posted 26 days ago on techdirt
A year ago, we noted a rather odd statement from President Obama, concerning some of the Snowden leaks. He more or less admitted that with each new report in the press, he then had to go ask the NSA what it was up to. That seemed somewhat concerning to us -- suggesting that the administration wasn't actually aware of what the NSA was up to until after it leaked to the press. Combine that with our more recent story of how James Clapper is basically ignoring the substance of President Obama's called for surveillance reforms, and you might begin to wonder who really runs the show when it comes to surveillance. And, indeed, according to a guy who knows quite well, the national security bureaucracy basically calls the shots, and the President has little to no power. That's the basic summary of an interview with Michael Glennon under the title Vote all you want. The secret government won't change in the Boston Globe. Glennon is the author of a new book called National Security and Double Government, as summarized by the Boston Globe: Though it’s a bedrock American principle that citizens can steer their own government by electing new officials, Glennon suggests that in practice, much of our government no longer works that way. In a new book, “National Security and Double Government,” he catalogs the ways that the defense and national security apparatus is effectively self-governing, with virtually no accountability, transparency, or checks and balances of any kind. He uses the term “double government”: There’s the one we elect, and then there’s the one behind it, steering huge swaths of policy almost unchecked. Elected officials end up serving as mere cover for the real decisions made by the bureaucracy. Glennon cites the example of Obama and his team being shocked and angry to discover upon taking office that the military gave them only two options for the war in Afghanistan: The United States could add more troops, or the United States could add a lot more troops. Hemmed in, Obama added 30,000 more troops. And, yes, of course, there have long been conspiracy theory books about the "shadow government" and the like, but this one's from someone who actually worked on these issues. He was legal counsel to the Senate Foreign Relations Committee and a consultant to various congressional committees, as well as to the State Department. “National Security and Double Government” comes favorably blurbed by former members of the Defense Department, State Department, White House, and even the CIA. And he’s not a conspiracy theorist: Rather, he sees the problem as one of “smart, hard-working, public-spirited people acting in good faith who are responding to systemic incentives”—without any meaningful oversight to rein them in. Basically, the story that Glennon describes is sort of an exact replica of the concerns that many people have about how lobbyists push legislators in a particular direction. While many like to ascribe nefarious intent to lobbying efforts, the reality is that oftentimes legislators don't fully understand a particular or specific area, and the people they turn to are the lobbyists. And, to some extent that's reasonable. You'd rather that regulators and legislators actually are informed about the issues they're making decisions on, but too often they don't understand those areas at all. The problem is that the "experts" who are readily available aren't unbiased purveyors of truth, but are those who have a very specific agenda. The same thing is true of government bureaucrats within the intelligence community. They're going to advise elected officials in ways that continually push and expand their own capabilities and powers, rather than limit them. And while what happens with lobbyists is often not directly publicly viewable, there can at least be some public recognition of policies and regulations that come out of those discussions. When it comes to the intelligence community, many of the results are kept entirely secret, so there's basically no pushback and no "other side" heard. The intelligence community acts as secret lobbyists for the expansion of the surveillance state, and the government basically says "okay." And that doesn't even begin to go down the road of recognizing how much of this "expansion" of the surveillance state also happens to massively benefit the private corporations that former intelligence officials jump to right after leaving the government. Glennon covers all that and more: It hasn’t been a conscious decision....Members of Congress are generalists and need to defer to experts within the national security realm, as elsewhere. They are particularly concerned about being caught out on a limb having made a wrong judgment about national security and tend, therefore, to defer to experts, who tend to exaggerate threats. The courts similarly tend to defer to the expertise of the network that defines national security policy. The presidency itself is not a top-down institution, as many people in the public believe, headed by a president who gives orders and causes the bureaucracy to click its heels and salute. National security policy actually bubbles up from within the bureaucracy. Many of the more controversial policies, from the mining of Nicaragua’s harbors to the NSA surveillance program, originated within the bureaucracy. John Kerry was not exaggerating when he said that some of those programs are “on autopilot.” And the end result is basically that elected officials don't really have the power to do anything, even if they're technically "in power." I think the American people are deluded... that the institutions that provide the public face actually set American national security policy. They believe that when they vote for a president or member of Congress or succeed in bringing a case before the courts, that policy is going to change. Now, there are many counter-examples in which these branches do affect policy.... But the larger picture is still true—policy by and large in the national security realm is made by the concealed institutions. All the more reason why Snowden's revelations were so important. They've helped expose just a tiny fraction of these policies being decided in near total secrecy by the intelligence community to further its own agenda -- leading to some much needed sunlight, finally forcing at least a tiny bit of debate into that corner of the world that thrives on being able to expand in secret.Permalink | Comments | Email This Story

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This article has been out for a few weeks now, but I've finally had a chance to read through the whole thing. Louis Menard, over at the New Yorker, has a long piece on just how messed up copyright laws are today, going over many of the same grounds we have (for nearly two decades). The piece itself is a sort of book review of Peter Baldwin's new The Copyright Wars: Three Centuries of Trans-Atlantic Battle, but basically repeats the main point: copyright law as it is today really doesn't make much sense. The first half of the article is a great look at the problems of copyright law, but unfortunately, the second half of the article goes off the rails by leaping on familiar and misleading tropes about why people feel the way they do about copyright. Still, the first half covers a number of copyright's problems quite well. Among other things, it takes on the massive orphan works problem: As it is, few creations outlive their creators. Of the 187,280 books published between 1927 and 1946, only 2.3 per cent were still in print in 2002. But, since there is no “use it or lose it” provision in copyright law, they are all still under copyright today. Patry, in his recent book, “How to Fix Copyright,” notes that ninety-five per cent of Motown recordings are no longer available. Nevertheless, you can’t cover or imitate or even sample them without paying a licensing fee—despite the fact that your work is not competing in the marketplace with the original, since the original is no longer for sale.... In the case of Motown, at least you know whom to call. In the case of many books and photographs, the rights holders are unknown; in other cases, it’s expensive to track down the heirs or the legatees or the firms, possibly no longer in existence, to whom the copyright belongs. And so, for fear of being sued and having their work pulped or otherwise erased from the universe, people avoid the risk. Patry says that the BBC has a million hours of broadcasts in its archives that cannot be used, because no one knows who holds the rights. But much of the article talks about how, even if many of these debates have gone on for decades, the internet has really brought the problems into stark contrast: Before the Internet, the social cost of this obstacle was minimal. Only a few people had the time and the inclination to travel to where they could see or listen to archived broadcasts. But today, when everything can be made available to the entire world at minimal expense, it seems absurd to hold enormous amounts of content hostage to the threat of legal action from the odd descendant. “That a vast existing cultural patrimony, already paid for and amortized, sits locked behind legal walls, hostage to outmoded notions of property, when at the flick of a switch it could belong to all humanity—that is little short of grotesque, ” Baldwin concludes. Yet the odd descendant has the law on her side. She has the power to pulp. The article makes some really great points, but also dips into some unfortunate claims. It's particularly disappointing that Menard trots out the whole "Hollywood v. Silicon Valley" trope in simplified caricatures: Let’s call the first type of business Hollywood and the second type Silicon Valley. Hollywood, along with the music industry and the publishing industry, which are the other major analog-era corporate interests, makes money by producing and distributing content. Silicon Valley makes money by aggregating other people’s content. Hollywood fears pirates; Silicon Valley fears paywalls. Silicon Valley accuses Hollywood of “monopoly” and “artificial scarcity,” and talks about the democracy of the Internet. Hollywood accuses Silicon Valley of “free riding” and “contributory infringement, ” and talks about protecting the dignity of the artist. But each side is only trying to defend its business model. But that's not even close to accurate. Because, as we've discussed at length, "Silicon Valley" has also built all sorts of new innovations and tools that have helped "Hollywood" make a hell of a lot more money -- often in ways that have little to do with copyright protection. From there, Menard pulls in a few more misleading (to sometimes wrong) tropes about the copyright fights -- including that only academics care about the length of copyright terms, and that they really don't like copyright just because it makes it harder for them to access other academic research. It also suggests (falsely) that the DMCA's "notice and takedown" process means "you can post almost anything as long as you take it down when the rights holder complains." It doesn't. At all. Menard almost entirely ignores the free speech implications of copyright law and completely skips over how copyright can be, and often is, used as a veto on innovation. The article also ends in an odd way, suggesting that freelancers should assign their copyrights to big companies "who have the muscle to protect" them. Huh? It's a disappointing end to an article that had plenty of promise in its first half. It almost feels like Menard rushed the second half, just repeating silly old stories about "the copyright wars" in trying to find a way to end the article. That's unfortunate. Given the first half, it seems like a more interesting road to have traveled would have been to explore ideas and concepts for copyright reform, and how to bring the law into the modern era, making it more current and reasonable.Permalink | Comments | Email This Story

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The Department of Justice and its underlings (the FBI and nearyl every law enforcement agency in the nation) have turned the ideal of asset forfeiture (defund drug dealers; return money to the defrauded, etc.) into a free-roaming, many-tentacled opportunistic beast, one that "liberates" any amount of "suspicious" cash from tourists, legitimate business owners or anyone else who just happens to have "too much" cash in their possession. The IRS is in on this as well. The agency doesn't need to prove anyone is guilty of anything before seizing assets. It just needs to feel that things aren't quite right. For almost 40 years, Carole Hinders has dished out Mexican specialties at her modest cash-only restaurant. For just as long, she deposited the earnings at a small bank branch a block away — until last year, when two tax agents knocked on her door and informed her that they had seized her checking account, almost $33,000. The Internal Revenue Service agents did not accuse Ms. Hinders of money laundering or cheating on her taxes — in fact, she has not been charged with any crime. Instead, the money was seized solely because she had deposited less than $10,000 at a time, which they viewed as an attempt to avoid triggering a required government report. The person whose money has been seized isn't necessarily guilty of anything. Hinders hasn't been arrested, nor does there appear to be any sort of ongoing investigation. The IRS hasn't hit Hinders with tax liens for unpaid taxes or subjected her to an audit. All it did was look at records for her deposits and decide that because none of them surpassed the $10,000 mark (which triggers automatic reporting), everything in the account must be somehow illegal. Here's the brain-bleeding explanation of IRS's civil forfeiture program. Civil forfeiture is an in rem proceeding against the property itself, not the owner of property. Civil forfeiture is a process that is separated from, and not dependent on, a criminal prosecution. Civil forfeiture can proceed administratively or judicially. Hinders never needs to be charged. In fact, she never needs to be heard from again. The IRS can seize and hold this money indefinitely and decide whether or not the $33,000 is "guilty" without any input from Hinders. To opportunistic agents, any sub-$10,000 deposit is "evidence" that the depositer is deliberately avoiding reporting requirements, rather doing so for any number of more mundane, less criminal reasons. Take this IRS seizure from last year, for example. Since he bought it in 1978, Terry Dehko has owned Schott’s Supermarket in Fraser, Michigan. His daughter, Sandy, began working at the store when she was 12 and now helps her father run it. The IRS has not argued before a court of law that Terry and Sandy have committed a crime, but that has not stopped it from seizing their entire bank account, worth over $35,000. The IRS claims that Terry and Sandy violated federal anti-money laundering laws by making regular deposits of cash in amounts less than $10,000. But the IRS has offered no evidence that money laundering has occurred. In fact, it has done nothing more than seize Dehko's money. The explanation for Dehko's deposit patterns make perfect sense, but perfect sense won't fund further IRS activity. Their insurance policy, aimed at small businesses like their grocery store, protects them from theft, but only up to $10,000. Since any dollar over 10,000 left in the store is liable to uninsurable theft, Terry and Sandy make sure their revenues are deposited in their bank account before accumulating above $10,000. Anyone nailed by an IRS seizure can fight for the return of their money, but there's nothing resembling due process here. Those choosing to do so would have to file a lawsuit intervening in the IRS's forfeiture case. In other words, the situation must be forced. Simply showing up and defending money from accusations of wrongdoing isn't enough. In fact, it isn't even a possibility, at least not in this case. Prosecutors for the Dehko case offered the them a "deal:" an implicit admission of guilt via a plea bargain (presumably on behalf of the guilty money) and the return of 20% of the seized funds. There are more stories like this. A dairy had $70,000 seized by the IRS after a string of deposits following the sale of farm equipment raised bank eyebrows. Again, prosecutors offered a pennies-on-the-dollar settlement to the couple whose assets were taken. A 27-year-old vending business, heavily reliant on cash flow, had nearly $450,000 seized. Again, "structuring" of deposits was the excuse used to justify the government's theft of earned income. The IRS civil forfeiture system is every bit as crooked as the one being abused by law enforcement agencies. Perverted incentives have demolished restraint and fairness and turned it into an extremely efficient way to stockpile cash. According to the Institute for Justice, the Department of Justice’s Asset Forfeiture Fund held $93.7 million of seized assets in 1986. In 2008, that fund was greater than $1 billion… Fortunately for the Dehkos, they won their battle against the government and had the seized funds returned. The IRS was ordered to produce proof of wrongdoing or release the funds. It chose the latter and was additionally held responsible for $71,500 in attorneys' fees. Dropping the case also allowed the IRS to walk away from the debacle without further legal examination of its civil asset seizure policies. So, while the Dehkos obtained a win, the IRS ultimately learned nothing from the experience. The fact that the average forfeiture battle racks up over $20,000 in legal fees means that more often than not, the IRS will get to keep nearly everything it seizes. 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America: land of the ass coverage policy and home of "better safe than sorry." Free and brave? Not so much. If anyone wants to know if the terrorists have won, here's another one to file under "Exhibit A: Yes, At Least A Sizable Partial Victory." When some dumbass can keeps planes from flying simply by renaming a WiFi hotspot, we as a nation cannot claim to have won the War on Terror, much less to be picking up some easy points during "trash time." An American Airlines flight from Los Angeles International Airport to London was delayed Sunday after concerns over the name of a WiFi hotspot. A passenger saw the WiFi connection, named "Al-Quida Free Terror Nettwork," and expressed concern to a flight attendant. Flight 136 was taken back to the gate and delayed until 1 p.m. Monday, American Airlines officials said. This delayed the flight for three hours. Those grounded by the quite-obviously-not-a-wireless-Al-Qaeda-hotspot were initially told it was a "maintenance problem." How fucking comforting is that? Instead of admitting to being pranked into submission by a single person, the airline instead chose to frame it as something with aa much larger potential of killing its flying customers. "Nothing to do with terrorists here, folks! Just the small chance that the plane you'll eventually be boarding may not be airworthy!" According to ABC7's report, the airline is "assessing" the situation. And, of course, "law enforcement has been notified," because that's what we do when we have no idea what to do. Someone "said" something terrorist-related, therefore law enforcement, assessments, flight delays and NOT A SINGLE COOL HEAD PREVAILING ANYWHERE. May your paranoia always be unfettered. The WiFi hotspot naming option has been routinely abused in the past, all without serious harm coming to anyone involved. The Consumerist reminds us that another dumbass delayed a Southwestern flight by naming a hotspot "Bomb on Board" -- a name more credibly threatening than the misspelled joke listed above. And let's not forget how many citizens have pranked/startled wardrivers and leeches by naming their wireless connections things like "FBI_SURVEILLANCE_VAN." Give anyone the power to name something and it will quickly gravitate towards 4th-grade-level Mad Libs. Hence why any video game in which you can name your protagonist becomes a playground for swear words and dick jokes [timesink]. It also explains why my sons' loadout presets for Call of Duty: Black Ops are named "pokemon," "pewd" and "POOP" respectively. Does anyone actually think this hotspot name indicated terrorist activity? I mean, other than the person reporting the WiFi hotspot name, the person acquiescing to the complainant's paranoia, the entire chain of command responsible for delaying the flight, the law enforcement officials who actually decided to investigate… never mind. I don't even want to know the answer. It's too depressing. Permalink | Comments | Email This Story

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A new book by Eric Lichtblau, The Nazis Next Door: How America Became a Safe Haven for Hitler's Men, apparently details how the FBI and CIA hired over 1,000 Nazis during the height of the cold war, forgiving them their past sins, so long as they might help spy on the Soviet Union. At the height of the Cold War in the 1950s, law enforcement and intelligence leaders like J. Edgar Hoover at the F.B.I. and Allen Dulles at the C.I.A. aggressively recruited onetime Nazis of all ranks as secret, anti-Soviet “assets,” declassified records show. They believed the ex-Nazis’ intelligence value against the Russians outweighed what one official called “moral lapses” in their service to the Third Reich. The agency hired one former SS officer as a spy in the 1950s, for instance, even after concluding he was probably guilty of “minor war crimes.” You can argue whether or not this moral cost-benefit analysis was reasonable, but it appears that the CIA further sought to block investigations into those Nazis for some of their war crimes -- which seems to tilt the balance pretty strongly in favor of immoral. And in 1994, a lawyer with the C.I.A. pressured prosecutors to drop an investigation into an ex-spy outside Boston implicated in the Nazis’ massacre of tens of thousands of Jews in Lithuania, according to a government official. Meanwhile, the FBI was carefully hiding those Nazis from the Justice Department (which the FBI is a part of), even though the DOJ had a department trying to find them: In 1980, F.B.I. officials refused to tell even the Justice Department’s own Nazi hunters what they knew about 16 suspected Nazis living in the United States. The bureau balked at a request from prosecutors for internal records on the Nazi suspects, memos show, because the 16 men had all worked as F.B.I. informants, providing leads on Communist “sympathizers.” Five of the men were still active informants. Oh, and then there's the fact that Hoover not only protected the Nazis, but he went after journalists who were investigating the US's hiding of those Nazis: In 1968, Mr. Hoover authorized the F.B.I. to wiretap a left-wing journalist who wrote critical stories about Nazis in America, internal records show. Mr. Hoover declared the journalist, Charles Allen, a potential threat to national security. John Fox, the bureau’s chief historian, said: “In hindsight, it is clear that Hoover, and by extension the F.B.I., was shortsighted in dismissing evidence of ties between recent German and East European immigrants and Nazi war crimes. It should be remembered, though, that this was at the peak of Cold War tensions.” Kinda thinking that we shouldn't even bother with comments on this article, because the CIA and FBI have already hit Godwin's Law.Permalink | Comments | Email This Story

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We've written in the past about the EFF's Who Has Your Back rankings, in which it looks at various internet companies to see who protects your privacy against governments and lawsuits. Now, the EFF has come out with an offshoot chart, looking at who has your back when it comes to bogus copyright and trademark demands. The only two companies that get a perfect score are Automattic/WordPress and NameCheap, as you can see on the full chart. The worst, somewhat surprisingly, is Tumblr, which scored a big fat zero out of the five listed items. Automattic's Wordpress.com and NameCheap were the only two companies to receive five out of five stars. However, two other companies were recognized for going the extra mile: Etsy, for providing educational guides, and Twitter, for publishing regular and thorough transparency reports. Overall, 10 companies did not publish adequate transparency reports, highlighting an information black hole for consumers. Additionally, four companies missed a star for their counter-notice practices—a critical procedure for restoring content that may have been taken down without cause. Twitter lost a point for not documenting the counternotice process. Etsy lost a point for failing to have a transparency report (something I'm guessing the company will do before too long). Facebook also doesn't have a transparency report -- though it does have one for government requests, so hopefully it will expand that to copyright and trademark takedown requests as well. YouTube lost points for not requiring a DMCA notice (thank you ContentID) before taking down content. Imgur also doesn't require a DMCA notice (which surprised me). The EFF's original "Who Has Your Back" effort really did help shame many companies into upping their game in protecting the privacy of users from government requests. Hopefully this new one will do the same for copyright and trademark takedowns.Permalink | Comments | Email This Story

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The "magic" of magnets have been observed for quite some time, but it's not actually an easily explained phenomenon that magnets can repel and attract in various configurations. Still, we can take advantage of this property of magnets, and create some amazing tricks of levitation that seemingly defy gravity. We could have a commercial hoverboard for kids to play with (as an actual toy) pretty soon, and we could potentially have some other even cooler devices based on "hover" technology. If only we could get a Mr. Fusion device together.... The Hendo hoverboard is a product available for pre-order (just $10,000!) -- and it can hover on non-ferrous metal surfaces. There have been pranks about Back To The Future hoverboards before, but this device is patent pending and appears to work in demonstrations. According to the patent application, it appears to rely on motors for spinning a Halbach array of magnets to maintain controlled magnetic levitation (similar to the Inductrack concept) -- and could be useful for isolating buildings from earthquakes. [url] If you want to build your own levitating bed (and float like a frozen-in-carbonite Han Solo), just follow a few easy steps. And be VERY careful handling those super strong magnets. [url] The Northeast Maglev company wants to connect NYC and DC with a high speed train that could be built by 2024. A floating train project crossing that corridor would costs tens of billions, and it needs to overcome plenty of bureaucratic/political hurdles as well. But wouldn't it be nice to get from NYC to Washington in about an hour? [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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The government appears to have located the "second leaker." Snowden obviously still remains out of reach in Russia, but the other leaker -- one hinted at over the past few months and confirmed in Laura Poitras' Snowden documentary "Citizenfour" -- seems to have been identified by the FBI. Michael Isikoff at Yahoo News breaks the news. The FBI has identified an employee of a federal contracting firm suspected of being the so-called "second leaker" who turned over sensitive documents about the U.S. government's terrorist watch list to a journalist closely associated with ex-NSA contractor Edward Snowden, according to law enforcement and intelligence sources who have been briefed on the case. The FBI recently executed a search of the suspect's home, and federal prosecutors in Northern Virginia have opened up a criminal investigation into the matter, the sources said. Once again, we're limited to anonymous "sources" and other unconfirmable information, but it seems the target of the raid was behind the leak of documents related to the federal government's terrorist watchlist program, published by The Intercept on August 5th. This was the same story the government attempted to defuse by leaking an official version to the Associate Press shortly before the Intercept's article went live. Shortly after publication, government officials began to openly speculate about the existence of a second leaker, something others had been hinting at for weeks after a run of leaked documents at German news site Der Spiegel, none of which were attributed to Ed Snowden. If the feds have their man, we'll get to see whether this administration will continue its record-setting pace for prosecuting whistleblowers. A hint dropped by one unnamed official suggests the DOJ may not be quite as enthusiastic about leaks punishment as it once was. One source, who asked not to be identified because of the sensitivity of the matter, said there was concern "there is no longer an appetite at Justice for these cases." Maybe not, but it's highly unlikely this case will slide if the leaker is caught. First off, there have been no statements from anyone with the requisite amount of power that the US government has softened its stance on Snowden's leaks. As far as they're concerned, he's still a criminal. The documents leaked by the second leaker may not have been as sensitive as those leaked by Snowden, but they still contain information the government wished to withhold. Add to that the ongoing prosecution of journalist James Risen and the recent sentencing of Chelsea Manning, and you still have an environment highly hostile to leaky government employees. Permalink | Comments | Email This Story

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The big Jewel v. NSA case is still moving forward. This is the pre-Snowden lawsuit against the NSA over its tapping of fiber optic cables. We now understand that this was part of what the NSA refers to as "upstream collection" under Section 706 of the FISA Amendments Act, but most of us recognize it for what it really is: and that's snooping on tons of internet backbone traffic in the hopes of finding something interesting. This broad "upstream" collection is immensely problematic, and the Justice Department has bent over backwards time and time again trying to kill the case -- without success so far. The EFF has recently filed its latest reply brief (pdf) in support of its motion for a partial summary judgment, responding to the government's (not surprising) opposition (pdf). The EFF has a clear summary of its arguments on its blog, which is worth reading. Here are two key arguments. First, making it clear that snooping on internet traffic is a form of "seizure" raising the 4th Amendment question: We explain that the act of copying entire communications streams passing through splitters at AT&T facilities is an unconstitutional seizure of individuals’ “papers” and “effects.” This should be obvious—our “papers” today often travel over the Internet in digital form rather than being stored in our homes—but the government contends that unless it physically interferes with individuals’ possession of some tangible property, it cannot “seize” anything. This is not so. If it were true that conversations could not be “seized” except by taking possession of physical objects, all warrantless wiretapping (where “recording” is a form of “copying” communications) would be constitutional. This argument is especially troubling in the Internet age, since the government appears to be claiming that it could make a copy of all Internet communications as long as it did so without physically taking possession of any storage media. No way. The Fourth Amendment doesn’t protect just tree pulp or hard drives. It protects your ability to have control over who sees the information carried in your papers and effects. And by copying everything, the government is plainly “seizing” it. And also, hitting back on the ridiculous "special needs" argument that the DOJ really likes these days: The government's dangerous “special needs” argument, which apparently the Foreign Intelligence Surveillance Court of Review adopted with regard to the targeted surveillance objected to by Yahoo!, is something the Internet public needs to be aware of. The government is essentially claiming that because there are bad foreign actors online, it should get a free pass from complying with the Constitution whenever it claims a “foreign intelligence” need, and that it gets to do so regardless of how many innocent Americans may be caught up in its net. Or to put it more bluntly, the government is basically saying that its intelligence needs should trump the Constitution, and that no one using the Internet should be able to have a private conversation or engage in private web surfing or information gathering without the government having access. However, there's another separate filing which the EFF's blog post just mentions in passing, but which I think may be even more interesting. It appears that, in addition to its initial opposition brief, the government also filed some other information in secret, raising serious due process questions. Thus, EFF is looking to strike those secret filings (pdf) from the record: The filing of an ex parte, in camera memorandum of points and authorities is improper. The government has submitted the classified declaration of “Miriam P.”, and there is no legitimate reason for the government to supplement that secret evidence with the aid of a secret brief that it has privately provided to the Court. The government has repeatedly argued its assertion of the state secrets privilege in public briefing throughout the history of this case. Moreover, to the extent the secret brief argues the merits of plaintiffs’ Fourth Amendment claims, it has no possible justification at all. The government has not attempted to demonstrate that any possible good cause exists that could justify the extraordinary violation of due process created by its submission of private, secret legal argument—let alone that such good cause exists here. As the filing notes, even in cases where parties are allowed to file documents in secret, they first need to effectively get permission from the court, and the DOJ didn't bother -- it just "nonchalantly" waltzed in and gave the court the documents in secret. Even if a secret submission had some legitimate basis, the government was required to make an administrative motion pursuant to Local Rule 7-11 seeking leave to file a secret ex parte, in camera brief before it filed any such brief. On such a motion, the government would have had the burden of demonstrating both legal authority and good cause to support its secret filing. Instead, the government nonchalantly filed its secret ex parte, in camera brief here as if it were a matter of right, depriving plaintiffs of any opportunity to oppose the motion. Plaintiffs would have opposed any such motion. Because the government’s conduct prevented plaintiffs from objecting prior to the filing of the government’s secret brief, plaintiffs now move to strike it after the fact. Plaintiffs are aware of no statute, rule, or other authority permitting the government to file legal argument to which plaintiffs do not have access and to which plaintiffs cannot reasonably respond, as it has done here, nor is there any good cause for filing a secret, ex parte, in camera brief here. Although there is authority allowing the filing of an ex parte, in camera official factual certification in support of a claim of state secrets privilege, that authority does not permit the government’s secret legal briefing here. And in fact, there is good cause to reject the government’s filing: the government’s filing of a secret brief is contrary to the state secrets privilege doctrine and to fundamental notions of due process.... Yet again, we see how the government handles these kinds of cases. Deny, obfuscate and hide. It's as if the DOJ has such a weak argument that it really doesn't want to make it publicly, because it knows it will lose.Permalink | Comments | Email This Story

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A few months ago, we wrote about the strange saga of self-described "anarcho-capitalist" Stefan Molyneux more or less admitting that he and a colleague named Michael DeMarco had filed questionable DMCA notices in response to some critical YouTube videos. DeMarco and Molyneux defended the use of the DMCA by arguing that the videos involved doxxing some Molyneux supporters. While that may have been true of some, it did not appear to be the case with one account, from so-called "Tru Shibes," whose videos were pretty focused on criticizing Molyneux himself. Either way, we found it especially bizarre that someone so against "state violence" of any kind (and who had spoken out against intellectual property entirely) would then resort to abusing government-run copyright law to silence criticism. Even worse, Molyneux flat out admitted (on a Joe Rogan podcast) that he wasn't using the DMCA for any copyright-related purpose. In that post, I noted that it seemed unlikely to lead to a lawsuit, but Molyneux had probably opened himself up to a DMCA 512(f) claim for "materially misrepresenting" a copyright claim. Apparently, I underestimated the person behind the Tru Shibes account, because late last week, she sued Molyneux (pdf) with a 512(f) claim, and a defamation claim as well. The plaintiff, who only identifies herself as "J. Raven," describes in detail the critique videos she had created, challenging some of Molyneux's statements. But the overall point of the lawsuit is to highlight the (admitted) abuse of the DMCA. The defamation claim is in response to Molyneux implying that Tru Shibes was engaged in doxxing Molyneux supporters. The filing details how Molyneux/DeMarco clearly did not use the DMCA for copyright purposes, but to silence a critic. It further details how even if there was a copyright claim, Tru Shibes' use was clearly fair use. And that brings us to the 512(f) claim: On information and belief, Defendants knew that the critique videos did not infringe their copyright when they sent YouTube the takedown notices. Defendants acted in bad faith when they sent the takedown notices, knowingly and materially misrepresenting that they had concluded the critique videos were infringing. In the alternative, Defendants should have known, if they had acted with reasonable care or diligence, that the critique videos did not infringe Defendants’ copyright on the date it sent YouTube its complaints under the DMCA. Then there's the defamation claim: Plaintiff is informed, believes, and thereon alleges that Defendants published false, non-privileged, and defamatory statements regarding Plaintiff with the intent to injure and damage Plaintiff’s reputation and to interfere with and to disrupt Plaintiff’s existing and prospective relationships. The published statements falsely accused Plaintiff of doxing Defendant Molyneux’s listeners and/or other people. Plaintiff is informed, believes, and thereon alleges that Defendants expressly attempted to damage Plaintiff’s reputation in order to punish Plaintiff and disrupt and cause damage to her personally and to her Tru Shibes YouTube channel. Frankly, the defamation claim is pretty weak, and I'd be surprised if that gets anywhere. There could be some argument over whether or not Tru Shibes / J. Raven is a "public figure" (higher standard for defamation), but the fact that she's producing videos on YouTube probably makes her a public figure for this purpose. That would mean that she would need to show that Molyneux's statements about the doxxing were done with "actual malice." It's not clear that's the case, as it seems more likely he was just using the doxxing excuse to try to explain why he and DeMarco had used the DMCA. Where the case is a lot more interesting, of course, is the 512(f) claim. As we've discussed repeatedly, 512(f) claims are really difficult, because the courts have interpreted that clause very, very narrowly. However, here you have a case where the person using the DMCA has basically gone out of his way to admit that he's abusing the DMCA for non-copyright reasons to silence speech he doesn't like. If this can't win a 512(f) claim, it would prove pretty conclusively that 512(f) is completely broken and needs to be fixed.Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Over the weekend, it came out that two giant pharmacy chains, Rite Aid and CVS, had started blocking Apple Pay, the massively hyped new payment system from Apple that has received much praise for its ease of use. The product had worked for about a week before the two companies started blocking such near field communication (NFC) payments (which also takes out other NFC payment options like Google Wallet). While Rite Aid gave a vague and slightly ridiculous explanation -- that it is "still in the process of evaluating our mobile payment options" -- pretty much everyone knows the truth. A bunch of retailers, led by Walmart, have been creating their own mobile payment system called CurrentC, which cuts out the credit card companies. But, it also builds in all the tracking and spying features of store loyalty cards, expanded across all merchant partners. Apple Pay lets people remain anonymous. In short: CurrentC lets merchants (1) cut out credit card transaction fees and (2) get more and more data on shoppers. No wonder they want to block out other options. But this isn't the start of such fights. Last year, mobile carriers like T-Mobile, Verizon and AT&T sought to block Google Wallet in favor of a similar consortium of mobile operators, looking to create their own NFC payment system, which was unfortunately named ISIS until world events led the consortium to change its name to Softcard. All of these moves should be concerning. They're clearly not being done with the consumer in mind. Nearly everyone who's played with Apple Pay has agreed that the system is a huge leap ahead for mobile payments in terms of ease of use. Instead, we're seeing giant organizations looking to team up to keep competitors out of the market. At the very least, this should raise serious antitrust issues. But it also demonstrates, in a different sphere, why net neutrality is such a concern. When you have large companies that can effectively collude to block or kill certain powerful and useful apps and services, it hinders and blocks important innovations, leaving consumers significantly worse off. Not only are they left with fewer choices and lower quality apps and services, but it also pushes consumers into services -- like CurrentC -- that take away their privacy.Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Another argument for default phone encryption: to keep criminals from accessing your personal photos and sharing them with others. CHP Officer Sean Harrington, 35, of Martinez… confessed to stealing explicit photos from the cellphone of a second Contra Costa County DUI suspect in August and forwarding those images to at least two CHP colleagues. The five-year CHP veteran called it a "game" among officers, according to an Oct. 14 search warrant affidavit. That this criminal (and his criminal cohorts) happened to wear a uniform makes him no less of a criminal. The difference here is that the phone containing the photos wasn't stolen by a criminal but rather seized during a DUI arrest and accessed during booking. [T]he investigation began with a single incident: Harrington's conduct during the Aug. 29 arrest of the San Ramon woman. The woman discovered that photos had been stolen from her phone five days after her release, when she noticed on her iPad that the photos had been sent to an unknown number. A record of the messages had been deleted from her iPhone, but the phone had been synced to the iPad. In his investigation, Holcombe compared video surveillance and time-stamped text messages from the woman's phone and determined Harrington was in possession of the woman's phone at the moment the photos were forwarded. The woman -- who registered a blood-alcohol level of 0.29 percent, more than three times the legal limit -- was being processed in the Martinez County Jail when the photos were stolen, according to court records. Not an isolated incident. Officer Shawn Harrington called it a "game." Harrington says other officers at the Dublin precinct routinely distributed pictures from phones of female arrestees. Images were forwarded to other officers and "non-CHP individuals." Court documents also describe a second incident in which Harrington forwarded images from a DUI arrestee's phone while she was being x-rayed. Encryption by default keeps criminals out of people's phones, even the criminals that hide behind uniforms and the color of law. The same goes for the warrant requirement recently ordered by the US Supreme Court. In a typical DUI arrest, there's really no reason for a cop to be going through the suspect's phone. Evidence of drunk driving is usually contained within the arrestees themselves, not their phones. At best, any time a cop does this, it's a fishing expedition for bigger charges. At worst, it's Harrington and his complicit bro cops, passing around nudie pics just because they can. Access and ability are the worst enablers. When cops complain about falling behind in the tech race while arguing against warrant requirements and encryption, one wonders whether this isn't part of the "problem." It's not so much that the criminals have gotten smarter than the cops. It's that the phones have. The incidents leading to Officer Harrington's arrest both created digital paper trails leading back to the California Highway Patrol. The minimal effort made to cover his tracks wasn't enough. Maybe this is why some cops fear the relentless forward march of technology: covering up misconduct has never been harder. Going beyond the relation of these incidents to both search warrants and encryption-by-default, this episode of casual power abuse also implicates another hot button topic located at the intersection of policework and technology: revenge porn. Scott Greenfield points out a couple of flaws in the plan to criminalize revenge porn, both highlighted by Officer Harrington and his coworkers' abuse of arrested citizens. An aspect of the push for new laws criminalizing intimate conduct that hasn’t been given much attention is the underlying assumption that if such laws are enacted, they will not only be enforced, but they will be enforced by law enforcement with a level of trust and respect for the delicate subject matter and the sensibilities of the victims. Well, these CHP officers sort of ruined that. Not to paint cops with too broad a brush, but, ahem, some of them aren’t a whole lot better than those “frat boys” or MRAs you think so poorly of. In fact, some are pretty awful when it comes to respecting the physical integrity of female suspects, trading off sex acts for arrest because they can. And so your grand scheme to save the internet from angry males bent on revealing the private, intimate images of women, is to turn to the guys who steal private, intimate images of women and share them amongst themselves? So, there's that. And that's on top of the nearly-universal complaint that police officers don't take sexual assualt complaints seriously enough. Incidents like these aren't going to encourage more victims to step forward or give them the confidence needed to pursue wrongdoers. At his point, the local PD look like just another place to be victimized. Going beyond the misconduct and abuse, there's the blind spot advocates of criminalizing revenge porn continue to induldge: the assumption that turning something into a crime will be a massive deterrent. The idea that creating a crime will serve as a disincentive for people to post intimate images on the internet may make a lot more sense in theory than it does in practice. Of course, maybe you trust that the “new professionalism” will protect you from the ravages of improper distribution of images. But then again, it didn’t stop the California Highway Patrol cops from doing so, even though it was clearly illegal for them to steal the images off suspects’ cellphones to pass around as part of their game. If those on the inside are not appreciably "better" than those on the outside, then incentives and deterrents mean nothing. This abuse may be limited to a few California peace officers, or it may be far more common that any law enforcement agency would like to admit. (The CHP has already issued a statement basically declaring this to be completely isolated to its Dublic precinct, rather than the more widespread "game" Officer Harrington alleges it to be.) The underlying number of abusive incidents doesn't matter (much). This incident -- isolated or not -- just provides more ammo for those pushing encryption and warrant requirements. Law enforcement should need to make an effort before obtaining access, preferably an effort that creates a paper trail. For those pushing revenge porn laws, this incident should temper expectations. Chances are it won't, not because it may not be indicative of the general law enforcement mentality, but because many of those advocating this sort of legislation tend to value emotional arguments over pragmatic reasoning. A deterrent is only as solid as those enforcing it. And if the enforcers are willing to casually violate existing laws as part of a "game," there can be little hope that they're the best equipped to pursue revenge porn law violators. Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Nine years ago, the US Supreme Court ruled in the Grokster case in favor of the movie studios, effectively expanding copyright law to include an "inducement" standard that is not present in the actual text of the law (in fact, Congress had just rejected an attempt to add some inducement language to copyright law in the form of the INDUCE Act). A big part of the reasoning by the Supreme Court was to pull from the inducement standard that was found in patent law, and say it applies to copyright law: For the same reasons that Sony took the staple-article doctrine of patent law as a model for its copyright safe-harbor rule, the inducement rule, too, is a sensible one for copyright. We adopt it here, holding that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. It's worth noting that the lawyer who represented the studios in the Grokster case was... Donald Verrilli, a favorite lawyer of both the MPAA and RIAA in cases that involved expanding copyright law. After President Obama was elected, Verrilli was tapped for the Justice Department and then to be Solicitor General -- basically the White House's lawyer for the Supreme Court. Given all that, it's perhaps no surprise, even if it's disappointing, to see that Verrilli is still pushing to massively expand the nature of inducement. In a long and ongoing patent infringement case, Commil v. Cisco, the appeals court for the federal circuit (CAFC) ruled last year that the lower court had erred in jury instructions concerning whether or not Cisco was guilty of "inducing" patent infringement, because the jury instructions said that Cisco could be guilty since "Cisco knew or should have known that its actions would induce actual infringement." CAFC said that the "should have known" part was problematic, because that's a negligence standard which isn't appropriate here. Commil appealed on that point (there are other points being appealed, but let's stick to that one). Back in May, the Supreme Court asked Verrilli if he wanted to weigh in, and a few weeks ago he did. Take a guess what he argued? Yup. He argued that the Supreme Court should take the case and overturn the CAFC ruling (something we normally appreciate, but not this time), as he apparently believes a very broad definition of inducement is absolutely fine. That this would further help a bunch of his former clients goes unstated. The court of appeals erred in holding that a defendant’s good-faith belief that the patent in question is invalid is a defense to inducement liability under Section 271(b). That holding is inconsistent with the Patent Act’s text and structure, and it may undermine Section 271(b)’s efficacy as a means of deterring and remedying infringement. This Court’s review is warranted. Got that? That's Verrilli, using the power of the US government behind him, to argue that you can still be found guilty of "inducing infringement" even if you have a "good faith belief" that the underlying claim is totally invalid. The filing relies heavily on a different case, the Global-Tech v. SEB, which had found that in order to induce infringement you had to actually know that the action was patent infringement. By any rational discussion, that ruling should support Cisco's argument, that a good faith belief in invalidity shouldn't lead to inducement. But Verrilli spins in the other way. As explained above, Global-Tech does not resolve whether the defendant must know in addition that the induced conduct actually infringed the patent. But regardless of how that question is ultimately decided, Section 271(b) neither requires knowledge of the patent’s validity nor suggests that a good-faith belief in invalidity is a proper defense. The inducee’s unauthorized performance of all steps of a patented method constitutes "infringement," even if the patent is ultimately found to be invalid. Thus, even if Section 271(b) is held to require proof that the defendant knew the induced conduct would constitute actual "infringement," the defendant’s good-faith belief in the invalidity of the patent would not suggest that such knowledge was lacking. Even more unfortunately, Verrilli attacks the point that CAFC makes that you can't infringe on an invalid patent. CAFC noted "it is axiomatic that one cannot infringe an invalid patent." Nuh-uh, claims Verrilli. Of course you can infringe on an invalid patent: A patent is infringed, regardless of its validity if the defendant has practiced all of its elements without authorization. He says all invalidity does is "preclude liability from that infringement." Got that? Even if the patent is totally invalid, you can still infringe on it, you just can't be held liable for it. Welcome to upside down world -- where infringement is the standard, and not infringing on an invalid patent is some sort of exception or defense against liability. There's a lot more in there, but he seems particularly upset that the CAFC ruling might actually lead to more defendants pointing to a good faith belief that they weren't infringing as a defense (and even cites the Grokster case). Instead, it seems he (and by his voice, the power of the US executive branch) believes that even if you're totally sure that a patent is invalid, you can still be found guilty of inducing infringement of it. If his theory is true, it actually seems like a huge indictment of just how ridiculous patent law is that such a result is considered possible, let alone reasonable.Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Way back in 2006 -- not all that long after video sites like YouTube and DailyMotion began -- we raised the simple question: is embedding infringing content infringing itself? We noted how problematic it was to argue that embedding was infringing, while also noting that it was far from a settled issue. Over the years since then, the issue has come up many, many times. Viacom raised it against YouTube. Bloggers got accused of infringement just for embedding a YouTube video. The MPAA went after sites for embedding videos. And, more recently, with the rise of "streaming" sites, many sites targeted for takedowns or domain seizures don't host any content at all, but merely embed from other sites. But still, that legal question has been in limbo: is it really infringing to merely embed some content that is hosted elsewhere? Two years ago, in the 7th Circuit appeals court, Judge Richard Posner somewhat vehemently rejected the idea that embedding was infringing in the Flava Works case (though, for slightly odd legal reasons). Around the same time, there was a court case in the Netherlands that went the other way, saying that embedding could be infringing. TorrentFreak, however, now lets us know that in an important ruling from the EU Court of Justice (responding to a request from a German court), it has been declared that, under EU law, embedding is not infringing. The Court argues that embedding a file or video is not a breach of creator’s copyrights under European law, as long as it’s not altered or communicated to a new public. In the current case, the video was already available on YouTube so embedding it is not seen as a new communication. “The embedding in a website of a protected work which is publicly accessible on another website by means of a link using the framing technology … does not by itself constitute communication to the public within the meaning of [the EU Copyright directive] to the extent that the relevant work is neither communicated to a new public nor by using a specific technical means different from that used for the original communication,” the Court’s verdict reads. This raises an awful lot of questions about the efforts by law enforcement to completely shut down streaming sites, most of which don't host content of their own at all. Considering how many of the "rogue" sites that the industry loves to attack as being evil and insists must be shut down do nothing more than embed, it will be interesting to see what comes next. If I had to guess, industry folks and the City of London Police will keep taking down those sites, and many won't bother fighting back. But it seems like if a few sites really fought back there could be some interesting legal rulings in response.Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
The ACLU FOIA'd up some guidelines for Amtrak staff concerning how they judge whether or not passengers are "suspicious" in terms of being "indicative of criminal activity" and the list seems fairly broad: Unusual nervousness of traveler Unusual calmness or straight ahead stare Looking around while making telephone call(s) Position among passengers disembarking (ahead of, or lagging behind passengers) Carrying little or no luggage Purchase of tickets in cash Purchase tickets immediately prior to boarding Radley Balko takes this list and then compares it to a list put together by James Bovard concerning what the courts have said is conduct that shows "reasonable suspicion" for law enforcement to dig deeper: Being the first person off a plane Being the last person off a plane Someone authorities believe has tried to blend in to the middle of exiting passengers Booking a nonstop flight Booking a flight with a layover Traveling alone Traveling with a companion People who appear nervous People who appear “too calm” Merely flying to or from a city known to be a major thoroughfare in the drug pipeline The message is pretty clear: everyone is a suspect. And anything you might do to look not like a suspect is also suspicious. In fact, you're going to be pretty hard pressed not to look suspicious under these kinds of rules, which is kind of the point. Part of the problem is the myth out there that there's a legitimate ability to spot "suspicious" people. Sure, there are some extreme cases where people act strange before committing a criminal act, but the idea that you can scan a group of people and spot the people planning out some sort of criminal activity is a concept greatly exaggerated (often by Hollywood), but it inevitably leads to this situation where law enforcement can more or less pick and choose when they suddenly think you're "acting suspicious."Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
Our top comment on the insightful side this week comes all the way from last week's comments post, where the question of who gets the benefit of the doubt between Kim Dotcom and the government was tossed around. Lots of you agreed with one anonymous commenter who outlined what they saw as a critical distinction: But only one side has been consistently caught outright lying about things regarding the case. And that is the side that is supposed to uphold the rule of law. And when those who are supposed to uphold the rule of law ignore it, then they're criminals. For second place, we head to our post that was not about GamerGate, where node was one of several people who dropped in to pay us a kind compliment for our coverage: For an article that's *not* about GamerGate, it's actually one of the better articles written on the subject. For editor's choice on the insightful side, we start out with Alien Rebel, who saw our post criticizing the Copyright Alliance's Sandra Aistars and decided to provide a few more details: Introducing Sandra Aistars at these conferences as simply the "Executive Director of the Copyright Alliance" doesn't cut it. Her title should include considerably more pedigree. When you know her past, having Sandra Aistars speak about copyright is like having a BP exec talk about environmental safety. Her Bio / Intro should be more along these lines: Sandra Aistars, formerly a lawyer and registered lobbyist at Wiel, Gotshal & Manges, where she represented legacy IP interests; former Vice President and Associate General Counsel at Time Warner Inc.; cleared advisor to the USTR on ACTA, while Time Warner VP; currently reigning Executive Director of the Copyright Alliance, a tumor on the backside of the Nickles Group LLC, a lobbying firm serving COMCAST, Intellectual Ventures, Koch Industries, and various other fossil fuel industry clients. And next, we've got an anonymous response to a snide comment that suggested stifling derivative works like The Wind Done Gone is all about protecting artists: Margaret Mitchell has been dead for 65 years. How do you protect a dead person? Over on the funny side, for first place we return to the non-GamerGate post, where another anonymous commenter played off our pre-emptive defence against hypocrisy accusations: What a bunch of hypocrites. (Now off to read the article). And for second place we've got yet another anonymous comment, this time on China's maturation into a huge patent troll: Damn those Chinese for copying our trolling techniques! For editor's choice on the funny side, we start out with a response to the departing EU Digital Commissioner who commented that "These are two Europes that rarely talk to each other. Two Europes that hold back all of Europe because they are not in sync." Michael knew just why that might be the case: ...because the sync license was too f***ing expensive. And finally, since the anonymous commenters were in top form this week, we'll end with one more — a simple but appropriate thought about the absurdist legal comedy du jour: Roca is filling the hole that Prenda left in my life. That's all for this week, folks! Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
Five Years Ago It seems like there were a lot of shifting opinions this week in 2009. Media analysts began to realize that charging for online news was almost surely a losing proposition; Gartner was finally realizing that social networking at work isn't so bad; despite an anti-piracy "education" campaign, people in Sweden were becoming less and less concerned about file sharing — and, indeed, talk about the "death of file sharing" at the time was clearly

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posted 29 days ago on techdirt
For this week's awesome stuff post on interesting crowdfunding projects, we'll take a look at three separate projects that take the classic idea of a skateboard, and try to do something... different with them. The Chargeboard Lots of people complain about cell phones running out of batteries, so some guy over in Amsterdam figured why not slap some dynamos on some skateboard trucks, add a powerbox and a connection, and boom, you've got the Chargeboard -- a skateboard that will powerup your phone while you ride. Just, uh, try not to kick up any rocks into the face of the phone, I guess... Emery Skatebench Yes, the the Emery Skatebench is a bench made out of a skateboard deck -- which is not an entirely new concept, but the main differentiator here is also using skateboard wheels as the feet of the bench. The wheels can easily be locked if you want the bench to not move -- or unlocked if you want it to roll (though I would imaging trying to skate on it is not recommended. SkatE-Pods The SkatE-Pods are skateboard-like electric vehicles -- and you can add a handlebar and make it into an electric scooter as well. That's it for this week -- go outside and ride around on something with wheels...Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
We've written a number of times about the strong, principled stand of Australian ISP iiNet for the rights of its consumers. iiNet was the ISP that was handpicked by Hollywood and the US State Departmenet to be the target of a "test" legal attack, trying to force ISPs to spy on users and become copyright cops. iiNet was targeted because Hollywood felt that the company wasn't large enough to fight back, but was big enough to get noticed. Hollywood miscalculated on one-half of that equation: iiNet fought back. And it fought back hard. And it won. And then it won again. And then it won again, in a fight that Hollywood is still licking its wounds over (and trying to undermine with new laws). iiNet has also fought back against data retention rules. And now it's standing up again -- this time against copyright trolling. In particular, against copyright trolling from Voltage Pictures over the film Dallas Buyers Club -- which has been used in questionable copyright trolling efforts in the US for a while now. Apparently, the folks behind that effort are dipping their toes in the water in Australia, and iiNet put its foot down, refusing to roll over and hand over information. It's not -- as some people assume -- because iiNet supports copyright infringement: We don’t support or condone copyright infringement. In fact, our contract terms require that our customers must not use our service to commit an offence or infringe another person’s rights – this includes copyright infringement. We also have a policy that applies to people who infringe the law. It might seem reasonable for a movie studio to ask us for the identity of those they suspect are infringing their copyright. Yet, this would only make sense if the movie studio intended to use this information fairly, including to allow the alleged infringer their day in court, in order to argue their case. Rather, it's because iiNet's executives aren't idiots, and they know exactly what's going on here. It's not about stopping infringement, it's about copyright trolling, which iiNet uses the more polite term for: "speculative invoicing." Speculative invoicing, as practiced overseas, commonly involves sending intimidating letters of demand to subscribers seeking significant sums for an alleged infringement. These letters often threaten court action and point to high monetary penalties if sums are not paid. Our concerns with speculative invoicing by Dallas Buyers Club in Australia include: Users might be subject to intimidation by excessive claims for damages, as made by Dallas Buyers Club in other countries. Because allegations of copyright infringement are linked to IP addresses, the alleged infringer could be incorrectly identified if details of the account holder were revealed. For example, the relevant IP address could have originated from a person in a shared household, an individual visiting a household which has open WiFi, or a school, or an Internet cafe. Because Australian courts have not tested these cases, any threat by rights holders, premised on the outcome of a successful copyright infringement action, would be speculative. iiNet fully admits that it may eventually lose and have to hand over the names, but that it worries that a broad ruling will "open the floodgates" to further copyright trolling in Australia, and that it believes this will lead to Australians "being intimidated to pay exorbitant amounts in an attempt to avoid improbable litigation." This looks like it should be another iiNet legal case to pay close attention to.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
Astronauts might hibernate on the way to Mars, but they'll eventually need to wake up and eat something. Astronaut food isn't just freeze-dried ice cream and tubes of mashed up mystery meat. Even though microgravity can adversely affect a person's sense of taste, that doesn't mean astronauts should be expected to live on endlessly dreary meals. Here are just a few links on space foods that astronauts might enjoy. What foods would you crave if you were isolated from the rest of humanity on another world? Nutella and Spam were on the menu in a simulated Mars mission that studied what astronauts might want to eat. [url] Kimchi is a fermented cabbage dish that Korean astronauts won't want to leave behind when traveling in space. Millions of dollars and several years were spent creating a space-worthy version of kimchi that wouldn't offend other astronauts but still serve as a Korean comfort food. [url] Martian soil could actually be suitable for growing crops. This conclusion is based on "artificial Martian soil" made from volcanic soil from Earth, so we might want to get some real Martian soil samples to make sure (before anyone relies on Martian farmland for food). [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
The whole DRM for ebooks effort is still pretty braindead all around. It's amazing to me that everyone hasn't realized what the music industry figured out years ago (after many earlier years of kicking and screaming): DRM doesn't help the creators or the copyright holders in the slightest. It pisses off end users and tends to help give platform providers a dominant position by creating lock-in with their users. Time and time again we see copyright holders demanding DRM, not realizing that this demand actually gives all the leverage to the platform provider. And, of course, there are all the technical problems with DRM, from making "purchased" content disappear once DRM servers are turned off, to making it more difficult to actually use legitimately authorized content, to the fact that DRM tends to lead to privacy and security problems as well. A few weeks ago, Nate Hoffelder discovered that Adobe's ebook reader, Digital Editions 4, was spying on your ebooks, collecting a ton of information about them, and then uploading it all to Adobe's servers in an unencrypted format, potentially revealing a lot of information about users of the product. Adobe came out with a ridiculously mealy-mouthed response that clearly had been worked over by a crisis team PR person, when what it should have done is say, "Uh, we screwed up." Now, a couple of weeks later, Adobe has quietly updated Digital Edition, complete with encryption... and with greatly reduced snooping. It no longer does anything on non-DRM'd ebooks, only contacting the server for DRM'd books (which, as explained, is a dumb idea, but...). So, Adobe has corrected the egregious errors of its original snooping (though, frankly, the company should also (1) apologize to the public and (2) thank Hoffelder for pointing out the company's crappy practices). Hoffelder goes even further, arguing that what Adobe should really do is stop the data collection entirely: This is less a case of a company screwing up in supporting users than it is one of a major tech company grabbing more user info than is required and then, when they are caught, trying to write it off with a “My bad” and a promise to add encryption. That is entirely the wrong response. What they should have said was that they would stop the spying, not that they would make it more difficult for the world to listen in. From all appearances, the real problem here is... DRM. Adobe's designed a DRM system that requires a server check-in to make it work. This is dumb for a variety of reasons, and also means that when -- inevitably -- the server goes away, those "purchased" works are likely to disappear as well.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
Former NSA head Keith Alexander continues to draw the sort of attention he probably hoped he had left behind by resigning his post. His questionable business venture -- a private banking security firm seemingly dependent on patents and methods polished during his tenure at the NSA -- has drawn pointed questions from legislators and a second glance from the internal ethics apparatus of the intelligence agency. Alexander apparently thought it would be fine for him to use the talents of the NSA's current Chief Technology Officer, Patrick Dowd, for his new private venture. You see, Alexander didn't want the country to lose a bright spy mind, but didn't really want his own IronNet Security firm to go without Dowd's talents either. So he compromised. The country could have Dowd full-time as long as he could spend 20 hours a week securing banks with Chief Keith. Due to the extra level of scrutiny being directed at everything NSA-related, the agency decided to take another look at the this unholy unethical alliance. It didn't necessarily not like what it saw, but it wasn't absolutely enthralled with it either. But there will be no official statement forthcoming. Alexander has called the whole thing off. On Tuesday, Alexander said: "While we understand we did everything right, I think there's still enough issues out there that create problems for Dr. Dowd, for NSA, for my company," that it was best for him to terminate the deal. "Everything right" is apparently the equivalent of basically every other current and former intelligence official interviewed stating, "we've never heard of such a thing," and "pretty much a conflict of interest," etc. In other news, Alexander's recently disclosed ("disclosed" pronounced "forced out of the NSA's clutches by journalist Jason Leopold's lawsuit") financial statements are gathering a bit more attention as well. As I noted here, there were some questionable aspects about Alexander's investments, some of which related to government contractors, but nothing that screamed financial impropriety. The conclusion I reached was that the most surprising aspect was the NSA's adamant refusal to release these mostly innocuous declarations. There just wasn't much "there" there, from what I could see. (The fact that the agency claimed the release of these financial disclosure statements could harm "national interests" was enjoyably ridiculous, but it's also the standard response when asked to open up about anything. Just because "security" is your middle name doesn't mean everything in your possession is instrumental to protecting the nation against terrorist activity.) Shane Harris at Foreign Policy has done some deeper digging into Alexander's financial statements and excavated some rather strange investment patterns. Harris notes that there's very little in the way of discernible rationale for Alexander's purchases and sales. There's also no indication that any of these trades were very beneficial for Alexander's bottom line. And there's some weird dabbling in some markets where being the head of the NSA would possibly provide more insight than is available to other investors. The financial disclosure documents, which were released to investigative journalist Jason Leopold and published this month by Vice News, reveal nothing explicitly about why Alexander sold the shares when he did. On Jan. 7, 2008, Alexander sold previously purchased shares in the Potash Corp. of Saskatchewan, a Canadian firm that mines potash, a mineral typically used in fertilizer. The potash market is largely controlled by companies in Canada, as well as in Belarus and Russia. And China was, and is, one of the biggest consumers of the substance, using it to expand the country's agricultural sector and produce higher crop yields. "It's a market that's really odd, involving collusion, where companies essentially coordinate on prices and output," said Craig Pirrong, a finance professor and commodities expert at the University of Houston's Bauer College of Business. "Strange things happen in the potash market. It's a closed market. Whenever you have Russians and Chinese being big players, a lot of stuff goes on in the shadows." The same day that Alexander moved his Potash Corp. shares, he also divested himself of his holdings in China-based Aluminum Corp., a state-owned entity that is the second-largest producer of aluminum in the world. Alexander bought and sold shares in both companies, but never during price peaks or collapses. Instead, his divestments seem to be motivated not by profitability, but by the government's increasing interest in combating Chinese state-sanctioned hacking. In the spring of 2008, shortly after Alexander sold his positions, senior U.S. officials began to speak on the record for the first time about the threat of cyber-espionage posed by Russia and especially China. Public attention to the intelligence threat was higher than it had been in recent memory. The optics of the NSA director owning stock in a company that his own agency believed may have been receiving stolen information from the Chinese government would have been embarrassing, to say the least. Those embarrassing optics have been dulled by the passage of time. Withholding these yearly, mandatory disclosures for "national security" reasons has sheltered Keith Alexander from any embarrassing external questions over the last half-decade of investments. Government agencies are supposed to be on the lookout for not only conflicts of interest, but the "appearance of impropriety." Alexander's investments (and his post-NSA ventures) both sport the outward trappings of impropriety. But everything being questioned now was previously signed off on by NSA officials as being above board. Now, even the NSA is second-guessing itself -- not because it's striving for a higher ethical standard -- but because the standard-operating-procedure of "hide everything" no longer works as well as it used to. Permalink | Comments | Email This Story

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posted 30 days ago on techdirt
A few days ago, the FTC announced that it had appointed Ashkan Soltani as its chief technology officer. Soltani is a well-known (and often outspoken) security researcher who has worked at the FTC in the past. Nothing about this appointment should be all that surprising or even remotely controversial. However, recently, Soltani had been doing a lot of journalism work, as a media consultant at the Washington Post helping Barton Gellman and other reporters really understand the technical and security aspects of the Snowden documents. His name has appeared as a byline in a number of stories about the documents, detailing what is really in those documents, and how they can impact your privacy. Apparently, this has upset the usual crew of former NSA officials. Let's start with former NSA director Michael Hayden. The publication FedScoop heard the news about Soltani, and decided to ask Hayden and other NSA-types their thoughts. You can tell by the opening paragraph what angle FedScoop is digging for with its article: The Federal Trade Commission has hired privacy and technology expert Ashkan Soltani to serve as the commission’s chief technology officer. But security experts and former senior U.S. intelligence officials are questioning the FTC’s decision, given Soltani’s very public role as a consultant for The Washington Post, where he co-authored multiple articles based on classified documents stolen from the National Security Agency by former contractor Edward Snowden. The loaded language in the introductory paragraph telegraphs FedScoop's desire to have its predispositions confirmed by the NSA's defenders, even though this move is more of a return to form for Soltani rather than an indication of the FTC's willingness to give the administration the finger by proxy, or whatever it is that Hayden feels is going on here. His job will be to advise the commission on evolving technology and policy issues, a role similar to one he held previously at the FTC before leaving government to become an independent consultant. Hayden's criticism of Soltani's selection begins with a sentence that shows (and immediately denies) what he'd like to do in the limited time FedScoop has granted him. “I’m not trying to demonize this fella, but he’s been working through criminally exposed documents and making decisions about making those documents public,” said Michael Hayden, a former NSA director who also served as CIA director from 2006 to 2009. Yes, how dare he do journalism in association with a well-known and (mostly) respected news organization. The FTC has so far refused to comment on its "controversial" selection. The NSA has yet to comment either, although one wonders if anyone outside of FedScoop truly believes the agency actually has anything to comment on here. Neither did the White House, despite FedScoop's endless harassment. The White House Office of Personnel Management [...] did not respond to FedScoop’s repeated requests for information on the FTC’s ability to hire Soltani given his role in consulting with the Post as it disclosed the Snowden documents. But guess who else has an opinion on this matter -- a hiring so controversial that no one actively employed by the government has felt the slightest urge to comment on? It's our other favorite NSA apologist, and he manages to top Hayden's vague but judgemental statements, as well as somehow managing to have even less of a grasp on the subject matter. Stewart Baker, a former NSA general counsel, said, while he’s not familiar with the role Soltani would play at the FTC, there are still problems with his appointment. “I don’t think anyone who justified or exploited Snowden’s breach of confidentiality obligations should be trusted to serve in government,” Baker said. But those who aided and abetted the expansion of domestic surveillance programs and betrayed the American public should be "trusted" to "serve" (themselves and their agencies) for years to come. Those who question the government should be kept as far away from the inner workings as possible, at least according to these two NSA defenders. And they base this judgement not on Soltani's upcoming position (which neither seem to know anything about), or actual government policies (which neither cite in defense of their claims), but rather on their feeling that no one who has "betrayed" the Agency (even if to serve the public or the Constitution) should be allowed to serve the public in any capacity.Permalink | Comments | Email This Story

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posted 30 days ago on techdirt
Okay, let's get this out of the way first: as you'll quickly see, there is no way to write this post without someone accusing us of being hypocritical -- so we're going to just get it out of the way upfront and note that that's absolutely true, as the article we'll be linking to also admits that such hypocrisy is occasionally necessary in reporting. We hope that the reasons for why we're doing this post are clear in the text below, so going hogwild in the comments claiming hypocrisy won't be particularly productive. We know. We get it. This post really is not about GamerGate. It is really about ethics in journalism (I know, I know). We have no real interest in writing about the whole GamerGate thing at all, because almost none of it is interesting and almost all of it is incredibly, mind-bendingly stupid, no matter what position you're arguing. So, I'm really hoping -- while recognizing this hope will likely not be realized -- that the comments on this post won't actually be about GamerGate or any sort of debate about the merits of one side or the other, but rather about what this article is really about, which is the journalism coverage. With that out of the way, as noted, we haven't been covering "GamerGate" at all, in part because the whole thing is just kind of ridiculous. There are a lot of wild accusations being thrown around on all sides, and a lot of really bad actions and statements by a lot of people, leading to lots of other wild accusations. Some of the accusations are true, some are not true, many are wildly misleading. But the other reason we haven't been covering it is because it's covered to death everywhere else -- to an almost insane level. And that's what we're talking about today, based on a great article by Jason Koebler over at Vice's Motherboard, noting that so much of the coverage exists because writing something about GamerGate appears to drive a ton of traffic. And in the stupid click-driven world that many publications live off of these days, you do what brings in the traffic (disclaimer: see point 1 at the very top of this post): The dirty secret here is that, unlike a story about Ebola or Monica Lewinsky or basically anything else anyone writes about, writers and editors can be assured that their GamerGate coverage gets a disproportionate amount of traffic. As far as online journalism gambling goes, it's one of the safer bets you can make. That's because GamerGate story readership isn't the general public: It's the people who are in the movement itself. For proof of this, look at the fact that the vast majority of GamerGate coverage have hundreds and even thousands of comments—almost all of them from people in the movement. But it's not just about GamerGate. It's about the way that online news has developed into this traffic-whoring stage, with lots of publications all rushing to cover "the thing that will bring traffic." Apple announcing an iPhone is news, sure. But Apple announcing an iPhone and breathlessly writing 50 blog posts and a ~live blog~ and an instant analysis and hot takes is when reporting stops being reporting and starts becoming the journalistic equivalent of putting chips on every single number in roulette hoping Reddit or Facebook or someone else picks your story to win that day’s internet traffic lottery. And, you know, it's not just tech journalism either: The side effect of this is that the world starts thinking that every time the  House votes to repeal Obamacare or every time Congress holds a hearing about Benghazi or every time John Oliver TOTALLY EVISCERATES someone every time a fringe scientist says climate change isn’t real or every time a normal person or government agency joins Twitter or every time a celebrity gets plastic surgery or every time some internet nerds can rile up a Gawker writer on Twitter is capital-I Important. They're all attempts to "win the social media lottery" to have a story go "viral" and suddenly have a lot more traffic. Frankly, this is stupid. And it's something (again, disclaimer above) we mostly try to avoid. There are a few of our regular critics who accuse us of being traffic whores ourselves (and I imagine a few of them may be rushing to comment as such on this article). They claim that we write what we write to get traffic. But here's a dirty little secret for you: if you want a lot of traffic, writing about intellectual property law, free speech, international trade agreements and regulatory capture isn't the best way to get it. We've never covered a big Apple event. While we'll occasionally attend an event, we tend to write about it a day or two later, after we've had a chance to let things sink it. And we try (though we don't always succeed) to provide a different take on things. We add our opinion (or, as the critics explain, we "spin" or report things in a "biased" way). We try to only write about stories that we actually think are interesting (and, even then we only get to about a third of the stories we actually think are interesting). As a result of that, I hope that the people who read this site tend to be more loyal and actually more interested in what we have to say (and often more willing to join in the discussion and join the larger community). But, that's not how many media publications work today. It's all about the "metrics" -- the number of visitors, and with the social media firehose so big, the focus has been moving aggressively towards that viral lottery. That's not to say we don't keep tabs on our own traffic -- because of course we do. But we know that getting a big story on Reddit means a flood of people who visit for 30 seconds and move on. Our loyal readers are the ones who stick around, and hopefully it's because we're not providing one of fifty different stories about the same damn thing with the same "journalistic" take (i.e., without any color, without any opinion and without any heart). Our position may not be great for advertisers. I've had discussions with potential advertisers, explaining how we have a really loyal community, and most of them don't seem to care. They just want bigger numbers, even if those bigger numbers are meaningless, because the audience doesn't give a shit. I would think that having a loyal, interested and committed community would be a lot more interesting to advertisers, but so many play the same stupid numbers game, and that leads so many publications to do the same. There are a few publications that have clearly recognized that the hamster wheel chase of rewriting the identical story over and over again while adding nothing new is not worth it. It's been great to see and I've been encouraged by some publications that have really focused on building a loyal audience through doing something different and providing more value. But, for many, it's all about a single metric: traffic. Then it starts to feel a lot less like journalism or something socially valuable. It just feels like... well... a game. For years, we've talked about how few seem to recognize that real journalism is about the community, not about "the news." I'm hopeful that more people begin to recognize this. And for all the hypocrisy in this post (disclaimer 1), consider part of this hypocritical post to be an attempt to share why we do what we do -- and why we don't do certain other things that we'd consider to be just cynical clickwhoring. If we want to have a discussion about "ethics in journalism" perhaps it should start with a discussion about all of this.Permalink | Comments | Email This Story

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posted 30 days ago on techdirt
If there's anything our government can do well, it's take a word loaded with tension and abuse it to the point of abstraction. First, we had "war." The word described the hellish events of the First and Second World War, along with armed, bloody conflicts dating back to the rebellious creation of the nation itself. Now, it's simply a term applied to any conflict with the weight of a self-serving bureaucracy propelling it. A "war" on drugs. A "war" on illiteracy. And so on. The horrors endured by both sides of the Vietnam "conflict" were never afforded the gravity of the word "war." The same goes with every military intervention since then. We've been in Iraq and Afghanistan for years, but there's no "war" there -- at least nothing officially declared. There's only violence and death and occasional sharp bursts of more violence and death. There's a "war" on drugs in Afghanistan, but that's even more of an abject failure than our other long-running military efforts -- $7 billion spent and poppy production at an all-time high. There's a "war" on terror in progress as well, but this brings us to another word robbed of any gravitas by constant abuse: "terror." Terrorism is what fuels our nation's security/surveillance state. But "terror" and "terrorism" -- words that once carried some weight -- are now abstractions. They're buzzwords pressed into service by the US government as a sales pitch for an illusion of security. And it all can be yours for less than a Fourth Amendment violation a day. Which brings us to another set of loaded words that once were evocative but now have been stripped of their ability to move masses. For the last 30+ years, the United States has been in a "state of emergency." This is perpetual and involves more than thirty concurrent states of emergency. An emergency declared by President Jimmy Carter on the 10th day of the Iranian hostage crisis in 1979 remains in effect almost 35 years later. A post-9/11 state of national emergency declared by President George W. Bush — and renewed six times by President Obama — forms the legal basis for much of the war on terror. Tuesday, President Obama informed Congress he was extending another Bush-era emergency for another year, saying "widespread violence and atrocities" in the Democratic Republic of Congo "pose an unusual and extraordinary threat to the foreign policy of the United States." Declaring a temporary state of emergency has it uses. It temporarily expands government powers in order to facilitate speedy responses. It de-gunks the system of its red tape residue and allows help to arrive when it's needed, rather than weeks after it would have any impact. But this isn't the case here. Temporary expansions of power have morphed into the new status quo. Since 1976, the government has declared 53 "emergencies." Almost every single one still remains in effect. Part of the problem is the office of the president. For thirty-plus years, the office has become accustomed to the extra powers granted with each flip of the "emergency" switch. States of emergency are extended. And extended again. Only one state of emergency has been allowed to lapse during the last decade. There is a curb to this power, but like the many other oversight positions its entrusted with, Congress seemingly has no interest in fulfilling its duty. The 1976 law requires each house of Congress to meet within six months of an emergency to vote it up or down. That's never happened. And so, "state of emergency" becomes shorthand for government abuse. It conjures up images of towns destroyed by national disasters or extreme threats from foreign nations, but in practice it's rarely anything more than a leading indicator of governmental power grabs. What can this nation's government do during a "state of emergency?" This very small sampling of "extra powers" is chilling. Reshape the military, putting members of the armed forces under foreign command, conscripting veterans, overturning sentences issued by courts-martial and taking over weather satellites for military use. Suspend environmental laws, including a law forbidding the dumping of toxic and infectious medical waste at sea. Bypass federal contracting laws, allowing the government to buy and sell property without competitive bidding. Allow unlimited secret patents for Army, Navy and Air Force scientists. "Emergency" is the new normal. For thirty years this nation has "struggled" under multiple states of emergency. What should be a very limited, very short-term solution to unexpected or dangerous situations is now indistinguishable from everyday life. More fear is sold by government agencies and purchased -- via tax dollars -- by a public unable to prevent the checks from clearing. Like the boy who cried wolf, the government has stripped "emergency" of its galvanizing power. Hearing a "state of emergency" being declared by the president most likely won't move hearts reflexively to throats but will prompt a certain number of hands to make protective moves towards wallets and purse strings. And it will definitely move the average American closer to cynicism than patriotism. When everything is an "emergency" that never ends, nothing is. President Obama says there's no need to declare a state of emergency over the worldwide spread of Ebola. He's likely right, but the words are meaningless. Declare it. Don't declare it. It makes no difference to anyone outside of those directly benefiting from (likely permanent) expansion of government powers. What is the government going to do once it's used up all the evocative words? Where does it go next? Apocalypse? The government is inherently untrustworthy, and its inability to express itself without using buzzwords, hyperbole and the broadest of strokes isn't helping. Voter apathy? Record lows in approval ratings? These are only symptoms. The disease is the government itself and its willingness to present everything as the Worst Ever in order to erode rights, expand power and appropriate public funding. Permalink | Comments | Email This Story

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