by Mike Masnick
Mon, Aug 29th 2011 12:28pm
by Mike Masnick
Thu, Aug 25th 2011 7:00pm
from the oops dept
by Mike Masnick
Wed, Aug 24th 2011 2:00pm
from the free-speech-isn't-free dept
That is, the key issue isn't whether BART needed to keep its mobile phone service up all the time. If it goes down for maintenance, that's fine. But it can't turn it off if the decision is to try to block a particular type of speech. And that's exactly what BART clearly admitted to doing. Of course, it's not just the First Amendment at issue. There's also telecom law, and it appears BART violated that too.
Telecom lawyer/consumer rights advocate Harold Feld has a long and detailed explanation for why the shut down both violates telecom law and is also just a bad idea in general. It's pretty detailed, pointing out the specific citations in telecom law that were violated and a series of relevant caselaw decisions. There's a lot in there, but here's a key citation that reads like it could apply almost directly to the BART situation:
In Pike v. Southern Bell Tel. &Telegraph Co., 81 So.2d 254 (Ala. 1955), Mr. Connor, in his capacity as Commissioner of Public Safety for the City of Birmingham, ordered Southern Bell to remove the telephone of one Louis Pike, described by Mr. Connor as “a negro” of “questionable character” alleged by Mr. Connor to be a “well-known lottery operator in the city” and to be using his phone for unspecified “illegal purposes.” Reviewing cases from other jurisdictions (including People v. Brophy), the Alabama Supreme Court found that the right of every citizen to use a phone was guaranteed by federal law and could not be deprived without due process. As the Court observed:
The present tendency and drift towards the Police State gives all free Americans pause. The unconstitutional and extra-judicial enlargement of coercive governmental power is a frightening and cancerous growth on our body politic. Once we assumed axiomatic that a citizen was presumed innocent until proved guilty. The tendency of governments to shift the burden of proof to citizens to prove their innocence is indefensible and intolerable.
We are not able to glean from the bare conclusions set up in the letter of the Commissioner, whether it is claimed that the “illegal” use of the telephone was by the appellant, her husband, or a total stranger. From aught that was alleged in the plea, except for the conclusion of the Commissioner, no “illegal” use of any type was made of this telephone by any one.
The notice alleged to have been received by the Telephone Company was couched in the terms of a direct order from the Commissioner of Public Safety. What is the source of Mr. Connor’s authority to issue such an order? We know of none. And we hold that none exists.
If we took a contrary view, it would naturally flow and follow that the telephone company would be justified in acting on the notice of any over-zealous law enforcement official who, without evidence, and on mere suspicion, is impressed with the bad character or occupation of a particular telephone subscriber. The letter from Commissioner Connor set up in the plea is no defense. It is the Telephone Company’s burden to show that the use being made of the telephone did, in fact, justify its removal.
These depredations of a subscriber’s legal right to telephone service constitute a denial of due process guaranteed by the Constitution of 1901, art. 1, § 6. The gratuitous and arbitrary action of a police official is no justification for an abridgment of this right. To hold that the Telephone Company is justified in discontinuing service by “order” of a police official would require judicial recognition of a police power which does not exist. The bald assertion of an executive officer, be he the Attorney General of the United States or a constable of some remote beat, cannot be accepted as a substitute for proof in the judicial process. No presumption arises as to the sufficiency of evidence based on a law enforcement officer’s conclusions.
Similarly, the BART's possession of “intelligence” that individuals may use their mobile phones to coordinate illegal activity does not confer “police power that does not exist.” BART must still go to the California agency with actual jurisdiction, the CPUC, and obtain a legal order authorizing the shut down of cellular service.
by Mike Masnick
Tue, Aug 16th 2011 8:31am
from the and/or-the-first-amendment dept
by Mike Masnick
Fri, Aug 12th 2011 2:59pm
from the really-now? dept
As an added precaution, the agency shut off cellphone service on the station's platform. While Alkire said the tactic was an unusual measure, he said it was "a great tool to utilize for this specific purpose" given that the agency was expecting a potentially volatile situation.That's really quite incredible, and I'm at a loss to see how that could be allowed. Because BART feared people protesting it literally shut down mobile phone service at its station? Since this particular station is underground, it has special equipment as regular cell towers don't reach the station. However, that shouldn't give BART officials the right to just turn off the service because they're unhappy that people might protest.
by Mike Masnick
Fri, Jul 1st 2011 12:44pm
from the seriously? dept
But, lots of people don't understand technology and people around the world, including in governments, freaked out about this data collection. So, of course, people started filing highly questionable class action lawsuits. As more and more such lawsuits were filed, they were all consolidated into a single court. Earlier this year, we noted that the judge was trying to determine if Google's actions amounted to an illegal wiretap under ECPA (the Electronic Communications Privacy Act).
If you understand how wireless networks work, the idea that this is wiretapping is hilarious. And wrong. This is data that is broadcast in the open. Anyone can read it. You don't need special equipment or anything. You just need basic software to see what data is traveling across the network.
Tragically, the judge has gone the other way on this point (so far). Google had asked for the wiretapping/ECPA claim to be dismissed, as it claimed (quite reasonably) that it wasn't wiretapping. The judge put together an astoundingly confused ruling that decides otherwise. While the link here blames the wording of ECPA, which is certainly partly to blame, I think the judge's confusion over the technology is equally at fault. Basically, it's true that ECPA is somewhat vaguely worded, but it does say that:
It shall not be unlawful under this chapter or chapter 121 of this title for any person... to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general publicFurthermore, the statue defines "readily accessible to the general public... with respect to a radio communication" by saying that it is the case if the communication is "not scrambled or encrypted."
So, this should be open and shut. An open WiFi network is clearly readily accessible to the general public by its nature. And the statute doubles down on that point by noting that the communication was not scrambled or encrypted, and thus is, by the definition in the statute, "readily accessible to the general public."
So we're done here. Right? Not unlawful. Except... no. The judge instead goes through some of the most convoluted reasoning imaginable to try to claim that data transmitted over WiFi is not radio communication. Say what now? It is true that ECPA was drafted before WiFi existed, but that doesn't mean it's not a radio communication. That's what all wireless communication is. It's a form of radio communication. That's just basic technology. But not to this judge. And, thus, Google doesn't get to dismiss the wiretapping charges. Hopefully they'll appeal and somewhere up the chain this will be corrected.
by Mike Masnick
Fri, Jul 1st 2011 1:42am
from the this-won't-end-well dept
So, Microsoft apparently got together with Apple, EMC, Ericsson, RIM and Sony... and coughed up an insane $4.5 billion. It's kind of brilliant in a nefarious way. With six companies together, they could each spend less than the $900 million initially pitched by Google... and then just all agree not to sue each other, but leave open the option to sue anyone else. And, given just how aggressive these companies have been with patents lately, you can rest assured that "license" demands will be made and there will almost certainly be lawsuits. Progress via the courtroom, apparently.
by Mike Masnick
Tue, Jun 14th 2011 8:36am
from the say-what-now? dept
The proposed merger between AT&T and T-Mobile will be a giant stride toward providing ALL Texas children quality educational opportunities and experiences. Every Texas student, whether they attend school in inner-city Houston or in rural West Texas, should have access to modern technological advancements, including high-speed wireless Internet.He doesn't explain much further. He does explain the importance of wireless broadband, which is great, and we agree that there should be more of it, especially for schools. But what does allowing AT&T and T-Mobile to merge have to do with that at all? The real answer is nothing whatsoever. Nothing in the merger will make it any more or less likely that Texas schools will get mobile broadband. But, Rogers is sure of it:
The resources made available by the merger would make high-speed wireless available to many Texans, both rural and urban. This is vitally important for schools in rural Texas that will finally have the ability to access a high-speed wireless broadband network and all it brings.
I know of what I speak when I say that Texas--in particular our rural schools--will benefit substantially from this merger. To deny the educational opportunities this merger would provide to students living in rural areas would do our children a disservice. This merger will ensure that every young Texan will be learning and performing to the best of their abilities.I know of what I speak when I say the above is pure hogwash. Whether or not you think the merger makes sense, it has nothing whatsoever to do with broadband in schools. And it certainly would not "ensure" that "every young Texan will be learning and performing to the best of their abilities." It's incredibly disingenuous for someone supposedly heavily involved in children's education to suggest that some totally unrelated corporate merger will somehow "ensure" that kids are learning to the best of their abilities.
from the not-this-again dept
pay particular attention to "electrosensitive" persons suffering from a syndrome of intolerance to electromagnetic fields and introduce special measures to protect them, including the creation of wave-free areas not covered by the wireless network;How many times does this claim of "electrosensitive" persons need to be debunked? There is a ton of evidence that no such thing as electrosensitivity exists. There are studies that suggest the symptoms are real -- but they are not caused by exposure to electromagnetic fields (they may be caused by the person's own brain, or they may be some third factor). But there has been no serious study that has shown, in a controlled setting, that anyone can successfully and repeatedly "sense" when there's an electromagnetic field around. And we're talking dozens of studies on this, with pretty much all turning up the same result. So why should anyone create "wave free areas" since the evidence shows it won't actually do anything.
The proposal also suggests limits on wireless technology use even in your own home, saying that "preventative thresholds" should be established.
The proposal fails to cite any significant evidence to support most of its claims, instead choosing to use circumstantial claims -- such as noting that since there's an "ongoing public debate" about this, we should block it until that's all been worked out.
by Mike Masnick
Thu, May 19th 2011 10:13pm
from the nicely-done dept
Thus, in order to preserve internet access for those who work at the library, many New Zealand libraries are considering turning off internet access for the public (via TorrentFreak. This is a ridiculous and unfortunate result, but it's what happens when you have politicians making decisions based on economic and technological cluelessness, driven by specific lobbying interests.