Posted on Techdirt - 12 March 2014 @ 3:03am
Automatic license plate readers (ALPRs) are pretty much standard operating equipment for law enforcement agencies across the nation. Even if the ill-timed attempt to create a national license plate database was recently killed by DHS/ICE officials, this removal has done nothing to deter the collection efforts of multiple ALPR manufacturers to harvest tons of plate/location data and provide warrantless access to law enforcement.
Standard operating procedure also means rolling these plate readers out without asking for public comment or providing any meaningful privacy protections. Most ALPRs will hold onto ALL data for five years, unless forced to trim that down by legislators responding belatedly to public outcry. Some will hold onto the data for shorter periods of time, but nearly every ALPR manufacturer makes little to no effort to discard non-hit data.
The ACLU is currently fighting Connecticut legislators and police departments over proposed data policies relating to the states ALPRs.
The length of time law enforcement agencies could retain license plate information was the center of arguments Tuesday before the legislative Public Safety and Security Committee.
Local police chiefs want to hang on to the information for five years or more, because they say it's an important crime-fighting tool.
But opponents, including the American Civil Liberties Union of Connecticut, called the collection -- known as automated license plate recognition -- a threat to constitutional freedoms and asked the committee to require a much shorter retention period of days instead of years.
The police want five years, a ridiculous amount of time, especially considering they want to keep it all
for that long -- even non-hit data. As David McGuire of the ACLU points out, this extended retention period of non-hit data lends itself to abuse.
"The trouble arises when license plate scan data is collected, pooled and archived for months or years, storing a detailed and vivid picture of the movements of drivers who are not even suspected of doing anything wrong.
Kept for years in databases, plate data can create a method for "retroactive surveillance of innocent people without a warrant, without probable cause and without any form of judicial oversight," he said.
Why would a law enforcement agency need 5 years of non-hit data? Connecticut police chiefs call the ALPRs an "important law enforcement tool" but what does plate data unrelated to investigations have to do with "law enforcement?" The ACLU suggests a retention period of two weeks for data not related to open investigations, but law enforcement officials want it all
-- for a half-decade.
Without a doubt, ALPRs are a useful tool for law enforcement agencies, but one has to wonder why they're fighting so hard to keep the unrelated data. It serves almost no purpose and only encourages fishing expeditions and other abuses. No law enforcement rep interviewed for these stories offered a single reason why the ACLU's suggestion wouldn't work.
The only conceivable reason would be the investigation of cold cases or other incidents that happened years ago where location data might be useful. If that's the rationale, the rule should still hold. The non-hit data could
be retained past the two-week point but should only be accessible with a warrant -- something narrowly crafted to search for only relevant plate numbers.
As the ACLU has discovered, even a small state like Connecticut has already amassed millions of license plate/location records. Six million records have been collected by ten towns, with Newington, CT alone compiling over 600,000 scans despite only having a population of 30,000. And for what? Newington police chief Richard Mulhall points to a little under 900 arrests
(with 839 of those being "motor-vehicle related" -- only 28 were deemed "criminal arrests") as justification of the massive amount of scanning.
There's an obsession with collecting data -- a majority of it useless and irrelevant -- pervading every law enforcement, investigative and intelligence agency in the nation. Groups like the ACLU are pushing back using FOIA requests and legislation, but it's an uphill battle against this ingrained mentality. Technology continues to outpace the law and as long as this remains a fact, the privacy of millions of Americans remains threatened.
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Posted on Techdirt - 11 March 2014 @ 11:30am
If there's anything as labyrinthine as copyright law, it's divorce law. Smokey Robinson, the composer of several Motown hits, is combining both.
Smokey Robinson sued his ex-wife, Claudette Rogers Robinson, seeking declaratory judgment that he may terminate and "recapture" the copyrights to all the songs he wrote during their marriage, and that she cannot claim interest in them under California community property law.
Robinson is reclaiming the rights
to his pre-1978 songs from Jobete Music Co., something many artists are doing as copyright termination
goes into effect. Robinson's main problem, oddly, isn't Jobete arguing that the songs were "work for hire
," but rather that his ex-wife (who he divorced in 1985) believes she should be entitled to 50% of whatever income these songs generate.
The Dec. 2, 2013 letter from counsel is attached to the complaint as Exhibit A. In it, Claudette claims 50 percent interest and demands 50 percent payment of the royalties and advances from all songs she claims as community property.
"She is entitled to half the publisher's share and half the writer's share," Claudette's counsel wrote in a Dec. 6 follow-up email.
Robinson's filing points to a couple of aspects which would seem to lock Claudette Rogers-Robinson out of claiming half of his songs' profits.
"[T]he 1976 Copyright Act expressly provides that these 'recaptured' copyrights belong to the author alone, which is plaintiff. Moreover, the 1976 Copyright Act precludes any transfer of those copyrights before the terminations themselves are effective. Thus, any transfer of such rights to any third party, whether defendant or a music publisher, was barred by the 1976 Copyright Act, and is therefore null and void."
So, according to this claim, his ex-wife couldn't have made any legal claim to the songs prior to rights termination, and seems to prevent her from doing so post-recapture. But another point Robinson raises seems to conflict with the assumptions of the current life+70 years copyright term.
"As a result of the divorce, all copyrights, contract, and/or royalty rights to the musical compositions created between November 7, 1959 and May 30, 1985 were purportedly divided between plaintiff and defendant as tenants-in-common. Defendant also received a monthly spousal support payment of substantial sums and significant real and personal property."
However, Smokey says: "Defendant did not write any part of any of the musical compositions at issue; her interest was awarded on the basis of community property principles alone."
By Smokey's reasoning, any
person who didn't partake in the creative process of copyrighted works should be locked out of profiting from the works. This raises a question: if his ex-wife has no right to profit from Smokey's songs, why should Smokey's descendants?
The current copyright term allows heirs or other rights holders to exploit copyrighted material for 70 years after the death of the creator. Arguing that passing copyright control on to heirs is roughly comparable to an inheritance relies more on "community property principles" than copyright law. But intellectual property isn't directly comparable to "real property" (land, houses, belongings, etc.). Real property has no set (but highly arbitrary) expiration date and isn't subject to a "limited" period of protection.
Robinson asserts he "solely" owns these songs because he is the composer. Following this line of thinking, Robinson's descendants should have no legal claim to profits from Robinson's creations for 70 years after his death. If copyright law were deployed honestly, his "sole creator" claim would terminate his claim -- and any of his heirs' -- at the time of his death. But it isn't. And everyone involved -- from the labels claiming pre-1978 songs were "work for hire" to Smokey Robinson claiming his ex-wife isn't entitled to profits (but presumably his heirs are
) -- is twisting the law to assert control.
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Posted on Techdirt - 11 March 2014 @ 7:11am
Well, this is interesting. No sooner had FISC judge Reggie Walton shot down the DOJ's request to hold Section 215 metadata indefinitely (supposedly to preserve evidence related to ongoing lawsuits) then another judge has ordered the NSA to preserve this same data as evidence related to two lawsuits the agency is currently engaged in.
U.S. District Court Judge Jeffrey White issued the order Monday afternoon California time in response to requests from plaintiffs in two lawsuits challenging the lawfulness of the NSA surveillance.
"It is undisputed that the Court would be unable to afford effective relief once the records are destroyed, and therefore the harm to Plaintiffs would be irreparable," White wrote in his two-page order. "A temporary restraining order is necessary and appropriate in order to allow the Court to decide whether the evidence should be preserved with the benefit of full briefing and participation by all parties."
As we pointed out earlier, either way this goes, the NSA wins. If it holds onto the data, it gets to play around with the info for long past the 5-year expiration date. If it's told to destroy it (as Reggie Walton instructed), it gets to toss out evidence it had no intention of ever allowing into a public courtroom.
This may set up a showdown of sorts, but it's tough to see how a district court will be able to override the direct order given by the court that directly grants permission to the NSA to collect and store this metadata. The government can appeal either order, so it will be very enlightening to see which one it chooses to dispute. Chances are the appeal will go smoother in district court as Reggie Walton made it crystal clear that extending the expiration date puts the program on unconstitutional footing.
In order to keep from showing its hand, the NSA simply needs to do nothing
and let someone else, possibly the administration itself, sort it out. Or it may decide segregating relevant metadata is above its pay grade and appeal the newest decision, allowing it to dispose of evidence it doesn't want to expose.
Briefs are due to be filed in the next few days and the government's arguments should prove to be an entertaining read, especially if it attempts to argue that it should destroy the past-due records, directly contradicting the DOJ's earlier request to retain it.
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Posted on Techdirt - 11 March 2014 @ 5:09am
Somehow the word "copyright" is being thrown around in relation to a 500-year-old statue. Any reasonable person would assume the word "copyright" shouldn't come within 350 years of any creation, but that's how the story's being presented. (h/t to Techdirt reader WulfTheSaxon)
Italy's culture minister has expressed outrage over an advertisement by a US weapons firm showing Michelangelo's David holding a rifle. Dario Franceschini said the image was offensive and violated the law.
A number of Italian media web sites carried the image of the advertisement showing David holding a bolt-action rifle. The advertisement, from Illinois-based ArmaLite, carries the line "a work of art" in promoting the $3,000 rifle. Mr Franceschini urged the company to withdraw the advertisement for the AR-50A1.
He said in a tweet: "The image of David, armed, offends and infringes the law. We will take action against the American company so that it immediately withdraws its campaign."
First off, the ad itself is over a year old, as Sara Morrison at The Wire points out
. The ad was originally tweeted by Armalite back in May of 2013. This ad, however, was only recently published in Italy, hence the sudden outrage.
Now, as for the claim of copyright… that doesn't seem to be exactly what's being claimed here. (And, indeed, none of the officials quoted actually use the word "copyright," instead claiming the ad "distorts" the original work. That term is deployed solely by reporting on the event
.) The country of Italy "owns" Michelangelo's statue of David (finished in 1504)
, although the piece itself resides in Florence, a claim not without its own controversy. (Italy claimed the statue in 2010, something that enraged Florence officials who firmly believed that statue belonged to the city that had hosted it since its completion.)
What Italian officials actually seem to be claiming is control over use
of the sculpture, which is adjacent to copyright, but not entirely the same thing.
Cristina Acidini, Florence superintendent for history and fine arts, condemned the company’s use of the image and also urged ArmaLite to immediately withdraw it.
“To use a work of art from any of the Florence museums for promotional purposes, it is necessary to obtain an evaluation of how the image may be used,” Miss Acidini said. “No-one ever agreed to that.”
What's being stated here sounds more like publicity rights
. Florence officials are seeking to control use of David's "image" in advertising. ("Image" in this case being the collective perception of a cultural icon, rather than a photograph.) Italy may technically "own" the sculpture (as much as anyone can "own" a cultural icon), but it can't claim to control the copyright, which has long since expired. (And that's even under Italy's restrictive laws
which make no allowances for fair use and include dubious "moral rights
" as part of the copyright package.)
So, Florence effectively controls use of images
(photos) of the sculpture, and is trying to assert some form of publicity rights on behalf of a statue. It can't lock anyone out from producing their own David sculptures, but what museum officials have done instead is prevent anyone from producing their own images. The museum has a strict "no photography" policy
which means that any photos of David are controlled by the museum. (There doesn't seem to any similar policy restricting photography of the replica located elsewhere
in Florence.) In this fashion, Florence officials can seek to control of David's use in commercial works via copyright law, even if what's being detailed here seems to rely more on outrage over "distorting" the sculpture's iconic status than any true legal basis.
But this assertion of control over a cultural icon is still specious, as even the Florence superintendent of fine arts seems to realize. As Cristina Acidini says at ilpost.com
, it's an "international event" but "I cannot, of course, send the FBI after Armalite." Instead, she intends to use the court of public opinion to render a verdict in the museum's favor and shame ArmaLite into dumping the ad.
"But I intend to use all the possibilities of reaction... starting with the 'moral persuasion' and scandal in the newspapers."
So, what we have is a copyright-esque assertion being used to shame a gun manufacturer into dropping an ad that has offended cultural sensibilities halfway around the world (ArmaLite is based in Illinois). At the center of it all is a 500-year-old sculpture currently in the public domain, but controlled by "adjacent" copyright measures. In the end, all these Italian officials have is their offended sensibilities, which really isn't enough to justify their demands.
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Posted on Techdirt - 10 March 2014 @ 7:33pm
For years, Dutch natives have purchased hard drives and mp3 players solely for the purpose of loading them up with purloined mp3s -- or so a recent Dutch Supreme Court decision would have you believe. NORMA, a Dutch collection society, just won its battle against untaxed hardware, which will result in the collection of unpaid "you must be a pirate" taxes being awarded to it, dating back to 2007.
The original "you must be a pirate" tax was levied against blank CDs and DVDs, with those rates being frozen in 2006. NORMA claimed this put the government in breach of the "Copyright Directive," because apparently NORMA is entitled to collect money on anything someone could conceivably use to store media files. In the eyes of the collection society, its members "lost millions of euros in revenue" when blank media sales died off and hard drive/mp3 players increased.
Its press release doesn't state specifically why its stable of artists are "owed" a cut of every storage device sold, but the word "entitled" is deployed. This bizarre reasoning puts us back in the position of wondering whether the artists represented by groups pushing these taxes would just be better off selling storage devices.
Ultimately, it doesn't matter. The court has decided NORMA will get to collect taxes dating back to 2007, stating that it will revisit this in 6 months to see if anyone can agree on how many millions of euros that should be. NORMA's press release also notes it's been successful in instituting a "pirate" tax on smartphones, tablets and PCs, running from 1-5 euros per device depending on storage capacity.
Presumably, like every other rights groups/collection society, the windfall will be paid in top-down fashion, blessing top-selling artists with a few more euros and giving a vast majority of its represented artists nothing at all. This distribution scheme matches up perfectly with the stupidity of the "you must be a pirate tax," ensuring that nearly everyone but the collection society itself gets screwed -- and all in the name of "protecting artists."
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Posted on Techdirt - 10 March 2014 @ 1:17pm
The US Border Patrol has handed down new guidelines for use of deadly force after its agents killed 19 people in 67 shooting incidents between 2010-2012.
The U.S. Border Patrol has restricted border agents' authority to shoot at moving vehicles or at people throwing rocks, changing a controversial policy that has contributed to at least 19 deaths since 2010…
The new rules would bring the Border Patrol's practices closer to those used routinely by the nation's major urban police departments. They are a response, in part, to widespread complaints from immigrant advocates that border agents have shot and killed people in some cases when deadly force was not necessary to protect the lives of agents or the public.
Why did the CBP open fire on so many people? Well, it's because agents feared for their safety. Why did they fear for their safety? Because they put themselves deliberately in that position
, according to a report commissioned by the CBP and written by law enforcement experts.
House and Senate oversight committees requested copies last fall but received only a summary that omitted the most controversial findings — that some border agents stood in front of moving vehicles as a pretext to open fire and that agents could have moved away from rock throwers instead of shooting at them…
"It is suspected that in many vehicle shooting cases, the subject driver was attempting to flee from the agents who intentionally put themselves into the exit path of the vehicle, thereby exposing themselves to additional risk and creating justification for the use of deadly force," the report reads. In some cases, "passengers were struck by agents' gunfire."
Judging from this, one would almost believe certain CBP agents were just looking for excuses to shoot someone. And the CBP agents' response has been to claim that new guidelines -- telling them not to stand in front of escaping vehicles and to move away from rock-throwing individuals -- will somehow make the job more
The response, marked "Law Enforcement Sensitive," states that a ban on shooting at rock throwers "could create a more dangerous environment" because many agents operate "in rural or desolate areas, often alone, where concealment, cover and egress is not an option."
If drug smugglers knew border agents were not allowed to shoot at their vehicles, it argues, more drivers would try to run over agents.
The authors of the report had this to say in response to the CBP's speculative assertion (spearheaded by CBP union reps, who have stated that they will "oppose any
restriction on CBP officers' use of force").
"It should be recognized that a half-ounce (200-grain) bullet is unlikely to stop a 4,000-pound moving vehicle, and if the driver … is disabled by a bullet, the vehicle will become a totally unguided threat," it says. "Obviously, shooting at a moving vehicle can pose a risk to bystanders including other agents."
So, while the new guidance lays out some common sense rules in hopes of decreasing the number of deadly shootings, some feel it still doesn't go far enough. The ACLU is recommending the use of body cameras to ensure each use of force is properly documented. Zoe Lofgren has called for more transparency from the agency itself, which has still refused to reveal how many officers (if any) received any sort of disciplinary action for inappropriate use of force.
The CBP obviously has transparency issues. Every effort was made to prevent this report from being made public, despite the CBP itself commissioning it. And, as we've covered earlier, the CBP has obscured the use of its drone "lending library" by failing to produce documents
and heavily redacting
those it did turn over in response to FOIA requests.
It's one thing for these agents to defend themselves against deadly force. It's quite another to put yourself in harm's way simply to justify the use of deadly force (the it's-coming-right-for-us
loophole). If the agency is truly seeking to rid itself of its trigger-happy reputation, it needs to enforce these guidelines and open up its use of force track record to public scrutiny.
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Posted on Techdirt - 10 March 2014 @ 12:20pm
The outrage over massive, pervasive surveillance has put the NSA in the spotlight, somewhere its officials are obviously uncomfortable being. The administration's minimal efforts to address domestic surveillance have also focused on the agency. But there's an agency doing just as much privacy-invading as the NSA and its efforts are now going largely unnoticed, as Emily Berman points out at Just Security.
Commissions, oversight boards, and review groups are all the rage these days. Recent weeks have seen hundreds of pages of reports evaluating American intelligence agencies, and there’s a promise of more to come. These reports have recommended dozens of modifications affecting all three branches of government. But there’s an integral part of the surveillance state that has thus far largely escaped the current scrutiny: the FBI. And while failure to “connect the dots” is an oft-cited flaw within the intelligence community, not insisting on examining more closely the FBI’s surveillance activities represents a similar flaw by those outside the intelligence community.
The FBI is now basking in the darkness the NSA used to occupy. The first leak
had the FBI's name all over it, and it's the power granted to the FBI
that allows the NSA to collect millions of domestic phone records. The NSA technically isn't allowed to vacuum up domestic records. The FBI, however, is. But the NSA "takes home" the bulk collection and "tips" a few hundred phone numbers to the agency whose name is listed on the first page.
As the NSA feels the heat and legislation makes the rounds (both at national
and state levels
) targeting the agency, the FBI continues to hum along nearly unnoticed.
The vast majority of the FBI’s intelligence collection, by contrast, arguably enjoys even less oversight while focusing largely on Americans, often Americans who aren’t even suspected of criminal activity or of posing a threat to the national security. Rather than statutes and judicial review, constraints on FBI intelligence collection are often limited to those provided by internal guidelines—sometimes secret ones—issued by the Attorney General and the FBI itself. Even FBI tools that are subject to some statutory restrictions—such as National Security Letters (NSLs), which allow the FBI to obtain telephone toll records, e-mail subscriber information, employment history, and financial records—operate free from judicial oversight.
That the FBI still operates under secret mandates should be worrying. Unlike the NSA, which is ostensibly tasked with surveilling foreign threats and national security, the FBI is primarily an investigative
law enforcement agency (although it seems to be more focused on fighting terrorism
these days), given free reign to surveil US citizens. This has resulted in the widespread, suspicionless surveillance of certain ethnic groups, sometimes in conjunction with local law enforcement.
The FBI may not be sweeping up quite as much data as the NSA but it is every bit as untargeted, intrusive and inefficient as the NSA itself. The supposed terrorists it targets (and I'm using the word very loosely here) with "demographic programs" and other efforts geared towards thwarting Islamic extremists are pretty much turning up nothing but dead ends. The agency's counter-terrorism efforts are better known for catching "terrorists"
tangled in "plots" of FBI agents' own devising
. The FBI creates the crimes and busts the "criminals." It's all too tidy and it ignores those who are actually targeting the US, as Berman notes.
Indeed, according to a 2011 Council on Foreign Relations report, FBI statistics indicate that “roughly two-thirds of terrorism in the United States was conducted by non-Islamic American extremists from 1980-2001; and from 2002-2005, [that percentage] went up to 95 percent.” More recently, the Department of Homeland Security reported that of the 12 successful terrorist attacks in the United States between 2008 and 2009, only three were linked to Islamic extremism.
What seemed to be just a diversionary talking point now appears to be the sad reality. The FBI, like the NSA, truly wants to "prevent the next 9/11," going so far as to ignore its own statistics in order to surveil Muslims 24/7. (The NYPD is at least as worrisome in its myopia
-- something no doubt made worse by its frequent dalliances with the FBI.)
But the larger point is still this: an agency granted the power of domestic surveillance is operating without oversight. The NSA's collections are mostly of the "incidental" variety (when you "collect it all," you get it all), but the FBI's data harvesting is no less expansive. Privacy protections are equally weak, with the FBI's possibly even weaker than the porous guidelines applied by the NSA.
The FBI's tools are also more pliant than even the infamous "rubber stamp" FISA court. The agency routinely abuses NSLs and has the power to open investigations (called "assessments") without even showing reasonable suspicion. Berman's excellent article affirms the assertions
made by the ACLU last September, when it reminded the American public there was more than one three-letter agency hoovering up its data. The FBI needs to be watched closely. Unfortunately, overseeing the NSA alone
seems to be beyond the reach of the oversight committees. Adding another agency to the oversight mix seems to be out of the question at this point. No legislator has suggested the FBI be subjected to the same scrutiny, but its turn in the national spotlight is long overdue.
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Posted on Techdirt - 10 March 2014 @ 11:13am
Anonymous commenters are often held up as examples of the worst aspects of the internet. It's an enabler of abhorrent behavior, as the lack of identification allows people to make statements without suffering consequences. Of course, this isn't the only "benefit" of anonymity, but it's the one that gets the most press, so to speak.
A new website has just been ordered to turn over information on an anonymous commenter who's currently the target of a defamation lawsuit.
A Philadelphia judge has ordered the owners of Philly.com - who also own The Inquirer and the Philadelphia Daily News - to disclose the identity of a person who posted a comment online.
The ruling came in a defamation suit filed by John J. Dougherty, the powerful head of Local 98 of the International Brotherhood of Electrical Workers.
In October 2012, Dougherty sued over a comment posted two months earlier on a Daily News blog that described a public feud involving Dougherty. The comment identified Dougherty by his well-known nickname, "Johnny Doc," and called him "the pedophile."
Dougherty sued the anonymous poster, and his lawyers subpoenaed Philadelphia Media Network, Philly.com's parent company, to supply the person's identity.
Philly.com apparently has more than just an IP address on hand. (Or just did a minimum amount of research -- more on that below.) The report notes that Philly.com contacted the anonymous poster to make sure "he or she got notice of the lawsuit and hired a lawyer." The anonymous poster (screen name: "fbpdplt") has, so far, maintained his/her anonymity during the legal proceedings and is being represented by Philip L. Blackman, who claims the specified comment isn't "defamation per se."
As you'll note, Philly.com made contact with the anonymous commenter, something the plaintiff should have done. A "good faith effort" by the party bringing the suit is supposedly required according to the Dendrite rules
, (which Pennsylvania courts have adopted
in modified form
) but as I detail below, it looks as if little to no effort was made by Dougherty or his legal team to track down the person behind the screen name "fbpdplt." Dougherty did at least specify which comment ("the pedophile") was actionable and presumably presented some evidence to the contrary, but it appears the court made no real attempt to balance the commenter's First Amendment rights versus the plaintiff's complaint before deciding unmasking was the only way to handle this.
Philip Blackman has pointed this out, claiming the court's actions threaten his client's free speech. Defamation isn't protected by the First Amendment, but whether the comment actually is defamatory still hasn't been decided. On the other side of the legal fence, Joe Pedraza, attorney for John Dougherty, feels this is a forgone conclusion.
In the Dougherty case, the union leader's lawyers contended that he had a defamation claim likely to succeed at trial but no way of communicating with or identifying the person being sued.
Right or wrong, Philly.com did at least put up a fight. It turned down Dougherty's subpoena, stating it would only reveal the commenter's information with a court order. The order itself is fairly expansive, not only asking for identifying info, but also for all comments posted by "fbpdplt" from August 2012 thru January 2014. (Apparently, only one comment is currently
being referred to as defamatory.)
But you have to wonder why any of this is necessary. Did anyone on Dougherty's legal team even bother searching around for the person behind the "nonsense" screen name
The screen name isn't just a nonsensical jumble of letters. The keys are too far apart to make it a simple "mash keyboard; get screen name" effort. Searching those characters brings up this profile over at conservative website The Blaze
As you can see, fbpdplt's profile uses a fireman's hat, something the screen name hints at. fbpdplt also left this comment reviewing the Philadelphia Fire Department, which seems to indicate he's an insider [the comment is only visible in the text-only archive]:
under a lot of strain
They have been doing more with less for years. Lip service from politicians and no support from IAFF or the so called union brotherhood…
The same screen name shows up at Sailnet.com
, a sailing community forum, which contains a profile listing fbpdplt's real name and address. Searching for that
name brings up this profile at Boat Talent
, which contains this useful bit of biographical information:
Former Phila Fireboat Pilot
This would appear to be the post
where fbpdplt called John Dougherty a "pedophile." (The date on it is August 10,2012, matching up with Philly.com's narrative -- contacted in October 2012 about a post from "two months earlier".) There are currently no comments on the post. But there was at one time. Searching "fbpdplt johnny doc
" brings up this post on the first page, meaning that at some point, the comment was there to be cataloged by Google. The Wayback Machine is no help
, suggesting Philly.com has had it removed from there as well. Adjacent posts
from the same month are archived
, meaning there's no sitewide block on the Internet Archive's crawler.
Using site specific searches for "fbpdplt" only brings up a short list of comments
on various Philly entities and services at Philly.com (and no hits at all at its other sites, Inquirer.com and phillydailynews.com), but no comments on news articles or blog posts. The only comments showing up in search results are hidden from readers, accessible only through archived, text-only versions.
So, it would appear that Philly.com scrubbed its site of fbpdplt's presence after being notified of his allegedly defamatory comment. Not exactly innocuous behavior. The question is why it would do this. It's not a named party in the lawsuit and Section 230 protects it from being held accountable for third-party content. It looks, sadly, like a panicked move to clean up its image in the wake of being served a subpoena.
Seeing an anonymous commenter go down for posting possibly defamatory comments usually prompts cheers from those who consider online anonymity to be only the tool of trolls and jackasses
. But an attack on anonymity also threatens those who have good reason to withhold their identity -- or just feel more comfortable not making their personal info available for every commenting system that comes knocking. It also pushes site owners to move towards requiring Facebook or Twitter connections for all commenters.
Beyond all that, this appears to be a very sloppy case. The plaintiff's legal team apparently made only a minimum of effort made to uncover the anonymous (but not really) commenter before deciding to pursue subpoenas and court orders. Philly.com's comment scrubbing efforts were not only unnecessary, but give the appearance of covering up evidence. John Dougherty has now been provided a name, but it's up to his legal rep to prove the comment was defamatory. Proving damages will be even tougher, unless Dougherty's team is willing to advance the notion that an anonymous online commenter is capable of influencing the opinion of a great many Philly.com readers, which seems unlikely to say the least.
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Posted on Techdirt - 10 March 2014 @ 9:16am
The NSA defenders who label Ed Snowden a "traitor" (senators, congressmen and any number of former intelligence officials) often assert the whistleblower had an opportunity to use "proper channels" rather than take the route he chose: leaking documents to journalists.
Snowden's written testimony to the European Parliament, which was covered here earlier by Glyn Moody, includes in-depth responses to those who still believe he could have handled this differently. When asked if there are "adequate procedures to signal wrongdoing" inside the agency, Snowden had this to say:
Unfortunately not. The culture within the US Intelligence Community is such that reporting serious concerns about the legality or propriety of programs is much more likely to result in your being flagged as a troublemaker than to result in substantive reform...
[As noted here earlier, Snowden's negative writeup
while with the CIA was a result of him bringing a security flaw in the agency's software to a supervisor's attention. He fixed the flaw and was rewarded with a critical note in his file written by the person he originally brought the problem to.]
In my personal experience, repeatedly raising concerns about legal and policy matters with my co-workers and superiors resulted in two kinds of responses. The first were well-meaning but hushed warnings not to "rock the boat," for fear of the sort of retaliation that befell former NSA whistleblowers like Wiebe, Binney, and Drake…
The second were similarly well-meaning but more pointed suggestions, typically from senior officials, that we should let the issue be someone else's problem. Even among the most senior individuals to whom I reported my concerns, no one at NSA could ever recall an instance where an official complaint had resulted in an unlawful program being ended, but there was a unanimous desire to avoid being associated with such a complaint in any form.
The world's foremost intelligence agency is nothing more than the world's most secretive cubicle farm
, staffed with supervisors more interested in coasting towards retirement at the helm of the placid USS CYA then actually addressing an employee's concerns.
And it's not as though Snowden didn't make an honest effort to utilize the proper channels.
I had reported these clearly problematic programs to more than ten distinct officials, none of whom took any action to address them. As an employee of a private company rather than a direct employee of the US government, I was not protected by US whistleblower laws, and I would not have been protected from retaliation and legal sanction for revealing classified information about lawbreaking in accordance with the recommended process.
The loophole in whistleblower protection is in the process of being closed by sympathetic court decisions
. Courts are granting contractors the same protection as US government employees. But this "protection" is ultimately hardly worth the paper the decision is printed on. Intelligence agencies are still excluded from this protection, and the protection itself is highly suspect. Ultimately, everything runs through the Obama administration -- the same administration that has prosecuted more whistleblowers
than all other administrations combined
. Snowden harbors no illusions that the US government will ever take him back on amicable terms.
There has not yet been any substantive whistleblower reform in the US, and unfortunately my government has taken a number of disproportionate and persecutory actions against me. US government officials have declared me guilty of crimes in advance of any trial, they've called for me to be executed or assassinated in private and openly in the press, they revoked my passport and left me stranded in a foreign transit zone for six weeks, and even used NATO to ground the presidential plane of Evo Morales - the leader of Bolivia - on hearing that I might attempt to seek and enjoy asylum in Latin America.
As they say, there's no "there" there. The proper channels Snowden supposedly should have used were either a) sealed off by insular officials who preferred career longevity to "rocking the boat," or b) would have resulted in prosecution thanks to a lack of whistleblower protection.
Let's not forget that one of Snowden's "proper channels"
publicly compared the whistleblower to spies who sold government secrets to foreign operatives, called him a "thief" and referred to the journalists who ended up with NSA documents as "agents" in control of their "handler." When not smearing the ex-NSA contractor, this "proper channel" said he would have met Snowden's concerns with talking points and meetings with intelligence subcommittees -- the same subcommittees that have done nothing but circle the wagons
around the agency since the leaks began.
Suggesting Snowden could have handled this through "proper channels" is to suggest that the NSA's overreach should never have come to light or, at best, that Snowden should be prosecuted for whistleblowing. "Proper channels" in the intelligence community are an illusion. Snowden found this out firsthand and these responses prompted his eventual document heist. The government really has no one to blame but itself for the situation it finds itself in.
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Posted on Techdirt - 10 March 2014 @ 8:14am
The law is an ass. This has been true since well before Charles Dickens cranked out Oliver Twist in order to fulfill his four-book contract with Penguin Classics. We also hear quite frequently how the law's ass-ish gears (sorry, some metaphors are going be forcibly combined here) grind slowly, eventually birthing justice itself or, far more frequently, suffering a miscarriage.
Sometimes, however, the law is like an ass operating a second-rate rollercoaster for a third-rate traveling carnival in a fourth-rate town. It lurches forward and backward like a carny with a .28 BAC (also known as "cruising altitude"), with one hand lazily manipulating the rusty throttle/brake on this metaphorical coaster, giving every rider the opportunity to lose their lunches while simultaneously suffering whiplash.
Here's how everything went down.
On March 5th, the Massachusetts state supreme court found that "upskirt" photography was perfectly legal according to state law. The law, as (was) written, offered no protection for clothed individuals in public places. Dressing rooms, bathrooms, etc. were off-limits, clothed or not, but nothing in the law specifically protected the (clothed) public from people like Michael Robertson, who was caught by police holding his phone at waist-level to capture upskirt photos of fellow subway passengers.
Needless to say, outrage ensued. Instant outrage that ensnared several lawmakers, all of whom immediately rewrote the statute governing "secret photography" in order to prevent the state's pervert contingent from instantly turning every subway car into an (ultimately disappointing) sausage/camera fest.
When I say "immediately," I actually mean it. The rewrite was voted and passed March 6th and signed into law by the governor on the morning of March 7th. Within 48 hours, "upskirting" had gone from "presumably illegal" to "legal" to "very certainly illegal."
As is the case with any law based on instant reaction (you know, rather than a deliberative legislative process), it's problematic in its expansive terminology, as Jay Wolman of The Legal Satyricon points out.
Let me spell it out for you–Massachusetts just made many previously lawful and proper hidden security cameras potentially unlawful.
Here's what's being inserted
According to the new law, it is now unlawful to secretly record images of fully clothed breasts, buttocks and genitals. Full stop. Your nanny thinks she’s alone, but you have a nanny-cam. Sorry, you probably just broke the law. You want to know which of the neighborhood kids have been going into your backyard when you aren’t home and stomping your daisies? That’s double the punishment.
into the state's law governing "Photographing, videotaping or electronically surveilling partially nude or nude person(s)
Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a person under or around the person’s clothing to view or attempt to view the person’s sexual or other intimate parts when a reasonable person would believe that the person’s sexual or other intimate parts would not be visible to the public and without the person’s knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 2½ years or by a fine of not more than $5,000, or by both fine and imprisonment.
Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a child under the age of 18 under or around the child’s clothing to view or attempt to view the child’s sexual or other intimate parts when a reasonable person would believe that the person’s sexual or other intimate parts would not be visible to the public shall be punished by imprisonment in the house of correction for not more than 2½ years, by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $10,000, or by both such fine and imprisonment.
That's a lot of area being covered and none of it very specifically. It relies on a "reasonable person's" view of the intent of the photographer. When that "reasonable person" is a prosecutor, the obvious unintended collateral damage becomes apparent.
The law practically invites bystanders to point and scream like pod people
whenever someone operates a cellphone or camera from lower than eye level. And while it attempts to address the previous law's shortcomings, it seems to leave decolletage enthusiasts free to do their thing (like shooting photos from above
passersby, rather than under
But it also turns anything merely questionable (photography-wise) into something potentially actionable. Any "secret" (read: "surveillance") photography could easily become an issue simply because the person being photographed is unaware of the camera's existence.
To expand on Wolman's example: you catch your nanny stealing using your home's camera system, but he or she spins it as "secret photography" and points out the frames that seem to catch him or her in positions that are "revealing." Good luck proving that you didn't set up the camera solely
in hopes of catching a nude or nearly-nude nanny at some point in time. For that matter, good luck proving that the above wasn't merely one
of the reasons you set up the camera.
And if your nanny is under the age of 18 (or substitute "babysitter" for "nanny"), you're in even more trouble. The prosecutor's not going to hit this law and stop. You'll also be looking at potential child pornography charges.
The state has to prove intent to make charges stick, but all that truly
means is that it has to drop these accusations in front of a grand jury
(the misdemeanor becomes a felony if the captured images are "distributed"
) and you're as good as convicted. An indictment looks a lot like a criminal sentence
, especially if legislators are breathing (heavily) down prosecutors' necks, urging them to pursue maximum sentences and bail.
So, once again, we see legislative whiplash turning a questionable law into a terrible law
. This isn't ever
going to change. The only hope is that, once time and distance take their toll, the law will be revisited and repaired. In the meantime, citizens of Massachusetts will need to keep their cameras up high, completely visible and miles away from children, women in skirts, and anyone else whose clothing might reveal something if approached from lower/oblique angles.
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Posted on Techdirt - 10 March 2014 @ 5:05am
As we recently covered, the DOJ asked the FISA court to extend the disposal deadline of phone metadata from the usual five years to an indefinite period of time, supposedly in order to preserve evidence it might need to present in lawsuits filed against the government. (Not that the DOJ has any intention of ever turning this information over, no longer how long the NSA holds onto it…) Somewhat surprisingly, (outgoing) FISC judge Reggie Walton has turned the DOJ's request down.
The DOJ contended it had a "duty" to preserve evidence -- a duty that supposedly superseded the destruction requirements of the metadata collection. Judge Walton calls the DOJ out for this claim ("the Court rejects this premise"), but more damningly, calls bullshit on the DOJ's citations.
The government cites three cases in support of its position: Inc. v. So, 271.R.D. 13 (S.D.N.Y. 2010), Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284 (S.D.N.Y. 2009), and Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004). Although the destruction of electronic records was an issue in all three cases, R.F.M.A.S. at 40; at 287-88; Zubulake at 434, none of these cases involved a conflict between a litigant's duty to preserve electronic records and a statute or regulation that required their destruction. They merely demonstrate that, when triggered, a civil litigant's duty to preserve relevant evidence includes electronic records and that duty trumps a corporate document destruction policy. The Court has not found any case law supporting the government's broad assertion that its duty to preserve supersedes statutory or regulatory requirements.
So, that's the DOJ's "legal basis" for the indefinite retention of bulk metadata: preservation of evidence statutes governing private entities
. It somehow hoped to treat the FISA court as nothing more than a regulatory speed bump rather than the fine line between national security and outright civil liberty abuse. The FISA court points out that what it's asking for is much more significant than it seems to realize. As Walton reminded the NSA in one of his earlier court orders, without the minimization procedures in place, the Section 215 collection would be unconstitutional
In other words, nearly all of the call detail records collected pertain to communications of non-U.S. persons who are not the subject of an FBI investigation to obtain foreign intelligence information, are communications of US. persons who are not the subject of an FBI investigation to protect against international terrorism or clandestine intelligence activities, and are data that otherwise could not be legally captured in bulk by the government.
These are the same call records the DOJ wants to hold indefinitely, and its only justifications aren't even relevant to the data in question, as Judge Walton points out:
In sharp contrast with the document retention policies of corporations, the restrictions on retention of United States person information embodied in FISA minimization procedures are the means by which Congress has chosen to protect the privacy interests of United States persons when they are impacted by certain forms of intelligence gathering.
Walton points out the danger of granting the DOJ this extension, saying doing so would "significantly increase" the chance of the retained metadata being improperly used or disseminated. There is little doubt the NSA would have enjoyed an indefinite extension on the destruction data, given the "collect it all
" proclivities of its various directors. But the DOJ's argument is ultimately empty.
The argument is also highly suspect. As noted in our earlier story, the DOJ made no similar effort to retain data pertaining to a 2008 lawsuit with the EFF -- data which would have been disposed of in 2013. This data likely wouldn't have helped the DOJ, or at the very least, would have resulted in a long legal battle to keep it hidden.
With that in mind (and being naturally cynical), it's tempting to view the DOJ's weak effort to hold onto the data as a deliberate ploy to help it keep this metadata from ever appearing in court. Having this granted would have been a small win for the NSA, which could then hold onto data presumably forever. But old data isn't nearly as useful as fresh data, as the NSA knows. The bigger win would be the disposal of data related to lawsuits. The FISA court shooting down this request means that, if the NSA/DOJ buy enough time, the metadata will never
appear in court.
The government seems to be dealing itself a lot of winning hands in the ongoing NSA debacle, leaving the surveilled public damned with both do's and don'ts.
[Also worth a read is Marcy Wheeler's coverage of this decision over at Emptywheel
, where she points out that this is possibly the first time the FISA court has actually attempted to establish a limit on what the government finds "relevant
" to its War on Terror.]
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Posted on Techdirt - 7 March 2014 @ 12:25pm
This "discussion" about the whole "security vs. privacy" thing the administration claims it has "welcomed" since the Snowden leaks began? Yeah. Still not happening. As Cal Borchers at BetaBoston reports, government reps at an MIT event focused on "big data and privacy" couldn't have appeared less interested in discussing any of the implications of widespread domestic surveillance.
The kicker came during an afternoon panel discussion, when John DeLong, the National Security Agency's director of compliance, should have been awarded an honorary degree in tongue biting. DeLong sat right next to Carol Rose, executive director of the American Civil Liberties Union of Massachusetts, yet refused to engage when she made pointed comments, like this one: "Everything's being done in secret. But for Edward Snowden, we wouldn't even be having this conversation."
DeLong would look down and away (perhaps there was an interesting piece of metatada on the floor of Wong Auditorium), waiting silently for another panelist to move the discussion away from his agency.
This is nothing new for DeLong. Back in August of last year, he gave the Washington Post permission to quote him "by name and title" after holding a 90-minute interview with the paper, after the White House routed all press queries to him directly. When the paper refused to edit quotes after the government's "internal review" of the interview draft, the administration and the NSA then informed the Washington Post that nothing DeLong said
could be used. All of his input was replaced with a bland, prepared statement.
Now, DeLong could
have been interested in participating in this discussion, but this previous administration intervention seems to indicate that the NSA and the White House would prefer DeLong keeps his head down and his mouth shut -- at least in cases where it can't push through its own edit of the "discussion."
DeLong wasn't the only government rep uninterested in discussing government surveillance.
Before DeLong's group took the floor, US Commerce Secretary Penny Pritzker made a brief speech in which she barely touched on the subject of privacy, then exited quickly without fielding questions.
Someone seated near me, in one of those fake whispers that's really meant to be heard by a lot of people, summed things up nicely: "No questions? Why have a real discussion, right?"
Snickers rippled a few rows in every direction.
As Borchers points out, there was plenty of discussion about private companies and privacy, but when it came to the biggest "company" of all, the US government, no one had much to say. White House counselor John Podesta somehow even managed to "phone in" his phoned-in statement (Borchers describes Podesta's contribution as "bland remarks") to open the event.
This is the US government's idea of "discussion." Canned statements and floor-gazing. The NSA made this bed and now refuses to lie in it. (Although officials will often lie outside of it
-- ho, ho! *coughJamesClapper*) The administration plays along, making small gestures but refusing to consider making any substantial statements or changes. The Office of the Director of National Intelligence continues to pass out redacted documents with implied transparency, glossing over the fact that every
document release so far has been compelled by an FOIA lawsuit
This isn't a discussion. This is low murmurs and unintelligible mumbling being passed off as a "discussion" in hopes this new era of faux-openness will soon blow over and allow everyone involved to return to the opacity and darkness they've become accustomed to operating in.
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Posted on Techdirt - 6 March 2014 @ 8:02pm
We've written a lot about the state of Illinois' infamous Eavesdropping Act, a law that has been routinely abused by Illinois law enforcement officers to prevent citizens from recording them while they work. After a long legal battle that nearly made its way to the Supreme Court, the courts found that the use of the law to prosecute citizens who record police officers was unconstitutional and the latest court to hear the state's arguments suggested the law be repealed altogether.
The law is still on the books at the moment (although LEOs can no longer use it against camera-wielding citizens), which may come in handy for the plaintiffs of a class action suit against an Illinois gas company. (h/t to Above the Law)
The lawsuit claims the gas company charged customers unnecessary fees to cover gas line leaks and repairs. According to an investigation that preceded the lawsuit, Nicor Gas collected nearly $26 million in 2009 while paying out only $600,000 in benefits. In a class action lawsuit filed in 2011, the plaintiffs allege that Nicor also charged several customers $19.95/mo. for appliance coverage (while labeling it only as "Nicor Service Charge" on the bill).
So, why is this lawsuit rising to the surface in 2014? Well, it's because Nicor Gas apparently plans to violate the Illinois Eavesdropping Act in order to defend itself against these claims.
The utility recorded millions of phone calls over the course of a decade and plans to “divulge them outside of Nicor and to use them in court as they litigate the consumer class action,” according to a statement about the case...
“The Illinois Eavesdropping Act flatly prohibits corporations who collect or make such recordings from divulging any part of them to any third party and prohibits such recordings be used in court proceedings,” said [Adam] Levitt (plaintiffs' attorney).
“Nicor Gas claims that all customers recorded heard a ‘warning’ before being recorded, and ‘consented’ by remaining on the line after the warning was given. But under the law, any consent only gave Nicor Gas a right to record, not to divulge or use the recordings. Any ‘consent’ they got from customers that permitted them to record was for the limited purpose of internal quality assurance – not for divulgence to outside parties, and certainly not for use in public court proceedings,” according to Levitt.
Even if this use of the Eavesdropping Act may be somewhat questionable given the circumstances (the most probable defense against the claims is that customers agreed to these charges during phone conversations with Nicor Gas), it's hard to see how the power company will route around the specifics of the law.
From the law itself
No communication or conversation or any part, portion, or aspect of the communication or conversation made, acquired, or obtained, directly or indirectly, under this exemption (j), may be, directly or indirectly, furnished to any law enforcement officer, agency, or official for any purpose or used in any inquiry or investigation, or used, directly or indirectly, in any administrative, judicial, or other proceeding, or divulged to any third party.
Exemption (j) covers recorded business-to-consumer "oral telephone solicitation and marketing" recordings. Incoming calls ("What the hell is THIS charge?") are also covered by this exemption.
For the purposes of this subsection (j), "telephone solicitation" means a communication through the use of a telephone by live operators:
(i) soliciting the sale of goods or services;
(ii) receiving orders for the sale of goods or services;
(iii) assisting in the use of goods or services; or
(iv) engaging in the solicitation, administration, or collection of bank or retail credit accounts.
Even if it does somehow find a way to present its recordings as evidence, the calls themselves may be incriminating
Critics accuse Nicor of using scare tactics to sell ComfortGuard.
According to a ComfortGuard marketing script, Nicor call-center reps are instructed to tell customers "the utility is only legally responsible to make the situation safe or make repairs to its own facilities. What that means is that the property owner (such as yourself) may have to find and hire an independent contractor to come in, do an inspection and then make those repairs. That can be expensive, and it could also mean days without any gas to heat the home, cook and so on."
In fact, ICC [Illinois Commerce Commission] staff argue, Nicor is legally required to inspect leak complaints inside customers' homes and make repairs, at charges typically ranging from $50 to $100.
We'll have to see where Nicor goes with this, but the allegations are pretty damning, and it's hard to see how its own sales tactics and vague line item descriptions are going to help its case. Even if it is interesting to see this law being used as a defense mechanism rather than a weapon against citizens, it only helps to highlight how badly written the Illinois Eavesdropping Act is. If nothing else, it presents yet another reason for legislators to seriously consider scrapping the law and starting over.
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Posted on Techdirt - 5 March 2014 @ 1:17pm
The Supreme Court has just given the government (and the NSA's defenders) a little more breathing room on the issue of the legality of the agency's surveillance programs.
In a case very similar to a lawsuit brought by the American Civil Liberties Union (ACLU) against warrantless surveillance made “legal” by the FISA Amendments Act (FAA) of 2008, which the Supreme Court declined to grant “standing” in February 2013, the Center for Constitutional Rights (CCR) announced the Court had rejected their lawsuit against Bush-era warrantless surveillance.
“The Supreme Court’s refusal to review this case guarantees that the federal courts will never address a fundamental question: Was the warrantless surveillance program the NSA carried out on President Bush’s orders legal? The Court’s decision also guarantees that the Obama administration, which has for the last five years refused to take any position on that question, will now never have to answer either,” CCR declared.
This refusal will give those who claim the programs are "legal"
another notch on the rhetoric belt, as if not
discussing the legality (or illegality) of the program was the equivalent to being found legal by the highest court in the land. If the courts are unwilling to entertain surveillance-related cases, either by refusal to grant standing or refusal to hear the case at all, the defenders can continue to claim the programs are legal.
CCR has what would seem to be a pretty solid legal stake in challenging the legality of these programs, especially considering the recent revelations that the NSA signed off
on the collection of privileged attorney-client communications. CCR is representing "hundreds" of Guantanamo Bay detainees, charged as "enemy combatants" and held indefinitely, each of which could be "legally" surveilled as they hold supposedly privileged conversations with their legal representation.
Lawyers have refused to take terrorism cases because they refuse to have their privacy violated by the government, and attorney have also warned their own clients that they should “self-censor” and assume they are being spied upon by the government when they communicate anything.
This is not some “speculative” issue. On February 20, the American Bar Association, which has around 400,000 members, expressed concerns about recent allegations that the “confidential communications” of American lawyers with “overseas clients” had been violated.
As the article points out, this isn't speculative. In addition to the above-mentioned leak
, other evidence has been uncovered that points to the government listening in on privileged conversations. Nicolas Niarchos of The Nation
reviewed classified documents related to terrorist suspect Adis Medunjanin. Medunjanin made 42 phone calls to his legal rep from mid-2009 to 2010. In the classified documents, Niarchos found a CD of these 42 phone calls.
Even if the NSA has no clear directive warning it away from attorney-client communications, it certainly should still be required to conform with the protections of the Constitution. Collecting evidence by listening in on conversations presumed to be privileged further subverts due process by giving the government access to info it normally (via any other agency) wouldn't have access to. You know, I don't want the terrorists to "win" either, but I'd rather not sacrifice my rights on the altar of "security" to achieve that goal.
The Supreme Court's disinterest in this case will only further insulate the government against the consequences of its own behavior.
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Posted on Techdirt - 5 March 2014 @ 11:19am
Another former NSA official has offered his contribution to the "Snowden has destroyed the NSA" narrative. Jack Israel, former "technical director for NSA's analysis & production directorate" has posted an op-ed at the Baltimore Sun that makes all the usual stops on the talking point circuit on its way to claiming the leaks have done "permanent damage" to the NSA.
Sept. 11th? Referenced heavily. The bulk of Israel's op-ed recounts the agency's actions after the Sept. 11th attacks, including its newfound interest in the internet. Rather than acknowledging the failure to collaborate that allowed a known terrorist (and 9/11 participant) to reenter the country unnoticed, Israel blames this on another, older leak.
Our sensors were trained on some of al-Qaida's lieutenants, but there were no signs of an impending attack. Years ago, we listened to the communications of Osama bin Laden, but they went off the air when this source was leaked to the press…
So, according to Israel, the NSA decided to take a look at this new thing called the internet.
Much of the conversation the morning after focused on phone calls, a technology that NSA was long familiar with. But about 15 minutes in, someone opined, what about the Internet? This was a relatively new technology, one that some in NSA feared would cause the agency to "go blind" because of the dazzling volumes of information and endless variety of new and emerging communications modes such as chat, email, and even telephone calls over the Internet…
"How do we know they're even using it?" the head of the data collection directorate asked. Several years ago we had sampled communications channels looking for al-Qaida and had not found a trace.
"They are," a senior analyst responded. "They're saying so in their phone calls."
And the internet proved to be a huge source of data. Israel claims that "within six months," the agency had compiled a huge terrorist database, thanks to these collections. But his recollection of this game-changing event glosses over the NSA's apparent failure to surveil the internet. The NSA was already listening to terrorists' calls. This much is apparent. But the terrorists were saying something and the NSA just wasn't hearing it. Let's repeat that last line.
"They are," a senior analyst responded. "They're saying so in their phone calls."
So, if we're to believe Israel's take, then the NSA KNEW Al-Qaeda was "using the internet" but, until after
the 9/11 attacks, didn't do anything about it
. Several years earlier it had "sampled communications," but despite directly hearing from Al-Qaeda operatives about their internet activities, decided not to pursue that "dead end" again. I guess if we buy that story, then we can see his point about Snowden setting back the agency "ten years." The agency apparently reacts with all the nimbleness of an oil tanker. It knew
but did nothing, until it was too late.
But this isn't the nadir of Israel's op-ed. This interjection, hidden in parentheses towards the end of his piece, is. It's not just stupid. It's also poorly written.
To President Vladimir Putin: Give us Snowden. You already know everything from him.
It was made clear months ago that Snowden had completely offloaded
his stash of documents before setting foot in Russia. Even if you find that hard to believe, the assumptions that Russian intelligence agencies have somehow either a.) cracked device security to gain access or b.) cracked Snowden himself to gain access are equally unbelievable. If "a" is true, then one needs to question the NSA's inability to discover what documents have been "taken." The "b" assumption relies heavily on other conspiracy theories, like Snowden working in conjunction with Russia or him being worked over to give up what he knows. Israel's wording seems to suggest the latter, despite there being no indication that Putin wants Snowden around for anything more than annoying the US government. (This could change, of course, given the events in the Ukraine, and the US government's stance against Russian intervention...)
"You already know everything from him" is a ridiculous assertion made even worse by Israel's choice to put these exact words in that exact order. This clumsy stab at labeling Snowden a traitor follows a sentence equally abhorrent in its misrepresentation of actual events.
He and his supplicants at major press outlets here and abroad publish his revelations as if the national security of this country and the U.K. matter little.
I won't argue the fact that Snowden's leaks have damaged these agencies' surveillance abilities. "Setting them back a decade" is a bit much. But the focal point of the leaks has mostly been the two agencies' insistence on spying on their own countries. They may kick the surveillance ball back and forth to prevent directly
spying on their fellow citizens, but the culture of sharing the GCHQ and the NSA have developed
over the years makes this small distinction irrelevant.
The NSA's defenders are running out of steam. They can't seem to find any real justification for these pervasive surveillance programs and have resorted to hurling mealy-mouthed insults at Snowden and various journalistic entities from the relative safety of op-ed pages and anonymous statements.
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Posted on Techdirt - 4 March 2014 @ 3:08pm
How many lawsuits can a person pursue before the legal system decides to cut them off? In Australia, 50 lawsuits gets you eighty-sixed, as one Sydney man found out. (well, I'd say the "hard way," but he genuinely seemed to enjoy availing himself of this particular service.)
[A]fter 50 cases in just 10 years, a science teacher has been banned from taking anyone else to court after Justice Michael Adams ruled he was a vexatious litigant who has used the judicial system to "harass, annoy or achieve another wrongful purpose".
Mr Rahman, a Bangladeshi immigrant, is the 12th person to be put on the State's vexatious litigant register, meaning he cannot start legal proceedings without first seeking the courts' consent.
Rahman isn't completely forbidden from filing lawsuits. He just has to get permission first, something that will likely be very difficult considering his misuse of the court system over the last decade, misuse that includes filing lawsuits to re-litigate already determined decisions. He also sued his own legal team, resulting in him paying them even more than he previously owed.
You'd think Rahman would quit while he's behind (he's in danger of losing his two homes and has spent over a half-million dollars fighting his legal battles), but he's not giving up yet.
A defiant Mr Rahman said: "This is a crime against humanity, I will take them to the International Criminal Court if I have to."
Techdirt reader Jess sent this story in with a note inquiring about Techdirt's take on this -- whether it was a good/bad idea or simply amusing. Here's mine.
My first thought was about patent trolls
, some of the most "vexatious" of litigants. However, patent trolls really don't want to end up in court. Most are only in court (and only
in East Texas) because their settlement letters failed to result in free money. While some trolls would hit this 50-lawsuit limit quickly, a vast majority wouldn't.
, on the other hand, are more and more frequently being viewed as "vexatious"
by judges handling their mass lawsuits. Again, these trolls only end up in court when the settlement letters fail. Also, they've mostly been allowed to "bundle" their defendants, which makes it even harder for these litigants to hit the 50-suit cutoff. If they were forced to file separately for each Doe, these lawsuits would likely vanish. There's simply not enough of a payoff suing one-to-one.
But, despite all of the above, I can't really see a hard limit on lawsuits being an effective deterrent. Here in the US, this sort of thing would run afoul of protected civil liberties. The system itself can usually work this sort of thing out. Vexatious litigants tend not to stay unknown for very long.
The underlying problem is those stuck at the other end of vexatious lawsuits. Even the most meritless lawsuit costs real money to defend against. Completely uninvolved taxpayers also foot the bill for vexatious legal activity. So, it can be a real problem, but one that an arbitrary cutoff is unlikely to fix without doing corresponding damage to non-vexatious litigants who find themselves tangled in the legal system more frequently than they'd prefer.
And as for the patent/copyright trolls, chances are they'd just create more shell companies to route around any filing limits (although this scheme
may be on its way to extinction), which makes this even more likely to just end up hurting non-trolls and non-vexatious litigants. There's no easy fix but the solution probably lies somewhere between the self-regulation performed by judges (who will have a grasp on which litigants are "vexatious") and legislation targeting the activities of professional "vexations litigants." The common man who sues too much falls between these cracks, but it's better to bear the occasional burden than to risk locking those with legitimate lawsuits out of the process.
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Posted on Techdirt - 4 March 2014 @ 11:49am
Nielsen, perhaps alarmed at its own growing irrelevance in an era of cord-cutting, streaming and DVRs, has decided to dip a toe into the "bogus DMCA notice" waters. This move won't make it any more relevant, but it should harvest it another set of detractors.
In a DMCA notice sent Feb. 26th, Nielsen attempts to claim ownership of publicly-available facts.
DMCA Notice of Copyright Infringement
Re: NASCARnomics (@nascarnomics)
Dear Twitter, Inc.:
I, [redacted] Associate General Counsel of The Nielsen Company (US), LLC, certify under penalty of perjury, that I am an agent authorized to act on behalf of the owner of certain intellectual property rights.
I have a good faith belief that the examples of the items or materials listed below. and all of the other multiple postings tweeted, are not authorized by law for use by the above named domain name owner or their agents and, therefore, infringes the copyright owner's rights. Furthermore, the domain name owner has been posting this type of copyrighted Nielsen information on a continual and repeated basis. These are not just sporadic instances and have occurred on numerous occasions on a regular and continued basis and of which behavior you have been previously notified. Therefore, I request that you immediately notify the infringer of this notice and inform them of their duty to remove the infringing material immediately, and notify them to cease any further posting of infringing material to your server in the future.
Following after this are several screenshots of Tweets by @nascarnomics, which appear to be charts generated using publicly-available Nielsen ratings of NASCAR races. These charts are made by Andrew Maness, who runs the NASCARnomics blog, which "provides relevant insights on the business, economics and statistics of NASCAR."
Nielsen, for whatever reason, believes it "owns" these facts simply because it generates the numbers using its viewer tracking system. But literally anyone can use Nielsen's published ratings. There's nothing proprietary about the number "3.6" (where each full number represents 1.6 million viewers). Nielsen devices may have generated the number but the rating itself is, once published by the entity that "owns" it, a publicly-available fact.
Nielsen may also want to take a long, hard look at the Feist v. Rural case
, which centered on the "copyrightability" of a collection of facts, i.e. a phone book. The Supreme Court ruled that the facts (phone numbers) were not protected by copyright, even if the collection as a whole (phone book) was. In Nielsen's case, its original reports on demographics, viewing habits, etc. are
protected by copyright, but the individual ratings, even as generated by Nielsen's own devices, are not. Maness/NASCARnomics significantly alters the raw data of Nielsen ratings by focusing specifically on a very small part of Nielsen's output -- NASCAR racing. Furthermore, he creates his charts using his own collection of Nielsen data, further separating the facts (ratings) from Nielsen's claimed copyright. (The legal team may also want to take a look at the more recent takedown attempt by the American Banking Association targeting a website's publication
of supposedly copyright-protected bank routing numbers -- a failure of pretty much the same magnitude.)
At no point does the DMCA notice accuse Maness of accessing proprietary information (such as numbers Nielsen hasn't
disclosed). Instead, it simply claims that because Maness uses Nielsen ratings to compose his graphs, he is infringing on Nielsen's copyright. Ridiculous.
Sadly, the abuse worked. The tweets mentioned directly in Nielsen's DMCA notice have had the pictures "withheld."
On the bright side, the @nascarnomics Twitter feed routinely reposts content, so there are plenty more posts
containing the DMCA'ed pictures. And Maness' blog is still intact, so those graphs (as well as Maness' analysis) can be found there as well
. This takedown is even more ridiculous considering pretty much any internet entity covering anything TV-related
routinely uses Nielsen's publicly available ratings
and all without getting hassled by Nielsen's corporate attorneys. Maness could have mined this data from literally hundreds of places and yet it was these tweets that drew Nielsen's interest.
Unless Nielsen's lawyer is withholding information (the notice mentions that Nielsen has flagged this account previously) that the person behind NASCARnomics has access to actual
proprietary or private information, there's nothing legitimate about this takedown notice.
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Posted on Techdirt Wireless - 4 March 2014 @ 8:27am
As we've noted before, several law enforcement agencies, including the FBI, have been deploying "stingray" devices (devices that mimic cell towers) for years, using them to collect data on thousands of cell phone owners. Almost every single "stingray" device has been put into use without informing the public. That opacity is standard operating procedure for everyone, from local law enforcement all the way up through the DOJ.
This opacity is to be expected. The public is rarely notified in advance of deployment. It's only after the use is discovered that an effort is made (and usually a weak one at that) to address the public's concerns. Officials tend to claim the "danger" presented by being transparent far outweighs whatever collateral damage to privacy or civil liberties the public suffers.
That these devices are routinely used without a warrant is also, sadly, unsurprising. As far as the law has been interpreted, US citizens have very little expectation of privacy in the so-called "business records" generated by their cell phones' connection to each and every cell tower. This is why "cell tower dumps" have become a go-to tool for warrantless data hauls.
So far, so routine. But as Kim Zetter at Wired reports, there's yet another reason law enforcement agencies aren't seeking warrants before deploying stingray devices.
Police in Florida have offered a startling excuse for having used a controversial “stingray” cell phone tracking gadget 200 times without ever telling a judge: the device’s manufacturer made them sign a non-disclosure agreement that they say prevented them from telling the courts.
The shocking revelation, uncovered by the American Civil Liberties Union, came during an appeal over a 2008 sexual battery case in Tallahassee in which the suspect also stole the victim’s cell phone. Using the stingray — which simulates a cell phone tower in order to trick nearby mobile devices into connecting to it and revealing their location — police were able to track him to an apartment.
During proceedings in the case, authorities revealed that they had used the equipment at least 200 additional times since 2010 without disclosing this to courts and obtaining a warrant.
This is a new dodge. Law enforcement has usually avoided obtaining warrants by using the third party doctrine and, in most states, this has been deemed perfectly legal. However, it seems unlikely that judges will be sympathetic to claims that a private contractor's NDA supersedes stipulations meant to keep law enforcement in adherence with the Fourth Amendment.
This surprising admission by the Tallahassee Police Dept. is part of a sealed court record. This was inadvertently exposed during the appeal. Courtroom video shows
just how irritated two of the presiding judges were at the PD's violation of warranty requirements.
When the government attorney tried to argue in court that the police had planned to obtain a warrant to enter the apartment, one of the judges interrupted.
“No, no, no, no, no,” he said. “I think this record makes it very clear they were not going to get a search warrant because they had never gotten a search warrant for this technology.”
His fellow judge then interjected loudly, “Two-hundred times they have not.”
This appears at about the 18:00 mark on the video of the oral arguments. The government attorney's explanation (beginning around 16 minutes in) is also informative and entertaining as she dances around the illegality of the entire situation, which also included a warrantless search of an apartment. Apparently, the government's argument is that it intended
to get a warrant for the apartment search, which is supposedly as legitimate as actually obtaining one. (The questions about consent for the search are far from settled, something a Tallahassee police officer made even cloudier by blocking the door from being shut with his foot.)
So, two hundred times the Tallahassee police department deployed a stingray device and never bothered getting a warrant (and that's just since 2010). When finally pressed on the issue, it deferred to the manufacturer's NDA. The manufacturer (Harris) has itself deferred any questions to the police department.
Unfortunately, this case will not
be dealing with the warranty requirements for stingray devices, nor the PD's insistence that a manufacturer's NDA should allow it to skirt any potential privacy issues and withhold information in court cases.
This should put the spotlight on manufacturers of "stingray" devices. If they're using NDAs to keep the public uninformed and prevent the discussion of usage even in court, that's a huge problem. If these agreements are common across manufacturers, then there can be no doubt that law enforcement agencies across the nation have falsified reports and generated alternate narratives to cover up the origins of obtained evidence.
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Posted on Techdirt - 3 March 2014 @ 12:19pm
Public Knowledge is back at it, carving holes in dubious software patent claims by distilling supposedly "complex" ideas into a minimal amount of code. Late last year, Public Knowledge filed an amicus brief in a lawsuit involving Ultramercial, whose disputed patent basically involved appending "on the internet" to a very basic idea.
In that case, "watching a video on the internet" had been turned into a 349-word, 11-step process that convinced the patent reviewer the process was somehow protectable. Charles Duan of Public Knowledge took that word salad and converted it into 16 lines of code, poking rather large holes in Ultramercial's inflated description.
Duan has done it again. In an amicus brief filed on behalf of CLS Bank, Public Knowledge explains that Alice Corp.'s patent claims cover a very general and obvious abstract idea: the exchange of funds via a third party.
Alice Corporation Pty. Ltd. v. CLS Bank International concerns a group of patents on third-party escrow, an age-old technique where two people exchange money through a third party. It’s what most people use to buy a house. It’s PayPal.
Obviously, no one can get a patent on escrow. Abstract ideas (like escrow) can’t be patented. Why not? Because ideas are the starting point for every new business, technology, and product. Patents on ideas would squash innovation. As the Supreme Court explained in another recent case, ideas are the “basic tools of scientific and technological work,” and a patent on an idea “might tend to impede innovation more than it would tend to promote it.”
So, how did Alice Corp. get this patent? By adding a few words to the idea: "done by a computer." Of course, to get protection for an abstract (and simple) idea, you have to use considerably more words than that. Here's the description, which makes it sound much more impressive than it actually is.
a computer, coupled to said data storage unit and said communications controller, that is configured to…
(b) electronically adjust said first account and said third account in order to effect an exchange obligation arising from said transaction between said first party and said second party after ensuring that said first party and/or said second party have adequate value in said first account and/or said third account, respectively.
Here's Charles Duan's reduction of that process, in BASIC no less:
10 LET account1 = 200.00
20 LET account3 = 300.00
30 INPUT “Value to exchange for transaction”; exchange
40 IF account1 < exchange THEN PRINT “Inadequate value”: STOP
50 account1 = account1 – exchange
60 account3 = account3 + exchange
70 PRINT “Instruction to 1st institution: adjust 2nd account by ”; -exchange
Now, extremely efficient code isn't always the sign of a simple process, but patenting an age-old abstract idea like escrow is, first of all, something that (theoretically) isn't allowed by our patent process. Adding "with a computer" doesn't suddenly turn a non-patentable idea into protectable IP… or at least it shouldn't. But as Ultramercial proved, abstract ideas can and do become prime patent troll properties. As Anna Sallstrom of Public Knowledge notes, granting dressed-up ideas patent protection is nothing more than "trading progress for abstract patents." Hopefully, the Supreme Court will see Alice Corp.'s claims for what they are: escrow + a computer.
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Posted on Techdirt - 3 March 2014 @ 9:58am
The ACLU of California has put together a thorough report on metadata, the information harvested daily by the NSA, as well as by several private contractors working in conjunction with law enforcement and investigative agencies.
Those involved in this harvesting often downplay the true impact of this information, which is often accessed without a warrant, claiming that what's gathered amounts to nothing more than tiny, abstract data points. This couldn't be farther from the truth, but pushing this narrative allows the Third Party Doctrine (information voluntarily given to third parties carries no expectation of privacy) to be invoked and the Fourth Amendment (protection against unreasonable searches) to be buried.
The report goes into great detail on just how much metadata can reveal about a person, something these agencies know but are in no hurry to admit to the public. The entire report is an eye-opening read -- the sort of thing that should be put in the hands (or eyes, I suppose) of anyone out there who's still buying into the deflection tactics deployed by the NSA and others.
The ACLU makes a very good point about how the delineation between metadata and content isn't nearly as clear as surveillance proponents make it out to be.
Although this distinction may appear clear, it quickly becomes blurry on closer examination. For example, technically speaking, a URL is very much a “delivery instruction;” it specifies the address of the web page that you are requesting. But it is also content: requesting a web page essentially means sending a message saying “please send me back the page found at this URL.” In addition, a single URL reveals exactly which page was sought, and thus exactly what content was received…
In addition, whether information is content or metadata can depend not only on the type of information but also on the context in which it is created or used. This means that exactly the same information can be content in one situation and metadata in another. For example:
Your location may or may not be content depending on context. If you call your friend and say “I am at Starbucks,” the words you speak are content. If you use your smartphone to “check in” with Foursquare, that check-in is also content. But many courts have held that your cell carrier’s record of the location of your phone at the exact same moment is not content. And what if you take a picture or post a Tweet that you tag (intentionally or unintentionally) with your current GPS coordinates?
The identity of your friends and contacts may or may not be content depending on context. If you write an email stating that “John is my friend,” that statement is content. But it is less clear whether the fact that John is on your Facebook friend list is also content, even though it conveys exactly the same message.
The agencies helping themselves to this data are wholly unconcerned that this data could also be considered content. The laws governing
these "records" have declared it all fair game. As the report points out, even Mike Morrell, the former CIA official, has admitted there's no clear distinction.
“There’s not a sharp difference between metadata and content. . . . It’s more of a continuum.”
But the law says they can have it, and so they take it.
Further on in the report, the ACLU points out that this cavalier attitude towards metadata, coupled with the ease of access, greatly encourages abusive "fishing expeditions."
In 2010, Michigan police sought information about every single phone located near the site of a planned labor protest without a warrant.
A Tennessee sheriff requested the location of his daughter when she was out past her curfew.
A police chief in South Carolina obtained four “tower dumps” providing information about every cell phone within range of two separate cell towers after his personal vehicle was burglarized.
As the ACLU states, these incidents are only the tip of the iceberg. Many more abuses of collected data are happening, most of which won't be exposed until long after the abuse has taken place. This isn't an indictment of law enforcement specifically, but a cautionary statement of what will
happen and continue to happen
until better legal safeguards are put into place. Easy access combined with a wealth of information is abuse waiting to happen.
While the focus of the past several months has been the NSA's surveillance programs, the most frequent requests for data come from law enforcement agencies. This means that even if the NSA has no interest in your metadata, there are a ton of agencies that might find it more fascinating.
Just as certainly as Target can figure out you're pregnant by tracking your shopping habits
in its stores, agencies can draw plenty of their own conclusions from the wealth of metadata that's only a subpoena away (at most). And with news surfacing more and more frequently
that law enforcement and security agencies are equating dissent with terrorism
, this non-stop collection of metadata has the potential to drag those that are simply unhappy with the status quo into their ever-widening surveillance nets -- and quite possibly into the gears of the criminal justice system itself.
There's no such thing as "just metadata
." Given enough data points, anyone's
life is an open book -- one that can be perused at will by a variety of government agencies. The fact that these agencies rely on outdated decisions and make clunky, dusty comparisons (no more expectation of privacy than the outside of an envelope!) clearly exposes the hypocrisy at play: they love
the advantages technological advances give them (and the massive amount of metadata these generate) but they have no desire to update the laws governing these so-called "business records." "Just metadata" is a lie -- a lie that services the surveillance state and makes a mockery of the phrase "expectation of privacy."
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