One of the most important laws that has enabled innovation on the internet to thrive is Section 230 of the CDA. We've written about it many times. What it says is fairly basic: a website cannot be held liable for actions by its users. There are a few exceptions and caveats, but that's the basic premise. And it makes perfect common sense -- so much so that it's almost amazing that you need a law to say it. But, we do, because when grandstanding and moral panics come around, politicians and people with pitchforks love to blame third parties and intermediaries as if they're the problem. And, having intermediaries be liable for how users are using their services creates all sorts of problems. It makes it that much more difficult for companies to innovate, because they're taking on tremendous potential liability if anyone misuses their service. So, they then either don't develop an open service, or they have to invest heavily in services to filter/monitor/block any potential misdeeds (which also will lead to blocking legitimate uses as well).
Of course, the grandstanding politicians who jump on moral panics absolutely hate Section 230. They always have. As we've discussed in detail over the years, the type of politician that focuses on grandstanding on moral panics the most is always a state attorney general. They make grand public pronouncements against companies they don't like, often with absolutely no legal basis, and then browbeat them into a "settlement" just so the companies can stop having to deal with the AGs lying about them in public all the time. Chris Tolles, the CEO of Topix, gave a great detailed explanation of how various AGs ganged up on him, basically issuing a press release accusing him of doing horrible things, totally misrepresenting what the company did, but without naming a single law they violated (because they hadn't). In response, Tolles did what most people would think you should do in that case: explain to the AGs what Topix actually did, and why it was perfectly reasonable. In response, the AGs (more of them this time) issued another press release, taking direct statements that Tolles had told them further out of context, and making the company sound even worse. Eventually he "settled" because fighting them was costly.
Of course, the lack of a legal basis often stymies these attempts, and a big thing that gets in the way: Section 230. So it should come as little surprise, as noted by Eric Goldman today, that the states Attorneys General are planning to ask Congress for an exemption to Section 230 when (you guessed it) states AGs bring a case. He heard it today while on a panel at the annual meeting of the National Association of Attorneys General, where he was on a panel about Section 230. During the discussion, Goldman says that an unnamed Attorney General (he didn't catch which one) made a comment about the plan.
Section 230 has been under attack for some time, but going to Congress to try to make that kind of exception would be a huge disaster. It would allow these AGs to continue with bogus grandstanding campaigns, but actually with the ability to create massive problems for companies actually trying to offer usable, open platforms for users. Nearly every company would need to proactively filter any kind of user generated content, and would be at risk of tremendous legal liability if "bad stuff" got through. This would be a huge attack on internet innovation, all so some ambitious politicians can try to make more headlines by attacking tech companies. The state Attorney General position is considered the classic "stepping stone" position, which many politicians use to run for Governor or Senator in their state, and one way to help with the campaign is to get lots of headlines around "protecting the children" and whatnot. So, basically, these politicians would be breaking one of the key elements that has allowed internet innovation to thrive, to help them get a few more headlines in their quest for higher office.
Google appears to be stepping it up a notch in trying to fight back against the claims that it is somehow opening up its system to the NSA or other law enforcement folks. As you now know well, one of the leaks from Ed Snowden a few weeks ago was about a system called PRISM, which is associated with how tech companies provide information to the federal government in response to FISA court orders. The initial reports, claiming that the NSA had full direct access to servers and could see what people were doing in real time, appear to have been extremely overblown, as it now seems clear that this was much more narrow. But there's still a big question of how narrow. Google sent an open letter to the DOJ, asking for permission to reveal basic numbers on how many FISA requests they receive and how many people have had information passed along to the government under the program. The government then gave "permission" in a way that actually further obfuscated things, only allowing the release of numbers when combined with all sorts of other government requests.
Nothing in this Motion is intended to confirm or deny that Google has received any order or orders issued by this Court.
Of course, that might lead some to suggest that Google can't actually have standing, but there's an interesting legal argument here. Basically, Google is arguing that the perception that it's opened up its network to the NSA, as suggested in various reports, and which it cannot refute fully without revealing some details of FISA orders it has received, has caused it harm.
Google's reputation and business has been harmed by the false or misleading reports in
the media, and Google's users are concerned by the allegations. Google must respond to such
claims with more than generalities. Moreover, these are matters of significant weight and
importance, and transparency is critical to advancing public debate in a thoughtful and
Given that, Google is seeking a declaratory judgment from the court that it has a First Amendment right to publish the total number of FISA requests it receives and the total number of users associated with those requests, though obviously not anything more. I'm sure the government will come back with all sorts of excuses as to why this is horrible, but it certainly presents an interesting legal challenge to the FISA court's gag orders.
Greenwald’s crime is violating 18 USC § 798, which makes it a criminal act to publish classified information revealing government cryptography or communications intelligence.
The law is absolutely clear. It states: “Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information— (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or (3) concerning the communication intelligence activities of the United States or any foreign government; or (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes— Shall be fined under this title or imprisoned not more than ten years, or both.”
Of course, there's also that fancy First Amendment, which Thiessen would prefer to ignore:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
It would appear that 18 USC 798 is exactly what is forbidden by the First Amendment. It is a law abridging the freedom of the press and freedom of speech. Defenders of Thiessen and the NSA will point out that there are lots of times the courts have said this is okay, but I'm not sure what kind of defense that is, other than nitpicking why the First Amendment is something to ignore. Personally, I think that the First Amendment is fairly important, and worry about any laws that appear to push back on the basic concept of it.
The US Chamber of Commerce, the giant lobbying organization who led the fight for SOPA/PIPA, is apparently so invested in "must have stronger copyright laws" that it doesn't even bother making sense any more. It's released a bizarre statement claiming that India needs stronger copyright laws, because Bollywood is so successful. Right upfront, it notes how successful things have been:
You'd think those are signs that copyright law was working (largest film industry in the world, largest employment sectors, over 1,000 films produced annually -- about double Hollywood) and that this would imply that whatever level of copyright there is in India -- which is supposed to be an incentive to creativity -- was doing a decent job. But, no, apparently it's all broken.
The government, however, must improve national intellectual property (IP) laws and enforcement if it is going to seize on this opportunity and gain recognition in the global market and further empower local creators.
Hmm. Wait, you just said that it's the world's largest film industry and an unqualified success. So, why does it need to improve those laws and enforcement?
Specifically, Indian copyright law is unclear with the 2012 Copyright Act amendments further complicating and contradicting previous rule of law. Furthermore, the 2012 Act provides for broad exceptions that are incompatible with international norms. Also measuring relatively loware enforcement efforts, which are weak in application and don’t provide widely available civil and procedural remedies for copyright infringement.
And, yet, this laxity incentivized the creation of nearly double the films that Hollywood produces. Perhaps -- and I'm just suggesting things here -- the "international norms" and the higher levels of enforcement are holding back the industries elsewhere. If anything, this report seems to suggest that other countries should move towards broad exceptions, since it appears to have been quite successful in India.
Furthermore, much of the paper seems to suggest that India needs to fix its copyright laws to embrace the international opportunity for its films -- but that (again) makes no sense. India's IP laws don't apply outside of India, so they have no impact on the international opportunities, which are governed by other IP laws. And, again, if the industry is doing great in India (with little enforcement and greater exceptions), doesn't this indicate that India should push for the same elsewhere to better embrace that international opportunity?
It's quite a world in which the US Chamber of Commerce seems to be arguing that an example of a success story should lead to that successful model emulating less successful markets. I don't know how much money the MPAA pays the US Chamber of Commerce for these kinds of pieces, but it's not getting its money's worth.
We recently mentioned that Senator Lindsey Graham said he was happy that the NSA was collecting the data on his calls, because he doesn't speak to terrorists. Of course, that's an incredibly ignorant statement in many, many ways. However, Senator Graham is continuing to make very silly statements about the NSA surveillance program. During an appearance on Meet the Press, Graham defended the program because, he explained, we should be tracking terrorists:
"I believe we should be listening to terrorists, known terrorist emails, following their emails and following their phone calls. And if they're emailing somebody and the United States or calling a number in the United States, I would like to get a judge's position to monitor that phone call," Graham said on "Meet the Press" on NBC. "If we don't do that, another attack on our homeland is very likely."
That's nice and all... but the things he discussed -- listening to terrorists, and getting info on their emails -- have nothing to do with the new programs that have been revealed. That kind of stuff was possible well before all of these new things came along. The NSA has long been able to do surveillance on such things. And, law enforcement has been able to go to a judge and get a wiretap order on phone calls. But that's not what has everyone concerned: it's the fact that this program collects data on everyone. It's not just collecting data on terrorists, and much of it doesn't require having to go to a judge to monitor specific information. Rather, broad collections of data are being pulled, so that the NSA can later go through them.
It's shameful that Senator Graham would so misrepresent what this debate is about. Either he doesn't understand it (which is horrifying) or he's deliberately misleading the public about it (which is worse).
In a hearing before the House Intelligence Committee today, NSA boss Keith Alexander once again claimed that the big NSA surveillance programs had stopped terrorist attacks. Rather than the "dozens" he stated last week, today it became "more than 50 potential terrorist events." Of course, as is typical, both the questions (asked by NSA supporters) and the answers were pretty carefully choreographed. Digging in, you find out that Alexander was specifically referring to PRISM, and not the (much more worrisome) dragnet of all phone records. On that program, there doesn't appear to be any actual data on what it was used for. On top of that, when asked about whether or not these programs were essential or necessary to stopping those attacks, as compared to other programs, no one would say that they were necessary or essential.
The other careful choice of words was people would ask about whether or not phone calls had been recorded under these particular programs, but not other programs. When Deputy Attorney General James Cole was specifically asked about other programs, he responded that that was classified information. Make of that what you will. Cole also claimed that the program to collect all phone numbers "is not a program that's off the books, that's been hidden away." Of course, if that were true, why are so many people -- including politicians who supposedly have oversight over the program -- so surprised about it? How come there has been no reporting on it? How come, when asked about it, Director of National Intelligence, James Clapper said "no" to whether or not information was collected on millions of Americans? It certainly sounds "hidden away."
Meanwhile, the really shameful performance came from Rep. Mike Rogers, who led the hearing, who again claimed that Ed Snowden both was lying and that his revelations weakened American security by revealing secrets to enemies. And then he pulled out this whopper:
"It is at times like these when our enemies within become almost as damaging as the enemies on the outside. It is critically important to protect sources and methods so we aren't giving the enemy our playbook."
So, again, no one understands the programs revealed, because Snowden's leaked info is wrong... and now our enemies know what we're doing... and Snowden is "almost as damaging" as those who wish to attack us. None of that makes any sense at all.
In the end, though, it's more of the same. Even if we could say that these programs were useful in stopping a potential attack, what we don't know is if the program was necessary to do so. We don't know what sort of collateral damage was caused. We don't know if traditional methods of investigation would have worked just as well, with no violations of privacy for Americans. We're just being told on faith to "trust the NSA."
One of the key points that officials have been making in defense of the NSA surveillance is this idea that even if they're collecting all this data on your communications, they can't actually do anything with it, because they keep it safely locked up in a lockbox, and only check it if they have some bit of data they want to find out about later. That was the crux of the claims made by former NSA/CIA boss Michael Hayden who seemed to think that "data mining" and "asking the database questions" were two different things. However, as William Saletan is pointing out at Slate, the lockbox is a lie. There is no lockbox. He quotes officials including NSA boss Keith Alexander and Congress's number one NSA apologist, Rep. Mike Rogers, both suggesting strongly that even if the NSA is collecting all your data, it's safe because it can't be explored without a "very specific court-ordered approval process."
Except... what they conveniently left out, is that the court doesn't review any of this. It appears that it probably set some very basic rules up front when it gave the okay on collecting the data, which no one else gets to know about, and no one carefully checks up on the NSA later to see if they really follow any of those rules. What the claims most certainly do not mean, is that the NSA needs to get a court order to search the database. Senator Dianne Feinstein admitted as much directly:
Q: Is a court order necessary to query the metadata database? Feinstein: Is a court order necessary to query— Q: The metadata database under 215. An individual court order for each query. Feinstein: A court order—well, I don't know what you mean by a query. A court order— Q: To search the database. Feinstein: To search the database, you have to have reasonable, articulable cause— Q: Certified by a judge? Feinstein: —to believe that that individual is connected to a terrorist group. You cannot— Q: But does that have to be determined by a judge? Feinstein: Could I answer? You may not like it, but I'll answer. Then you can query the numbers. The only numbers you have—there's no content. You have the name and the number called, whether it's one number or two numbers. That's all you have. Then you can get the numbers. If you want to collect content, then you get a court order. Q: So you don't need a court order for the query itself. Feinstein: That's my understanding.
And yet, as the article notes, most of the defenders of the program strongly imply otherwise, highlighting the "court-approved" process that people need to go through to query the database. But if there's no real oversight, and no court reviewing each query, then, as Saletan points out, there is no lockbox.
There's no lock on the lockbox.
That hasn't stopped current and former government officials from repeating the lockbox line. Yesterday Rogers used it again on Face the Nation. Dick Cheney, appearing on Fox News Sunday, backed him up. On Meet the Press, Michael Hayden, the guy who ran the NSA when it began collecting phone records, assured Rep. Bobby Scott, (D-Va.,) "The only way you can access the metadata is through a terrorist predicate." When Scott asked, "Where is that written?" Hayden replied: "It's in the court order." Really? Where's the court order? When is it applied, and how?
If the court isn't screening data requests, that leaves two possibilities. One is that nobody's screening them. The other is that some other, unknown entity is doing it in a way that nobody has explained. Either way, the answers we're getting are unacceptable. They betray privacy, public trust, and national security.
If there's no public standard, and no official oversight or review process, then the probability that the database is being abused approaches one very, very quickly.
We've already had a few posts discussing why the whole "if you've done nothing wrong, you've got nothing to hide" argument is bogus, but this weekend's edition of the radio show This American Life had a fantastic short section in which the host, Ira Glass, spoke to lawyers for detainees at Guantanamo Bay, who are all pretty certain that every one of their phone calls is being recorded and listened to. What's amazing is the emotional response you hear from most of these lawyers, who recognize that they can no longer comfortably speak freely to anyone on the phone ever again. The stories of them not being able to be emotional with their children when speaking to them on the phone, or in which their friends accuse them of being especially curt and officious whenever they call are somewhat heartbreaking.
These are the things that many people simply don't recognize about the psychological impact of a surveillance state. When you have no real downtime -- no time when you can be free from prying eyes, it messes with your brain in a really profound way. This short segment (just 8 minutes long) really highlights how much a little thing like the inability to ever speak to someone privately changes your entire way of speaking and communicating. As we seem to be drifting rapidly towards such a surveillance state, these are the issues that we should be thinking about and understanding. There may be certain benefits to being able to do widespread surveillance, but we should not and cannot ignore the costs.
This seems a bit wacky. MPAA boss Chris Dodd has been named the chairperson of the "advisory council" for "free speech week" in 2013. Now, I'm assuming that most people have no clue what "Free Speech Week" is, but it's supposed to be a "celebration" promoting the First Amendment. That's why it strikes me as completely ridiculous that Dodd would be put in charge of it. While the MPAA was a major proponent of the First Amendment a few decades ago (back when there were efforts to try to censor movies -- which saw the MPAA stepping in to create a self-censorship regime known as the movie rating system), Chris Dodd's contribution to the MPAA has been to push SOPA, a bill whose main purpose was directly in contrast to the First Amendment and free speech by setting up a system for internet censorship. As Constitutional scholar Laurence Tribe pointed out at the time:
The notice-and-termination procedure of Section 103(a) runs afoul of the “prior restraint” doctrine, because it delegates to a private party the power to suppress speech without prior notice and a judicial hearing. This provision of the bill would give complaining parties the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice accusing the site of being “dedicated to theft of U.S. property” – even if no court has actually found any infringement. The immunity provisions in the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately upon receipt. The Supreme Court has made clear that “only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression [and] only a procedure requiring a judicial determination suffices to impose a valid final restraint.” Freedman v. Maryland, 380 U.S. 51, 58 (1965). “[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976).
It seems rather ironic that someone who was the main person behind a bill designed to take away free speech rights would then be put in charge of "free speech week."
The latest to speak out against NSA surveillance is "every geek's uncle," Steve Wozniak, who explained that "this is not my America." The video is worth watching:
He makes a ton of great points about things that, when we were kids, we learned that the US did not do. And now, we do lots of them: spying on everyone, secret courts, secret prisons, etc.
When I was brought up, my dad taught me, other countries, when they got prisoners in a war, they tortured them. But we Americans didn't torture them.... And I was so proud of my country. And now I find out it's just the opposite. I just wish, all these things that I talk about with the Constitution -- which made us so good as people -- they're nothing. They were all dissolved with the Patriot Act. There are these laws that just sort of say we can secretly call anything terrorism and do anything we want.... And I read the Constitution, and I'm not even sure how all this stuff happened. It's so clear what the Constitution says. It's extremely clear in the Bill of Rights. One thing after another after another that got overturned. That's what a king does. A king just goes out and rounds anyone up, has them killed, put in secret prisons.
When I was brought up, we were told that Communist Russia was the ones that were going to kill us and bomb our country and all this. And Communist Russia was so bad because they followed their people, they snooped on them, they arrested them, they put them in secret prisons, they disappeared them. These kinds of things were part of Russia. We're getting more and more like that....
It's a bit hyperbolic, but more and more people are beginning to recognize how problematic the governments' actions have been of late.
So, over the weekend, the Washington Post revealed some of the code names for various NSA surveillance programs, including NUCLEON, MARINA and MAINWAY. Chris Soghoian has pointed out that a quick LinkedIn search for profiles of people in Maryland with codenames like MARINA and NUCLEON happen to turn up profiles like this one which appear to reveal more codenames:
+Skilled in the use of several Intelligence tools and resources: ANCHORY, AMHS, NUCLEON, TRAFFICTHIEF, ARCMAP, SIGNAV, COASTLINE, DISHFIRE, FASTSCOPE, OCTAVE/CONTRAOCTAVE, PINWALE, UTT, WEBCANDID, MICHIGAN, PLUS, ASSOCIATION, MAINWAY, FASCIA, OCTSKYWARD, INTELINK, METRICS, BANYAN, MARINA
TRAFFICTHIEF, eh? WEBCANDID? Hmm... Apparently, NSA employees don't realize that information they post online can be revealed.
Japan recently agreed to join in the negotiations for the Trans Pacific Partnership (TPP) agreement that has many significant problems, which we've been highlighting for years. Apparently, Japan's Prime Minister, Shinzo Abe, has no interest in listening to those concerns. Some TPP protestors showed up at an Abe event in Tokyo, and his response was to mock and belittle them and their concerns on Facebook.
“I was touched that so many of you came to Shibuya,” wrote the prime minister, whose frequent Facebook posts cover everything from a college reunion to a foreign policy debate. “There were some leftists with microphones and drums in the audience who tried hard, with hatred, to interrupt our speeches. But I must say that gave us fight. Thank You. A child in front laughed them off, saying ‘Quiet!’ Admirable. Please remember that those are representatives of embarrassing adults.”
The Facebook post has since been deleted, but it raises serious concerns about how seriously the Japanese government will listen to the widespread concerns about the excessive nature of the TPP. Making things even more bizarre, when a reporter asked a spokesperson from Abe's office about why the post had been taken down, the person said it hadn't and was still available on his own computer.
Late Sunday, the Guardian revealed that during the G20 summit in London in 2009, the UK government made sure to intercept phone calls and internet communications of foreign politicians and officials who were attending. As the article notes, many have suspected this kind of activity, but this is the first time that evidence has been presented of it happening and that it was organized by GCHQ (the UK equivalent of the NSA). And, of course, this had nothing to do with "stopping terrorism" but was about "the more mundane purpose of securing an advantage in meetings." The listed activities:
Setting up internet cafes where they used an email interception programme and key-logging software to spy on delegates' use of computers;
Penetrating the security on delegates' BlackBerrys to monitor their email messages and phone calls;
Supplying 45 analysts with a live round-the-clock summary of who was phoning who at the summit;
Targeting the Turkish finance minister and possibly 15 others in his party;
Receiving reports from an NSA attempt to eavesdrop on the Russian leader, Dmitry Medvedev, as his phone calls passed through satellite links to Moscow.
Of course, this seems like traditional espionage that has gone on for ages, which by itself is less troubling to me. What's more revealing is some of the methods -- such as the ability to get around the security on the BlackBerry. As for the "internet cafe" -- who in their right mind would use such a thing, knowing that it was almost certainly being monitored?
We've pointed out before how stupid it was for people like Jammie Thomas and Joel Tenenbaum to fight the copyright infringement lawsuits launched against them. In Tenenbaum's case it was monumentally stupid, because he flat out lied to the court and then had to admit it in court. You don't do that. Lying to a court is not only stupid in general, but it completely taints any underlying issues that may actually be important, and predisposes the judge against you. There are often good reasons to fight back against copyright lawsuits, but if you actually infringed and then lied about it that's a really bad reason to fight back.
Unfortunately, it looks like there was a similar situation in one of the big copyright trolling cases last week. Last fall, we wrote about how Judge Michael Baylson decided to force a group of Malibu Media copyright trolling cases to trial, after it became apparent that Malibu Media didn't seem particularly interested in going through with a trial (similar to most copyright trolls). Unfortunately, it then came out that one of the "selected" defendants lied, committing perjury, and (on top of that) destroyed the evidence. This is just ridiculously stupid.
In the end, all of the defendants "settled," but the case still had a sort of sham trial. Yes, there was no reason for the trial, since everyone basically settled, but the lawyer for Malibu, Keith Lipscomb, asked the court to enter a "final judgment." That basically allowed the judge to rail against the stupid defendant who lied and destroyed evidence (who deserves to be yelled at by the court for his actions), but it also now allows Lipscomb to use the "judgment" of $112,500 to threaten many others who are not in the same situation as the guy who lost. There's a good summary from lawyer John Whitaker, who found the whole thing baffling.
In sum, all of the defendants stipulated to liability before the trial. Plaintiff had already agreed not to seek damages against two of the three defendants. The third defendant stipulated to liability. Malibu Media and the third defendant asked the judge to enter a finding on damages, even though they had already agreed on what he would pay.
So there was absolutely nothing at issue during the trial. Not liability. Not damages. Nothing.
Then there was the 'trial' itself. The only party to actually put on a witness was Malibu Media. None of the defendants even cross-examined a witness. Really?
What kind of trial is it where the defendant doesn't challenge any of the plaintiff's witnesses or even put on any witnesses of its own? A sham, that's what.
So why was there even a trial? I have no idea.
Well, actually, he points out, everyone knows why:
It was all about Malibu Media trying to get Judge Baylson to write a document that Malibu Media could use in all its demand letters from now on. I'll point out that, to his credit, Judge Baylson had to tell Lipscomb numerous times that he would not be Lipscomb's advertising spokesman. I think what he said was he wasn't interested in writing anything that was "commercially valuable" to Malibu Media.
If the goal wasn't to be "commercially valuable" to Malibu, it looks like it failed. In the aftermath of the ruling, Malibu Media filed dozens of new trolling lawsuits. Yes, the defendant deserved to lose. Infringing by downloading the work, then lying about it to the court and destroying evidence should be punished. But it's a shame that all it's doing in this case is enabling more copyright trolling shakedown behavior.
Bad cases make bad law, and this was clearly a bad case, which was made even worse by the actions of that particular defendant. I'm not saying he should have gotten off free, but the end result here is going to lead many others to feel obligated to pay up when they probably shouldn't.
This will come as no surprise to anyone, but NSA boss General Keith Alexander is pestering Congress for a new law which would provide blanket immunity for companies helping the NSA collect data on everyone.
Gen. Keith Alexander has petitioned Capitol Hill for months to give Internet service providers and other firms new cover from lawsuits when they rely on government data to thwart emerging cyberthreats.
Basically, he's arguing that if the NSA orders companies to do something illegal, the companies shouldn't be liable for that. There's some logic behind that, because when you get an order from the government, you often feel compelled to obey. But, of course, the reality is that this will give blanket cover for companies voluntarily violating all sorts of privacy laws in giving the NSA data. And, theoretically you could then sue the government over those violations, but we've seen in the past how well that goes over. First, the courts won't give you "standing" if you can't prove absolutely that your data was included. Then, if you get past that hurdle, the government will claim "national security" or sovereign immunity to try to get out of the case. And, even if it gets past all of that, and you win against the government, the feds shrug their shoulders and say "now what are you going to do?"
And, of course, rather than narrowly target this immunity, it appears that Alexander would like it as broad as possible.
One former White House aide told POLITICO that Alexander has been asking members of Congress for some time to adopt bill language on countermeasures that’s “as ill-defined as possible” — with the goal of giving the Pentagon great flexibility in taking action alongside Internet providers. Telecom companies, the former aide said, also have been asking Alexander for those very legal protections.
Given the revelations of the past few weeks, this seems like the exact wrong direction for Congress to be heading. We should want companies to push back against overaggressive demands from the government for information. Giving them blanket immunity would be a huge mistake and only enable greater privacy violations.
"This in my view violates the constitution. The fourth amendment and the first amendment – and the fourth amendment language is crystal clear," he said. "It is not acceptable to have a secret interpretation of a law that goes far beyond any reasonable reading of either the law or the constitution and then classify as top secret what the actual law is."
Gore added: "This is not right."
I keep seeing people trying to defend the program due to a single Supreme Court ruling -- Smith v. Maryland -- a 1979 case that gave rise to the "third party doctrine," which argued that if you give data to a third party, you no longer have any expectation of privacy in that data. Of course, the situation specific to that case was exceptionally different and took place in a very different world. By any plain meaning of the phrase "expectation of privacy" people certainly do not think that they're giving up their expectation of privacy just because they use an online service.
What's amazing is that the 4th Amendment is not that complicated, and certainly does not put up some giant barrier for law enforcement. All they have to do is show probable cause and get a warrant. All of this freaking out is showing that they know that they can't show probable cause to get all this data. And that should ring lots and lots of alarm bells. Thankfully, some principled politicians are seeing this and understanding the massive problems with a surveillance state.
We already discussed how bizarre it is to see NSA defenders trying to claim both that this story is nothing new and a huge danger to America, but that kind of thing continues. Witness two of Congress' biggest NSA defenders, Rep. Mike Rogers and Rep. Dutch Ruppersberger -- the two sponsors of CISPA -- try to claim that Snowden was both lying and exposing secrets that harm us all.
"He was lying," Rogers said. "He clearly has over-inflated his position, he has over-inflated his access and he's even over-inflated what the actually technology of the programs would allow one to do. It's impossible for him to do what he was saying he could do."
"He's done tremendous damage to the country where he was born and raised and educated," Ruppersberger said.
So, um, if he's lying and the information he leaked is not true, then how is he doing "tremendous damage" to the country? I guess the "damage" could be to our reputation as a freedom loving country that respects the 4th Amendment and basic rights to privacy, but that doesn't seem to be what Ruppersberger is claiming.
"Some people are saying that he's a hero. He's broken the law," Ruppersberger said. "We have laws in the United States for whistle-blowers, for people that think there's an injustice being done. All he had to do was raise his hand. ... Under the whistle-blower law, he is protected. Yet he chose to go to China."
Er... except we've seen exactly what happens to NSA whistleblowers who go that route. They get completely ignored and then charged with trumped up claims of leaking secrets anyway, and threatened with over 30 years in jail. It's pretty clear that just "raising his hand" doesn't work and actually puts you even more at risk. Furthermore, the current "whistle-blower" law is rarely used and even more rarely successful, with whistleblowers almost never winning their cases.
"I hope that we don't decide that our national security interests are going to be determined by a high-school dropout who had a whole series of both academic troubles and employment troubles," Rogers said.
Yup. The best Rogers can do is try to smear the guy, rather than respond to what he actually leaked, which is apparently all lies, but threatens us all. Sorry, Rogers, but the story doesn't hold up.
Retired federal judge Nancy Gertner, who has appeared in stories here for years (she was the original judge in the Tenenbaum trial, and also spoke out about how US attorney Carmen Ortiz handled the Aaron Swartz case), has now highlighted a very important point about all of the NSA surveillance stories: at the heart of much of it is the secretive FISA court, and that court should not be trusted.
As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced.
Two reasons: One … The Fourth Amendment frameworks have been substantially diluted in the ordinary police case. One can only imagine what the dilution is in a national security setting. Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me. Enough said....
It’s an anointment process. It’s not a selection process. But you know, it’s not boat rockers. So you have a [federal] bench which is way more conservative than before. This is a subset of that. And it’s a subset of that who are operating under privacy, confidentiality, and national security. To suggest that there is meaningful review it seems to me is an illusion.
The "judges" on the FISA Court are appointed by the Chief Justice of the Supreme Court. And that's it. As we were just discussing, they hear only one side of a case, and their rulings are kept secret. When you have a party that only hears one side of things and never, ever has to be subject to public review or criticism of decisions, take a wild guess what happens? You get a court that is judicially captured, and sides very much with the intelligence infrastructure that it spends most of its time dealing with.
On top of that, there's a very big question: why are these rulings secret? Something like an interpretation of the law should never, ever be considered secret. Yes, it makes sense to keep something secret if it exposes direct information on a specific case that is being worked on, but basic rulings about what the law actually says should never be. But they are, because the FISA court can do that sort of thing. And that's a huge problem. Late last year, we had a post linking to a story by another former judge, Andrew Napolitano, explaining why the entire FISA court was almost certainly unconstitutional:
The constitutional standard for all search warrants is probable cause of crime. FISA, however, established a new, different and lesser standard -- thus unconstitutional on its face since Congress is bound by, and cannot change, the Constitution -- of probable cause of status. The status was that of an agent of a foreign power.... Over time, the requirement of status as a foreign agent was modified to status as a foreign person. This, of course, was an even lesser standard and one rarely rejected by the FISA court.
With everything that's been going on, most of the attention has been on the administration -- including both the NSA and the DOJ -- as well as some companies participating in the various surveillance programs. But, increasingly, it seems that perhaps a lot more attention should be paid to the entire concept and structure of the FISA court.
"As everybody who's been associated with the program's said, if we had had this before 9/11, when there were two terrorists in San Diego — two hijackers — had been able to use that program, that capability, against that target, we might well have been able to prevent 9/11," Cheney said on "Fox News Sunday."
That's speculation based on nothing, frankly. As has been widely covered, there were a number of reasons why the government failed to stop 9/11, just as there were plenty of reasons it failed to stop the Boston bombings back in April. The idea that this program would have stopped one (while it clearly missed the other) isn't particularly convincing.
Of course, none of that gets to the bigger question of whether or not it's worth it. In theory, we could stop all sorts of crimes by putting military personnel and equipment in the streets, with the power to invade any home and do a full search. But we don't allow that. Because that's a violation of our privacy. And, yes, the loss of life from a terrorist attack is tragic and horrifying -- but many more people are killed in car accidents, and we don't freak out about that and take away everyone's cars. Giving up our basic principles of freedom on the off chance it might possibly stop a terrorist attack (while still missing other terrorist attacks) doesn't really seem like living up to the basic ideals of this country.
from the i-prefer-not-to-be-governed-by-the-insane dept
Last week, we thought it was ridiculous enough that the DoD (of which the NSA is a key part) had reminded all staff that they were not allowed to look at any of the leaked NSA documents, even if they came across them in the press. If they spotted any, they had to alert various security officials and delete what they saw "by holding down the SHIFT key while pressing the DELETE key for Windows-based systems and clearing of the internet browser cache." As we noted at the time, pretending these documents aren't public does not make much sense, and suggests a government agency that does not want to live in reality.
Now we can add Congress to that list as well. Senate staffers have now been told not to look at the leaked documents, and similarly that they need to "contact the Office of Senate Security for assistance" if they happened across any of the documents accidentally. Once again, this is insane because it means Congress should deny reality and pretend to live with its collective head in the sand -- which is no way to govern.
However, the much bigger deal is that if this were actually obeyed (and it's not), this would effectively hinder Congress's required duty of oversight of the NSA to prevent abuse. If the very Congress that's supposed to monitor the NSA's practices, and which has already been directly lied to by the intelligence community is now being told that it can't even look at the leaks to understand what's going on, how the hell are they supposed to do their oversight job?
Furthermore, last week, we pointed to some video of Rep. Grayson on the House floor giving an impassioned speech about the leaks... and displaying many of the leaked NSA docs blown up on an easel. If Congress isn't allowed to look at them, but Congress is also presenting them on the floor of the House and broadcasting live on C-SPAN and YouTube for the world to see... was the rest of Congress just supposed to avert its eyes while Grayson spoke? Is that a reasonable world?
Yeah, these sponsored posts seem to be doing the lead balloon thing. I have no particular beef with either Insightly or with you guys, but trying to force geeks to talk about things that benefit a sponsor is just not going to work. I've seen two of these posts, and in neither one did any useful conversation happen.
We've had tremendous success with some of these posts, and others haven't caught on. We're definitely learning and adjusting as we go. Just a couple weeks ago, one of our sponsored posts was the top post on Reddit tech and reached #5 on the front page of Reddit as well. So, sometimes people quite like them.
Also, in the past, we've held similar discussions to this one that have gone quite well and been very interesting, including on topics like enterprise storage, enterprise printing, data models, and the like.
But, yes, this particular post clearly did not catch people's interest, and we're learning from that as well.
You'd probably raise more actual revenue if you came up with better price tiering. I wanted to give you $50/year, but that wasn't easy to do; it was either $15 once or $10/mo. So you got $15 from me instead of $50.
Hmm. Perhaps the organization of the site isn't that clear, but we've always had a lot more options than you suggest, including a $5 month option (http://rtb.techdirt.com/products/watercooler/) and a name your price option, that even has a single check box for $50 (http://rtb.techdirt.com/products/friend-of-techdirt/).
We'll look for ways to make that clearer.
I think you're falling away from your own major drives, the ones that got me to sign up in the first place... engaging your users and giving them something excellent.
Again, as noted above, most of what we've done has worked. Sometimes it doesn't -- and this may be a case where it doesn't, which we're learning from.
Talk about Insight.ly because they are interesting, not because they pay you.
Honestly, nothing in this post said anything about talking about insightly. It asked people to discuss ways to deal with a very real problem that many of our users do discuss regularly. It was sponsored by Insightly to create a general discussion on the topic -- not to have anyone comment about Insightly.
So if Pandora buys a radio station and they simulcast ONE broadcast so what? If they do the same thing the radio stations do they should get the same rates. But if they do something different... I dunno, say allow user defined algorithmically generated personal playlists per user... well, then, that's a different service and requires a different rate. Pretty simple really.
No, they're asking for the same rates that ASCAP gives iHeartRadio for *ITS* algorithmically generated personal playlists.
It amazes me how you folks keep spewing off about this without even knowing what you're talking about.
They're not asking for the same rates that *radio* pays. They're asking for the same rates that radio stations pay FOR THEIR ONLINE STREAMING SERVICES THAT ARE JUST LIKE PANDORA.
Why does anonymity/privacy lover Mike Masnick have the moderation filter catching posts of users utilizing TOR? Hmm....
We don't. We use a variety of anti-spam filters to catch spam, and it sometimes catches legitimate comments, which we tend to free up within hours (a bit longer over the weekend and late at night). It is true that tor-based comments are slightly more likely to be caught in the filter because (shockingly) tor is often used by spammers. However, if the comments are legit, we free them pretty quickly. Also, it does not catch all tor comments. Many of them get through no problem. The system uses a variety of heuristics to figure out what is and what is not spam.
The system that catches those comments catches approximately 1,000 spam comments per day. It tends to catch very, very few legitimate comments, and those it does catch are put live on the site pretty quickly.
Well that was quick. Seems both problems are gone again. Also, the text on the expander-tabs had changed to "Read More" and has reverted to "Expand". Did you guys click "undo" after trying something and realizing it had unwanted side effects?
Nope. Made no changes to the site tonight at all. Expand/collapse has been working fine for me. Not sure if what you saw was a hiccup, but we'll look into it.
As for some of your other points, we decreased the number of articles on the front page after we received numerous complaints of load times for the full page. The expand/collapse stuff was also due to people complaining that they had to scroll through long articles they didn't want to read to get to the ones they did want. This way you can scroll and *very easily* open up the full article if you want to.
Also, if you want to keep the articles expanded, there's an option for that in your preferences, so if you really don't like the collapsed stories, no problem, you can have it appear the old way -- and that works whether you're logged in or logged out.
So, no, most of these changes have been focused on improving user experience, giving you more choices. Sorry if you don't appreciate them, but we're trying our best to accommodate a variety of ways in which people read.