The district court’s conclusion that rules governing personal jurisdiction and venue provide no impediment to pre-Rule 26 discovery of the ISPs is legal error. A showing of “good cause,” which is required for discovery ostensibly intended to identify defendants, requires an evaluation of whether the information sought from the ISPs would be used to name and serve defendants in the forum. See, e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352-53 & n.17 (1978) (where “the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied”). The Copyright Act and the District of Columbia’s long-arm statute limit the court’s reach to defendants who reside in the district. And the uncontroverted evidence before the district court showed that few, if any, of the targeted Internet subscribers reside in the District of Columbia—as publicly available geolocation software used by Plaintiff’s counsel in other cases confirms. The district court’s decision to defer any consideration of personal jurisdiction or venue until after the subscribers’ personal information had been disclosed to Plaintiff requires reversal.

The court’s decision to permit discovery of the ISPs before deciding whether the 1,000-plus “Does” are misjoined provides an additional basis for reversal. Plaintiff, by routinely declining to name and serve defendants after obtaining the subscribers’ personal information, virtually ensures that Rule 20’s requirements for joinder will go unaddressed if not evaluated at the outset. And as a growing majority of courts have concluded, deferring a ruling on joinder deprives the courts of filing fees and encourages a proliferation of improperly coercive lawsuits. Given the groundswell of published opinions that disagree with the lower court and have severed or dismissed non-resident “Does” or all Does except for “Doe No. 1,” deferring a ruling on joinder in a suit that seeks nationwide subscriber information also encourages forum shopping—as the record here shows persuasively.

The record reflects that Plaintiff’s counsel’s cases have migrated across the country, with the venues selected, not by the locus of the parties or situs of harm, but based on counsel’s perceptions of which forum is most likely to authorize the greatest discovery, at the lowest cost, with the least judicial oversight.

The specter of intra-district, judge-specific shopping in Plaintiff’s counsel’s cases further underscores the problem with the lower court’s approach. The ISPs raised below Plaintiff’s counsel’s practice of filing complaints and dismissing them vel non based on the judicial assignment—only to re-file in another court. When presented with the same facts, Judge Wilkins quoted with approval Judge Huvelle’s finding: “Plaintiff’s actions a[re] akin to ‘judge shopping.’… This Court could not agree more.” ...

The ISPs respectfully submit that the district courts in this Circuit should not be the destination for 1,000-plus Doe cases that are brought primarily to compile mailing lists—not to adjudicate actual cases or controversies.

AF Holdings and its counsel owe a duty of candor to the Court, and a duty of fairness to appellants.... The serious issues concerning attorney misconduct and potentially forged documents were not identified for the court below; they necessarily affect the “good cause” analysis and provide an alternative basis for reversal to address the evidence now being considered in the pending disciplinary proceedings in the Central District of California.

Specifically, in a series of cases beginning with Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756, 760-61, 342 N.J. Super. 134 (App. Div. 2001), courts have adopted a balancing standard to assess requests for early discovery to identify anonymous online speakers that protects the right to speak anonymously while at the same time ensuring that plaintiffs who have valid claims are able to pursue them. Without such a standard, abusive plaintiffs could too easily use extrajudicial means against defendants from whom they could not, in the end, obtain judicial redress. See Levy, Litigating Civil Subpoenas to Identify Anonymous Internet Speakers, 37 Litigation No. 3 (Spring 2011).

The use of BitTorrent to select and share movies is expressive and, therefore, protected by the First Amendment. Call of the Wild Movie, 770 F. Supp. 2d at 350 (“[F]ile-sharers are engaged in expressive activity, on some level, when they share files on BitTorrent, and their First Amendment rights must be considered before the Court allows the plaintiffs to override the putative defendants’ anonymity.”).

Although the expressive aspect of the conduct alleged here – the posting of copyrighted movies to BitTorrent – is somewhat minimal, that does not mean that discovery to identify the anonymous user without adequate initial evidence that individual Doe Defendants committed the alleged infringement. The weakness of AF Holdings’ assertions of personal jurisdiction and proper joinder means that First Amendment concerns weigh more strongly here in favor of quashing the subpoenas. Certainly it was not appropriate for the district court to ignore the question altogether.

In enacting the ECPA, Congress concluded that customers may not retain a “reasonable expectation of privacy” in information sent to network providers. . . [I]f the contents of an unopened message are kept beyond six months or stored on behalf of the customer after the e-mail has been received or opened, it should be treated the same as a business record in the hands of a third party, such as an accountant or attorney. In that case, the government may subpoena the records from the third party without running afoul of either the Fourth or Fifth Amendment.

If nothing else, these records show that federal policy around access to the contents of our electronic communications is in a state of chaos. The FBI, the Executive Office for U.S. Attorneys, and DOJ Criminal Division should clarify whether they believe warrants are required across the board when accessing people’s email. It has been clear since 1877 that the government needs a warrant to read letters sent via postal mail. The government should formally amend its policies to require law enforcement agents to obtain warrants when seeking the contents of all emails too.

More importantly, Congress also needs to reform ECPA to make clear that a warrant is required for access to all electronic communications. Reform legislation is making its way through the Senate now, and the documents released by the U.S. Attorney in Illinois illustrate that the law can be fixed without harming law enforcement goals. If you agree that your email and other electronic communications should be private, you can urge Congress to take action here.

II. “Drone” means an unmanned flying machine that is capable of:

(a) Capturing images or sounds of objects or people on the ground, in or about buildings or structures, or in the air;
(b) Intercepting communications on the ground, in or about buildings and structures, or in the air; or
(c) Firing a bullet, LASER-type ray, other projectile or any kind of lethal or non-lethal weapon.

First to testify was a Brigadier General from the US Army. He began by firmly reminding the committee that the airspace above New Hampshire was not owned by New Hampshire, but by the United States of America, and therefore controlled by the FAA. One of the committee members challenged him as to where that authority came from. The General was kind enough to quote chapter and verse. There were no more questions.

We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors.

If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear.

The upshot is that (1) similarity of content, (2) strong motives, (3) prior behavior, and (4) capacity all point to a very strong likelihood that the Government will intercept at least some of the plaintiffs’ communications, including some that the 2008 amendment, §1881a, but not the pre-2008 Act, authorizes the Government to intercept. At the same time, nothing suggests the presence of some special factor here that might support a contrary conclusion. The Government does not deny that it has both the motive and the capacity to listen to communications of the kind described by plaintiffs. Nor does it describe any system for avoiding the interception of an electronic communication that happens to include a party who is an American lawyer, journalist, or human rights worker. One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how strong. But the same is true about most, if not all, ordinary inferences about future events. Perhaps, despite pouring rain, the streets will remain dry (due to the presence of a special chemical). But ordinarily a party that seeks to defeat a strong natural inference must bear the burden of showing that some such special circumstance exists. And no one has suggested any such special circumstance here.

Consequently, we need only assume that the Government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the Government will intercept at least some electronic communication to which at least some of the plaintiffs are parties. The majority is wrong when it describes the harm threatened plaintiffs as “speculative.”

Two key memos outlining the Justice Department's views about when Americans can be surreptitiously tracked with GPS technology are being kept secret by the department despite a Freedom of Information Act lawsuit filed by the ACLU to force their release. The FBI’s general counsel discussed the existence of the two memos publicly last year, yet the Justice Department is refusing to release them without huge redactions. 

The word "see" is obviously some sort of joke because there's absolutely nothing to "see" here, unless you consider To, From and Subject fields to be the "smoking gun." Oh, and this one paragraph that leads into 56 straight pages of black ink.

In United States v. Jones, 132 S. Ct. 945 (2012), the Supreme Court affirmed the suppression of location data generated by a GPS tracking device surreptitiously affixed to a car without court authorization and monitored continuously over a 28-day period.

The Justice Department's unfortunate decision leaves Americans with no clear understanding of when we will be subjected to tracking — possibly for months at a time — or whether the government will first get a warrant. This is yet another example of secret surveillance policies — like the Justice Department's secret opinions about the Patriot Act's Section 215 — that simply should not exist in a democratic society.

[The] second memoranda [sic] is going to be about guidance about what this means for other types of techniques, beyond GPS, because there's no reason to think that this is going to just end with GPS and some of that is going to be very much a judgment call.

General Verrilli, can you be specific on who that person would be? Because, as I understand it, it's unlikely that, for example, the lawyers in this case would be charged with any criminal offense. It's more probable that their clients would be; but, according to the government, their clients have no Fourth Amendment rights because they are people who are noncitizens who acted abroad.

So it's hard for me to envision. I see the theoretical possibility, but I don't see a real person who would be subject to a Federal charge who could raise an objection.

JUSTICE KAGAN: Well, is it really such speculation, General? I mean, just imagine that -- yourself in this lawyer's position, and the lawyer says, I'm representing a person associated with a terrorist organization, I'm representing KLM in the case of one of these lawyers, and I'm going to be talking to that person's family members and associates and trying to find out everything that I can.

Now, as a lawyer, would you take precautions, or would you pick up the phone and start writing e-mails to all those people?

GENERAL VERRILLI: If I took precautions, it would be because of a belief that I had to comply with an ethics rule, and the ethics rule would be the cause of me taking those precautions. It doesn't change the standard.

JUSTICE KAGAN: I don't even think it has to do with an ethics rule. If you're a good lawyer -forget the ethics rule and how the ethics rules apply. Are you really going to tell me that you, as a lawyer, would just pick up the phone in the face of this statute and talk to these terrorists' associates?

CHIEF JUSTICE ROBERTS: You have two arguments; one is likelihood of future injury and the other is present obligations or cause. I want to focus on the former. Our standard is certainly impending, and you articulated it by saying, substantial risk. There is obviously a vast difference between those two.

MR. JAFFER: Well, I don't think, Your Honor, that the Court has settled on certainly impending. The cases that the -- the Government cites are cases like -- I think that the one that the Government cites, relies on most heavily is Summers. But in Summers, the distinction between likelihood and certainly impending was not one that the Court relied on in -- in that decision. The Court said that plaintiffs couldn't meet even the lower standard. So I think that the discussion of certainly impending -

JUSTICE KENNEDY: But both in Summers and Monsanto the Government tells us: We knew that the governmental act was occurring, and then once we knew that, the question was substantial risk.

MR. JAFFER: Justice Kennedy, the -- the -the cases that we rely on, Monsanto, Laidlaw, Meese v. Keene, these are cases in which the Court didn't look to the certainly impending standard at all. The question that the Court asked in those cases was: Is there a substantial risk? Is there a substantial risk that effectively compels the plaintiffs to act in the way they are -- they are acting?

JUSTICE SCALIA: Does that assessment take into account the fact that a court is going to pass upon the Government's ability to intercept these communications?

MR. JAFFER: It does, Justice Scalia. I mean you -- you are right that there is a court that in some sense stands between plaintiffs and the future injury that they -- that they fear.

JUSTICE SCALIA: With the obligation to apply the Fourth Amendment.

MR. JAFFER: I don't think it's that simple. The -- the -- the court, the FISA court, is tasked with assessing the reasonableness of targeting and minimization procedures. But the statute itself forecloses the court from imposing the kinds of limits that plaintiffs think the Fourth Amendment requires. So for example, the statute itself in section (g)(4) says that the Government is not required to identify the facilities to be monitored. And the statute itself in defining targeting procedures defines them to be procedures intended to ensure that the targets are outside the United States.

JUSTICE SCALIA: But if as you say those procedures violate the Fourth Amendment, it doesn't matter what the statute says.

MR. JAFFER: Well, the Court would have to -

JUSTICE SCALIA: If those statutory provisions would produce a violation of the Fourth Amendment, they are null and void, right?

MR. JAFFER: Well, I think that's right.

The -- the court -

JUSTICE SCALIA: Okay. So the FISA Court would presumably know that.

MR. JAFFER: Well, I think if that had happened over the last 4 years, the Government wouldn't be seeking reauthorization of the statute now.

JUSTICE SCALIA: I don't see how the rest of your challenge or your challenge to the remainder of this statute can be characterized as a facial challenge, because it necessarily assumes that the FISA court will mistakenly say that there has been no Fourth Amendment violation, doesn't it?

MR. JAFFER: I don't think that's so, Justice Scalia. Our concern is not -- not that -- that the FISA court will make mistakes, although it well might. The concern -- the main concern is that the reasonableness inquiry that the FISA court engages in is a narrowly cabined one. They court can't say this is unreasonable because you haven't identified the facilities. They can't say this is unreasonable because you haven't identified a specific target.

In fact, more people were subjected to pen register and trap and trace surveillance in the past two years than in the entire previous decade.

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Liking a Facebook Page (or other website) is core speech: it is a statement that will be viewed by a small group of Facebook Friends or by a vast community of online users.

If Carter had stood on a street corner and announced, “I like Jim Adams for Hampton Sheriff,” there would be no dispute that his statement was constitutionally protected speech. Carter made that very statement; the fact that he did it online, with a click of a computer’s mouse, does not deprive Carter’s speech of constitutional protection.

“Liking” a political candidate on Facebook – just like holding a campaign sign – is constitutionally protected speech. It is verbal expression, as well as symbolic expression. Clicking the “Like” button announces to others that the user supports, approves, or enjoys the content being “Liked.” Merely because “Liking” requires only a click of a button does not mean that it does not warrant First Amendment protection. Nor does the fact that many people today choose to convey their personal and political views online, via Facebook and other social media tools, affect the inquiry.

Firstly, there is the Congress Wants Too Much Information campaign on Twitter. Multiple groups are asking you to tweet your thoughts on CISPA with the hashtags #CongressTMI and #CISPA. U.S. citizens can look up and tag their representatives' Twitter accounts—and you can also include @HouseIntelComm, the authors of the bill. The groups behind the campaign suggest pointing out examples of data that could, but shouldn't, be shared under CISPA, such as:

@Myrepresentative Does the FBI need to know what books I checked out from my local library? #CongressTMI Stop #CISPA

@Myrepresentative Does the military need to know I send my Mom lolcat pictures? #CongressTMI Stop #CISPA

@Myrepresentative Does the NSA need to know I watch Netflix from my work computer? #CongressTMI Stop #CISPA

Now is also the time to directly contact members of Congress by phone or by email. There are tools to make this easier from the ACLU, the EFF and Free Press.

Pressure is also increasing on the companies that back CISPA, especially those in the technology sphere. In addition to contacting Congress, you can send a message to CISPA's private supporters by signing AccessNow's petition to all of them, and Demand Progress' petition directed specifically at Facebook.

CISPA still enjoys a lot of support in Congress, but the growing public backlash means the bill's future is uncertain. With continued effort, Congress can be convinced to back off and work on crafting smarter, more narrowly tailored cybersecurity legislation that protects people's privacy.

Of equal importance is the bigger message this sends to lawmakers. There are many people who still think what happened with SOPA was a fluke, driven by the technology lobby and a few key tech companies. But the growing opposition to CISPA—a bill supported by many of the same tech giants that opposed SOPA—proves that it was something much more significant, and that the online community will not be ignored when it comes to decisions that govern the internet.

We would also note that in recent months we have grown increasingly skeptical about the actual value of the "intelligence collection operation" discussed in the Justice Department's recent court filing regarding the pending lawsuits. This has come as a surprise to us, as we were initially inclined to take the executive branch's assertions about the importance of this "operation" at face value. We will provide more detail about this skepticism in classified correspondence.

It is a matter of public record that section 215, which is a public statute, has been the subject of secret legal interpretations. The existences of these interpretations, which are contained in classified opinions issued by the Foreign Intelligence Surveillance Court (or "FISA Court") has been acknowledged on multiple occasions by the Justice Department and other executive branch officials.

We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn't know what its government thinks the law says.

In a democratic society -- in which the government derives its power from the consent of the people -- citizens rightly expect that their government will not arbitrarily keep information from them. Americans expect their government to operate within the boundaries of publicly-understood law, and as voters they have a need and a right to now how the law is being interpreted, so that they can ratify or reject decisions made on their behalf. To put it another way, Americans know that their government will sometimes conduct secret operations, but they don't think that government officials should be writing secret laws.

While the executive branch has worked hard to keep the government's official interpretation of the Patriot Act secret from the American public it has, to its credit, provided this information in documents submitted to Congress. However, these documents are so highly classified that most members of Congress do not have any staff who are cleared to read them. As a result, we can say with confidence that most of our colleagues in the House and senate are unfamiliar with these documents, and that many of them would be surprised and angry to learn how the Patriot Act has been interpreted in secret.

The crux of the Justice Department's argument for keeping the official interpretation of the law secret is that this secrecy prevents US adversaries from understanding exactly what intelligence agencies are allowed to do. We can see how it might be tempting to latch on to this chilling logic, but we would note that it would then follow that all of America's surveillance laws should be secret, because that would make it even harder to guess how the United States government collects information. For example, when Congress passed the Foreign Intelligence Surveillance ct in 1978 it would have been useful to keep that law secret from the KGB, so that Soviet agents would not know how the FBI was allowed to track them. But American laws should not be made public only when government officials find it convenient. They should be public all the time, and every American should be able to find out what their government thinks those laws mean.

• Guido Fawkes
• @p0isAn0N
• @OccupyBoston
• #BostonPD
• #d0xcak3

In order to protect the confidentiality and integrity of the ongoing criminal investigation, this office asks that you not disclose the existence of this request to the subscriber as disclosure could impede the ongoing criminal investigation.

We entered the courtroom. I sat in the front row, behind the bar. Presiding Judge Carol Ball called our cooperating attorney Peter Krupp’s name, and the Assistant District Attorney’s name. She did not call out the name of the case to begin the proceedings, as is custom.

The ADA approached the sidebar, the area adjacent to the judge’s perch, far enough away from us, the general public, that we couldn’t hear the content of the hushed conversation spoken there. Krupp objected immediately, before even approaching the bench; he wanted the case heard in open court. (The judge had already sealed the proceedings the day before, pending a hearing this morning.) Krupp’s objection was not granted. Our legal team therefore approached the sidebar, joining the judge and the prosecution.

Then we among the general public, including journalists from all the major media outfits in Boston, listened and heard nothing, as the prosecutors, our lawyers and the judge conversed secretly, in plain sight. I have no idea what they said. I still don’t know, because my colleagues, lawyers at the ACLU of Massachusetts, are prohibited by court order from telling me.

So all I know is what I saw. As Donald Rumsfeld said, there are known knowns, known unknowns and unknown unknowns. After the proceedings this morning, I’m left with little of the former, and a whole lot of the latter two.

The known knowns: the scrum of lawyers, defense and prosecution, addressed the judge. I saw the judge speak to the lawyers. Then I saw our attorneys return to their bench, closer to where I was sitting, out of earshot of the sidebar. But the ADA stayed with the judge. He spoke to her, with his back to the courtroom, for about ten minutes. Our attorneys didn’t get to hear what he said to her, didn’t have a chance to respond to whatever the government was saying about our client, about the case. It was frankly shocking.

After those ten minutes of secret government-judge conversation, our attorneys were invited back to the sidebar, whereupon the scrum of lawyers spoke with the judge for another ten or fifteen minutes. Then they dispersed. The judge uttered not one word to the open court. And that was it.

By their very nature, laws protecting copyrights constrain free speech and access to information. Unlike other speech restrictions, however, copyright laws may also advance the generation of information and ideas. A robust copyright system encourages free speech by giving speakers incentives to create and disseminate works of authorship. Such laws add to the marketplace of ideas by encouraging the creation of more content through the assurance that content producers will receive the fruits of their labor. But access to information of all kinds -- even disfavored information -- is a fundamental right that must be protected. Even more to the point, the mere existence of infringing content online does not justify the removal of non-infringing content in the course of attempting to rid the internet of the former. These established principles should not change or be treated differently just because technology has changed.

[....]

SOPA, unfortunately, is substantially worse than PROTECT IP. By eliminating the concept of sites 'dedicated to infringing activity', SOPA enables law enforcement to target all sites that contain some infringing content -- no matter how trivial -- and those who 'facilitate' infringing content. The potential for impact on non-infringing content is exponentially greater under SOPA than under other versions of this bill. As such, despite our support for the protection of the legitimate copyright interests of online content producers, we cannot support SOPA, and in fact we oppose it in its current form, given its broad sweep and its heavy hand that will land largely upon innocent content producers. We urge Committee members to focus not just on the goal of protecting copyright owners, but also protecting the speech rights of consumers and providers who are reading and producing wholly non-infringing content and to eliminate the collateral damage to such protected content. Only in that way will the Committee truly achieve its goal of protecting authors and allow the legislation to survive constitutional challenge.

Through SOPA, the United States is attempting to dominate a shared global resource. Building a nationwide firewall and creating barriers for international website and service operators makes a powerful statement that the United States is not interested in participating in a global information infrastructure. Instead, the United States would be creating the very barriers that restrict the free flow of information that it has vigorously challenged abroad. By imposing technical changes to the open internet while eroding due process, SOPA introduces a deeply concerning degree of legal uncertainty into the internet economy, particularly for businesses and users internationally. Business cannot be conducted online when international users and businesses do not have faith that their access to payments, domain names, and advertising will be available, raising challenges to economic development and innovation. This is as unacceptable to the international community as it would be if a foreign country were to impose similar measures on the United States.

The provisions in SOPA on DNS filtering in particular will have severe consequences worldwide. In China, DNS filtering contributes to the Great Firewall that prevents citizens from accessing websites or services that have been censored by the Chinese government. By instituting this practice in the United States, SOPA sends an unequivocal message to other nations that it is acceptable to censor speech on the global Internet.

We do not dispute that there are hubs of online infringement. But the definitions of the sites that would be subject to SOPA's remedies are so broad that they would encompass far more than those bad actors profiting from infringement. By including all sites that may -- even inadvertently -- "facilitate" infringement, the bill raises serious concerns about overbreadth. Under section 102 of the bill, a nondomestic startup video-sharing site with thousands of innocent users sharing their own noninfringing videos, but a small minority who use the site to criminally infringe, could find its domain blocked by U.S. DNS operators. Countless non-infringing videos from the likes of aspiring artists, proud parents, citizen journalists, and human rights activists would be unduly swept up by such an actions. Furthermore, overreach resulting from the bill is more likely to impact the operators of smaller websites and services that do not have the legal capacity to fight false claims of infringement.

Relying on an even broader definition of "site dedicated to theft of US property," section 103 of SOPA creates a private right of action of breathtaking scope. Any rightsholder could cut off the financial lifeblood of services such as search engines, user-generated content platforms, social media, and cloud-based storage unless those services actively monitor and police user activity to the rightsholder's satisfaction. A mere accusation by any rightsholder would be sufficient to require payment systems and ad networks to terminate doing business with the service; the accused service's only recourse would be to send a counter-notice, at which point it would be at the networks' discretion whether to reinstate the service's access to payments and advertising. This would bypass and effectively overturn the basic framework of the Digital Millennium Copyright Act (DMCA), by pushing user-driven sites like Twitter, YouTube, and Facebook to implement ever-more elaborate monitoring systems to "confirm," to the satisfaction of the most aggressive and litigious rightsholder, whether individual users are exchanging infringing content.

The bill would allow rights holders to send notices to payment processors and advertising networks, ordering them to cut off funding to sites the rights holders believe are "dedicated to the theft of U.S. property." However, this definition is extremely broad. Section 103(a)(1)(B)(ii) defines a "site dedicated to the theft of U.S. property" as including any site whose owner "takes active steps to avoid confirming a high probability" that it is being used (even by others) for infringement. This means that an entirely legitimate site can be defunded, and even enjoined entirely, merely because a few of its users may have infringed. Consequently, overzealous rights holders could shut down lawful exchange sites like craigslist, eBay, swap.com, or BookCrossing, closing off valuable outlets for small-scale buying and selling. For instance, a legitimate student-to-student textbook exchange site could be hampered or shut down by a publisher for the actions of just a few infringing users, raising the costs of an already-expensive education.

Secure online communication and commerce is also of critical importance to consumers. Yet, the bill could undermine the security of consumers. Section 102(c)(2)(A) allows for court orders that would block domain name system (DNS) operators from providing access to the Internet Protocol (IP) addresses of targeted sites. In other words, a consumer attempting to access an allegedly infringing site would get an error message or be redirected to another page. However, redirecting DNS queries (to phishing sites and other fraudulent websites) is also a common tactic used by malicious hackers to steal millions of dollars from consumers....

Finally, the bill grants complete immunity to a very large class of actors, including Internet service providers, advertising networks, advertisers, search engines, and payment networks, for cutting off access to a targeted site as long as they can claim their actions were taken in the reasonable belief that the site was suspected of encouraging infringement. This blanket immunity from all federal and state laws and regulations could allow the above actors to act in ways that would harm consumers. For example, Internet service providers could block access to online services that compete with their own telephone or video offerings under a justification of curbing alleged infringement, depriving consumers of legitimate alternatives to high-priced services. The broad immunity of the statute would prevent consumers or consumer protection agencies from policing or addressing such anti-consumer or anticompetitive.

I highlight the very real threats to cybersecurity in a small section of both bills in their attempts to execute policy through the Internet architecture. While these bills will not "break the Internet," they further burden cyberspace with three new risks. First, the added complexity makes the goals of stability and security more difficult. Second, the expected reaction of Internet users will lead to demonstrably less secure behavior, exposing many American Internet users, their computers and even their employers to known risks. Finally, and most importantly, these bills will set back other efforts to secure cyberspace, both domestically and internationally. As such, policymakers are encouraged to analyze the net benefits of these bills in light of the increased cybersecurity risks.

Based on my work, and that of my team of researchers, I have to say that this legislation, if passed as currently written, would have a chilling effect on the economy of the United States.

More than 100 million Internet users in over 180 countries rely on ESET products to protect their personal and enterprise data systems. This gives ESET a unique perspective on the DNS filtering proposed by SOPA and PIPA. There is hardly any part of the United States economy today that does not depend upon the smooth operation of the Internet, which in turn relies upon the integrity of the Domain Name system (DNS). The DNS filtering proposed in SOPA and PIPA would seriously undermine that integrity.

While ESET fully supports the goals of protecting IP and reducing piracy, our experiences combating cybercrime for more than 20 years suggest that SOPA and PIPA will do little to advance these goals. What we are sure they will do is undermine valuable efforts to improve the security of the Internet. Without those improvements, expansion of the global digital economy, of which the United States is clearly a leader, as well as a leading beneficiary, will falter.

Sadly, neither chamber of Congress has produced thoroughly acceptable legislation, but SOPA in particular marks a clear retreat from a history of Congressional support of the digital revolution. That support has often come in the form of not imposing regulation on the industry, and certainly never before has such a wholesale shifting of costs and responsibilities of property owners onto technology companies been contemplated -- a shift away from a careful balance and toward legislation that favors one industry over another.

Put another way, the approach taken in SOPA leads one to wonder why the DMCA would even be used in the future. Using SOPA’s proposed broad new inducement provision, one could simply ignore the current DMCA safe harbors and use intermediaries to accomplish the end goal, and if damages were warranted, merely later sue for infringement. Moreover, important measures to make sure that the proposals keep pace with technology, such as the DMCA requires with the triennial rulemaking on exceptions to the prohibition on circumvention of access and use controls, are non-existent. Along those same lines we are also dismayed that the proposed legislation relies on "simple" technical measures to address complex international issues that are likely better handled through diplomacy, negotiation, constructive dialog and coordinated action. The proposed "solutions" carry risk, perhaps significant, and are likely to be easily circumvented....

SOPA merely shifts costs from content owners, the rightful protector of their content, to various other parties, rather than making sure that costs are appropriately placed.

This is a philosophical issue that runs to the heart of both proposals. Do we really want government forcing one industry to subsidize another, to be required by force of law to assist another industry in being successful? More typically we expect industries to operate within a market framework and with the freedom of contract to solve such challenges. In this case, Congress seems determined to step in and force one industry to provide subsistence to another.

It is undisputed that Myriad’s claimed isolated DNAs exist in a distinctive chemical form--as distinctive chemical molecules--from DNAs in the human body, i.e., native DNA. Native DNA exists in the body as one of forty-six large, contiguous DNA molecules. Each DNA molecule is itself an integral part of a larger structural complex, a chromosome. In each chromosome, the DNA molecule is packaged around histone proteins into a structure called chromatin, which in turn is packaged into the chromosomal structure....

Isolated DNA, in contrast, is a free-standing portion of a native DNA molecule, frequently a single gene. Isolated DNA has been cleaved (i.e., had covalent bonds in its backbone chemically severed) or synthesized to consist of just a fraction of a naturally occurring DNA molecule.

In this case, the claimed isolated DNA molecules do not exist as in nature within a physical mixture to be purified. They have to be chemically cleaved from their chemical combination with other genetic materials. In other words, in nature, isolated DNAs are covalently bonded to such other materials. Thus, when cleaved, an isolated DNA molecule is not a purified form of a natural material, but a distinct chemical entity. In fact, some forms of isolated DNA require no purification at all, because DNAs can be chemically synthesized directly as isolated molecules.

At the outset, it is important to identify the inventive contribution underlying Myriad’s patents. Myriad was not the first to map a BRCA gene to its chromosomal location. That discovery was made by a team of researchers led by Dr. Mary-Claire King.... And Myriad did not invent a new method of nucleotide sequencing. Instead, it applied known sequencing techniques to identify the nucleotide order of the BRCA genes. Myriad’s discovery of those sequences entailed difficult work, and the identified sequences have had important applications in the fight against breast cancer. But the discovery of the sequences is an unprotectable fact, just like Dr. King’s discovery of the chromosomal location of the BRCA1 gene.

Myriad is claiming the genes themselves, which appear in nature on the chromosomes of living human beings. The only material change made to those genes from their natural state is the change that is necessarily incidental to the extraction of the genes from the environment in which they are found in nature. While the process of extraction is no doubt difficult, and may itself be patentable, the isolated genes are not materially different from the native genes. In this respect, the genes are analogous to the “new mineral discovered in the earth,” or the “new plant found in the wild” that the Supreme Court referred to in Chakrabarty. It may be very difficult to extract the newly found mineral or to find, extract, and propagate the newly discovered plant. But that does not make those naturally occurring items the products of invention.

The same is true for human genes.

Given that all those memos have already been covered by the news media, why bother to declassify them anyway? "The point is to expose the legal fiction that the secrecy system rests on," says Ben Wizner, a staff attorney for the ACLU. "The government uses this formality of secrecy to avoid having to answer for real violations of the law."

Wizner says that keeping the documents classified makes them much more difficult to use in courts, for instance, and allows the government to avoid confirming their authenticity.

The files that WikiLeaks released on Guantanamo detainees in April, for example, can’t be used by the defense lawyers for those prisoners unless they’re viewed in a secure government facility. “Government employees can’t read the New York Times. When I go to court in a real lawsuit seeking to get compensation for a victim’s ordeal and hold people liable, I can’t use this information,” Wizner says.

A US Department of Justice test of the CelleBrite UFED used by Michigan police found the device could grab all of the photos and video off of an iPhone within one-and-a-half minutes. The device works with 3000 different phone models and can even defeat password protections.

"Complete extraction of existing, hidden, and deleted phone data, including call history, text messages, contacts, images, and geotags," a CelleBrite brochure explains regarding the device's capabilities. "The Physical Analyzer allows visualization of both existing and deleted locations on Google Earth. In addition, location information from GPS devices and image geotags can be mapped on Google Maps."

plaintiffs have good reason to believe that their communications in particular, will fall within the scope of the broad surveillance that they can assume the government will conduct. The plaintiffs testify that in order to carry out their jobs they must regularly communicate by telephone and e-mail with precisely the sorts of individuals that the government will most likely seek to monitor – i.e., individuals “the U.S. government believes or believed to be associated with terrorist organizations,” “political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government,” and “people located in geographical areas that are a special focus of the U.S. government’s counterterrorism or diplomatic efforts.” The plaintiffs’ assessment that these individuals are likely targets of [FISA Amendments Act] surveillance is reasonable, and the government has not disputed that assertion.