posted 26 days ago on techdirt
Hillary Clinton has stepped forward to officially (such as it were...) blame FBI Director James Comey for robbing her of an election win. “There are lots of reasons why an election like this is not successful,” Clinton told top donors on a farewell conference call Saturday. “But our analysis is that [FBI Director James B.] Comey’s letter raising doubts that were groundless, baseless, proven to be, stopped our momentum,” she said. Clinton is referring to Comey taking it upon himself to step into the breach and declare to Congress there might be something suspicious about emails he hadn't seen (and his agency hadn't yet acquired a warrant to look at) discovered on former Congress member Anthony Weiner's laptop. Comey's announcement arrived with only a couple of weeks left until the election, prompting nearly everyone to criticize his decision to insert himself into a normally hands-off pre-election period. Clinton blaming Comey, though, looks more like a candidate looking for anyone else to blame but herself, her staff, and the DNC, which aided her run greatly by agreeing to sandbag her competition. Comey's belated announcement (and even more belated "never mind") arrived far too late to push undecided voters into Trump's corner. Those who had already decided who they were voting for wouldn't have been swayed either, as it either confirmed their beliefs that Clinton was a crook who would never be punished, or that Clinton was being baselessly persecuted by a politicized FBI. What data has been gathered from talking to voters about their sentiments pre- and post-election shows barely any correlation, much less causation. Clinton says her campaign's "analysis" points to Comey. But what exactly have they "analyzed?" Marcy Wheeler takes a good look at the information currently available and finds nothing that indicates Comey's announcement played a part in the election results. What these two pieces — from Trump’s data analyst and Hillary’s pollster — suggest is a correlation between the Comey letter and Trump’s improved chances. But there’s no proof of causation — certainly not that Comey is the primary explanation. In fact, temporally, the correlation is not perfect. Trump’s analysts say the trend started before the Comey letter. This was a weird election, but it is still highly unlikely that a letter released on October 28 can entirely explain a trend that started before October 28. Even shifting the focus entirely to swing states does nothing to solidify either party's claims that Comey's announcement swayed the election. Late-deciding voters went for Trump in several key states, but voters also broke in the other direction -- at odds with the narrative the Clinton campaign has decided to push. In Virginia, where beltway security clearance holders might have felt more animosity towards a candidate who skated on a federal investigation involved the mishandling of classified documents, late-deciders opted more often for Clinton than Trump. None of this really adds up to anything, which would be fine if Clinton's camp wasn't so ready to insist that it does. While it did seem Clinton would have grabbed an insurmountable lead in the wake of Trump's post-"grab 'em by the pussy" debate flame-out, the real issues affecting undecided voters the most weren't Trump's sexism or Clinton's private email server, but far more common worries: the economy, crime, and a distrust for anything considered to be part of the government establishment. Clinton does list something in her "blame Comey" speech that should have been obvious all along -- something that pretty much undercuts her narrative that the FBI director cost her the election. “Just as we were back up on the upward trajectory, the second letter from Comey essentially doing what we knew it would — saying there was no there there — was a real motivator for Trump’s voters,” Clinton said. No matter what Comey said -- nor what was found during the Email Investigation 1.5 -- would have changed the minds of entrenched voters. Those supporting Clinton saw more exoneration. Those supporting Trump saw more evidence of a rigged system. It just didn't matter. As for the rest of the undecided nation, the original email investigation and its last-minute sequel were too far off in the weeds to be considered worth examining more closely. Writing for Techdirt and conversing with like-minded individuals tends to give the impression that everyone follows these developments closely, but a majority of Americans simply don't care about the wonkish details. If something can be explained simply (Hillary is/is not a crook), then the nuances aren't important. Clinton thought those nuances should have mattered. Trump knew they wouldn't. Blaming Comey is handy but does nothing to help future candidates better prepare for this fractured American landscape we still call "united." It is, in fact, its own form of denial. The Democrat focused on the outside events she said affected her campaign in the last three weeks of the election. She said nothing about other, larger forces at work — Trump's message of change in a restive time, his pledge to represent the aggrieved working class, the difficulty of any political party winning a third consecutive presidential term, her own limited attention to economic anxiety, or the sexism and discomfort that surrounded her attempt to become the first female president. [...] Neither [Clinton communications director Jennifer Palmieri] nor Clinton herself addressed how Clinton's decision seven years ago to use a private system for her government communication had opened the door to the FBI inquiry in the midst of her second run for the White House. While government agencies sounded the alarm about hackers attacking voter data and infrastructure, Trump pushed a rigged election narrative. And for no apparent reason, the FBI felt it just couldn't wait to inform Congress about something it knew next to nothing about, less than two weeks before election day. There were plenty of reasons for voters to feel less than confident about candidates and the process of electing them, but campaigns were won and lost without the FBI's assistance -- no matter how gratifying it might be to pass the buck in the wake of a surprising loss. Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Despite turning LabMD into a stone -- based on some suspect data breach allegations by a data protection company engaged in shady sales tactics -- the FTC is still seeking to extract as much blood as possible. Thanks to the FTC's ongoing efforts against LabMD, the company has been closed, has less than $5000 to its name, and is fighting back against the commission with pro bono help. The FTC wants to punish LabMD for a patient file that ended up file sharing services thanks to an employee's use of Limewire at work. (The file was in folder that end up being "shared" by default Limewire settings [My Documents].) Tiversa, a company that prowled file sharing services for sensitive documents in hopes of leveraging these into data security contracts, took this info to the FTC when LabMD refused to purchase its offerings. Since that point, the FTC has bankrupted LabMD by forcing it to defend itself against a supposed breach that never resulted in the misuse of patient data. Tiversa has seen its own fortunes diminish, culminating in an FBI raid of its offices in March of this year. The FTC overturned an Administrative Law Judge's (ALJ) decision in July, giving itself permission to restore its charges against LabMD for the breach -- ones the ALJ had dismissed. The FTC claims LabMD "left" the mistakenly-shared file out somewhere in the internet, as if the company actually had any way to "retrieve" it once it had been uploaded. Seemingly unconcerned that LabMD is now a defunct company, the FTC still wants it to implement a series of expensive steps to ensure the data it won't be collecting in the future is better protected. Having found that LabMD violated the FTC Act, the Commission’s Final Order will ensure that LabMD reasonably protects the security and confidentiality of the personal consumer information in its possession by requiring LabMD to establish a comprehensive information security program. It also requires LabMD to obtain periodic independent, third-party assessments regarding the implementation of the information security program, and to notify those consumers whose personal information was exposed on the P2P network about the unauthorized disclosure of their personal information and about how they can protect themselves from identity theft or related harms. LabMD has asked for a stay of this injunction pending its appeal. That stay has been granted by the Eleventh Circuit Appeals Court. (via the Office of Inadequate Security) The appeals court points out [PDF] several things about the stay the FTC is contesting, not the least of which is the company's inability to actually follow the injunction if granted, much less have any reason to do so, given its current situation. The costs of complying with the FTC’s Order would cause LabMD irreparable harm in light of its current financial situation. [...] The costs associated with these measures are hotly debated by the parties. LabMD says the costs will exceed $250,000. The FTC does not offer its own estimate, but disputes the $250,000 figure. Regardless, it is clear that the postage for the notice requirements alone would be more than $4,000. Certainly the costs of all the other measures would add to that amount. LabMD is no longer an operational business. It has no personnel and no revenue. It now has less than $5,000 cash on hand. It reported a loss of $310,243 last fiscal year, and has a pending $1 million judgment against it on account of its early termination of its lease. LabMD cannot even afford legal representation, and is relying on pro bono services for this appeal. Given the company's financial ruin, the injunction would serve no possible deterrent purpose. There's nothing left to destroy and, unfortunately, nothing to be gained by LabMD, even if it ultimately prevails. Ordinary compliance costs are typically insufficient to render harm irreparable. But given LabMD’s bleak outlook, the costs of compliance pending appeal would constitute an irreparable harm. This is especially so because if LabMD is ultimately successful on appeal, the costs would not be recoverable in light of the FTC’s sovereign immunity. Furthermore, the court feels there's absolutely no risk to the further exposure of patients' data, even with the file still supposedly in the wild. The company has its own copy, residing on a computer that is never connected to the internet. If a customer requests data, LabMD hooks it up to printer and mails or faxes them a hard copy. As for the FTC's claim that a file that has been in the wild since 2005 would result in future breaches of patient confidentiality, the court is rather skeptical. For those patients whose personal information was in the 1718 file, there is no evidence of a current risk to them. Specifically, there is no evidence that any consumer ever for nefarious purposes before this appeal terminates. suffered any tangible harm, or that anyone other than Tiversa, LabMD, or the FTC has seen the 1718 file. Although the FTC’s Order denying LabMD’s stay application says there remains a potential risk of harm to consumers whose information was in this file, we think it improbable that a party downloaded this information now years ago, has not used it for several years, but may yet use it for nefarious reasons before this appeal terminates. Finally, the court has a few choice words for the FTC's dictionary attack -- used to shore up its weak claims of future harm from the escaped file. [I]t is not clear that the FTC reasonably interpreted “likely to cause” as that term is used in § 45(n). The FTC held that “likely to cause” does not mean “probable.” Instead, it interpreted “likely to cause” to mean “significant risk,” explaining that “a practice may be unfair if the magnitude of the potential injury is large, even if likelihood of the injury occurring is low.” The FTC looked to different dictionaries and found different definitions of “likely.” It is through this approach that it argues its construction is correct, considering the statute’s context as a whole. Even respecting this process, our reading of the same dictionaries leads us to a different result. The FTC looked to dictionary definitions that say “likely” means “probable” or “reasonably expected.”Reliance on these dictionaries can reasonably allow the FTC to reject the meaning of “likely” advocated by LabMD, that is, a “high probability of occurring.” However, we read both “probable” and “reasonably expected,” to require a higher threshold than that set by the FTC. In other words, we do not read the word “likely” to include something that has a low likelihood. We do not believe an interpretation that does this is reasonable. The sick thing is that even if LabMD ultimately prevails, it won't matter. It cannot recover any of its expenses and the company has been gutted by its fight against the FTC. That the whole situation appears to have stemmed from a data protection company's shady sales pitch is even worse. Tiversa not only was uncooperative during the FTC's investigation of LabMD, but it has also drawn the attention of the House Oversight Committee, which was unimpressed by the Tiversa's tactics both before and after the FTC's investigation of LabMD. Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
This week, after a congressman and former Trump advisor raised the spectre of pulling FCC licenses over media bias and noted that only 32% of people trust the media and only 37% think it was balanced in its handling of the election, That One Guy won most insightful comment of the week by drawing a comparison to another important public opinion figure: The same group that he's getting his 32% number from also puts public approval of congress at a whopping 18%, suggesting that even if the public was on board with censoring unpopular news groups they likely wouldn't want or trust congress to be the ones deciding who gets silenced. Maybe he's just annoyed that more people trust the news than trust him, and are more than twice as likely to say that the media is doing a good job as say that congress is? Meanwhile, when the actual creators of email expressed their displeasure at Shiva Ayyadurai getting money for his bogus claim, one commenter drew an odd comparison to claims that Al Gore created the internet, and Ehud Gavron won second place for insightful by underlining the huge difference: The Al Gore thing is the exact opposite of this topic. He never said he invented the Internet. "Conservative" pundits looking to make fun of him made that up. What he said is he was on the committee that approved DARPA funding that led to research on interconnected networks and eventually the Internet. So HERE we have a guy who DID NOT invent email saying he did. In the Gore case we have a guy who DIDN'T invent something NOT saying he invented it, but the Republican Party talking points, ever a bastion of twisting anything just so we can get back to 1972 says he says he did. E For editor's choice on the insightful side, we start out with an anonymous response to defenders of mass surveillance freaking out about who now holds the keys: I have been saying for a long time now that all parties should fear surveilance. Eventually a party will have the power to shut down opposition with these powers and data on everyone. Now people are starting to understand. I guess they thought "their guy" would be the one in power when it happened. Doesn't say much for that person that they thought "their guy" abusing power would be ok. Next, we've got a response from David to the common claim that Trump is a positive for at least representing "real change", summing up exactly how many of us feel about that sentiment: Well, I agree with needing real change. Problem just is that a real change for the worse is not helping. Over on the funny side, for first place we return to the post about Shiva Ayyadurai, where Roger Strong mused about the earliest applications of his tool: Once he got his email program running, his first emails were legal threats to the writers of RFCs 524, 561, 680 and 724 and 733. In second place, we've got some satire from Mr Big Content on the notion that an ex-member of the band Boston could be blocked by trademark from saying that's what he is: If Facts Cannot Be Owned, Where Would The Incentive Come From To Create More Of Them? We all know teh World is running out of resources. Thats a fact, and facts are resources, too. Therefore, were running out of facts as well! And thats another fact. So you see, their are only so many facts. We need a robust, thriving fact-creation industry!! Our new President Trump will only be able to do so much by himself. Thats why we must have stronger laws to encourage teh ownership of more facts. And thats why rigged kangaroo-court cases like these must be REJECTED BY ALL LAW-ABIDING CITIZENS!!! For editor's choice, we start out with some edits from Jeremy Lyman to the government's cyberwar-with-Russia "strategy": Here, let me cyber- that for you. These cyber-leaks are directly cyber-responsible for cyber-loss of cyber-American cyber-lives and cyber-endangers cyber-field operatives' cyber-safety and that of their cyber-families at cyber-home. We need to cyber-find and cyber-jail these cyber-leakers as cyber-quickly as cyber-possible since that cyber-will cyber-obviously cyber-undo cyber-any cyber-harm cyber-that cyber-has cyber-occurred. And finally, after a spat between ESPN and Nielsen over subscriber numbers continued with ESPN looking to be in pretty rough shape, TechDescartes wondered how it could possibly come as a surprise: You would think that the ESP Network would have seen this one coming. That's all for this week, folks! Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
Five Years Ago One topic naturally dominates this week's look at 2011, and will for several weeks to come: SOPA. The industry's plan was becoming clear: pretend the bill doesn't say what it says and offer up nonsensical interpretations. Pay no attention to the studies showing it will harm investment and innovation, the fact that it will not solve infringement, the loud voice of Rep. Darrel Issa opposing the voice, the huge censorship concerns summarized in Time magazine, or the opposition of the American Library Association. The House of Representatives certainly seemed to have no problem ignoring all these concerns either. No effort was made to resolve the convoluted language in the bill, and we pointed out that it also massively expands the copyright industries' diplomatic corp. Soon, the internet began planning the first of many protests. Ten Years Ago This week in 2006, Australia was facing its own copyright reform, but began to smarten up as Google explained how it would kill the internet and the government actually looked into (and debunked) the industry's absurd claims of losses. Meanwhile, much like today, people in the US were discussing what the recent election would mean for various policy issues — in this case, the Democratic takeover of the House in 2006. It actually offered some encouragement, but lots of questions, for areas like copyright policy and telecom policy and net neutrality. Fifteen Years Ago This week in 2001, the world was still reeling from September 11th while also preparing for the holiday seasons. These things intersected in the occasional prediction that fear of going to malls would drive shoppers online — but evidence didn't back this up, and besides, there were a lot of other factors in what the e-holidays would bring. As for physical retailers selling high-tech equipment, they were facing their own crisis. Meanwhile, Microsoft was under the anti-competitive microscope and negotiating with the DOJ, while the Hewlett-Packard/Compaq merger met with disapproval from both the Hewlett family and the Packard family. One-Hundred Years Ago This week we can note an interesting centennial in the history of technology and politics. On November 7th, 1916, an experimental New York radio station broadcast the U.S. election results in audio for the very first time (they had previously only been broadcast in morse code). Amusingly, this first ever broadcast also called the election wrong, declaring Charles Evan Hughes the winner before signing off at 11 PM, only to find out the next day Woodrow Wilson had actually won. Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
It would be sort of fun to watch the more authoritarian governments of the world attempt to combat internet memes with censorship if it weren't both so damaging to the free speech ideals I hold so dear and if recent, ahem, events weren't making these stories hit a little closer to home than they would have but a few months ago. Countries like Russia and Indonesia have both taken steps to attempt to make illegal the time-honored tradition of putting up a famous person's picture and then typing words across it. Despite both governments' insisting that these legislative attempts are all to do with protecting people's honor and/or quelling false information about the subjects of these memes, the truth is that the aims behind them are more to do with clamping down on dissident speech and protecting those in power from criticism. That, indeed, is why these laws tend to be worded so vaguely. Vague enough, in fact, that it's quite clear that they can be used to criminalize pretty much any speech that the ruling government doesn't like. And joining in on this fascist fun now is Spain, which is attempting to criminalize memes in the vaguest manner possible. The scheme was put before Congress and would see restrictions placed on “spreading images that infringe the honour of a person,” referencing a 1992 law that is now outdated due to the emergence of the internet. PP politicians want the new ruling added to the unpopular Citizen Security Law, which was introduced in 2015 and places curbs on public protests, social media commentaries and disrespecting the police. It has been referred to as “the gag law” by critics. Let's just drive that point home: the Spanish government is considering an addition to a wildly unpopular law designed to keep people from voicing their displeasure at the government that would further criminalize people voicing their displeasure at the government. This isn't so much the ruling Spanish party putting its fingers in its own ears and shouting "La la la, we can't hear you", as it is putting the barrel of a gun in its detractors' mouths and shouting the same thing. It's a terrible idea for remaining in power, which is why I assume there are no ostriches running federal governments. To drive that point home, it seems the PM Rajoy found himself quickly the subject of many memes as a result of banning memes. Rajoy quiere que no haya más imágenes como esta, coartar nuestra libertad de expresión. #SinMemesNoHayDemocracia pic.twitter.com/3kQZlOGheu — cagonros (@cagonros_) November 8, 2016 And... Ahora el PP quiere prohibir los memes y considerarlos delito. Rajoy, te pasas #SinMemesNoHayDemocracia pic.twitter.com/OSxvIJQ5Gb — Código Nuevo (@CodigoNuevo) November 8, 2016 Seniorita Streisand, at the government's service, it seems. The good news in the case of Spanish meme-makers is that there is some confidence that this law won't be passed due to the ironically slim support the Popular Party has in the government. They may not find it so easy, however, since they hold only 137 of the 350 available parliamentary seats after the PP finally received approval for a second term thanks to support from liberal party Cuidadanos, leaving Rajoy with the weakest mandate in Spain's recent political history. Free the meme, Spain. Free the meme. Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
As was expected, IMDb is suing the state of California over its new "ageism" law. The law has its genesis in actress Junie Hoang's lawsuit against the website, in which she claimed that the site's publication of her actual age caused her to be passed over by producers looking for younger women. The law, which becomes effective January 1, applies to database sites that allow paid subscribers to post resumes, headshots or other information for prospective employers. Only a paying subscriber can make a removal or non-publication request. Although the legislation may be most critical for actors, it applies to all entertainment job categories. Although the law will (theoretically) apply to other database sites, it's really just a continuation of actress Junie Hoang's failed legal battle against IMDb. The narrowly-written law only applies to sites with paying subscribers, but it does allow those subscribers to alter facts or remove them completely. As such, it's still a potential First Amendment issue. This is why IMDb is seeking to have the law ruled unconstitutional. "IMDb shares the worthy goal of preventing age discrimination," writes attorney John C. Hueston in the complaint. "But AB 1687 is an unconstitutional law that does not advance, much less achieve, that goal. To the contrary, rather than passing laws designed to address the root problem of age discrimination, the State of California has chosen to chill free speech and undermine public access to factual information." Even though the law supposedly affects other sites, it's pretty obvious the real target of the legislation is the website now suing the state. From the complaint [PDF]: IMDb strongly opposes discrimination in all forms, including age discrimination in casting. But prejudice and bias, not truthful information, are the root causes of discrimination. This law unfairly targets IMDb.com (which appears to be the only public site impacted by the law) and forces IMDb to suppress factual information from public view. Moreover, the factual information being suppressed from IMDb is available from many other sources, not least including Wikipedia, Google, Microsoft (Bing), and Apple (Siri). As such, AB 1687 sets a dangerous and unconstitutional precedent for other general purpose websites and news sources, and should be deeply troubling to all who care about free speech. It's California's "right to be forgotten as being as old as you actually are" statute. And it doesn't even address the actual problem. Making it illegal to post factual information is a terrible idea and one that will ultimately affect the ways facts are handled by data aggregators subject to this law. But like Hoang's lawsuit, the law makes no attempt to target those actually engaging in the alleged ageism: movie and television studios. Instead, it targets those who gather information about actors and actresses, as if vanishing away simple facts will change the discriminatory hiring practices engaged in by some of California's largest companies. Adding further problems is the law's attempt to regulate a website that isn't even located in the state. Notably, AB 1687 contains no territorial limitations at all. It purports to impose financial penalties on IMDb, a Delaware corporation with its offices in Seattle, if it refuses to censor itself when, for example, a California actor requests the removal of his age from IMDb.com after it is added by an IMDb.com user in Germany. Making things even more stupid is the Screen Actors Guild's heavy lobbying for the IMDb-targeting law. A union with the combined power of thousands of actors should be able to take on the studios directly, rather than cozying up to lawmakers to carve out First Amendment protections for their dates of birth. That suggests one of two things: the SAG finds legislators easier to push around, or the SAG doesn't want to bite the hand that feeds it roles. Either way, targeting IMDb does nothing to further the Guild's supposed battle against ageism. Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
Earlier this year, we noted that a bunch of cities were looking to make Airbnb liable for residents in those cities using the platform without following certain city rules. As we noted at the time, this seemed to pretty clearly violate Section 230 of the CDA, which says that platforms cannot be liable for the actions of their users. San Francisco went ahead with such a law anyway, even though it tried to rework it at the last minute to deal with Airbnb's points on why it was illegal. The case ended up in court either way -- and unfortunately, the initial ruling has sided with San Francisco over Airbnb. Now, I know that for a variety of reasons, there are people who just flat out hate Airbnb and think that it's somehow bad or problematic for cities or rental prices or whatever. I don't think the data supports this, but either way, you should be concerned about the results here. This isn't about whether or not Airbnb is "good" or "bad" for cities. It's about a fundamental principle on which the internet operates -- which has allowed the internet to grow and to thrive, and which has protected free speech on the internet, by not making platforms magically liable for what users say or do. But the court here basically doesn't care about all of that. The judge tries to carefully parse things out to argue that under this law, Airbnb isn't liable for its users' actions, but its own: As the text and plain meaning of the Ordinance demonstrate, it in no way treats plaintiffs as the publishers or speakers of the rental listings provided by hosts. It does not regulate what can or cannot be said or posted in the listings. It creates no obligation on plaintiffs’ part to monitor, edit, withdraw or block the content supplied by hosts. To the contrary, as San Francisco has emphasized in its briefs and at oral argument, plaintiffs are perfectly free to publish any listing they get from a host and to collect fees for doing so -- whether the unit is lawfully registered or not -- without threat of prosecution or penalty under the Ordinance.... The Ordinance holds plaintiffs liable only for their own conduct, namely for providing, and collecting a fee for, Booking Services in connection with an unregistered unit. But that misunderstands both the nature of the platform and the nature of Section 230. First of all, the law absolutely creates an obligation on Airbnb to monitor, withdraw or block the content supplied by hosts -- because if they do not, then they will face significant liability. The idea that it's only targeting Airbnb's "conduct" of booking an unregistered unit is simply incorrect. The platform allows anyone to put up any unit. Not Airbnb. Not only does this new regulation falsely attribute to Airbnb the actions of its users, this judge does too. That's a problem. We've written a lot about Section 230 over the years, and unfortunately in the last few months a bunch of cases have chipped away at these important protections. In each case, the courts seem to think that the situation in front of them is somehow unique and Section 230 shouldn't apply. Considering how important Section 230 has been to the internet as a whole and the protection of free speech, we should be very, very concerned about so many of these cases picking apart the law and adding serious liability. It won't end well. Hopefully Airbnb appeals this... and the 9th Circuit doesn't muck it up.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
Floyd Abrams is one of, if not the most famous First Amendment lawyers in the country. He gets and deserves a ton of respect. His most famous case was defending the NY Times against the US government when Richard Nixon tried to block the NY Times from publishing the Pentagon Papers. And he's been involved in many other seminal First Amendment cases as well. That doesn't mean he doesn't sometimes make mistakes -- like the time he insisted that SOPA wouldn't violate the First Amendment because it was censorship for a good cause (i.e., for his clients at the MPAA). Or the time he falsely accused Wikileaks of indiscriminately leaking information that was actually being more carefully distributed. And while I totally agree with Abrams in claiming that Donald Trump is the "greatest threat to the First Amendment since the passage of The Sedition Act of 1918," I disagree with his thoughts on how to fight it. His argument is that the press that Trump has been insulting should sue Trump for defamation: "Trump has denounced people in language that punctuated his campaign," Abrams tells The Hollywood Reporter in a follow-up conversation. "If what he said is not pure protected opinion, then the press side ought to take a hard look and see if they have a basis for commencing litigation. They have to think creatively as no candidate in living memory has denounced the press as he has; no candidate has banned journalists from covering him because they didn't like the tone or substance of what they are saying. And so, press lawyers ought to bear in mind that if things get rough, if the relationship is one of constant denigration and threats, it may be time for journalists to think about using libel laws in way that is constitutional." Admittedly, he has a lot of caveats in there, but it's still a silly suggestion and would almost certainly backfire in a big way. Yes, Trump himself is somewhat famous for his bogus defamation threats addressed to the media, as well as his claimed plans to "open up libel laws" as President. So, you could argue that there's some potential irony or karmic retribution were he to be hit with a defamation lawsuit by the very reporters he's been threatening for so long. But it's also a strategy that seems highly likely to backfire in any number of ways. Suing a sitting President is just difficult, first of all. Second, the bar to defamation is quite high -- as it should be -- and it's difficult to see how Trump has crossed that line at all, even as he falsely seems to believe the bar for defamation is much lower. Third, this is very much stooping to his level, and if Trump has shown anything this election year, it's that when you stoop to his level in the mud, he'll drown you in it, because he knows how to play that game better than anyone else. Anyone who did this would almost certainly be hit with a countersuit (at the very least) and would have to prove "actual malice" against a sitting President. They'd also have to point out actual false statements of fact that Trump made, rather than his usual ridiculous hyperbole. Trump is, absolutely, a huge threat to the First Amendment. And lots of people and organizations need to be ready, willing and able to fight back on any attempt by the Trump administration to harm the First Amendment. But playing the low game of suing for defamation is the wrong way to go about it, and will be seen by his supporters as yet more evidence of the press trying to muzzle Trump.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
This election year may have been something of a clusterfuck for just about everyone... but it was damn good for CNN. The cable news channel that was generally filled with some of the most idiotic and meaningless banter made out like a bandit, apparently bringing in a billion dollars in profit by being the country's official organ player in a grand circus of political entertainment. The hiring of direct partisans on both sides, the failure to do very much actual deep looking at anything, and the complete pointlessness of whatever a Wolf Blitzer is all seemed to delight in turning anything about issues into horse race he said/she said soundbites. And now it's being an annoying copyright asshole too. As you may have heard, on election night, as the results rolled in, Clinton surrogate Van Jones made a very impassioned speech about the very real fear that he and many others felt about the results. It's worth watching. And CNN is really pissed off if you watch that without adding another stack of pennies to their billion dollar profits. “CNN views this as a violation of our intellectual property rights,” said Andrew Morse, executive vice president of editorial for CNN, which is owned by Time Warner Inc.’s Turner. “We take that very seriously. The video was used without attribution or permission. We are currently exploring our options with regards to NowThis, Facebook and Twitter.” To be fair, it looks like CNN's main focus is on a specific operation -- NowThis -- which was sharing the clip and was able to get more Facebook and Twitter shares of the video than CNN's own team. But, really, what does that say about CNN's social media operations -- that they let some other third-party get the jump on them and better promote their own videos? Is it infringement? It's possible, though I think there's a strong fair use argument there as well. But either way, that's not even the point. Here was a chance to actually share a rare "real" rather than plastic moment on CNN with lots and lots of people, and CNN was so focused on how it directly impacted their bottom line that they had to shut it down for anyone getting attention for it that wasn't CNN directly.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
Experienced security professionals are highly valued in the modern workplace. The $59 Computer Security Analysis and Penetration Testing Bundle will help you brush up on the skills needed and help to prepare you to pass the Computer Hacking Forensic Investigator (CHFI) certification, and Certified Security Analyst (CSA) certification exams. You gain access to over 300 lectures and 48 hours of content that will give you practical experience with the standard tools required to successfully carry out a computer forensic investigation. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
The Lawfare blog, run by the Brookings Institution, has long reliably been a good source to go to for reading what defenders of mass surveillance and the surveillance state are thinking -- in a non-hysterical way. While I disagree with much of what's posted on there, it tends to be thoughtful and interesting reading. Its founder and Editor-in-Chief is Ben Wittes, who's always good for an impassioned defense of the NSA's surveillance on Americans, and was all in on forcing tech companies to break encryption. He wasn't worried, you see, because he was quite sure the NSA would never spy on him. Because, you know, he's a good guy. And... yet. Something seems to have changed. And that something is who is suddenly about to be in charge of the surveillance state apparatus: When we founded this site more than six years ago, I never in my wildest dreams imagined myself writing these words about a man who will take the oath of office as President of the United States. We began Lawfare on the assumption that the U.S. federal executive branch was a tool with which to confront national security threats. While I accepted that its manner of doing so might threaten other values—like civil liberties—or prove counterproductive in protecting national security goods, I never imagined I would confront the day when I ranked the President himself among the major threats to the security of the country. Today, we have to confront that possibility. Your lack of imagination is really fucking us all over now, isn't it Ben? This is exactly why so many of us -- the people he likes to mock -- have said all along that the concern with the surveillance state is always based on the fact that you have to imagine what will happen when the people you trust the least are in power. Wittes is suddenly having something of an existential crisis about all of this: So while I of course hope for a successful Trump presidency, I know of only one way Trump can succeed in the national security arena. And that is by radically changing the reckless persona he embodied during a long campaign—changing how he behaves, changing what he believes, changing what he aspires to do, acquiring a sense of restraint, and changing the way he talks about people and groups. And while I agree with Clinton that we owe Trump a chance to lead, the burden is on him to make these changes, not on us to suspend disbelief and pretend we live in the world he has described. I will be candid and confess that, Clinton’s admonition notwithstanding, my mind is not entirely open about Trump’s capacity to do this, or even his interest in doing it. I have, in fact, deep doubts. And that leaves me, and I think most of America’s national security community, in a very strange position. Maybe take the time to explore that strange feeling and you can start to understand why so many of us have been concerned about the entire apparatus that you've been cheering on for years, because, as you once said: "I have a great deal of confidence that the National Security Agency is not spying on me." There are an awful lot of people who haven't had that confidence for a while. And a great many more who won't have that confidence under the next administration. That strange feeling that Wittes has is finally a recognition that maybe he should be concerned about those people too. This isn't a post to mock Ben, but to highlight why so many of us were so concerned all along, even as he mocked us. This is serious stuff and believing that unconstitutional warrantless mass surveillance is okay because you trust the guy in charge only works if you can always trust the guy in charge. And you can't... as Ben and others are suddenly discovering.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
I get that this is how politics works, but this is just a pretty stark and extreme example. A big part of Donald Trump's pitch to the public was about getting rid of the "corruption" in DC, that was sure to follow with Clinton, and her close connections to various lobbyists and Wall Street in particular. Here's what Trump campaign CEO (and, apparently, lead candidate for White House Chief of Staff) Steve Bannon told Bloomberg this week about the campaign: “Those elites [Trump rails against] are represented in Washington by a bevy of lobbyists,” says Bannon. “Crony capitalism has gotten out of control. Trump saw this. The American people saw this. And they have risen up to smash it. Ordinary people want to make sure we have an evenhanded system that’s transparent and accountable and takes their interests into mind. And they want to share in the rewards.” This was most clearly put forth with the phrase "drain the swamp," which the public was told was about "removing corruption and greed in local and federal government." So, how's that going? Well, as soon as the victory was announced, with it came the news that basically his entire transition team was made up of top influence peddling lobbyists. The NY Times has an article about how old lobbyists and power brokers in DC are practically giddy in being able to shape the new administration. They're even out there mocking the "drain the swamp" phrase already: “Trump has pledged to change things in Washington — about draining the swamp,” said Mr. [Trent] Lott, who now works at Squire Patton Boggs, a law and lobbying firm. “He is going to need some people to help guide him through the swamp — how do you get in and how you get out? We are prepared to help do that.” Yeah, suuuuuuuuuuuuuure. The best way to "drain the swamp" is to hand it over to the alligators who make it their home and who have gotten fat off the swamp? The swamp sure is pretty crowded too: — Cindy Hayden of tobacco company Altria is in charge of Homeland Security.— Steve Hart, the chairman of Williams & Jensen, is in charge of Labor. His clients include Visa, the American Council of Life Insurers, Anthem, Cheniere Energy, Coca-Cola, General Electric, HSBC, Pfixer, PhRMA and United Airlines. He worked at the Labor Department in the Pension Welfare Benefits Program and on the Office of Management and Budget's ERISA Reorganization Task Force under Ronald Reagan.— For the Energy Department, Michael McKenna of MWR Strategies lobbies for Engie (formerly GDF Suez), Southern Company and Dow Chemical.— For Interior, David Bernhardt of Brownstein Hyatt Farber Schreck lobbies for the Westlands Water District and used to represent Freeport LNG Expansion and Rosemont Copper Company. He was the Interior Department's solicitor, deputy solicitor, deputy chief of staff, counselor to the secretary of the Interior and director of the Office of Congressional and Legislative Affairs under George W. Bush.— Michael Torrey, who has the Agriculture portfolio, has his own firm representing the American Beverage Association and the Crop Insurance and Reinsurance Bureau.— Mira Ricardel, tasked with defense, isn't a registered lobbyist but is a consultant for Federal Budget IQ, a government research firm. Until recently she worked for Boeing.— Dan DiMicco, overseeing the Office of the U.S. Trade Representative, serves on Duke Energy's board and represents steel company Nucor (of which he used to be CEO) on the U.S. Council on Competitiveness and the Coalition for a Prosperous America.— Paul Atkins, though not a lobbyist, is CEO of advisory firm Patomak Global Partners and charged with independent financial agencies.— Ken Blackwell, in charge of domestic issues, isn't a lobbyist but is a senior fellow of the Family Research Council, which does lobbying. That swamp is looking mighty damp. And this doesn't touch on the fact that top execs from Goldman Sachs and JP Morgan have been floated as Trump's Treasury Secretary. Draining that swamp, huh? Remember Bannon's quote about how people were sick of Clinton's ties to Wall Street? Should we remind you that Bannon used to work at Goldman Sachs himself? Anyway, let's just address two responses I'm sure will likely appear in the comments below -- perhaps by people so furious that we're insulting "their guy" that they won't read this far: Yes, Clinton would have brought in probably just as many lobbyists. Just as President Obama campaigned on stopping the power of lobbyists in DC... and then went ahead and brought a bunch into his administration, it's almost certain that Clinton would have done the same. But the Trump campaign's explicit claim was that it would be breaking away from lobbyists, crony capitalists and close ties to Wall Street at the very time it was bringing those people into the campaign. Yes, these lobbyists do have some expertise. This was the main pushback when I jokingly tweeted about these Wall St. execs' names being tossed around for Treasury Secretary. It's true that they have experience and knowledge of how the system works. And it's also (frankly) why I think when people get all worked up about "lobbyists" they are totally missing the point. There are reasons why lobbyists do what they do and it's because they know the system. That has both good sides and bad sides. But, a true leader is one willing to admit that and explain that, rather than flat out lying about it. Don't say "drain the swamp" and promise an end to special interests, lobbyists and crony capitalists and then immediately bring a metric ton of them into your administration. That's called lying to the public. Which, I guess, is also something that many lobbyists have some experience with.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
Since being declared the winner of the Presidential election, Donald Trump has actually played the part of an actual President-elect quite well. His victory speech was quite gracious and welcoming. His meeting with President Obama appeared to go well. Of course, anyone who's watched him during the campaign knew it couldn't last, but perhaps, maybe, he'd actually be presidential for a few weeks or (could we dare?) a few months? But, nope. All it took was about 48 hours and the man who four years ago demanded that people "march on Washington" because President Obama was re-elected, used his very first tweet as the President elect to shit all over the First Amendment. Compare that to his tweet from four years ago: It's true that there are lots of protests going on, some of which have turned violent. It's also true that there's been a wave of attacks on minorities across the US by Trump supporters. An actual leader would seek to tell his supporters that's not how Americans should act. But that's not what we got. We noted that one of the big fears with a Trump presidency is what it would mean for the First Amendment, and kicking it off by attacking both the freedom of the press and the right of assembly in one go (also, with the bizarre claim of "professional protestors" -- which, you know, if it were true, wouldn't need "inciting" by the press) should be deeply concerning to anyone who supports the First Amendment. There were going to be protests no matter how this election turned out. That was a given. A President who was truly focused on bringing the country together would recognize the concerns and grievances, not attack them and deny their rights. As (of all people?!?) Ryan Adams correctly noted to Trump in a response tweet: "you work for them now. You're hired. You work for all Americans now [and] your JOB is to DEFEND their RIGHT to protest." He's absolutely right. In particular, the oath that Donald Trump will take in a few months is that he will "preserve, protect and defend the Constitution of the United States." He talked a lot about the 2nd Amendment on the campaign trail. He should familiarize himself with the 1st.Permalink | Comments | Email This Story

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posted 30 days ago on techdirt
It should be well-known by readers of this site that copyright trolls are essentially bullies. They send out their settlement threat letters, hoping to extort money from a public that typically doesn't know better than to be terrified by the legalese claims within the letters. It's a practice fraught with deception, as the evidence referenced in the letters typically amounts to nothing more than an IP address -- which itself may or may not be correct -- while the threats themselves can often times include consequences not remotely plausible. Still, the bullying goes on, because it works enough to make it profitable. That's why it's important to highlight how these bullies tend to respond when a target decides to stand up to them. Much like the bullies we've had in our personal lives, they tend to run away as quickly as possible. One recent example of this is James Collins, who received a troll letter from LHF Productions, the company behind the movie London Has Fallen. The company accused Collins of both downloading the movie via BitTorrent, as well as then making it available to others via the same means. Rather than acquiescing, however, Collins got himself a lawyer and had him punch back. In a letter obtained by the troll watchers over at DieTrollDie, Collins’ lawyer J. Christopher Lynch informs LHF lawyer David A. Lowe of this stance in no uncertain terms. “As Mr. Collins told you in his letter dated October 6, 2016, he is innocent. Mr. Collins was asleep on the date at the time the Amended Complaint accuses him of being ‘observed infringing’,” Lynch writes. “Likewise, Mr. Collins has no secondary liability because he never aided, directed, facilitated, benefitted from, or shared in the proceeds of any violations of the law by anyone. We are optimistic that your client and its foreign representatives will see the wisdom of dismissing Mr. Collins. We recognize this requires ‘taking our word’ that Mr. Collins is wholly innocent, but, believe me, he is, just like he told you he is." That bit about foreign representatives is important. Many of the companies that send out these threat letters rely on foreign groups to do the IP address tracking on which the threats rely. Any ancillary "evidence" of the infringement is typically also compiled by these foreign groups. That's actually something of a problem for the copyright troll, as the foreign group then becomes the "witness" to the infringement, and witnesses both can be called into court to testify and, in the case of those acting as investigators, face licensing requirements in some areas. Lynch further hammers this home in his letter to LHF Productions. “Your client’s foreign representatives could have complied with Washington law by hiring a licensed investigator to corroborate the foreign investigation in real time, since the purported location of the entrapped IP addresses is known,” he writes. “But your client’s representatives chose not to invest in compliance with Washington law, and are taking a chance that somehow the foreign witness to the ‘observed infringing’ can testify, and that somehow the entrapped ‘blip’ of the movie in question will be sufficient evidence of U.S. copyright infringement.” Had everything been done on the level by the copyright troll and its foreign associates, this language ought to have had no impact on the troll's actions. Good evidence and a justifiable case deserves its day in court, after all. That makes it all the more telling what LHF Productions did instead. As noted by DieTrollDie, that threat proved too much for LHF Productions. The company dismissed the case against Mr Collins in preference to being put under the microscope. There are probably very good reasons for that and ones that other recipients of threatening letters should consider exploring. Remember, friends, bullies tend to run away when someone stands up to them. If the majority of the public were aware of stories like these, copyright trolling would stop due to its lack of profitability. Permalink | Comments | Email This Story

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posted 30 days ago on techdirt
Last year, we discussed a really dumb trademark lawsuit against two guys running a pizza company brought by the Garden State Parkway, of all things, because the pizza company's logo was a clear homage to the GSP logo. You see, the two pizza-making guys were originally from New Jersey, and so thought that fashioning their company logo as a tribute to their shared roots was a good idea. The GSP seemed to think that this amounted to trademark infringement, despite the fact that managing the New Jersey Turnpike and slinging delicious pizza pies are fairly distinct marketplaces. A federal judge disagreed with them, however, and dismissed the lawsuit. That hasn't stopped the Turnpike Authority from threatening others, it seems. A winery, one that also uses labels that are a clear homage to the GSP logo, is seeking a declaratory judgement that it too is not committing trademark infringement after it had received a cease-and-desist letter. Old York Cellars of Ringoes filed a declaratory judgment action against the New Jersey Turnpike Authority, which operates the Parkway, after receiving a cease-and-desist letter from the agency over the look-alike logos. The dispute highlights a spate of cases where government entities have acted to trademark intellectual property. The Garden State Parkway logo was registered with the U.S. Patent and Trade Office, but the lawyers for Old York Cellars argue that the statute creating the highway agency does not permit licensing of its intellectual property because it is not an activity related to transportation. Old York also says federal regulations prohibit intellectual property protection for traffic control devices. The public is unlikely to be confused between a highway agency and a business that makes wine, even if the state's trademark is valid, Old York said in its complaint. And, just to add to all of that, the logos in question are far less similar in this case than they were in that of the pizza company. Here are both, side-by-side so that you can judge for yourself. I get that the colors are the same, but much of the rest is rather distinct. Not to mention that the names of both organizations are featured prominently and in large font on both logos. Does the Turnpike Authority really want to argue that there is a likelihood of public confusion here? As though the public in New Jersey would walk into a liquor store and somehow think that the same group running the Turnpike is also selling wine? Really? I would expect that the court would find in favor of the winery for declaratory judgement. Certainly any actual trademark suit brought by the Turnpike Authority would likely be similar enough to the one it brought against the pizza company to end with the same result. Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
The Louisiana legislature decided to help out its most underprivileged constituents -- law enforcement officers -- by making it a felony to "attack" them using nothing more than words. When New Orleans police officers arrived at the scene of a disturbance to arrest an intoxicated man for banging on a hotel's windows and harassing the employees, the situation devolved into the totally expected. According to arrest documents, Delatoba was drunk and banging on a window at the Royal Sonesta Hotel, 300 Bourbon St. around 5:15 a.m. Monday, when a witness who heard the banging told him to stop. Delatoba's warrant says he yelled at the witness, "calling him a n-----." That witness, a security guard who works at a nearby building's mezzanine, along with a security supervisor for the Royal Sonesta, flagged down two Louisiana State Troopers who then escorted Delatoba to NOPD's 8th District station, the warrant states. Once at the station, the warrant states, Delatoba began to verbally "attack members of the New Orleans Police Dept." The warrant states Delatoba called one female officer a "dumb a-- c---" and another officer a "dumb a-- n-----." In a shocking twist, an intoxicated man was rude and uncooperative while being arrested. (Have these cops never watched "COPS?") So of course the New Orleans police took it upon themselves to be legally offended by the sort of invective they hear from arrestees all the time. The state's hate crime law expansion allowed them to tack on additional charge after the arrest -- a felony with a potential five-year prison sentence. Fortunately, the district attorney isn't nearly as thin-skinned as the overprotected cops. This decision was probably preceded by some heartfelt eye rolling and several rewritten statements to eliminate every last trace of derision. Assistant District Attorney Christopher Bowman, a spokesman for Cannizzaro's office, said Monday (Oct. 24) the police officers Raul Delatoba cursed at were not victims of the crime that prompted his arrest initially. Rather, the "disparaging remarks" to officers were made during or after he was apprehended. The office officially refused the charges about two weeks ago. After a bit of hindsight, the police department officially agrees with the DA's decision. Additionally, NOPD spokesman Tyler Gamble said Sept. 8 that after reviewing the case, it was "clear that the responding officer incorrectly applied" the hate crime law. But it's important to note that wasn't always the case. When the "incorrectly applied law" first came up, the NOPD shrugged and said it was up to the DA to figure out how much bullshit was contained in the bullshit charge. This is exactly the sort of ridiculousness everyone but the supporters of the bill saw coming. Give law enforcement a law to abuse and they'll abuse it. The New Orleans police can now arrest people for calling them names -- not really the sort of thing the power of law enforcement should be used for. What they can't do is tack a charge on if they feel insulted in the process of arresting someone for unrelated offenses. At least not in New Orleans. The law is effective statewide, and there's no guarantee every government prosecutor will view it the way Cannizzaro's office did. Hate crime laws are generally vaguely written and overbroad, but ones that append "blue lives matter" wording are even worse. They extend protection to historically privileged and powerful people and make it that much easier to slap "disrespectful" arrestees with felony charges. It's nothing more than a vehicle for abuse and does absolutely nothing to foster a healthy relationship between police officers and the communities they serve. Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
You all should be familiar with a Rubik's Cube, the three-dimensional puzzle toy that for some reason your grandmother kept on her coffee table to frustrate you while she watched Matlock. This invention of the 1970s still enjoys widespread popularity, with hundreds of millions of them being sold every year. The toy has been patented for some time, but ten years ago, a British company that manages the intellectual property rights for the toy also applied for trademark protection on the cube's design in the EU. The reason for this should be obvious: patent protections last for limited amounts of time, while trademark rights exist essentially in perpetuity, so long as it's actively used in the marketplace. It's an end-around to patent law designed to lock up a monopoly. But, in the case of the Rubik's Cube, it didn't work, as the European Union Court of Justice has correctly determined that the trademark applied for by Seven Towers was for a functional and technical solution, not one of branding. German competitor Simba Toys had challenged the trademark, and it won. ECJ judges agreed with Simba Toys' arguments. Their decision is final and cannot be appealed. "In examining whether registration ought to be refused on the ground that shape involved a technical solution, EUIPO and the General Court should also have taken into account non-visible functional elements represented by that shape, such as its rotating capability," they said. EUIPO will now have to issue a new decision based on the ECJ judgment. Representatives from Rubik's Brand Ltd. were quick to respond, breathlessly wringing their hands over how this decision will obviously destroy the brands and innovation within the toy market. Rubik's Brand Ltd's president David Kremer said he was baffled that the court ruled that functionality or a technical solution is implicit in the trademark. "This judgment sets a damaging precedent for companies wishing to innovate and create strong brands and distinctive marks within the EU, and is not what European lawmakers intended when they legislated for 3D trademarks," he said. But we can set the Chicken Little shit to the side, here. The damaging precedent would have been if the court instead allowed companies to treat trademark so disdainfully as a technical end-around to patent law. There is a reason why patents have set time periods for protection and getting around them by trying to apply trademark law to that which is clearly in the realm of patents would do the very thing Kremer claims to fear: prevent innovation. After all, given how overprotective companies have become when it comes to their trademarks, it's easy to see how Rubik's would respond to any other toy maker attempting to make a toy involving anything resembling a rotating cube. This was about monopolizing a market, not innovation. It's good to see a high court slap down attempts like this, regardless. Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
It appears some members of law enforcement are coming up with creative interpretations of the Supreme Court's Rodriguez decision. The decision said that officers could not extend traffic stops for unrelated purposes. When the objective of the traffic stop is complete, the detainment ends and the driver is free to go, no matter how much an officer might want to seek consent for a vehicle search or run a dog around the outside of it. What the court never said is that officers could violate citizens' Fourth Amendment rights as long as they were quick about it. But that seems to be the conclusion some are drawing. A Kentucky Appeals Court decision [PDF] drives the Supreme Court's point home. The key word in the Supreme Court's phrase "unnecessarily prolong" isn't "prolong," but "unnecessarily." (via FourthAmendment.com) Damion Lane ran a stop sign and was pulled over by officers. As they approached the car, he appeared to be fumbling with something. Officers ordered him out of the car, cuffed and searched him (for officer safety, according to the officers). While this was happening, an officer ran a K-9 unit around Lane's vehicle. The dog alerted on the car but nothing was found. The officer searching Lane did come across some cocaine in Lane's pants pocket. Lane moved to suppress evidence as being the result of an unconstitutional search. The state argued that the officers did have reasonable suspicion based on the totality of the circumstances, citing the "fumbling" movement in the car and Lane's attempt to reach into his pocket while in the process of being cuffed. Also the usual stuff: dark outside, "high crime neighborhood." The state responded to the challenge of the evidence by pointing out the stop had not been "unreasonably prolonged." This is true. The drug sniff occurred during Lane's cuffing and conversation with the other officer. But that's not what's important. A dog sniff does not have “the same close connection to roadway safety as the ordinary inquiries,” thus it “is not fairly characterized as part of the officer’s traffic mission.” Id. Because a dog sniff is not part of the ordinary inquiries, its inclusion in the traffic stop procedures cannot extend the time period for the stop, or, if it does, the dog sniff must have a causal relationship to the stop. As the Kentucky Supreme Court phrased the inquiry, “The ‘key question’ is not whether the duration of Appellant’s roadside detention was unreasonable; rather, it is whether the sniff search was related to the purpose for which Appellant was stopped[.] There's no free pass for violating rights so fast the arrestee barely knows they've been violated. And even though it would appear there was no "prolongment" of the stop, the use of the drug dog did actually make the stop longer. Officer Merrick could have been attending to the “ordinary inquiries” – i.e., running Lane’s license and registration – or he could have been writing the traffic violation ticket during the time that he was having K9 Bowie sniff the vehicle. The attempt to salvage claims of reasonable suspicion are dismantled by the court as well, which finds that taking a Han Solo-esque approach to crime-fighting tends to generate suspicion that is hardly "reasonable," much less articulable. Here, any suspicion about drug activity from Lane fumbling in the car as the officers were approaching the vehicle was simply a hunch or unparticularized suspicion, not a reasonable inference drawn from the facts in light of the officer’s experience. None of the factors individually constituted a reasonable articulable suspicion of criminal activity: not the high-crime area nor Lane’s nervous fumbling nor the officer’s hunch. And none of the factors combined constituted a reasonable articulable suspicion of criminal activity. Lane was not being evasive in his nervous fumbling. He did not get out of his car and flee, and he did not attempt to drive off. And no points are awarded for moving the goalposts once the evidence was challenged. In fact, Lane’s first pat-down was a safety pat-down for weapons. The officers testified that they were concerned about their safety due to Lane’s fidgeting and looking back when the officers were approaching. That reasonable articulable suspicion of officer safety is justified given the facts. However, the Commonwealth now attempts to ex post facto convert the original hunch that Lane might pose a safety threat into a new hunch that Lane might have possessed drugs. The court goes on to point out that if it accepts the government's reasoning, anyone in any area deemed to be the "wrong place" (or at the "wrong time," i.e. "dark") could be subjected to searches by law enforcement -- an invitation this court isn't interested in handing out. It's good to see courts recognizing it's not the length of the unconstitutional activity, it's the activity itself that's a problem. Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
In the wake of the unexpected win of Donald Trump, people in many fields are starting to re-examine their assumptions about what might happen in the next few years. One of the areas impacted by Trump's success is trade in general, and trade deals in particular. For perhaps the first time, the 2016 election campaign put trade deals front and center. They may even have contributed to Hillary Clinton's downfall, since many found her sudden conversion to the anti-TPP movement unconvincing, to say the least. Given Trump's vocal antipathy to TPP, even its strongest supporters are recognizing that it is now in trouble. Here, for example, is John Key, Prime Minister of New Zealand, and one of the cheerleaders for the deal: [TPP] would have been nice to have, but we're not going to have it in the short term. The leader of the main opposition party in New Zealand agreed: [TPP] seems to be dead in the water now. The Radio New Zealand report that these comments are taken from had further confirmation of TPP's demise from a source with privileged access to the man himself: A close Trump supporter, Senator Jeff Sessions, told reporters at Mr Trump's victory party last night the proposed deal was now "dead". Of course, "dead" is not an absolute term in politics. TPP may be dead in the short term -- something underlined by US Senate Majority Leader Mitch McConnell and the Senate's soon-to-be-top Democrat -- but that doesn't necessarily mean completely dead forever. New Zealand's Key had some thoughts on what might happen next: Does that mean there will never be an attempt to re-negotiate it? No, because President Trump will get the same advice from the State Department, from the Pentagon, from the Treasury that President Obama got, which is that you need to have influence and you need to have presence in Asia and to do that free trade locking you in there is the way to do it. Re-negotiating TPP is going to be painful for all the other participants, who doubtless thought and hoped it was all done and dusted. It will be particularly awkward for Japan, because this just happened: Japan's House of Representatives voted to ratify the Trans-Pacific Partnership trade agreement and passed a related bill Thursday, despite diminishing prospects for the ratification of the pact by the United States following Donald Trump's victory in the presidential election. That might stand as a warning to other TPP nations that are on the brink of ratifying the deal. Given the huge uncertainty surrounding its fate, holding off would be a very sensible move at this point -- something that Key himself needs to remember before he pushes through New Zealand's TPP Amendment Bill. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
The Complete Adobe Suite Mastery Package will give you the tools you need to learn all about the ins and outs of the widely used web and graphic design tools. Over this comprehensive bundle, you'll learn how to use the Adobe Suite to create stunning illustrations, magazines, websites, and much more. You'll dive into features that range from beginner to advanced as you get familiar with this incredibly useful tool. The bundle includes 135 courses and is on sale for $99. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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I should say up front that I'm a big supporter of Fight for the Future and the work they do, and while some may take this post as a slam on them, it is anything but. We're very much on the same page on nearly everything, but it caught my attention when FftF's Evan Greer wrote a piece asking President Obama to "shut down" the NSA's mass surveillance systems before Donald Trump gets control of it all. Specifically the article says "before it's too late." While I'd love to see Obama shut down the NSA's mass surveillance system, it's time to admit that it is too late. Anything the President does to that effect in this lame duck session can, and will, be reversed on day one of the Trump administration. Perhaps there's some value in the symbolic gesture, but let's face the facts: it's too late. This is why we've been calling out illegal and warrantless surveillance all along -- from the Bush administration right through the Obama administration. And it's why it's been so damn frustrating to see people who flip flopped on these issues when "their guy" was in power (which, frankly, includes President Obama himself). Watching their expected flip flop back won't be any consolation. As we've said before, laws should always be designed as if the people we distrust the most are in power. Because one day, they will be.Permalink | Comments | Email This Story

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Yesterday I wrote that people rushing to blame Facebook for the election results were being ridiculous, and it generated a fair bit of discussion (much of it on Twitter). And this was before NYMag's Max Read went out and wrote an article literally titled Donald Trump Won Because of Facebook. Here's the crux of Max's argument, which is similar to the argument many others have been making: The most obvious way in which Facebook enabled a Trump victory has been its inability (or refusal) to address the problem of hoax or fake news. Fake news is not a problem unique to Facebook, but Facebook’s enormous audience, and the mechanisms of distribution on which the site relies — i.e., the emotionally charged activity of sharing, and the show-me-more-like-this feedback loop of the news feed algorithm — makes it the only site to support a genuinely lucrative market in which shady publishers arbitrage traffic by enticing people off of Facebook and onto ad-festooned websites, using stories that are alternately made up, incorrect, exaggerated beyond all relationship to truth, or all three. (To really hammer home the cyberdystopia aspect of this: A significant number of the sites are run by Macedonian teenagers looking to make some scratch.) All throughout the election, these fake stories, sometimes papered over with flimsy “parody site” disclosures somewhere in small type, circulated throughout Facebook: The Pope endorses Trump. Hillary Clinton bought $137 million in illegal arms. The Clintons bought a $200 million house in the Maldives. The valiant efforts of Snopes and other debunking organizations were insufficient; Facebook’s labyrinthine sharing and privacy settings mean that fact-checks get lost in the shuffle. Often, no one would even need to click on the story for the headline to become a widely distributed talking point, repeated elsewhere online, or, sometimes, in real life. Meanwhile Bloomberg had a big piece, saying that Facebook (and Twitter) employees are "grappling with their role" in helping to elect Trump. Online (on Facebook, of course), current and former employees debated the company's role as an influencer. Bobby Goodlatte, a Facebook product designer from 2008 to 2012, according to his LinkedIn, today said the company's news feed was responsible for fueling “highly partisan, fact-light media outlets” that propelled Donald Trump's ascension to the presidency. “News feed optimizes for engagement,” Goodlatte wrote. “As we’ve learned in this election, bullshit is highly engaging.” These stories sound convenient. And my Twitter feed is chock full of people -- often people in the media who are already "angry" about Facebook "stealing" their ad revenue -- making similar noises about how Facebook needs to "fix" this. Fix your platform. You're a media company and with great power comes great responsibility. https://t.co/fsGSSEkIMK — Kelly Fincham (@kellyfincham) November 10, 2016 Dear @twitter and @facebook - do the right thing, and soon. Maybe started as a 'platform,' or tool etc. yes but we're way past that now. https://t.co/gqA2FS3akX — Kaan Yigit (@kyigit) November 10, 2016 When the dust settles, we gotta have a conversation about Facebook's responsibilities to the public. https://t.co/jK55IjfXoo — Matt Pearce (@mattdpearce) November 9, 2016 And these stories tell a neat and convenient tale, a pre-packaged "thing" to blame. And they're all bullshit. Yes, Facebook had lots of people passing around fake news stories, or misleading news stories. And, yes, lots of people live in bubbles where they only see/read/hear stuff that they are prone to agree with. But this narrative that it was Facebook's "primed for engagement, not truth" algorithm that got people to go out and vote for Trump is both simplistic and dangerous. Let's take each problem separately. Too Simplistic: Blaming the Facebook algorithm for sharing fake news is too simplistic in that it gives the algorithm too much power and takes the responsibility away from human beings as living, thinking creatures. We love to blame the tools. It's practically a national pasttime, searching for the moral panic du jour to blame for people doing things that some other people don't like or find problematic. It's much easier to blame the tools. Even worse is that it assumes millions of people are pure idiots. And, I know, among many people this may be a popular opinion right now. That if they supported "the other side" they must be complete idiots. But that's wrong. There are idiot supporters of every candidate in this election -- and we can all highlight our favorite that somehow got onto the news. But lots and lots and lots of people who voted for Trump weren't doing so because some Facebook algorithm "tricked" them, but because they legitimately believed that the status quo wasn't working and was problematic, and an awful lot of "the establishment" wanted them to shut up about what wasn't working. You can argue that they were misled about what was and what wasn't working, but again, that goes back to the idea that tens of millions of people are so stupid that they change their minds based on fake storis on Facebook Too Dangerous: I write an awful lot about Section 230 of the CDA and the idea of "intermediary liability" protections and I know that some people's eyes glaze over at those terms. But there's a fundamental underlying principle behind those things and it's this: if you blame a platform for the actions of its users, you end up with massive censorship and dangerous limits on free speech and innovation. The people calling for Facebook to "fix" this problem don't see where this leads, but it's not good. In various conversations I've had in response to yesterday's article, I keep drilling down and trying to see what people think the "solution" to this "problem" is, and it inevitably comes back to something along the lines of "well, Facebook needs to stop the fake news from spreading." If only it could. Fake news, rumors, conspiracy theories, echo chambers and "bubbles" predate Facebook by a long shot. While the musical Hamilton is reminding people that some of our founding fathers were known to fight hard against each other, not everyone is aware of the spreading of rumors and lies between Thomas Jefferson and John Adams as they campaigned for the presidency in 1800: Jefferson secretly hired the famed pamphleteer James Callendar, who had previously seriously damaged the reputation of Adams' fellow Federalist Alexander Hamilton, to paint Adams and the Federalist party as a friend to British royalty and Adams as being bent on starting a war with France in order to further an alliance with King George. More to the point, Callender described Adams as a "hideous hermaphroditical character which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman." Adams' Federalist surrogates also brought out the proverbial long knives. A Federalist publication described Jefferson as "a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father." Allegations were made that he cheated his British creditors, was a supporter of French radicalism and assassinations of the aristocracy, and that he made a habit out of sleeping with his female slaves. Or read about the history of the 1828 election between Andrew Jackson and John Quincy Adams and you might notice more than a few parallels to today -- including the spreading of fake stories about each candidate by surrogates. Here's just a snippet: One Adams newspaper even wrote, "General Jackson's mother was a common prostitute, brought to this country by the British soldiers! She afterward married a mulatto man, with whom she had several children, of which number General Jackson is one!" In 1876, opponents of Rutherford B. Hayes spread the rumor that he had shot his own mother. In 1928, supporters of Herbert Hoover started spreading rumors that (the Catholic) Al Smith was connecting the newly built Holland Tunnel in NY all the way to the Vatican so that the Pope would weigh in on all Presidential matters. In 1952, Dwight Eisenhower supporters distributed pamphlets claiming that his opponent, Adlai Stephenson had once killed a young girl "in a jealous rage." Point being: fake news is spread in basically every election for the US President in history. It didn't take Facebook's algorithms and it won't go away if Facebook's algorithms change. In fact, it's likely to make things even worse. Remember the mostly made up "controversy" about Facebook suppressing conservative news? Remember the outrage it provoked (or have you already forgotten?). Just imagine what would happen if Facebook now decided that it was only going to let people share "true" news. Whoever gets to decide that kind of thing has tremendous power -- and there will be immediately claims of bias and hiding "important" stories -- even if they're bullshit. It will lead many of the people who are already angry about things to argue that their views are being suppressed and hidden and that they are being "censored." That's not a good recipe. And it's an especially terrible recipe if people really want to understand why so many people are so angry at the status quo. Telling them that the news needs to be censored to "protect" them isn't going to magically turn Trump supporters into Hillary supporters. It will just convince them that they're even more persecuted. Other than "censoring" certain content, the only other suggestion I seriously heard was someone suggesting that Facebook should force feed its users opposing views. Like that's actually going to change anyone's mind, rather than get them pissed off again. And, once again, this seems like people failing to take responsibility for their own actions. If you don't have any friends who supported Trump, don't lump that on Facebook. There are legitimate questions about can you better inform a populace. But censorship and forcefeeding information is general paternalistic nonsense that totally misunderstands the issue and misdiagnoses the problem. As Clay Shirky noted earlier this year, too many Hillary supporters thought that "bringing fact checkers to a culture war" would win out, when that's never going to happen. Fighting Facebook's algorithim is more of the same nonsense. It's based in the faulty belief that those who voted for "the other" are simply too dumb to understand the truth, and if they just got more truth, they'd buy it. It's not understanding why they voted the way they did. It's looking for easy scapegoats. Facebook's algorithm is an easy target, but it's even less likely to solve a cutlure war than fact checkers.Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
We've talked a lot about how while the lack of security in Internet of Things devices was kind of funny at first, it quickly became less funny as the dramatic scope of the problem began to reveal itself. Whether it's cars being taken over from an IP address up to ten miles away, to the rise in massive new DDoS attacks fueled by your not-so-smart home appliances, folks like security expert Bruce Schneier have made it abundantly clear the check is coming due. That's particularly true in the healthcare field, where hackable pacemakers and ransomware-infected hospital equipment is becoming the norm. In fact, hospitals in England recently had to cancel hundreds of surgeries in order to "isolate and destroy" a virus that was running amok across the hospital's IT systems:"We have taken the decision, following expert advice, to shut down the majority of our systems so we can isolate and destroy it," the NHS wrote on its website. "All planned operations, outpatient appointments and diagnostic procedures have been canceled for Wednesday, Nov. 2 with a small number of exceptions."In the kind of transparency that often is the hallmark of these kinds of attacks, the hospital in question (the National Health Service's Northern Lincolnshire and Goole Foundation Trust in the UK) couldn't be bothered to explain the precise nature of the attack. But security expert Brian Krebs notes it's likely part of the growing trend of ransomware attacks on hospitals that cripple administrative and surgical systems until the hospital is willing to pay a bitcoin ransom:"Earlier this year, experts began noticing that cybercriminals were using ransomware to target hospitals — organizations that are heavily reliant on instant access to patient records. In March 2016, Henderson, Ky.-based Methodist Hospital shut down its computer systems after an infection from the Locky strain of ransomware. Just weeks before that attack, a California hospital that was similarly besieged with ransomware paid a $17,000 ransom to get its files back. According to a recent report by Intel Security, the healthcare sector is experiencing over 20 data loss incidents per day related to ransomware attacks. The company said it identified almost $100,000 in payments from hospital ransomware victims to specific bitcoin accounts so far in 2016.Twenty data loss incidents...per day, many of which aren't disclosed and have an exponential impact on human lives and privacy. Ultimately, as other researchers have noted, it's inevitable that as not-particularly-smart devices gain market share around the world, we'll begin to see more and more attacks on vital infrastructure. Another reason why before we get busy offensively waging the cyber, we need to make damn sure existing infrastructure is protected.Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
Encryption remains a hot issue, with politicians repeatedly claiming that it allows bad people to hide bad things, although there isn't much evidence this is really a problem. More recently, WhatsApp has become a favorite target since it introduced end-to-end encryption that allegedly not even the company can decrypt. David Cameron vaguely threatened to block it, and Brazil actually tried. Against that background, the following story from the Guardian offers a welcome contrast of government officials using -- and loving -- WhatsApp, not least for its end-to-end encryption: The rise of WhatsApp diplomacy is transforming the negotiating chamber. There are countless groups of allies and virtual huddles, exchanges over policy statements and fine print, and fair amounts of banter and even emojis (Vladimir Putin is referred to by widespread use of a grey alien avatar). "You can form small groups of like-minded allies, take photos of annotated documents, ask people what they think without the whole room knowing," a senior western diplomat said. The tool is useful for communicating with allies who might not be sitting close to them, diplomats say, as well as for agreeing negotiating tactics during difficult sessions and for organising break-out huddles in a way that avoids offending those left out. The article goes on to describe some real-life situations in which WhatsApp chats offered a vital channel during diplomatic negotiations. It also notes some of the ways the app is being used, for example to make discreet requests like "please speak at the plenary in support of x" or "let's meet outside to discuss this," and the rather more dramatic "please interrupt this person." This isn't the first hint that WhatsApp is becoming an important tool for international diplomacy. Back in May of this year, a Guardian news item about an internal report into the problems within the UK's Foreign Office included the following information: The report also finds that rather than make use of specially-tailored encryption, many British diplomats reportedly use WhatsApp to discuss sensitive topics such as the bloody conflicts in Syria and Ukraine. The author of the report, Tom Fletcher, a former British ambassador to Lebanon, is also quoted in the latest WhatsApp story, where he says: The smartphone is now as essential a part of the modern diplomat's armoury as courage, patience and a strong stomach. But it is also a threat to the diplomat -- heaven forbid that leaders should start WhatsApping each other direct, without needing to go through their diplomatic envoys. That's one potential problem with the new WhatsApp diplomacy. Another is that diplomats may start to depend on the app, and take its security for granted. But as Techdirt reported back in April, WhatsApp's end-to-end encryption is not quite as secure as people might think. Moreover, if the program became the de facto tool for communicating among diplomats, a great deal of important information would be passing through it that many governments would dearly love to know. If that happens, the pressure on WhatsApp to provide backdoors to allow the authorities to eavesdrop on those conversations will become even greater. It would be relatively easy to do that: the app is not open source, so there's no way to check. Let's hope that diplomats are beginning to understand why that would be such a bad idea, and will add their voice opposing any such short-sighted moves. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
Data, even lots of it, can be useful. But it also leads to erroneous conclusions and questionable correlations. Ever been baffled by the content of a "targeted" ad? Just imagine the fun you'll have when "lol 'targeted' ad" is replaced with nearly-incessant "interactions" with law enforcement. The American Civil Liberties Union, citing reports that the Chicago Police Department used a computer analysis to create a “heat list” that unfairly associated innocent people with criminal behavior, has warned about the dangers of the police using big data. Even companies that make money doing this sort of work warn that it comes with civil rights risks. “We’re heading to a world where every trash can has an identifier. Even I get shocked at the comprehensiveness of what data providers sell,” said Courtney Bowman, who leads the privacy and civil liberties practice at Palantir Technologies, a company in Palo Alto, Calif., that sells data analysis tools. He has lectured on the hazards of predictive policing and the need to prove in court that predictive models follow understandable logic and do not reinforce stereotypes. When even the companies gathering the data are concerned about the implications, there's a problem. (One issue being: why don't they stop?) Anything that can be obtained (preferably in bulk) without a warrant will be. And it gets funneled into predictive policing software that attempts to mold disparate info into a usable whole. Lost in the shuffle are the individuals now represented by data points and algorithms. A data point located in the "wrong" neighborhood could result in surveillance backed by nothing resembling reasonable, articulable suspicion. It's not all bad, though. There are uses for aggregate data that don't create privacy concerns or fears of ever more biased policing. As the New York Times article points out, the collected data frees up resources to deal with more serious crime by contributing to traffic management and reducing the amount of data entry needed to complete routine paperwork. On the other hand, the desire to obtain any data available without a warrant is resulting in some very twisted uses of third-party records. In places like Chicago, the data-driven "wrong side of the tracks" can result in many innocent people being treated as inherently suspect. In Seattle, government agencies are hoovering up third-party records to maximize rent-seeking. The county's animal services recently sent out loads of threatening letters to pet-owning residents, warning them that failing to get their pets properly licensed could lead to $250 fines. The county was going extract money from them either way. But how did the county know who owned pets if they weren't licensed? It turns out they got their mitts on direct mail lists from stores that tracked customer purchasing habits through membership cards and the like. For the stores and the private retail environment, they're tools to more directly market consumers with goods they may want or need. In the hands of government, it becomes a lot more sinister. A woman who no longer owned a pet received one of these threatening letters and wondered what was going on. The plan: compare these third-party mailing lists to pet registrations and send threatening letters to anyone on List A but not on List B. Sure, the county claims it won't be doing any follow-up enforcement -- like in-person visits from animal control officers with their hands out -- but the damage has already been done. People who no longer have pets are being hit with letters and plenty of unregistered pet owners will never even know the county is digging through third-party data in hopes of sniffing them out. Once such government behavior becomes viewed as acceptable -- or not troublesome enough to result in losable lawsuits or massive public backlash -- it becomes the new normal. Today, the government comes for your unregistered pets. Tomorrow, it could be your children. How about a threatening letter from Child Protective Services noting that your grocery purchases suggest you are not feeding your kids with foods the government deems the most healthy, and if you don't change your behavior, you may have a little visit? It's not an absurd idea, given we're seeing food nannies in the school system meddling with lunches parents are providing to their kids. The solution would appear to be to prevent retailers from gathering so much data about their customers. But it isn't. Retailers can send as much garbage mail as they like in hopes of more sales, but all they can do is hint and beg. The government, on the other hand, has plenty of enforcement options to make unsolicited direct mail campaigns much more effective in separating people from their money. Or their pets. Or their kids. Or whatever. Permalink | Comments | Email This Story

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