Around and around we go, when the futility will stop, nobody knows. I'm referring, of course, to a large swath of government and industry groups around the world that apparently just love to play whac-a-mole with torrent sites, which don't host infringing files. If you're not familiar with the carnival game of the same name, it goes something like this. A mole pops out of a hole and you bludgeon that little bastard with a man-hammer. Then another one pops up from another hole. After bashing that one, another one pops out elsewhere. This goes on for exactly as much time as it takes the person playing to decide it would be much more productive to consume thirty corn dogs and puke all over themselves.

The face that launched a thousand mallets
Image source: CC BY 2.0

The latest challenger in this stupid, stupid game? The Philippines. At the request of the Filipino record industry, with some help from their US counterparts, the government seized infamous torrent tracker site Kickass Torrents. The government notes that they're only following the lead of the United Kingdom, who similarly censored KAT back in February. So, once again, we have private industry managing to get government to act as their knee-cap hit squad. Rather, that would be a decent description if the mole wasn't able to simply pop back up out of another hole, which it did.

Local record labels and the Philippine Association of the Recording Industry said that the torrent site was doing “irreparable damages” to the music industry and following a formal complaint the authorities resorted to seize of the main domain name. The torrent site hasn’t given up and is operating as usual under a new domain name.

In other words, this was a pointless exercise in parlor game futility. Instead of finding new ways to compete, the recording industry would rather whack away at those pesky moles. My advice? Well, I suggest, as always, corn dogs.

We've pointed out before how stupid it was for people like Jammie Thomas and Joel Tenenbaum to fight the copyright infringement lawsuits launched against them. In Tenenbaum's case it was monumentally stupid, because he flat out lied to the court and then had to admit it in court. You don't do that. Lying to a court is not only stupid in general, but it completely taints any underlying issues that may actually be important, and predisposes the judge against you. There are often good reasons to fight back against copyright lawsuits, but if you actually infringed and then lied about it that's a really bad reason to fight back.

Unfortunately, it looks like there was a similar situation in one of the big copyright trolling cases last week. Last fall, we wrote about how Judge Michael Baylson decided to force a group of Malibu Media copyright trolling cases to trial, after it became apparent that Malibu Media didn't seem particularly interested in going through with a trial (similar to most copyright trolls). Unfortunately, it then came out that one of the "selected" defendants lied, committing perjury, and (on top of that) destroyed the evidence. This is just ridiculously stupid.

In the end, all of the defendants "settled," but the case still had a sort of sham trial. Yes, there was no reason for the trial, since everyone basically settled, but the lawyer for Malibu, Keith Lipscomb, asked the court to enter a "final judgment." That basically allowed the judge to rail against the stupid defendant who lied and destroyed evidence (who deserves to be yelled at by the court for his actions), but it also now allows Lipscomb to use the "judgment" of $112,500 to threaten many others who are not in the same situation as the guy who lost. There's a good summary from lawyer John Whitaker, who found the whole thing baffling.

In sum, all of the defendants stipulated to liability before the trial. Plaintiff had already agreed not to seek damages against two of the three defendants. The third defendant stipulated to liability. Malibu Media and the third defendant asked the judge to enter a finding on damages, even though they had already agreed on what he would pay.

So there was absolutely nothing at issue during the trial. Not liability. Not damages. Nothing.

Then there was the 'trial' itself. The only party to actually put on a witness was Malibu Media. None of the defendants even cross-examined a witness. Really?

What kind of trial is it where the defendant doesn't challenge any of the plaintiff's witnesses or even put on any witnesses of its own? A sham, that's what.

So why was there even a trial? I have no idea.

Well, actually, he points out, everyone knows why:

It was all about Malibu Media trying to get Judge Baylson to write a document that Malibu Media could use in all its demand letters from now on. I'll point out that, to his credit, Judge Baylson had to tell Lipscomb numerous times that he would not be Lipscomb's advertising spokesman. I think what he said was he wasn't interested in writing anything that was "commercially valuable" to Malibu Media.

If the goal wasn't to be "commercially valuable" to Malibu, it looks like it failed. In the aftermath of the ruling, Malibu Media filed dozens of new trolling lawsuits. Yes, the defendant deserved to lose. Infringing by downloading the work, then lying about it to the court and destroying evidence should be punished. But it's a shame that all it's doing in this case is enabling more copyright trolling shakedown behavior.

Bad cases make bad law, and this was clearly a bad case, which was made even worse by the actions of that particular defendant. I'm not saying he should have gotten off free, but the end result here is going to lead many others to feel obligated to pay up when they probably shouldn't.

This will come as no surprise to anyone, but NSA boss General Keith Alexander is pestering Congress for a new law which would provide blanket immunity for companies helping the NSA collect data on everyone.

Gen. Keith Alexander has petitioned Capitol Hill for months to give Internet service providers and other firms new cover from lawsuits when they rely on government data to thwart emerging cyberthreats.

Basically, he's arguing that if the NSA orders companies to do something illegal, the companies shouldn't be liable for that. There's some logic behind that, because when you get an order from the government, you often feel compelled to obey. But, of course, the reality is that this will give blanket cover for companies voluntarily violating all sorts of privacy laws in giving the NSA data. And, theoretically you could then sue the government over those violations, but we've seen in the past how well that goes over. First, the courts won't give you "standing" if you can't prove absolutely that your data was included. Then, if you get past that hurdle, the government will claim "national security" or sovereign immunity to try to get out of the case. And, even if it gets past all of that, and you win against the government, the feds shrug their shoulders and say "now what are you going to do?"

And, of course, rather than narrowly target this immunity, it appears that Alexander would like it as broad as possible.

One former White House aide told POLITICO that Alexander has been asking members of Congress for some time to adopt bill language on countermeasures that’s “as ill-defined as possible” — with the goal of giving the Pentagon great flexibility in taking action alongside Internet providers. Telecom companies, the former aide said, also have been asking Alexander for those very legal protections.

Given the revelations of the past few weeks, this seems like the exact wrong direction for Congress to be heading. We should want companies to push back against overaggressive demands from the government for information. Giving them blanket immunity would be a huge mistake and only enable greater privacy violations.

Add Al Gore's voice to those who are speaking out against the NSA's dragnet surveillance practices. The former Vice President not only said the practice was un-American, but also unconstitutional in violation of the 4th Amendment.

"This in my view violates the constitution. The fourth amendment and the first amendment – and the fourth amendment language is crystal clear," he said. "It is not acceptable to have a secret interpretation of a law that goes far beyond any reasonable reading of either the law or the constitution and then classify as top secret what the actual law is."

Gore added: "This is not right."

I keep seeing people trying to defend the program due to a single Supreme Court ruling -- Smith v. Maryland -- a 1979 case that gave rise to the "third party doctrine," which argued that if you give data to a third party, you no longer have any expectation of privacy in that data. Of course, the situation specific to that case was exceptionally different and took place in a very different world. By any plain meaning of the phrase "expectation of privacy" people certainly do not think that they're giving up their expectation of privacy just because they use an online service.

What's amazing is that the 4th Amendment is not that complicated, and certainly does not put up some giant barrier for law enforcement. All they have to do is show probable cause and get a warrant. All of this freaking out is showing that they know that they can't show probable cause to get all this data. And that should ring lots and lots of alarm bells. Thankfully, some principled politicians are seeing this and understanding the massive problems with a surveillance state.

We already discussed how bizarre it is to see NSA defenders trying to claim both that this story is nothing new and a huge danger to America, but that kind of thing continues. Witness two of Congress' biggest NSA defenders, Rep. Mike Rogers and Rep. Dutch Ruppersberger -- the two sponsors of CISPA -- try to claim that Snowden was both lying and exposing secrets that harm us all.

"He was lying," Rogers said. "He clearly has over-inflated his position, he has over-inflated his access and he's even over-inflated what the actually technology of the programs would allow one to do. It's impossible for him to do what he was saying he could do."

"He's done tremendous damage to the country where he was born and raised and educated," Ruppersberger said.

So, um, if he's lying and the information he leaked is not true, then how is he doing "tremendous damage" to the country? I guess the "damage" could be to our reputation as a freedom loving country that respects the 4th Amendment and basic rights to privacy, but that doesn't seem to be what Ruppersberger is claiming.

"Some people are saying that he's a hero. He's broken the law," Ruppersberger said. "We have laws in the United States for whistle-blowers, for people that think there's an injustice being done. All he had to do was raise his hand. ... Under the whistle-blower law, he is protected. Yet he chose to go to China."

Er... except we've seen exactly what happens to NSA whistleblowers who go that route. They get completely ignored and then charged with trumped up claims of leaking secrets anyway, and threatened with over 30 years in jail. It's pretty clear that just "raising his hand" doesn't work and actually puts you even more at risk. Furthermore, the current "whistle-blower" law is rarely used and even more rarely successful, with whistleblowers almost never winning their cases.

"I hope that we don't decide that our national security interests are going to be determined by a high-school dropout who had a whole series of both academic troubles and employment troubles," Rogers said.

Yup. The best Rogers can do is try to smear the guy, rather than respond to what he actually leaked, which is apparently all lies, but threatens us all. Sorry, Rogers, but the story doesn't hold up.

Retired federal judge Nancy Gertner, who has appeared in stories here for years (she was the original judge in the Tenenbaum trial, and also spoke out about how US attorney Carmen Ortiz handled the Aaron Swartz case), has now highlighted a very important point about all of the NSA surveillance stories: at the heart of much of it is the secretive FISA court, and that court should not be trusted.

As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced.

Two reasons: One … The Fourth Amendment frameworks have been substantially diluted in the ordinary police case. One can only imagine what the dilution is in a national security setting. Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me. Enough said....

It’s an anointment process. It’s not a selection process. But you know, it’s not boat rockers. So you have a [federal] bench which is way more conservative than before. This is a subset of that. And it’s a subset of that who are operating under privacy, confidentiality, and national security. To suggest that there is meaningful review it seems to me is an illusion.

The "judges" on the FISA Court are appointed by the Chief Justice of the Supreme Court. And that's it. As we were just discussing, they hear only one side of a case, and their rulings are kept secret. When you have a party that only hears one side of things and never, ever has to be subject to public review or criticism of decisions, take a wild guess what happens? You get a court that is judicially captured, and sides very much with the intelligence infrastructure that it spends most of its time dealing with.

On top of that, there's a very big question: why are these rulings secret? Something like an interpretation of the law should never, ever be considered secret. Yes, it makes sense to keep something secret if it exposes direct information on a specific case that is being worked on, but basic rulings about what the law actually says should never be. But they are, because the FISA court can do that sort of thing. And that's a huge problem. Late last year, we had a post linking to a story by another former judge, Andrew Napolitano, explaining why the entire FISA court was almost certainly unconstitutional:

The constitutional standard for all search warrants is probable cause of crime. FISA, however, established a new, different and lesser standard -- thus unconstitutional on its face since Congress is bound by, and cannot change, the Constitution -- of probable cause of status. The status was that of an agent of a foreign power.... Over time, the requirement of status as a foreign agent was modified to status as a foreign person. This, of course, was an even lesser standard and one rarely rejected by the FISA court.

With everything that's been going on, most of the attention has been on the administration -- including both the NSA and the DOJ -- as well as some companies participating in the various surveillance programs. But, increasingly, it seems that perhaps a lot more attention should be paid to the entire concept and structure of the FISA court.

We already commented on FBI director Robert Mueller arguing that the NSA's mass surveillance techniques would have prevented 9/11, and now it appears that Dick Cheney is agreeing with this fictional scenario in which his crystal ball says what might have happened:

"As everybody who's been associated with the program's said, if we had had this before 9/11, when there were two terrorists in San Diego — two hijackers — had been able to use that program, that capability, against that target, we might well have been able to prevent 9/11," Cheney said on "Fox News Sunday."

That's speculation based on nothing, frankly. As has been widely covered, there were a number of reasons why the government failed to stop 9/11, just as there were plenty of reasons it failed to stop the Boston bombings back in April. The idea that this program would have stopped one (while it clearly missed the other) isn't particularly convincing.

Of course, none of that gets to the bigger question of whether or not it's worth it. In theory, we could stop all sorts of crimes by putting military personnel and equipment in the streets, with the power to invade any home and do a full search. But we don't allow that. Because that's a violation of our privacy. And, yes, the loss of life from a terrorist attack is tragic and horrifying -- but many more people are killed in car accidents, and we don't freak out about that and take away everyone's cars. Giving up our basic principles of freedom on the off chance it might possibly stop a terrorist attack (while still missing other terrorist attacks) doesn't really seem like living up to the basic ideals of this country.

As we've noted before, Hadopi has been a colossal failure on just about every metric, and now seems on the way out. But French taxpayers' money is still being wasted on the scheme, which continues to send out huge numbers of warnings. Ironically, given its imminent demise, Hadopi seems to have finally claimed its first disconnection victim, as PC Inpact reports (original in French.) The person involved has been sentenced to disconnection for 15 days, and must pay a €600 fine. Strangely, it seems that he or she shared only a couple of works, so even that brief period seems harsh. However, there is still scope for an appeal, so the sentence is not yet definite.

And as PC Inpact explains, even if it is confirmed, it may be unenforceable: although access to the Web can be cut, Hadopi's rules state that the filtering must not affect email, private messaging, telephone or any associated TV services. Since these are typically all provided together, that may be tricky, or even impossible. Hadopi says it only hands out suspensions: it doesn't concern itself about how -- or even if -- they can be implemented.

So after years of operation, all that the three-strikes approach has to show for the millions that have been spent, are a handful of convictions: one where someone was fined but innocent, and another where the person involved probably can't be disconnected anyway. Great work, Hadopi.

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Last week, we thought it was ridiculous enough that the DoD (of which the NSA is a key part) had reminded all staff that they were not allowed to look at any of the leaked NSA documents, even if they came across them in the press. If they spotted any, they had to alert various security officials and delete what they saw "by holding down the SHIFT key while pressing the DELETE key for Windows-based systems and clearing of the internet browser cache." As we noted at the time, pretending these documents aren't public does not make much sense, and suggests a government agency that does not want to live in reality.

Now we can add Congress to that list as well. Senate staffers have now been told not to look at the leaked documents, and similarly that they need to "contact the Office of Senate Security for assistance" if they happened across any of the documents accidentally. Once again, this is insane because it means Congress should deny reality and pretend to live with its collective head in the sand -- which is no way to govern.

However, the much bigger deal is that if this were actually obeyed (and it's not), this would effectively hinder Congress's required duty of oversight of the NSA to prevent abuse. If the very Congress that's supposed to monitor the NSA's practices, and which has already been directly lied to by the intelligence community is now being told that it can't even look at the leaks to understand what's going on, how the hell are they supposed to do their oversight job?

Furthermore, last week, we pointed to some video of Rep. Grayson on the House floor giving an impassioned speech about the leaks... and displaying many of the leaked NSA docs blown up on an easel. If Congress isn't allowed to look at them, but Congress is also presenting them on the floor of the House and broadcasting live on C-SPAN and YouTube for the world to see... was the rest of Congress just supposed to avert its eyes while Grayson spoke? Is that a reasonable world?

Last week, NSA boss Keith Alexander insisted that the various NSA surveillance programs had stopped "dozens" of terrorist attacks. This apparently confused Senators Ron Wyden and Mark Udall -- both on the Senate Intelligence Committee and privy to any such reports -- who claimed that they'd seen no such evidence. Over the weekend, the NSA released no actual evidence, but rather just reiterated the claim that it had stopped "dozens of potential terror plots" in "more than 20 countries."

Note, by the way, the use of the word "potential." That gives the NSA an awful lot of wiggle room, and we've seen before that when you give the NSA wiggle room around some language choices, they take it.

But, the bigger issue is that without presenting any actual evidence on these situations, it's impossible to know whether or not the NSA really needed this massive data collection to stop those "potential" plots. As we've already seen, in the one case where the NSA has said the programs were useful, it quickly became clear that they were not necessary, and traditional policework actually did the bulk of the effort in identifying the plot.

In the same release, the NSA also said that it had only "checked" 300 phone numbers last year against that giant database of every phone call that it collects. They released this tidbit of info to try to calm people's fears that the program wasn't targeting them. But, it seems like this datapoint completely works in the other direction. If the NSA only needs to check 300 phone numbers, no way should it have every phone call made by everyone in its database. Three hundred is a small enough number that it's clearly not unduly burdensome to walk their lawyers down to court and show why each and every one of those numbers matters, and then go from there.