posted 22 days ago on techdirt
Wio Link is a credit card-sized board designed to simplify Internet of Things development down to drag and drop. It allows developers of all levels to build applications with no hardware programming, no breadboard, no jumper wires, and no soldering. This kit is a great jumping off point for anyone interested in someday building network-connected devices, vehicles, buildings, or other items. With the $99 Complete Wio Link Kit & Online Learning Bundle, you receive a Wio Link and access to three courses (Node.js, Python3, and JavaScript) to help you increase your programming knowledge and to get even more out of your Wio Link. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
FBI Director James Comey is still complaining about encryption but it doesn't seem to be preventing law enforcement from accessing devices. To date, law enforcement has paid hackers to break into a phone, had an iPhone owner suddenly "remember" his password, seen a person jailed for 7 months (so far) for refusing to provide a password and, now, a law enforcement agency has used a warrant to force a suspect to unlock an iPhone using a fingerprint. [A]uthorities obtained a search warrant compelling the girlfriend of an alleged Armenian gang member to press her finger against an iPhone that had been seized from a Glendale home. The phone contained Apple's fingerprint identification system for unlocking, and prosecutors wanted access to the data inside it. The mostly-unanswered question is whether this violates the Fifth Amendment by forcing a person to provide evidence against themselves. (Not that due process was at the forefront of law enforcement's mind in this case. Or the magistrate judge's either. Jonathan Zdziarski points out the warrant was obtained within 45 minutes of the suspect being arrested -- not even enough time to bring in a lawyer.) While the law allows police to collect data from detained individuals -- including fingerprints -- it doesn't say much about physically applying someone's finger to their phone to unlock its contents. The concern that fingerprint "passwords" would be less insulated against court orders and warrants was brought up here more than two years ago, shortly after Apple announced the new security feature. Biometric data isn't something anyone "knows" that could be considered "testimonial." It simply is an indicator of who you are, which courts have held isn't covered under Fifth Amendment protections against self-incrimination. The additional concern is that law enforcement may have also used this Fifth Amendment workaround to obtain information on a separate suspect. The LA Times article adds these details to the general murkiness: Why authorities wanted [Paytsar] Bkhchadzhyan to unlock the phone is unclear. The phone was seized from a Glendale residence linked to Sevak Mesrobian, who according to a probation report was Bkhchadzhyan's boyfriend and a member of the Armenian Power gang with the moniker of "40." Asst. U.S. Atty. Vicki Chou said the search was part of an ongoing probe. She declined further comment. Bkhchadzhyan was arrested and pled no contest to one count of identity theft. But the US Attorney's comment seems to imply law enforcement was looking for more than just evidence on Bkhchadzhyan when it searched the phone. If so, it raises even further questions about the constitutionality of this particular warrant, which may have forced this suspect to provide evidence against someone else. The only prior case to raise this issue isn't very instructive and a dataset of one is hardly an indicator of prevailing judicial winds. But the reasoning in the 2014 case draws a line between what the court considers "testimonial" and what is merely providing access. In 2014, a judge said Baust could be compelled to provide his fingerprint to open a locked phone but could not be ordered to disclose a passcode. The judge reasoned that providing a fingerprint was akin to giving a key, while giving a passcode — stored in one's mind — entailed revealing knowledge and therefore testifying. Baust was later acquitted. But does that line even exist? It's difficult to say it does when both fingerprints and passwords are virtually interchangeable, thanks to Apple's Touch ID system. The fingerprint is the password. The difference is detained suspects can only retain one of these "keys" in their minds. The rationale used by the court presumes vocal utterances are the only way a person can provide incriminating evidence against themselves. It's not like withholding passwords will work in all cases either. Those who aren't jailed for contempt of court may instead find judges deciding that providing a password to law enforcement isn't a "testimonial" act on its own. The refusal to provide a password may also work against defendants by giving prosecutors a bit more ammo for their "foregone conclusion" justifications. After all, if a locked device didn't contain evidence of criminal activity, any "reasonable" person would have provided a password without hesitation. It's a stretch of an argument though -- considering the prosecution needs to provide evidence it knows the stuff it's looking for resides on the devices, which is something extremely difficult to prove when the device is fully encrypted. The limits of the Fifth Amendment's protections against self-incrimination are far from clearly defined when it comes to encrypted devices.. This leaves the security question in the hands of each individual user. Your choice of security method depends on who you're more worried about having access to your phone. If it's phone thieves, then a fingerprint might do. But if it's the government, use a password. Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
Prompted by AT&T, Missouri passed a state law in 1997 that hamstrings towns and cities looking to build local networks to shore up broadband coverage gaps. Since then, AT&T has made repeated attempts to expand those restrictions further, fearing a growing rise in public/private partnerships from the likes of Google Fiber, Ting, or the countless towns and cities tired of AT&T's pricey, slow broadband service. After a failed attempt last year, AT&T this year introduced protectionist bill HB 2078, shortly after shoveling $62,000 in campaign contributions to state leaders. AT&T's bills vary in scope across the twenty-odd states in which they've been passed. Some ban community broadband altogether. Some saddle towns and private partners with additional restrictions so combating the incumbent duopoly is financially impossible. Others, like HB2078, employ language that forces towns to hold time-consuming public referendums, at which point AT&T can bury the proposal with a wave of negative PR and lawyers. All of them have tried to sow partisan discord under the pretense of AT&T just being concerned about taxpayers funding the bill for such projects. But the laws serve just one purpose: protect AT&T's stranglehold over an uncompetitive broadband market. That's obviously a much easier sale in states willing to quite literally let AT&T write state law in exchange for cash donation. The problem for AT&T is that as Google Fiber and other similar efforts have shown a light on the benefits of public/private partnerships to shore up lagging broadband markets, AT&T's behavior has become increasingly unpopular among both political parties. So when HB2078 stalled after passing through the Missouri House committees on Utility Infrastructure and the Select Committee on Utilities earlier this year, AT&T lobbyists got decidedly more clever. They convinced Missouri House Representative Lyndall Fraker to bury the language of HB2078 into an unrelated bill dealing with Missouri traffic issues:"The bill seems to have lost momentum since mid-March but its sponsor, Rep. Lyndall Fraker, is taking another approach to make sure his bill gets passed, come hell or high water. Session ends May 13th, so he is now banking on procedural tricks, rather than the substance of his legislation. On May 2nd, when a bill relating to traffic citations, SB 765, came before the body, Fracker proposed to amend it with language from HB 2078. Some of the amended language is even more destructive than the original proposal in HB 2078."As Ars Technica notes, whether the bill can get conference committee approval now that the public has noticed what AT&T and Fraker attempted to do isn't clear. Though should AT&T succeed, it would only help cement Missouri as a broadband backwater, keeping consumers from fleeing to alternative broadband options as AT&T prepares to impose major new usage caps and overage fees across the majority of the ISP's markets later this month.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
Forbes, an organization with a website presumably built on the value of its content, also has made the unfortunate decision recently to try to block off access to anyone using adblocker software, apparently so that it could successfully allow malicious "ads" to infect its readers' machines. This set of circumstances would seem to be one that would have Forbes re-thinking its adblocker policy, assuming it wishes to retain the trust of its readership. And it turns out that Forbes is doing so. And then not! Or maybe? Allow me to explain. Rob Leathern recently noticed that going to Forbes.com and refreshing the screen after being told that he should disable his adblocker suddenly offered up a new option: becoming a member. That membership would allow the viewing of the content for free. And, hey, all it wanted in return was the ability to manage his social media contacts for him. So @Forbes now lets ad blocking users access content if they Google-login and let Forbes... manage their contacts?! pic.twitter.com/CbM4qovEed — Rob Leathern (@robleathern) May 2, 2016 Forbes, a site that in the past has allowed malicious ads to be presented to its readers, would now like access and control of those readers' social media contacts, which sounds like a terrible idea. But even more strange was when Leathern bothered to look into the terms of services that such a membership with Forbes entailed. If you aren't laughing by now, you should be. Because the ToS for a membership which would allow readers to access the site's content while using an adblocker contain language asserting that you cannot use an adblocker. Whatever else you may think of Forbes in general, having multiple personalities running policy for the site seems like a bad strategy. Leathern's conclusion summarizes it nicely: So I’ve basically agreed now to not block their ads, after signing up for the express purpose of being able to see their content while blocking their ads. Forbes: a confused schizophrenic that would like to serve you some malware, please. I can just hear the dollars rolling into the coffers now... Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
While the date didn't receive much fanfare in the media, net neutrality rules formally took effect in the European Union as of April 30. The full rules were approved after a vote last October (pdf), though as we noted at the time, the rules don't actually do much of anything. That's quite by design; European ISP lobbyists spent years ensuring that while the rules sound great in a press release, they're so filled with loopholes as to be largely useless. In that sense they're much like the awful rules the U.S. (with help from AT&T, Verizon and Google) crafted in 2010, ultimately forcing the States to revisit the ugly political skirmish down the line. To pass the lame-duck rules, lawmakers bundled them with some actually semi-useful wireless roaming fee reform proposals, then used the latter to sell the entire package. Despite the rules shortcomings, members of the European Parliament were quick to pat themselves on the back for a job well done and for being pioneers in the realm of net neutrality:"This abolition of roaming surcharges has been long awaited by everybody: ordinary people, start-ups, SMEs and all kinds of organisations,” said the rapporteur, Pilar del Castillo before the vote. “Thanks to this agreement, Europe will also become the only region in world which legally guarantees open internet and net neutrality. The principle of net neutrality will be applied directly in the 28 member states. It also ensures that we will not have a two-speed internet."In reality, the EU was rather late to the net neutrality game. And in fact the rules don't prohibit a "two-speed Internet," they actually encourage it. The rules contain numerous, onerous loopholes for things like "specialized services," "class-based discrimination," and fully allow practices like zero rating. The rules even include bizarre provisions allowing ISP throttling and discrimination provided ISPs simply claim it's to address phantom congestion that may or may not have even happened yet, something Sir Tim Berners-Lee complained about in an ignored missive written just before the rules were approved last fall:"The proposal allows ISPs to prevent “impending” congestion. That means that ISPs can slow down traffic anytime, arguing that congestion was just about to happen. MEPs should vote to close this loophole. If adopted as currently written, these rules will threaten innovation, free speech and privacy, and compromise Europe’s ability to lead in the digital economy. To underpin continued economic growth and social progress, Europeans deserve the same strong net neutrality protections similar to those recently secured in the United States. As a European, and the inventor of the Web, I urge politicians to heed this call. They didn't. In fact, just 50 MEPs out of the European Parliament's total of 751 could be bothered to attend a debate preceding the vote. They also ignored complaints from the likes of BitTorrent, EyeEm, Foursquare, Kickstarter, WordPress, Netflix, Reddit, Transferwise, Vimeo, and the EFF. And while many European politicians and telecom lobbyists like to believe the contentious debate is now behind them, once users in uncompetitive European broadband markets realize they're still unprotected, politicians will be forced to revisit the entire conversation all over again.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
We're going to have to keep hammering this home until more people get it: trademark law is about preventing confusion in the marketplace. The reason why that needs to be understood is that just about every time you read a story about one entity going after another over a trademark issue, the refrain of "we must protect our trademarks or we lose them" is trotted out like some kind of bower card that trumps the rest of the discussion. That excuse is just that: an excuse. And it certainly doesn't lift from those that use it the burden of being called trademark bullies. Here to show us all an example of this kind of bullying is Vice Media, which decided to fire off a cease and desist letter to ViceVersa, a barely-making-it punk band. Vice Media, a company valued at $2.5 billion whose CEO once spent $300,000 on dinner, wants ViceVersa, an unsigned Los Angeles indie band whose members are struggling to pay rent, to change its name — or else. In a cease-and-desist letter sent to the band, a copy of which was obtained by The Huffington Post, the media behemoth says the three-piece rock outfit’s name and logo both sound and look too similar to Vice’s own name and logo. The band, the letter argues, is “infringing on the exclusive rights held by Vice Media in the VICE® Mark” and is “likely to confuse consumers as to the source of services offered under [ViceVersa’s] mark, and wrongly implies that Vice Media sponsors, endorses or is otherwise affiliated with [ViceVersa].” There's enough gall here on the part of Vice Media to make this funny in a sad kind of way. Now, to be fair, Vice Media does indeed operate Vice Music, a label which has released records with some very big names in the music industry. It also owns a ton of other media outlets, such as magazines, book publishers, films and digital television. And it claims to own the rights to the word "vice" in basically any permutation or word combination for all of those markets. That isn't actually true, of course, but that doesn't keep a behemoth from trying to stomp on a little punk band. I'll note that the threat letter arrived just after the USPTO approved the band's request to trademark its name, ViceVersa. Not that we should take the USPTO's opinion on whether a mark is valid as gospel, certainly, but I daresay that Vice Media isn't exactly an unknown around the USPTO offices, yet it approved ViceVersa's trademark. Which is when the threat letter arrived, seriously suggesting that ViceVersa was infringing on its trademark for "commercial profit and gain, to the great detriment of Vice Media." Below you can see a video released by the band that is about to bring one of the media giants of this world to its knees. Those do indeed look like dangerous folk, I guess. Now, Vice Media hasn't yet trotted out the aforementioned excuse that it must protect its trademark or else lose it, but it will if asked. That's what these companies do. And it's common. Harry Finkel, ViceVersa’s attorney, says these kind of cease-and-desist letters are common. “You have a big company that is overzealous in protecting its mark,” he said. Finkel says he wrote a letter back to Vice offering to change some of the language in Morales’ trademark application, so that it was clear that the band “would not be doing anything with TV shows or magazine publishing or publishing in general” that could be seen as encroaching on Vice’s territory. He says he never heard back from the company. Instead, Vice in March filed a letter of opposition to the Trademark Trial and Appeal Board, asking that ViceVersa’s trademark application be denied. Nope, they're not talking to you, sir. Parley is part of the pirate's code, after all. Honorable folks like Vice Media would never engage in conversation in order to stop bullying a punk band in California. Vice Media has a history of doing this kind of thing, of course, but hopefully the USPTO smacks this opposition down tout de suite. Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
Not too long ago, we mentioned some hoverboards that don't really hover at all. But there actually are several examples of hovering devices that can transport people short distances. None of these contraptions are particularly practical means of transportation, but maybe when Mr. Fusion generators can supply enough energy, we'll all be hovering/flying around everywhere. A Guinness World Record for the "Farthest hoverboard flight" has been set by Franky Zapata at a distance of 2,252 meters (7,388 feet). Zapata rode a Flyboard Air, developed by Zapata's own company, and he set the record at an altitude of about 150 feet in the air -- although the aircraft can reach a maximum altitude of 10,000 feet (and a maximum speed of 93 mph). [url] ArcaSpace's ArcaBoard is a hovering platform that produces 430 pounds of thrust from 36 electric fans that can lift a person about a foot off the ground. It's a bit pricey at just under $20,000 -- but it works over nearly any surface, including water (unlike the Back To The Future hoverboards or hoverboards that rely on some kind of magnetic levitation tricks). [url] Colin Furze has constructed a homemade hoverbike in his garage, and it kinda works. There's no steering or brakes, but it does hover in place for a bit before drifting off in whichever direction the rider leans toward. (We've previously pointed out a slightly better design called the F-bike of a similar concept, using multicopters.) [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
The FOIA system is broken. The administration pays lip service to transparency while aggressively deploying exemptions. Agencies routinely complain about FOIA response budgets and staffing levels, yet no one seems motivated to fix this perennial issue. FOIA reform efforts moving forward with bipartisan support are repeatedly killed after receiving pushback from the White House. Then there's this: a single requester is being blamed for a backlog of FOIA requests at an agency that's never underfunded -- the Department of Defense. According to its "Chief Freedom of Information Act Officer Report," Nick Turse is the US citizen who has managed to bring the slowly-moving DoD FOIA machinery to a complete halt. The report, for instance, laments that “despite their best efforts to provide helpful details, great customer service and efficient responses,” some DOD components were “still overwhelmed by one or two requesters who try to monopolize the system by filing a large number of requests or submitting disparate requests in groups which require a great deal of administrative time to adjudicate.” The study went on to call out: "[o]ne particular requester [who] singlehandedly filed three requests with SOUTHCOM [U.S. Southern Command], 53 requests with AFRICOM, 35 requests with SOCOM [Special Operations Command] and 217 requests with OSD/JS [Office of the Secretary of Defense/ Joint Staff] for a total of 308 cases this fiscal year alone. For AFRICOM, this represents 43 percent of their entire incoming requests for the year and 12 percent for SOCOM. This requester holds over 13 percent of the currently open and pending requests with OSD/JS and over the past two years has filed 415 initial requests and 54 appeals with this one component." If this seems like a lot of requests from one person, it isn't. This is the way the system works. Agencies routinely delay responses (Turse has been waiting more than four years for responses to some of his FOIA requests) when not redacting them to uselessness, forcing requesters to make multiple requests for the same information or related documents, in hopes of actually receiving some information in response to their information requests. The percentages may seem high, but AFRICOM isn't exactly a popular FOIA target. This focus relates to Turse's ongoing investigative reporting on abusive behavior by US soldiers stationed at bases in Africa. What he has managed to uncover so far isn't pretty, and his reporting on it has won him no friends in the Pentagon. I made, for instance, a couple hundred attempts to contact the command for information, comment, and clarification while working on an article about criminal acts and untoward behavior by U.S. troops in Africa — sexual assaults, the shooting of an officer by an enlisted man, drug use, sex with prostitutes, a bar crawl that ended in six deaths. Dozens of phone calls to public affairs personnel went unanswered, countless email requests were ignored. At one point, I called [DoD Chief of Media Engagement Benjamin] Benson, the AFRICOM media chief, 32 times on a single business day from a phone line that identified me by name. He never picked up. I then placed a call from another number so that my identity would be concealed. He answered on the second ring. Once I identified myself, he claimed the connection was bad and the line went dead. [...] Today, when I write to the current AFRICOM public affairs chief, Lt. Cmdr. Anthony Falvo, I receive similar treatment. I often get a return receipt back that tells me my email to him “was deleted without being read.” This happened to me, for example, on Thursday, September 10, 2015; Friday, October 2, 2015; Tuesday, October 6, 2015; Thursday, November 5, 2015; Friday, November 27, 2015; Wednesday, February 10, 2016 … you get the picture. That the DoD finds itself swamped by Turse's requests is its own fault. Had it simply returned the requested documents in a timely fashion, it would not have this Turse-centric backlog to complain about. Now, it's using an official report to portray the FOIA process as unnecessarily burdensome on the government and prone to abuse by tenacious citizens. This portrayal is not only false, but it obscures the fact that the DoD still controls every interaction with FOIA requesters. It has held Turse at arms length for several years and now it won't even answer his emails and phone calls regarding requests it has yet to answer. But in its report, it complains that it's Turse that has broken the system, rather than this being the FOIA system's natural state: that it only works as well as responding agencies want it to. Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
Looks like someone might be getting their money back after CBP agents -- operating a great distance from the US borders -- seized $240,000 from a man traveling through Indiana. While driving along I-70 outside of Indianapolis last November, Najeh Muhana was pulled over for not signalling a lane change. That's when things got weird and a bit unconstitutional. According to his filing for return of his money, Muhana's vehicle was searched "without consent, warrant or probable cause." The Hancock County Sheriff's Department officers even brought a drug dog to the scene, but failed to uncover any contraband. The $240,000 Muhana was carrying caught their eye, though. Muhana (correctly) intuited the officers wanted to take his money. So he told them he had just been talking to the person the money was owed to. This story, which was untrue, seemed to upset the officers, who spent the next hour discussing something presumably related to how they could take the cash from Muhana -- because that is exactly what they eventually did. This decision was made when CBP agent Scott Thompson -- operating roughly 250 miles from the nearest border -- arrived on the scene. Thompson took the money and gave Muhana a "receipt for property." Muhana, whose native language is Arabic, took this to mean the money would be returned when the CBP finished its investigation into whatever it was it thought was going on here. Shortly after that, the Sheriff's Department took Muhana into custody based on a traffic stop that had occurred four months earlier in another state. Details on that arrest suggest Muhana may have been involved in selling unlicensed cigarettes. Najeh Muhana, 39, St. Louis, was preliminarily charged with possession of untaxed cigarettes, according to a Henry County Jail List. Muhana’s charges stem from an incident that initially began on I-70 in July when members of the Pro Active Criminal Enforcement Team pulled over his rental van for unsafe lane movement. Blankets covered the cargo area and police confiscated 2,400 cartons of Newport cigarettes, valued at more than $147,000, and 650 cans of infant formula, valued at $10,500. The cigarettes had a Missouri tax stamp, said Major Jay Davis of the Henry County Sheriff’s Department, noting that in Indiana, it is illegal to possess such items without an Indiana tax stamp. During this stop -- which occurred in November -- officers uncovered nothing more than cash. They may have believed the two were related, but they never bothered connecting the dots for the benefit of Muhana, much less used it as a basis for the cash seizure. In fact, all the involved agencies did was pass the buck -- along with Muhana's bucks -- whenever he sought information on how to work towards the return of his money. The filing details multiple attempts to obtain any confirmation on the forfeiture, or who he should speak to in order to get the process underway. Further, there's no record that Muhana was ever notified of the CBP's intent to pursue forfeiture -- nothing beyond the mysterious "receipt for property" the CBP agent gave him. Muhana began making inquiries a few weeks after the money was taken, beginning in December 2015. In January, CBP agent Scott Thompson told him the case had been turned over to the CBP's Ohio office. The following Kafka-esque chain of events is directly from the filing. On or before January 19, 2016, Mr. Muhana's counsel contacted Eartha Graham, Paralegal Specialist, U.S. Customs and Border Protection in Middleburg, Ohio regarding the status of the Currency. On January 19, 2016, Ms. Graham responded via email to counsel, stating, "I will need something in writing preferably on company letterhead stating you are representing Mr. Muhana asap." [...] On January 20, 2016, counsel followed up with a facsimile to Ms. Graham, in writing, In response to your email to me yesterday, this will confirm that I represent Najeh Mulhana relating to the seizure of three (3) bags of currency by the US. Customs Service on or about November 6, 2015, in Indiana. The seizing officer was Special Agent Thompson. Mr. Muhana is requesting return of the money. On January 26, 2016, counsel again contacted Ms. Graham related to the Currency, asking, "Will the agency be sending me some notification regarding its intentions relating to the seized money?" She responded, "Yes, we will be sending something out soon." On February 1, 2016, Ms. Graham followed up again with an email to counsel stating, "I just received word from our counsel to request a written statement sign (sic) by Mr. Muhana, stating you will be representing him for currency case." The same day, Mr. Muhana's counsel sent Ms. Graham an email with a copy of the law firm's engagement letter attached. On February 8, 2016, counsel received a letter from Tessie Douglas, FP&F Officer, US. Customs and Border Protection, Middleburg, Ohio, dated February 4, 2016. In the letter Ms. Douglas stated, This is with reference to your inquiry on behalf of your client Mr. Najehm Muhana, about the currency that was seized on November 6, 2015. The circumstances of this case have been reviewed. It has been determined that since your client waived his rights to the currency by signing the abandonment form, he cannot make claims on the currency. The forfeiture process was completed on February 1, 2016. The next day, Muhana's lawyer wrote back, pointing out several things. First, he had received nothing in the way of a signed waiver by Mr. Muhana indicating his relinquishment of ownership. Furthermore, even if Muhana had signed something of that sort during the arrest, he is unable to read or write in English and may not have known what he was signing. In addition, even if such a signed waiver exists, there's nothing forbidding Muhana from attempting to correct his mistake during the time between the seizure and its finalization. Muhana's attorney demanded the CBP provide him with a copy of the supposed waiver. A reasonable request, one would think, especially when a quarter of a million dollars was on the line. But guess what? The CBP doesn't turn over that sort of paperwork to people it's taking money from. It will only turn that paperwork over to anyone who asks for it using a completely unrelated process. And that's only if it decides it isn't covered by multiple investigation-related exemptions. Behold: your tax dollars at work, giving you the finger over its cubicle wall. There was no response until March 7, 2016. This time, counsel received an email from Rose Parks, Paralegal Specialist, U.S. Customs and Border Protection, Cleveland, which stated as follows: The subject-referenced case has been re-assigned to me, as Ms. Graham has left our department. Per my supervisors, we do not provide copies of abandonment forms. To obtain a copy of the form, you would need to file a FOIA request. Muhana's lawyer fired right back, hoping to find someone willing to provide more info on the up-to-this-point nonexistent waiver. Ms. Parks: Thank you for your message. Please confirm that the Agency has referred this matter to the US Attorneys' Office per my prior email for determination regarding forfeiture. Again, my client is making claim to the money. I understood from my conversations with Ms. Graham that the case had been re-assigned to the US Attorney for that purpose. If I have misunderstood her, please let me know immediately. Nothing there for Mr. Muhana either. Ms. Parks then stated as follows in her follow-up response: "The currency has been forfeited and the case is closed. No referral is being made." The money is gone, apparently, after having skipped some necessary intermediate steps. As the filing points out, the government must notify involved parties of the intent to pursue a forfeiture. This is to give people like Najeh Muhana a very slim window in which to raise a challenge. Muhana's lawyer says that -- contrary to the law -- he was never given written notice of the agency's intentions. The agency claims (sort of) that it had no obligation to do so because Muhana had disclaimed his ownership of it. But the chain of communications clearly show Muhana had both claimed ownership and was interested in pursuing its recovery. The agent directly involved with the seizure was made aware of this in December 2015, less than a month after the funds were taken. The agency itself was notified in writing of Muhana's intent to challenge in January 2016 -- well before the agency's February 1st declaration that the money had been forfeited. As Muhana's lawyer points out, this is clearly bullshit. Here, the Agency knew that Mr. Muhana was claiming to be the owner of the Currency through the repeated inquiries of his counsel. Rather than acknowledge those inquiries and respond to them, the Agency delayed any response until after February 1, 2016, when it unilaterally declared a forfeiture of the Currency. Thus, despite actual knowledge that Mr. Muhana was the owner of the Currency, the Agency refused to provide written notice to him about the Currency being seized and the Agency's intention to declare a forfeiture. Given what's detailed here, it strongly appears as though the CBP processed a forfeiture while skipping past all the due process niceties. If so, Muhana is likely to not only prevail, but "strongly prevail" in his claim against the agency, which means it will not only have to give him back his $240,000 but pay his legal fees as well. Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
Post sponsored by As part of our funding campaign for our coverage of encryption, we reached out to some companies that care about these issues to ask them to show their support. Today, we're taking a look back at a series of four posts sponsored by Golden Frog, a company dedicated to online privacy, security and freedom. California's Anti-Encryption Bill: At the beginning of April, we called attention to a bill in California that had gone from bad to worse. Originally a ban on smartphone encryption, it was tinkered with until it became a requirement for encryption backdoors, which could have forced manufacturers to create special California versions of their products with weakened security. Though obviously not as high-profile or as far-reaching as the Burr/Feinstein encryption bill in Senate, it was ultimately the same thing: a wrongheaded attack on device security framed as a necessity for law enforcement, despite that being a very unconvincing notion. Thankfully, California lawmakers seem to have come to their senses on this one. The bill died without a vote a week later, after the Assembly Committee on Privacy and Consumer Protection realized what a terrible idea it was. From the Golden Frog Blog: We Agree With Apple — We Can’t Set The Precedent Of An iPhone "Backdoor" A Scary Thought Experiment About The NSA: A few weeks ago, Glyn Moody called our attention to a fantastic (if somewhat disturbing) presentation from 2014, breaking down some ways the NSA could infiltrate our digital networks at the most basic and undetectable level. This notion remains hypothetical but all-too-conceivable, especially when there have been plenty of examples of companies cooperating with the government and the intelligence community without being tricked into doing so. From the Golden Frog Blog: AT&T, Shame on You for Helping the NSA Spy on Us The USTR Comes (Partly) To Its Senses: The USTR's history with internet policy and digital innovation has always been, to put it mildly, discouraging. So we were surprised to see a change of tune in this year's National Trade Estimate report, which called out internet censorship in China and Pakistan as serious barriers to innovation and free expression, and even pointed out the myriad dangers of the EU's Digital Single Market strategy and the problems with a "Google tax". This is still far from a total about-face for the USTR, with the very same report managing to contradict itself when it came to intellectual property issues — but it's a very welcome step in the right direction. From the Golden Frog Blog: EU Reforms Data Protection and Privacy Rules in Huge Overhaul Snowden's Positive Impact On Encryption Adoption: National Intelligence Director James Clapper thought he was decrying Edward Snowden when he pointed out that his actions massively accelerated the adoption of encryption technology, shaving years off the NSA's estimated timeline — but those of us who value data security and internet freedom had a different takeaway, and considered it yet another example of the good Snowden's revelations have done. The whole thing really highlighted the mismatched priorities and values between the intelligence community and the American public (as if that needed any more highlighting). From the Golden Frog Blog: Encryption Fundamentals: What Everyone Should Know We'd like to thank Golden Frog for supporting our coverage of these critical issues relating to security, privacy and encryption. As you've likely noticed, their blog is full of great content that also explores these topics. In addition to the links we've featured so far, here are some more posts that may be of interest to Techdirt readers: Privacy & Security on the Golden Frog Blog: No Encryption Backdoors: Why the Government is Wrong I Am Anonymous When I Use a VPN — 10 Myths Debunked Is Your Privacy Provider Trustworthy? What Social Media Sites are Blocked Around the World? Public Wi-Fi: Think Before You Connect VyprVPN from Golden Frog is the world's fastest highly-secure VPN.Get 25% off VyprVPN now » Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
By now, most people are aware that Facebook advertisements can be quite targeted in nature, whether by age, gender, or location. Most people also are aware of the level of spending by politicians and government for Facebook ads to get their messages out to their targeted audience. But just how targeted can Facebook ads be in the service of politicians? Well, for that we turn to the story of Lisa Murkowski, Senator from Alaska, and her attempt to get a road built between two towns in her state. Alaska Senator Lisa Murkowski has been trying for years to convince the Interior Department to allow Alaska to build a 11-mile road through a wildlife refuge to make two remote towns in the state more easily accessible. But the Interior Department has balked, citing environmental concerns; the area is a habitat for migratory birds. In order to convince Department officials to change their minds, Murkowski recently targeted them—and only them—with a video ad on Facebook. How did she do this? Well, she produced a video advertisement and bought ads on Facebook that were set to run specifically during lunchtime hours and geo-targeted 1849 C Street, N.W. in Washington D.C.. That address is the building for the Interior Department. That's fairly precise targeting, I think, which is why it's actually quite impressive that the advertisement appeared in the newsfeeds seven-thousand times as it ran and the video had been clicked on well over two-thousand times. But exactly how precise was the geo-location portion of this advertisement? Well, it depends on how big the building is. A spokesperson from Facebook directed me to a help page explaining how to target people in a specific location (which it can determine from GPS coordinates off their smartphone or, less reliably, from the IP address of their computer). The most granular option is targeting a location with a radius of one kilometer, or a little over half a mile. So if you were targeting a workplace with a one-mile long campus, like Facebook itself, you could be guaranteed to show an ad only to people in its buildings. But the Department of Interior takes up just one city block. So when Murkowski targeted the Interior Department’s address, she was actually targeting not just that building, but all the people and buildings in a half-mile radius. Which probably led to some very confused people in nearby buildings wondering what the hell this video about a road in Alaska was doing in their newsfeed. This does come off as perhaps a tad unseemly, but I view this kind of targeted advertising less negatively than I do traditional lobbying efforts. And it's not exactly clear whether all of those views had any real effect on the policy-makers, as the Interior Department still opposes the building of the road as of the date of this writing. Still, it's a brave new world out there for anyone looking to influence policy-makers. Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
It appears to have only taken the better part of the last decade, but we finally appear to be reaching the point where people have finally realized that broadband caps aren't about managing congestion, they're about turf protection. Here in the States, companies like Suddenlink, Comcast AT&T and CenturyLink have all rushed toward adopting caps and overage fees as not only a pointed weapon against streaming video competitors like Netflix, but as a nifty way to charge more money than ever for a product that's actually getting cheaper and cheaper to provide. The same thing is happening in Brazil, where ISPs have convinced telecom regulator Anatel it's absolutely necessary to shift from flat-rate pricing to metered usage lest the Internet explodes (it's surely just coincidental that Netflix's popularity is soaring). And, like here in the States, regulators have been more than happy to help repeat broadband industry claims that you need low caps and overage fees because it's just not possible to continue offering unlimited broadband:"...The president of the telecom watchdog Joao Resende told journalists at a press event yesterday that it is unlikely that Anatel will challenge operators, since "not all models can accommodate an unlimited service provision and also because the networks won't be able to cater for everybody." Resende added that operators are guilty for making users think that unlimited service provision would be available indefinitely.The problem is that most consumers and press outlets are perfectly capable of reading earnings reports, and realize that flat-rate broadband has been perfectly sustainable, and that caps and overage fees are really just massive price hikes on uncompetitive markets:"Companies argue that caps are needed to prevent network congestion, but continued investment in infrastructure to cope with forecast demand consistently announced by these same firms in recent years suggest that usage caps really have nothing to do with network congestion issues. In addition, bandwidth costs for telcos largely remain fixed, and despite major growth in their user base, providers such as Vivo are paying less today for raw bandwidth than they were a decade ago. So really, there is no technical or economic justification for a cap."Anatel had been pondering regulation that would have codified this shift toward metered usage, but the unprecedented amount of public backlash appears to have the regulator re-thinking its agenda:"According to Anatel, the decision to let service providers introduce the data limits has now been stalled due to the several complaints that were received, and will remain on hold until the proposals for the new plans have been submitted by operators and analyzed by the watchdog."That doesn't mean Anatel won't ignore consumers anyway, but it does highlight how consumer activism and revolt can at the very least still give telecom regulators pause. Instead of letting ISPs wage war on innovative services with unnecessary usage caps, less beholden regulators have realized their focus should be on improving broadband competition, which in turn improves speeds (Akamai currently ranks Brazil 80th in overall broadband speed) but organically punishes neutrality violators and prevents carriers from being able to pummel captive markets with such glorified rate hikes.Permalink | Comments | Email This Story

Read More...
posted 23 days ago on techdirt
At the end of last year, Mike wrote about an attempt to keep the Diary of Anne Frank out of the public domain by adding her father's name as a co-author. As Techdirt wrote at the time, that seemed to be a pretty clear abuse of the copyright system. But it also offered a dangerous precedent, which has just turned up again in a complicated case involving the French composer Maurice Ravel, and his most famous composition, the hypnotically repetitive ballet score "Bolero." Ravel died on December 28, 1937, so you might expect the score to have entered the public domain in 2008, since EU copyright generally lasts 70 years after the death of a creator. But by a quirk of French law, an extra eight years and 120 days is added for musical works published between January 1, 1921, and December 31, 1947 (on account of the Second World War, apparently). Ravel's Bolero first appeared in 1922, and therefore receives the extra years of copyright, which means that according to French law, it entered the public domain on May 1 this year. But Bolero has a big problem -- actually, a $57 million problem, which is the amount the work is estimated to have generated in royalties since 1960. Naturally, the owners of the copyright were keen to continue receiving that nice flow of money for doing precisely nothing. So they came up with an idea: add a co-author, which would, as with the Diary of Anne Frank case, conveniently extend the copyright, in this case by another 20 years (original in French.) Fortunately, the French Society of Authors, Composers and Publishers of Music (SACEM), which handles these matters, has decided that adding a co-author was not justified, and that Bolero should indeed enter the public domain (original in French). As a result, you can find the score and performances of Bolero freely available on Wikimedia Commons and elsewhere. This episode is even more outrageous than it seems, because of who exactly was trying to get the copyright extended. As Yahoo News explains: Ravel died unmarried and childless in 1937. His only heir was his brother Edouard, who died in 1960, unleashing a bitter and complex legal battle over the rights which at times has involved Edouard's nurse and her husband, great-nephews and even a legal director of SACEM. So the connection of the copyright holders with Ravel was in any case extremely tenuous. Credit to SACEM for rejecting -- unanimously -- the attempt to use the co-author trick. Sadly, this is unlikely to be the last time we see it deployed given the limitless sense of entitlement displayed by some copyright holders. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...
posted 23 days ago on techdirt
Learn all of the ins and outs of web development with this deal on OSTraining Developer Courses. For just $65, you get access to over 3,000 tutorials on mastering WordPress, Drupal, Joomla, SEO, HTML, CSS, PHP and more. You'll learn how to build and manage professional-looking websites in no time. You will also receive certificates of completion after each course of study from OSTraining. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

Read More...
posted 23 days ago on techdirt
The proposed Rule 41 changes recently adopted by the US Supreme Court can't go into force fast enough for the FBI. The changes -- if approved by Congress (which needs to do nothing more than literally nothing for this to happen) -- would allow it to hack computers anywhere in the nation by removing jurisdictional restrictions. Its decision to keep a child porn site up and running in order to deploy a hacking tool to sniff out obscured user information now appears to have been a colossal mistake. The warrant for the search performed by the FBI's NIT was issued in Virginia, but the actual searches took place all over the nation. While the seized server may have been located in the state, the users identified by the NIT were located as far away as the opposite coast. The FBI's decision to ignore jurisdiction limits under Rule 41 is now costing it loads of evidence. Judges in Massachusetts, Oklahoma and Kansas have found the searches to be illegal because they're based on invalid warrants. The government is now fighting these suppression orders. In Oklahoma, it recently entered its challenge of the court's decision to suppress evidence obtained with the NIT, using an interesting take on Rule 41 that attempts to align it with the infamous All Writs Act -- mainly that Rule 41 should be construed liberally to allow the FBI to do anything Congress hasn't expressly forbidden it to do. Rule 41(b) is meant to be applied flexibly, not rigidly. United States v. Koyomejian, 970 F.2d 536, 542 (9th Cir. 1992). When emerging technologies create a situation in which the specific language of Rule 41 does not explicitly permit a warrant, the Supreme Court has concluded that Rule 41 “is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause.” United States v. New York Tel. Co., 434 U.S. 159, 169 (1977). The Supreme Court goes on to explain that a flexible application of Rule 41 is supported by Fed. R. Crim. P. 57(b), which provides in the absence of controlling law, “a judge may regulate practice in any manner consistent with federal law, these rules and the local rules[.]” Just as the DOJ government would prefer we focus on a case that's almost four decades old (1979's Smith v. Maryland) when discussing bulk surveillance, Stingray devices and cell site location info, it wants us to page through late 70s court decisions when discussing the FBI's actions during the last couple of years. In the middle of its paragraph stating that courts should be granting the FBI much more leeway when it deploys previously-unused investigative techniques, the DOJ slips in a reference to 1977's US v. New York Telephone Company -- the same Supreme Court decision it says justifies its use of the All Writs Act to force Apple to comply with demands to unlock encrypted iPhones. The problem with the DOJ's argument is that this isn't a case where a warrant isn't "explicitly permitted." Warrants were permitted, but deployment was supposed to be limited to the jurisdiction where they were issued. The DOJ basically wants the court to forget its position as a check against government overreach and validate the FBI's invalid warrants. In doing so, it misleadingly portrays the Supreme Court's statements on the matter by selectively quoting from the decision. The wording surrounding the DOJ's pull quotes only shows the court determining that Rule 41(h) does not restrict warrants to justifying the search and seizure of "tangible items." Although Rule 41 (h) defines property "to include documents, books, papers and any other tangible objects," it does not restrict or purport to exhaustively enumerate all the items which may be seized pursuant to Rule 41. Indeed, we recognized in Katz v. United States, 389 U. S. 347 (1967),which held that telephone conversations were protected by the Fourth Amendment, that Rule 41 is not limited to tangible items but is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause. 389 U. S., at 354-356, and n. 16 See also Osborn v. United States, 385 U. S. 323, 329-331 (1966). This obscures the real issue here: Rule 41(b), which currently limits deployment of warrants to the jurisdictions where they were issued. Going beyond this legal sleight of hand, the DOJ also claims that the entire two-week period it ran the child porn site while it deployed its NIT was fraught with "exigent circumstances." The magistrate judge’s Report and Recommendation rejects the assertion that exigent circumstances would have justified the warrant. The judge’s analysis identifies the underlying exigency as being the “downloading and distribution of child pornography,” exigent “only because the Government opted to keep the Playpen site operating while it employed the NIT.” Doc. 42, p. 27. The exigent circumstances that would have justified the use of the NIT, however, were tied to the on-going rape and abuse of children—as opposed to simply its depiction. Even if you buy the DOJ's argument that a two-week period -- in which warrants were obtained -- is still somehow "exigent," you have to get over the hurdle that exigent circumstances is almost always used to salvage the results of warrantless searches. It can't be used -- or at least hasn't been used until now -- to salvage the warrants themselves. The court here declared the warrant to be "void ab initio," meaning the warrant was never valid at any point. Circumstances cannot be declared "exigent" if the time exists to obtain warrants. The DOJ's argument here isn't even coherent enough to be circular. It's simply nonsensical. Either the situation is exigent and warrants must be put on the back burner, or circumstances are not exigent and warrants can be obtained. It can't be both things at once, even if it would be oh so convenient for the DOJ if they were. Exigent circumstances or not, the warrant obtained was invalid. The DOJ is hoping to turn a search with a void warrant into a warrantless search in order to bypass the Rule 41(b) restrictions it argues one paragraph earlier shouldn't prevent it from performing its searches wherever it feels like it. The worst case scenario, though, is what could happen if everything falls into place for the DOJ. If the jurisdiction limitations are removed with the Rule 41(b) changes, future NIT warrants would be valid and suppression would be nearly impossible. But if the court buys its "exigent circumstances" argument, the FBI may feel more comfortable relying on the exception... and begin deploying its hacking tools anywhere it feels like without ever running it past a judge. Permalink | Comments | Email This Story

Read More...
posted 23 days ago on techdirt
There's apparently no situation legislators can't make worse. Self-driving cars are an inevitability, as are all the attendant concerns about autonomous vehicles roaming the streets unattended, mowing down buses at 2 miles per hour or forcing drivers behind them to obey all relevant traffic laws. There are fears that people will just stop paying attention to driving, which is weird, because that's one of the few immediate advantages of self-driving vehicles. There are also fears that a robot car is nothing more than a tempting attack target for malicious hackers. There's some truth to this last one, especially as manufacturers have loaded up vehicles with on-board computers but given little thought to properly securing them. Even so, that's no excuse for the sort of legislation being proposed by two Michigan politicians, which would reward self-driving car hackers with lifetime stays at the nearest prison. Michigan Senators Ken Horn and Mike Kowall have proposed a cybersecurity bill aimed at hackers and connected and autonomous cars. While Senate Bill 928 (pdf) sets out the type of crime and corresponding sentencing guidelines for car hacking, Senate Bill 927 (pdf) spells out that car hacking will be a felony. Further down, the legislation says car hacking will be punishable by life in prison. This would be fine if… well, no, actually it's not fine at all. One tends to think of prison terms as being somewhat related to the harm caused and if someone fires off malware that prevents someone from starting their vehicle, there's no way that should be punished by a life sentence. I'm sure the legislators are contemplating worst-case scenarios where someone electronically hijacks a vehicle and causes someone's death, but that sort of thing should be punishable under other laws more commensurate with the end result of the hacking. I can also see how not explicitly targeting hacking of vehicles might become a legal loophole which allows perpetrators to walk away from more serious charges. But this is overkill, especially because the list of violations is far too broadly written. A PERSON SHALL NOT INTENTIONALLY ACCESS OR CAUSE ACCESS TO BE MADE TO AN ELECTRONIC SYSTEM OF A MOTOR VEHICLE TO WILLFULLY DESTROY, DAMAGE, IMPAIR, ALTER, OR GAIN UNAUTHORIZED CONTROL OF THE MOTOR VEHICLE. Basically the bill says all electronic systems created by manufacturers must be sealed black boxes that purchasers, security researchers, hobbyists, and third-party suppliers should never, ever access under the pain of life imprisonment. "Alter" could mean "make things work better," but it still would be treated as a criminal act under this law. Repairs to on-board computers by "non-certified" mechanics could net them charges, especially if something malfunctions down the road. I'm sure this is a perfectly acceptable outcome to the US automakers still cranking out cars in Michigan, that would now have something more than copyright to threaten people with. The senators claim this is necessary because they want to stay out in front of any technological developments. Automotive News quoted Kowall as saying, “I hope that we never have to use it. That's why the penalties are what they are. The potential for severe injury and death are pretty high. Some of these people are pretty clever. As opposed to waiting for something bad to happen, we're going to be proactive on this and try to keep up with technology.” You don't "keep up" with technology by treating electronic access to certain systems like some particularly powerful form of witchcraft, only punishable by the most severe sentences. This isn't legislators staying abreast of the latest developments. This is legislators bypassing evidence gathering and stocking up on fear. Because nothing eases the mind of the public more than declaring the autonomous car apocalypse to be upon us, with only this badly written bill standing in the way of death and destruction. Permalink | Comments | Email This Story

Read More...
posted 23 days ago on techdirt
As we've been discussing, the FCC is cooking up a plan to bring much-needed competition to the cable set top box market. As a fact sheet being circulated by the agency (pdf) notes, the FCC hopes to force cable operators to offer their existing cable lineups to third party hardware -- without the need of a pesky CableCARD. This would obviously disrupt the $21 billion in annual, captive set top rental fees enjoyed by the industry, and the competitive set top box market that emerges would likely drive more users than ever to alternative streaming options. As such, the cable industry has been having a monumental hissy fit. This has ranged from threatening lawsuits to publishing an absolute ocean of misleading editorials in news outets nationwide, claiming the FCC's plan would destroy consumer privacy, increase piracy, hurt programming diversity, and make little children cry. Not too surprisingly, the cable and entertainment industry has now gotten some members of Congress to contribute to the hysteria. Note that the FCC's proposal makes it abundantly clear that under the proposal, a cable provider can "determine the content protection systems it deems sufficient to prevent theft and misuse, and will not impede the introduction of new content protection systems." Yet in a letter sent to the FCC this week, Representatives Bob Goodlatte and John Conyers say creators have "shared concerns" that the FCC's plan will lead us down the road to rampant piracy. You know, like Popcorn Time:"As Members of the House Judiciary Committee, which oversees our nation's copyright laws, we recognize the harm the American economy caused by the theft of copyrighted works. Creators have shared concerns that under the FCC's proposed rule, future set-top boxes or their replacements could purposely be designed to distribute pirated content obtained from sources that primarily offer stolen content. For example. apps such as Popcorn Time that focus on providing access to piratical content have tried to match the form and ease of use of legitimate apps to mark the theft of copyrighted content. Creators are legitimately worried about the prospect that future set top boxes, or their functional equivalents, could incorporate apps such as Popcorn Time or its functionality, or otherwise lead to the unauthorized distribution of copyrighted works."From the letter it's pretty clear the Representatives -- and the "creators" expressing their worry -- don't actually understand what the FCC is trying to do. Conyers and Goodlatte throw Popcorn Time into the mix seemingly at random, given the FCC's proposal has absolutely nothing to do with the app. For better or worse, under the FCC's proposal nothing about copy protection will actually change. Users will still pay the cable industry for service, those users will just be able to access that same programming on devices from the likes of TiVO, Google, Amazon, and countless other devices that will already be in consumer homes. And while these devices are more open than cable boxes, it's bizarre to suggest this shift results in some kind of piracy free for all. In fact, having more open set top boxes not ensconced by the cable industry's walled garden approach will present consumers with access to more legitimate streaming content sources than ever before. That's what the cable industry is actually worried about. The looming specter of piracy was also recently trotted out in an editorial by "The Walking Dead" Producer Gale Anne Hurd, who tried to argue that making the set top box market more open and competitive would only drive users to pirated content because hey -- a more open device might actually include a browser and access to the actual Internet. That's again missing the forest for the trees on an absolutely mammoth scale, ignoring that open platforms and an exponential explosion in access to streaming services means more ways to access her content legitimately than ever before. Again, it's not clear if the people yelling about piracy just don't understand how this all works and are just being "informed" by the wrong people, or if they're intentionally aiding the cable industry and mis-characterizing what the FCC is planning (probably a combination of both). But make no mistake: the TV industry's opposition to set top box reform has nothing to do with being worried about piracy, diversity, security, or the welfare of puppies -- and everything to do with protecting a stagnant industry from market evolution and lost revenue.Permalink | Comments | Email This Story

Read More...
posted 23 days ago on techdirt
Over the years, Techdirt has been trying to keep up with the deepening censorship in China, as more and more ways are found by the authorities to keep online users in check. Given the political situation there, that's hardly a surprise, but what is strange is the following, reported by Tech In Asia: China's internet censors have been busy recently. Last week we saw the uptight folks at SAPPRFT [State Administration of Press, Publication, Radio, Film and Television, China's main censorship body] take down Papi Jiang, a viral video comedian of sorts who had even attracted VC funding, over a few curse words. We also saw Apple’s online books and movies platforms get taken offline, reportedly thanks to SAPPRFT's sudden demands. It's all very depressing, but it also highlights one of the most effective aspects of China's online censorship regime: it’s totally unpredictable. Naïvely, you might think that the Chinese government would want to establish very clear lines in the sand that its citizens must not, under any circumstances, cross. But the Tech In Asia post perceptively points that unpredictability has a big advantage, using the following analogy: Imagine being near a steep cliff. During the day, when you can see clearly, you might walk right up to the edge to take in the view. But at night or during a thick fog, you're probably going to steer well clear of the cliff's edge to ensure that you don’t accidentally misjudge where you are and tumble to your death. Here's how that works out for censorship: China's vaguely-defined web content rules and inconsistent censorship enforcement work the same way as the fog near a cliff: since people can't see exactly where the edge is, they're more likely to stay far away from it, just in case. There's no toeing the line, because nobody knows exactly where the line is. So instead of pushing the envelope, many people choose to censor themselves. In order to ensure that margin of safety, people will tend to censor themselves more than is necessary according to the stated rules. If the line in the sand were well defined, they could step right up to it, fairly secure that they will be safe provided they don't cross. In effect, by introducing an unnerving element of uncertainty into its actions, China obtains a more stringent self-censorship on the part of its citizens than it would from formally applying well-defined rules through official channels. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...
posted 23 days ago on techdirt
Almost three years ago, a team of pro bono attorneys (D. Gill Sperlein, Paul Alan Levy, Gary Krupkin and Neal Hoffman) took up the defense of Jeffrey DeShong, an HIV-positive blogger who had been served a bogus trademark infringement lawsuit by Clark Baker, a retired LAPD officer who spends his free time defending people who have hidden their HIV-positive status from sexual partners. Baker had no legal basis for his claims, but was obviously hoping airy claims of Lanham Act violations based on URL similarities would be all that was needed to shut up a vocal critic. He was wrong. The lawsuit was tossed in the pleading stages by the district court and that decision was upheld by the Fifth Circuit Court. What the appeals court did not address the first time around -- shifting legal fees to the vexatious litigant -- has now been addressed. The Fifth Circuit Court of Appeals, at the urging of DeShong's defense team, has taken a new approach to its standard for fee shifting in obviously bogus lawsuits. Paul Alan Levy explains: The federal court in Dallas readily dismissed the trademark claims on the face of the complaint, then declined to retain jurisdiction over the state-law defamation claims; in that way, the trial judge avoiding having to address DeShong's anti-SLAPP motion. But even though our path to overruling the Fifth Circuit's rule got easier when the Supreme Court held, in Octane Fitness, that the term "exceptional cases" in the Patent Code is not limited to lawsuits brought in bad faith, the trial judge was unwilling to buck clear Fifth Circuit precedent: he denied our fee motion relying on the Fifth Circuit's bad faith standard. Today, however, the Fifth Circuit held that its previous bad faith standard (and its requirement of clear and convincing evidence) has been effectively superseded by the Supreme Court's ruling in Octane Fitness. Henceforth, "an exceptional case is one where (1) in considering both governing law and the facts of the case, the case stands out from others with respect to the substantive strength of a party's litigating position; or (2) the unsuccessful party has litigated the case in an 'unreasonable manner.'" This new standard will make it easier for defendants facing SLAPP-type lawsuits to retain counsel, as there's a significantly better chance for fee awards once courts have examined the case. Levy, however, notes that this won't help much in this lawsuit, as the trademark bully filed for bankruptcy while the appeal was pending. This not only means it's highly unlikely the $50,000 in fees requested will ever make their way to DeShong's defense team, but the filing also allowed Baker to drag out the appeals process for an additional year. This outcome doesn't help the defense team's bottom line but for free speech defenders like Paul Levy and his partners in this case, the precedent set here is the bigger win. This should act as a deterrent against future acts of censorship-via-litigation in the Fifth Circuit's jurisdiction and lays another brick on the path towards a unified judicial stance against censorship through litigation. Permalink | Comments | Email This Story

Read More...
posted 23 days ago on techdirt
The Zika virus has highlighted how much some of us hate mosquitoes. These biting insects aren't just annoying. They also spread horrible diseases. Previously, we've mentioned some plans for destroying all mosquitoes, but that's probably not the most environmentally-friendly way to go about preventing the spread of mosquito-borne infections. Also, some people seem to attract more bites than others, but how well do mosquito repellents actually work, anyway? DEET (aka N,N-diethyl-meta-toluamide) is the standard mosquito repellent, but there are a few other active ingredients that work about as well (or better in some cases). Products with picaridin and IR 3535 work about as well as DEET, and the oil of lemon eucalyptus (PMD) is a natural insect repellent that the CDC recommends. [url] Another natural mosquito repellent comes from sweetgrass, a plant native to northern North America. Sweetgrass has been tested to work about as well as DEET for at least a few minutes, and researchers are trying to isolate the active ingredients that may keep pesky insects away. [url] The use of DDT is controversial for preventing the spread of the Zika virus. The Zika virus doesn't kill adult humans, so the use of DDT and its effect on human health needs to be considered carefully before spraying it in an untargeted fashion. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

Read More...
posted 23 days ago on techdirt
Remember Hadopi? Back when the legacy copyright players were totally focused on kicking individuals off the internet via a "three strikes" program, France and its former President Nicolas Sarkozy, married to a musician, was the first to embrace the idea of kicking casual file sharers off the internet (we'll leave aside the fact that Sarkozy was a mass infringer himslef). The program that was built up around the plan was eventually called Hadopi, and created a big bureaucracy to send out threat notices. The program turned out to be a complete disaster. It issued many notices, but really had to massage the numbers to make its activities look reasonable. Even when people did lose their internet access, there were problems. A detailed academic study of Hadopi found that it was a miserable failure that actually resulted in an increase in infringement. When a new administration came into office, they made it clear that they were not impressed by Hadopi, and intended to cut its funding. And while there were efforts to kill it entirely, the government basically just gutted the system and let it live on as a shell of what it once was. However, it looks like there's been a renewed effort to kill Hadopi completely, and it actually passed a vote in the National Assembly -- but with some caveats. In a nearly empty chamber, the French National Assembly voted to end the Hadopi institution and law in 2022, Next Inpact reports. What’s noteworthy is that only 7 of the 577 Members of Parliament were present at the vote, and the amendment passed with four in favor and three against. The decision goes against the will of the sitting Government, which failed to have enough members present at the vote. While it’s being seen as quite an embarrassment, the amendment still has to pass the senate, which seems unlikely without Government support. In other words, Hadopi will likely still live on to see another day, despite its already diminished state. However, the folks who put together this bit of a publicity stunt say that they're calling attention to the fact that the government has called in the past for the end of Hadopi, and they're just trying to get the government to commit to something: “Related Greens” MP Isabelle Attard says that it’s time to end the “schizophrenic” behavior of the Government on the matter. “A choice has to be made at some point. We can’t call out Hadopi as useless and, years later, still let it linger on,” she says. While it’s doubtful that the amendment means the definite end of Hadopi, it certainly puts it back on the political agenda. Whether this will lead to actual change will become apparent in the future. For all intents and purposes, Hadopi is a shell of what it once was. It's also a standing monument to the stupidity of three strikes/graduated response plans. The government should kill it off, but while it lives on, it's a demonstration of how demands by legacy copyright industries to push for ways to protect legacy business models can create truly wasteful government spending that serves no legitimate purpose.Permalink | Comments | Email This Story

Read More...
posted 23 days ago on techdirt
We've written plenty of stories about the TTIP (Transatlantic Trade & Investment Partnership) agreement being worked on between the US and the EU. Think of it as the companion to the TPP, which covers the US and a variety of countries around the Pacific ocean. Like the TPP, the US has demanded extreme levels of secrecy around the negotiations (in the past, the US negotiating body, the USTR, has admitted that the more the public is aware of the details, the less likely they are to support the agreement). And while there have been reports out of the EU arguing that negotiators there are more willing to be more open about the negotiations, so far, the US has not allowed it. This has resulted in some crazy situations including secretive "reading rooms" where politicians are carefully guarded if they look at the current drafts -- and where they're not allowed to bring any device or copy anything from the documents. Now, Greenpeace has leaked a bunch of the TTIP documents... and also set up their own "reading room" which mocks the secrecy of the current reading rooms, by making it very, very transparent: Krasse Aktion von Greenpeace. Haben nen transparenten #TTIP Leseraum vor der US Botschaft … https://t.co/CZC0myHq5t pic.twitter.com/N0Iv8eHNwc — Sebastian Jabbusch (@SebJabbusch) May 2, 2016 As for the contents revealed, it's pretty much what everyone suspected. Most of the focus, so far, is on details showing that the US has been pressuring the EU to loosen various consumer and environmental protections in the EU. While it hasn't received as much attention, the leak also does suggest problems for digital rights, mainly by giving telcos much more power. And while the "intellectual property" chapter does not appear to be included, one of the leaks is the "tactical state of play" document. This document isn't part of the negotiating text, but a general summary on where things are... and it's fairly revealing on a variety of topics, including intellectual property. In the discussion on the intellectual property agreement, it notes that at the latest negotiation, the US refused to put forth "concrete proposals" on issues such as DRM, but the report notes that these are being pushed strongly by "rights holders." The EU, apparently, is nervous about what kind of language it will eventually see from the US. The US, in response, apparently told the EU negotiators that this would be a different kind of intellectual property chapter from the TPP: A positive feature of the twelfth round of IP discussions was the US submission, for the first time, of some texts on relatively consensual areas (international treaties and general provisions). However, the US remains unwilling to table, at this stage, concrete proposals on more sensitive offensive interests that have been expressed by some of its right holders or that are explicitly referred to in its TPA (for instance on patents, on technical protection measures and digital rights management or on enforcement). When confronted with the EU warning that bringing sensitive proposals that would require changes in EU law to the table – and doing it at a late stage of the negotiation – may have a negative impact on stakeholders and has very limited chances of being accepted, the US reiterated its understanding that the IPR chapter should not be a standard (TPP type) text, but also insisted that such a departure from its “model” creates some difficulties in terms of addressing the demands included in the IPR related sections of its TPA. The report also notes that Congress' unwillingness to pass laws to stop patent trolls or in support of (awful) broadcast rights, public performance rights and resale rights, may be an issue, since all three are important to EU rightsholders. We've covered all three issues at various points in time, and all three involve basically expanding copyright law in dangerous ways that will further limit the public's rights. In this case, it looks like it's the EU that's pushing more strongly for them, which is too bad. The public performance rights have the most forward progress in the US right now, with the push to ratify the Beijing Treaty, but hopefully that's an area where legislative indifference kills a horrifically bad idea. In short, it appears that there are a lot of competing interests on both sides of the Atlantic around the intellectual property chapter, but both sides appear to be focused almost entirely on the protectionist, anti-innovation, anti-public interests of specific rights holders and how to make them happy. There's basically no discussion of how all of this impacts the public. That's not too surprising, but it also shows why they've worked so hard to keep these documents from being seen by the public. The TTIP agreement was already way behind the TPP agreement, and it's quite doubtful that a final agreement will be reached before the new US administration is in place, which could result in some pretty massive changes in terms of what the White House is demanding. But, as of right now, the agreement looks like yet another mess where lobbyists try to divvy up the spoils in taking things away from the public.Permalink | Comments | Email This Story

Read More...
posted 23 days ago on techdirt
Back in March, Mike moderated a panel at RightsCon on the subject of intermediary liability and the delicate balancing act that platform providers have to play on that front, with lawyers from Meetup, Change.org, and Medium. This week, in lieu of a regular podcast episode we've got a recording of that discussion, which delves deeply into some of the difficult choices companies like this have to make. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

Read More...
posted 23 days ago on techdirt
Back in late 2014, we wrote about Twitter suing the US government over whether or not it was allowed to publish just how many National Security Letters and FISA Court orders it receives in its transparency report. This came after a bunch of other tech companies had settled a similar lawsuit with an agreement that they could reveal certain "bands" of numbers, rather than the specific number. It still boggles the mind that merely revealing the number of NSLs and/or FISC orders received would create any problem for national security, but the government seems hellbent on keeping that information secret. Probably because they don't want the public to understand how widely this system is used to obtain info. We had mentioned this case just a few weeks ago, noting that a bunch of companies had filed an amicus brief pointing out that it's unclear if they can even admit that they've never received such a request (i.e., it's possible that warrant canaries are illegal). Meanwhile, the DOJ has been trying to get the entire case thrown out because that's what the DOJ does. Judge Yvonne Gonzalez Rogers has now given a mixed ruling denying some of the DOJ's motion, but granting a key part concerning Twitter's First Amendment claim. The good news, though, is that the issue there is at least partially procedural, allowing Twitter to try again. Twitter had argued, of course, that it has a First Amendment right to publish this information. But the government -- and the judge -- noted in response that you don't have a First Amendment right to publish classified information if you are a party that is "subject to secrecy obligations." Under Executive Order 13526, information may be classified by the “original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.”... The First Amendment does not permit a person subject to secrecy obligations to disclose classified national security information. That said, the court notes that this is partially a procedural issue, because Twitter can (and perhaps should) first challenge whether or not the classification on those aggregate statistics is appropriate: The Court agrees with the Government that Twitter has not alleged that the information is not properly classified by the Government. Count I challenges the FISA non-disclosure provisions as being prior restraints of indefinite duration, but the claim does not take into account the fact that a classification decision is necessarily limited in duration by its nature, as the Government asserts. Along those same lines, Count II’s as-applied challenge contends that the FISA nondisclosure provisions are unconstitutional, but does not account for the fact that the Government has refused to permit disclosure of the aggregate numbers on the grounds that the information is classified pursuant to the Executive Order (not because of any FISA order or provision). Again, Twitter has conceded that the aggregate data is classified. In the absence of a challenge to the decisions classifying that information, Twitter’s Constitutional challenges simply do not allege viable claims. In short: try again, but this time challenge whether or not the aggregate data is properly classified. On the two other issues in the case, the DOJ lost both. First, it argued that since it was the FISA Court, and not the DOJ, that classified the statistics, the challenge should be under FISA's jurisdiction and not the court that it's in. The court here, disagrees, and points out that Twitter is not challenging a specific FISA ruling, but rather the aggregate data. The Government does not identify any order of the FISC addressing, as a general matter, publication of aggregate data about receipt of legal process, the crux of the matter before the Court here. Likewise, Twitter’s Amended Complaint does not challenge any prohibition on disclosure in any individual FISC order, FISA directive, or NSL. Rather, Twitter contends that the Government’s reliance on the FISA non-disclosure provisions as a basis for prohibiting disclosure of aggregate data about legal process directed to Twitter violates the First Amendment. Nothing in the Amended Complaint would require the Court to interpret, review, or grant relief from any particular FISC order or directive. The other DOJ argument was that Twitter did not have standing regarding the Espionage Act. Twitter, in its lawsuit, was seeking declaratory judgment that it is not running afoul of the Espionage Act in publishing such data. It did this because the DOJ had warned Twitter that publishing such data might violate the Espionage Act. Seems fairly straightforward, right? But the DOJ told the court that Twitter's concerns are "merely speculative" and thus it had no standing on this issue. The court isn't buying it: The Court finds that the allegations here—that Twitter presented the draft Transparency Report it planned to publish to the Government and that the Government informed Twitter that it could not publish the information because it is classified—are sufficient to show an “imminent” injury to establish Twitter’s standing here. The Government’s contention that the threat of prosecution is low because there are other avenues of recourse for Twitter to challenge individual nondisclosure orders simply does not address the issue here, reporting of aggregate data. The motion to dismiss the Espionage Act claim on these grounds is DENIED. Of course, it's the First Amendment claims that are the main show here -- and without them, the rest of the case is pretty limited. It seems likely that Twitter will file an amended complaint now, arguing that the classification was improper, but then it just becomes a fight over classification, and the government is pretty good about screaming "national security!!!!" at the top of its lungs whenever people challenge classification decisions. The alternative, of course, is that Twitter could appeal the First Amendment decision and see if the appeals court thinks the judge here got that part wrong. Either way, I imagine we'll find out soon.Permalink | Comments | Email This Story

Read More...
posted 24 days ago on techdirt
In the US, you can be given a gun and a chance to catch bullets for your country at age 18. Three years after that, the US government will finally allow you to purchase your own alcohol. At 21, you can finally be the "adult" in "adult beverages." Except in some states. Some states tie booze purchases to morality. (I mean, even more so. It's subject everywhere to "sin taxes.") As we covered here earlier, the state of Idaho says adults can drink booze and watch movies meant for mature audiences, but not always simultaneously. In Idaho, state police have been busting theaters for showing certain movies while serving alcohol, thanks to statutes that say it's illegal to serve up both booze and "simulated sexual acts." In Idaho, theaters are trying to get the law ruled unconstitutional -- pointing out that the law is only selectively enforced (cops raid theaters showing "Fifty Shades of Gray" rather than "American Sniper," even though both contain depictions of sexual acts) and allows the state to use liquor statutes to regulate speech. Over in Utah, the same problem exists. The theater targeted here -- Brewvies -- isn't taking the state to court. Yet. Instead, it's fighting to stay alive. It appears a bunch of cops went to see a movie they probably wanted to see anyway while on the clock and handed the theater an ultimatum. Brewvies is facing a fine of up to $25,000 fine and could lose its liquor license after undercover officers attended a screening of Marvel's R-rated antihero film "Deadpool" in February. The state says playing "Deadpool" while serving booze violates Utah law because the movie includes nudity and simulated sex, including a suggestive scene in the film's credits involving a cartoon unicorn. The obscenity law is generally used to regulate strip clubs, which are required to have dancers wear G-strings and pasties if the club serves liquor. It also bans showing any film with sex acts or simulated sex acts, full-frontal nudity or the "caressing" of breasts or buttocks if at businesses with liquor licenses. In addition to seeking funds to pay the threatened fine, the theater is hoping to raise enough to seek an injunction against the statute on the same grounds as the challenge in Idaho: that liquor laws are being abused to regulate First Amendment activity. The theater is seeking $75,000 and Deadpool himself, Ryan Reynolds, has already pitched in. The theater has since set up a gofundme page and has raised, at the time of writing, $17,352 out of its $75,000 goal. $5,000 of that came from Deadpool star Ryan Reynolds himself. The underlying problem is the state's insistence on deciding what the right combination of booze and entertainment should be for a state full of adults who are legally allowed to do other things far more "adult" than having a beer while watching a movie that contains depictions of sexual activity. Why either activity is OK when enjoyed separately, but somehow a problem when combined, is something only the state pretends to comprehend. These are leftover laws meant to regulate sexually-oriented businesses like strip clubs and porn theaters, but they're being used to extract fees from theater owners who want to treat adults like adults. Like any other badly-written law, it's being enforced selectively with an eye on easy citations and excessive fines. Permalink | Comments | Email This Story

Read More...