Posted on Techdirt - 7 March 2014 @ 4:35pm
We've already reported on how Italy's communications watchdog, AGCOM, has assigned itself the power to censor websites based on a copyright infringement claim from a copyright holder, without any sort of judicial due process. However, it appears that Italy's public prosecutor has decided to go even further and simply order ISPs to censor dozens of websites based solely on his say so that they were sources of infringing materials. No copyright holder made any specific claim about those sites. There doesn't appear to have been any due process, or really any process at all, other than that the public prosecutor decided which sites were "pirate sites," and then handed them off to the "Guardia di Finanza" (the financial police, more or less), a part of Italy's Ministry of Economy and Finance, who went out and ordered ISPs to block access to these sites entirely.
Unfortunately, it looks like this is something of a trend, with law enforcement types suddenly deciding on their own what websites need to be shut down absent any sort of judicial due process. These efforts probably make copyright maximalists happy, but they fly in the face of pretty much all of copyright law. They're almost entirely based on confusing law enforcement types into believing that copyright is just like "property" and thus that it can treat sites that are somehow connected to possible infringement the same as entities that traffic in stolen merchandise. There are, of course, worlds of difference between the two, but copyright maximalists play on the ignorance of law enforcement officials in these settings, playing up the misleading analogy, leading to vast censorship and a near total lack of due process.
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Posted on Techdirt - 7 March 2014 @ 1:43pm
A couple months ago, we had a blog post celebrating the 30th anniversary of the Supreme Court's decision that showed the Sony Betamax was legal, an important ruling that helped clear the field for innovations that could, potentially, be used for infringement, so long as they also had substantial non-infringing uses. Today is the anniversary of another important copyright decision. Twenty years ago today, the Supreme Court made a key ruling in Campbell v. Acuff-Rose, emphasizing that fair use can absolutely still apply for commercial use. That ruling is tremendously important to the history of the internet.
The case, if you don't recall, involved the rap group 2 Live Crew's song "Pretty Woman," which was a take on Roy Orbison's "Oh, Pretty Woman." And while a lower court tossed out the fair use question by saying that it was "presumptively unfair" due to being a commercial parody, the Supreme Court noted that commercial use can still be fair use, and that the "more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." That is, while commercial use is still a factor in determining fair use, if a work is transformative, whether or not it's a commercial use matters much less. That has very important consequences for all sorts of fair use today, including in television, movies, books and news.
Unfortunately, as Matt Schruers notes above, it's also a ruling that is frequently ignored or forgotten by many who think they understand copyright. The number of times we've had commenters here state that something can't be fair use if it's for commercial use is quite incredible, but at least we can assume those people just don't know. Where it gets especially troubling is when people whose job it is to know and understand this stuff seem to ignore it:
It is odd but true that the significance of commercial fair use is often lost in the copyright conversation. A recent House Judiciary hearing on fair use underrepresented the significance of fair use to business, and just this week I sat through a policy event where a speaker confidently declared U.S. trade policy need not address fair use because fair use deals only with “non-commercial” use — blissfully unaware, it would seem, that a unanimous Court thought otherwise. The most recent numbers available suggest that about 17% of U.S. GDP was produced by industries benefiting from fair use and other exceptions to copyright, and that the same industries (increasingly, high-value services) now lead export growth. As a result, other jurisdictions have realized that U.S. copyright law’s hospitality to basic, essential Internet functions like search is a national competitive advantage.
And this is an issue that is only going to become more important. As more and more things move online, there are ever greater questions about fair use in the context of internet services. The fact that this ruling helped cement the importance of transformative use, and made it clear that commercial use can be fair use, is a key part of why the internet can function today without all sorts of cloud and internet services being sued out of existence.
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Posted on Techdirt - 7 March 2014 @ 10:20am
Chris Inglis, who had been deputy director of the NSA until recently (and one of the key people who was out there responding to questions about Snowden) is now officially in his (long planned) retirement (though, he's expected to pop back up shortly in the private sector). And as a first order of business, he's apparently imparting some of the "wisdom" he learned over the last few months, by telling tech companies they need to be more transparent about the data they collect:
"There's an enormous amount of data held in the private sector," Mr. Inglis said, in his first published interview since leaving government. "There might be some concerns not just on the part of the American public, but the international public."
"These companies at least have a public relations issue, if not a moral obligation, to really make sure you understand that this is to your benefit," Mr. Inglis said. "As an individual, myself, I continue to be surprised by the kinds of insights companies have about me."
Now, first off, he's right. Companies collecting tons of data on their users should
absolutely be a hell of a lot more transparent about what they're collecting (and should give more controls allowing people to opt-out of certain collections). However, it seems quite rich to hear that coming from someone at the NSA, perhaps the least transparent organization ever -- and one that worked hard to make sure that the tech industry was completely barred from being transparent about what sorts of data the NSA gets from them.
To try to spin that as an issue for the tech companies is just silly. As plenty of people have pointed out over and over again, your use of a tech company's services is voluntary. You can avoid it if you don't like it. And, yes, while more information and user controls would be helpful, in the few instances where there have been data leaks, or when it has become clear what kinds of info companies collect, most people have actually been totally fine with it
. That's quite different from the NSA. With a company, people may be trading information for a service which they value -- and they're making the choice that the tradeoffs are worth it. That's not true with the NSA. It's not by choice and there's no tradeoff.
No matter what, the idea that Chris Inglis is suddenly the spokesperson for transparency is simply ridiculous.
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Posted on Techdirt - 7 March 2014 @ 8:12am
Earlier this week, we wrote about the accusations that the CIA was spying on Senate staffers on the Senate Intelligence Committee as they were working on a massive $40 million, 6,300-page report condemning the CIA's torture program. The DOJ is apparently already investigating if the CIA violated computer hacking laws in spying on the Senate Intelligence Committee computers. The issue revolved around a draft of an internal review by the CIA, which apparently corroborates many of the Senate report's findings -- but which the CIA did not hand over to the Senate. This internal report not only supports the Senate report's findings, but also shows that the CIA has been lying in response to questions about the terror program.
In response to all of this, it appears that the CIA is attempting, weakly, to spin this as being the Senate staffers' fault, arguing that the real breach was the fact that the Senate staffers somehow broke the rules in obtaining that internal review. CIA boss John Brennan's statement hints at the fact that he thinks the real problem was with the way the staffers acted, suggesting that an investigation would fault "the legislative" branch (the Senate) rather than the executive (the CIA).
In his statement on Wednesday Brennan hit back in unusually strong terms. “I am deeply dismayed that some members of the Senate have decided to make spurious allegations about CIA actions that are wholly unsupported by the facts,” Brennan said.
“I am very confident that the appropriate authorities reviewing this matter will determine where wrongdoing, if any, occurred in either the executive branch or legislative branch,” Brennan continued, raising a suggestion that the Senate committee itself might have acted improperly.
A further report detailed what he's talking about. Reporters at McClatchy have revealed that the Senate staffers working on this came across the document, printed it out, and simply walked out of the CIA and over to the Senate with it, and the CIA is furious about that
. Then, in a moment of pure stupidity, the CIA appears to have confronted the Senate Intelligence Committee about all of this... directly revealing that they were spying on the Committee staffers.
Several months after the CIA submitted its official response to the committee report, aides discovered in the database of top-secret documents at CIA headquarters a draft of an internal review ordered by former CIA Director Leon Panetta of the materials released to the panel, said the knowledgeable person.
They determined that it showed that the CIA leadership disputed report findings that they knew were corroborated by the so-called Panetta review, said the knowledgeable person.
The aides printed the material, walked out of CIA headquarters with it and took it to Capitol Hill, said the knowledgeable person.
“All this goes back to what is the technical structure here,” said the U.S. official who confirmed the unauthorized removal. “If I was a Senate staffer and I was given access to documents on the system, I would have a laptop that’s cleared. I would be allowed to look at these documents. But with these sorts of things, there’s generally an agreement that you can’t download or take them.”
The CIA discovered the security breach and brought it to the committee’s attention in January, leading to a determination that the agency recorded the staffers’ use of the computers in the high-security research room, and then confirmed the breach by reviewing the usage data, said the knowledgeable person.
There are many more details in the McClatchy report, which I highly recommend reading. And, yes, perhaps there's an argument that Senate staffers weren't supposed to take such documents, but the CIA trying to spin this by saying it was those staffers who were engaged in "wrongdoing" is almost certainly going to fall flat with Congress. After all, the intelligence committee is charged with oversight of the CIA, not the other way around. "You stole the documents we were hiding from you which proved we were lying, so we spied on you to find out how you did that" is not, exactly, the kind of argument that too many people are going to find compelling.
Still, the latest is that the CIA has successfully convinced the DOJ to have the FBI kick off an investigation of the Senate staffers
, rather than of the CIA breaking the law and spying on their overseers.
Of course, the CIA may still have one advantage on its side: there are still some in Congress who are so supportive of the intelligence community itself that even they will make excuses for the CIA spying on their own staff. At least that seems to be the response from Senate Intelligence vice chair Senator Saxby Chambliss, one of the most ardent defenders
of the intelligence community he's supposed to be watching over. When asked about all of this, he seemed to be a lot more concerned
about the staffers supposedly taking "classified" documents than about the CIA spying on those staffers:
“I have no comment. You should talk to those folks that are giving away classified information and get their opinion,” Intelligence Committee Vice Chairman Saxby Chambliss (R-Ga.) said when asked about the alleged intrusions.
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Posted on Techdirt - 7 March 2014 @ 5:03am
Almost exactly two years ago, we wrote about the tacocopter, a sort of proof of concept idea for using drones to deliver products to people's homes. Yes, Amazon got some attention last year for claiming to be working on something similar, but the Tacocopter (and Lobstercopter on the east coast) idea was the first I'd heard of anyone seriously thinking about commercial-use drones. However, the key point of our Tacocopter story was that they were illegal:
Current U.S. FAA regulations prevent ... using UAVs [Unmanned Aerial Vehicles, like drones] for commercial purposes at the moment.
Well, that's no longer the case apparently. National Transportation Safety Board (NTSB) administrative law judge Patrick Geraghty has unleashed the tacocopters of the world by issuing a ruling that the FAA has no mandate to regulate commercial drones
. The case involved the first time that the FAA had actually tried to fine someone, a guy named Raphael Pirker, $10,000 for trying to film a commercial with a drone at the University of Virginia.
The issue, basically, is that the FAA has historically exempted model airplanes from its rules, and the NTSB finds it impossible to square that with its attempt to now claim that drones are under its purview. As Geraghty notes, accepting that leads to absurd arguments about the FAA's mandate over all flying objects:
Complainant has, historically, in their policy notices, modified the term "aircraft" by prefixing the word "model", to distinguish the device/contrivance being considered. By affixing the word "model" to "aircraft" the reasonable inference is that Complainant FAA intended to distinguish and exclude model aircraft from either or both of the aforesaid definitions of "aircraft".
To accept Complainant's interpretive argument would lead to a conclusion that those definitions include as an aircraft all types of devices/contrivances intended for, or used for, flight in the air. The extension of that conclusion would then result in the risible argument that a flight in the air of, e.g., a paper aircraft, or a toy balsa wood glider, could subject the "operator" to the regulatory provisions of FAA Part 91, Section 91.13(a)....
..... The reasonable inference is not that FAA has overlooked the requirements, but, rather that FAA has distinguished model aircraft as a class excluded from the regulatory and statutory definitions.
The judge notes that while the FAA had some internal memorandum about these issues, it did not put forth a full rule, and thus it is not an actual policy. As a result, the ruling finds that the current definition of aircraft is not applicable here and thus the FAA has no real mandate over this kind of drone.
This does not preclude the FAA from trying to go through a full rule-making process to try to gain a mandate over commercial drone use, but that will involve a big political fight. It's way easier to block something like that from becoming official than overturning it if it was already deemed the law.
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Posted on Techdirt - 6 March 2014 @ 2:33pm
We've written a few times about the terrible ruling from Judge Alex Kozinski, the chief judge of the 9th Circuit, finding a bizarre copyright interest by an actress who appeared in 5 seconds of the 13 minute "trailer" for the controversial "Innocence of Muslims" video, thus allowing her to get all copies of the video taken off of Google sites. Google quickly filed for a stay, noting that the ruling was likely to be overturned, and it made no sense to allow for this controversial censorship which likely violated the First Amendment, until such time as the details could be reviewed en banc (by a larger panel of judges). Kozinski almost immediately rejected the request for a stay.
Now, in a move that is quite odd, one of the other judges on the 9th Circuit has apparently asked the court to reconsider the motion for a stay en banc. This is surprising on a few levels. First, it's quite rare to see such a "sua sponte" request. That is, it's common for the parties in the lawsuit (i.e., Google) to request an en banc hearing, but it's not at all common for a judge to step in and make the request for an en banc hearing of his or her own accord. But that's what's happened here. It's important to note that the request for an en banc hearing is only covering the issue of whether or not the court should stay the original order, and not about reviewing the original order (which is likely to happen separately). I assume this is so that things can happen much more quickly with a review of the narrow question of whether or not Google should be forced to keep the content down while the original order is debated.
Either way, the parties have been asked to file briefs on whether or not an en banc panel should explore whether or not their should be a stay on the original order by next Wednesday, so there should be a pretty quick turnaround on this one. Still, the fact that a judge decided to do this suggests that there's at least one judge in the 9th Circuit who is uncomfortable with Kozinski's ruling. We already knew that there was strong dissent to his opinion, and it's possible that the judge requesting this is the one who dissented, but it's still a somewhat surprising move.
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Posted on Techdirt - 6 March 2014 @ 1:32pm
I'm going to assume that many of you are familiar with Richard Feynman. If you're not, please get out from under the rock you've been living under and go learn something. While he's probably most well-known in the public for his (not always 100% truthful) collection of stories, Surely You're Joking, Mr. Feynman!, folks of a geekier persuasion are much more aware of his contributions to science and, in particular, the famed Feynman Lectures on Physics. It took way too many years to get those lectures online after (you guessed it) a fight over copyrights. However, online the lectures went and now it appears that publisher Perseus is unfortunately using the DMCA to block attempts to make the works accessible via Kindle or EPUB formats.
Eric Hellman posted the story at the link above, with this being the key part:
Vikram Verma, a software developer in Singapore, wanted to be able to read the lectures on his kindle. Although PDF versions can be purchased at $40 per volume, no versions are yet available in Kindle or EPUB formats. Since the digital format used by kindle is just a simplified version of html, the transformation of web pages to an ebook file is purely mechanical. So Verma proceeded to write a script to do the mechanical transformation – he accomplished the transformation in only 136 lines of ruby code, and published the script as a repository on Github.
Despite the fact that nothing remotely belonging to Perseus or Caltech had been published in Verma's repository, it seems that Perseus and/or Caltech was not happy that people could use Verma's code to easily make ebook files from the website. So they hauled out the favorite weapon of copyright trolls everywhere: a DMCA takedown.
You can see the DMCA here
as well as the counternotice
, which notes that the software doesn't contain any copyrighted materials (though there's some confusion over who owns the copyright, Caltech or Perseus). Hellman, while admitting he's not a lawyer, further suggests the DMCA takedown is invalid because it's just code... but then further notes that the Feynman Lectures website has put in some code to block the script -- and that Verma has coded around this:
Of course, that introduces a new (and unfortunate) problem. As problematic as it is, the anti-circumvention clause of the DMCA, 17 USC 1201
makes it against the law to get around any
"technological measure" no matter how stupid or weak, and thus the effort by the website to block it may introduce a new problem, though likely different than what Perseus initially claimed in its takedown.
Making things even more convoluted, the editor of the Feynman Lectures, Michael Gottlieb, jumped into the fray and made things even more confusing and misleading:
The online edition of The Feynman Lectures Website posted at www.feynmanlectures.caltech.edu and www.feynmanlectures.info is free-to-read online. However, it is under copyright. The copyright notice can be found on every page: it is in the footer that your script strips out! The online edition of FLP can not be downloaded, copied or transferred for any purpose (other than reading online) without the written consent of the copyright holders (The California Institute of Technology, Michael A. Gottlieb, and Rudolf Pfeiffer), or their licensees (Basic Books). Every one of you is violating my copyright by running the flp.mobi script. Furthermore Github is committing contributory infringement by hosting your activities on their website. A lot of hard work and money and time went into making the online edition of FLP. It is a gift to the world - one that I personally put a great deal of effort into, and I feel you are abusing it. We posted it to benefit the many bright young people around the world who previously had no access to FLP for economic or other reasons. It isn't there to provide a source of personal copies for a bunch of programmers who can easily afford to buy the books and ebooks!! Let me tell you something: Rudi Pfeiffer and I, who have worked on FLP as unpaid volunteers for about a decade, make no money from the sale of the printed books. We earn something only on the electronic editions (though, of course, not the HTML edition you are raping, to which we give anyone access for free!), and we are planning to make MOBI editions of FLP - we are working on one right now. By publishing the flp.mobi script you are essentially taking bread out of my mouth and Rudi's, a retired guy, and a schoolteacher. Proud of yourselves? That's all I have to say personally. Github has received DMCA takedown notices and if this script doesn't come down pretty soon they (and very possibly you) might be hearing from some lawyers. As of Monday, this matter is in the hands of Perseus's Domestic Rights Department and Caltech's Office of The General Counsel.
Michael A. Gottlieb
Editor, The Feynman Lectures on Physics New Millennium Edition
This is icky on multiple levels. First of all, Gottlieb is engaging in slight copyfraud in overclaiming what his copyright enables him to block. Further it is not necessarily the case that anyone, let alone "everyone" is "violating [Gottlieb's] copyright" merely by running the script. There are plenty of legitimate reasons why running that script may be perfectly legitimate, and legal cases that have suggested place and time shifting content is a legal fair use would certainly come into play here. Furthermore, the argument that Github
is somehow contributorily liable is highly questionable, and Gottlieb really ought to talk to a copyright lawyer before making such a leap.
But from there to shift into how important it is to make the work available to the world... just seems strange. If that's the case, why is he freaking out so much?
Either way, the whole situation seems unfortunate, but once again, that's what you get with our crazy copyright law and the DMCA takedown process.
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Posted on Techdirt - 6 March 2014 @ 12:35pm
We've been writing quite a bit about the Aereo case lately, which is scheduled to be heard by the Supreme Court in late April. The case has an awful lot of powerful people and organizations lining up on both sides, filing briefs with the Supreme Court. Some have pointed out that Aereo's technology really isn't particularly innovative, and in fact, we've discussed how its setup is basically insane from a technology standpoint, but that the company is forced into building it that way to stay within the law (or so it and its supporters believe).
But some seem to be wondering why this one technology company, with something of a legal kludge is so important. It is incredibly important for reasons that have almost nothing to do with Aereo's actual service. Rather, it's about how the Supreme Court will interpret a key part of the Copyright Act, which could have an astoundingly bad chilling effect on pretty much all cloud computing. This may not seem obvious at first glance, since few people associate Aereo with cloud computing. Matt Schruers does a nice job breaking down the key point, however, as to why this one decision will have far reaching implications well beyond Aereo. And it all comes down to how the Supreme Court defines what is a "public performance."
Aereo’s position is that when Aereo subscribers pay for access to an antenna and direct it to send them back a unique copy of a particular broadcast, this is private. Different users access different antennae at different times, and each user receives a different copy of a work — even if they’re watching the same broadcast. Aereo isn’t rebroadcasting one work to thousands; it gives technology to thousands who at different times use that technology to access and possibly store different copies of works that they’re already lawfully entitled to receive. This is not unlike the Sony Betamax, which didn’t copy television, but gave thousands of consumers the technology to make reproductions of television content that they were already lawfully receiving.
Broadcasters have responded by saying that none of this matters; Aereo is infringing, they contend, so long as a given work is made available to multiple members of the public, even if Aereo does it with different unique copies, and at different times.
The problem with this rationale is that it applies with equal force to cloud storage like Dropbox, SkyDrive, iCloud, and Google Drive. If multiple people store their own, unique, lawfully acquired copy of the latest hit single in the cloud, and then play it to themselves over the Internet, that too sounds like the broadcasters’ version of a public performance. The anti-Aereo rationale doesn’t distinguish between Aereo and the cloud.
If you don't think that copyright holders won't take a victory here and go after various cloud services, you haven't been paying attention to the history of copyright fights over the past few decades.
And this is part of why the US Solicitor General's brief in support of the broadcasters
is so ridiculously problematic. It tries to address that issue of cloud computing, by basically saying it might
not be a big deal, because no company will require a license. However, other briefs in support of the broadcasters say it's no big deal because everyone can just get a license. One of those can't be true.
the U.S. Government (USG), for example, carefully hedges, saying that a decision for the broadcasters “need not threaten cloud computing.” It conspicuously does not argue that it will not threaten the cloud — only that the decision need not, implicitly conceding that a decision for the broadcasters could still be fatal for the cloud. The USG’s rationale is that as long as a consumer has lawfully acquired media in the first place, no cloud service need worry that someone will demand a license. Inconveniently for the USG, however, several other briefs filed concurrently argue that cloud computing services need not worry because, hey, everyone can just get a license! Setting aside the fact that there’s no way to ensure that all files in the cloud are licensed, this point substantially undercuts the USG’s position. Even as the USG is telling the Court that cloud services need not fear they’ll be demanded to take licenses for everything users put in the cloud, other interests are telling the Court that cloud services should do exactly that. Arguably, it doesn’t advance the broadcasters’ case that even their supporters cannot agree on whether cloud services would have licensing problems.
The ruling in this case matters, even if you don't care at all for Aereo's particular service. The wider impact on a variety of useful services could be massive. In fact, we've seen this before. Aereo's court wins to date rely heavily on the ruling that found Cablevision's remote DVR legal
-- which similarly focused on defining whether or not that product involved a "public performance" that needed to be licensed. There, the court found that they did not. However, courts in other countries have found otherwise. That set up a nice natural experiment, and Harvard professor Josh Lerner looked at changes
in venture capital investment into cloud computing offerings in the immediate aftermath of similar rulings, finding that the Cablevision ruling (saying not a public performance, and thus protecting the cloud) helped to spur tremendous investment
in innovative new services -- to the tune of about $1 billion.
No matter what you think of Aereo, this decision will have a major impact on what sort of internet we have going forward.
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Posted on Techdirt - 6 March 2014 @ 10:32am
Just recently, we wrote about how the Department of Homeland Security's (DHS) Customs and Border Patrol (CBP) has been increasingly detaining and harassing people at the border (or near the border) under highly questionable circumstances -- and then refusing to comment on any of it. Instead, CBP has relied on a cloak of secrecy to live outside the law, acting out what we've come to expect from authoritarian police states. Recently, the ACLU filed a lawsuit on behalf of a woman, Christine Von Der Haar, who is a senior lecturer at Indiana University, after CBP detained her at the airport.
She was not entering or leaving the country. She was not even boarding a flight. She merely accompanied a friend to the airport so that he could retrieve some computer equipment that he had shipped separately a few days earlier. After detaining Von Der Haar, CBP officials, who clearly had access to some of the emails Von Der Haar and her friend had sent back and forth, quizzed her about her sex life and if she was planning to marry the friend.
CBP appeared to be concerned that the friend, a Greek national named Dimitris Papatheodoropoulos, was trying to stay in the country illegally. Von Der Haar had first met Papatheodoropoulos 40 years earlier while studying abroad, and the two had recently reconnected thanks to the internet. Papatheodoropoulos had obtained a B1/B2 business/leisure visa to the US which actually let him enter and leave the country for a period of 10 years. He came to the US for business, but while there also wished to visit Von Der Haar since they'd been catching up online.
After detaining and questioning Papatheodoropoulos for some time, CBP officials took Von Der Haar into another room and started asking questions specific to the emails between the two of them. According to the lawsuit:
Given that Mr. Papatheodoropoulos had retained his hard drive that contained the emails, the only way that the Customs and Border Protection Agents could have reviewed the emails is for someone to have surreptitiously monitored the communications between Dr. Von Der Haar and Mr. Papatheodoropoulos and reported those communications to the agents questioning her. Defendant Lieba admitted that employees of the United States had read email communications between Dr. Von Der Haar and Mr. Papatheodoropoulos.
This raises all sorts of serious questions. As the post at Papers Please (linked above) notes:
CBP officers grossly exceeded their jurisdiction. Dr. Dr. Von Der Haar’s US citizenship was never questioned; she wasn’t trying to enter, leave, or ship and goods in or out of the country; and she was never accused of any crime. In general, immigration (as distinct from customs) offenses are handled by Immigration and Customs Enforcement (ICE) and the Border Patrol, not CBP. We’re curious what basis CBP will claim for its officers’ authority to detain and interrogate Dr. Dr. Von Der Haar or obtain her email.
The post also wonders how or why CBP got access to those emails, wondering if they were shared by the NSA. There are, of course, other possible explanations as various investigations may have resulted in CBP getting access to the emails separately, but it still raises serious questions about under what authority those emails were obtained and why
she was then quizzed about her sex life.
The claims that officials made about Papatheodoropoulos were equally questionable. Again, from the lawsuit:
Customs and Border Protection agents seized Mr. Papatheodoropoulos’
On June 8, 2012, Mr. Papatheodoropoulos was served
with notice that a proceeding was
initiated against him for removal from the United States. The notice stated, in relevant part:
You obtained your B1/B2 visa by misrepresenting your intentions to come to the
United States to wit; It is your intention to immigrate to the United States, you
abandoned your foreign residence, you intend to overstay your admission to the
None of this was true.
Mr. Papatheodoropoulos consulted with lawyers and the Greek Consulate in Chicago and
the removal action did not proceed.
His passport was returned to him and he left the United States at the end of August of
2012 and has not returned
The whole thing seems ridiculous yet again, and you can expect DHS to use its standard cloak of secrecy. I'm sure they'll argue some sort of state secrets or national security claim to try to get the entire case thrown out.
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Posted on Techdirt - 5 March 2014 @ 7:36pm
Getty Images has something of a reputation as a copyright maximalist. The company's representatives have testified before Congress and pushed for copyright expansion in the past. It's also well known for filing copyright lawsuits on those it claims illegally used its images. Hell, just a few weeks ago, some were debating if Getty should be described as a copyright troll after filing a flurry of copyright infringement lawsuits.
So it's fairly big news to find out that Getty is trying to get ahead of the curve by making millions of its photos free for sites to use via an embed code -- a la YouTube, Twitter and lots of other sites. Basically, it looks like the company is admitting to reality and adapting (though, apparently freaking out photographers in the process...):
But according to Craig Peters, a business development exec at Getty Images, that ship sailed long ago. "Look, if you want to get a Getty image today, you can find it without a watermark very simply," he says. "The way you do that is you go to one of our customer sites and you right-click. Or you go to Google Image search or Bing Image Search and you get it there. And that's what's happening… Our content was everywhere already."
"Before there was iTunes, before there was Spotify, people were put in that situation where they were basically forced to do the wrong thing, sharing files," Peters says. Now, if an aspiring producer wants to leak a song to the web but keep control of it, they can drop it on Soundcloud. Any blog can embed the player, and the artist can disable it whenever they want. And as Google has proved with YouTube, it's easy to drop ads or "buy here" links into that embed. "We've seen what YouTube's done with monetizing their embed capabilities," Peters says. "I don't know if that's going to be appropriate for us or not." But as long as the images are being taken as embeds rather than free-floating files, the company will have options.
That sounds positively forward looking for an organization with a history (both long term and recent) of being anything but forward thinking. There are some caveats. It is not all
of Getty's images, as the Verge article linked above implies. It appears that some of the key collections will still be fee-only. And, you can argue that Getty already has some experience in the free stock image game, seeing as it owns iStockphoto which offers up some free options. This is a little different on two fronts. First, most free stock image banks are... well, pretty crappy. The quality just isn't there. Second, while free stock photo services often let you copy
and use the photos, Getty requires this embed, which has some potential issues in that you really don't know what they might do in the future with that embed -- as the quotes above make clear. That may worry some.
There's also the fact that the company claims that they're only allowing this for "non-commercial" usage. Now, as we've discussed for years
the line between commercial and non-commercial is painfully blurry -- as it's possible that almost anything people do can be twisted to argue it's a commercial use. Thankfully, it appears that Getty is making it clear upfront that it's taking an extremely (surprisingly) open view on what counts as "non-commercial"
noting that any
use for "editorial" will be considered non-commercial, even if done by a commercial enterprise, including the NY Times and Buzzfeed:
Blogs that draw revenues from Google Ads will still be able to use the Getty Images embed player at no cost. “We would not consider this commercial use,” says Peters. “The fact today that a website is generating revenue would not limit the use of the embed. What would limit that use is if they used our imagery to promote a service, a product or their business. They would need to get a license.” A spokeswoman for Getty Images confirms to BJP that editorial websites, from The New York Times to Buzzfeed, will also be able to use the embed feature as long as images are used in an editorial context.
At the same time, the company admits that it's not dropping its lawsuit strategy, and will continue to sue those it feels go too far, which may make things a little dicey for some users. Hopefully, the company will be as explicit in its official terms that embedding for editorial purposes will always be deemed legit.
While we're a little wary of Getty given some of its past actions, the company should be applauded for actually recognizing reality, and trying to adapt accordingly, recognizing how it might better serve people who otherwise would automatically go somewhere else.
Not too long ago, we had actually explored various stock photography offerings that were out there, even talking to Getty about its program (which was insanely expensive). Instead, we decided to focus on situations where Creative Commons images and/or fair use situations would work best. However, with this move, we may take another look at Getty for our own image needs.
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Posted on Techdirt - 5 March 2014 @ 4:22pm
For many years, we've highlighted how copyright maximalists have abused the international trade process to expand copyright monopolies around the globe. If you're interested in the history there, I highly recommend the book Information Feudalism: Who Owns the Knowledge Economy?, which details much of the history. Defenders of this policy love to pretend that international trade agreements can't bind US law, but reality is quite different. Time and time again, we've seen maximalists use international agreements to get their way either in ratcheting up copyright law even further, or pressuring courts into certain positions. This is one of the reasons (one of many) that we're so concerned about new agreements like the TPP and TTIP/TAFTA. Even if the USTR claims (incorrectly) that nothing in them goes beyond US law today, they can not only limit the changes Congress can make to copyright and patent law, but these issues can show up in court cases, potentially hindering innovation.
Here's a perfect example. We've been covering the Aereo case for quite some time, and as the Supreme Court prepares to hear the case in April, a bunch of international music organizations, led by the IFPI (basically the international version of the RIAA), have filed an amicus brief that pretty clearly says that the Supreme Court has to rule against Aereo because of existing international trade agreements that the US has signed. No joke. The brief directly claims that the appeals court ruling that found in favor of Aereo "places the United States in violation of its multilateral treaty commitments," as well as "its bilateral and regional agreements," and further that the Supreme Court has a duty to find against Aereo in order to respect the US's "treaty commitments."
Reading through the brief, you can see just how much copyright maximalists have succeeded in putting together a huge mess of international agreements (often built around issues totally unrelated to copyright, with a few copyright specific ones thrown in) that these groups can now claim require the Supreme Court to outlaw new innovations like Aereo. It further cites rulings in the EU and Canada that it suggests require the Supreme Court to follow suit. While there are some Justices who have made it clear time and time again that they don't care what foreign courts say, others have shown a willingness to follow suit.
Either way, this brief yet again highlights just how nefarious these international trade agreements can be, and how they can come back to bite new innovations years later. Defenders of copyright maximalism will insist that things like TPP and TTIP/TAFTA will have no impact on US law, but if those agreements come into force, you can bet that future US innovations will get stomped out of existence with certain players pointing to those agreements as a reason they need to be shut down.
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Posted on Techdirt - 5 March 2014 @ 2:21pm
Last week, we wrote about the technologically clueless grandstanding Senator Joe Manchin's bizarre request to the Treasury Department and the Fed that it figure out a way to ban Bitcoin. Almost everything in Manchin's letter was ill-informed, right down to his ridiculous assertion that we need to copy Thailand and China (who haven't really banned Bitcoin) to get ahead of this "trend." Of course, as we noted, along with a whole bunch of factual inaccuracies, almost all of Manchin's complaints applied equally to cash.
So, in response to a totally technologically clueless elected official, up steps Rep. Jared Polis, perhaps the most technologically knowledgeable elected official out there, with a counterproposal. He basically rewrote Manchin's letter, but replaced Bitcoin with the dollar bill, highlighting the sheer absurdity of Manchin's request.
I write today to express my concerns about United States dollar bills. The exchange of dollar bills, including high denomination bills, is currently unregulated and has allowed users to participate in illicit activity, while also being highly subject to forgery, theft, and loss. For the reasons outlined below, I urge regulators to take immediate and appropriate action to limit the use of dollar bills.
By way of background, a physical dollar bill is a printed version of a dollar note issued by the Federal Reserve and backed by the ephemeral “full faith and credit” of the United States. Dollar bills have gained notoriety in relation to illegal transactions; suitcases full of dollars used for illegal transactions were recently featured in popular movies such as American Hustle and Dallas Buyers Club, as well as the gangster classic, Scarface, among others. Dollar bills are present in nearly all major drug busts in the United States and many abroad. According to the U.S. Department of Justice study, “Crime in the United States,” more than $1 billion in cash was stolen in 2012, of which less than 3% was recovered. The United States’ Dollar was present by the truck load in Saddam Hussein’s compound, by the carload when Noriega was arrested for drug trafficking, and by the suitcase full in the Watergate case.
Unlike digital currencies, which are carbon neutral allowing us to breathe cleaner air, each dollar bill is manufactured from virgin materials like cotton and linen, which go through extensive treatment and processing. Last year, the Federal Reserve had to destroy $3 billion worth of $100 bills after a “printing error.” Certainly this cannot be the greenest currency.
Printed pieces of paper can fit in a person’s pocket and can be given to another person without any government oversight. Dollar bills are not only a store of value but also a method for transferring that value. This also means that dollar bills allow for anonymous and irreversible transactions.
The very features of dollar bills, such as anonymous transactions, have created ubiquitous uses from drug purchases, to hit men, to prostitutes, as dollar bills are attractive to criminals who are able to disguise their actions from law enforcement. Due to the dollar bills’ anonymity, the dollar bill market has been extremely susceptible to forgers, tax fraud, criminal cartels, and armed robbers stealing millions of dollars from their legitimate owners. Anonymity, combined with a dollar bills’ ability to finalize transactions quickly, makes it very difficult, if not impossible, to reverse fraudulent transactions.
Many of our foreign counterparts already understand the wide range of problems that physical currencies can have. Many physical currencies have enormous price fluctuations, and even experience deflation. 20 years ago Brazil had an inflation rate of 6281%. In 4 years (2001 to 2005), the Turkish Lira went from 1,650,000: $1 to 1.29 to $1. In 2009, Zimbabwe discontinued it’s dollar. Before it was eliminated, the Zimbabwe dollar was the least valuable currency in the world and their central bank even issued a $100 trillion dollar banknote. A person would starve on a billion Zimbabwe dollars and it took an entire wheelbarrow full of $100 billion dollars in notes to purchase a loaf of bread.
The clear use of dollar bills for transacting in illegal goods, anonymous transactions, tax fraud, and services or speculative gambling make me wary of their use. Before the United States gets too far behind the curve on this important topic, I urge the regulators to work together, act quickly, and prohibit this dangerous currency from harming hard-working Americans.
Member of Congress
This is, to put it mildly, absolutely hilarious. I imagine that we'll see some traditionalists bitch about a Congressional rep using satire to mock a colleague, but that's just silly. This makes the point better than any boring letter or speech would ever do. And, considering that Rep. Polis has no problem wearing this
on the House floor, I get the feeling he really doesn't care at all what "traditionalists" think of his actions around Congress.
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Posted on Techdirt - 5 March 2014 @ 12:18pm
For the past few years, Hollywood and its friends have been very, very focused on trying to blame Google for their own failure to adapt to a changing business environment. This usually takes the form of ridiculous assertions about how Google can magically stop unauthorized access to copyrighted materials, combined with totally specious studies that try (and totally fail) to link Google to an increase in infringement. The RIAA and MPAA then insist that "something must be done" with that "something" usually being Google magically changing its search results and/or special laws that would make Google and other intermediaries somehow legally liable for such infringement. The key question that we see over and over again from the RIAA and MPAA is something along the lines of "when will Google 'take responsibility'?" for all that infringement.
However, with the not so surprising news that movies winning Oscar awards this past weekend saw a massive uptick in unauthorized access, a simple question needs to be asked: Why won't the Academy of Motion Pictures Arts and Sciences, the organization behind the Oscars, step up and take responsibility for its award show is clearly contributing to a massive uptick in infringement?
Perhaps it's not much of a surprise, but the day after the Oscar award ceremony the winning films are in high demand among pirates. The number of people sharing "12 Years A Slave" via BitTorrent tripled, and the number of "Gravity" downloads more than doubled.
With 7 Oscars Gravity was the big winner at the Academy Awards ceremony on Sunday evening. However, the Oscar for the best motion picture went to 12 years a Slave.
Obviously, I'm joking about my question above, but if the MPAAs of the world are going to run around blaming Google when the link to infringement there is tenuous at best, then shouldn't they be much more concerned with something like the Oscars, where the link between the event and infringement is so much more pronounced?
Of course, the proper response to both issues is that none of this matters if the movie studios put in place better business models that allowed them to capture revenue from the interest in those films, in a manner that viewers would most like, rather than leaving it open to alternative paths. But, apparently that's too difficult.
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Posted on Techdirt - 5 March 2014 @ 10:20am
Well, well, well. We were about to put up the post below, describing the arguments that Barrett Brown's lawyers filed about why the criminal charges against him for sharing a link (which they claimed was trafficking in stolen credit card details) were completely bogus... and it appears that the DOJ itself was convinced. Just hours after Brown's lawyers filed their comprehensive argument, the DOJ has filed a motion to dismiss the criminal charges that stem from the cutting and pasting of the link. The other charges, concerning threatening acts (described below) and "obstruction of justice" (for hiding his laptop in a cabinet) remain, meaning that he is still facing significant jail time. But the core charge, concerning cutting and pasting a link, is now being dismissed. Of course, it's still a travesty that the DOJ ever included that in the indictment in the first place.
Our original post, about Brown's now obsolete filing is below:
We've covered the deeply troubling case of Barrett Brown
before. The DOJ has been working overtime to lock up Brown, whose main "crime" appears to have been taking a link that was publicly available that pointed to documents taken by members of Anonymous from the consulting/media company Stratfor, and pasting that link into an online chat. Brown did not hack Stratfor. Instead, he was working on his ongoing project to dig into the various documents leaked via Anonymous for journalistic purposes. While Brown's case was initially messy due to some ill-advised public statements by Brown
(in which he ranted publicly about law enforcement, to the point of threatening to shoot those who came after him), when you dig into the fundamentals of the case, there's not much there other than taking that publicly available link and pasting it into a chat room. The government is claiming that since the documents from Stratfor included credit card info, Brown's copy/paste was the equivalent of trafficking in stolen credit cards. Think about that for a second.
Brown's legal team has now filed a motion asking the court to dismiss the key claims
concerning the copy pasting of the link, which underpin pretty much the entire case. This is an issue that is important to anyone who believes both in the freedom of the press as well as the idea that merely sharing a link shouldn't make one liable (especially criminally liable) for what's in the content that's being linked to. The filing makes three basic arguments.
First, it notes that merely sharing a link clearly does not meet the standard of a criminal act under the law that Brown is being charged under, with the key question being whether merely pasting a link is "transferring" ... "authentication features."
As a matter of pleading, the Indictment is fatally flawed because (1) it fails to allege
an essential element—“the transfer of authentication features”—altogether, and (2) it fails to allege that Mr. Brown “transferred” anything other than a hyperlink. Instead, the government claims that Mr. Brown violated the statute by republishing a (publicly available) hyperlink which caused a (publicly available) file to be made “available to others online.” However, as shown
in POINT I, the government’s theory of the case fails to satisfy any valid construction of the charging statutes.
Second, the filing notes that even if the court actually believes that merely copying and pasting a publicly available link is "the transfer of authentication features" under the law, then that law clearly violates the First Amendment:
First, Mr. Brown is alleged to have engaged in pure speech, not merely conduct with expressive elements. The act of republishing a hyperlink is unquestionably an act of pure communication and expression. Thus, applying Section 1028 to Mr. Brown’s republication of a hyperlink is a substantial burden on his right to free speech. Pure speech also warrants the highest protection, and laws burdening pure speech must face heightened scrutiny. Only a “‘need... of the highest order’” can justify “a regulation of pure speech.”....
Second, Mr. Brown’s speech (by republishing the hyperlink) addressed political issues—namely the uncovering of improprieties within
the private intelligence contracting industry. As such, it is entitled to the First Amendment’s highest protection. “[L]awful political speech [is] at the core of what the First Amendment is designed to protect.” ....
Third, Mr. Brown’s speech (by republishing the hyperlink) was part of his routine press
activity: gathering, disseminating and publishing information about the Stratfor hack and, more
generally, private intelligence contractors.
If the court still
isn't convinced, Brown's lawyers offer up a third argument, noting that even if copying and pasting the link is covered by the specific law and
if pasting a link isn't protected by the First Amendment (as it clearly should be), then Brown's lawyers point out that the law in question, 18 USC 1028
is "unconstitutionally vague on their face" and "unconstitutionally overbroad and chills speech in violation of the First Amendment."
This is going to be an important case to follow. In the past whenever we've covered Brown, we've heard from some people who had personal run-ins with Brown and didn't like him, as if that means that his legal case isn't important and the legal issues should be overlooked. We disagree. No matter what people think of Brown, the key legal issues in this case are vitally important in an era when federal prosecutors are piling on excessive charges against people they don't like and, even worse, when there has been a ratcheting up of rhetoric
against journalists reporting on leaked information. Some of the most important cases you will see involve people that you probably wouldn't like very much in person -- but that matters little when it comes to the importance of the underlying legal points and the wider impact they may have. In fact, it makes the issues more important
, because once the precedent is set, they can be used against people you do
like in the future.
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Posted on Techdirt - 5 March 2014 @ 9:17am
Earlier today we covered reports of the CIA spying on the Senate Intelligence Committee as it tried to prevent the committee from releasing a supposedly "devastating" report about the CIA's torture program. That was based on a NY Times article. It appears that reporters at McClatchy were digging into the same issue and rushed out their version, which includes more details, including the fact that the CIA's inspector general has already asked the DOJ to investigate the situation.
Also, the McClatchy report ties this spying by the CIA back to some questions that Senators Ron Wyden and Mark Udall had asked John Brennan back in January. We had written about it at the time, noting that the two were clearly hinting at something having to do with the CIA spying on Americans, but it wasn't entirely clear where the questions were coming from. Reading the questions now, in light of the report of what the CIA was doing, makes the story a hell of a lot clearer. Here was Wyden's exchange with Brennan, concerning whether or not the CFAA -- the federal "anti-hacking" law -- applies to the CIA itself:
Wyden: Does the federal Computer Fraud and Abuse Act apply to the CIA?
Brennan: I would have to look into what that act actually calls for and its applicability to CIA’s authorities. I’ll be happy to get back to you, Senator, on that.
Wyden: How long would that take?
Brennan: I’ll be happy to get back to you as soon as possible but certainly no longer than–
Wyden: A week?
Brennan: I think that I could get that back to you, yes.
We had thought it was a slightly odd question, since the CFAA clearly states
that it "does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States." But, that's because we figured that Wyden must be talking about how the CIA was running an "authorized investigation." However, if it was illegally examining the Senate Intelligence Committee staffers' computers, that clause almost certainly doesn't apply -- meaning that the CFAA certainly could
We've put a request to find out if Brennan ever did get back to Senator Wyden. Update
: Brennan did reply
and admitted that, yes, the CFAA does
apply to the CIA, which may explain why the DOJ is now involved in this issue....
Then there's Senator Mark Udall's question to Brennan, which we assumed was connected to Wyden's. Again, in light of the new revelations, that seems likely to be the case as well:
Udall: I want to be able to reassure the American people that the CIA and the Director understand the limits of its authorities. We are all aware of Executive Order 12333. That order prohibits the CIA from engaging in domestic spying and searches of US citizens within our borders. Can you assure the Committee that the CIA does not conduct such domestic spying and searches?
Brennan: I can assure the Committee that the CIA follows the letter and spirit of the law in terms of what CIA’s authorities are, in terms of its responsibilities to collect intelligence that will keep this country safe. Yes Senator, I do.
I guess he meant "except and until we're scared shitless that you're going to expose how ridiculous, useless and illegal our torture program was."
The McClatchy report also details how the CIA accomplished this. Apparently, it had insisted that the Intelligence Committee staffers who were investigating the torture program had to work on computers at the CIA's headquarters
, to make sure that classified information didn't leave the building:
The committee determined earlier this year that the CIA monitored computers – in possible violation of an agreement against doing so – that the agency had provided to intelligence committee staff in a secure room at CIA headquarters that the agency insisted they use to review millions of pages of top-secret reports, cables and other documents, according to people with knowledge.
I have to imagine that if you're folks at the CIA, knowing that the computers were in the same damn building, it was just too damn tempting not to go spy on them. After all, the situation was that the CIA had this internal study, which is apparently also fairly devastating and (worse) which showed that the CIA lied to the Intelligence Committee. Furthermore, it appears that the CIA had worked hard to make sure the Intelligence Committee never saw that study. Then, suddenly, in December, Senator Udall claims to have that study -- and the CIA has no idea how he got it. Given who they are, it must have been just way too tempting not
to then spy on those computers in their own building. Of course, that further highlights a point we've been making for quite some time. Spies are human too -- and the temptations to abuse their power will always be there. The idea that they're immune to abuse, as put forth by some (including
Senate Intelligence boss Dianne Feinstein) is just laughable. And this story just further supports that claim.
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Posted on Techdirt - 5 March 2014 @ 8:25am
Perhaps two of the least liked organizations that we know of around here are ICE, also known as the Department of Homeland Security's 'Immigrations and Customs Enforcement' group -- recently subject to a sort of rebranding as Homeland Security Investigations, and GoDaddy. So here's a story of the two of them teaming up to censor a political website in Mexico that was a key site in protesting the current Mexican administration, as well as opposing attempts to criminalize protests.
On December 2nd, 2013, the site disappeared offline. The United States host, GoDaddy, suspended the domain with no prior notice. GoDaddy told its owners that the site was taken down "as part of an ongoing law enforcement investigation." The office in charge of this investigation was listed as "Special Agent Homeland Security Investigations, U.S. Embassy, Mexico City." (The contact email pointed to "ice.dhs.gov," implying that this agent was working as part of the Immigration and Customs Enforcement wing, who have been involved in curious domain name takedowns in the past.)
The site has now filed a lawsuit concerning the case, saying that the takedown "violates Mexico's legal protections for freedom of expression." However, there are other questions as well, which the good folks at EFF highlight:
Why did GoDaddy take down content with the excuse of it being part of a legal investigation, when the company did not request or relay any formal judicial documents or an official court order? And why is the U.S. Embassy acting as a relay for an unclear legal process that resulted in censorship within the United States?
It would be nice to get some answers to those questions. In exploring the issue, I just sent a Freedom of Information Act (FOIA) request to ICE for any communications between it and GoDaddy concerning this domain. I'll be sure to update everyone when and if any information is returned.
In the meantime, the folks at 1dmx.org have also put together a video about the takedown
, which you can view below:
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Posted on Techdirt - 5 March 2014 @ 5:16am
Oh, Keith Alexander, how we're going to miss your insane claims once you retire in a few weeks -- though, I'm sure that as you drift off into "retirement" only to be hired by some government contractor or lobbying organization at an insultingly high salary, that like your buddy Michael Hayden, you'll still be good for regular bullshit quotes to news organization. Still, while on the job, Alexander seems to want to go out with a bang, talking about how the UK was correct to detain Glenn Greenwald's partner David Miranda under an anti-terrorism law even though no one thinks he's a terrorist. However, even more troubling, is that Alexander, who has argued that the US government needs to figure out a way to silence reporters reporting on leaked documents, claims that there's an effort underway to create "media leaks legislation."
The general, who is due to retire in the next several weeks, said that the furore over Snowden’s surveillance revelations – which he referred to only as “media leaks” – was complicating his ability to get congressional support for a bill that would permit the NSA and the military Cyber Command he also helms to secretly communicate with private entities like banks about online data intrusions and attacks.
“We’ve got to handle media leaks first,” Alexander said.
“I think we are going to make headway over the next few weeks on media leaks. I am an optimist. I think if we make the right steps on the media leaks legislation, then cyber legislation will be a lot easier,” Alexander said.
In case you haven't been paying attention, Alexander has been pushing for years for laws like CISPA
, which would give the NSA much greater control over "cybersecurity" -- and specifically knock down barriers towards getting companies to share information with the NSA. Alexander and CISPA supporters have been spinning this entirely about "protecting" companies from online attackers, leaving out how it's really about giving the NSA more backdoors into private companies' networks.
But think about what Alexander is saying above. He's flat out admitting -- as many have noted -- that his pet cybersecurity bills are dead right now because of all of the Snowden leaks, showing just how abusive the NSA has been. And his answer
to that is not to fix the NSA, but to pass bills to stifle the free press from reporting on NSA efforts
, which he then thinks will allow the government to pass legislation like CISPA.
As the report in the Guardian notes, no one seems to have any idea what this "media leaks legislation" is going to entail, as nothing has yet been proposed, and there haven't even been any real rumors of anything until now. However, with James Clapper recently referring to reporters as accomplices
, and Rep. Mike Rogers making the out-of-left-field argument that reporters who are covering Snowden are thieves who traffic in stolen government property
, you can connect a few dots and guess at what's coming down the pike.
Alexander's own comments seem to similarly suggest that reporters "have no standing" to report on these issues, because they're not insiders, using the Miranda detention as a launching pad:
“Recently, what came out with the justices in the United Kingdom … they looked at what happened on Miranda and other things, and they said it’s interesting: journalists have no standing when it comes to national security issues. They don’t know how to weigh the fact of what they’re giving out and saying, is it in the nation’s interest to divulge this,”
Still, a bill to stifle investigative reporting is going to face stiff opposition, and even bringing up such a concept suggests that Alexander still has no clue what current public perception is like concerning the NSA's surveillance activities. Just the fact that he's suggesting a bill to silence a free press, and he specifically admits he wants to do so in order to get his troubling surveillance bill approved, shows the depths of Alexander's thinking on these issues. A free press? Not important. More power for the NSA to spy on everyone? That's the priority.
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Posted on Techdirt - 5 March 2014 @ 3:14am
While at times, it's appeared that the Senate Intelligence Committee, led by Dianne Feinstein, serves more to prop up the intelligence community than to handle oversight, it has actually clashed quite a bit with the CIA. We've discussed a few times how the Committee has been pushing to release a supposedly devastating 6,000 page report about the CIA's torture program, which cost taxpayers an equally astounding $40 million to produce. However, the CIA has been fighting hard to block the release of the report, arguing that it misrepresents the CIA's actions.
However, things are getting even more bizarre, as the NY Times is reporting that the CIA is now accused of spying on the Intelligence Committee and its staffers in its attempt to keep that report from being released.
The details are still a little cloudy, but in December, Senator Mark Udall revealed that the Senate Intelligence Committee had come across an internal CIA study that apparently corroborated the information that is in the big Senate report -- and which directly contradicted claims by the CIA to the Committee about how the report was inaccurate -- suggesting that, on top of everything else, the CIA lied to the Intelligence Committee. Udall quizzed CIA boss John Brennan about that internal report. And according to the NY Times, it appears that CIA folks freaked out that the Intelligence Committee somehow got access to that internal study, and responded the way the CIA knows best: by starting to spy on Intelligence Committee staffers:
The agency’s inspector general began the inquiry partly as a response to complaints from members of Congress that C.I.A. employees were improperly monitoring the work of staff members of the Senate Intelligence Committee, according to government officials with knowledge of the investigation.
The committee has spent several years working on a voluminous report about the detention and interrogation program, and according to one official interviewed in recent days, C.I.A. officers went as far as gaining access to computer networks used by the committee to carry out its investigation.
On Tuesday, Udall sent a strongly worded letter to President Obama
, pushing for the declassification and release of the big 6,300 page report, but also
that internal CIA study, which would highlight how the CIA lied. On top of that, he made an oblique reference to this spying activity by the CIA:
As you are aware, the CIA has recently taken unprecedented action against the Committee in relation to the internal CIA review, and I find these actions to be incredibly troubling for the Committee's oversight responsibilities and for our democracy. It is essential that the Committee be able to do its oversight work -- consistent with our constitutional principle of the separation of powers -- without the CIA posing impediments or obstacles as it is today.
In many ways, the idea that the CIA is directly spying on the Senate Committee charged with its own oversight is a bigger potential scandal than many of the Snowden NSA revelations so far. Even more importantly, it may finally
lead to Congress taking action against an out-of-control intelligence community.
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Posted on Techdirt - 4 March 2014 @ 7:38pm
In the past, we've noted just how complicated it is to file a petition to the Supreme Court to hear your case. Many of the rules seem designed to make it difficult and expensive. While that may be useful in lowering the number of crackpot filings, it still seems to go too far. It's especially difficult for "pro se" filings -- people who are representing themselves, rather than having a lawyer do it for them. While many pro se cases are disasters from the beginning (no need to mention the old joke about a "fool for a client"), sometimes they can get somewhere. Popehat alerts us to the news that the Supreme Court has agreed to hear a case ("granted cert," as they say) in Holt v. Hobbs, after the petitioner, a prisoner by the name of Gregory Holt, filed a handwritten petition.
The specific case involves a question of whether or not a prison's "no beards" policy violates Holt's religious freedom (he's Muslim, and wants to wear a trimmed beard for religious reasons). While there are plenty of stories of wacky pro se lawsuits from inmates
, in this case it appears that Holt has carefully researched the issues, the legal precedents, and how to file a petition for the Supreme Court. While the Court did limit the questions the court will consider to just one basic one, it's still impressive to see a handwritten pro se case get heard by the Supreme Court. Of course, now I'm wondering how Holt will handle the oral arguments since he's in prison.
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Posted on Techdirt - 4 March 2014 @ 12:55pm
As the Aereo case is set to be heard by the Supreme Court in April, there have been a flurry of amicus briefs filed on both sides. It's disappointing, but not too surprising, to see that the official position of the administration is to side with the broadcasters over Aereo, arguing effectively that the length of a cord changes the copyright calculation. This position goes against every Aereo court ruling to date, except for one odd ruling in Utah. That the US government would take this position isn't too surprising. After all, the Solicitor General of the US (whose office prepared this brief) is Donald Verrilli -- who probably would have been representing the broadcasters in this case if it had happened a few years ago. For years, he was Hollywood's go to litigator for their big copyright cases, including the infamous Grokster case, in which he convinced the Supreme Court to create a new "inducement" standard for infringement. Technically, Verrilli "recused" himself from this filing, but what were the chances that the folks who report to him were going to file a brief that sided against the organization most likely to employ Verrilli once he leaves government service?
The key issue in the case is whether or not Aereo is retransmitting to the public. As we've explained multiple times, Aereo's setup is technologically insane, but legally sensible, given just how stupid copyright law is today. Because it's recognized as legal that you can place shift legally accessible TV (a la a Slingbox) and that you can watch over-the-air TV via a personal antenna (duh), Aereo has set up "individual antennas" for each customer, connected to the equivalent of a Slingbox, such that you can "subscribe" and get access to over-the-air channels. It's technically no different than you setting up an antenna and Slingbox in your home, except that the distance of the cable between the antenna/Slingbox combo and your TV is much longer with Aereo (across the internet) than in your home. However, broadcasters and other supporters of them (now including the US government) argue that this longer cable somehow, magically, turns this individual antenna into a public broadcast for which Aereo should be expected to pay ridiculously steep retransmission fees.
The arguments put forth by the US government are basically a carbon copy of what the broadcasters are saying. They completely reject the length of the cable argument by basically saying that, what really matters, is how this might undermine the retransmission fees broadcasters get. Specifically, they say that it doesn't matter that people at home can create their own Aereo legally, what matters more is that Aereo looks too much like cable retransmission:
Respondent observes that, from the subscriber's perspective, respondent's service provides substantially the same functionality that consumers could obtain by purchasing equipment for their homes. In enacting the 1976 Copyright Act amendments, however, Congress overrode decisions of this Court that drew on the same analogy. In applying the Copyright Act in its current form, the more important functional equivalence is between respondent and the cable systems that the 1976 Congress brought within the Copyright Act's purview.
But that totally and completely ignores some pretty significant differences, especially around how Aereo has an individual antenna for each user, as well as making sure that there's an individual copy made. That was not
the case at all with cable systems.
While this filing is careful to state that it is not trying to undermine the important precedent
set in the Cablevision case (which said a remote DVR controlled by a cable company is legal), which was a key reason why the lower courts sided with Aereo, it's important to note that back when the Cablevision case was up for appeal to the Supreme Court, Verrilli's predecessor sided with innovation
over claiming infringement. It's just now that the Solicitor General who has a long history of representing Hollywood is in control, that the administration seems to be happy to side with copyright maximalism, over innovation. The one potential saving grace: the prior solicitor general who sided with Cablevision and against the broadcasters? Elena Kagan... is now a Justice on the Supreme Court.
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