Posted on Techdirt - 19 June 2013 @ 9:25am
Red light cameras have proven popular in certain communities (mainly the "law enforcement community"). They're a rather painless way to generate cash, both for the city itself and for the private contractors chosen to install and maintain the system. This influx of cash tends to pervert incentives, leading to questionable tactics being deployed, like shortening yellow lights to increase the "take," while doing little to nothing to increase public safety.
While law enforcement usually benefits indirectly from this new revenue stream, the officers themselves rarely benefit directly from red light tickets. But where there's a will (and a lack of oversight), there's a way. Some enterprising police officers in New Orleans decided the incentives weren't perverse enough, and formed their own company to review photo citations.
Police officers in New Orleans, Louisiana filled their own pockets with red light camera cash by setting up a private company to "review" photo citations off the official clock. The city's inspector general, E. R. Quatrevaux, on Friday released a report documenting how Edwin Hosli, the New Orleans Police Department's (NOPD) 8th District commander, formed his own limited liability company called Anytime Solutions to take advantage of the lucrative business opportunity.
Over a four-and-a-half month period in 2010, Hosli pulled down $7420 from the arrangement for himself. The inspector general released documents not included in the report that show Hosli and several other officers overbilled ACS by $9075. Hosli's share of that was $2055, according to the documents.
The Inspector General noted it's illegal for law enforcement members to form an LLC in order to "manage a detail." Not only that, but the officers' actions violated ethics policies. The low-level corruption began when American Traffic Solutions subcontracted its photo reviews to Affiliated Computer Services, which oddly enough, already handled parking tickets for the city. The then-chief of police, Warren Riley, declared he couldn't spare on-duty officers to review the photo citations. A workaround presented itself when ATS subcontracted review duty to ACS, which then hired off-duty
officers to review the collected photos. Robert Mendoza, head of the public works department, greased the wheels.
Soon a handful of hand-picked officers ("Hosli's detail officers") were making money on the side, performing a task that was meant to be part of their normal on-duty
workday. The officials involved with illegally enriching off-duty officers then went one step further, attempting to add another criminal charge to their rap sheets.
Officials meeting about the issue decided payments for the detail should be laundered through the New Orleans Police and Justice Foundation, a tax-exempt organization that describes itself as "dedicated to supporting the people and processes of the criminal justice system in New Orleans."
Unfortunately for the involved personnel, ACS decided to pay them in a more straightforward (and implicating) fashion.
Instead, ACS paid Hosli's company directly. After investigators got wind of what happened, the kickbacks were terminated.
The report notes that as soon as the officers were caught, they went back to doing it the right way.
"It should be noted that immediately upon notification, the NOPD placed the responsibility of the red light camera image review with on-duty traffic division officers," Quatrevaux concluded.
Well, I suppose that makes everything OK. Wrongs righted by way of business as usual. Other than the "loss" of extra income, no further punishment has been dealt out to those involved. New Orleans will apparently continue to be policed by a combination of opportunists and their deputized cameras. The approval process is back in the hands of on-duty
officers, which is an almost imperceptible tilt of the scale back towards "right." The perverse incentives remain, but those reaping the benefits will have to settle for routing it through official channels.
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Posted on Techdirt - 18 June 2013 @ 5:41am
Gears of War designer Cliff Bleszinski has weighed in on the subject of used games in light of the Xbox One's antipathy towards them. (Of course, much of this has been walked back in recent days -- Microsoft has both taken a step backwards and kicked the can down the road, stating it won't be charging a fee for used games, but third parties are more than welcome to do exactly that. There are still a number of limitations that will make reselling Xbox One games unpalatable, if not close to impossible.)
Bleszinski's argument for killing off the used game market is not unlike Ben Kuchera's (Penny Arcade): AAA production values aren't sustainable unless everyone's paying full price. Bleszinski delivered his views via Twitter, handily gathered here by Gamepolitics.
"You cannot have game and marketing budgets this high while also having used and rental games existing. The numbers do NOT work people," he said.
"The visual fidelity and feature sets we expect from games now come with sky high costs. Assassins Creed games are made by thousands of devs."
"Newsflash. This is why you're seeing free to play and microtransactions everywhere. The disc based day one $60 model is crumbling.
"Those of you telling me 'then just lower game budgets' do understand how silly you sound, right?" said Bleszinski.
To paraphrase Mayor Quimby, I appreciate your passion on behalf of your medium, but I'm afraid you've got this all wrong.
If the current business model is unsustainable, why is that the consumer's fault? More specifically, why
are customers being pushed into giving up their "first sale" rights, along with being asked to plug the holes in the leaky business model with wads of hard-earned cash?
On top of this imposition is the assumption the current model is the only
model [$200m movie, anyone?] and that mankind greatly benefits from "thousands of developers" crafting AAA titles. This is completely backward. The industry exists because
of its customers, not despite
them. AAA studios are not benevolent deities. They're companies that exist because there's a market for their products. If this market dies, so do they. If the prices are too high, customers buy elsewhere. Or not at all.
Jim Sterling of Destructoid has crafted a very powerful response to Cliff's insistence that the gaming industry will die unless consumers pick up the monetary slack
What really infuriates me about the used game debate is that, when people bring up the stratospheric development and marketing costs, it's treated as though they are noble endeavors, too sacred to be compromised. Rather than ask the question, "Do games need to be this expensive to make?" the question instead becomes, "How can we squeeze more money to keep making very expensive games?"
In a good business, the answer to something being too expensive to produce would be to, y'know,make it fucking cheaper to produce. Videogame consoles do this over time -- parts become less costly to manufacture, more efficient to put together. You'll find, with some of the most successful videogames on the market, the same is also very true. It's just that nobody will admit it.
Sterling points out that Call of Duty has been working off the same engine for years, with two studios alternating releases. Every year, a new Call of Duty game, one that grabs huge market share and makes a huge profit, thanks to the developers' willingness to build from its proprietary starting point. Why tear everything down and start from scratch? Why push to be the "visual" leader when it's clear a majority of customers aren't solely interested in purchasing bleeding edge software?
Likewise with the PC market. It's the true graphics leader, often far ahead of current consoles, and yet the biggest selling titles aren't industry showpieces. Sterling points to Minecraft, Terraria and Valve's old-as-hell-but-still-effective Source engine. Smaller studios are taking advantage of available technology to make beautiful games on a budget (The Witcher, Metro: Last Light). [On a personal note, while I do enjoy AAA eye candy now and then, I value the gameplay that much more
. CIP: I've put over 192 hours into Just Cause 2, a game released three years ago
whose gameplay still holds up to this day. That and Hotline: Miami, no one's idea of AAA beauty.]
But according to Bleszinski, the public doesn't want all of that stuff listed above. It only wants the best of the best, crafted by a team of thousands and sold in various deluxe packages at $60-$100 a pop, possibly with a helping of day one DLC on the side. And because Bleszinski believes this, he feels the public
must be made to pay for the excesses of an industry. Back to Sterling for a rebuttal.
If so-called "AAA" games and the used market actually are incompatible, then I say that's a good friggin' thing. Anything to dispossesses publishers of the notion that they need to keep dumping truckloads of cash into games to the point where they need to sell more copies than the laws of reality allow...
It's not our fault games have gotten so expensive, and I resent the implication that it is. The fact this industry seems utterly fucking incapable of taking some damn responsibility for itself continues to disgust me, and I refuse to shoulder the blame for companies that cannot demonstrate one iota of self-reflection. If something you're doing is not working, change what you're doing! Stop trying to bend and break the world around you to try and manufacture an environment where your failed tactics could achieve some perverse form of success.
It's beginning to look like a few members of the industry have been cribbing pages from the disastrous playbook of the recording industry. Raise prices. Blame customers. Bend the world
to your business model. Is it only a matter of time before the gaming industry begins lobbying Congress to shut down secondhand sales?
Oh, and if the above twitrant weren't galling enough, Cliff B. throws in a little something for those who find the online requirements of the Crossbone to be dealbreaker.
"If you can afford high speed internet and you can't get it where you live direct your rage at who is responsible for pipe blocking you," he said.
Really? Maybe I'll direct my rage at the entitled jackass who's supporting a company's decision to effectively limit its own market simply because
it can't live without some sort of DRM infection. And what if you can't afford high speed internet? Well, you must be one of those people who live in the area marked "Whogivesashitland" in Cliffy's mental map. And trust me, plenty of rage has been directed at the "pipe blockers," but they care even less about their customer base than the area of the gaming industry Bleszinski represents.
Those interested in gutting the resale market to protect their margins are turning potential customers into enemies. If you can't adapt, you can't succeed. These moves being made by Microsoft (and supported by industry mouthpieces) are nothing more than attempts to subsidize an unsustainable business model by forcibly extracting the maximum toll from as many transactions as possible. The industry is not a necessity or a public good. If it's going to make the changes it needs to survive, it needs to give up this delusion.
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Posted on Techdirt - 17 June 2013 @ 7:29am
The NSA leaks have opened up somewhat of a dialogue in Washington, DC. Sure, there's a lot of yelling (some outraged; some defensive), but it finally seems as though some legislators might finally be on the same page as their constituents.
The Director of National Intelligence (James Clapper) and the head of the FBI (Robert Mueller) have both been questioned about the specifics of their domestic surveillance programs. Though the roots of these programs have been around for years, it's the first time many Americans have seen black-and-white proof of government-approved domestic spying. You kind of get the feeling that it's the first time for many of our lawmakers as well, even though many have claimed the NSA/FBI surveillance was all signed off and routed through proper channels, etc.
So, with all this heat coming down on Washington, how is it possible that less than half of our senators could be bothered to stick around DC long enough to catch a classified briefing on domestic surveillance?
A recent briefing by senior intelligence officials on surveillance programs failed to attract even half of the Senate, showing the lack of enthusiasm in Congress for learning about classified security programs.
Many senators elected to leave Washington early Thursday afternoon instead of attending a briefing with James Clapper, the Director of National Intelligence, Keith Alexander, the head of the National Security Agency (NSA), and other officials.
It's not as if the senators would have even needed to stick around until Friday. The briefing was scheduled for 2-1/2 hours after
the Senate's last vote of the week, which took place at noon. Granted, the week for most representatives ends on Thursday and no one would think anything of it if this week had gone like any other
. But it didn't, and the American public is still closely watching their representatives.
When all classified hell breaks loose, you would expect your elected officials to stay on point until a critical briefing is finished, at the minimum. It's rather disheartening to see legislators working for the weekend by 10 AM Thursday morning. If they can't be bothered to stick around until the end of the day on Thursday
in order to stay current on the biggest
issue, we've no reason to believe they're really looking to solve this problem.
, oddly, was in the right this time:
“It’s hard to get this story out. Even now we have this big briefing — we’ve got Alexander, we’ve got the FBI, we’ve got the Justice Department, we have the FISA Court there, we have Clapper there — and people are leaving,” she said.
One small point in the defense of the departing senators: this was a "briefing," not a "hearing." While some lively discussion might
have been had (possibly taking the form of shouting or loud coughs of "bullshit!"), it's much more likely this would be a one-way blast from the aggrieved parties. And since most senators presumably received a copy of the talking points
roughly around the same time Techdirt did, there's really no reason to hear these delivered live, in-person.
Still, this doesn't excuse their actions. This was a missed opportunity for those who left town before the briefing. Reps from nearly every entity currently under fire had been gathered in one room solely to address interested senate members, many of which claim to be very
Lawmakers have been quick to call for increased congressional oversight of the phone and Internet monitoring programs, but many have been unwilling to skip flights or make other scheduling sacrifices to learn more of the secret details.
Unfortunately, a roll call wasn't provided, so we don't know definitely who needs to be asked to put their plane tickets where their mouths are. But we're used to this -- legislators making concerned noises until the national "Business As Usual" light is flipped on in the cabin of the national plane. (Not only that, but we're used to being handed terrible metaphors, although usually by the legislators themselves, rather than a writer in search of a solid closing paragraph.)
Hopefully, this headcount will be leaked as well, resulting in a bit of shame-based focus from our men and women in Washington, who should return tanned and rested from the extended weekend and ready to start
earning their paychecks
slashing away at our surveillance overgrowth.
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Posted on Techdirt - 14 June 2013 @ 3:28am
Robert Mueller, the director of the FBI testified in front of the House judiciary committee on Thursday, and like others before him, attempted to justify widespread domestic surveillance by pointing at all the terrorist activity it has and could have prevented. (All the while conveniently ignoring the fact that these tactics had little to do with successfully prevented terrorist attacks.)
He described how Khalid al-Midhar, one of the 9-11 hijackers, had called a Yemeni safe house from a phone in San Diego shortly before the attack – a phone call that would have been intercepted and acted upon, claimed Mueller, had today's surveillance system been in place.
Prevented 9/11? That's an interesting claim -- one that can't be easily disputed (or verified). But there's a couple of problems with Mueller's scenario. One, the FBI would have needed to "connect all the dots" beforehand, something that much easier said than done. Not having these dots connected allowed the Boston bombers to slip through
the surveillance net. This is not necessarily a failure. Exponentially increasing the amount of data turns surveillance into a search for a needle in a haystack -- and the FBI, NSA, et al seem to be mainly concerned that the haystack just isn't big enough.
Two, there's a good possibility that the FBI and NSA already had something like this in the works (if not actually operable) even before
the 9/11 attacks. The Big Picture points out that the NSA was already installing backdoors in the Windows operating system back in 1999
, and links to
a story detailing a DEA/NSA collaboration, which supposedly installed a domestic "call tracing program" at AT&T and Verizon in December of 2000
and which had been tracking calls from the US to various countries since the 1990's.
The government’s dependence on the phone industry, driven by the changes in technology and the Bush administration’s desire to expand surveillance capabilities inside the United States, has grown significantly since the Sept. 11 attacks. The N.S.A., though, wanted to extend its reach even earlier. In December 2000, agency officials wrote a transition report to the incoming Bush administration, saying the agency must become a “powerful, permanent presence” on the commercial communications network, a goal that they acknowledged would raise legal and privacy issues.
In the drug-trafficking operation, the N.S.A. has been helping the Drug Enforcement Administration in collecting the phone records showing patterns of calls between the United States, Latin America and other drug-producing regions. The program dates to the 1990s, according to several government officials, but it appears to have expanded in recent years.
Officials say the government has not listened to the communications, but has instead used phone numbers and e-mail addresses to analyze links between people in the United States and overseas. Senior Justice Department officials in the Bush and Clinton administrations signed off on the operation, which uses broad administrative subpoenas but does not require court approval to demand the records...
In a separate program, N.S.A. officials met with the Qwest executives in February 2001 and asked for more access to their phone system for surveillance operations, according to people familiar with the episode. The company declined, expressing concerns that the request was illegal without a court order. The agency, those knowledgeable about the incident said, wanted to install monitoring equipment on Qwest’s “Class 5” switching facilities, which transmit the most localized calls. Limited international traffic also passes through the switches.
Other N.S.A. initiatives have stirred concerns among phone company workers. A lawsuit was filed in federal court in New Jersey challenging the agency’s wiretapping operations. It claims that in February 2001, just days before agency officials met with Qwest officials, the N.S.A. met with AT&T officials to discuss replicating a network center in Bedminster, N.J., to give the agency access to all the global phone and e-mail traffic that ran through it.
The same lawsuit accuses Verizon of setting up a dedicated fiber optic line from New Jersey to Quantico, Va., home to a large military base, allowing government officials to gain access to all communications flowing through the carrier’s operations center.
This certainly gives the appearance that someone, if not necessarily the FBI, would have had access to a great many phone records months before the 9/11 attacks
, if not actually years
before. And yet, the attacks still happened and the head of the FBI is using the tragedy as a crutch to support harvesting millions of records on domestic
(For added verification that the "because terrorism" argument for widespread surveillance predates the 9/11 attacks, here's George Herbert Walker Bush complaining that requiring warrants for "terror" wiretaps would be an "unnecessary diminution of collection of foreign intelligence"
-- in 1976
Despite this, Mueller doubled down on the "threat prevention" argument. Not only could the surveillance prevent the next 9-11, but the next Boston bombing as well. This led to many Congressmen angrily asking why the FBI hadn't bothered preventing the first
Boston bombing, seeing as it had access to all of this ultra-effective, terrorist-fighting data. Mueller's rebuttal? Even the smallest curtailing of the FBI's virtually unlimited access to data would be catastrophic.
"If you narrow [the scope of surveillance], you narrow the dots and that might be the dot that prevents the next Boston," said Mueller.
Mueller also expressed concern about granting permission to Google and other internet companies to disclose details on requests for data.
He also rejected calls from technology companies such as Google to disclose the scale of the programs, saying even this information could help terrorists seeking to hide their communications.
"Any tidbit of information that comes out" about how authorities track communications means terrorists "find ways around", he said.
"Every time we have a leak like this and you follow it up and look at the intel afterwards [you find terrorists] are looking for ways around.. If we lose our ability to get their communications we are going to be exceptionally vulnerable."
Sure, terrorists might decide to use services that fight government data requests
(or avoid services the government is currently surveilling) but so will many Americans and foreigners who are currently suspected of nothing but are being loosely surveilled all the same. Keeping the terrorists in the dark would be one thing if the surveillance was limited to suspected terrorists, but the FBI/NSA's blanket coverage affects millions of people worldwide. This, combined with the lack of proof these supposedly crucial tools are useful in fighting terrorism, is a strong argument for allowing companies forced to comply with untargeted data hauls granted by a secret court to, at minimum, inform their users that these demands are being received and/or complied with.
You have to admire Mueller's one-track defense. According to him, everything that's been leaked harms our national anti-terrorists efforts. Non-terrorist Americans have no need to question the methods being used or fear for their privacy. Mueller says the call data can only
be used for anti-terrorism efforts, citing section 205 of the PATRIOT ACT. But as Julian Sanchez points out
, this section explicity allows the supposedly "one-purpose" information to be disseminated to law enforcement in order to pursue non-terrorist suspects
In this section, the term “minimization procedures” means—
(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.
Above and beyond these "minimization procedures" that allow for a surprising amount of easy dissemination, there's the fact that the FBI (and others) have rendered the limitations of the PATRIOT ACT meaningless by declaring pretty much everything collected to be "relevant" to anti-terrorist efforts.
Others questioned whether the FBI had acted lawfully in seeking to use section 215 of the Patriot Act to target all calls made in the US on the basis that they "might become relevant" to future terrorism investigations.
Searching the houses of every phone owner might
uncover something relevant to current
investigations, which is arguably more useful than harvesting data for future reference, and yet, no one seems to think that's a good idea. Gathering metadata is much less intrusive than house-to-house sweeps, but just because it's less noticeable doesn't mean it's any less wrong.
Mueller's excuses were worn out before he even started using them. But it wasn't the first time "terrorism" has been used to justify government overreach and it surely won't be the last.
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Posted on Techdirt - 12 June 2013 @ 12:02pm
Kashmir Hill, writing for Forbes, points out that now might be a good time to revisit a speech given by the NSA's general counsel (Rajesh De) earlier this year (Feb. 27), in which he attempted to dispel some myths about the NSA's actions and operations. What's been revealed of the NSA's programs indicates these myths are much closer to the truth than the NSA would like to admit.
De's speech aims to portray the NSA as a good (if secretive) agency that plays by the rules, carefully overseen by a variety of entities. And to some extent it does "play by the rules," but only because the "rules" themselves are secret or have been altered, expanded and reinterpreted to allow the NSA's activities to declared "legal."
False Myth #1: NSA is a vacuum that indiscriminately sweeps up and stores global communications.
Rajash De says the NSA is limited by the law -- if the agency is not "affirmatively authorized" to take an action, it cannot do it. As with most of De's arguments, this presumes that the laws applied to the NSA are the same laws applied to other security and law enforcement agencies (or the average American, for that matter). What may appear to be illegal activity could actually be "authorized."
The problem is the secrecy surrounding the laws themselves. The administration has so far managed to prevent the secret interpretations
of existing applicable laws from being disclosed. As far as the public can tell, the NSA's actions look
illegal. The fact that they've been granted legality by specific and proprietary interpretations doesn't alter the public perception. Given what's been disclosed so far, there's no reason to believe the NSA doesn't sweep up as much global data as it can. The only effective limitation isn't the law, which is apparently quite malleable -- it's the logistics.
"[F]rom a mission perspective, it would be ineffective and inefficient... to simply collect and store as much information as possible, even absent any legal or policy restraints... Simply put, it would be neither feasible nor desirable to just drain the ocean of big data into a government pool of big data."
For all his discussion of laws, policies and authorization limitations, it seems the biggest deterrent is the amount of data itself. But with its new data center
and its non-targeted request for the metadata of millions of Verizon subscribers
seem to indicate the NSA is looking to get past this last hurdle. Of course, it may just be that the NSA doesn't have the manpower/processing power to harvest a ton of global data because it's already grabbing way too much data right here in the US
False Myth #2: NSA is spying on Americans and home and abroad with questionable or no legal basis.
The recent leaks (along with previous whistleblowing
) seem to indicate the NSA is spying
on Americans with "questionable or no legal basis." But it all depends on whether you consider the NSA's data grabs to be "spying" or an "invasion of privacy." Spying would be both, but much of what the NSA seems to be doing is more of the latter. De uses "spying" to keep the word "surveillance" out of the discussion. The NSA doesn't consider PRISM
or the Verizon data haul "spying," presumably because they're untargeted. But the public would (at the very least) consider it a privacy breach and a form of surveillance -- both of which would seem to be happening with "questionable or no legal basis."
It's not as if the apparatus isn't already in place for more "traditional" spying on American citizens. Whistleblower Ed Snowden puts it this way
"I, sitting at my desk, certainly had the authorities to wiretap anyone, from you, or your accountant, to a federal judge, to even the President if I had a personal email."
Rajash De attempts to deflate this "myth" by using language nearly identical to Director of National Intelligence James Clapper's defense of the NSA's actions
. De also
claims no Americans are being "targeted" and asserts the NSA is prevented from doing this by Section 702 of the FISA Amendments Act, which prohibits targeting US citizens, either at home or abroad. Again, the key word is "targeting." Grabbing the metadata on millions of phone calls certainly can't be construed as "targeting," which keeps the NSA from violating this provision of the law.
But back to the myth itself -- and De's wording. By limiting its demands to data, the NSA can still locate and track American citizens without having to worry about violating any applicable policies, and can make the claim that it isn't "targeting" or "spying" on American citizens or capturing "communications." (Even if the President is claiming otherwise
in defense of the NSA's actions...)
But that's just what we know. Snowden's view from the inside (along with previous whistleblowers) indicates that such spying -- and capturing of communications
-- does indeed occur, contrary to De's assertion. Unfortunately, it will probably take the leak of supporting documentation to fully dispute De's claims -- something that looks to be much more likely an occurrence than anyone would have believed a week or two ago.
False Myth #3: NSA operates in the shadows free from external scrutiny or any true accountability.
De tries to debunk this, but this isn't anywhere close to being a myth, no matter how it's framed. It's the sad reality. While it's true there are many oversight committees and "multiple stakeholders" the NSA must answer to (Dept. of Defense, Director of National Intelligence, Dept. of Justice, the White House, legislators and the FISC), it only means something if the entities aren't, for the most part, completely aligned with the NSA's desires.
The NSA doesn't face a real challenge from any of these. Congress openly admits this surveillance has gone on for years
with its active approval. President Obama signed off on a variety of extensions and expansions
of Bush-era surveillance policies. The FISA court has proven to be nothing but a rubber stamp in robes
, having approved all
domestic surveillance requests for two years running (more than 3,300 requests). The government was set up as a system of checks and balances but when it comes to the nation's "security," there hasn't been any significant pushback in years.
To make matters worse, the NSA has repeatedly lied to Congress about its activities
. Congress can say it's been informed, but if it's being provided with limited (or false) information, it's in no better shape than the constituents it's supposed to be protecting from these abuses.
At best, these "myths" are only misleadingly-worded versions of the truth. De's careful articulation weaves around the subject matter and allows for plausible deniability. The secrecy of the agency allows it to make claims that can't be easily denied. The willing complicity of our government makes it easy for the NSA to expand its surveillance activities without fear of reprisal. Given what we know now, it's safe to speculate the reality of the situation is even worse than these so-called "myths" indicate. And until the public is willing to push back, our representatives (for the most part
) are more than willing to let the NSA turn the US into a surveillance state -- all in the name of "security."
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Posted on Techdirt - 12 June 2013 @ 9:12am
The escalating build-out of the American surveillance state since 9/11 can't be attributed to any one factor. There have been several contributors, most of which have used the omnipresent "threat" of terrorism as leverage to increase governmental power and control at the expense of its citizens. But one undeniable aspect is the fact that two consecutive presidents have recast their presidential responsibilities, as Micah Zenko points out at Foreign Policy.
When asked last September if he personally chose which individual terrorist suspects could be targeted with lethal force, President Barack Obama gave a response that would have astounded the founding fathers: "What is absolutely true is that my first job, my most sacred duty, as president and commander in chief, is to keep the American people safe." This is false. As the presidential "Oath or Affirmation" in the Constitution reads: "I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
As Zenko states, Obama should know better. After all, he spent more than a decade lecturing on constitutional law at the University of Chicago. But his predecessor led the way, informing Americans that "safety" would trump rights.
George W. Bush told a cheering crowd at the 2004 Republican National Convention: "I believe the most solemn duty of the American president is to protect the American people.
While on the campaign trail, Obama vowed to correct Bush's skewed priorities. But rather than follow through on that promise, he has gone the other direction, expanding on his inherited policies and defending various agencies accused of abuse. Unfortunately, once this mindset is in place, it is almost impossible to roll back. The policies it creates only move in one direction.
The essential and enduring feature of both post-9/11 presidents has been their shared contention that their core objective -- and by extension, that of the executive branch -- is to protect U.S. citizens from one particular form of harm: terrorist violence. Both success and failure at achieving this objective have justified the expansion of additional authorities and tools. If there are no terrorist attacks, then all policies in place must remain, but when terrorist plots are revealed or the rare attack occurs, then additional tools and secrecy are mandated.
The executive branch is a key part of the system of checks and balances this country's founders mandated in order to prevent the sort of mission creep and rights erosion occurring today. Instead of protecting the Constitution and their constituents, two consecutive presidents have relegated it to the background, preferring to pursue the unobtainable: safety and security.
Other government agencies are tasked with protecting the public. The executive branch is ultimately responsible for preventing abuses and excesses. Instead, this branch has willingly paved the way for a surveillance network that undermines protections and rights in exchange for vague assurances of security.
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Posted on Techdirt - 11 June 2013 @ 10:57pm
Bradley Manning is currently on trial, charged with "aiding an enemy" (including "classified" enemies) for turning over sensitive documents to Wikileaks. As Mike pointed out earlier, this latter charge doesn't add up. Manning never handed over anything directly to any enemies of America, classified or otherwise, and any documents these unnamed enemies had in their possession were already publicly available.
Adrian Lamo, the ex-hacker who turned Manning over to the feds (or rather, the Dept. of Defense with some assistance from the FBI), was on the stand on June 4th. Under cross examination by David Coombs of Manning's defense team, Lamo is unable to say Manning intended to "aid the enemy" by releasing these documents. In fact, Coombs exchange with Lamo depicts Manning as someone with idealistic aims who hoped that bringing governmental and military wrongdoing into the light would help change both entities for the better.
Q. At one point you asked him what his end game was, correct?
A. Yes, I did.
Q. And he told you, hopefully worldwide discussions, debates and reforms?
A. Yes, he did.
Q. And he said he wanted people to see the truth?
Q. He said without information you can't make informed decision as a whole?
A. Yes, he did.
Q. And he told you to, he was hoping that people would actually change if they saw the information?
At one point, the discussion turned to the possibility of aiding US enemies, but Manning still refused to view the information he had acquired as anything other than a contribution to public knowledge.
Q. And at one point you asked him why he didn't just sell the information to Russia or China?
Q. And he told you that the information belonged in the public domain?
A. Yes, he did.
Q. He believed that information was in the public domain and should be for the public good?
And when the questions became more direct, Lamo's answers became correspondingly vague.
Q. At anytime did he say he had no loyalty to America?
A. Not in those words, no.
Q. At anytime did he say the American flag didn't mean anything to him?
Q. At anytime did he say he wanted to help the enemy?
A. Not in those words, no.
In what words, then? The transcripts of the chats between Lamo and Manning are public. There's no indication
Manning wished to aid the enemy. There was the potential for harm to exposed operatives and sources, but that was greatly mitigated by the delay between delivery and publication of the documents, not to mention Lamo bringing this to the FBI's attention after the initial chat session. But the military has chosen to view the embarrassment and inconvenience caused by the documents' release as "aiding the enemy" -- whatever hurts us makes them stronger.
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Posted on Techdirt - 11 June 2013 @ 8:33am
Results of a recent survey have just been released by the Pew Research Center and its discoveries are a bit surprising and a bit disappointing. After seeing a large surge in the percentage of people who were unwilling to sacrifice more civil liberties to fight terrorism (last month's post-Boston Bombing TIME/CNN poll), today's poll release swings back in the other direction. According to Pew's poll, a majority of Americans think the NSA's phone records dragnet is perfectly fine in the context of fighting terrorism.
A majority of Americans – 56% – say the National Security Agency’s (NSA) program tracking the telephone records of millions of Americans is an acceptable way for the government to investigate terrorism, though a substantial minority – 41% – say it is unacceptable. And while the public is more evenly divided over the government’s monitoring of email and other online activities to prevent possible terrorism, these views are largely unchanged since 2002, shortly after the 9/11 terrorist attacks.
Currently 62% say it is more important for the federal government to investigate possible terrorist threats, even if that intrudes on personal privacy. Just 34% say it is more important for the government not to intrude on personal privacy, even if that limits its ability to investigate possible terrorist threats.
While it's tempting to believe a large number of Americans simply haven't been paying attention for the last 11 years, the more probable explanation for the consistent support of government monitoring is the hypocrisy of partisan politics. Republicans and Democrats have shown their support of government surveillance is directly tied to whoever's currently in the White House.
Republicans and Democrats have had very different views of the two operations. Today, only about half of Republicans (52%) say it is acceptable for the NSA to obtain court orders to track phone call records of millions of Americans to investigate terrorism. In January 2006, fully 75% of Republicans said it was acceptable for the NSA to investigate suspected terrorists by listing in on phone calls and reading emails without court approval.
Democrats now view the NSA’s phone surveillance as acceptable by 64% to 34%. In January 2006, by a similar margin (61% to 36%), Democrats said it was unacceptable for the NSA to scrutinize phone calls and emails of suspected terrorists.
There, in bold black and white, is one of the most damning indictments of the two party system and its attendant illusion of choice. Two different parties in control. Same outcome. The only thing that changes is the party affiliation of the indignant. Oddly, "Independents" have increased
their support of surveillance programs over the same period, a stat that serves as a reminder that it's not just libertarians self-identifying as independent.
On a slightly more positive note, Americans are more protective of their internet usage, with a slight majority (52%) saying the government should not
be allowed to monitor email and "other internet activities" in order to track down terrorists. Sadly, this too can probably be chalked up to a change in presidents, with Republicans jumping 13% in their disapproval from 2006 to 2013 and Democrats dropping their disapproval 8% over the same period.
But perhaps the largest factor is the phrasing of the questions. A Rasmussen poll conducted during the same period came to nearly the completely opposite conclusion
Most voters oppose the U.S. government’s secret collection of the phone records of millions of Americans and think the feds are spying too much on U.S. citizens these days. Just 26% of Likely U.S. Voters favor the government’s secret collecting of these phone records for national security purposes regardless of whether there is any suspicion of wrongdoing. The latest Rasmussen Reports national telephone survey finds that 59% are opposed to the practice.
It appears as though certain words -- like "terrorism" -- tend to trigger more supportive answers.
Here's the question asked by Pew Research
As you may know, it has been reported that the National Security Agency has been getting secret court orders to track telephone call records of MILLIONS of Americans in an effort to investigate terrorism. Would you consider this access to telephone call records an acceptable or unacceptable way for the federal government to investigate terrorism?
Here's Rasmussen's version
The federal government has been secretly collecting the phone records of millions of Americans for national security purposes regardless of whether there is any suspicion of wrongdoing. Do you favor or oppose the government’s secret collecting of these phone records?
Both questions have their own tilt. Pew uses the word "terrorism," which tends to provoke stronger emotional responses. It also gives the NSA's action an overarching purpose where Rasmussen's wording places more emphasis on secrecy and the lack of reasonable suspicion inherent in the NSA's data harvesting. Rasmussen skews things even further in other questions, including this one, which presents only one "correct" answer (logically).
Is the U.S. government spying too much on Americans these days, not enough or is the level of spying about right?
Where does the public's opinion actually lie? It's tough to say as both polls use language which could skew results. A certain percentage of Americans are willing to accept rights erosion in exchange for fighting terrorism. Legislators still exploit this angle to push through questionable bills and excuse existing policies. Rasmussen's question exchanges "terrorism" for "national security," a term that doesn't have nearly the same emotional impact. Two very different outcomes to ostensibly the same question.
Pew's more thorough poll does
alert us to the fact that a majority of the population is either ambivalent to the NSA's actions -- or completely unaware. Only 27% of respondents claim to be following the story closely, with those polling as opposed to the NSA's data harvesting holding a slight lead over those who support these efforts. This low level of engagement isn't uncommon and has helped to ensure that questionable Bush-era policies remain in place years down the road, in some cases being expanded by the current administration. Hopefully, this latest round of leaks will grab the attention of more of the population and bring with it some much-needed transparency and change within the system.
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Posted on Techdirt - 11 June 2013 @ 5:56am
You know what people just absolutely love? When someone makes bold proclamations and then dances off into the ether without providing a single supporting source for their statements. You'd think someone highly touted in the medical community would at least be able to provide a link or a searchable source for something as brash as this, but from the looks of it, you'd be the only one thinking.
Via Gamepolitics comes this delightfully horrible column, written by Dr. Mehmet Oz (TV's "Dr. Oz") and his colleague, Dr. Mike Roizen (chief medical officer at the Cleveland Clinic Wellness Institute). Its title makes an unequivocal statement before moving on at a breakneck pace to its conclusion, utilizing a combination of unsourced stats and unproven conjecture.
Here's the title:
It's official (again)- violent video games hurt teens
A quick read through the column (and it is a quick read) shows that Oz and Roizen aren't too keen on providing any sort of backup for this claim (much less the fact that it's "again"). Nowhere in the 300 words or so will you find links, quotes or citations of any sort. Here's the opening paragraph, which gives readers some insight into the doctors' mindset, but not much else.
Call of Duty: Black Ops (dismembered limbs, obscene language, torture) and Hitman: Absolution (can you really absolve a hit man?) -- $13.6 billion is spent annually in North America so that more than 210 million folks can play video games like these. Many of those players are younger than 18, and that's, you know, way bad for kids and teens.
No. I don't know. Perhaps if you could point me to some research (preferably nothing by Craig Anderson
) that shows how video games are "way bad" for kids and teens. Also, a majority of the 210 million gamers are over the age of 18, which is who these games are targeted at (and rated for).
But let's not dwell on the lack of evidence indicating games hurt teens (again) by "fueling aggressive behavior, dulling empathy and causing sleep problems." (Parents: are your teens aggressive, self-centered and up all hours of the night? Welcome to Life with a Teenager, a.k.a. Why the Hell Did I Decide to Have Kids? Take away video games and I would imagine the hormonal developments, myopic worldview common to that age group and erratic sleep patterns wouldn't be altered in any significant fashion.)
Let's move on to the doctors' next point, which is also dropped unceremoniously (and without sources) into the mix.
And if you think you know what's going on with your kids, think again. Most parents say they're pretty sure of what their kids are doing online, but 50 percent of kids report having inappropriate-age-rated games ("M" for "mature" and "AO" for "adults only") among their often-played favorites.
And this "50 percent" was determined how? Rounding up the interns and asking them what percentage of a whole would they find both "scary" and "believable?" Who would dispute this "finding?" Who could
dispute this "finding?" There's nothing to work with.
It would be one thing if a psychologist made a few unsourced claims based on first-hand experience with the subject matter (kids, video games), but when a surgeon and a chief medical officer make bold statements about the effect of violent games on kids, they need to bring a little bit more to the discussion than a willingness to fill a column with words.
On the plus side, the doctors don't take the government or retailers to task for kids' access to M-rated games. (Though I wonder where these kids are getting "AO" games... Certainly not from any major retailer.) Instead, they ask parents to get involved and aim children towards other activities, rather than allowing the Xbox/PS3/Wii to fill in as full-time caregivers. This is the only part of the column that actually contains good advice and no ridiculous, unsourced statements.
Maybe this substance-free column is an offshoot of Dr. Oz's love of homeopathy
-- the weaker the sources, the stronger the argument. No sources at all possibly means his proclamations are completely unassailable. Well played, sir.
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Posted on Techdirt - 10 June 2013 @ 6:01am
Whenever overreaching surveillance comes to light, whether it's a national security agency or local law enforcement operating the dragnet, there's always one person who will toss out one of these two worn out, used up, dripping-in-paternal-condescension phrases in defense of the privacy abusers.
1. If you've got nothing to hide, what are you worried about?
2. Because terrorism/crime/drugs/child porn.
Sen. Lindsey Graham, usually a critic of the current administration, tends to fall back in line with his allegiances to George W. Bush's overreaching policies during events like these. If it has anything to do with terrorism, Graham is there to back up the abusers, no matter which party has control of the White House. (You may recall Graham's recent support of the FBI's decision to not inform Boston bombing suspect Dzhokhar Tsarnaev of his Miranda rights.)
Graham made an appearance on Fox & Friends the morning after news of the NSA's massive data haul broke. He starts out by invoking the most holy of political rhetorical devices: fighting terrorism.
“I’m glad the NSA is trying to find out what the terrorists are up to overseas and in our country,” Graham said Thursday morning on “Fox & Friends."
He followed it up with his particular spin on the "nothing to hide; nothing to fear" argument defuser.
As a customer of Verizon, the subject of the court order, Graham said he and others had nothing to worry about.
“I’m a Verizon customer. I don’t mind Verizon turning over records to the government if the government is going to make sure that they try to match up a known terrorist phone with somebody in the United States. I don’t think you’re talking to the terrorists. I know you’re not. I know I’m not. So we don’t have anything to worry about.”
A member of the government informing the public that he has no problem with the public handing over things to the government. How refreshing!
There's a big "if" in his second sentence and that part worries people nearly as much as the general idea of national security/investigative agencies hoovering up all the data they can get ahold of.
"If the government is going to make sure that they try..." We, the people, have received no assurances to that effect. Sure, those involved directly and those defending these court orders are all stating publicly that the data is perfectly safe in their hands and won't be abused in the slightest (and quite possibly isn't actually happening
at all), but the last dozen years or so have produced much more evidence to the contrary.
As far as he knows, Graham isn't talking to terrorists. But there's really no reason for anyone to believe the NSA and FBI are only interested in terrorists. The NSA may be trying to root out and punish whistleblowers
. The FBI may be looking for any phone that's come within 500 feet of a mosque
As for telling us that we have nothing to fear and, therefore, nothing to hide? Here's the problem with that argument. First off, if I'm not talking to terrorists, why is my data being grabbed along with potential suspects? This is still an anti-terrorism thing, right?
[Sidebar: I don't think I could really say I definitely
don't communicate with terrorists. I don't have any friends or acquaintances who display an inordinate fascination with terrorism. On the other hand, if they were
terrorists, I would imagine that part of their life is pretty well compartmentalized and that there's more to their life than terrorism 24/7. So... unlike Graham, I'm not going to say I don't talk to terrorists. Ultimately, this shouldn't matter, but Graham seems to think it does.]
Second: I am getting pretty sick and tired of talking heads trying to mollify us by informing us that we have nothing to fear because we have nothing to hide, especially since this phrase is only put into play after
the government's encroachment has effectively removed the "hide" option. It's not so much that we have "nothing to hide." It's that we don't have a choice. The government exposes us and then pats us on the head and tells us it will all be alright -- because we're innocent. (And yet somehow still subject to the same treatment as the guilty...)
Third, I'm glad you're glad that we're fighting terrorism by using everyone's
data, Lindsey. Since the President has informed us that Congress holds the keys
to this whole debacle (in a roundabout way), maybe you could stop assuring us that everything's OK (as long as you're not a terrorist and/or talking to one!) and that we should all aspire to be good little nothing-to-hide citizens, and start rolling back this ongoing, ever-expanding encroachment on our rights and liberty. Maybe start by asking why
, if you don't "talk to terrorists," is your data being gathered in the name of fighting terrorists?
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Posted on Techdirt - 7 June 2013 @ 7:39pm
Cameron D'Ambrosio, the teen charged with "communicating terrorist threats" via some daft rap lyrics posted to his Facebook profile, is apparently no longer a threat to the people of Methuen, MA, and parts beyond. Facing a possible 20-year-sentence for his inclusion of such explosive terms as "White House," "murder charge" and "Boston bombinb" in his one-man online rap battle, D'Ambrosio has been held without bail since May 2nd. As of Thursday night, however, D'Ambrosio is free to
kill terrorize rhyme again. And, as an added bonus, he now has something in common with many of the rappers he clearly aspires to be: time served.
An Essex County grand jury declined Thursday to bring an indictment against Cameron D’Ambrosio, 18, so prosecutors will formally file a motion to drop the charge of making a bomb or hijack threat, said Carrie Kimball Monahan, a spokeswoman for the district attorney.
The D.A.'s office has declined to comment on the grand jury's decision, and D'Ambrosio and his lawyer are probably saving some choice words for a press conference. But that hasn't stopped the man behind this overreaction and the ensuing farcical approximation of criminal "justice." Here's what Police Chief Joe Solomon had to say in his press release
(delivered via Facebook).
"I have just been advised of the Grand Jury decision from earlier today, where the grand jury did not issue an indictment on the high school threats case. Although we disagree with the Grand Jury's decision we respect it. Several judiciary levels have confirmed the probable cause in this case as it has worked it's way through the criminal justice system. We will continue to take all threats against our community seriously and will always utilize due diligence in our investigation."
A few things to note:
1. Suddenly it's only a "high school threats case," rather than the much more dangerous-sounding "communicating terroristic threats."
2. Shouldn't the "probable cause" have been determined before D'Ambrosio was even arrested?
3. No one has a problem with the police taking threats "seriously." The issue here is that the police couldn't figure out when to stop
treating D'Ambrosio's words as a threat. Apparently, the grand jury wasn't quite as willing as the rest of the judicial system
to stretch the wording of a law pertaining to making specific threats
to fit D'Ambrosio's untargeted word dump.
Matthew Segal, the legal director at the ACLU of Massachusetts – who has worked on similar first amendment cases, though not this one – says it does not appear that D'Ambrosio's Facebook post rose to the level of a "true threat" warranting an investigation, which the grand jury has found as well. Segal notes that D'Ambrosio's words didn't target anybody or anything specifically, which the Methuen police have also acknowledged.
D'Ambrosio still has one more date hanging over his head -- June 27th -- during which prosecutors may decide to bring other charges. This seems unlikely considering the District Attorney's office has already announced it will not be pursuing this case further. Just in case, supporters of D'Ambrosio, led by the Center for Rights (whose Free Cameron
petition gathered over 90,000 votes), will be on hand to show their support for Cameron
-- and the First Amendment.
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Posted on Techdirt - 6 June 2013 @ 8:06pm
More bad news has arrived for consumers. The drugs don't work. Or, they don't work as well as they used to. Despite the exorbitant prices charged for new medications and despite the industry's claims that expensive R&D efforts are driving these prices up, the fact remains that newer drugs cost more and do less, riding a decades-long slide from peak potency.
Research published on Monday showed that the effectiveness of new drugs, as measured by comparing the response of patients on those treatments to those taking a placebo, has plummeted since the 1970s...
The new study in the journal Health Affairs examined 315 clinical trials that compared a drug to a placebo and were published in four of the world's top medical journals (BMJ, Journal of the American Medical Association, Lancet and New England Journal of Medicine) from 1966 to 2010. The drugs targeted the full range of human ills, from cardiovascular disease and infections to cancer, mental disorders and respiratory illness.
In the early years, drugs easily beat the placebo: They were, on average, 4.5 times as effective, where effectiveness means how well they lowered blood pressure, vanquished tumors, lifted depression or did whatever else they were intended to.
But the trend line was inexorably downhill, found Dr Mark Olfson of Columbia University and statistician Steven Marcus of the University of Pennsylvania. By the 1980s drugs were less than four times better; by the 1990s, twice as good, and by the 2000s just 36 percent better than a placebo. Since older drugs were much superior to placebo and newer ones only slightly so, that means older drugs were generally more effective than newer ones.
If this disappointing (albeit somewhat unsurprising) news wasn't damaging enough for an industry many people have developed a healthy distrust for, the passing of the national healthcare plan will make it even worse.
The law established an independent research institute to compare the effectiveness of different treatments for the same condition. That way, patients as well as private insurers and government programs such as Medicare can stop paying for less effective therapies. If the new analysis is correct, then "comparative effectiveness research" could conclude that older drugs, which are more likely to be generics, are better than pricey new brand names that deliver the most profits for drugmakers.
Well, this part is
good news for consumers, or at least beneficiaries of the new health plan. If the most effective drug is also the cheapest, everyone wins... almost. Pharmaceutical companies won't be happy, but this really is their own fault. They often tout the (often inflated
) high dollar cost of R&D but fail to mention this outlay is routinely outweighed
by marketing and administration costs.
There are a few reasons effectiveness may have declined over the past forty years, not all of which are tied to self-interest and profit chasing. One possible factor is that the low-hanging fruit of the pharmaceutical world was plucked first, generating effective medications for simpler ailments. It also could be that those volunteering for clinical trials are increasingly people not having success with currently available drugs. Another factor mentioned in the article is the fact that the quality of clinical trials has increased over the years and the additional scrutiny to detail has narrowed the definition of success.
Despite these factors, many scientists feel there is an underlying truth to the overall claim that older drugs just work better.
While experts agree that tougher trials and similar factors explain some of the decline in drugs' reported effectiveness, "something real is going on here," said Olfson. "Physicians keep saying that many of the new things just aren't working as well," and therefore prescribe antidepressant drugs called tricyclics (developed in the 1950s) instead of SSRIs (from the 1980s), or diuretics (invented in the 1920s) for high blood pressure instead of newer anti-hypertensives.
Then there's this:
"The way the drug regulatory system is set up, even if you have just a small advance, if you market it right it can be very profitable," said [Dr. Aaron] Kesselheim.
The profits-over-effectiveness factor cannot be denied. Marketing budgets routinely meet or exceed R&D budgets because they have
to. Pharmaceutical companies are not nearly as interested in breakthrough medication as they are in pushing minor variations or incremental advances. [See also: this "Brain Candy" clip
.] Without a ton of marketing, these interchangeable drugs will never find purchasers
From 2000-2007, 667 new drugs were approved by the FDA. Of those, only 75 (11%) were new molecules that were much better than what we already had. In fact, over 80% of all drugs approved were no better than what we already had. Those are "me-too" drugs. Why do the pharmaceutical companies spend so much on marketing? Because you have to really promote drugs that really have no benefit over others that already exist. You have to convince people to buy those.
You know what needs no promotion? Awesome new drugs that save lives. When was the last time you saw a commercial for chemotherapy? For epinephrine? For steroids? Those drugs need no promotion - doctors just know to use them. But I bet all of you know about Nexium. Or Cialis.
Taking this route has worked for years, at least in terms of profitability. There's no reason to change it now. The results of this research paint a rather unflattering picture of the pharmaceutical industry, but as usual, its representatives seem blithely unconcerned.
The drug industry says it isn't worried. "Our sector is not concerned about objective, high-quality patient-centered comparative effectiveness research," said PhRMA's Burkholder. "We believe the substantial value of our products will continue to be demonstrated."
Frankly, I'm inclined to believe that first sentence. The sector doesn't seem to care what research says about its new, expensive, ineffective drugs. It already has plenty of compliant doctors, paying customers and an exploitable patent system in its corner. That makes the second sentence extraneous. If the market's tied up, the industry doesn't really need to worry about demonstrating value. All it needs to do is maintain course.
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Posted on Techdirt - 6 June 2013 @ 10:59am
The Dept. of Homeland Security has finally coughed up its Civil Rights/Civil Liberties Impact Assessment of its suspicionless electronic device searches performed at border crossings by ICE and CBP agents. It's been a long time coming.
The DHS announced it would take a look at this policy's impact on civil liberties "within 120 days." That was back in 2009. The report was released (but not publically) in December of 2011. In February of this year, it finally published a two-page executive summary of its findings for the public's perusal. There wasn't much contained in the release, but what was included was disturbing enough. In its own estimation, the DHS felt it complied with the Fourth Amendment but went on to state that imposing a "reasonable suspicion" requirement for device searches would be "operationally harmful" without any "concomitant civil liberties benefit." In other words, the public wouldn't be appreciably better off if these searches didn't violate anyone's rights, but the DHS felt its agencies would be worse off if forced to respect them.
The actual report has finally been pried loose, thanks to a FOIA request by the ACLU. There's a lot of information available in the report, including an explanation as to why the agency feels a "reasonable suspicion" threshold is "inadvisable." This is significant, the ACLU points out, as it's the first time the government has explained why it believes suspicionless searches "enhance" security. It begins with some familiar language and expands on that thought process a bit
[A]dding a heightened [suspicion-based] threshold requirement could be operationally harmful without concomitant civil rights/civil liberties benefit. First, commonplace decisions to search electronic devices might be opened to litigation challenging the reasons for the search. In addition to interfering with a carefully constructed border security system, the litigation could directly undermine national security by requiring the government to produce sensitive investigative and national security information to justify some of the most critical searches. Even a policy change entirely unenforceable by courts might be problematic; we have been presented with some noteworthy CBP and ICE success stories based on hard-to-articulate intuitions or hunches based on officer experience and judgment. Under a reasonable suspicion requirement, officers might hesitate to search an individual's device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search.
So, a CBP/ICE agent's hunch trumps a US citizen's rights. Rather than take the chance that someone dangerous might pass through its net, the agencies would prefer to be allowed to use "I've got a bad feeling about this" as justification for digging through not just someone's
laptop, but anyone's
laptop. The report supports the agencies' hunch-based investigative processes with anecdotal evidence but no real data.
Any data actually produced comes from outside parties concerned about the First and Fourth Amendment rights of American citizens. The Constitution Project's recommendations for border policy reform are included with the freed documents and it concludes that suspicionless searches not only have a very low "hit rate," but that the policy itself, as it stands now without limitations, actually creates a burden for the CBP and ICE.
Moreover, requiring reasonable suspicion to conduct a search of electronic devices would focus limited law enforcement resources where they can be most effective. Suspicionless searches are not well-suited to identifying and locating contraband or illegal material, as the CBP's own data show. In 2009, for example, only about 5% of the electronic devices searched at the border were seized as a result of the search. Put differently, in the vast majority of instances involving border searches of electronic devices, the traveler has had to needlessly withstand a significant intrusion into his or her privacy for no legitimate law enforcement purpose.
This hit rate puts it right in the neighborhood of another rights-violating law enforcement tactic -- NYC's stop-and-frisk program
. Lots of busywork but very little in the way of results.
But this report is almost more about what it doesn't
include than what it does
. If you're looking for some in-depth discussion of the DHS' views on various civil liberties, you're going to be disappointed. Here's what greets readers when they reach the "Fourth Amendment" section.
This continues for four straight pages. First Amendment? A page and a half of redacted text before this concluding sentence:
The laptop border searches in the ICE and CBP policies do not violate travelers' First Amendment rights as defined by the courts.
Interesting. Of course, the involved agencies don't really seem too concerned about any definitions provided by any court. If they did, they might have paid a bit more attention to a Supreme Court decision dealing directly with the Fourth Amendment.
Even more problematic is the government's claim that the "hard-to-articulate" hunch of a border agent is enough for the government to scrounge around through our personal photos, medical and financial records, email, and whatever other sensitive information may be stored on our laptops and phones... As the Supreme Court explained in Terry v. Ohio, if law enforcement agents are allowed to intrude upon people's rights "based on nothing more substantial than inarticulate hunches," then "the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,' only in the discretion of the [government]."
This evaporation process seems to be nearly complete in the so-called "Constitution-free zone
" and things continue to get noticeably drier elsewhere. The DHS clearly believes that citizens' Constitutional rights end where its jurisdiction begins -- and unfortunately at this point in time, that's pretty much everywhere.
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Posted on Techdirt - 6 June 2013 @ 3:27am
What's always been suspected has now been proven true: the NSA is indiscriminately harvesting the phone records of millions of Americans. Various whistleblowers have pointed out that the NSA's hunger for data has driven it to collect anything and everything it can, without having to submit to limitations placed on other agencies. Domestic surveillance is a full-time job for the NSA, and this order obtained by the Guardian spells it all out in unredacted black and white.
The order... requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.
The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing...
Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.
This order was granted by the secret FISA court, allowing the FBI to collect this data until July 19th, with another copy going to the NSA. This sort of thing isn't necessarily new or unusual (large scale data collection like this began during the Bush presidency, as Greenwald points out), but this particular request's scope is rather breathtaking.
The unlimited nature of the records being handed over to the NSA is extremely unusual. Fisa court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.
This order has no target. It just wants everything
. Every Verizon subscriber is included in the NSA's data dragnet. And while there's a lack of individual specificity in the data Verizon is ordered to produce, there are several ways the information collected can be manipulated and abused.
The information is classed as "metadata", or transactional information, rather than communications, and so does not require individual warrants to access...
While the order itself does not include either the contents of messages or the personal information of the subscriber of any particular cell number, its collection would allow the NSA to build easily a comprehensive picture of who any individual contacted, how and when, and possibly from where, retrospectively...
Privacy advocates have long warned that allowing the government to collect and store unlimited "metadata" is a highly invasive form of surveillance of citizens' communications activities. Those records enable the government to know the identity of every person with whom an individual communicates electronically, how long they spoke, and their location at the time of the communication.
A year ago, the NSA claimed it couldn't say how many Americans it had spied on illegally because doing so with violate the privacy
of those it spied on. Now, we can make an estimate: 98.2 million Verizon customers as of Dec. 2012
. And that's just Verizon. There's no reason to believe other carriers haven't received (and submitted to) similar orders and past events indicate the NSA has been spreading its net wide for several years
. And, of course, thanks to a whistleblower literally showing up at the front door of the EFF, we know that AT&T has basically helped set up direct access
for the NSA on its network in the past as well.
The NSA, as part of a program secretly authorized by President Bush on 4 October 2001, implemented a bulk collection program of domestic telephone, internet and email records. A furore erupted in 2006 when USA Today reported that the NSA had "been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth" and was "using the data to analyze calling patterns in an effort to detect terrorist activity."
With this document exposed, the NSA can no longer pretend (if it's even bothering to at this point) its data collection efforts are targeted. It long ago turned away from its original mandate -- foreign surveillance only -- and now appears to be harvesting vast amounts of data on US citizens simply because no one's going to stop it.
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Posted on Techdirt - 5 June 2013 @ 8:49am
Usually when software is cracked, it's to remove DRM or other limitations that were inserted to prevent unauthorized reproduction and distribution. Once that's complete, the unauthorized reproduction and distribution begins, with these illicit copies occasionally ending up in the hands of paying customers who just want the software they paid money for to work correctly. (Funny how that works/doesn't work.)
That's the usual scenario. There's nothing "usual" about Russia, as anybody who's reworked a Yakov Smirnoff quote/watched a few hundred hours of dash cam footage can attest. A Russian hacker going by the name of Barbarus cracked an Xbox Live Arcade game... to port it to the PC.
Ska Studios released their excellent hack-’n'-slash sequel, The Dishwasher: Vampire Smile, back in 2011, exclusively on the Xbox 360. This was the follow-up to the original The Dishwasher game that won the Dream.Build.Play contest back in 2007, which scored the studio $10,000 and an Xbox Live Arcade publishing contract. So when creating the sequel, Ska and Microsoft were already set up to carry on the exclusive publishing contract on XBLA, which meant that the game never saw a release on any other platforms. But that hasn’t sat well with some people, and now a PC port has been managed outside of any official parties.
Barbarus uploaded his unofficial port to torrent site rustorka.net, but the traffic jump took it down. He has since posted it at Yandex as well. The unofficial port is in (unofficial) beta, but is obviously very popular with PC users (or Xbox users who also want to play the game on their PCs). It also has triggered a bit of backlash in support James Silva, one of the game's developers. Barbarus posted this in response
The ethics of publication
The view was expressed that, with respect to the authors, it is not very nice to publish the game on the PC. I have to argue that the part of the authors are not very nice to publish the game exclusively for the Xbox 360, making it impossible for PC gamers to play such a great game.
Piracy – yes, that is bad. On the other hand, we did not steal the game for the Xbox 360; we released it for the PC port. Given that the developers ignored the PC platform, about any loss of profit for them is not out of the question. After all, if they wanted to earn money, then the game would be issued on all available platforms. If the game came out on PC officially, then this thread would not exist.
Barbarus' arguments defending his actions are not completely without merit. It can be argued that Ska Studios does lose money from this unofficial PC version (diverting Xbox users who now have a way to play the game without purchasing it through the Xbox Live Arcade), but then again, no PC version exists, so any amount of money lost lies in the realm of the theoretical.
On the other hand, James Silva didn't ignore
the PC market. The terms of his contract with Microsoft made it exclusively an Xbox title. Again, one can argue against the limitations of the deal or second-guess Silva's wisdom in agreeing to these restrictions, but that doesn't do much to address the issue at hand: how much does Barbarus' port harm Silva and Ska Studios?
Barbarus goes so far as to claim his liberation of Silva's game from the confines of the Xbox was a "restoration of justice" rather than piracy
. This it clearly isn't. But it really isn't piracy either, at least not in the normally accepted sense of the word. It's somewhere in between, traveling in the gray area usually populated by emulators and fan translations. The original has been altered, made to do things it normally doesn't (run on other operating systems, speak English) and released to the public.
James Silva's response is understandably conflicted.
“I guess you could say my reaction is mixed. I’m flattered that there’s this much interest in Vampire Smile on PC. I’m not mad about the crack itself; in fact, I’m actually pretty impressed. But I’m bewildered by the cracker’s attempt to justify the morality of it. He assumes a lot about why Vampire Smile’s not on PC yet, and he could have cleared up a lot of those assumptions by just emailing me. I get that piracy is a service problem, but that’s a consequence, not a justification.”
If there was a potential PC market for Silva's game, Barbarus has beaten him to market (so to speak) with his own game. Barbarus, for his part, has continued to defend his actions, pointing out that his port is far from perfect...
The PC version has a lot of limitations. Cooperative gameplay is unavailable, network gameplay is unavailable, achievments is unavailable...
and offering a bit of an apology to Silva
I should apologize to James Silva did not put him know before porting. Sorry James. I did not want anything bad. I just wanted to give an opportunity for PC gamers to play this game.
A very strange situation. Most people seem to agree that porting a game without the developers' permission is just bad form (at the very least). On the other hand, porting a game to a platform where it isn't currently available does very little harm as it's sort of hard to damage a market that doesn't exist. Could it undercut an official port to the PC? Possibly, but it looks as though Silva is choosing to go the route of combating infringement by crafting a bigger, better version of Dishwasher for the PC
Sorry the game's not on PC in any official capacity yet! The main reason it's not is because even though the game was developed on a PC, releasing on PC and working out all of the input, display sizes, graphics options involved is a lot of work (and a lot more work than it sounds like!). I know Dean was working on Dust PC for at least a few months before it was even announced (sorry if I've said too much, Dean!), and for us, when Vampire Smile shipped, we were already full speed on Charlie Murder. Once Charlie ships, I'd like to try working on a Vampire Smile PC port, but I'd really like to give it a Director's cut treatment--rework some areas, add environmental hazards and new enemies, etc., so we wouldn't really be missing out if there's a cracked torrent with broken shaders floating around somewhere.
And honestly, out of all the possible responses, Silva's chosen the best one. Going legal is prohibitively expensive and tends to turn a certain amount of public opinion against you, no matter how right you are. If an unofficial, cracked port exists, it's not going to be as polished as the original. This weird little saga only adds to the reasons for fans to support Silva when the official PC hits and his graceful handling of this screwed up situation should land Ska Games even more supporters.
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Posted on Techdirt - 5 June 2013 @ 3:33am
We live in a nation of wondrous technological advancement, where our average broadband speed and super low prices are the envy of the world, And if Google shows up to throw fiber around, the local citizenry simply shrugs its shoulders in indifference. Life is good... especially if you're paid to believe it is.
Karl Bode at Broadband Reports points us in the direction of a ridiculous "op-ed" piece written for the Philadelphia Inquirer by David Cohen, lobbyist and policy man for Comcast. It's filled with relentless, self-serving optimism and features Cohen's miraculous ability to take mediocre broadband statistics and transform them into "proof" of American superiority.
After cherry picking and massaging statistics to an almost painful degree, Cohen takes a little shot at Google Fiber, insisting that users don't really need 1 Gbps.
"For some, the discussion about the broadband Internet seems to begin and end on the issue of "gigabit" access. To be sure, a one-gig connection has value, especially for those who have invested in "inside" networks and equipment to handle that 1-gigabit firehose of data.
The issue with such speed is really more about demand than supply. Our business customers can already order 10-gig connections. Most websites can't deliver content as fast as current networks move, and most U.S. homes have routers that can't support the speed already available to the home. As consumer demand grows for faster speeds, a competitive marketplace of wired and wireless broadband providers will be ready to serve it."
demanding faster speeds, though. This is why services like Google Fiber
are objects of lust and desire
interest them. Sure, many broadband companies offer higher speed connections, but at very prohibitive prices
. When someone like Google comes along and offers a gigabit connection for $30/month, it's delivering what consumers actually want: higher speeds and lower prices. To date, broadband providers are only willing to give consumers either/or -- never both. (Additionally, service providers like Comcast frequently throw data caps
into the mix, which nullifies the positive aspects of a speed boost. Cohen's piece never mentions data caps or their effect on consumer behavior -- both in terms of limiting consumption and increasing costs.)
Cohen claims that 82% of Americans have access to wired high-speed Internet access of speeds exceeding 100 Mbps. But these services, provided in 85% of the country by only the local cable incumbent (the large cable companies never enter each others’ territories, and Verizon FiOS is available to just 15% of the country) are extraordinarily expensive: Comcast charges $114.95 per month for 105 Mbps download services. In Seoul, you can get symmetrical 100 Mbps (equal upload and download) access for $30/month, and there are three or four competitive choices.
So, it's not really a question of need
. Most consumers won't fully utilize a gigabit connection. But, they will have faster service at a lower price, and that's what really matters. What Google's entrance into the market does is add some real
competition, rather than the cooperation and collusion that has masqueraded for years as "competition."
By focusing on whether you need 1 Gbps, companies like Time Warner Cable and Comcast hope to steer the conversation away from how a lack of competition allows them to offer slow speeds and ever-higher prices (or the fact they're being outclassed in their own industry by a search engine)...
If the United States leads in anything in the broadband sector -- it's the use of denial and distortion by those with a vested interest in protecting the status quo. If you can convince people that everything is fine, nobody tries to fix things and your profit margins as a predatory, lumbering duopoly benefiting from regulatory capture remain high. You can legitimately argue that things are improving in many regions -- but to insist the United States is the global broadband leader is an obnoxious level of hubris, even for Comcast.
Cohen's article paints a broadband picture so rosy one almost expects a "sponsored content" banner to be flying above it. He even takes a moment towards the end to bash the broadband industry's (many) critics.
Today there is a cottage industry of critics who always want to tell us that our broadband Internet is not fast enough or satisfactory for one reason or another. The reality is that the United States is leading the way in speed, reach, and access - and doing so in a vast, rural nation that poses logistical connectivity challenges unlike any other country.
As Bode pointed out, a strain of hubris runs through Cohen's piece, but here it comes to a head. Comcast itself has MANY critics but Cohen acts as though the negative attention is undeserved. This "cottage industry" exists in part to battle the kind of misinformation Cohen and his cohorts portray as "facts." His attempt to belittle broadband critics as some sort of self-interested fringe "industry" is where his hubris comes to a head. It's obviously more than that if Cohen feels the need to tout his industry's "stellar" service via a major newspaper.
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Posted on Techdirt - 4 June 2013 @ 8:02pm
The fact that the public is still charged fees to access public records already seems rather questionable. After all, the creation of these documents is paid for by taxpayers. Keeping them locked up behind a governmental paywall often seems like double-dipping.
It's time to add one more to the list of government entities continuing to separate the public from public records with access fees. This time it's the state of California manning the ratchet.
A proposal to drastically increase fees for the public and press to look at court records is still up in the air after divergent votes from the California Senate and Assembly.
The fee, embodied in trailer bill language supported by the governor, the Judicial Council and its administrative arm, will inevitably restrict access to public documents and has raised an outcry from newspaper publishers and open-government advocates.
California courts already charge $15 for searches of court records that take more than 10 minutes.
The proposal from the Administrative Office of the Courts and backed by Gov. Jerry Brown would have the state charge $10 for every name, file or information that comes back on any search, regardless of the time spent.
$10 a search result? Granted, this would be an in-person, human-powered search at a courthouse, but this is ridiculous. Those pushing this increase have offered several different rationales for the increase (curb data mining, raise money, clerks not equipped with stopwatches), but have been completely unable to project whether this increase will offset the (apparently) increased costs.
One argument against the fee is that its advocates have not been able to tie it to an actual dollar amount, a fact admitted in a Judicial Council report that said: "The amount of revenue this proposal will bring in is impossible to estimate."
It's a government thing. Take a vague feeling that the public is draining public services of money and use this non-estimate as justification for a rate hike. Meanwhile, supporters will likely continue to count unhatched budgetary chickens without considering the worst case scenario (which is also the most common scenario associated with tax hikes). Jim Ewert of the California Newspaper Publishers Association points out what should be obvious to lawmakers at this point:
"...[I]f it's adopted there is going to be very little additional funding, because people just aren't going to make the request. There's going to be even less understanding of government court activities. It's very shortsighted."
You raise the price, you get fewer purchasers. Government services aren't that much different from retail services, especially when the "consumer" is paying directly.
So, how does something this unpopular (at least with open government advocates and the press) get as far as this did? Easy. All you have to do is move quickly and exclude interested parties from the discussion.
The votes in both houses were taken at budget subcommittee hearings dealing with a host of judicial branch issues. There was no debate or discussion at either hearing.
The Assembly committee rejected the fee increase. The Senate committee approved it, with a stipulation that members of the press be exempt. There is no language, at this point, on what a press exemption would entail.
There's an exemption, but no one outside of the involved legislators has the details. What seems to be certain is that fees will be increasing, something a cash-strapped government like California's would be unlikely to reject. At this point, the fee increase is scheduled to head to a conference committee for further discussion. Ewert hopes this
one will actually involve the public.
Ewert said he hopes lawmakers will give the CNPA and other press and freedom of information groups the opportunity to provide input.
"[I]t's just a bad idea to deny access to records that the public has already paid for, and shield the public from an institution that it already has very little understanding about."
As Ewert points out, this rate hike will only increase the distance between the public and the records they should rightfully have access to. Worse, it will disproportionately affect citizens with limited income. This increase, if passed, will not only allow the state to tax its constituents multiple times for the same records, it will turn public record access into a privilege, rather than a right.
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Posted on Techdirt - 4 June 2013 @ 11:39am
As Microsoft stumbles towards the eventual release of the Xbox One (an all-in-one console apparently aimed at replacing all of your entertainment devices with a sleek black box equipped with eyes, ears and a frustrating inability to fire up a secondhand game without tossing some
cash Points into the tollbooth), gamers (for the most part) have expressed their irritation and disbelief, even going so far as to call on Sony to not eff up the next Playstation with the same sort of purposefully limited feature set.
But, this intentional limitation does have its supporters within the gaming community. One of them is Ben Kuchera, who penned an editorial in support of the new Xbox over at Penny Arcade. He argues that this combination of account lock-in and elimination of used games will be a net win for most gamers, who will presumably enjoy some sort of trickle down effect from game developers.
GameStop may not be able to aggressively hawk used games for $5 less than the new price to customers under these new controls, which is great if you're a developer or publisher. Once that secondary market is removed you can suddenly profit from every copy of your game sold, and as profit margins rise it's possible we'll see prices drop.
Yes, that's a possibility. But I would imagine it'll take a few years before new releases start hitting the market on day one for less than $60, especially if Sony goes the other way and keeps secondhand gaming alive. Kuchera also suggests that Xbox may feature more Steam-esque bundles and faster price cuts, presumably because killing the secondhand market will flood game developers with price experimentation-type money. He could be right, but (again) I don't see this developing the near future.
But here's where Ben goes wrong.
It needs to be made clear, if all the studio closings and constant lay-offs haven't made this explicit: The current economics of game development and sales are unsustainable. Games cost more to make, piracy is an issue, used-games are pushed over new, and players say the $60 cost is too high. Microsoft's initiatives with the Xbox One may solve many of these issues, even if we grumble about it. These changes ultimately make the industry healthier.
Microsoft wants consumers to buy discs but come away with nothing more tangible than licenses when all is said and done. This push has been in the making for several years, with the PC gaming market leading the way. Of course, you can still buy the discs (and resell them -- if anyone's buying) but services like Steam have paved the way for gamers to load their hard drives up with bright, shiny licenses, and not much else. For many, the convenience is a decent trade-off. For others, the speedy application of price cuts makes giving up the right of first sale a little less painful. But Ben's arguing that we, the public, should willingly give up another chunk of our rights in order to help bail out an industry. Is that what we really want?
In a brilliant response to both Ben Kuchera and another commenter in the Neogaf discussion thread
(who maintains that the "detrimental effects" of used game harm the gaming industry), faceless007
argues that we don't.
You admit you only hold this view because of the detrimental effects (you think) are impacting the industry. You are asserting that a fundamental aspect of property rights and consumer rights as it has existed since the beginning of trade should be adjusted and recodified on a per-industry basis, not because it's inherently bad or unethical, but just because you think it's a threat to the industry's health. Which means you are essentially arguing for protectionism for corporations--consumers are free to exercise their consumer rights only up to a certain point, but if that free exercise is perceived to threaten the viability of the industry, then their rights must be limited in order to save the industry.
It's one thing to see an industry mouthpiece tout the "benefits" (which, for the consumer, are often "limitations") of replacing the right of sale with digital license boilerplate full of phrases warning that everything in the "agreement" could change at any given time. We expect that from those who directly benefit by removing or severely limiting the secondhand market. It's rather galling to hear affected customers arguing for the health of an industry over their own rights.
But faceless007 isn't done and turns on the industry itself, taking it to task for its self-inflicted inability to flourish in a market that it endlessly exploits to the nth degree.
The industry does not come first; consumers do. I have no sympathy for an industry that cannot properly stumble its way around a viable secondhand market like every other mature industry in the world... If this industry can't find a way to make money off the primary market -- even with DLC and exclusive pre-order content and HD re-releases and map packs and online passes and annualized sequels and "expanding the audience" and AAA advertising and forced multiplayer -- then, if I may be so blunt, fuck it. It doesn't deserve our money in the first place.
If an entire industry has its head so far up its ass, is so focused on short-term gains, and has embraced such a catastrophically stupid blockbuster business model in the pursuit of a stagnant market of hardcore 18-34 dudebros that it thinks it has no choice but to take away our first-sale rights as its last chance of maybe, finally, creating a sustainable stream of profits, then it can go to hell. It doesn't need your protection, it needs to be taken out back and beaten until it remembers who its real masters are.
There are many industries that love having customers but actively hate granting them the control to resell their purchases. It pains them to watch money change hands without taking a bit off the top.
Look at the recording industry. It likes licenses for music on platforms like iTunes. Digital means a lower distribution cost. But it still handles each sale like a physical CD -- at least when it comes to paying their artists. The end format is malleable for those who control it. Want to sell your purchased mp3s
? Sorry. It's just a license. Looking for your larger license royalty
? Sorry. It's a CD.
The motion picture industry is no better. Please jump through our DRM hoops
and get your entertainment through our portals
... until these shut down and you are the only one getting screwed
. Why? Because the industry won't make it if it can't find the next $200-400 million to throw into holes like "John Carter" and "Green Lantern."
Do we really need more examples? We need to pay more for games in order to save an industry that's done things like hand customers a fully, purposefully broken SimCity and then spent the next several weeks
denying every contradictory fact gamers dug up? Microsoft may get more developers on board by promising them they'll never have to "lose" a sale to Gamestop again, but if this is the only sustainable route, then the gaming industry has problems that run much deeper than used game sales. If the Xbox is the "new way," then purchasers are paying for the privilege of being victimized by an industry that wants its customers to pay for its bad habits.
The game industry thrived for years alongside a secondhand market. If it can't make it now, it has no one to blame but itself.
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Posted on Techdirt - 4 June 2013 @ 7:07am
Violence and violent video games still remain connected in the eyes of many despite a lack of supporting evidence. When an act of violence occurs, the more horrific it is, the more certain it is that people will try to connect the two. We've seen it happen time and time again.
A recent murder trial used this "connection" in the accused's defense, but with a twist. Instead of using violent video games as a scapegoat to help defray the culpability of their client ("video games made him do it"), the defense team used it to portray one of the victims as a violent person motivated by violent video games.
Illinois man Chris Beason was accused of the murder of five members of his ex-wife's family -- parents Ruth and Raymond "Rick" Gee, Rick's 22-year-old son Austin and Ruth's two children, 14-year-old Dillen and 16-year-old Justina. Beason also severely beat the Gee's three-year-old daughter, but she survived. Things looked bad for Beason, who went on trial facing an uphill battle against a ton of forensic evidence and damning testimonies provided by a former cellmate and his own brother.
So, Beason went in a wholly unexpected direction, claiming that he was walked in on a murder-in-progress, perpetrated by Dillen, and had to kill the 14-year-old in self defense.
The defense tried to paint the victim (who was bludgeoned to death) as an anti-social at-risk teen whose rage and anger was exacerbated by playing video games. This, the defense argued, led to Dillen killing his entire family on the night of September 29, 2009 - which Harris claimed to have walked into in progress.
The defense called in an "expert" (you'll see why the quotes are attached as this unfolds) to support its theory that Dillen's video game habits had turned him into a murderer.
To drive this angle home, the defense called Iowa State University professor and researcher Craig Anderson. On May 28 he testified about a report he created for the case based on documents sent to him by the defense.
Those of you familiar with Craig Anderson's video game research
will see where this is going. Those who aren't, prepare to meet the man most likely to take Jack Thompson's place as the shrill voice of video game hysteria
To set the stage, here are a few quotes (by others in the research field) on Anderson and his "research."
In reference to a 2008 study of his that "linked" video games to violence in the US and Japan
In the literature review the authors suggest that research on video game violence is consistent when this is hardly the case. The authors here simply ignore a wide body of research which conflicts with their views...
[Prof. Christopher Ferguson's] paper claims that Anderson’s study “included many studies that do not relate well to serious aggression, an apparently biased sample of unpublished studies, and a 'best practices' analysis that appears unreliable and does not consider the impact of unstandardized aggression measures on the inflation of effect size estimates.”
I would certainly say there's an agenda here... what Craig Anderson argues in his paper, he then goes into describing youth violence, talking about how serious a public concern youth violence is. [But] He doesn't measure youth violence in his study. He doesn't measure anything even close to it. The aggression measure he uses is not a behavioral measure, it doesn't measure aggressive behaviors. It doesn't predict youth violence. So they're engaging in hyperbole that is not warranted by the results of their study, and that to me say there's clearly an agenda.]
Anderson first delved into Dillen's non-video game background, citing multiple risk factors like anti-social behavior, ADD, learning problems and troubled home life. He pointed out that Dillen kept a "knife and golf club" in his room and was prone to "emotional outbursts." After running down everything in Dillen's life that may have contributed to his supposed killing spree, Anderson turned to his area of "expertise."
Anderson testified that research has shown that playing violent video games can lead to aggressive behavior. The defense then moved to discuss three save games on Dillen's PS2 - for Mortal Kombat. After describing the fatalities in the game - one character ripping another's spine out - the jury was shown various fatalities from Mortal Kombat: Armageddon.
One game. Three saves. Obviously a pattern. The fatalities in the game are indeed violent, but they've also been around for years, being enjoyed by millions of gamers with no ill side effects. Anderson was probably feeling rather confident in his conclusions -- right up until the prosecution began drilling holes in every argument.
But on cross examination, Anderson was put on the defensive as the prosecution drilled down into his expert testimony on video game violence and research. First he was asked if he had ever played Mortal Kombat and if it had made him violent.
Anderson said that he had in fact played the game many years ago and indicated that it did not make him violent.
Millions of gamers. Millions of violent video game hours played. Violent crime at an all-time low in most of America. And yet, Anderson and other like-minded individuals insist these games craft killers. Somehow, Anderson wasn't affected by Mortal Kombat but he expected the jury to believe Dillen was.
Focusing on violent video games, the prosecution pointed out that 70 percent of adolescents play video games and the majority of them do not commit violent crimes. But the real zinger came when the prosecution asked Anderson if Pac Man eating a ghost could be considered violent by some definitions. Anderson says that it could.
The prosecution wasn't finished nailing Anderson to the wall. It also attacked the supposed research he had done into Dillen's past.
Anderson also admitted that he didn't talk to anyone (including therapists, teachers, school officials, or family members) familiar with Dillen's behavior when preparing his report for the defense. The prosecution pointed out that Anderson's first draft of his report listed six risk factors, but a later draft listed 16. Anderson responded by saying that prior aggression is the highest indicator of violence. Anderson also admitted that he had no way of knowing if the documents he used for his report were accurate. The prosecution also pointed out that Dillen's grades had been improving over time and that in some subjects he was getting "A's" and "B's".
For someone so confident that video games are creating killers, Anderson didn't seem too sure of much else. I'm sure he thought he wouldn't need to do more than trot out a little bit of his proprietary "research" and coast out of there unscathed. Instead, the prosecution went after his half-assed "expert opinion" relentlessly, forcing Anderson to utter some pretty damning statements of his own. Unfortunately for Anderson, the only person these statements damned was himself.
Later the prosecution got Anderson to acknowledge that there has never been a study that shows violent video games have been directly linked to violent acts.
Certainly nothing outside of Anderson's own. It gets better (for us). The prosecution brought up Brown v. EMA
, pointing out the Supreme Court justices' criticism of Anderson's methodology. Anderson's response?
Anderson said that the decision by the Supreme Court looked like it was written by the video games industry and that he felt like the video game industry went out of its way to personally attack him.
Wow. The video game industry controls the Supreme Court. Who knew?
Ultimately, Anderson's testimony did little, if anything, for the defense. Beason was found guilty of five counts of first-degree murder
. Anderson, on the other hand, has further cemented his own reputation as researcher severely short on credibility and objectivity -- both generally considered to be positive traits in this field. Furthermore, he's proved himself to be the kind of opportunistic person who's willing to further his own agenda by painting a murder victim as a violent killer. The courtroom is no place to be tossing around predispositions and shrugging off actual facts. Anderson did both.
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Posted on Techdirt - 3 June 2013 @ 9:49am
So it goes in America. No one's immune from the threat of patent litigation, not even 18-year high school students in possession of an award-winning science project in one of the most prestigious science fairs around. (Tip of the hat to TD reader Jeff for sending this over.)
Eesha Khare, an 18-year-old senior at Lynbrook High School in San Jose, Calif., won both the first prize at the Intel Science Fair and the Project of the Year award for the senior division of the California State Science Fair with her research on supercapacitors.
However, her work has also attracted the attention of the company that holds a patent involving similar technology, and its CEO says he may be forced to bring legal action against her if she tries to commercialize it.
[K]hare’s work violates a 2005 patent filed by green energy company Solaroad Technologies, according to company CEO Kahrl Retti. He says he has been working on similar technology since the 1980s, and that while Khare’s work is impressive, it is in violation of the patents involving nanocapacitor technology that Solaroad Technologies has already commercialized.
Kahrl Retti, CEO of Solaroad Technologies, LLC, showed up in the comment thread
(assisted by Nick Cameron, also of Solaroad) at Tech World to make some noise about the wrong person being credited with this invention.
Once again the media has credited the wrong person with inventing a technology. The inventor of this tech filed Patent applications worldwide 7 years ago on this very tech.
Although Eesha's work is commendable, the media has indeed credited the wrong person with this invention. Solaroad Technologies, a solar innovation company located in Baltimore, MD was the original inventor of the nano battery and holds patent applications worldwide on it. Their CEO (Kahrl Retti) has been in the nanostructure field for years. Directed towards the writer, please check your facts.
Cameron went even further on Solaroad's Facebook page
: [UPDATE: This post has vanished from Solaroad's Facebook page, so here's a screenshot. Link will now take you to the cached version.]
Once again, the media has given the credit to the wrong person for this invention. This technology was developed by Solaroad Technologies and invented by Kahrl Retti in the 1980's. Patents have been filed worldwide on this tech since 2005. Retti developed and produced nanorod capacitors and has documentation regarding the tech dating to 1988. Scientists from General Electric, General Motors, and Kiment.
It is a great disservice to credit this 18 year old with a technology that was invented and developed before she was even born. The scientific community tends to ignore the patent office and only publishes papers fro academic sources, the tech media also ignores the patent office. IT IS A GOOD WAY TO GET SUED
Pay attention to what's being stated here (which is different than what's being stated in Network World's story). Both Retti and Cameron state only that "patent applications" (or "patents" in the FB post) have been "filed." At this point, neither Retti nor his company actually hold
a patent on this technology, at least not in the US. The only patent potentially related to Khare's project that can be traced back to Retti or Solaroad is this one -- an application filed in 2006
(and with a priority date of 2005). [This application
seems more relevant, but Retti keeps throwing around the 2005 date.] A search of the USPTO database returns only the following list of granted patents for Retti
(most of which deal with taping gypsumboard) and nothing at all
Holding an application is nowhere near as effective as holding an actual patent. While some royalties may be collected from infringement that occurred after the application was published, certain stipulations must be met before the original applicant can make a claim for damages. One of these requirements is that the infringer must have "actual notice" of the published patent. It's hard to imagine that most (if any) science fair projects begin with a patent search, so the noise Solaroad's making only serves one purpose: to inform the involved parties that a.) it exists, b.) it's willing to sue and c.) it's filed an application(s) that might tenuously be related to Khare's work. If she chooses to commercialize her supercapacitor work, Retti can claim she had "actual notice."
That, and Retti just seems bitter that a high school student is garnering all of this attention.
“I would never consciously hurt or cast aspersions on anybody. I just simply wanted to put somebody on notice that we already developed this technology,” Retti said in a phone interview with Network World. “I don’t want to hurt this girl’s feelings or anybody else’s. I’m just frustrated after trying to get Intel or Google to talk to us for decades, and they won’t even talk to me, but they’re jumping on this bandwagon.”
“I don’t want to pee on anyone’s parade and I don’t want to stop any technology that could be for the greater good of the world, but I’m here to say that I did it,” Retti says.
If Intel and Google are interested, it's because Khare's project could help push advances in portable device construction.
Khare’s work with supercapacitors could make a difference in the design and performance of smartphone batteries, which, in turn, could help make flexible smartphones a reality... In a test, Khare’s supercapacitor boasted a capacitance of 238.5 Farads per gram, a substantial improvement from the 80 Farads per gram achieved with alternative designs. Practically, supercapacitors could help make for smaller internal components in smartphones.
Solaroad, as may be gathered by its name, has positioned itself as an alternative energy company
, even going so far as attempting to design its own electric vehicle. If Retti's been unable to match up his (still pending) patent with the priorities of Google and Intel (with an 8-year head start, no less), that's hardly Khare's fault. Shutting down someone else's innovation simply to protect your own rut is exactly the sort of behavior that has people calling for a complete overhaul of the patent system.
Perhaps Retti should spend less time fretting about inventive 18-year-olds and start refining its existing product line. A visit to Solaroad's site gives you the feeling the products it's touting have endless upside, but digging around a little more leads to the impression that its main products
exist only as PDFs and Powerpoint presentations.
Here's Solaroad's $500,000 crowdfunding attempt
to get its GridKicker solar generation/storage device off the ground. It seems to have stalled after receiving only $30 in contributions in four months. (One of the donors
is quite possibly Kahrl Retti's son, Kahrl Retti Jr.
[aka Johnny Columbine]). Another comment
on its Facebook page (dated October of 2012) seems to indicate Solaroad isn't manufacturing any
of its products at this point.
We are currently looking for an investment to start manufacturing. Any questions can be asked through telephone or email. Thanks!
While throwing around nearly baseless legal threats, Solaroad might want to be a bit more careful with its careless shouts of "infringement." One of its "future products" is SolarFilm
SolarFilm is a sprayable nano-based solar technology that creates energy by using heat, light, and magnetics. It's unique formulation of photovoltaic (PV) and thermionic chemical compositions make it one of the most advanced solar technologies ever created. SolarFilm is durable, efficient, and extremely versatile. It can be easily applied to a variety of surfaces, such as roadways, shingles, siding, vehicle paints and much more.
This bears quite a resemblance to SolaRoad
, another solar-generation-via-roadway-application product developed by Dutch company TNO
. This is due for a test run in 2013, with an eye towards replacing all 85,000+ km of the Netherlands' roads and bike paths with the combination solar panel/concrete hybrid.
There's likely no infringement occurring here (in either direction), but Retti and Solaroad have shown they're more than willing to take offense at independent invention. This does very little for whatever legal case it may try to pursue, but it does a great deal towards crafting some very negative "publicity."
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