posted 19 days ago on techdirt
Remember, just last week, when HBO and Showtime were flipping out about a couple of streaming sites promising to broadcast live streams of the big Flord Mayweather/Manny Pacquiao fight? Apparently, they had the wrong target. Just a few weeks earlier we had noted that Hollywood seemed to be losing its mind over the latest round of livestreaming apps. Never mind that livestreaming apps have been around for ages, because there were two new shiny ones (Periscope, which is owned by Twitter, and Meerkat), suddenly it was a "big deal" again. Especially when it came to sporting events. We'd already discussed the NHL's silly ban on reporters, saying they couldn't use Periscope. All of that came together this weekend in a collective mess. First, many of the big pay TV providers experienced outages, meaning that people who paid $100 to see just this one fight found themselves completely locked out. Looking for a solution, they turned to Periscope. And they apparently found what they were looking for. And, it probably didn't help that Twitter (again, owner of Periscope) CEO Dick Costolo tweeted the following, claiming "the winner is... Periscope." Of course as some pointed out, he may have really been talking about the fact that HBO itself used Periscope to show inside Pacquaio's dressing room before the fight -- which seems like a pretty good way to use the technology. However, if this ever leads to a lawsuit, expect that tweet to be an exhibit of an out-of-context claim by HBO/Showtime that Twitter was somehow "inducing" infringement on its platform. Either way, given how popular the bogus storyline is that there's some sort of existential struggle between Silicon Valley and Hollywood, the resulting news story practically writes itself. Once again, we hear of big bad technology completely tearing down pure hearted big copyright holders, and how "something must be done!" It will be absurd for Twitter to mount the defense that it complies with any takedown notices filed over copyright-infringing content. Because by the time the compliance occurs the livestream is already over, the company is going to need to figure out a better way to combat piracy on the fly. Periscope may require something like Google’s Content ID system, technology capable of identifying forbidden streams in an instant, and maybe even converting them to transactional opportunities for legal alternatives to the content in question. Wait, it would be absurd for Twitter to say "look, we comply with the law, what else do you want us to do?" Why? Why is it Twitter's responsibility here? Why not the promoters of the show to make sure that their partners supplying the paid streams actually have technology infrastructure in place that works? Or why not Showtime and HBO for creating additional reasons for people to sign up for its service, rather than signing on to one of the Periscope streams? Why, again, does Hollywood always seem to (1) blame the tech industry for its own failures and (2) then demand that the tech industry magically stop what is unstoppable? Why not, instead, recognize that the technology is really useful, that people like it, and look for ways to take advantage of that? Why not offer an official Periscope stream or partner with others who are Periscoping on their own to offer different/better commentary? There are many things that they could do to embrace things rather than complain about it (or threaten to sue). Technology keeps advancing. Pretending that you can stop that technology is not a productive path towards the future. Hollywood keeps having to relearn this lesson with every new major technological advancement. It tried to stop the radio, the television, cable TV, the photocopier, the VCR, the MP3 player, the DVR, YouTube and more. One day, you'd think they'd learn that this is a bad strategy.Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
As we noted a few weeks ago, data retention laws continue to fall in Europe. Then it was Bulgaria, following in the wake of Netherlands. Now we learn that the Constitutional Court of the Slovak Republic has similarly struck down the country's data retention provisions, as reported by the European Information Society Institute: An act, which ordered large-scale mass surveillance of citizens (so called data retention) is now history. Today the Constitutional Court of the Slovak Republic proclaimed the mass surveillance of citizens as unconstitutional. The decision was rendered within proceedings initiated by 30 members of the Parliament on behalf of the European Information Society Institute (EISi), a Slovakia based think-tank. Those judgments are all in line with the ruling by the Court of Justice of the European Union (CJEU) that the over-arching EU Data Retention Directive was "invalid." Even the European Commission seems resigned to the fact that there will be no new data retention laws at the EU level. However, that still leaves the possibility of national laws, provided they do not fall foul of the CJEU judgment, which implicitly offered guidelines how that might be achieved. Germany still seems determined to try, while legal action in the UK will determine whether the recent Data Retention and Investigatory Powers Act (DRIPA) has managed the trick. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
Much of the political debate around encryption, such as that on display in a congressional hearing this week, has been characterized by a fundamentally flawed understanding of the most basic principles. Mason Wheeler won most insightful comment this week by underlining one such example: Someone needs to sit this guy down and explain Kerckhoff's Principle to him. It's one of the most fundamental rules of information security: The Adversary Knows The System. It means that any valid discussion of security must begin from the assumption that the bad guys who are trying to break in already know everything about how your system works, but does not necessarily already know the key, and if you can't show that the system is still secure against such an adversary, you have to assume it's not secure. Kerckhoff's Principle rejects the very concept of a "front door" that the good guys can use but hackers can't gain access to. If there's another way in besides the private key, you must assume that the bad guys know all about it. Meanwhile, HBO and Showtime tried to change some basic principles of copyright by pre-suing a site that planned to stream an upcoming boxing match. This raises a bunch of interesting questions, and second place for insightful went to an anonymous commenter who proposed a reversal of the idea: Wait, if they can sue for anticipated copyright, then can we sue for anticipated public domain? I mean, technically all copyrighted works do eventually fall into the public domain, right? If their whole argument is hinging on eventualities, then why can't we do so for the public domain which is a definite eventuality? For editor's choice, we start with another anonymous commenter who made a point on that post which is oversimplified but serves as a starting point for a lot of important discussion: Sporting events should not be copyrightable. Period. To say otherwise is utter insanity. (The catch, of course, is that the copyright is on the coverage of the event, which is a work of authorship. But this still raises the question of just how much protection such coverage actually qualifies for, based on which aspects of it genuinely involve creative choices and how much is just neutral documentation of facts.) For our next editor's choice, we pivot as we so rarely do to a Daily Dirt post, which discussed the Singaporean test question that lit the internet on fire. One person in the comments objected to it being called a math problem when it was really a logic problem, prompting Different Anonymous Coward to offer this well-conceived rejoinder: If you think any given logic puzzle has nothing to do with math you either need to go deeper into logic until you hit math, or deeper into math until you hit logic. Over on the funny side, we start out on our post about the latest moral panic: Minecraft and kids. Some parents shared their own stories about the game, and NoahVail's became the funniest comment of the week: My kid roped me into launching a MC server One of my kids wanted to setup a Minecraft server. Two years later I'm managing & hosting 2 Minecraft servers w/ most of 100k usernames and my kid has wandered off onto the next project. I did my bit. I got involved with my kid playing MC and now I'm saddled with running his online community. At least pets die eventually. I don't know how long game servers live for. *sigh* In second place we've got Michael, who observed that the recent takedown of Dan Bull's Death To ACTA video was spurring a well-known Effect: So a 5 year old YouTube video that pretty much everyone has forgotten about is back in the news because someone is trying to silence it. Apparently Dan's marketing strategy is working! For editor's choice, we start out with one more parental Minecraft story, this time from James Blackburn: My kids (10 and 12) are RUINED by this game. The last parent - teacher interviews I had I was told how my kids are sickeningly respectful to authority, work well with others, and to top it all off, will include other classmates in projects or activities when those kids are being left out by others. (Full disclosure: I said "You sure you have my kids in mind??") Oh, and to top it off, not only do they amaze me with what they make on that game (although really how anyone can sit for more than 5 mins on that game amazes me), they have come up with some pretty creative crafts using ordinary items around the house because of that game. So, yeah. Terrible game. Finally, we've got another comment regarding the bizarre attempt to pre-sue for copyright infringement. Chris-Mouse asked a critical question: Copyright only exists once the work is created in a fixed format. Are they saying the fight is fixed? That's all for this week, folks! Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
Five Years Ago This week in 2010, the world was abuzz over the prototype iPhone that was left in a bar, and we discussed the legal fallout and its implications for bloggers-as-journalists. At the same time, another case found that a blog commenters was not a journalist. In the old-school journalism world, Rupert Murdoch was moving towards paywalls while his competitors were proudly promising to remain free, and the New York Times was struggling to find reasons to like its paywall. Lots happened on the copyright front this week. A historical association claimed copyright over scans of 100-year-old photos while we asked why UNESCO was launching pro-copyright efforts; Twitter was removing a lot of tweets over bogus DMCA takedowns while a horrible new bill in congress sought to extend DMCA takedowns to cover "personal information"; the U.S. Chamber of Commerce released a bogus study pushing for more IP enforcement while the IFPI's latest report actually showed music sales growth in some markets; the USTR released its "revised" Special 301 report (and continued to lie about ACTA) while the Justice Department boosted the number of FBI agents and attorneys focused on copyright infringement; and the RIAA utterly missed the point about Record Store Day but also got AFL-CIO to sign on in support of a proposed performance tax. Internationally, Shanghai was cracking down on (read: pushing underground) bootleg discs, Chile got a mixed bag of new copyright laws, and an Irish collection society was trying to get music bloggers to pay up. Ten Years Ago Back in 2005, many newspapers weren't nearly as well-established online as they would be in 2010 amidst all the debates about paywalls. It was only just becoming clear (well, it was only just becoming undeniable anyway) that the future of news was online (and that future wasn't in walled gardens). An interesting upshot was that local newspapers were faring better online, and teaching the rest a thing or two about targeted advertising. Meanwhile, Techdirt got some newspaper love of its own. The entertainment industry was still desperately trying to make the case for mobile TV, this time suggesting babies might be a great audience, which was insane but at least a little more detailed than "just because". Some wanted to leapfrog TV and go straight to selling extremely expensive feature-length movies on phones. Meanwhile, Disney was rolling back its failed video-on-demand test programs just as Steven Soderbergh was trying to get more films available in theatre and on DVD at the same time. RealNetworks was offering a music streaming service with an incredibly sad 25 free streams per month, though it's hard to say whether that's sadder than Wal-Mart's custom-burned CDs. Oh, and Nathan Myhrvold was going around hyping up his plans to create an "invention factory". I wonder whatever happened with that... Fifteen Years Ago This week in 2000, Silicon Valley was in the midst of the dot-com bubble collapse, with the peak now a month in the past. Still, some CEOs were rightly saying that focusing on running a business was more important than the market, and Valley innovation wasn't going to disappear. People were noting that there was still a lot of investment money out there in the pockets of VCs, while a new book (slightly hypocritically) discussed this question of short- and long-term thinking. Certainly none of this was scaring entrepreneurs away from the web, or stopping dot-coms from throwing big parties and media outlets from listing internet business superstars. It didn't stop ridiculously expensive dot-com Superbowl ads or, on the other end of the scale, the coming wave of dot-com infomercials. After all, there was plenty of evidence to suggest that online retail wasn't dead and that ecommerce would keep on growing. Hell, even music sales were up. Twenty-Two Years Ago April 30th, 1993 is an important day in the history of the information era: it's the day CERN announced that the newfangled "World Wide Web" and the protocols and technologies that it consists of would be free to anyone, with no fees due. This decision, arguably moreso than the technology innovations or the proliferation of home computers or any other factor, shaped the future of the global communication network we all rely on today, and shaped it for the better. Sadly, now much of what is now happening online stems from the exact opposite attitude, with even many well-meaning innovators proving too nervous to relinquish control of their creations and let them truly flourish. Hopefully more people will take a moment to think about what the internet might look like if all its higher functions relied on a fragmented mess of proprietary protocols and walled gardens, instead of a unifying web on which everyone can build. Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
Not too long ago, people got pretty excited about the idea of a "modular smartphone", and recently Google announced that it would be launching its attempt at such a device in Puerto Rico this year. The idea has also sparked a lot of debate, with some saying the sacrifice of size and/or power needed to create something modular would be too great. But there's one idea I don't recall anyone bringing up at the time: moving the whole modular concept off of the phone and onto a phone case. This week, we're looking at the nexpaq, which does just that: The Good There's something very appealing about the modular components, as they seem to strike most people as something that just makes sense. Obviously with them living as extras on the case rather than being part of the phone, some of the original idea's efficiency and space-saving appeal is lost — but that was already debatable (though we'll see what Google comes up with) and I think most people were far more drawn to the modular function itself as a matter of convenience and coolness. It also makes the whole power situation a little easier to deal with: the case has a built-in battery pack (which helps run both the modules and your phone) and you can fill one of the modular slots with an additional battery pack component. This also means that the case can function independently: you can disconnect it from your phone, and still access the modules via Bluetooth. The other modules currently available in the Kickstarter include an amplified speaker, an SD card reader, a pair of physical programmable hotkeys, a laser pointer, a breathalyzer, a USB drive and several more diverse options which paint a good picture of the flexibility offered by the system. $109 gets you a case and four modules (which seems like a good price) and the current model is designed to be compatible with three very popular phones: the iPhone 6, Galaxy S6 Edge and the Galaxy S5. The creators are also actively encouraging development of new modules and new software: there are several backer rewards specifically for developers. Though I can actually see the case still being popular with just a core lineup of useful modules, it will be really interesting if they succeed in building a community of developers who create new stuff all the time. The Bad There are a few things that remain unclear about the nexpaq, and a few details in the description that hint at potential limitations. For one thing, it sounds like most of the modules will only be accessible through the dedicated nexpaq app for now, and that compatibility will have to be built into other apps using the SDK. This may not be true of every module — it's possible that that the flash drive will be broadly accessible by the OS, for example — but it sounds like it might be if all of the modules are mediated through the case as a single peripheral rather than being separately accessible, hub-style. I doubt the blame for this falls on the creators: it's probably a limitation of the smartphones, perhaps to a slightly lesser extent in Android but certainly in iOS, but it still could be the flaw that sinks the nexpaq. Relatedly, the Bluetooth connectivity, while a nice feature, raises the question of whether Bluetooth will be required for some or all communication even when the case is connected, which would eliminate some of the elegance of the concept. All this points to the key reason nexpaq might have trouble competing with Google's modular phone should it ever come to fruition: Google can build support for the modules directly into the operating system and make sure they are all accessible at a low-level as standard peripherals, so an SD reader module mounts cards normally and your existing Android apps automatically recognize a speaker module and so on; nexpaq will almost certainly have to limit at least some of its capabilities to its own app and those specifically designed to be compatible. The Inevitable Either way, it looks like we're going to find out: the nexpaq has already shot past its goal with nearly a full month still to go in the Kickstarter compaign. Despite my reservations, I'm happy to see it move forward, and eager to find out the answers to some of my questions. Their goal is to ship by January of next year, though as with all Kickstarter projects, delays are a likelihood. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
As was widely expected, earlier this week, a bunch of high-profile Senators introduced a big patent reform bill, known as the Protecting American Talent and Entrepreneurship (PATENT) Act. It's backed by Senators Chuck Grassley, Patrick Leahy, Chuck Schumer and John Cornyn, and has a decent chance of becoming law. From a quick look at the bill itself, it looks an awful lot like what we expected to show up last year, right before Senator Harry Reid stepped in and killed the bill. With the Republicans taking over in Congress, however, Reid no longer has the power to do that. Meanwhile, Schumer, who has long been supportive of patent reform and is basically taking over Reid's leadership position as Reid prepares to retire, has declared that this time the bill is getting done. That's all good. The bill is a good start. But, unfortunately, it's not nearly enough. It does target some of the symptoms of the problems of the patent system, but does little to fix the underlying causes. The bill targets the worst of the worst: the patent trolls who thrive on shaking down companies. Specifically, the bill aims to do a few key things: Fee shifting on ridiculous lawsuits: It would allow for attorneys' fees to be awarded if the patent holder was not "objectively reasonable" in filing the lawsuit. The Supreme Court has already made it easier for courts to award attorneys' fees, but this would slide the scale over a bit in a helpful way. This certainly increases the risk for patent trolls who have no real case. Limiting discovery: Defending a patent lawsuit is crazy expensive. We often hear stories of it costing like a million dollars just to get to trial. And one big expense is "discovery," in which the patent holder gets to ask for all sorts of information from the company its suing -- emails, plans, source code, etc. This process is super expensive and there's not much you can do about it. It often starts pretty quickly after a lawsuit is filed as well. This new bill would put limits on early discovery, allowing those sued to seek motions to dismiss the case altogether or to transfer venues. That could decrease the early cost, taking away some of the pressure on defendants to just settle, and giving them more ability to fight back against bogus claims. Limits vague demand letters: The patent troll's weapon of choice is often to send totally vague demand letters, insisting companies infringe without telling them how. It also makes it easier for the FTC to go after those who send such bogus threat letters. Protecting some end users: We've highlighted plenty of cases where patent holders sue those who make devices or software, and then sue a variety of end-users as well. This bill, in a fairly limited way, would put those kinds of lawsuits on hold until the manufacturer can fight the infringement in court. But this only counts if the troll also has sued the manufacturer. So it's a bit limited. Transparency: The bill would make it harder for trolls to hide behind shell companies. This is a fairly big deal, as many patent trolls have a series of shell companies, and often you have no idea who really owns the patent. The bill will also require actual lawsuits to be a lot more clear in terms of what they're actually suing over and why the defendant infringes (and what it infringes). These are all good things, but it's unlikely to truly be enough. Missing, unfortunately, is the expansion of a program that would allow the patent office to do a faster review of crappy patents, known as the covered business method (CBM) process. This is too bad -- as this was an idea that Schumer had been a strong champion for, but which Microsoft and IBM pushed back very hard on, as they HATE the idea that the USPTO might start invalidating their crappy patents with a quick review. Yet, as Schumer knows well, this CBM tool has proven tremendously effective in dumping a bunch of crappy financial services patents. Hell, just this week, DataTreasury, a massive trolling operation that has received over $350 million in settlements had its key patents invalidated via a CBM review. It's too bad that program couldn't have been expanded. Blame Microsoft and IBM. But there are a lot of other problems that the new bill doesn't touch at all. Yes, it may shut down the worst of the worst in trolling, but will still allow plenty of bad situations to flourish. Bad patents will still get through and be used to hinder innovation. The new bill does absolutely nothing to address the situation with independent invention either, and that's a major problem in the patent space. Either way, even with this incremental fix, it's likely we'll see a bunch of ridiculous claims that the above changes in patent law will somehow harm inventors, though, I can't see how that's true. As long as you're transparent and upfront with how the infringement happens, and don't file "objectively unreasonable" lawsuits, it seems like patents are still a powerful tool to demand money from companies.Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
MuckRock has obtained a whole stack of Stingray-related documents from the FBI. As is to be expected, there's not much left unsaid by the agency, which is at least as protective of its own Stingray secrecy as it is with that of law enforcement agencies all over the US. There's nearly 5,000 pages of "material" here, most of which contains only some intriguing words and phrases surrounded by page after page of redactions. Want to know [REDACTED]'s thoughts on the possible legal implications of Triggerfish? Just close your eyes and allow your imagination to run free. Here's a quick reference guide that allows FBI agents to quickly match up their chosen "technique" with the appropriate legal standard and process. That's not to say there's nothing of interest left intact. A few pages explain the FBI's legal rationale for IMSI catcher deployment -- including the fact that the Patriot Act expanded the reach of pen register orders to include not just numbers dialed, but also the location of the phone itself. This allows the FBI and other law enforcement agencies to route around one of CALEA's (Communications Assistance for Law Enforcement Act) few limitations related to pen register orders: that service providers not be required to hand over subscriber location info. In passing CALEA in 1994, Congress required providers to isolate and provide to the government certain information relating to telephone communications. At the same time that it created these obligations, it created an exception: carriers shall not provide law enforcement with "any information that may disclose the physical location of the subscriber" in response to a pen/trap order… By its very terms, this prohibition applies only to information collected by a provider and not to information collected directly by law enforcement authorities. Thus, CALEA does not bar the use of pen/trap orders to authorize the use of cell phone tracking devices used to locate targeted cell phones. But, for the most part, it's 5000 pages of this: And this (from a document titled "Stingray for Dummies"): It's not a complete loss, although it's clear the documents suffer from over-redaction. The FBI clearly doesn't want to discuss methods or technical details, but nothing in the multiple FOIA exemptions deployed justifies covering up its minimization procedures or where the device sits in terms of the Fourth Amendment. "It does not seem credible to me that they can't release more of those kinds of records," [ACLU attorney Nate] Wessler told me. "Information about ongoing investigations, highly technical details of the devices, how they're put together, those kinds of things, redact them, fair enough. Information about whether they have to get a warrant or not, how they purge or do not purge bystanders data. They're clearly talking about those things." "There's no conceivable reason why they shouldn't tell the public what their Fourth Amendment rights are protecting when they use these," he added. "The documents are not without value, but what the FBI has released is not adequate." If nothing else, the documents have given a small, narrow glimpse behind the FBI's veil of secrecy -- as well as some more insight into its Stingray-related legal maneuvering. The FBI has managed to turn a pen register order -- something previously used to collect dialed numbers -- into something that can be deployed to locate an individual, or at least their cellphone. Unsurprisingly, this legal theory traces back to the Patriot Act, one of the largest expansions of intelligence and law enforcement powers ever produced by the US government. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Some folks are really into aged spirits -- as in old alcohol, not ancient ghosts. But if we can't really trust our tastebuds, will anyone really know if an aged wine is really aged? More importantly, though, does it really matter if no one can taste the difference between a day-old beverage and one that's 15 years old? Maybe some wine/scotch snobs will care, but most drinkers probably won't. Chemistry can make a 6-day old rum taste like one that is 20 years old. The method is patented, but knockoffs are springing up -- and presumably, almost "anyone can do it" (well, if anyone really wants to make their own rum, that is). [url] Making pear-in-the bottle brandy is a tradition that dates back to the 1700s. It takes a few months for a tiny pear to grow inside a clear glass bottle, and then the fruit is cut from the tree, washed and covered with year-old brandy. It might be difficult to get this process done more quickly. [url] The scotch industry has previously marketed its products based on prominent years of aging -- even though age is an imprecise measure of quality. To keep up with demand, more and more scotch makers are selling no-age (or age-free) products that try to promote quality over age. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
We've written plenty about the ridiculousness of the USTR's Special 301 list that comes out every year at this time, naming what countries are "naughty" on intellectual property issues. The list is based on no objective measurements, but rather on submissions from lobbyists for the big legacy players with an interest in expanding copyright, patent and trademark laws. The USTR then basically takes those submissions, moves around some words, and puts out this "official" list of naughty countries. US diplomats in the various countries then go around threatening those countries if they don't "do something" (which generally means passing more draconian laws that will help these giant US companies, often at the expense of the public). A few countries -- Canada in particular -- has made it publicly known that it does not accept the whole Special 301 list as legitimate, and rejects its findings. Other countries, however, which have less ability to stand up to the US, like Spain, will often scramble to try to pass new laws to "stay on the good side" of the US. Still, pretty much everyone recognizes that the entire process is a joke. As I've pointed out many times, at a conference, I once saw the US Register of Copyrights openly mock the Special 301 list. Unfortunately, this is a joke that is no longer funny. That's because so many countries are legitimately scared about being on the list, and pass laws to get themselves off the list, with little or no concern for the actual impact on the public, free speech or innovation. Anyway, it's that time of the year again, and the USTR has released the latest list. It is more of the same in almost every way. It tries to shame the same "big guys" as always: China, Russia and India. And it celebrates "progress" from countries that have promoted out and out censorship. For example, it praises Italy: On December 12, 2013, the Communications Regulatory Authority (AGCOM) in Italy adopted regulations to combat copyright piracy over the Internet. The regulations, which entered into force on March 31, 2014, provide notice-and-takedown procedures that incorporate due process safeguards and establish a mechanism for addressing large-scale piracy. Italy’s subsequent implementation of the regulations has been positive, resulting in successful enforcement actions against several websites that offered infringing content. These websites have ceased operations in Italy, removed infringing content, or initiated cooperation with copyright holders. The adoption and effective ongoing enforcement of these regulations is a significant achievement, which the United States continues to welcome. This is misleading at best and insulting at worst. We wrote about those Italian "regulations," which actually gave power to regulators to flat out censor websites with no due process at all. It's not clear how the USTR considers those appropriate "due process safeguards" when the same rules in the US would clearly be prior restraint violations of the First Amendment. In fact, in operation, we've seen Italy order tons of websites blocked on the say so of a single individual, and websites blocked entirely, even after they had removed any infringing material, and with no clear due process in place at all. Is the US really trying to argue that copyright enforcement is more important than Freedom of Expression? Because that's the message that's being sent. Meanwhile, as we wrote about a few months ago, consumer groups are challenging the legality of this system. Will the US condemn Italy for actually recognizing how dangerous this rule is? Along those lines, the EFF has jumped in to offer a counter list, the amusingly named Special 404 list of stories that were missing from the Special 301 list of the USTR. As the EFF notes: On the Web, the error code 404 shows browsers that something is missing. EFF believes that in the Internet era, the Special 301 Report is missing real stories from the countries that the Special 301 condemns. Our intention for this report is to show what’s missing from Special 301 and give some balance to the USTR’s biased review of global intellectual property laws by highlighting the arguments for balanced copyright, patent, and trademark law worldwide. EFF’s Special 404 Report includes a selection of case studies from across the globe showing how overly broad intellectual property laws stifle access to cultural artifacts, artistry, and innovation. Our report also showcases examples in which flexible fair use interpretations have benefited the community, culture, and economy of a country. This report is not an exhaustive analysis of each country listed in the Special 301 Report. Rather, our report is designed to provide insightful case studies that will inform a larger conversation about how the USTR’s report is fundamentally defective. While the Special 404 list does not include Italy, it does provide examples from other countries. For example, it highlights a story we covered last year of a Colombian student facing four years in prison for uploading an academic article to Scribd. And the reason he's facing such jail time was a terrible copyright law rushed through to appease an angry US government. Gomez is a Masters student who has been researching biodiversity and working on the conservation of reptiles and amphibians for several years in the South American region. Throughout his career, the biggest obstacle he has faced has been accessing academic resources on global research databases. One day a couple of years ago, he came across a paper that was especially useful to his fieldwork. He later shared the research online on the website Scribd. The author of the paper then pressed charges against Gomez for the “violation of [his] economic and related rights.” Now the Colombian government is criminally prosecuting Gomez, and he could be sentenced to prison for up to eight years and face crippling monetary fines. Gomez is currently awaiting trial. Analysis There are two primary causes of these egregious penalties. The demands of the copyright industries in the Colombia-U.S. free trade agreement led to extreme enforcement language in the deal, which then led Colombia to enact new, harsher criminal sanctions over "unauthorized" sharing and uses of copyrighted works. Additionally, Colombia does not have a flexible fair use system like the United States. It has a closed list of exceptions and limitations to the rights of authors (derecho de autor). This list was issued more than 20 years ago and is narrowly tailored to some specific situations that are not at all applicable to the digital age. While the Special 301 Report pressures Colombia to toughen its copyright regime, the current system is already inflexible and has a detrimental effect on researchers like Gomez. And yet, amazingly, the USTR's Special 301 report says nothing about this abuse of copyright law in a manner that clearly impacts human rights and civil liberties (not to mention the chilling effects on education and research). A couple of years ago, we noted that CCIA had asked the USTR to put Germany on the Special 301 list for attacking fair use. After all, if the point of the list is to highlight those who are abusing US intellectual property laws, shouldn't it work for those who abuse them against free expression and innovation as well? The USTR basically ignored this request, once again cementing the fact that it doesn't seem to care one bit about issues like civil liberties or human rights, focusing solely on intellectual property maximalism. The Special 301 list remains a joke -- but unfortunately, it's a joke that many countries feel they need to take seriously. Hopefully, the EFF's responsive Special 404 list will provide some more perspective, and help some countries push back on the idea that just because some lobbyists put their name on a list, it doesn't really mean they should have to change their laws.Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Back in March, we wrote about a really bad bill that had been proposed in California by Assemblymember Matt Dababneh, called AB 1326. As we noted, it would basically destroy the ability of new startups in the Bitcoin space to build their businesses in California. Specifically, it would require any startup in the broadly defined "business of virtual currency" to first need to get licensed by "the Commissioner of Business Oversight" and then comply with a long list of other regulations -- including regular audits by the Department of Business Oversight. Well, unless you're a big bank or financial institution. Then you can carry on and experiment with Bitcoin all you want. In short, the bill would reverse decades of how Silicon Valley has lead the world in innovation -- by switching from a world of rapid innovation and permissionless innovation, to one in which any startup even contemplating doing anything with Bitcoin would have to go plead their case to clueless regulators in Sacramento. It's hard to see how anyone could possibly think this is a good idea for innovation or the California economy. And yet... the assembly's committee on banking and finance has now voted the bill out of committee, sending it on to the appropriations committee and then on to the floor of the legislature. Of course, perhaps it's not so surprising that the committee on "banking and finance" would approve this bill -- considering it gives a free pass to big banks and financial services companies while hindering startups, entrepreneurs and innovators. However, any of the many startups in California that are doing some amazing and interesting things with Bitcoin should speak up now, because California is about to tell them to move out of the state entirely.Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
After a fifteen-year slumber, regulators have apparently decided it might be a good idea to start cracking down on rampant fraud in the telecom market. Not long ago, we noted how AT&T was finally fined for abusing the IP Relay network for the hearing impaired, intentionally turning a blind eye to scammers on the network just to haul in the $1.50 per minute subsidies tied to the network. AT&T strung regulators along for years, implementing "solutions" that it knew wouldn't work but technically met flimsy FCC requirements. As a result, simply stopping AT&T from profiting off of defrauding the deaf (it's estimated that 95% of AT&T's IP Relay traffic at one point was credit card or other scammers) only took regulators the better part of two decades. Last year, regulators finally cracked down on AT&T for helping scammers of a different sort: crammers. Crammers had been gouging AT&T customers for most of the last decade, charging them $10 a month for garbage "premium" text messaging, horoscopes and other un-asked-for detritus. There again, AT&T intentionally turned a blind eye to the criminal behavior, in large part because the company was netting around 35% of the proceeds from the scams. Worse perhaps, regulators found AT&T was actively making its bills harder to understand so the fraud would be more difficult to detect. This month, the FCC has announced that it has struck a settlement with AT&T and former subsidiary SNET, over charges the companies were collecting undeserved subsidies under the agency's "Lifeline" program, a low-income community subsidy effort created by the Reagan administration in 1985 and expanded by Bush in 2005. According to the FCC's findings, AT&T apparently "forgot" to audit its Lifeline subscriber rolls and purge them of non-existent or no-longer-eligible customers, allowing it to continue taking taxpayer money from a fund intended to aid the poor:"AT&T and SNET’s failure to remove ineligible Lifeline customers from their rolls was discovered in 2013 during an FCC audit of two AT&T Lifeline affiliates. The audit found that a number of Lifeline subscribers who no longer qualified for the program had not been de-enrolled following the annual recertification process for 2012 and 2013, a process in which consumers are required to certify their continued eligibility for Lifeline. These subscribers were given one extra month of Lifeline support, and AT&T improperly claimed reimbursement from the government for this extra month. Additionally, the Enforcement Bureau found other de-enrollment and recordkeeping violations."The FCC announcement goes well out of its way to avoid calling this fraud, but unless you believe AT&T honestly forgot to purge its rolls (pretty difficult to do in full context of AT&T's historical behavior), it's hard to call it anything but. The FCC doesn't specify how great the discrepancy was, but given the speed at which AT&T has been backing away from unwanted DSL and phone markets, the revised differences likely aren't modest. This latest fine comes as AT&T is busy trying to convince the government that there's an endless parade of amazing benefits to be had by letting AT&T acquire DirecTV, effectively eliminating a competitor from the pay TV space. Historically, telecom regulators love slam dunk cases against small scammers, but were willfully oblivious or too timid to acknowledge the larger players' culpability. With regulators no longer napping in regards to obvious fraud by bigger telecom players like AT&T, companies have unsurprisingly started grumbling that Travis LeBlanc, Chief of the FCC’s Enforcement Bureau, is being too hard on industry and therefore not actually curbing bad behavior:"Two telecom-industry advocates complained that LeBlanc has been successful at grabbing headlines, but less effective at actually curbing bad behavior. By not being lenient on companies that self-report violations, he is discouraging future companies from coming forward, they said. "The FCC's new approach will discourage cooperation and self-disclosure, and it's going to force regulatees to beef up on litigation instead of compliance with the rules," one industry lobbyist said. "Ultimately, that's a poor use of resources for taxpayers, and it will lead to a worse result for consumers."Yes, doing the bare minimum to prevent AT&T from ripping off taxpayers and consumers is just an atrocious affront to taxpayers and consumers. While overreach is certainly possible, most of the stuff LeBlanc is cracking down on is either outright fraud, or the kind of enforcement that's hard to seriously cry foul about (like fining companies for failing to report 911 outages or airing porn during prime time). By and large, LeBlanc appears to be following the lead of FCC boss Tom Wheeler, breaking FCC tradition and actually standing up to large telecom companies. If there's a place LeBlanc (former aide to California AG Kamala Harris) may overreach, it's as the FCC begins using newfound Title II authority to re-examine broadband privacy rules. For the moment, however, it's just interesting to see the FCC no longer turning a blind eye to scams and fraud when the country's biggest telecom campaign contributors are involved, even if the fines being levied are likely a small fraction of the total money AT&T has made off of a decade of very shady behavior.Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
A few years ago, we wrote about Tim Ferriss and his successful use of BitTorrent as a tool to promote his book, The 4-Hour Chef. We're trying something new today and offering the audio version of that book for free through our Techdirt Deals store. You do have to do a bit of work (there are no free lunches really) to get The 4-Hour Chef Audiobook. Head to the deal page, sign in if you already have a Deals account, or sign up for one, then follow Techdirt on Facebook, Twitter or Google+, and then share the deal on Facebook or Twitter. After that, the redemption instructions will appear in your account. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
The DEA likes to borrow stuff. It's just not very good about returning borrowed items in the same shape it got them. Like a woman's Facebook account. Or a businessman's semi truck. And his employee's life. Craig Patty runs a tiny trucking company in Texas. He has only two trucks in his "fleet." One of them was being taken to Houston for repairs by his employee, Lawrence Chapa. Or so he thought. In reality, Chapa was working with the DEA, which had paid him to load up Patty's truck with marijuana and haul it back to Houston so the DEA could bust the prospective buyers. That's when everything went completely, horribly wrong. [A]s the truck entered northwest Houston under the watch of approximately two dozen law enforcement officers, several heavily armed Los Zetas cartel-connected soldiers in sport utility vehicles converged on Patty’s truck. In the ensuing firefight, Patty’s truck was wrecked and riddled with bullet holes, and a plainclothes Houston police officer shot and wounded a plainclothes Harris County Sheriff’s Office deputy who was mistaken for a gangster. The truck’s driver was killed and four attackers were arrested and charged with capital murder. Until Patty received a call notifying him that his employee had been killed, he was completely unaware of the DEA's operations involving both his truck and his driver. Unbelievably, things got even worse for Patty after this discovery. Patty's truck was impounded by the DEA. After it was released to him, it was out of service for several months as it underwent more than $100,000-worth of repairs. The DEA offered him no financial assistance for the truck it helped fill with bullet holes nor did it offer to make up for the revenue Patty lost while his truck was out of commission. His insurance company likewise turned down his claim, citing his truck's use in a law enforcement operation. Nor did the DEA offer to do something to repair his newly-acquired reputation as a drug runner and/or DEA informant -- something that makes Patty's life a little bit more dangerous. Nor will it have to. A federal judge has dismissed Patty's lawsuit against the DEA seeking up to $6.4 million in damages. (h/t to attorney Mark Bennett, who previously advised Patty but did not represent him in this lawsuit.) A Houston-based federal judge ruled that the U.S. Drug Enforcement Administration does not owe the owner of a small Texas trucking company anything, not even the cost of repairing the bullet holes to a tractor-trailer truck that the agency used without his permission for a wild 2011 drug cartel sting that resulted in the execution-style murder of the truck’s driver, who was secretly working as a government informant. The government argued that it is neither culpable for the damage nor under any obligation to inform the owner of any property that it wishes to use in its operations, because "clandestine." No statute, regulation, or policy “specifically prescribe[d]” or prohibited the course of action Patty alleges the DEA agents followed. The DEA derives its authority from the Controlled Substances Act, 21 U.S.C. § 801, its implementing regulations, and various executive orders… In this case, Task Force Officer Villasana submitted a similar declaration. He states that the DEA’s decision “to proceed with such an operation is entirely discretionary, and not mandated by any statute, rule, or policy.” Whether and how to conduct such an undercover investigation and operation is “necessarily discretionary in nature.” Villasana did not try to give advance notice to Patty that the Task Force would be using his truck because of operation’s covert nature, the risks of injury and potential for damage if something went wrong, and the uncertainty about whether other individuals (including Patty) could be trusted. Patty responded that Villasana's own testimony ran contrary to this declaration's assertions. Patty argues that DEA policy prohibited Villasana’s actions… He points to Villasana’s deposition testimony that “[i]f we’re going to use somebody else’s vehicle, we have to have permission,” and that “if [Villasana] knew who the owner was and the informant would have said to [him], Hey, listen, so-and-so, [the owner] owns this truck and I’m going to do this, [he] would say, Well, we need to get ahold of [the owner].” The judge points out that Villasana also testified that he was "not aware" of any policy instructing him to notify the vehicle's owner of its potential use in a drug sting operation, nor was he under any obligation to even determine the identity of the owner through DMV records. No permission was needed, at least not as stipulated by DEA policy. What Villasana spoke of in his testimony was something left solely to his discretion. So, it would appear the government -- especially law enforcement agencies -- can take stuff but are under no legal obligation to return it in working order. Nor are they expected to compensate the owner for any damage sustained. This argument, perhaps the most solid of the multiple presented, dead ends thusly. In any event, Patty fails to explain how these constitutional provisions specifically prescribed a different course of conduct or specifically proscribed what the officers did. The record shows that the DEA task force members did not know Patty’s name, were under the impression that his driver was the vehicle’s rightful lessee, and third parties caused the vehicle damage. To borrow a phrase from qualified immunity law, Patty has not shown that the “clearly established law” in place when the undercover operation was planned and implemented made the officers’ conduct unconstitutional. In the end, it's the crime-fighting ends that justify the means -- even if the means include destroying half of a businessman's fleet of vehicles and turning him into a potential drug cartel target. Orchestrating a covert controlled drug delivery using a vehicle and driver unconnected to any law enforcement organization to obtain evidence against a suspected drug cartel smuggling operation to prosecute those responsible fits within and furthers these policy goals. Deciding to carry out the operation without giving the vehicle owner advance notice and obtaining his consent is consistent with maintaining the covert nature of the operation and therefore with the policy goals. Patty argues that Villasana’s testimony shows that he did not make a conscious decision whether to get Patty’s permission to use the truck, and therefore did not consider public-policy interests. But “the proper inquiry under prong two is not whether [the government actor] in fact engaged in a policy analysis when reaching his decision but instead whether his decision was ‘susceptible to policy analysis.’” Spotts v. United States, 613 F.3d 559, 572 (5th Cir. 2010) (quoting Gaubert, 499 U.S. at 325). Courts have consistently held that covert law-enforcement operations like the one at issue here are susceptible to policy analysis and covered by the discretionary function exception. Furthermore -- quoting previous Eighth and Ninth Circuit Court decisions: "...discretionary, policy-based decisions concerning undercover operations are protected from civil liability by the discretionary function exception, even when those decisions result in harm to innocent third parties." TL; DR, courtesy of Andy Vickers, Patty's attorney: A federally deputized corporal from the Houston Police Department decides to pay your small company’s driver to drive your truck to the Mexican border, load it up with illegal drugs, and try to catch some bad guys. He knows that the driver is lying to “the owner” – although he doesn’t know your name or identity and doesn’t bother to find out. The bad guys outwit the cops. Your company’s driver is killed. Your truck is riddled with bullet holes. Query:   is our federal government liable to pay for the damages to you and your property? Answer:   Nope. Law enforcement immunity, combined with deference towards the judgment of those in the business of busting bad guys means it's almost impossible to force the government to reimburse private citizens for property taken without permission and damaged during the course of its "covert" use. Maybe the DEA could just bypass the legal process and cut Patty a check for the repairs? You know, just to be "neighborly" and show that we're all Americans here and no one -- not even the Drug Enforcement Agency -- is "above' making amends when things go horribly wrong. Not a chance. To do so without an accompanying legal piece of paper explaining how this payment is not an admission of wrongdoing would be to admit fault, however implicitly. And the government doesn't want to be facing any more lawsuits than it already does. In this case, it saw a chance for a swift, cheap dismissal (thanks to some poorly-aimed arguments) and took it. And, barring a successful appeal, the decision continues the trend of courts finding law enforcement officers and federal agents culpable for their actions in only the most egregious cases. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
We talk a lot about how fair use is under attack these days, and I've discussed in the past my concerns about freedom of expression when we always have a company (or a few companies) standing in the middle of our decisions on whether or not we can speak. NiemanLabs has a great example of where this becomes problematic in a story about how SoundCloud will not even consider fair use in making decisions about whether or not to take down content, and how that's harming journalism: Here’s a wakeup call to audio creators everywhere: SoundCloud does not recognize your fair use rights under U.S. copyright law. If your content contains any copyrighted material to which you haven’t secured the rights — even if you have a valid fair use claim — SoundCloud may take it down at any time. That’s exactly what happened to a former student of mine, and his experience should serve as a warning to the growing number of news organizations (including several that I work with) that use SoundCloud to host podcasts and other audio content. Journalism as we know it could not exist without fair use, so it’s possible SoundCloud may not be a viable tool for the field. Imagine trying to do a story about the “Blurred Lines” lawsuit without playing copyrighted clips from the songs involved. The article goes on to discuss an interesting journalism project that used a very brief clip of copyrighted music in a way that almost certainly was fair use. SoundCloud took it down. When pressed on this, the company eventually admitted that it refuses to take fair use into account, in part because fair use is only in the US: We understand that US copyright law includes a doctrine of fair use. However, these rules are limited, difficult to apply outside of a court of law, and in any event do not necessarily apply outside of the United States. As SoundCloud is a global platform, we expect all of our creators to respect copyright law, and the rights of copyright owners, on a global basis. As the writer of the article, Adam Ragusea, points out, this should be a major concern for any journalists using Soundcloud. And that includes us at Techdirt -- as we use SoundCloud to host our podcast. But the fact that the company might not even allow us to make use of our fair use rights -- the same rights that the Supreme Court has said are essential for protecting the First Amendment -- is a major concern, and one that has me thinking we should be looking for other platforms. But, even then, we would most likely face the exact same situation. Any other platform will be under pressure from any sort of DMCA notice system as well. And while they could stand up for their users, many don't want to take on the liability risk. And thus, we run a serious risk of losing a key component of free expression. And, honestly, the problem is only partially the companies like SoundCloud. The entire legal system is designed to make this sort of response the only real choice they have. With fair use being only truly available in a few countries, it's difficult to operate a global platform. This is why if we're going to put copyright into international trade agreements fair use needs to be included, otherwise we risk losing it back here in the US as well. But when you combine that situation with copyright law in which statutory damages are insane, and where the DMCA requires you to shoot first and ask questions later, it is way too easy for companies like SoundCloud to just throw up their hands and say this isn't worth dealing with. Even companies that do try to take fair use into account -- like YouTube -- all too frequently fail to do a good job of considering fair use, leading to perfectly legitimate content disappearing, with no real recourse for the creators. This is why, beyond fair use, it seems like we need much stronger safe harbors for intermediaries like SoundCloud. It works with Section 230 of the CDA, in which the rule is pretty ironclad: the service provider should never be seen as legally liable for the content its users create. For fair use to thrive, copyright law requires a similarly ironclad safe harbor. This doesn't -- as some will inevitably claim -- mean that there is no recourse over infringement. There absolutely is. The copyright holder still has every right to target the actual end user, and that person can then stand up for their own fair use rights, which is only proper. But under the current system, end users don't even have the chance to stand up for their own fair use/free speech rights, because third-party platforms like SoundCloud get to make the final decision for them -- and with all of the liability incentives stacked against them, free speech doesn't have a chance.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Did you know that U.S. ISPs in uncompetitive markets are really, really shitty at their jobs? While I assumed that was pretty common public knowledge by this point, there's an interesting new groundswell of attention being paid to the fact that most ISPs are absolutely abysmal at communicating 1: what real-world speeds a user can get; and 2: whether users can actually get service at all. Case in point was the recent, Kafka-esque experience of a new Washington homeowner, who spent months being given the runaround by Comcast and CenturyLink regarding service the companies repeatedly (but falsely) promised was available. This week, another story is making the rounds that highlights how ISPs will often claim to offer one speed, then actually offer users something dramatically more pathetic (if you can get connected at all). This user in Michigan, for example was told by AT&T's website and employees repeatedly that he should be able to get 20 Mbps at his address -- only to discover that the top speed he could get was a not-so-brisk 300 kbps. Such circa 1999 speeds are of course well below the FCC's new 25 Mbps broadband definition, changed to highlight the notable lack of U.S. competition at higher speeds. Given that AT&T likely doesn't see any competition in the user's market, that 300 kbps isn't just slow, it's unreliable and suffers from the more-than-occasional hiccup. Similarly, no competition means AT&T doesn't have great motivation to upgrade its outdated internal databases, or improve customer service. The lack of competition and regulatory capture in so many of these states makes communicating with AT&T (or getting regulators to care about broken promises) a Sisyphean endeavor:"I’ve complained to just about everybody, the FCC, the FTC, the Michigan Public Service Commission,” Mortimer said. "I got a call back from the office of the president of AT&T responding to my FCC complaint. All I got was, ‘sorry, Mr. Mortimer, the speeds are the fastest available at this time.’" Since Ars first spoke with Mortimer in January, he suffered several more frustrations with AT&T. In one incident, his Internet service was shut off after an auto-payment error, he said. In another mishap, AT&T raised his bill from $33 to $89.40 after adding a phone line to his Internet service, even though he never asked for phone service."While we generally like to cling to the narrative that broadband connectivity in the States is bad but getting better (thanks to gigabit deployments and Google Fiber), the reality is that in many areas, it's getting worse. The story forgets to mention that AT&T and Verizon are hanging up on unwanted DSL users like these they don't want to upgrade so they can focus on more profitable (read: capped) wireless services. AT&T's so disinterested in the DSL market right now, it's actually turning away eligible customers eager to give them money, and hoping that many of the DSL customers it has get frustrated and leave. Verizon, meanwhile, is taking an even classier route: waiting until natural disasters strike, then refusing to repair DSL and phone customer lines it no longer wants. The good news is that once you're actually connected at the speed your ISP advertises, more often than not you'll be able to reach those speeds consistently. An annual FCC study informed by custom firmware-embedded routers shows that most ISPs (with the exception of most DSL providers) deliver the speeds they advertise. The FCC has been naming and shaming ISPs that don't with fairly good results. Still, these DSL lines nobody wants to upgrade are going to be a notable problem going forward. And with billions of subsidies already thrown at companies like AT&T and Verizon over the last generation to avoid exactly these problems, people are justifiably skeptical that throwing more federal taxpayer dollars at these markets is actually going to help things. That's of course where municipal broadband and the FCC's push to eliminate protectionist state laws comes in. Poorly-served towns and cities need the right to craft their own, flexible and customized broadband solutions in cases of market failure -- whether that's a publicly-owned fiber ring or a public/private partnership with somebody like Google. Instead, we've watched as the same telcos that don't even want to serve many of these DSL customers -- pass protectionist law preventing these communities from doing anything about it. We're only just starting to see this logjam starting to break, but it's going to take a lot more work to get many of these broadband black holes out of the grip of mega-ISP apathy.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
If you follow technology news long enough and you'll be imbued with a sense of wonder at how quickly most things technology-related progress. Social media rollouts blaze ahead and become dominant quickly. The specs inside our machines continue to balloon. Brand new tech comes out and is adopted by the younger generations with an ease that seems downright impossible. Companies, because they have to, embrace the speed of new technology as well. Everything is faster, more content-rich. It seems the early adopters these days are big corporations eager to gain an edge through the technology the public already is or soon will be using. Which brings me to this question: have ya'll heard of Twitter? Yes, yes, I figured that you have, but I'd like to know whether any of you Tweeps out there happen to know anybody at the National Football League? Because they seem to think that Twitter is a thing that can be controlled when it comes to the NFL draft. It's been a couple of years since I first laughed at the NFL for forcing ESPN and the NFL Network, two of its broadcasting partners, to agree not to tweet draft picks before they were announced on television. Two years later, a lifetime in technological progress terms, and the NFL is stilll doing this, apparently. ESPN and NFL Network both have rights to televise the NFL draft, and, as they have in the past, this year they will show the good and just Roger Goodell that they value the product he’s bestowed upon them by not allowing their reporters to tweet picks before the commissioner announces them at the podium. That NFL Network agrees to this makes sense. (It has no choice, since it’s a glorified PR channel for the league.) What’s ESPN’s excuse? Well, some of us argue that ESPN has nothing to do with news and is instead a self-marketing institution built on the leagues for which it broadcasts. To that end, the "journalists" are actually marketing agents, doing the bidding of the ultimate customer, the leagues, including the NFL. Taken at face value, the agreement for ESPN reporters to refuse to tweet out much-sought information they've obtained is an abdication of any journalistic ethics they might pretend to have. But the larger question is: who does the NFL think they're fooling? After all, this scheme would work wonders to control information about draft picks...if Twitter users only followed NFL Network and ESPN employees. That isn't how this works as a sports fan, of course, meaning that anyone who wants to get quicker information on the draft will certainly have it. That renders this whole exercise pretty damned meaningless for the NFL. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
The Great Firewall of China is well known; a report in the Dutch newspaper de Volkskrant discusses a translation by Rogier Creemers of China's new Social Credit System plan -- a national store of citizens' ratings that promises to become the Great Database of China: The intentions of the new system are not only economical, fighting fraudulent practices, but also moral. 'This is a deliberate effort by the Chinese government to promote among its citizens "socialist core values" such as patriotism, respecting the elderly, working hard and avoiding extravagant consumption', says Creemers. A bad 'credit code' can result in being not eligible for certain jobs, housing or credit to start a company. 'On the labour market you might need a certain score to get a specific job.' Here are some details about how this would apply to online activities: Forcefully move forward the construction of online sincerity, foster ideas of running the Internet according to the law and using the Internet in a sincere manner, progressively implement the online real-name system, perfect legal guarantees for the construction of online credit, forcefully move forward the construction of online credit supervision and management mechanisms. The "online real-name system" is something we've written about before. A small consolation here is that China has been trying to bring this in for over a decade; its continuing failure to do so offers hope that the Great Database of China might be even harder to construct. Establish online credit evaluation systems, evaluate the credit of the operational behaviour of Internet enterprises and the online behaviour of netizens, and record their credit rank. Establish network credit files covering Internet enterprises and individual netizens, vigorously move forward with the establishment of exchange and sharing mechanisms for online credit information and corresponding credit information in other areas, forcefully promote the broad application of online credit information in various areas of society. The following section of the planned Social Credit System is particularly chilling: Establish online credit black list systems, list enterprises and individuals engaging in online swindles, rumourmongering, infringement of other persons’ lawful rights and interests and other grave acts of breaking trust online onto black lists, adopt measures against subjects listed on black lists including limitation of online conduct and barring sectoral access, and report them to corresponding departments for publication and exposure. As well as the sheer ambition of this database, which would cover the entire population of China, another novel aspect is where some of the ratings will come from, as de Volkskrant explains: Innovative will be the active contribution of citizens rating other citizens. 'Imagine a Chinese person being able to rate his doctor or his professor, as is already happening in the US. And he or she might also give a bad score to polluting companies, as the system will be applied to companies and institutions as well', says Creemers. Of course, online rating systems are already commonplace in other fields. There, they have led to fierce arguments and costly legal battles. The proposed system in China probably won't suffer from those problems, since the Social Credit System will presumably be secret. However, it will be far more insidious since the resulting "credit score" will have a major impact on people's lives and the opportunities open to them, notably for anyone that finds themselves -- unbeknownst -- on one of those blacklists. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Every one of us has already had this fight at some point: Apple or Android? The two dominant players in the mobile space carry with them very loyal fanbases who, for some reason, like to spar off with one another over whose tech-daddy could beat up the other. The companies compete with the same level of petty at times, which doesn't help. Apple screws around with text messages from Android users, Android pokes back at Apple over the controlling hand it has in its app store, and the two companies spend a great deal of time in legal battles because of course they do. C'mon, guys, can't we all just spend our time pointing and laughing at Windows Mobile? Apparently not, considering the report that one recent Android/Apple argument concluded with both combatants stabbing the hell out of each other with broken glasses. Tulsa’s Channel 8 reports that police were called to a local apartment complex at around 1:00am on the morning of April 17 to investigate at least one report of a bloody person wandering around the parking lot. According to the Tulsa World, police found roommates Jiro Mendez and Elias Ecevo each in some distress—Mendez was the man in the parking lot and was covered in scratches and wounds, while Ecevo, similarly wounded, apparently had stayed inside their apartment. The World indicates that Mendez told police that the wounds resulted from an argument between the roommates, which started over which roommate had the better smartphone—Apple or Android—and ended with both roommates allegedly stabbing each other with broken glass bottles, and Ecevo allegedly stealing Mendez’s car (police found the car near the apartment, with blood in the interior). Perhaps unsurprisingly, alcohol appears to have been a factor in the fight. Yeah, no kidding. I have my brand loyalty, too, but I'm pretty sure I wouldn't feel so offended at a roommate's opinion of my phone that I felt I had to avenge the inanimate object by getting all stabby. Both men ended up getting arrested and were sent to the hospital to have their wounds treated. In a perfect world, they would be laid up next to each other, Instagram-selfying from their beds with comments about how awesome the pictures from their respective phones looked. Either way, I'm guessing there might be changes to their lease coming shortly. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
With the Apple Watch available now, maybe more people will be interested in wearing fancy watches again -- instead of just relying on their phones. Fancy watches once focused on telling time with extreme accuracy, but then digital watches made it really cheap to keep accurate time that was more than "good enough" for most folks. It used to be annoying to need to adjust clocks for daylight savings and power outages, but as more and more clocks are connected to the internet (except for ovens and some cheap alarm clocks), we barely need to think about how to change the time on a clock (who owns a VCR anymore?). Check out these links on accurate time keeping. There's a new atomic clock that's three times as accurate as the last most accurate clock -- losing less than 1 second in 15 billion years. The universe hasn't even been around for 15 billion years, and this clock probably won't last anywhere near that long either. Still, it's nice to have a clock that can measure time dilation effects and other weird phenomena. [url] John Harrison designed a clock in the 1700s that was accurate to a second over 100 days -- using a pendulum mechanism. Harrison wasn't able to build a working version of this clock, (and people thought he was crazy when he claimed he could) but modern clockmakers have constructed one from his designs -- and it works. [url] The 26th leap second is scheduled to be added to some clocks on June 30th -- at 11:59:60pm. Try not to rely on any computers that might not be able to handle this leap second, if you can. Or join the movement trying to abolish the leap second entirely, but that probably won't happen until 2018. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Imagine you're on your way to deliver a case of beer to a party. Before you get there, your boss sends you a text: They want 2 cases now. You read the text while driving (don't do that), so you deliver an extra case when you arrive. Having successfully completed that task, you leave for your next delivery. Congratulations! You might get sued by the owner of April's stupid patent of the month. This month's winner, US Patent No. 9,013,334 (the '334 patent), has the prosaic title: Notification systems and methods that permit change of quantity for delivery and/or pickup of goods and/or services. It issued just last week, on April 21, 2015. As its title suggests, the patent claims a "method" of updating delivery information. It belongs to Eclipse IP LLC, one of the most litigious patent trolls in the country. Eclipse belongs to an elite group of trolls (such as Arrivalstar and Geotag) that have filed over 100 lawsuits. Eclipse owns a patent family of more than 20 patents, all of which claim priority back to a single 2003 provisional application. These patents claim various closely related "notification systems." Eclipse interprets its patents very broadly and has asserted them against a wide range of mundane business practices. For example, in January it sent a letter claiming that Tiger Fitness infringes one of these patents by sending emails to customers updating them about the status of orders. This letter explains that "Eclipse IP aggressively litigates patent infringement lawsuits" and that "litigation is expensive and time consuming." The letter demands a $45,000 payment. We think that all of Eclipse's patents deserve a stupid patent of the month award. But the '334 patent is especially deserving. This is because the Patent Office issued this patent after a federal court invalidated similar claims from other patents in the same family. On September 4, 2014, Judge Wu of the Central District of California issued an order invalidating claims from three of Eclipse's patents. The court explained that these patents claim abstract ideas like checking to see if a task has been completed. Judge Wu applied the Supreme Court's recent decision in Alice v CLS Bank and held the claims invalid under Section 101 of the Patent Act. All of Eclipse's patents were both "invented" and prosecuted by a patent attorney named Scott Horstemeyer (who just so happens to have prosecuted Arrivalstar's patents too). Patent applicants and their attorneys have an ethical obligation to disclose any information material to patentability. Despite this, from what we can tell from the Patent Office's public access system PAIR, Horstemeyer did not disclose Judge Wu's decision to the examiner during the prosecution of the '334 patent, even though the decision invalidated claims in the patent family. While Horstemeyer has not made any genuine contribution to notification "technology," he has shown advanced skill at gaming the patent system. Judge Wu's reasoning applies directly to the '334 patent. While one claim in the '334 patent expressly requires "computer program code" executed to carry out the method, this does not make a difference. Indeed, Judge Wu explained that, under Alice, it is not enough that the claimed methods must be performed by a "specially programmed" computer. It appears Horstemeyer hoped the Office would not notice this decision and would simply rubber-stamp his application. Sadly, that is exactly what happened. The Patent Office issued the Patent No. 9,013,334 without raising Alice or Section 101 at all. We believe this is part of a disturbing trend of Patent Office decisions that ignore Alice where courts have struck down almost identical claims. Trolls like Eclipse will continue to thrive as long as the Patent Office gives them stupid patents and courts allow them to use the cost of litigation to extort settlements. Reform such as the Innovation Act will make abusive patent litigation less attractive. But we need broader reform to stop the Patent Office from being a rubber stamp for vague and overbroad software patents. Late breaking addition: As if to drive home just how much of a rubber stamp it is, the Patent Office issued yet another patent to Eclipse yesterday. Patent No. 9,019,130 is almost identical to the '334 patent, except it deals with updating "time" information instead of "quantity" information. Republished from the EFF's Stupid Patent of the Month series Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
In the wake of the recent flop that was Valve's attempt to create a platform for paid game mods, you'd have thought that the company would be on its digital toes when it comes to being gamer-friendly. I have no interest in piling on Valve or the Steam platform, given what a great example of how game developers can make money in the digital age, but I was a bit surprised to learn that the company just announced it won't be in charge of banning gamers from games any longer. Instead, it's turning the keys to banning gamers over to the game developers themselves. Because nobody likes playing with cheaters. Playing games should be fun. In order to ensure the best possible online multiplayer experience, Valve allows developers to implement their own systems that detect and permanently ban any disruptive players, such as those using cheats. Game developers inform Valve when a disruptive player has been detected in their game, and Valve applies the game ban to the account. The game developer is solely responsible for the decision to apply a game ban. Valve only enforces the game ban as instructed by the game developer. For more information about a game ban in a specific game, please contact the developer of that game. Now, when anyone, including the Steam announcement above, talks about reasons to ban gamers from games, cheating is always brought up. And, indeed, nobody would be wrong to suggest that gamers cheating in online games reduce the fun-factor for the rest of the gaming community. Would it be better to exclude cheaters from games? Yes, no doubt. Is Valve's announced plans above to turn the responsibility for banning games from its platform make for a good way to go about this? Hell no. Why? Well, because giving that kind of control over to the game developers shifts the balance of power when it comes to being banned from games and the reasons why a player might be banned. The nice thing about Steam is that it has two sets of customers: both the gamers themselves and the game developers on its service. Therefore, when Steam is the one administering the ban-button, it essentially serves as an arbiter. It might be an imperfect arbiter, sure, but having all the power to ban customers from games residing in the hands of developers takes us from imperfect to completely broken. Whatever the developers say goes. And developers haven't always proven that they can be trusted with lesser forms of this power. Imagine Derek Smart in this scenario, no longer having the power to simply blanket-ban gamers from the Steam forums over negative reviews and comments, but now also being able to ban them from his games. Other developers have already attempted to ban players from their own single-player games over forum issues, so imagine what's going to happen now that there is no "trying", only "doing" when it comes to bans. Steam made its mark by being fairly friendly to gamers in a myriad of ways. Giving this much power over bans to game developers is a step in the opposite direction. It would be a strange decision at any time, but now it seems particularly odd. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
As the nuclear talks between America and Iran continue, perhaps one inevitability is going to be cross-cultural diffusion of a kind. After all, should the deal lead to improved relations, one would expect influence to be peddled by both sides. Since there are very real issues our two nations have to discuss, this should be an overall good thing. But there are some cultural changes that just aren't going to happen. Take the suggestion from Iranian cleric Ayatollah Salman Safavi, for instance, that Americans combat Islamic extremism by making sure our movies and video games include only favorable representations of his religion lest they cause the very radicalization at the root of the "constantly" negative current portrayals of Muslims and Islam. "In the Western media be it in films, games or news, Muslims and Islam are constantly associated with terrorism, violence and backwardness, they are constantly portrayed as the "other" to the white European or American and in constant conflict with it," Dr. Safavi tells the Telegraph. "This causes alienation and isolation particularly for young people, who dream of having success in life and being contributing members of society but see their way of life, their beliefs, and what they hold sacred being constantly attacked and degraded. Islamophobia in media be it films or games or news should be considered as promoting and aiding terrorism and also being [a] hate crime." You can see the cultural differences clashing against each other here. Self-censorship isn't how America does things, after all. Which isn't to say that misrepresentation of the larger Muslim public isn't a real thing, or that action shouldn't be taken by those in the know to combat that portrayal. But those actions must operate within the framework of free and open speech. Take the work of Aasif Mandvi, for instance. The correspondent from The Daily Show has put out a new series called Halal in the Family. The show dissects and highlights anti-Muslim portrayals, using comedy as a vehicle for the discussion. That's how bad or unfair speech is combatted in America, with other, better speech. Asking us to self-censor is a non-starter. And through real, honest, and open speech, progress can be made. If the Islamic world is being unfairly portrayed, its denizens should feel welcome, if not obligated, to step into the ring of speech and ideas, and put up a fight. They get the same rights as everyone else, after all. Engaging in that way will push the discussion onto a higher platform. It's not like the media keeps its boogeymen around forever. Just ask the Communists. These things have a shelf-life. The ideal of free speech, on the other hand, does not. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Even with the rising popularity of Google Drive and other online productivity apps, Microsoft Office is still king in the corporate world (probably due to inertia more than any other reason). You can brush up on your skills with 96% off of the Microsoft Office Mastery Bundle. They're offering courses in Excel, Word, PowerPoint, Outlook and SharePoint Access (note that you need to have these programs in order to complete the instruction). You will gain access to hundreds of hours of material for 12 months so you can learn at your own speed. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Like many people, video games have been an integral part of my life for about as long as I can remember. From my days visiting Wildcat! BBS systems where I'd play Trade Wars 2000 -- to obsessing over the Apple IIe, IIc and IIgs -- video games were not only an integral part of my childhood, they actually helped forge an adult career path. Swapping out graphics cards and building new PCs to play Quake 2 led to a job in Manhattan legal IT, which in turn resulted in a life focused on writing about technology. Aside from a few tics, I like to believe I wound up relatively normal, and video games have made my life immeasurably more rewarding. That background usually forces me into the role of video game evangelist when surrounded by folks that, all too frequently, are engaged in hand wringing over the diabolical moral dangers games purportedly present. At a party recently, some friends expressed muted shock because a colleague's kid was, instead of being social, playing a game in which he was "herding human beings and keeping them in a barn to eat." I had to explain (skipping the part about how you'd need a mod to actually eat them) how this behavior wasn't indicative of a Jeffrey Dahmer in training, he was simply engaged in normal problem solving behavior on the new frontier:Despite the fact that Minecraft is simply an amazing evolution of the Lego concept for the modern age, the moral panic surrounding the game never quite seems to abate. The latest case in point is over at the BBC, where the outlet implies it has heard all of the pro-Minecraft arguments before, it's just choosing to ignore them in order to portray the game as an unpoliced virtual-reality hellscape that's rotting the brains of children everywhere. While there are some good points embedded within, there are notably more bad ones, like the argument that kids should instead be reading, because reading engages imagination and builds character:"I concede the point but say that it's two-dimensional, and that children should be exercising more than their mouse fingers. The other side asks why it's any worse than reading for hours at a time. Because, I say, reading allows you to imaginatively inhabit other minds. The opposition implies that this is just the latest moral panic, and that Stone Age elders probably thought the world was going to the dogs when people stopped just staring at the fire and started telling each other stories."The author pretty clearly sees the lips of "the opposition" moving, he just can't apparently be bothered to actually hear what they're saying. Of course it makes sense to encourage kids to read as well as play games but to dismiss Minecraft as unimaginative shows a total misunderstanding of the massive, cooperative world-building that occurs in the game. Instead of actually playing the game and trying to understand it, the entire article is doused in fear over whether Minecraft is negatively influencing kids. The only concessions toward admitting the game's benefits come via gems like this:"For some autistic children who have trouble with complex social interactions, Minecraft is clearly a good fit with its lack of intricate social cues and simple environment. But for many parents, the absence of that complexity, in a world where their children spend so much time, might be a reason to be wary."Whether it's Minecraft, apps or the internet at large, there is such a thing as parenting -- or paying attention to and understanding what your children are up to. Even then, in 1987 my parents certainly had absolutely no understanding of the world I was experiencing via the local Wildcat! BBS, yet those experiences opened an entire world of social interaction with like-minded individuals I never would have experienced otherwise as an awkward, socially anxious tot with painful new braces. That world taught me many things my parents never could have, but parenting in the brick and mortar world still helped me understand where social lines in this new frontier were drawn (with the exception of that time a 35-year-old BBS member called my folks to complain about their son's occasionally-barbed tongue). In stark contrast, The Guardian makes the counter-argument that maybe it makes more sense to try and understand Minecraft instead of fearing it, allowing this informed education to fuel intelligent parenting choices:"...here’s a simpler way for parents who don’t feel they understand Minecraft to build their knowledge: sit down next to your child and watch them. Ask questions. See if they’ll teach you how to play it with them. This doesn’t mean you’ll avoid having to make decisions about the amount of time your child spends in Minecraft’s beguiling “hyper-reality” rather than the unblocky real world, but it does mean you’ll have a better idea – with less worries – about what they’re up to, and how it can fit into their life.Like so many things, actually bothering to understand something before you waste energy fearing it makes all the difference in the world. There are millions of kids for whom Minecraft is opening an entire world of enjoyable problem solving and social interaction, the benefits of which may extend into and across their entire lives. Stagnating this potential with fear because you couldn't be bothered to try and understand what your children are experiencing wastes more than just your time.Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Yesterday, the House Oversight Committee held a hearing over this whole stupid kerfuffle about mobile encryption. If you don't recall, back in the fall, both Apple and Google said they would start encrypting data on mobile devices by default, leading to an immediate freakout by law enforcement types, launching a near exact replica of the cryptowars of the 1990s. While many who lived through the first round had hoped this would die a quick death, every week or so, we see someone else in law enforcement demonizing encryption, without seeming to recognize how ridiculous they sound. There was quite a bit of that in the hearing yesterday, which you can sit and watch in its entirety if you'd like: Thankfully, there were folks like cryptographer Matt Blaze and cybersecurity policy expert Kevin Bankston on hand to make it clear how ridiculous all of this is -- but it didn't stop law enforcement from making their usual claims. The most ridiculous, without a doubt, was Daniel Conley, the District Attorney from Suffolk County, Massachusetts, whose opening remarks were so ridiculous that it's tough to read them without loudly guffawing. It's full of the usual "but bad guys -- terrorists, kidnappers, child porn people -- use this" arguments, along with the usual "law enforcement needs access" stuff. And he blames Apple and Google for using a "hypothetical" situation as reason to encrypt: Apple and Google are using an unreasonable, hypothetical narrative of government intrusion as the rationale for the new encryption software, ignoring altogether the facts as I’ve just explained them. And taking it to a dangerous extreme in these new operating systems, they’ve made legitimate evidence stored on handheld devices inaccessible to anyone, even with a warrant issued by an impartial judge. For over 200 years, American jurisprudence has refined the balancing test that weighs the individual’s rights against those of society, and with one fell swoop Apple and Google has upended it. They have created spaces not merely beyond the reach of law enforcement agencies, but beyond the reach of our courts and our laws, and therefore our society. The idea that anything in mobile encryption "upends" anything is ridiculous. First, we've had encryption tools for both computers and mobile devices for quite some time. Apple and Google making them more explicit hardly upends anything. Second, note the implicit (and totally incorrect) assumption that historically law enforcement has always had access to all your communications. That's not true. People have always been able to talk in person, or they've been able to communicate in code. Or destroy communications after making them. There have always been "spaces" that are "beyond the reach of law enforcement." But to someone so blind as to be unaware of all of this, Conley thinks this is somehow "new": I can think of no other example of a tool or technology that is specifically designed and allowed to exist completely beyond the legitimate reach of law enforcement, our courts, our Congress, and thus, the people. Not safe deposit boxes, not telephones, not automobiles, not homes. Even if the technology existed, would we allow architects to design buildings that would keep police and firefighters out under any and all circumstances? The inherent risk of such a thing is obvious so the answer is no. So too are the inherent risks of what Apple and Google have devised with these operating systems that will provide no means of access to anyone, anywhere, anytime, under any circumstance. As Chris Soghoian pointed out, just because Conley can't think of any such technology, it doesn't mean it doesn't exist. Take the shredder for example. Or fire. During the hearing, Conley continued to show just how far out of his depth he was. Rep. Blake Farenthold (right after quizzing the FBI on why it removed its recommendation on mobile encryption from its website -- using the screenshot and highlighting I made), asked the entire panel: Is there anybody on the panel believes we can build a technically secure backdoor with a golden key -- raise your hand? No one did -- neither DA Conley nor the FBI's Amy Hess: But, just a few minutes later, Conley underscored his near absolute cluelessness by effectively arguing "if we can put a man on the moon, we can make backdoor encryption that doesn't put people at risk." Farenthold catalogs a variety of reasons why backdoor encryption is ridiculously stupid -- and even highlights how every other country is going to demand their own backdoors as well -- and asks if anyone on the panel has any solutions. Conley then raises his hand and volunteers the following bit of insanity: I'm no expert. I'm probably the least technologically savvy guy in this room, maybe. But, there are a lot of great minds in the United States. I'm trying to figure out a way to balance the interests here. It's not an either/or situation. Dr. Blaze said he's a computer scientist. I'm sure he's brilliant. But, geeze, I hate to hear talk like 'that cannot be done.' I mean, think about if Jack Kennedy said 'we can't go to the moon. That cannot be done.' [smirks] He said something else. 'We're gonna get there in the next decade.' So I would say to the computer science community, let's get the best minds in the United States on this. We can balance the interests here. No, really. Watch it here: As Julian Sanchez notes, this response is "all the technical experts are wrong because AMERICA FUCK YEAH." This is why it's kind of ridiculous that we continue to let technologically clueless people lead these debates. There are things that are difficult (getting to the moon) and things that are impossible (arguing we only let "good people" go to the moon.) There are reasons for that. This isn't about technologists not working hard enough on this problem. This is a fundamental reality in that creating backdoors weakens the infrastructure absolutely. That's a fact. Not a condition of poor engineering practices. And, really, this idea of "getting the best minds" in the computer science community to work on this, I say please don't. That's like asking the best minds in increasing food production to stop all their work and spend months trying to research how to make it rain apples from clouds in the sky. It's not just counterproductive and impossible, but it takes away from the very real and important work they are doing on a daily basis, including protecting us from people who actually are trying to do us harm. That a law enforcement official is actively asking for computer scientists and cybersecurity experts to stop focusing on protecting people and, instead, to help undermine the safety of the public, is quite incredible. How does someone like Conley stay in his job while publicly advocating for putting the American people in more danger like that?Permalink | Comments | Email This Story

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