posted 28 days ago on techdirt
The somewhat apocryphal purpose of the early internet was to have a system that could survive a nuclear war, by building it in nodes, such that it couldn't be knocked out easily. That distributed and decentralized concept had many other benefits as well. Somewhat famously, 25 years ago, John Gillmore declared"The Net interprets censorship as damage and routes around it." And there remains some truth to that... in part. But the internet has changed drastically over the decades, and we're now living in the age of the cloud -- which might better be described as the age of the large third party who can be influenced. Bruce Schneier has written up an interesting article discussing how the rise of the cloud has also enabled much more censorship. Internet censors have a new strategy in their bid to block applications and websites: pressuring the large cloud providers that host them. These providers have concerns that are much broader than the targets of censorship efforts, so they have the choice of either standing up to the censors or capitulating in order to maximize their business. Today’s internet largely reflects the dominance of a handful of companies behind the cloud services, search engines and mobile platforms that underpin the technology landscape. This new centralization radically tips the balance between those who want to censor parts of the internet and those trying to evade censorship. When the profitable answer is for a software giant to acquiesce to censors' demands, how long can internet freedom last? It's a good question, and one that I've been thinking a lot about in the past few years. I think it's an overreaction to blame the concept of "the cloud." Indeed, the idea of moving information onto the internet, rather than buried on local machines has some massive benefits, including the ability to access the information and services from any device, as well as being able to (sometimes) connect various services together and accomplish much more. The real problem to me -- and one I've spoken about going back many years -- is that today's "cloud" is not the "cloud" we should want. It's become a series of silos. Silos owned by large companies. But there's no reason it needs to remain that way. There is simply no reason that we can't build a "cloud" in which end users retain full control over their data. They may allow third party services to access and interact with that data, but it's bizarre how the vision of the "cloud" has turned into a world where it basically just means Google, Microsoft, IBM, Rackspace, whoever else, hosting all your data and retaining all of the control to it, including the control to take it down and make it disappear. Most of Schneier's piece focuses on Russia's somewhat Quixotic focus on shutting down Telegram, but notes that what happens is almost entirely up to a few large internet companies, and how much they'll push back on pressure from Russia (or other governments): Tech giants have gotten embroiled in censorship battles for years. Sometimes they fight and sometimes they fold, but until now there have always been options. What this particular fight highlights is that internet freedom is increasingly in the hands of the world's largest internet companies. And while freedom may have its advocates—the American Civil Liberties Union has tweeted its support for those companies, and some 12,000 people in Moscow protested against the Telegram ban—actions such as disallowing domain fronting illustrate that getting the big tech companies to sacrifice their near-term commercial interests will be an uphill battle. Apple has already removed anti-censorship apps from its Chinese app store. But it's unfortunate that that is the end result. Sometimes it's good that there are large companies who will (sometimes) fight these battles for smaller players, but that shouldn't be the last resort to protect against censorship of the type that Russia and China and other countries seek. For years we've been saying that it's time for us to rethink the internet, and move back towards a more decentralized, distributed world in which this kind of censorship isn't even an issue. It hasn't happened yet, but it feels like we're increasingly moving towards a world in which that's going to be necessary if we want to retain what is best about the internet. Permalink | Comments | Email This Story

Read More...
posted 28 days ago on techdirt
The $39 Essential Salesforce Certification Training Bundle is three courses designed to take you from beginner to pro. You'll learn to manage users and data, customize and maintain basic applications, and prepare custom reports, workflows, and report dashboards. You also get 4 practice exams for the Salesforce Certified Administrator Certification exam, and 2 practice exams for the Salesforce App Builder Certification exam. 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

Read More...
posted 28 days ago on techdirt
I apologize in advance, but this story is full of frivolous annoying things. Unfortunately, they are frivolous annoying things that hit at the very core intersection of stuff we talk about here on Techdirt: copyright and free expression. Last year, the NRA pushed out a truly ridiculous advertising video, referred to as "The Clenched Fist of Truth" or "The Violence of Lies." It was a stupid video from a stupid organization which served no purpose other than to upset people who hate the NRA. Trolling as advertising. It generated some level of pointless outrage and people went on with their lives. I'm not linking to the video because I don't need to give it any more attention and if you really want to see it, you know how to use the internet. Now, let's move on to Anish Kapoor, a British sculptor who is also annoying. In the early 2000s, he made a silly sculpture for Chicago's Millenium Park that people from Chicago (and elsewhere) tend to love to mock. It's called The Bean. I mean, officially, it's called "Cloud Gate," but no one calls it that. Even Kapoor now now calls it the Bean. However, copyright disputes over the Bean go way back. Back in 2005 there was an article about security guards evicting photographers for taking pictures of the popular tourist selfie photo opp, because the city said it had to enforce the copyright of the artist. No, really. They said that. There's been a long, and somewhat ridiculous, debate about the copyright on public sculptures. Many of us believe -- with pretty damn good justification, I'd say -- that if you agree to a commission from a public entity, in which you are creating a sculpture for the government, you should also give up your copyright with it. Barring that, any and all photography of that sculpture in a public place should simply be declared fair use. Unfortunately, courts have disagreed with this -- which is unfortunate. Over the last year, Kapoor has been particularly up in arms over the fact that the NRA's silly video includes a ridiculous brief clip of the Bean. It appears for less than a second in a montage of clips. But it's there: Kapoor has been unhappy about this for a while, and earlier this year penned an open letter to the NRA decrying its policies. This is good. This is what free speech allows. However, this week, he took it a step further and filed a really, really dumb copyright lawsuit against the NRA (first noted by ARTnews). The filing itself screams out how frivolous it is in repeatedly complaining about the political message of the NRA's video, rather than anything related to the actual copyright related rights at issue. On June 29, 2017, NRA broadcast on television and the internet a video recruiting advertisement entitled variously “The Clenched Fist of Truth” or “The Violence of Lies”, denouncing the media and the “liberal agenda.” It warns of civil unrest and violence, and states that the only way to save “our” country from the “lies” of the liberal media and the “liberal agenda” is with the “clenched fist of truth,” i.e., with guns (obviously referencing NRA’s previous slogan by Charlton Heston that “I'll give you my gun when you pry it from my cold, dead hands.”) It is a clear call to armed violence against liberals and the media. I mean, yeah. But what does that have to do with copyright? Absolutely nothing. The actual copyright claim is incredibly, laughably weak: As a result of Defendant’s copyright infringement, Plaintiff has suffered and continues to suffer actual damages in an amount according to proof at trial. Oh come on. There is no one who is watching that video and thinking that Kapoor somehow supports the message and therefore won't work with him. Also this: As a further result of Defendant’s copyright infringement, Defendant has obtained direct and indirect profits it would not have otherwise realized but for its infringement of Plaintiff’s copyrighted Work, including but not limited to increased membership dues following the publication of the Infringing Video. Plaintiff is entitled to disgorgement of such profits, Nah. That's not how it works. First of all, if the NRA is profiting from the video, it's not because the Bean is in it. Take out the Bean, replace it with some other stupid statue and nothing changes at all. There is nothing about the Bean that makes the video. There is no profit because of the use of the Bean imagery. But the larger point: this is so obviously fair use that it's not even worth going through the full four factor analysis. This is less than a second in a political video showing a public sculpture in a public location. It's not key to the video. It's used as part of commentary. The nature of Kapoor's lawsuit, however, is quite obviously to stifle free speech he disagrees with. We can all agree that the NRA is an odious organization with an odious message, but let's not dismantle the First Amendment just because of that group's ridiculous and dishonest methods for defending the Second Amendment. The NRA has every right to use that snippet and all Kapoor's lawsuit is doing is getting the NRA's video that much more attention. The case seems likely to get tossed out quickly. The case was filed in Illinois, which has an okay anti-SLAPP law, which means the end result may actually be that Kapoor ends up paying the NRA's legal fees. We've talked at length over the years about how copyright often conflicts with free speech. People often respond with some version of "but piracy isn't free speech." That's a silly claim, but there are still cases like this one where the intent obviously has absolutely nothing to do with the purposes of copyright law, but solely as a method to silence speech. The courts shouldn't allow it and seem unlikely to do so. Kapoor had every opportunity to exercise his First Amendment rights to speak out against the NRA. Filing a frivolous copyright lawsuit attempting to stifle speech, however, goes way too far. Permalink | Comments | Email This Story

Read More...
posted 28 days ago on techdirt
We've discussed for a while now how FCC boss Ajit Pai is busy gutting decades old media consolidation rules simply to help Sinclair Broadcast Group complete its $4 billion acquisition of Tribune. Many of these rules traditionally enjoy bipartisan support, since they protect local news organizations and free speech from being crushed by any one, major broadcaster. And Sinclair's merger, which would allow it to reach nearly 72% of the country with its facts-optional and monolithic programming (as that recent viral Deadspin video attests), has been routinely under fire by groups on both sides of the partisan aisle. As Sinclair moved to acquire Tribune, it kept running into FCC rules. Rules Ajit Pai was more than happy to systematically remove at every step in perfect synchronicity with Sinclair's ambition. And while Pai's allies on the commission claim this timing is all just quirky happenstance, the allegations have resulted in the FCC's nonpartisan inspector general launching an investigation into possible corruption and coordination between the FCC and the broadcaster. Pai's fellow Commissioners like Jessica Rosenworcel have publicly stated the Trump FCC is little more than a rubber stamp for Sinclair: As I have said before, the @FCC’s big media policy decisions all seem custom built for the business plans of Sinclair Broadcasting. This is not right. https://t.co/Pt4np64bIe — Jessica Rosenworcel (@JRosenworcel) June 14, 2018 To specifically help Sinclair's merger squeeze in under the media ownership cap, Pai's FCC restored an irrelevant bit of 1980's regulatory guidance known as the UHF Discount. Built in the 1980's as a mechanism to adjust for the lesser quality and reach of UHF stations, the rule was eliminated a few years ago for being the sort of outdated regulatory red tape Pai's FCC routinely pretends to be waging war against. But Pai's FCC suddenly and quickly restored the rule just a few weeks before Sinclair announced its merger, conveniently allowing Sinclair to under-state the company's real ownership reach. That, in turn, has resulted in a looming legal challenge driven largely by consumer groups (but again enjoying bipartisan support from Conservatives like Newsmax CEO and Trump ally Chris Ruddy): "A panel of appellate judges questioned why the FCC reinstated a rule that allows media companies to amass a greater number of stations and still fall within ownership limits...The three judges on the DC Circuit Court of Appeals panel raised some concerns about the rationale behind the FCC’s decision in April, 2017, to reinstate the UHF discount after abolishing it a year earlier... Chris Ruddy, the CEO of Newsmax, who has been highly critical of the FCC’s action, as well as of the Sinclair-Tribune merger, said in a statement that “the judges on the DC Circuit reviewing the FCC’s UHF discount were left scratching their heads wondering why the rule was re-instated when everyone — Republicans and Democrats alike — agree that the discount is an analog relic and makes no sense in a digital world. Undaunted by an ongoing corruption investigation, Pai is rushing forward with a July 12 vote to further erode a rule prohibiting any one broadcaster from reaching more than 39% of the national audience. The hope, clearly, is to formalize a higher overall ownership cap before the courts can challenge the FCC's previous rule changes. However, there's ample question as to whether the FCC has the authority to modify this cap (even some of Pai's allied Commissioners have acknowledged they may not), and such a ruling will absolutely be quickly appealed. Sinclair, meanwhile, is busy trying to burrow over and under what media ownership rules remain, in part by promising to offload some stations to shell companies or companies that still have a relationship with Sinclair. All told, it's just another example of how Trump's "populist" rhetoric is about as deep as a mud-puddle and authentic as a wild west movie set. Between efforts to hamstring competition, neuter regulatory oversight, and gut net neutrality and rubber stamp major media mergers (from Sinclair to the looming tie up between Sprint and T-Mobile), Ajit Pai's FCC is pursuing a very specific idea of what they want the future of the internet and media to look like, with healthy competition, consumers and small business welfare being a very, very distant afterthought. Permalink | Comments | Email This Story

Read More...
posted 28 days ago on techdirt
If this is becoming a trend, it's a really, really stupid one on the part of the video game industry. You may recall several recent posts about software, mobile apps, and video games that have sneakily installed what many call spyware onto users' machines, or otherwise inject software without the knowledge of the user. From soccer apps to flight simulator mods, users and gamers sure as hell don't like it when they have to find out from internet sleuths that the software they're using is spying or using them behind the scenes without their knowledge. And now we learn about Red Shell, a software company that has contracted with multiple game publishers. Red Shell's software is installed alongside games to track all kinds of information about the machines on which those games are played. It gathers information about a gamer's operating system, browser version, IP address and more, all with the goal of feeding information to game publishers to evaluate how effective their advertising models are. We should note here that Red Shell specifically claims that personal information is not collected. “We don’t collect names, emails, or addresses,” Red Shell says on its website, noting that games can offer an opt-out to players if developers so choose. “Our service basically says ‘this computer clicked on a link from this YouTube video and the same computer played your game.’ We have no interest in tracking people, just computers for the purposes of attribution.” Whatever lengths Red Shell goes to anonymize this data, the simple fact of the matter is that all of this was done without the knowledge of the gaming public installing these games. And we're talking about a massive amount of games found to include Red Shell software thus far. The software has been discovered in over 50 games including The Elder Scrolls Online, Conan Exiles, Hunt: Showdown, and Civilization VI. For the past couple weeks, a contingent of players have dedicated themselves to weeding it out, decrying it as “spyware” that many companies failed to disclose. “Red Shell is a spyware that tracks data of your PC and shares it with 3rd parties,” Redditor Alexspeed75 wrote last week in a thread that’s became something of a rallying place for aggrieved players. “On their website they formulate it all in very harmless language, but the fact is that this is software from someone I don’t trust and whom I never invited, which is looking at my data and running on my PC against my will. This should have no place in a full price PC game, and in no games if it were up to me.” Since then, publishers have either been removing the Red Shell software from game installs, or else pledging to not use the software in the future. The folks over at Red Shell are not pleased with all of this, obviously, claiming that this is all a case of the public misunderstanding what it's software does and does not do. And, look, to some extent, Red Shell might be getting an overly bad rap here. What immediately strikes me is how different this story might be had Red Shell or, more importantly, game publishers simply kept all of this known and above board. If gamers were more informed of what Red Shell software does and on what games it's included, I doubt the same kind of outcry would be on display. And, if Red Shell's software is as innocuous as it claims, that kind of disclosure shouldn't have been a problem. Instead, everyone acted sneaky and is now claiming frustration at the lack of trust the public didn't afford them all retroactively. Permalink | Comments | Email This Story

Read More...
posted 29 days ago on techdirt
The First Amendment covers a whole lot of area. Since it covers "expression," it doesn't necessarily have to be anything commonly thought of as "speech." It doesn't have to be printed. It doesn't have to be said. Lighting a flag on fire requires no statement of intent. The act itself is expressive enough. Passively gathering information (like recordings or public records) is protected by the First Amendment. Taking photos is a protected act, even if the photos are never used to express anything more than a memory of an event or place. It has been argued nudity or partially-exposed bodies are expressions deserving of protection by the First Amendment. Exotic dancers and "bikini barristas" have engaged in multiple free speech lawsuits targeting allegedly unconstitutional restrictions on their expressive conduct. A plaintiff currently suing a sheriff and the head of the California Highway Patrol is arguing that honking a car horn is protected speech and that the citation she received after engaging in this expression is unconstitutional. (via Courthouse News) Susan Porter was driving by a protest held outside of Rep. Darrell Issa's office. These frequent demonstrations gathered both protesters and counter-protesters, all of who made plenty of noise. Passing traffic would express their support/displeasure for Issa by honking their horns. (Which would make not honking your horn similarly protected expression, although it's unlikely anyone would be cited for not honking their horn while driving by a protest.) The demonstation briefly attended by Porter drew the attention of local law enforcement, who showed up to hand out citations to protesters. Porter was parked in a nearby parking lot. When the cops showed up, Porter decided to clear out. As she drove away past the protesters and newly-arrived law enforcement officers, she sent off one last car horn blast of support. Cue unneeded officer involvement. From the lawsuit [PDF]: After Ms. Porter sounded her horn in support of the protest, Sheriff's Deputy K. Klein ("Deputy Klein"), ID. Number 7275, directed Ms. Porter to pull over. Deputy Klein told Ms. Porter she was pulled over for sounding her vehicle horn, and issued her a citation for alleged violation of Vehicle Code 27001, which states that "[t]he driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn," but "[t]he horn shall not otherwise be used, except as a theft alarm system" (emphasis added). Cal. Veh. Code 27001. Section 27001 does not require that the use of a horn meet any specified noise level, disturb the peace, distract drivers or pedestrians, or endanger safety. [...] Ms. Porter's citation… states that the citation was for violation of "27001(A) cvc [sic] -- unreasonable use of horn" and contains no allegations as to noise level, disturbing the peace, distracting drivers or pedestrians, or endangering safety. It looks like Deputy Klein didn't like being honked at (though he wasn't) by some protester slipping away from the scene of the crime in her vehicle and tagged her with a "don't fuck [with] the police" ticket. I'm sure he never expected his department would be named in a civil rights lawsuit, but that's the sort of thing that happens when the law is used in ways it shouldn't be. If these law enforcement officers were that concerned about horn noise, all they had to do was camp out outside Issa's office and hand out horn tickets all day long. But law enforcement is never about consistent enforcement. It's highly selective and sometimes the law that ends up being enforced isn't the one officers had in mind when they initiated the stop. (But that's a completely different amendment.) In this case, her honked horn wasn't a violation of the law, but rather her way of "convey[ing] a message of support for the protest." But it was also a violation of the law, if officers wanted to get technical. And Deputy Klein certainly did. Selective enforcement of seldom-enforced laws around demonstrations and protests is a great way to rack up civil liberties violations and their attendant lawsuits. Porter claims the deputy's decision to enforce the states horn ordinance out of the blue creates a chilling effect for politically-inclined drivers like herself. Ms. Porter regularly drives her vehicle in areas of San Diego County and the State of California where the Sheriff's Department or California Highway Patrol is responsible for traffic enforcement. In driving her vehicle in those areas, Ms. Porter observes rallies, protests, demonstrations, or other events for which she would like to express her support through use of her vehicle horn. Given the citation issued to her and her knowledge of the statute, Ms. Porter reasonably fears that the Sheriff's Department or California Highway Patrol will enforce section 27001 against her if she uses her vehicle horn for such expressive purposes. As a result, Ms. Porter is censoring herself by refraining from using her vehicle horn for expressive purposes, including but not limited to expressing support for political protests, rallies, or demonstrations. It seems like a ridiculous legal hill to die on, but it does raise a valid point: if officers are going to use a horn ordinance to selectively punish supporters of certain causes, the state is basically placing itself between residents and their ability (however limited its usefulness in this particular application) to petition their government. This will make for an interesting case. Porter isn't alleging anything but an ongoing First Amendment controversy due to the state's restriction on horn use. The state will likely claim the public is served by a law that discourages people from blowing their horns whenever they damn well please, but those arguments are going to sound kind of ridiculous when actually verbalized. Is a law really necessary to keep horns from blaring constantly? Or has it long been accepted horns do double-duty as expressive speech, delivering pithy messages like "You suck at driving," "You suck in general," "Your ride is here," and "I heartily approve/disapprove of this issue being debated freely in the marketplace of ideas, which is apparently located at Rep. Issa's office at the moment." Whatever the basis for the law, it was pretty clearly used here to express a law enforcement officer's distaste for the message conveyed by Porter, even if the message the deputy received was "I support the people you're currently citing for other legal violations," rather than the one Porter intended to send. Since it would be almost impossible to carve out a protest-only waiver on horn restrictions, the court either has to find the law unconstitutional in whole or decide it can be selectively used to punish ostensibly political speech. However it decides to handle this, it should be a fun case to watch. Permalink | Comments | Email This Story

Read More...
posted 29 days ago on techdirt
The cable & broadcast industry has gone to some pretty absurd lengths to avoid having to adapt to the cord cutting era. As ad-skipping DVRs started to become popular, the industry's response wasn't to embrace natural evolution, it was to file a bunch of lawsuits and creatively harass companies that were trying to give consumers what they wanted. Similarly, as cord cutting has grown thanks to sky-high prices and ad break fatigue, the industry's overall response was to first raise prices like it was going out of fashion, then try to speed up or edit down programs in the hopes of shoving more ads into each viewing hour. None of these "solutions," you'll be shocked to learn, actually slowed down the sector's evolution or the exodus of cable TV consumers to more flexible, less costly streaming alternatives. Alternatives that are, you'll note, actually listening to users and giving them what they're asking for (usually). More recently, we've seen broadcast and cable executives begrudgingly admit that they can't just keep doubling down on the same dumb ideas and expect a better outcome. As a result, we've seen some broadcasters experiment with lower advertising loads during prime time. And we're also seeing to see the industry get a little more creative as to what modern advertising actually means, even if many of these offerings aren't likely to solve the problem either. For example, NBC has pondered bringing back the bygone era of product placement, something that can easily go wrong if handled poorly. Similarly, Fox outlets like Fox Broadcasting, FX, at the National Geographic channel announced this week that they'll soon start experimenting with replacing ads with short "inspirational videos" funded by the pharmaceutical and insurance sectors: "Starting this fall, Fox outlets like Fox Broadcasting, FX, Nat Geo and their digital counterparts will begin running inspirational videos that tell stories about people who have overcome adversity. These tales won’t take part over the course of 22 episodes, but will instead show up during advertising time, and Fox hopes to get marketers to sponsor them. Pharmaceutical companies, sports advertisers, insurance marketers and wellness firms are viewed as potential candidates that might consider attaching their names to vignettes of various lengths about people triumphing over cancer, the loss of a limb, or even blindness." Executives at Fox are calling these "inspirational vignettes" or "unbreakables," in that they're supposed to keep the viewer's attention fixed to the screen: "Fox is expected to unveil the idea for the inspirational vignettes, known as “Unbreakables,” Monday at the Cannes Lions advertising festival in France. “As part of our relentless pursuit of providing the best viewing experience and the highest performance for marketers, we are turning ad time into brand storytelling time,” says Michael Shields, senior vice president of sales strategy for Fox Networks Group, in a statement." Short stories funded by major corporations seeded between programming sound a lot like... advertisements. And while you have to credit the industry for actually trying something new, this will do nothing to thwart cord cutting if the content in question isn't actually compelling. We've talked in the past about how good content is advertising and how good advertisements should be good content -- but do you really think that what comes out of this will be good content? A better option for the cable and broadcast sector is to finally acknowledge that the cash-cow cable TV days of yesteryear are gone, they're not coming back, and that cable operators and broadcasters are going to have to actually try and compete now. That's going to require competing on price, service flexibility and customer service (gasp) instead of just doubling down on bad behavior. Many cable and broadcaster execs have grown so pampered from years of cozy deals and muted, "wink wink" style non-price competition that they're under the false impression that they have any real say in the matter. But that's how competition works. You don't much have a choice in the matter, and you can either adapt your business model to the new paradigm, or you can slowly but surely become an outdated relic surpassed by more nimble, flexible companies that actually provide what the customers want. Better ads are certainly part of that equation, but they're only a small portion of what's wrong with the traditional cable TV model. Permalink | Comments | Email This Story

Read More...
posted 29 days ago on techdirt
In the wake of Snowden's revelations of the scale of mass surveillance around the world, various cases have been brought before the courts in an attempt to stop or at least limit this activity. One involved Sweden's use of bulk interception for gathering foreign intelligence. A public interest law firm filed a complaint at the European Court of Human Rights (ECtHR). It alleged that governmental spying breached its privacy rights under Article 8 of the European Convention on Human Rights (pdf). The complaint said that the system of secret surveillance potentially affected all users of the Internet and mobile phones in Sweden, and pointed out that there was no system for citizens to use if they suspected their communications had been intercepted. The ECtHR has just ruled that "although there were some areas for improvement, overall the Swedish system of bulk interception provided adequate and sufficient guarantees against arbitrariness and the risk of abuse": In particular, the scope of the signals intelligence measures and the treatment of intercepted data were clearly defined in law, permission for interception had to be by court order after a detailed examination, it was only permitted for communications crossing the Swedish border and not within Sweden itself, it could only be for a maximum of six months, and any renewal required a review. Furthermore, there were several independent bodies, in particular an inspectorate, tasked with the supervision and review of the system. Lastly, the lack of notification of surveillance measures was compensated for by the fact that there were a number of complaint mechanisms available, in particular via the inspectorate, the Parliamentary Ombudsmen and the Chancellor of Justice. When coming to that conclusion, the Court took into account the State's discretionary powers in protecting national security, especially given the present-day threats of global terrorism and serious cross-border crime. One expert in this area, TJ McIntyre, expressed on Twitter his disappointment with the judgment: It might have been too much to expect bulk intercept ruled out in principle, but it is surprising to see a retreat from existing standards on safeguards. McIntyre played a leading role in one of the key cases brought against mass surveillance, by Digital Rights Ireland in 2014. It resulted in the EU's top court, the Court of Justice of the European Union (CJEU), ruling the EU's Data Retention Directive was "invalid". As McIntyre notes, the detailed ECtHR analysis mentions the CJEU decision, but not the more recent ruling by the latter that struck down the "Safe Harbor" framework because of mass surveillance by the NSA. The judgment significantly waters down safeguards previously developed by the ECtHR in relation to notification and possibility of a remedy against unlawful surveillance. For example, McIntyre points out the ECtHR accepted that it is necessary for the Swedish signals intelligence service to store raw material before it can be manually processed: Remarkably weak controls on storage and downstream use of intercept material were accepted by the ECtHR -- in particular, it was satisfied with retention of bulk intercept "raw material" for one year! Something of a setback in terms of limiting mass surveillance, the latest judgment goes against the general trend of decisions by the arguably more important CJEU court. In 2014 the latter effectively ruled that its own decisions should take precedence over those of the ECtHR if they came into conflict. That is now more likely, given the CJEU's hardening position against mass surveillance, and the diverging judgment from the ECtHR, which shows some softening. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...
posted 29 days ago on techdirt
Last month, at the COMO Content Moderation Summit in Washington DC, I co-ran a "You Make the Call" session with Emma Llanso from CDT. The idea was to turn the audience into a content moderation/trust & safety team of a fictionalized social media platform. We showed numerous examples of content or accounts that were "flagged" and then showed the associated terms of service, and had the entire audience vote on what to do. One of the fictional examples involved someone posting a link to a third-party website "contactinfo.com" claiming to have the personal phone and email contact info of Harvey Weinstein and urging people "you know what to do!" with a hashtag. The relevant terms of service included this: "You may not post personal information about others without their consent." The audience voting was pretty mixed on this. 47% of the audience punted on the question, choosing to escalate it to a supervisor as they felt they couldn't decide whether to leave the content up or take it down. 32% felt it should just be taken down. 10% said to just leave it up and another 10% said to put a content warning flag on the content. We joked a bit during the session that some of these examples were "ripped from the headlines" but apparently we predicted the headlines in this case, because there are two stories this week that touch on exactly this kind of thing. Example one is the story that came out yesterday, in which Twitter chose to start locking the accounts of users who were either tweeting Trump senior advisor Stephen Miller's cell phone number, or merely linking to a Splinternews article that published his cell phone number (which I'm guessing has since been changed...). Splinternews decided to publish Miller's phone number after multiple news reports attributed the inhumane* decision to separate children of asylum seekers from their parents to Miller, who has defended the plan. Other reports noted that Miller is enjoying all of the controversy over this policy. Splinternews, citing Donald Trump's own history of giving out the phone numbers of people who anger him, thought it was only fair that people be able to reach out to Miller. This is -- for fairly obvious reasons -- a controversial decision. I think most news organizations would never do such a thing. Not surprisingly, the number spread rapidly on Twitter, and Twitter started locking all of those accounts until the tweets were removed. That seems at least well within reason under Twitter's rules that explicitly state: You may not publish or post other people's private information without their express authorization and permission. But, that question gets a lot sketchier when it comes to locking the accounts of people who merely linked to the Splinternews article. A la our fictionalized example, those people are not actually publishing or posting anyone's private info. They are posting a link to a third party that purports to have that information. And, of course, in this case, the situation is complicated even more than our fictionalized example because Splinternews is a news organization (owned by Univision), and Twitter also has said that it has a "newsworthy" exception to its rules. Personally, I think it's the wrong call to lock the accounts of those linking to the news story, but... as we discovered in our own sample version, it's not an easy call and lots of people have strong opinions one way or the other. Indeed, part of the reason why Twitter may have decided to do this was that supporters of Trump/Miller started calling out the article as an example of doxxing and claiming that leaving it up showed that Twitter was unfairly biased against them. It is a no win situation. And, of course, it wouldn't take long before people started coming up with clever workarounds, such as Parker Higgins (citing the infamous 09F9 controversy in which the MPAA tried to censor the revelation of a cryptographic key that broke the MPAA's preferred DRM, and people responded by posting variations on the code, including a color chart in which the hex codes of the colors were the code), who posted the following: pic.twitter.com/oNlQLyXcTR — Parker Higgins (@xor) June 20, 2018 Would Twitter lock his account for posting a two color image? At some point, the whole thing gets... crazy. That's not to argue that revealing someone's private cell phone number is a good thing -- no matter how you feel about Miller or the border policy. But just on the content moderation side, it puts Twitter in a no win situation in which people are going to be pissed off no matter what it does. Oh, and of course, it also helped create something of a Streisand Effect. I certainly hadn't heard about the Splinternews article or that people were passing around Miller's phone number until the story broke about Twitter whac'ing at moles on its site. And that takes us to the second example, which happened a day earlier -- and was also in response to people's quite reasonable* anger about the border policy. Sam Lavigne decided to make something of a public statement about how he felt about ICE by scraping** LinkedIn for profile information on everyone who works at ICE (and who has a LinkedIn public profile). His database included 1595 ICE employees. He wrote a Medium blog post about this, posted the repository to Github and another user, Russel Neiss, created a Twitter account (@iceHRgov) that tweeted out info about each of those employees from that database. Notice that none of those are linked. That's because all three companies took them down (though you can still find archives of the Medium post. There was also an archive of the Github repository, but it has since been memory-holed as well. Again... this raises a lot of questions. Github claimed that it removed the page for "violating community guidelines" -- specifically around "doxxing and harassment, and violating a third party's privacy." Medium claimed that the post violated rules against "doxxing" and specifically the "aggregation of publicly available information to target, shame, blackmail, harass, intimidate, threaten or endanger." Twitter, in Twitter's usual way, is not commenting. LinkedIn put out a statement saying: "We do not support or condone what immigration authorities are doing at the border, but we can’t allow the illegal use of our member data. We will take appropriate action to ensure our members’ data is protected and used properly." Many people point out that all of this feels kind of ridiculous, seeing as this is all public info that the individuals chose to reveal about themselves on a public website. While Medium's expansive definition of doxxing makes things interesting by including an intent standard in releasing the info, even if it is publicly available, the whole thing, again, demonstrates how complex this is. I know that some people will claim that these are easy calls -- but, just for fun, try flipping the equation a bit. If you're anti-Trump, how would you feel if a prominent alt-right person compiled and posted your info -- even if publicly available -- on a site where alt-right folks gather, with the clear intent of having hoards of Trump trolls harassing you. Be careful the precedent you set. If it were up to me, I think I would have come down differently than Medium, Github and Twitter in this case. My rationale: (1) all of this info was public information (2) that those individuals chose to place on a public website, knowing it was public (3) they are all employed by the federal government, meaning they are public servants and (4) while the compilation was done by someone who is clearly against the border policy, Lavigne never encouraged or suggested harassment of ICE agents. Instead, he wrote: "While I don’t have a precise idea of what should be done with this data set, I leave it here with the hope that researchers, journalists and activists will find it useful." He separately noted that he believed "it's important to document what's happening, and by whom." That seems to actually make a strong point in favor of leaving the data up, as there is value in documenting what's happening. That said, reasonable people can disagree on this question (even if there should be no disagreement about how inhumane the policy at the border has been*) of what is the appropriate way for different platforms to handle these situations -- taking into account that this situation could play out with very different players in the future, and there is value in being consistent. This is the very point that we were demonstrating with that game that we ran at COMO. Many people seem to think that content moderation decisions are easy: you just take down the content that is bad, and leave up the content that is good. But it's pretty rare that the content is easily classified in one of those categories. There is an enormous gray area -- and much of it involves nuance and context, which is not always easy to come by -- and which may look incredibly different depending on where you sit and what kind of world you think we live in. I still think there are strong arguments that the platforms should have left much of the content discussed in this post up, but I'm not the one making that call. When we ran that game in DC last month, it was notable that on every single example we used -- even the ones we thought were "easy calls" -- there were some audience members who selected every option in the game. That is, there was not a single situation in our examples in which everyone agreed what should be done. Indeed, since there were four options, and all four were chosen by at least one person in every single example, it shows just how difficult it really is to make these calls. They are subjective. And what plays into that subjective decision making includes your own views, your own perspective, your own reading of the content and the rules -- and sometimes third party factors, including how people are reacting and what public pressure you're getting (in both directions). It is an impossible situation. This is also why the various calls to mandate that platforms do this or face legal liability are even more ridiculous and dangerous. There are no "right" answers to these decisions. There are solutions that seem better to lots of people, but plenty of others will disagree. If you think you know the "right" way that all of these questions should be handled, I guarantee you're wrong, and if you were in charge of these platforms, you'd end up feeling just as conflicted as well. This is why it's really time to start thinking about and talking about better solutions. Simply calling on platforms to be the final arbiters of what goes online and what stays offline is not a workable solution. * Just a side note: if you are among the small minority of ethically-challenged individuals who gets upset that I describe the policy as inhumane: fuck off. The policy is inhumane and if you're defending it, you should seriously take time to re-evaluate your ethics and your life choices. On a separate note, if you are among the people who are then going to try to justify this policy as "but Obama/others did it too," the same applies. Whataboutism is no argument here. The policy is inhumane no matter who did it, and pointing out that others did it too doesn't change that. And, as inhumane as it may have been in the past, it has severely ramped up. There is no defense for it. Attempting to defend it only serves to out yourself as a horrible person who has issues. Seriously: get help. ** This doesn't even fit anywhere in with this story, but scraping LinkedIn is (stupidly) incredibly dangerous. Linkedin has a history of suing people for scraping public info off of LinkedIn. And even if it's lost some of those cases, the company appears to take a pretty aggressive stance towards scrapers. We can argue about how ridiculous this is, but, dammit, this post is already too long talking about other stuff, so discuss it separately. Permalink | Comments | Email This Story

Read More...
posted 29 days ago on techdirt
Still holding on to that old cassette collection? Yeah, they're cool. Sure. But at some point you're going to need to digitize them or risk losing them entirely to time. This $21 Audio Cassette to MP3 Music Converter hooks up to your laptop and allows you to convert tapes to MP3 files for easy digital access. Once converted, you can then transfer to your phone or tablet for sharing any time. Don't let that collection go to waste! 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

Read More...
posted 29 days ago on techdirt
The US government has taken down another alleged leaker. Joshua Schulte, a former NSA and CIA operative, had his apartment raided by the feds last March. The raid targeted documents showing Schulte had leaked CIA hacking tools to Wikileaks (the "Vault 7" collection). But it uncovered a whole lot of child porn -- 10,000 images on Schulte's personal computer and his file-sharing server that held another 5 terabytes of data. The first criminal complaint [PDF] by the DOJ contained nothing but child porn charges. It suggests the former government spook didn't practice much opsec when not on the clock. One IRC chat shows Schulte's aware encryption is sometimes only a temporary deterrent if the government really wants to find out what's been sent or shared. But then he apparently went on to provide the government with some easily-accessible evidence. Based on my review of those Google Searches, I have learned, among other things, that on a number of occasions in or about 2011 and in or about 2012, SCHULTE appeared to search the Internet for child pornography. For example: (i) on or about April 9, 2011, SCHULTE conducted a Google Search for "child pornography" on at least three occasions; (ii) on or about October 15, 2011, SCHULTE conducted Google Searches for "movie where father videos daughter and friend sex" and "movie where father videos child porn"; and (iii) on or about May 15, 2012, SCHULTE conducted a Google Search for "female teenage body by year." The recently-released superseding indictment [PDF] really starts stacking the charges. In addition to the child porn charges carried over from the original complaint, the government adds charges related to the leaked hacking tools, including unauthorized access with the intent of gathering classified info and theft of government property. Then the charges get interesting. Schulte is charged with "causing transmission of a harmful computer program" for allegedly altering an intelligence agency "computer system" to give himself access to restricted areas of the system and cover up any evidence he had accessed these files. Apparently, this alteration resulted in other users being denied access. There's the expected "lying to the feds" charges (making false statements, obstruction of justice) which show Schulte was very cooperative when being questioned about the child porn but apparently not so much when asked about purloined CIA data. Rolling past the copy-pasted child porn charges, one reaches the most unexpected charge in the indictment: criminal copyright infringement. From at least in or about September 2015, up to and including at least in or about August 2017, in the Southern District of New York and elsewhere, JOSHUA ADAM SCHULTE, the defendant, unlawfully, willfully, and knowingly did infringe copyrights by the reproduction and distribution, including by electronic means and by making it available on a computer network accessible to members of the public, during a 180-day period, of ten and more copies and phonorecords, of one and more copyrighted works, which had a total retail value of more than $2,500, to wit, without authorization, SCHULTE maintained a computer server that housed thousands of copyrighted movies, television shows, and audio recordings, which SCHULTE shared with others by electronic means and using the Internet. This appears to refer to the server Schulte set up for IRC chat buddies. It's mentioned in a couple of chat transcripts and was, until 2017, accessible at cryptm.org. There's plenty archived at the Wayback Machine [click at your own risk, I suppose] but this server seems to be the source of the copyright infringement charge. Whether or not any of these files were actually downloaded isn't clear, but they were uploaded and accessible to site visitors. This short list of a small portion of the files hosted by Schulte on his server was put together by Jason Koebler and Lorenzo Franceschi-Bicchierai of Motherboard. An archived version of his page there shows that he had files related to chess, an episode of South Park, a copy of The 40 Year Old Virgin, textbooks, C Programming textbooks, and a folder called “Facebook Convos.” Speaking of Facebook, Schulte was apparently maintaining a diary of his criminal justice system experience. (Spoiler alert: it's unpleasant and broken.) The documents are worth reading for a firsthand look at the federal arraignment process and the unpleasant realities of being sentenced to house arrest (with no internet access privileges) while still supposedly an "innocent" person in the eyes of the Constitution. It does get a little weird when he claims he's only been charged with "victimless" crimes given what he's been charged with (leaking CIA hacking tools, child porn). But nothing's been proven beyond a reasonable doubt at this point, so maybe only the copyright infringement charge that will make the final cut. As Parker Higgins points out on Twitter, this supremely weird addition should be viewed with apprehension. Copyright infringement happens all the time. Much of it has zero profit motive, but the government is apparently more than willing to selectively enforce this law if it seems it might push someone towards a plea deal and save it the trouble of having to prove its case. Permalink | Comments | Email This Story

Read More...
posted 29 days ago on techdirt
This truly is, as they say, why we can't have nice things. In the wake of the FCC's ham-fisted net neutrality repeal, more than half the states in the country are now exploring their own, state-level net neutrality protections. California's proposal, Senator Scott Weiner's SB 822, was seen as particularly promising in that it went even farther on some important issues than the 2015 FCC rules it was intended to replace. The EFF went so far as to call California's proposal the "gold standard" for state-level net neutrality laws, noting it did a better job policing many of the problem areas where modern anti-competitive behavior occurs, such as zero rating or interconnection. You probably saw that AT&T just got done spending $86 billion to acquire Time Warner. The company harbors dreams of using its combined dominance over broadband and media content to anti-competitive advantage, something that's undeniable if you've watched AT&T do business for any particular length of time. Since California's law would have severely hampered AT&T's dreams of dominating the streaming video and ad wars to come, the company got right to work derailing California's legislative push in its usually-underhanded way. The company managed to convince California Assemblyman Miguel Santiago to introduce a series of last-minute secretive Tuesday night amendments that were then voted on without debate during a Wednesday morning hearing: "The committee, lead by Assemblyman Miguel Santiago, D-Los Angeles, issued amendments to the bill late Tuesday night. Among its recommendations were to permit a controversial internet service provider practice called “zero rating,” where some websites and apps don’t count against a consumer’s data allotment. Opponents view zero rating as a backdoor way of discriminating against online services that don’t strike free-data deals with broadband and wireless companies." In the early days of net neutrality, ISPs like AT&T engaged in more ham-fisted and non-transparent abuse of their broadband monopolies. Like the time AT&T blocked Facetime from working unless users upgraded to more expensive data plans, or the time Comcast throttled all upstream BitTorrent traffic then repeatedly lied about it. As people got smarter to what ISPs were up to, ISPs began getting more nefariously clever. Like the time ISPs let their peering and interconnection points intentionally congest to kill settlement-free peering and drive up costs for companies like Netflix, slowing down Netflix streams for everyone until the company paid up. Or the way that ISPs now impose arbitrary and unnecessary usage caps, then exclude their own streaming services from them while still penalizing competitors (aka zero rating), something it took years for the last FCC to finally realize was just as anti-competitive. Fast forward to this week. To convince lawmakers to back off the restrictions on zero rating, AT&T first employed the use of a group dubbed CALinnovates, one of numerous groups AT&T covertly funds to pee in the discourse pool. CALinnovates then circulated an incredibly misleading study among lawmakers falsely claiming that AT&T's anti-competitive use of usage caps is a huge boon to the state's minority populations (err, false). AT&T then got state lawmakers to approve of a list of major amendments Tuesday evening that would cripple the most important parts of the bill. Specifically, AT&T convinced Santiago to strip away all rules governing zero rating, all guidance preventing interconnection shenanigans, as well as a rule that would have prevented ISPs from charging other companies "access fees" if they want to reach AT&T customers. Santiago's office refused any and all contact from reporters (myself included) on Tuesday night, then quickly rushed those amendments through the voting process before they could even be debated. Disgusted by the railroading, Weiner ultimately pulled his bill entirely, arguing that it no longer adequately protected consumers: "It is no longer a net neutrality bill,” a visibly frustrated Wiener said after the vote. In an unusual move, the committee voted on the bill before Wiener was given a chance to testify. “I will state for the record ... I think it was fundamentally unfair,” he said. Net neutrality activism groups like Fight for the Future were notably less subtle in their own statements: "The level of corruption we just witnessed literally makes me sick to my stomach,” said Evan Greer, deputy director of Fight for the Future, a digital rights group with more than 350,000 members in California. "These California democrats will go down in history as among the worst corporate shills that have ever held elected office.Californians should rise up and demand that at their Assembly members represent them. The actions of this committee today are an attack not just on net neutrality, but on our democracy." If you've watched AT&T do business, the fact that it was able to scuttle this bill in such a "progressive" state shouldn't be surprising. AT&T's political power over many state legislatures is often downright comical, to the point where AT&T lawyers are quite literally the ones writing terrible state law. That's particularly true in states like Tennessee, though in ignoring the undeniable will of the public on this subject, California has proven itself no better. All told it has been a great year and a greater few weeks if your name is AT&T. Net neutrality formally died on June 11, the company's latest megamerger was approved thanks to a comically narrow understanding of the markets by a Federal Judge, and it managed to scuttle state-level net neutrality in California, purportedly a stronghold for net neutrality activism. This on the heels of successful efforts to neuter FCC oversight of historically unpopular and anti-competitive incumbent ISPs. What could possibly go wrong? Permalink | Comments | Email This Story

Read More...
posted 29 days ago on techdirt
It's assumed (wrongly) that minors have few, if any, Constitutional rights. The error is easy to make because they're just kids. They can't drink, smoke, vote, or even serve their country/secure these own valuable freedoms by [checks sources] aiding in the increase of opium production in foreign countries. "Hundreds of government officials can't be wrong!" someone is sure to exclaim, being just as wrong as the hundreds half-assedly cited in their stinging rebuttal. Minors do have rights. They're subject to more limitations but they're far from nonexistent. But that doesn't stop prosecutors, cops, and school officials from pretending "limited" equals "zero." A case highlighted by FourthAmendment.com shows a court pushing back against this assumption, which took the form of an overly-invasive probation condition slapped on a minor following a search of the student which uncovered a small knife, rolling papers, and a lighter. The incident leading to the search began when the student fell asleep during class, which is possibly one of the most ordinary things a student can do. The student admitted he had smoked marijuana the night before (also possibly one of the most normal things a high school student can do), but hadn't smoked any that day or on school property. He was asked to consent to a search and he volunteered he had a knife in his possession. The search uncovered the rest of the "contraband." The 15-year-old was then arrested, detained, and placed on home detention. Had that been the end of it, there would have been nothing to write about. But the dispositional order dealing with probation conditions added a whole bunch of unnecessary stipulations given the violation. This occurred when the minor violated his probation conditions by using marijuana and Xanax. Subsequent violations occurred -- all of them drug-related. A few months later, the minor appeared to be back on the road to the state's good graces. He was doing well in school and had landed a job. For whatever reason, the state decided to punish the minor for getting his life back together. This hearing added stipulations that appear to be far more vindictive than curative, and they're certainly anything but Constitutional. From the decision [PDF]: In the report submitted for the September 7, 2016 dispositional hearing, without explanation, the probation officer recommended adding an electronics search condition. [...] Later the same day, the juvenile court judge issued a signed written disposition order, describing the electronic search condition in greater detail, using the following text, which probation had recommended: “[Minor must] submit all electronic devices under [his] control to search and seizure by the probation officer at any time of the day or night with or without a search warrant, arrest warrant, or reasonable suspicion, including all logs, text and voicemail messages, photographs, emails, and social media account contents contained on any device or cloud or internet connected storage owned, operated, or controlled by [Minor], including but not limited to cell phones, computers, computer hard drives, laptops, gaming consoles, mobile devices, tablets, storage media devices, thumb drives, Micro SD cards, external hard drives, or any other electronic storage devices. [Minor] shall also disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any of the aforementioned devices or social media accounts as requested by any probation officer . . . .” The minor challenged this order on constitutional grounds, citing its needless violation of his privacy. Given the state's unwillingness to specify which of the offenses these conditions addressed, the court finds the minor has a solid point. We agree with Minor that the electronics search condition imposed here is unconstitutionally overbroad because it is not narrowly tailored to achieve its ostensible purpose or to meet Minor’s needs. [...] Any connection between Minor’s offenses and his usage of electronic devices is speculative and, absent such evidence, the electronics search condition is not tailored to meet Minor’s specific needs. As the court points out, there are less intrusive ways of achieving the same ends and it's highly unlikely blanket search permission for every single electronic device owned by the minor is the least intrusive option. It's also unlikely blanket search permission would somehow prevent the minor from obtaining drugs or alcohol. Not only that, but the state's arguments for this supposed necessity ignored evidence showing more probation stipulations weren't needed to keep the minor from engaging in criminal activity. In an interview with probation before the September 2016 dispositional hearing, Minor acknowledged having made poor decisions in the past, but stated he had new motivation to complete treatment and probation going forward, and that he had a new job, which was making a positive impact on his life. Minor’s statements about his mindset were supported by his school’s report that it had no concerns with Minor’s behavior, that Minor arrived on time, completed all of his work, was “doing great,” and was “exhibiting a positive attitude.” Minor’s mother and his treatment program provided similar accounts. This information does not support the conclusion that only by subjecting Minor to a new, exhaustive, and invasive search condition—allowing probation to review every electronic device under his control, including any “gaming consoles, mobile devices, tablets, storage media devices, thumb drives, Micro SD cards, [and] external hard drives” and to access all of his “passwords, passcodes, password patterns, fingerprints, or other [similar] information”—could Minor be deterred from future use of controlled substances. That strikes these conditions from the minor's probationary terms, restoring the privacy the state tried to take from him. The state insisted on defending this Constitutional violation despite having zero precedential support to cite. The closest it could come to a prior case in its favor involved a gang member who promoted his gang and its activity on social media when not using those platforms to issue threats to police officers and their families. That's not even close to the same level of severity in observed behavior. As the minor notes in his case, the state AG didn't even provide evidence the minor owned any of the devices the state decided it needed access to. But when you're playing Constitutional poker with someone else's money, why not take a flier on bullshit probation orders? Permalink | Comments | Email This Story

Read More...
posted 30 days ago on techdirt
A few weeks back, we wrote about some unpublished censorship guidelines that provided insights into what the Chinese government is trying to stamp out online. However, one of the more curious activities whose depiction was forbidden was "vulgar use of a microphone controller". That seemed both surprisingly specific, and yet tantalizingly vague. A new post on Abacus News may explain what was meant by that phrase. It reports on yet another censorship move by the Chinese authorities: the country's anti-pornography office ordered a number of platforms to remove a lot of ASMR content -- because they say some are akin to softcore porn. Autonomous sensory meridian response (ASMR) is defined by Wikipedia as follows: a term used for an experience characterized by a static-like or tingling sensation on the skin that typically begins on the scalp and moves down the back of the neck and upper spine. It has been compared with auditory-tactile synesthesia. ASMR signifies the subjective experience of "low-grade euphoria" characterized by "a combination of positive feelings and a distinct static-like tingling sensation on the skin". It is most commonly triggered by specific auditory or visual stimuli, and less commonly by intentional attention control. The banned videos in China typically show people -- well, nearly always young women -- whispering into special high-quality binaural microphones that aim to capture audio the same way our ears hear sounds. As well as producing extremely realistic results, the microphones also allow sounds to move from one ear to the other -- best experienced with headphones to enhance this effect -- as if the person speaking is right next to you, and moving around very close to you. The women in the videos whisper, rather than speak, because it has been found to be the most effective way to produce ASMR's characteristic "tingling" sensation. But ASMR videos also include the sounds of people licking, kissing, and rubbing the microphones in various ways -- which may explain that "vulgar use of a microphone controller" the Chinese authorities want to censor. As a representative example, the Abacus News points to a two-hour long YouTube video of one of the ASMR stars in China, Xuanzi Giant 2 Rabbit: In the video, she speaks softly into an ear-shaped microphone, taps it, covers it in plastic, even rubs a Q-tip inside it, creating a variety of sounds to trigger ASMR. But she does it while dressed in the revealing outfit of Mai Shiranui from The King of Fighters, and whispers things like "Husband, your highness, do you have any instructions?" In another clip, wearing the same outfit, she strikes a provocative pose on the bed. ASMR is even referred to as "in-skull orgasm" by many Chinese internet users, highlighting the sexual image of some videos. It's not hard to see why China's anti-pornography department might want to block this kind of thing. However, as a short video by The New York Times exploring the phenomenon makes clear, mainstream ADMR is rather different from these Chinese variants. The aim is to relax rather than excite, and to tap into what may be a calming physiological response similar to that produced when animals groom each other. In any case, the Chinese attempt to censor ASMR videos seems pretty hopeless: After hearing about this crackdown, we tried to search by the keyword "ASMR" on some of China's biggest streaming platforms, like Bilibili and Douyu. The searches yielded no results. But the videos still appear if you go directly to the playlists of many ASMR hosts. And since they're not banned in the West, many are available on YouTube. This probably means we can expect yet another Chinese crackdown on ASMR videos at some point in the future, and yet another failure to eradicate that "vulgar use of a microphone controller". Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...
posted 30 days ago on techdirt
Eight years after Minnesota's vague ban on "political" apparel at polling places was first challenged, the Supreme Court has finally struck the ordinance down as unconstitutional. The law allowed election judges to decide whether or not someone's t-shirt or button or whatever sent a "political" message that might somehow sway the vote. The law covered far more than overt messages about political parties or specific candidates. According to the state's arguments, it could be read as covering anything possibly pertaining to referendum issues and/or issues any political candidate had expressed an opinion on. This lead to a spectacular bit of oral argument [PDF] when the state's lawyer tried to explain what may or may not be covered by the apparel ban. MR. ROGAN: Well, Your Honor, the political has a -- has a plain meaning in our statute based on that it -- it's influencing elections. What I -- all that I'm describing is that something that is political, for example, that is known to only a few people but is clearly political, is not going to be something that's going to be reasonably understood by voters in the polling place. JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted? MR. ROGAN: A shirt with a rainbow flag? No, it would -- yes, it would be -- it would be permitted unless there was -- unless there was an issue on the ballot that -- that related somehow to -- to gay rights. JUSTICE ALITO: How about a shirt that says "Parkland Strong"? MR. ROGAN: No, that would -- that would be -- that would be allowed. I think -­ I think, Your Honor -­ JUSTICE ALITO: Even though gun control would very likely be an issue? MR. ROGAN: To the extent -­ JUSTICE ALITO: I bet some candidate would raise an issue about gun control. MR. ROGAN: Your Honor, the -- the -­ the line that we're drawing is one that is -­ is related to electoral choices in a -­ JUSTICE ALITO: Well, what's the answer to this question? You're a polling official. You're the reasonable person. Would that be allowed or would it not be allowed? [...] MR. ROGAN: I -- I think -- I think today that I -- that would be -- if -- if that was in Minnesota, and it was "Parkland Strong," I -- I would say that that would be allowed in, that there's not -­ JUSTICE ALITO: Okay. How about an NRA shirt? MR. ROGAN: An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that's a clear indication -- and I think what you're getting at, Your Honor -­ JUSTICE ALITO: How about a shirt with the text of the Second Amendment? MR. ROGAN: Your Honor, I -- I -- I think that that could be viewed as political, that that -- that would be -- that would be -­ JUSTICE ALITO: How about the First Amendment? (Laughter.) MR. ROGAN: No, Your Honor, I don't -­ I don't think the First Amendment. And, Your Honor, I -­ CHIEF JUSTICE ROBERTS: No -- no what, that it would be covered or wouldn't be allowed? MR. ROGAN: It would be allowed. The point Alito makes is simple: a ban on policitized apparel, especially one written this broadly, is subject to the interpretation of the person making the judgment call, each of which will have their own definition of "political." The state can only argue that some things might always be permissible, but for everything else, it's likely cover up or get cut out of the democratic process. This exchange is paraphrased in the Supreme Court's decision [PDF], which finds the law too vague and internally inconsistent to be considered constitutional. The statute does not define the term “political,” a word that can broadly encompass anything “of or relating to government, a government, or the conduct of governmental affairs.” Webster’s Third New International Dictionary 1755. The State argues that the apparel ban should be interpreted more narrowly to proscribe “only words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in [the] polling place.” At the same time, the State argues that the category of “political” apparel is not limited to campaign apparel. The Court considers a State’s authoritative constructions in interpreting a state law. But far from clarifying the indeterminate scope of the provision, Minnesota’s “electoral choices” construction introduces confusing line-drawing problems. For specific examples of what messages are banned under that standard, the State points to the Election Day Policy. The first three categories of prohibited items in the Policy are clear. But the next category—“issue oriented material designed to influence or impact voting”—raises more questions than it answers. The State takes the position that any subject on which a political candidate or party has taken a stance qualifies as an “issue” within the meaning of that category. Such a rule—whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot—is not reasonable. On top of the that, the law could be read to encompass apparel not even considered remotely "political" until it's being worn by a person trying to vote in Minnesota. Any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an “issue[] confronting voters in a given election.” For instance, the American Civil Liberties Union, the AARP, the World Wildlife Fund, and Ben & Jerry’s all have stated positions on matters of public concern. If the views of those groups align or conflict with the position of a candidate or party on the ballot, does that mean that their insignia are banned? [...] Take another example: In the run-up to the 2012 election, Presidential candidates of both major parties issued public statements regarding the then-existing policy of the Boy Scouts of America to exclude members on the basis of sexual orientation. Should a Scout leader in 2012 stopping to vote on his way to a troop meeting have been asked to cover up his uniform? The state claimed it made clear delineations, all of which somehow were subject to the "reasonable" interpretation of magically-unbiased election judges. As the court points out, the law is capable of defeating the rationale of its own defenders, thanks to its lousy construction. The State’s “electoral choices” standard, considered together with the nonexclusive examples in the Election Day Policy, poses riddles that even the State’s top lawyers struggle to solve. It's not impossible to keep a polling place free of overt political messages, but the state legislature's attempt is particularly terrible, expanding the definition of "political" until it can be read to cover almost anything other than a blank t-shirt. The law -- standing since the late 19th century -- is now effectively dead, determined to be too unconstitutional to serve the public as it attends to its democratic duties. Permalink | Comments | Email This Story

Read More...
posted 30 days ago on techdirt
It's always a weird look for companies and IP owners to go after clear expressions of fandom from their customers. And, yet, this sort of thing is done often, with fan get-togethers or festivals regularly being threatened by the IP owners they're fans of. Often times we hear the usual nonsense trademark law excuse that fans must be served with cease and desist letters, or sued, or else the trademark owner will lose its rights. That, as we've discussed repeatedly, is not true, as there are other options available to the trademark holder besides threatening fans. Warner Bros. has many of the rights to the Harry Potter franchise and the company has not been shy in the past about firing off threat letters to fan groups and festivals. Previously, Warner Bros. has claimed that it only abused fans in this way if there was a commercial aspect to the events. Even under that policy, the legal team for the studio was, shall we say, imperfect. But Warner Bros. has apparently had something of a policy shift that is causing it to go after far more of these fan events, causing Potter fans everywhere frustration and anger. "It's almost as if Warner Bros. has been taken over by Voldemort, trying to use dark magic to destroy the light of a little town," said Sarah Jo Tucker, a 21-year-old junior at Chestnut Hill College, which hosts a Quidditch tournament that coincides with the annual suburban Philadelphia festival. Philip Dawson, Chestnut Hill's business district director, said Warner Bros. reached out to his group in May, letting them know new guidelines prohibit festivals' use of any names, places or objects from the series. That ruled out everything from meet-and-greet with Dumbledore and Harry to Defense Against the Dark Arts classes. "It was very quickly apparent (we) weren't going to be able to hold festivals like years past," he said. The late October festival drew about 45,000 fans last year to the historic neighborhood's cobblestone streets. This year, they will instead have a "wands and wizards" family night and pub crawl and other magic-themed events — and people can still dress as their favorite characters. As the AP notes, this policy shift is causing these notices to go out to festivals all over the country, each time stating that new policies prohibit this sort of fan-fun at local festivals. As is often the case, Warner Bros. is claiming that trademark law requires it to take these exact actions. Again, this is not true. The studio has many other options, including offering a cheap license to the festivals to allow the fun to go on while having them be officially sanctioned. That it chose not to pursue that course means that Warner Bros. is squarely more interested in being a legal bully than it is in allowing fans of its franchise to celebrate their fandom. It's an especially stupid track to take, given that these organic fan festivals are certainly in some part responsible for propelling the Potter franchise to the stardom it has now achieved. Philadelphia Potter fan Sarah McIntyre thinks it's ridiculous for Warner Bros. to target the festivals. "They are acting like the Dursleys," said the 34-year-old yoga teacher and bookkeeper. She said they should be encouraging communities to bring Harry Potter to life. "Creating interest in the franchise would increase revenue," she said. How this is not obvious to the folks at Warner Bros. is beyond me. The studio ought to want people talking about the franchise as widely as possible and it's hard to see how fan events at local festivals would do anything other than cause new potential consumers of the franchise to generate some interest in it. As the AP takes pains to note, Warner Bros. is certainly within its rights here, or is at least likely so. But that doesn't make this is a smart business decision, never mind the most optimal outcome for its franchise. Instead, it comes off as purely unfriendly to fans, which is just not a good look for an entertainment product. Permalink | Comments | Email This Story

Read More...
posted 30 days ago on techdirt
Americans tend to be oddly gullible when it comes to megamerger promises. Especially over in the telecom sector. Time after time we're told that the latest major deal will provide all manner of amazing synergies, jobs and added competition. And time after time we subsequently realize that the only people that usually benefit from these deals are investors and executives. Shortly after that, we realize that the slow consolidation and steady erosion in competition results in higher rates and even worse service, something AT&T, Comcast and Charter customers are intimately familiar with after decades of M&A mania. And yet it's a historical lesson we refuse to learn much of anything from. The latest megadeal du jour in the telecom space is Sprint and T-Mobile's latest attempt at a $23 billion super-union. The two companies filed their formal sales pitch with the FCC this week, and you'd be hard pressed to find anybody who thinks agency head Ajit Pai and friends won't rubber stamp the deal. The sales pitch is filled with all the usual promises, including the insistence that reducing the overall number of players in the wireless market from four to three will somehow, magically, improve wireless sector competition, a claim I've seen an awful lot of consumers actually buying into: "New T-Mobile will have the scale and resources to take the Un-carrier movement to the next level and into new market segments. The combined company will have lower costs and the incentives to engage in aggressive pricing to expand its 4G LTE customer base as the industry continues its major transformation towards 5G. To date, T-Mobile and Sprint, individually, have not been able to materially erode Verizon and AT&T’s wireless market share or overcome their scale advantages. New T-Mobile, however, will be able to go toe-to-toe with the two larger rivals to the benefit of competition and consumers. So the core justification for this deal is that the combined company will more easily be able to compete with AT&T and Verizon, reducing prices for everybody. But that's not how it works, especially in telecom. What really happens is when you reduce the overall number of competitors the incentive to engage in real price competition proportionally declines, resulting in less incentive to actually compete (go ask a Canadian wireless user). This reality is a major reason why both AT&T and Verizon have yet to oppose the deal. They still dominate cell tower backhaul and know this likely means less price competition at retail. It's also why past regulators have moved to block this very deal and others like it (like AT&T's attempted acquisition of T-Mobile). And you'd be hard pressed to find a single major merger in telecom (be it by Comcast, Charter, AT&T, or CenturyLink) that hasn't made the already marginally-competitive sector worse. This mindless obsession with M&As is a major reason that this sector sees some of the worst customer satisfaction scores of any industry or agency in America (even the IRS). These companies spend so much time growing for growth's sake to please Wall Street, scaling up customer service always lags behind. Sprint and T-Mobile are also trying to insist that the megadeal will somehow be a huge boon for job creation, another favorite claim of those lost in the throes of M&A mania: "...the merger will create jobs on New T-Mobile’s first day and going forward. New T-Mobile will hire employees to build the new network; extend the Un-carrier customer care model to a wider subscriber base; and support customers in growing segments like in-home broadband, enterprise, and IoT. New T-Mobile’s increased investment and rapid growth—and resultant accelerated roll-out of 5G services—also will stimulate thousands of additional jobs throughout the U.S. economy. Here too Sprint and T-Mobile ignore history and factual analysis. Megadeals almost always result in job loss, especially in telecom where countless support, retail, network operations and middle managers will quickly be found to be redundant. The claim also runs in stark contrast to predictions from Wall Street analysts, who believe the deal is likely to eliminate anywhere between 10,000 and 30,000 jobs: "Merging the companies, said a report by Jonathan Chaplin of New Street Research, could eliminate “approximately 30,000 American jobs” — which is more than Sprint employs. "We conservatively estimate that a total of 3,000 of Sprint and T-Mobile’s branded stores (or branded-equivalent stores) would eventually close,” (Wall Street analyst Craig Moffett said. Each of those, he said, would mean the loss of five full time jobs, or 15,000 jobs in total. A merger also would threaten “overhead” jobs, the kind concentrated in headquarters such as Sprint’s and T-Mobile’s in the Seattle area. It's not entirely clear why America loves to play Charlie Brown and Lucy style football when it comes to megamerger promises. Time and time again we're promised the world, and time and time again we give companies the benefit of the doubt as they promise an ocean of synergies, jobs and competition that never actually materialize. By every indication the millennials that have bought into T-Mobile's consumer friendly (except for opposing that whole net neutrality thing) branding schtick are about to learn their first real lesson on this front the hard way. Permalink | Comments | Email This Story

Read More...
posted 30 days ago on techdirt
As we've been writing over the past few weeks, the EU Parliament's Legal Affairs Committee (JURI) voted earlier today on the EU's new Copyright Directive. Within that directive were two absolutely horrible ideas that are dangerous to an open internet -- a link tax and a mandatory copyright filtering requrement (i.e., the "censorship machines" proposal). While there was a big fight about it, and we heard that some in the EU Parliament were getting nervous about it, this morning they still voted in favor of both proposals and to move the entire Copyright Directive forward. The vote was close, but still went the wrong way: Somewhat incredibly, no official rollcall tally was kept. MEP Julia Reda, however, has posted an unofficial roll call of who voted against internet freedom, showing (graphically) whether they voted for the link tax and/or censorship machines: In case you can't see that here's who voted according to Reda's list -- most voted for both of the bad proposals, but for the few who didn't vote for the link tax, I've noted that separately. These politicians deserve to (1) be called out for trying to destroy an open internet and give in to legacy industries who want to censor the internet and (2) voted out of office next election: Axel Voss, Germany (who was in charge of this entire thing and who has regularly played dumb whenever people point out just how bad these proposals are. He appears completely beholden to legacy industry interests). Voss's name should become synonymous with the destruction of a free and open internet. Pavel Svoboda, Czech Republic (voted for censorship machines, but not the link tax) Rosa Estaras Ferragut, Spain Tadeusz Zwiefka, Poland, Jozsef Szajer, Hungary Francis Zammit Dimech, Malta Luis de Grandes Pascual, Spain Enrico Gasbarra, Italy Mary Honeyball, UK Jean-Marie Cavada, France Marinho e Pinto, Portugal Sajjad Karim, UK (voted for censorship machines, but not the link tax) Joelle Bergeron, France Marie-Christine Boutonnet, France Gilles Libreton, France Note those last two votes from France, as Lebreton and Boutonnet are both members of the French National Front party, the same party whose leader, Marine Le Pen, has been out and about screaming about how unfair it is that the party's YouTube channel was deleted by automatic copyright filters -- the same filters that her own party just voted to make mandatory for all platforms. Incredible. This is a hugely unfortunate series of events. Having the proposal approved by the JURI Committee makes it much, much harder to stop this Directive from becoming official. But it is not the end of the road. Reda will be forcing a vote from the entire EU Parliament on the issue: This is an unacceptable outcome that I will challenge in the next plenary session, asking all 750 MEPs to vote on whether to accept the Committee’s result or open it up for debate in that larger forum, which would then give us a final chance to make changes. This vote will likely happen on July 4. Let’s make this the independence day of the internet, the day we #SaveYourInternet from censorship machines and a link tax. Are you in? The digital freedom group EDRi has also detailed the next steps in this process and created an infographic showing what still needs to happen: It will be difficult to stop this freight train after this morning's vote, but not impossible. If you want to see the internet remain viable as a communications platform, rather than seeing it locked down as the new broadcast television, in which giant American companies have the final say in what you're allowed to say online, you should probably let the EU Parliament know sooner, rather than later. Permalink | Comments | Email This Story

Read More...
posted 30 days ago on techdirt
The Ultimate Backend Developer Bundle contains 14 courses covering all aspects of backend code. Learn how to build SQL databases, how to code in JavaScript, how to program in Python, and much more. This bundle is on sale for $49. 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

Read More...
posted 30 days ago on techdirt
I've mentioned the idea of the broken windows fallacy -- not to be confused with the long debunked broken windows theory of policing -- twice in the past in reference to net neutrality, including in my recent post about what Ajit Pai should have said about repealing net neutrality. But both times I talked about it, it was kind of buried in much longer articles, and the more I think about it, the more important I think it is in understanding why Pai and his supporters are so far off in their thinking and understanding on net neutrality. What I find most perplexing about this is that people who often position themselves as doing away with overly burdensome regulations -- which is a stance that Pai has staked out pretty clearly -- are usually the kind of folks who talk frequently about the broken windows fallacy. And yet, here, those same folks seem to be missing it. As background, the broken windows fallacy comes from Frederic Bastiat, the French economist often associated with free market and libertarian thought, and it's his clever and highly evocative way of explaining why destructive behavior -- while it may generate economic activity, is not good for the economy, because it misses all of the other (often hidden) costs, including the opportunity cost of investing that money in more productive activity. Bastiat's version went as follows: Have you ever witnessed the anger of the good shopkeeper, James Goodfellow, when his careless son has happened to break a pane of glass? If you have been present at such a scene, you will most assuredly bear witness to the fact that every one of the spectators, were there even thirty of them, by common consent apparently, offered the unfortunate owner this invariable consolation – "It is an ill wind that blows nobody good. Everybody must live, and what would become of the glaziers if panes of glass were never broken?" Now, this form of condolence contains an entire theory, which it will be well to show up in this simple case, seeing that it is precisely the same as that which, unhappily, regulates the greater part of our economical institutions. Suppose it cost six francs to repair the damage, and you say that the accident brings six francs to the glazier's trade – that it encourages that trade to the amount of six francs – I grant it; I have not a word to say against it; you reason justly. The glazier comes, performs his task, receives his six francs, rubs his hands, and, in his heart, blesses the careless child. All this is that which is seen. But if, on the other hand, you come to the conclusion, as is too often the case, that it is a good thing to break windows, that it causes money to circulate, and that the encouragement of industry in general will be the result of it, you will oblige me to call out, "Stop there! Your theory is confined to that which is seen; it takes no account of that which is not seen." It is not seen that as our shopkeeper has spent six francs upon one thing, he cannot spend them upon another. It is not seen that if he had not had a window to replace, he would, perhaps, have replaced his old shoes, or added another book to his library. In short, he would have employed his six francs in some way, which this accident has prevented Let us take a view of industry in general, as affected by this circumstance. The window being broken, the glazier's trade is encouraged to the amount of six francs; this is that which is seen. If the window had not been broken, the shoemaker's trade (or some other) would have been encouraged to the amount of six francs; this is that which is not seen. And if that which is not seen is taken into consideration, because it is a negative fact, as well as that which is seen, because it is a positive fact, it will be understood that neither industry in general, nor the sum total of national labour, is affected, whether windows are broken or not. Now let us consider James B. himself. In the former supposition, that of the window being broken, he spends six francs, and has neither more nor less than he had before, the enjoyment of a window. In the second, where we suppose the window not to have been broken, he would have spent six francs on shoes, and would have had at the same time the enjoyment of a pair of shoes and of a window. Now, as James B. forms a part of society, we must come to the conclusion, that, taking it altogether, and making an estimate of its enjoyments and its labours, it has lost the value of the broken window. When we arrive at this unexpected conclusion: "Society loses the value of things which are uselessly destroyed;" and we must assent to a maxim which will make the hair of protectionists stand on end — To break, to spoil, to waste, is not to encourage national labour; or, more briefly, "destruction is not profit." In short, breaking windows may generate economic activity for the glazier, but that doesn't count the economic cost to whoever had his window broken, or the opportunity costs of how the money spent on fixing the window could have been fixed. So how does this apply to net neutrality? Well, Ajit Pai and nearly all of the rather vocal supporters of taking away net neutrality rules continually go back to the claim that the rules harmed broadband infrastructure investment. We'll leave aside the (rather important point) that this claim is not even remotely close to true -- but even assuming it is, it's still a broken windows fallacy. That's because broadband infrastructure investment is not the entire market, and focusing just on that is the same as just focusing on the economic activity for the glazier created by a broken window. To take this to the extreme case: if we want to stimulate broadband infrastructure investment, just rip up the current internet -- and then we'd need to spend a ton on rebuilding the internet. Yes, that would be the best way to "stimulate" a massive internet infrastructure investment, but the costs to everyone else would be dire. In the same way, when the FCC focuses just on broadband infrastructure, it is ignoring the costs on everyone else who use the internet. Or, as per Bastiat's story, the FCC is ignoring the costs to the guy whose window is broken as well as all of the opportunity costs from the money he spends on the glazier that doesn't go towards more productive pursuits. In the net neutrality world, those costs are massive. It is the costs of nearly all internet platforms and services, which now have massive levels of uncertainty about whether or not ISPs will end up abusing their power to limit access (or, more likely, charge for preferred access). It includes the uncertainty of the big broadband companies favoring their own content and service partners to effectively shut out independent services. It includes the costs to the public who have less choice and fewer services that they can use, and who are more locked in to a dwindling number of giant broadband companies. In short, Ajit Pai's FCC has fallen completely for the broken windows fallacy, by focusing just on one narrow area of economic activity, without even being willing to acknowledge that it will negatively impact a much wider swath of the economy. This is especially disappointing to see, considering that Pai and his supporters keep claiming that they are the ones to "bring economics back" to the FCC, and they are the ones who argued that the Tom Wheeler FCC ignored economics. Yet, when you look at the details, it's Pai and his supporters who seem to be the ones sticking their heads in the sand here and, as Bastiat noted, confining their theory to "that which it seen" and taking "no account of that which is not seen." In economics this is a pretty 101-level mistake. That the FCC is making it in dismantling a key concept that makes the internet function competitively is particularly disappointing. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
When the Facebook, Cambridge Analytica scandal broke, we noted that however bad you thought that scandal was (and it certainly was bad), it couldn't hold a candle to the routine privacy abuses that have occurred in the telecom sector for the better part of the last few decades. From charging consumers hundreds of additional dollars annually to opt out of snoopvertising, to the use of private user financial data to justify providing even worse customer service, the broadband industry has long been the poster child for privacy abuses without much in the way of practical public penalty. It's just as bad on the wireless side, where carriers like Verizon have routinely have been caught modifying user data packets to track users around the internet (without telling them or providing opt out tools), and selling user browsing, app-usage and location data to everyone that comes calling. That's before you even touch on the fact that these companies are practically bone grafted to the NSA and other intelligence services. As such, we noted how if you were part of the #DeleteFacebook set but were still rolling around using a stock phone on an incumbent carrier network, you failed to understand that Facebook's casual treatment of private consumer data was the cross-industry norm, not some errant exception. The Location Smart and Securus scandals (which exposed the data of 200 million cell users) quickly proved our point. Thanks to lax handling of private location data by cellular carriers and third-party brokers, those scandals quickly highlighted how anonymized data isn't really anonymous, and this data can and is routinely abused by everybody in this chain of dysfunction (including law enforcement). Oddly, even in the wake of those reports, people still seemed to view the Cambridge, Facebook fracas as somehow far more scandalous, most likely because of that particular story's political undertones. Clearly hoping to get ahead of the scandal before the press, public and regulators realized the depths of this particular rabbit hole, Verizon proclaimed that the company would be ending all sales of location data to third party data brokers. The company announced the decision (pdf) in a letter responding to inquiries by Senator Ron Wyden, who had begun to apply some pressure on mobile carriers. From the letter: "We conducted a comprehensive review of our location aggregator program. As a result of this review, we are initiating a process to terminate our existing agreements for the location aggregator program. We will not enter into new location aggregation arrangements unless and until we are comfortable that we can adequately protect our customers’ location data through technological advancements and/or other practices." Verizon announced it would be suspending all data sales to location data brokers like LocationSmart and Zumigo, which the company acknowledged sold that data in turn to a roster of more than 75 different companies. And, in short, it's promising to suspend such data sales at least until it can ensure that data is actually secure (what an incredibly novel idea). Who'll actually confirm this data is secure before the program is restarted isn't clear; you'll apparently just have to trust a company with a several-decades history of severe privacy violations and blatant false statements. Like the Facebook scandal, there wasn't much in place to really ensure that often real-time data remained protected, something made clear when the LocationSmart scandal revealed that one Missouri Sheriff routinely (ab)used the system to spy on Judges and fellow law enforcement officers without much legitimate justification (or pesky warrants). In subsequent statements to the press, Verizon has tried to argue that the company quickly took steps to thwart the abuse: "When these issues were brought to our attention, we took immediate steps to stop it. Customer privacy and security remain a top priority for our customers and our company. We stand-by that commitment to our customers." But again, this was Verizon only acting after the horses escaped from the barn, suggesting that no, privacy and security was not a top priority. If Verizon's self-auditing was so stellar, it seems curious it never self-identified the potential for the kind of abuse the LocationSmart and Securus scandals revealed. Or the self-audits did reveal problems, but the money made from selling this data made actually fixing them a low priority. Knowing Verizon pretty well, it seems clear it wouldn't be taking this kind of financial hit if its lawyers didn't realize the company was potentially facing some pretty steep penalties here. One of the key problems in location and other data sharing is that wireless cell carriers have found a way to effectively operate outside any meaningful privacy guidelines by perpetually passing the onus for user consent down a long line of location data aggregators. Blake Reid, an associate clinical professor at the University of Colorado School of Law, perfectly captures the problem in comments made to Brian Krebs: "The carriers basically have arrangements with these location aggregators that contractually say, ‘You agree not to use this access we provide you without getting customer consent’,” Reid said. “Then that aggregator has a relationship with another aggregator, and so on. So what we then have is this long chain of trust where no one has ever consented to the provision of the location information, and yet it ends up getting disclosed anyhow." Verizon's obviously trying to pre-empt privacy regulation before we collectively realize current oversight makes the wild west seem downright domesticated. The company has long fought tooth and nail against any kind of consumer privacy protections, stating back in 2008 that federal privacy rules aren't necessary because "public shame" would keep the company honest. More recently, Verizon successfully lobbied the FCC to kill modest broadband privacy rules that would have prevented precisely this kind of scandal from happening by requiring greater transparency -- and that users opt-in to more sensitive data sharing. None of that is to say that regulatory action is the only solution here, or that this particular Congress could even accomplish such a task. But it's also pretty clear that sooner or later, the pinky swears and winks currently passing for oversight of the telecom sector's treatment of your private data aren't going to quite cut it. Shortly after Verizon's announcement AT&T stated that it too had suspended location data sales to third-party brokers (for all the same reasons). Sprint followed suit. T-Mobile, which cultivates a reputation as a more consumer-friendly wireless carrier, belatedly brought up the rear, initially likely wary of highlighting any missteps as it seeks regulatory approval for its looming competition eroding megamerger. But again, most of these promises were somewhat murky in scope (T-Mobile's promise to improve, for example, was entirely devoid of substance and somehow never reached Wyden's office). With this data having bounced around so many partners with so little transparency or oversight, you can be pretty sure we haven't heard the end of this story. And while wireless carriers would very much like the public and press to believe that they've fixed the privacy problems that plague the telecom sector, several decades of evidence to the contrary -- and the press and public's general tone deafness to the scope of this particular problem -- suggest any meaningful reckoning is still likely some time away. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
More than half the states in the nation now pursuing individual net neutrality rules, either in the form of executive orders (banning state contracts with net-neutrality violating ISPs) or new state laws. And while ISPs have been whining about the unfairness of having to adhere to independent requirements in each state, that's probably something their lobbyists should have thought more deeply about when they worked to kill what, despite all the prattle about heavy-handed regulation, were probably some of the more modest net neutrality rules worldwide. ISPs first tried to stop states from protecting consumers by lobbying the FCC to include language in its "Restoring Internet Freedom" repeal attempting to ban states from doing so. But in the process of gutting their authority over ISPs Ajit Pai's FCC may have also, amusingly, completely neutered its ability to tell states what to do. As such, ISP lobbyists have been forced to run, state to state, trying to convince state lawmakers that giving consumers, small businesses and internet competition a giant middle finger is the smart political play here with midterms looming. Verizon, AT&T and Comcast are working extra hard to weaken a bill in California, that is actually a bit tougher than the FCC rules it's intended to replace. As the EFF notes, ISPs are particularly worried that California will ban "zero rating," or the practice of using usage caps and overage fees anti-competitively: "California’s legislature has so far opted to ban discriminatory users of zero rating and prevent the major wireless players from picking winners and losers online. But new and increased resistance by the ISP lobby (led by AT&T and their representative organization CALinnovates) unfortunately has legislators contemplating whether discriminatory zero rating practices should remain lawful despite their harms for low-income Internet users. In fact, AT&T and their representatives are even going so far as to argue that their discriminatory self-dealing practices that violate net neutrality are actually good for low income Internet users. AT&T (and even Facebook) have been pushing this idea that zero rating "helps poor people" for a while. Basically, they're trying to argue that because some users get content that doesn't count against the cap, they're somehow providing added value to low-income Americans. Of course that ignores the fact that it's only an incumbent ISP's own content (or content from the biggest, wealthiest partners) that's usually exempt, raising all kinds of anti-competitive questions. You'd also have to ignore than American consumers pay more money for LTE mobile data than a laundry list of developed nations, and that usage caps and overage fees on these lines are arbitrary, unnecessary and meaningless constructs in the first place. Still, AT&T has spent a few years now trying to falsely conflate arbitrary caps and penalties with things like "1-800" numbers or "free shipping," successfully convincing many consumers they're getting something for free. You'll recall that initially, the FCC didn't want to act on usage caps, overage fees and zero rating for fear of being accused of stifling carrier innovation and creativity. As a result, the 2015 rules were crafted with pretty ambiguous guidance on zero rating, something we warned would be a problem. Only at the tail end of its tenure did the Wheeler FCC start to realize caps and overage fees were being used anti-competitively to favor an ISPs' content over smaller competitors, at which point Donald Trump and Ajit Pai had already come to power--and quickly set to purging the rules entirely. You know, for freedom. California's net neutrality law doesn't ban zero rating if an ISP wants to exempt an entire class of content (say, video) from usage caps and overage fees. But it does prohibit ISPs from striking deals that give specific companies cap-exempt status, preventing companies from buying an unfair advantage for themselves or a competitor. Given AT&T just gobbled up Time Warner and HBO with zero rating specifically in mind (HBO is free on our network but costs money if you use a competitor), you can understand why AT&T's so opposed to these rules. This all comes to a head this Wednesday with a vote and hearing before the California Assembly’s Communications and Conveyance Committee. And while the majority of that committee say they support net neutrality, net neutrality activists say that major ISP lobbyists have succeeded in getting some lawmakers (like Committee head Miguel Santiago) to waffle on the whole zero rating part of the equation. After all, nothing quite says "restoring freedom" like letting AT&T give its own horse a half-mile lead in the streaming video wars to come. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Some of us believe that all the different nations of the world are filled with people that are mostly the same, that share the same values, and the same troubles. If only we could find some unifying issue or force that could fully bring us together, then we could finally live in a kind of Lennon-esque harmony with one another. I submit to you that perhaps stupid trademark stories revolving around "Taco Tuesdays" could well be that thing. In America, for instance, a chain called Taco John's has spent the past few years waving around the trademark the USPTO stupidly gave it on the both generic and descriptive term "Taco Tuesdays", insisting that every other business that uses it stop immediately. How this mark was ever granted, given that it describes a good offered on the day it is offered -- tacos on a tuesday -- is a question that has kept me up many a night. Despite the trouble Taco John's has caused with this, the trademark remains registered and in place. And now it appears that Australia has its own version of this, featuring another company waving around another trademark for "Taco Tuesdays" that never should have been granted. A stone’s throw into the city’s wild west sits Footscray’s Reverence Hotel, famed for its live music and cheap Tuesday tacos. After six years of dishing up the spicy fare, the landmark corner hotel is suddenly feeling the heat over a claim that it is infringing a trademark held by Mexican food chain Salsas Fresh Mex, which has outlets dotted across Melbourne including a site at Highpoint shopping centre. A letter from Salsas Holdings marketing manager Rebecca Woods to The Reverence Hotel demanded it stop using the phrase ”Taco Tuesday” on its website and social media accounts. “We assume that you are unaware that Salsas is the owner of the registered trade mark TACO TUESDAY in respect to the provision of Mexican-style food and restaurant services,” it states. “The Mexican-style food offered by Salsas under that trademark has become extremely well and favourably known among members of the public in Australia, and as a result is associated with Salsas.” I'm going to keep hammering on this until someone listens, because this trademark is not valid. Period. Paragraph. Full stop. It does not identify a source. The phrase itself is generic and common in both the restaurant industry the world over and even in homes around the world. Tuesday is for tacos and nothing about the phrase has anything to do with any individual person or business. The folks at Footscray's had this same reaction in the most punk venue way possible. Publican Matt Bodiam said his first reaction on opening the letter on Wednesday was amusement, but he soon realised the potential seriousness. “I had a bit of a giggle, then [thought] I better look into it,” he said. “I can’t believe someone can trademark ‘Taco Tuesday’; it would be like trademarking ‘Happy Hour’ or ‘Tight-Arse Tuesday’, although perhaps someone has trademarked those as well.” Actually, the "happy hour" reference is only half right. In that phrase, we have an example of the generic language tons of businesses use. Taco Tuesdays is the same in that respect, except it's also descriptive. This isn't the protection of the consuming public, the very point of trademark law, but rather the locking up of language for commercial purposes. And it's dumb. But it also works. Salsas has enough of a legal warchest to make Footscray's fighting the good fight on this an absurd notion. It is far easier and less expensive to simply cow to the demands of the trademark bully than putting up a fight in court. Trademark bullying, in other words, works. But perhaps not without giving creative punk venue owners the last laugh. Mr Bodiam said The Reverence would continue selling tacos on Tuesdays, but the night is now listed on its site as “Taco Sueday”. Bravo, sir. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
You may recall that about this time last year, the House of Representatives put together a budget that included funding for a brand new military branch dubbed the Space Force. At the time, our take is that this was always inevitable, as humanity tends to carry its war-making luggage everywhere we go and, since we go to space, we're going to have a Space Force. More surprising was the pushback from those who have a thing or two to say about military matters, such as Secretary of Defense James Mattis, who noted that setting up a new military branch was hellishly complicated, and required congressional approval. Mattis, in a letter to Rep. Mike Turner -- an Ohio Republican leading the congressional effort against the Space Corps -- said he was opposed to adding "additional organizational and administrative tail" to the Pentagon. "At a time when we are trying to integrate the Department's joint warfighting functions, I do not wish to add a separate service that would likely present a narrower and even parochial approach to space operations," Mattis wrote. One can read that as government-speak for: "No, this is stupid, why are you proposing this, everything is going fine, hey, is this thing even on?" Currently, space-based operations for the military are headed up by the Air Force Space Command. There is no denying that orbital operations are critical to the success of the United States military, given all of the satellite assets currently floating around the near-inky void. There has also been no indication that the Air Force is not up to the job, given the current lack of space-based infantry skirmishes or ground (ahem) operations. This week, however, President Trump directed the Pentagon to create his new Space Force. It would be absolutely absurd not to notice the timing of the announcement that grabbed at least some of the headline space from news organizations that would otherwise have been directed at video and audio of toddlers in cages as they wept openly for their parents. It seems the Dear Leader couldn't help but notice this timing either, even as he made his announcement. In remarks that ranged over a variety of unrelated topics, Mr. Trump began by saying current U.S. employment levels were the best "in recorded history" and blaming current immigration problems on the Democrats, saying "we have the worst immigration laws in the entire world" and that ongoing issues could be resolved "very quickly if the Democrats come to the table." Turning his attention to space, the president praised the National Space Council and its chairman, Vice President Mike Pence, for its work re-focusing national space policy, saying "for too many years, our dreams of exploration and discovery were really squandered by politics and bureaucracy. And we knocked that out." "My administration is reclaiming America's heritage as the world's greatest space-faring nation," he went on. "The essence of the American character is to explore new horizons and to tame new frontiers. But our destiny, beyond the Earth, is not only a matter of national identity, but a matter of national security." Look, space exploration is sorely in need of funding. That said, nothing about creating a new fighting force for space is going to be quick, easy, or bring about the kinds of results we could see either by funding current space exploration organizations (hey, remember NASA?) or private companies now taking up the challenge. As the Pentagon noted in its response, this foray into the final frontier is going to take a long, long time to set up. The Pentagon's chief spokesperson Dana W. White issued a statement suggesting the process will take some time. "We understand the President's guidance. Our Policy Board will begin working on this issue, which has implications for intelligence operations for the Air Force, Army, Marines and Navy. Working with Congress, this will be a deliberate process with a great deal of input from multiple stakeholders." One can read that as Pentagon-speak for: "Uh, okay, but this is going to take, like, forever." Which, honestly, is probably besides the point. Whatever you might think of the current politics and immigration policy on display, there is little denying that this grand announcement came on the heels of a deluge of negative press and headlines for the President. Whatever side of the political spectrum you're on, hopefully we're all in agreement that space operations are important. If we do, then we should likewise agree that callous calls for massive new programs and full military branches being used as a distraction are an affront to that importance. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Recently, Valve sent waves through the PC gaming world by announcing an upcoming policy change for its Steam platform: it will no longer enforce specific content rules and will allow all games as long as they aren't illegal or "straight-up trolling". Though it's not exactly clear what this means, the reaction from the gaming press has been largely negative, and it's hard to say how the new policy will be implemented — so this week myself, Tim Geigner and Cathy Gellis join the podcast to discuss just what's going to happen on the biggest platform for PC games. 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

Read More...