantic, Belgian newspaper Le Soir, and the Guardian. The Guardian report on this new development says that it's not just a matter of getting the typography and layout right: even the domain names are similar. For example, the fake Guardian site's URL replaced the usual "i" in Guardian with the Turkish "ı" -- a tiny change that is easy to miss, especially when it's in a URL. What's particularly problematic with these fake newspaper sites is that their domain names add an extra level of plausibility that make it more likely the lie will be spread by unsuspecting Internet users. Even when stories are debunked, the online echo of the false information lives on as people re-post secondary material, especially if legitimate sites are fooled and repeat the "news" themselves, lending it a spurious authenticity. Taking down the material can make things worse: Ren TV, which has a history of producing pro-Kremlin content, did a piece portraying the removal of the article as a deletion by the Guardian of a true article, an angle also taken by an Armenian outlet following the fake Haaretz piece on the Azerbaijani first family. In other words, deletion might be used as "proof" that powerful forces did not want people to see the "truth". Even though the original is removed, the rumors and conspiracy theories might actually increase as a result. This latest evolution of fake news shows that we are still nowhere near to tackling the problem. Indeed, it looks like things are going to get worse before they get better -- assuming they do. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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It looks like the FBI has secured another anti-terrorism "win." Once again, the agency controlled the terrorism sting from beginning to end, ensuring the suspect communicated with no one but confidential informants and undercover agents. And, once again, the FBI has utilized the sort of person who probably poses more harm to themselves than others. The FBI has arrested an Oklahoma man on charges that he tried to detonate what he thought was a 1,000-pound bomb, acting out of a hatred for the U.S. government and an admiration for Oklahoma City bomber Timothy Mc­Veigh, according to court papers. Jerry Drake Varnell was arrested shortly after an attempt early Saturday morning to detonate a fake bomb packed into what he believed was a stolen cargo van outside a bank in Oklahoma City, according to a criminal complaint filed in federal court. He was charged with attempted destruction of a building by means of an explosive. This is taken from the FBI's statements and criminal complaint [PDF]. There's another side to the story -- some of which can be sussed out from the complaint itself. Varnell's family, however, has stepped up to offer their side of the story -- one that involves Varnell's paranoid schizophrenia, which goes unmentioned in the government's filings. We as a family are extremely distraught about this situation with our son Jerry Drake Varnell, but what the public must understand is that he is a paranoid schizophrenic and is extremely susceptible to different types of ideology that normal people would deem immoral. Underneath his condition, he is a sweet-hearted person and we are extremely shocked that this event has happened. However, what truly has us flabbergasted is the fact that the FBI knew he was schizophrenic. The State of Oklahoma found him mentally incompetent and we, his parents have legal guardianship over him by the Court. These documents are sealed from the public, which is why no news media outlet has been able to obtain them. The FBI clearly knew that he was schizophrenic because they have gathered every ounce of information on him. If true, this prosecution will make the FBI's counterterrorist operations look even worse. This isn't the first time the FBI has exploited the weakest of humans to rack up terrorist busts. This includes the prosecution of a man agents referred to as a "retarded fool" and the dumping of an 18-year-old with a 51 IQ into the lap of local prosecutors. Now we have the FBI steering a paranoid schizophrenic into a self-destructive path, utilizing a confidential informant who apparently made several misrepresentations during his work with the FBI. The CI claimed to have seen a "bunker" at Varnell's home (where he lived with his parents because he is mentally unable to live on his own). The Varnells claim the "bunker" is nothing more than a partially-buried storage container, meant to be used as a storm shelter. Adding to its un-bunkerlike aspects are the fact that it locks from the outside and contains no food, water, or source of electricity. From the criminal complaint, other facts emerge. Varnell lived with his parents and only had access to the full residence occasionally. Varnell talked about bombing US government buildings but was unable to secure a vehicle to house the explosives. (He told the undercover agent he might be able to "borrow" a vehicle from some relatives.) The affidavit says the undercover agent supplied everything needed to build the explosive device -- not a single element came from the alleged terrorist. The undercover agent also supplied the vehicle. So, in the end, the FBI got its man: Jerry Drake Varnell, lifelong schizophrenic with the inability to obtain a vehicle, much less build his own bomb. Varnell talked a lot about sending a message to the government using violent means, but it's unclear how much he actually would have done if he hadn't been nudged towards self-destruction by an overly-helpful CI and FBI undercover agent. According to the Varnells, this may never have gone this far if the FBI's informant had simply done what he'd been told. The Varnells claim Jerry Varnell's father kicked the CI off the property and told him he'd be arrested for trespassing if he came back. This was due to apparent drug abuse by the CI. And yet, the CI returned, presumably at the behest of the FBI, which was willing to overlook the CI's drug use if it could keep its terrorism sting on track. Varnell's lawyer has asked for a hearing [PDF] to determine whether Varnell is competent to stand trial. Based on Varnell's long history of mental illness, it would seem apparent the man can't be expected to stand trial, much less carry out an attack on a federal building… at least not without a lot of outside help from the feds themselves. Permalink | Comments | Email This Story

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Earlier this year, a Pennsylvania magistrate judge decided Google needed to turn over data to US law enforcement despite it being housed (possibly temporarily) in overseas servers. The overseas housing was simply part of Google's data flow, which routes communications around the world for efficiency, rather than to keep them out of local governments' hands. This contradicted an earlier decision by the 2nd Circuit Appeals Court, which ruled Microsoft did not have to turn over data held in overseas servers in response to a US search warrant. The fact that Google does not explicitly hold certain data in certain servers was key to this decision. The conclusion the magistrate reached was no seizure of the data took place until Google stopped the data flow and gathered it up locally. That decision seemed to rewrite the definition of the word "seizure," as the warrant compelled Google to grab the data and compile it domestically. Stopping the flow of data traffic to grab stuff certainly sounds like Google is "seizing" it -- and it's only doing so because the government has ordered it to. Google asked for a judicial review of the magistrate's decision. Unfortunately, the Pennsylvania federal judge one step up from the magistrate has upheld the magistrate's order. (h/t Brad Heath) From the memorandum [PDF]: Although Google and each of the account holders in question are based in the United States, Google contends it is the physical location of the data to be retrieved—which Google, not the account holder, controls, and which Google can change at any time for its own business purposes—that determines whether the statute is being applied extraterritorially. Because this Court agrees with the government that it is the location of the provider and where it will disclose the data that matter in the extraterritoriality analysis, and because Google can retrieve and produce the outstanding data only in the United States, the Court agrees with the Magistrate Judge’s conclusion that fully enforcing the warrants as to the accounts in question constitutes a permissible domestic application of the SCA. The Order granting the government’s motions to compel will therefore be affirmed. The memorandum runs several pages, but basically reiterates the magistrate's findings. The warrant is lawful under the Stored Communications Act and provides for the seizure of the data requested. That the data is located extraterritorially would normally pose a problem, but Google's overseas data stores are only filled for Google's convenience, rather than being a place where any of the sought data resides permanently. This decision basically lays it all out for US service providers, stating that because warrants are served to their domestic offices, data located anywhere in the world is within reach of a US search warrant. The court gets around the contradictory nature of its conclusion by quoting heavily from the dissenting judges in the 2nd Circuit Appeals Court decision. Although the panel decision in the Microsoft case was unanimous, the decision drew vigorous opposition from other judges of the Second Circuit when the case came before the full court on the government’s petition for rehearing en banc. The petition was denied by an equally divided court, but the denial generated four separate dissents by judges who agreed that enforcing an SCA warrant to require a domestic service provider to disclose information in the provider’s possession, which the provider can access within the United States, constitutes a domestic application of the statute’s warrant provision, regardless of where the provider has elected to store the information. See Microsoft Reh’g, 855 F.3d at 61-62 (Jacobs, J., dissenting); id. at 66-68 (Cabranes, J., dissenting); id. at 70-73 (Raggi, J., dissenting); id. at 75-76 (Droney, J., dissenting). The Microsoft court’s analysis has also been rejected by every magistrate judge and district court that has considered the issue to date, including the Magistrate Judge in this case. However, there's nothing in the memorandum that even hints at the dangerous precedent the court is helping set. The Pennsylvania court views the Second Circuit decision as an anomaly and will afford it zero respect when discussing challenged warrants. Presumably, ignoring an outlier will continue through any suppression hearing once this case moves forward. Google will certainly appeal this decision, but the absence of favorable rulings from within this circuit (Third Circuit) likely make this non-starter. As it stands now, one circuit in the nation holds the government to the letter of the law when issuing SCA warrants. For everyone else, it's still up in the air, with more courts likely to side with the 2nd Circuit dissent, which will result in more US law enforcement demanding data from overseas simply because they have a US entity to hand the warrant to. Permalink | Comments | Email This Story

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Love gaming? Want to build your own games? The School of Game Design is the place to start. With courses for developers of all skill levels led by expert instructors, The School of Game Design helps you learn game development and design at your own pace, giving you access to an enormous library of step-by-step training videos. From the absolute basics to performing advanced techniques with Unity3D, and much more. It's on sale for only $69 for unlimited access. 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 30 days ago on techdirt
With the direction of intellectual property rights in America generally being driven down a one-way street towards expansionism, the associated culture of permission has ridden sidecar. Unlike intellectual property rights, however, permission culture is bound not by statute and legal interpretation, but rather by the wider understanding of public opinion on those matters, which tend towards being flawed and uninformed. Still, permission culture counts even large corporate interests with lofty legal budgets among its victims. See, for instance, the recent revelation that Major League Baseball's upcoming "Players Weekend" jerseys, which will feature hip player nicknames on the backs of jerseys, will not feature all the nicknames players requested as MLB attempts to navigate the tumultuous trademark waters. Major League Baseball is playing it safe with player nicknames that will adorn novelty uniforms during what it calls Players Weekend at the end of August. But there won't be any nicknames that could possibly bring MLB trademark infringement troubles. However, Philly.com reported that at least two Philadelphia Phillies players were denied their preferred nicknames because of intellectual property concerns. Zach Eflin and Hoby Milner wanted to wear the nicknames "Led Zeflin" and "Hoby Wan Kenobi" on their backs, but MLB nixed them. Promo Marketing Magazine reported that MLB rejected "Kojak" as a nickname for Adrian Beltre of the Texas Rangers. He'll have to settle for "El Koja" instead. Now, the article makes the point that this isn't strictly about players having these names on their jerseys during games. It's also about MLB being able to sell and market those jerseys and concerns that actually selling jerseys with those names would open up serious trademark actions. But whether or not that concern is actually valid is an open question. Entities like Led Zeppelin and LucasFilms/Disney are not remotely in the baseball business, even if they are in the apparel business. These names, however, are pretty clearly a form of parody, even if its the lame pun type of parody. There's also zero in the way of potential customer confusion. This isn't to say that there would be absolutely no merit to a trademark claim brought by those groups, but it should be obvious that how meritorious those claims are would require a fight in court to decide. But those viewing this through the lens of the culture of permission will see the infringements here as obvious. After all, they are references to other works and that kind of fun cannot be had unless licenses are paid. It's as though all of culture is constrained by some sort of first-to-file, or first-to-create standard, with fun gimmicks like Players Weekend in baseball living only at the pleasure of pure originality. Harm to others is not the concern; it's all about squeezing every possible revenue stream out there. Eric Ball, an intellectual property lawyer with Fenwick & West LLP, Mountain View, Calif., said that “Hoby Wan Kenobi” probably wouldn’t harm the Walt Disney Co.’s Star Wars trademark if it appeared on the player’s shirt. “But it’s a source of licensing revenue that those companies could have used,” Ball said. “Also, it’s not necessarily three days, because how long will these jerseys stay in the MLB shops?” As we said, that's true, but the purpose of trademark is not and never was to keep anyone anywhere from ever making any money off of content that is not purely original and without nod or reference. But here we are. Thanks to permission culture. Permalink | Comments | Email This Story

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posted 30 days ago on techdirt
The DC Court of Appeals has shot some holes [PDF] in a favorite law enforcement assertion: that cellphones are automatically containers of criminal evidence just because suspected criminals -- like nearly everyone else in the nation -- have cellphones. A criminal case involving a suspected getaway driver for a year-old homicide somehow led to police seeking a warrant to seize and search all electronics found at the suspect's current residence. The details of the case are as follows: defendant Ezra Griffith talked to a couple of people about law enforcement's interest in his vehicle, which was apparently caught on surveillance cameras near the homicide crime scene. He had these discussions while incarcerated for something else, acting as his own tipster by discussing the car on jail phones. (ALL CALLS ARE RECORDED, etc.) After being released, Griffith moved in with his girlfriend. Police sought a warrant to search this residence as part of its ongoing homicide investigation. The 22-year law enforcement veteran who obtained the warrant made the following declaration in his affidavit: Based upon your affiant’s professional training and experience and your affiant’s work with other veteran police officers and detectives, I know that gang/crew members involved in criminal activity maintain regular contact with each other, even when they are arrested or incarcerated, and that they often stay advised and share intelligence about their activities through cell phones and other electronic communication devices and the Internet, to include Facebook, Twitter and E-mail accounts. Based upon the aforementioned facts and circumstances, and your affiant’s experience and training, there is probable cause to believe that secreted inside of [Lewis’s apartment] is evidence relating to the homicide discussed above. What wasn't mentioned was anything indicating a) Griffith owned a cellphone or b) evidence related to last year's homicide would be found on it. Obviously, the cop swearing out the warrant didn't have much confidence in this assertion either, as he broadened it to cover all electronics located in an apartment that, until very recently, had only been lived in by Griffith's girlfriend. As the Appeals Court points out, there's not enough in the warrant to support these assertions. The government’s argument in support of probable cause to search the apartment rests on the prospect of finding one specific item there: a cell phone owned by Griffith. Yet the affidavit supporting the warrant application provided virtually no reason to suspect that Griffith in fact owned a cell phone, let alone that any phone belonging to him and containing incriminating information would be found in the residence. At the same time, the warrant authorized the wholesale seizure of all electronic devices discovered in the apartment, including items owned by third parties. In those circumstances, we conclude that the warrant was unsupported by probable cause and unduly broad in its reach. It's not that the warrant was short on probable cause. It's that it was the wrong kind of warrant for the assertions made. Here, the lion’s share of the affidavit supporting the warrant application is devoted to establishing Griffith’s suspected involvement as the getaway driver in a homicide. That information might have established probable cause to arrest Griffith for his participation in the crime. The warrant application, though, was for a search warrant, not an arrest warrant. And to obtain a warrant to search for and seize a suspect’s possessions or property, the government must do more than show probable cause to arrest him. The government failed to make the requisite showing in this case. As the court notes, the warrant asked for all kinds of things it had no business asking for, not with the dearth of supporting probable cause for a search. It allowed the police to seize any electronic device found in the residence, along with any other documents, newspapers clippings, photographs, etc. related to the homicide. The court also says the officer made a logical leap he shouldn't have. While it is indisputable cellphones are ubiquitous, there's nothing in the affidavit supporting the officer's conclusion Griffith owned one. There was no observation of Griffith’s using a cell phone, no information about anyone having received a cell phone call or text message from him, no record of officers recovering any cell phone in his possession at the time of his previous arrest (and confinement) on unrelated charges, and no indication otherwise of his ownership of a cell phone at any time. To the contrary, the circumstances suggested Griffith might have been less likely than others to own a phone around the time of the search: he had recently completed a ten-month period of confinement, during which he of course had no ongoing access to a cell phone; and at least one person in his circle—his potential coconspirator, Carl Oliphant—was known not to have a cell phone. The court points out the government could have avoided this mess. It had enough for an arrest warrant. With that, it could have arrested Griffith and searched him for any belongings, which likely would have included a cellphone. But it chose to go with an amazingly broad search warrant instead -- one that allowed it to seize all electronics before determining if any belonged to the suspect. The court allows suppression of the evidence. The warrant was invalid upon issuance, thanks to the lack of probable cause. Even good faith can't save it. We conclude that the affidavit in this case fell short to an extent precluding good-faith reliance on the warrant. As explained, the government’s theory of probable cause to search the apartment runs as follows: (i) Griffith might own a cell phone; (ii) if so, his phone might be found in the residence; and (iii) if so, the phone might retain incriminating communications or other information about a crime committed more than one year earlier. Whatever may be the reasonableness of any of those inferences standing on its own, demonstrating probable cause required adequately establishing all three in combination. The affidavit did not approach doing so. It provided no explanation at all of whether Griffith might own a phone or whether any such phone might be in his home. And with regard to whether any phone would retain any incriminating information about a shooting occurring more than one year beforehand, it observed only that gang members often stay in contact about their activities. In this case, it's nothing found on the devices being suppressed, but the gun tossed out the window by Griffith when police knocked on his girlfriend's door. Along with the suppression comes the reversal of Griffith's conviction. The dissenting opinion, written by Judge Janice Brown, is positively overwrought in its fear of what this decision will do to "good" police officers who are used to relying on broad assertions and compliant magistrates. This result is directly contrary to the purpose of the exclusionary rule and Supreme Court precedent that reserves suppression only for the most serious police misconduct. If courts are going to impose a remedy as extreme as excluding evidence that is probative, reliable, and often determinative of a defendant’s guilt, we have a duty to protect officers who are doing their best to stay within the bounds of our ever-evolving jurisprudence. We live in a society where virtually every action an officer takes is now being heavily-scrutinized. Thus, the need for vindication when law enforcement officers behave in an exemplary fashion is more critical than ever. Unfortunately, the officers in this case are not going to get the vindication they deserve. Furthermore, I have no doubt this case will be used in future cases to further undermine the good faith exception until either this Court sitting en banc or the Supreme Court steps in to cure today’s grievous error. This is a bit much, considering the good faith exception is pretty much the rule everywhere and the government routinely survives suppression motions in all but the most egregious of cases. Asking cops to provide probable cause before seizing and searching electronics is just following the word (and spirit) of the Supreme Court's Riley decision, which makes cellphones (and other electronic devices) every bit as sacrosanct as the homes and lives they vicariously represent. Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
Things have gone slightly crazy in the wake of the Charlottesville protests. What started as speech and ended in violence has prompted a number of reactions, many of them terrible. The president took three swings at addressing the situation: one bad, one a bit better, and one that erased the "better" statement completely when Trump decided to go off-script and engage in a bunch of whataboutism. Other reactions haven't been much better. After defending the white nationalists' right to protest the removal of Confederacy-related statues, the ACLU decided it would no longer protect the First Amendment rights of those exercising their Second Amendment rights. It didn't state it quite as bluntly, but basically said if it detected some "intent" to harm counter-protesters, the ACLU wasn't interested in defending gun-owning citizens' right to assemble. Over on the internet, things got weird. Third-party service providers suddenly began dumping white nationalist/Nazi-related websites and forums, setting a rather dangerous precedent for themselves. While some may view the moves as long overdue, the moment a platform starts engaging in arbitrary determinations about speech is the same moment government officials and entities start seeing wiggle room for further speech-policing demands. Meanwhile, platforms' decisions about acceptable speech are still being made as badly as ever. Rob Beschizza of Boing Boing points out YouTube (temporarily) took down a video of the US military destroying Nazi symbols for "violating" its policy on "hate speech." The video has since been restored, but it's just another example of how this sort of moderation tends to be more of a threat to free speech than an effective deterrent of "hate speech." To begin with, "hate speech" in the US is a term granted to the eye of the beholder. It's not a legal term of art and there's nothing in our laws or Constitution that forbid hateful speech. Attempts to police "hate speech" with algorithms results in spectacularly stupid "decisions." Attempts to police this using human moderators seldom fares better, resulting in innocuous content being removed while truly vile speech remains where everyone can see it. It's understandable so many different entities are doing everything they can to combat hate in the wake of the Charlottesville protests, but the rush to do something means a lot of it will be done badly and will only target current Villains of the Week. It's something that should be done cautiously, carefully, and with an eye on restricting as little speech as possible. Instead, we're getting rubber banding of both artificial and human intelligence as everyone suddenly pitches in simultaneously. Maybe things will calm down in a few weeks, but the tensions brought to the surface by the Charlottesville protest suggest it's going to be a long time before the nation returns to anything resembling "normal." Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
p> We're going to pull another switcheroo this week and present things out of order, so that it's easier to give our first-place insightful winner its proper context. Thus, we start with our first editor's choice for insightful — a comment from DannyB responding to the MPAA's latest anti-piracy messaging with an important point about convenience: Tech Dirt has pointed this out in the past. Pirated movie: Insert disk, push play, enjoy moie. Purchased movie: Insert disk, push play. FBI warning Homeland Security warning Other warning Unskippable ad for a movie released three years ago Unskippable ad for a movie released five years ago More warnings More unskippable ads Finally the movie starts, and you have already finished your popcorn. And now, we move to our winner for most insightful comment of the week — a reply to that comment from Thad that added one more thing to the very beginning of the list: That's assuming your disc is from the "correct" region and plays at all. In second place on the insightful side, we've got a response from Doug to a former FCC Commissioner calling net neutrality a "two-year old experiment": The internet has always been neutral. We've only recently been forced to defend neutrality. What's new is the attacks on it. And for our second editor's choice on the insightful side, we've got a response from Roger Strong to the idea that patents are a proud, quintessentially American tradition: Oh, spare us. Patents have been around since ancient Greece. The English patent system, evolving from early medieval times, was the legal foundation for the Industrial Revolution. One more time: NO-ONE HERE IS OPPOSING PATENTS. THEY'RE OPPOSING PATENT ABUSE. THAT is what America leads the world in. THAT is what's driving efforts for an open platform. Any good thing implemented in bloody awful way is going to lead to opposition. It's not like you - as an inventor - can invent something and reap the rewards any more. Trolls will patent every conceivable use of your invention - ESPECIALLY the obvious ones - and then charge YOU to use it. There are tens of thousands of patents on image compression alone. Create something truly new in the camera or smartphone or web browsing field, and image compression is just one of the things you'll be sued over. And so patents are trading cards for large corporations. You need a massive portfolio of patents to play. When Samsung tosses BS patent claims at Apple, Apple has wealth of BS patent claims that they can toss at Samsung products. That doesn't even cover the endless overbroad patents, where someone obtains a patent on something very specific, and declares it to be a patent on ALL internet commerce. THAT is why America has so many patents. And now China has been taught how to play the game. The folks boarding the Titanic's lifeboats weren't anti-ship. They weren't making a statement about row boats being better than ocean liners. But then no-one was standing up on the deck screaming straw-man arguments that this was the case. Over on the funny side, our first place winner is Michael Barclay with an observation about our description of the incredibly complex Snopes legal fight: This is so complicated, even the TL;DR would be too complicated. In second place, we've got an anonymous response to a commenter who was incoherently angry about... something to do with the comments, as usual: Yes, all websites publish their anti-spam techniques so that people can bypass them. For editor's choice on the funny side, we start out with a comment on our post about errors in a recent story about the DNC hack, which hinged on broadband speeds and reminded TechDescartes of something else entirely: As everyone knows, "10Mbps downstream and 1Mbps upstream is all one needs." And finally, we've got an anonymous comment that offered a small grammar lesson to someone who asked "how many less faces" we would see at white supremacist rallies if their speech was curtailed: Dammit, when it's an abstract concept, you use "less." Less time, less money, less trouble. When it's something you can count, like Nazis, the word is Fuhrer. Er, that is, "fewer." I meant to say "fewer Nazis." That's all for this week, folks! Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
Five Years Ago This week in 2012, while Amazon was realizing it had little choice but to get in on the patent portfolio buying game, Google was launching a prior art finder to help stop bad patents — though some worried it might be used by trolls to find targets. Meanwhile, Google also made the controversial decision to start filtering searches based on DMCA notices received by the site, but of course even this wasn't enough to satisfy the RIAA and MPAA. Also this week in 2012, we launched the Techdirt Insider Shop! Ten Years Ago This week in 2007, the proliferation of DVRs and digital video made us ask if the concept of a "TV channel" still made any sense. Of course, the digital video side was still struggling, with all the official offerings pretty much sucking in the eyes of consumers, and with Google Video shutting down and eliminating videos people thought they had bought, and the P2P networks continuing to strive to go legit under the weight of lawsuits,and Universal Music thinking it can still release CDs in different countries at different times (okay that last one is music not video, but still). Given how amazingly well the copyright regime was going for the entertainment industries, is it any wonder the Senate was looking to impose the same thing on the fashion industry? Fifteen Years Ago This week in 2002, we saw one reporter fired for having a blog and another fired after a congressman got mad about an email. Not great. And now, a brief world tour: South Korea was facing the same tensions over music sharing as the US; Europe was implementing its own version of the DMCA; Indian telecoms were trying to get instant messaging banned; Norway was struggling to find a judge who was tech-savvy enough to try the creator of DeCSS software; and in a story that is rather appropriate given current events, Russia charged an FBI agent with hacking. Permalink | Comments | Email This Story

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