Last year you'll recall that somebody abused the nonexistent privacy protections at the FCC website to flood the net neutrality repeal proceeding with millions of fake comments. While the vast majority of real people oppose the repeal, a bad actor was able to either fraudulently use the identities of real people (like myself), or hijack the identities of dead people to spam the proceeding with bogus support. The goal: undermine public trust in the public comment period in order to downplay the massive opposition to the FCC's handout to AT&T and Comcast.

Up to this point, the FCC has done less than nothing to investigate the fraud or prevent it from happening again, largely because it aided the FCC's agenda. In fact, the FCC went so far as to block a law enforcement investigation into who was behind the fraud.

Hoping to pull the scandal back onto a front burner, Senators Jeff Merkley and Pat Toomey this week sent a letter to the FCC stating that they've discovered that their names were also used to post fake comments during the repeal. The two demanded the FCC implement some kind of CAPTCHA system to help police automated bogus comments (a bot seems to have posted millions of bogus comments in alphabetical order), and asked what the agency was doing to prevent the problem from occurring again:

"Late last year, the identities of as many as two million Americans were stolen and used to file fake comments during the Federal Communications Commission’s (FCC’s) comment period for the net neutrality rule,” the Senators wrote in a letter to Pai. “We were among those whose identities were misused to express viewpoints we do not hold. We are writing to express our concerns about these fake comments and the need to identify and address fraudulent behavior in the rulemaking process."

The FCC has been hammered for months over this scandal and has responded with the policy and regulatory equivalent of a shrug. I was told by the agency that there was nothing that could be done after my own identity was fraudulently used to support the repeal. So far, there's been absolutely no repercussions for the FCC or its staffers, though a GAO investigation is currently ongoing. It's worth noting that this kind of behavior isn't exclusive to the FCC, with other Trump regulatory actions also being hammered with bogus support via bot over the last year.

Call it a lie. Call it a misrepresentation. Call it a convenient error. Call it what you want. Just don't call it a fact. Devlin Barrett at the Washington Post delivers a bombshell: the thousands of phones the FBI supposedly just can't crack despite a wealth of tech solutions at its disposal? It's nowhere near as many as consecutive FBI directors have claimed.

The FBI has repeatedly provided grossly inflated statistics to Congress and the public about the extent of problems posed by encrypted cellphones, claiming investigators were locked out of nearly 7,800 devices connected to crimes last year when the correct number was much smaller, probably between 1,000 and 2,000, The Washington Post has learned.

This number aligns more with reality than the frequent claims the number of locked phones was nearing 8,000 devices. In 2016, the FBI reported it was only locked out of around 880 devices. Less than two years later, it was stating it had 7,800 impregnable devices in its possession.

This exponential increase followed the FBI's failure to convince a court Apple should be ordered to break a phone's encryption whenever the government wanted access. This courtroom demand was predicated on a deliberately backburnered quest to find a tech solution from a third party, as a recently-released Inspector General's report revealed.

So, we know the FBI can't be trusted to tell the whole story when quizzed about its "going dark" assertions. Now, we know the FBI can't be trusted to count physical devices accurately.

The FBI first became aware of the miscount about a month ago and still does not have an accurate count of how many encrypted phones they received as part of criminal investigations last year, officials said. Last week, one internal estimate put the correct number of locked phones at 1,200, though officials expect that number to change as they launch a new audit, which could take weeks to complete, according to people familiar with the work.

“The FBI’s initial assessment is that programming errors resulted in significant over-counting of mobile devices reported,’’ the FBI said in a statement Tuesday. The bureau said the problem stemmed from the use of three distinct databases that led to repeated counting of phones. Tests of the methodology conducted in April 2016 failed to detect the flaw, according to people familiar with the work.

The FBI's count was inflated by bad software and sloppy recordkeeping. But it had no incentive to fix it. Even if the error was never detected by the methodology test, someone should have asked how the FBI's stash of locked phones suddenly exploded from less than 900 to nearly 8,000 in 18 months. But, given the IG's findings about its slow-walked search for outside tech solutions in the Apple court battle, any red flags were probably ignored in favor of pushing the most dramatic "going dark" narrative possible. Why ask why? Just go with the more jaw-dropping number, even if there's no physical evidence to back the claim.

This discovery was likely prompted by FOIA requests and demands for answers from Congress. Without this outside pressure, the FBI had no motivation to doublecheck its math. Now that it must answer to both Congressional oversight and tenacious members of the public, it has finally decided to audit its locked phone stash.

AG Sessions has also played a part in expanding the "going dark" narrative. He had this to say earlier this month, painting a picture of thousands of latent threats stored in FBI evidence lockers.

Last year, the FBI was unable to access investigation-related content on more than 7,700 devices — even though they had the legal authority to do so. Each of those devices was tied to a threat to the American people.

Except they're obviously not. Most of the devices don't even exist. Therefore, most of the threats don't exist. And this statement can't be definitively made about the number of actual devices the FBI has on hand because the FBI has yet to provide any info whatsoever about these devices or their relation to ongoing or stalled investigations. We don't know how many are tied to "threats to the American people" and how many are tied to bog standard investigatory work, like drug busts or white collar crime or any number of other non-threatening criminal activities the Bureau investigates.

The "going dark" narrative is a house of cards erected on a loose bedding of bullshit. It always has been. Now the FBI is slowly being forced to admit it has nothing to offer but shadowplay in which a small pile of phones is stacked carefully to portray a towering, monstrous threat to the American public. At best, the FBI handled its precious cargo of anti-encryption warriors extremely carelessly. At worst, it looked at the incongruous leap in locked device numbers and figured it better served the "going dark" narrative than an accurate count would.

We've talked a great deal about my home city of Chicago, largely for the myriad of awful, corrupt practices it has put in place around topics that we cover here. For instance, we have an alderman trying to shore up the city budget by taxing the shit out of Uber and Lyft, our Mayor thought it was a great idea to have his own private email accounts to conduct business, and a red light camera system so hilariously geared towards bilking money from citizens that the courts have tossed out huge swaths of the tickets it generated, which led the city to decide to make it barely less corrupt by a measure of tenths-of-seconds worth of leeway for drivers crossing the intersection.

Now, you might be thinking that all of this effort to be corrupt and insidious seems like a waste. Wouldn't it be far easier, you might be thinking, to simply run the city in a sensible way? Wouldn't that actually require less effort and be better for the people of Chicago? Perhaps, but then Chicago wouldn't have received the prestigious award of "most corrupt city", as it did this past week.

A report released Tuesday ranks Chicago as the most corrupt city in the country and Illinois as the third-most corrupt state.

"What we find is a very dreary picture. In nearly every sector, whether you talk about aldermen, you talk about Chicago schools, you talk about contracts, in every area corruption is still rife in the city of Chicago," said Dick Simpson, lead author of the "Continuing Corruption in Illinois" study and a University of Illinois Chicago political science professor.

We did it! Suck it, every city in New Jersey! My hometown is the corruptest place in the land. And, as the UIC report notes, Chicago won this much sought after award in no small part to the very red light camera system we mentioned above.

Chicago's red light camera scandal sent an assistant transportation department commission to prison for bribery and extortion.

"What that means is that it's harder to get businesses to come here because of its corrupt state, we're losing population and corruption is one of the reasons we're losing population. We have undermined faith in government," Simpson said.

Asked to comment on the UIC report, Mayor Rahm Emanuel responded by noting how awesome a job he's done at not being corrupt, despite that not being the framing of the question at all. But that's the kind of response you can expect from Rahm, who has overseen the most corrupt city's government for more than seven years now. It has been under his watch that the camera system has flourished into the corruption monster it now is, not to mention it being under his watch that the Chicago Police Department has become the butt of a national joke.

So pop the champagne, fellow Chicago residents. It took a lot of hard work and effort, but we made it!

Lawyer Stephen Doniger seems to be going out of his way to file lawsuits that involve creative interpretations of copyright (and by "creative" I mean "wrong.") You may recall that Doniger was the lawyer behind Playboy suing Boing Boing for copyright infringement for linking to an Imgur collection of Playboy centerfolds. That case went so poorly that the judge tossed it out in just two months. Before that, Doniger made a name for himself (I kid you not) being a fabric copyright troll, filing loads of lawsuits against companies offering similar designs on fabric. He's also jumped in on the whole situation created by the "Blurred Lines" mess by filing a bunch of "sounds alike" copyright cases.

It's almost as if he's filing all sorts of nutty copyright cases just to demonstrate for us just how ridiculous modern copyright law has become, and how far from its purpose it has strayed. Indeed, that's about the only explanation I can find for a new filing by Doniger, as noted by the Hollywood Reporter, in which Doniger, representing director Robin Bain is suing actress Jessica Haid for using a clip of the film, Nowhereland in her own demo reel.

In short, Bain claims that Haid asked for permission to use clips in her demo reel and Bain refused (nice of him). She then got a copy of the film and gave it to another company to include it in her demo reel. Bain is now suing, claiming it's an "unauthorized derivative work." Indeed, the lawsuit claims that the clips in the demo reel "included a significant amount of unreleased footage from The Film, which taken together, encompassed the heart of The Film, as well as revealed the ending to The Film."

The claim that this uses "the heart" of the work is an attempt to get around a fair use claim and a reference to the famed Harper Row v. Nation Enterprises case. Looking over the fair use factors, it seems hard to see how this isn't fair use. It's clearly transformative. The use is quite different than the movie itself -- it's a small clip used to advertise the actress, not to show the film. Despite the claims of this being "the heart" of the film, it's still just clips for a demo reel, rather than the full film. And, finally the impact on the market is going to be nil. Or, if anything, it might encourage people to see the full film (unless the film sucks, of course).

Either way, I can't imagine that this is what the framers of the Constitution imagined when they were putting in place the copyright clause. How the hell does it "promote the progress of science" to have a director sue an actress for advertising her acting ability? But, as yet another example of just how ridiculous copyright law is these days, it works perfectly. So thanks Stephen Doniger for adding to the list of examples of ridiculous copyright lawsuits.

For the past year much has been made of the President's unwillingness to adhere to anything close to reasonable security when using his mobile phones. Whereas the Defense Information Systems Agency (DISA) and the National Security Agency usually work in concert providing state leaders with "hardened" devices that are heavily encrypted, routinely updated, and frequently swapped out, Trump has refused to use these more secure DMCC-S devices (effectively a Samsung Galaxy S4 device utilizing Samsung's Knox security architecture) because they apparently infringe on his ability to Tweet.

Just a few months ago, Senators sent a letter expressing concern that Trump's mobile phone practices were leaving the President open to potential hacking by foreign entities:

"The President of the United States stands alone as the single-most valuable intelligence target on the planet. Given the apparent lack of progress the Administration has made since initial reports in 2016 of the President’s poor operational security, it appears the only thing standing between the Office of the President and the next national security nightmare is a combination of President Trump’s personal restraint and sheer luck."

Eventually, the President was convinced to use two iPhones: one locked down specifically for Twitter, and the other specifically tasked with making phone calls. Even here reports have suggested that Trump has struggled to adhere to these restrictions, often making personal calls on his unsecured Samsung Galaxy III. This week a report from Politico highlights again how White House and IT security staff have recommended that these devices be routinely swapped out, an idea the President continues to resist:

"While aides have urged the president to swap out the Twitter phone on a monthly basis, Trump has resisted their entreaties, telling them it was “too inconvenient,” the same administration official said.

The president has gone as long as five months without having the phone checked by security experts. It is unclear how often Trump’s call-capable phones, which are essentially used as burner phones, are swapped out."

And yeah, that's a serious problem. While these devices appear to be the equivalent of burner phones, five months is forever in security world, giving attackers ample opportunities to compromise the microphone, camera, or other hardware embedded in Trump's devices. It's a particularly notable problem in the wake of things like the SS7 vulnerablity -- a flaw mobile carriers routinely try to downplay that opens the door to remote surveillance and a wide variety of attacks on most modern smartphones and mobile networks.

Needless to say, the President's abysmal privacy and security practices likely make a delicious potential target for hostile foreign powers, something you'd think Trump would realize given his breathless hyperventilation regarding a certain home e-mail server. Meanwhile, the President's disdain for routine security comes incongruently as his FCC moves to block many Chinese hardware vendors from doing business in the States, a protectionist move the administration insists is exclusively focused on protecting national security.

More bad news on the privacy front, thanks to one of America's largest corporations. Documents obtained by the ACLU show Amazon is arming law enforcement agencies with cheap facial recognition tech, allowing them to compare any footage obtained from a variety of sources to uploaded mugshot databases.

The company has developed a powerful and dangerous new facial recognition system and is actively helping governments deploy it. Amazon calls the service “Rekognition.”

Marketing materials and documents obtained by ACLU affiliates in three states reveal a product that can be readily used to violate civil liberties and civil rights. Powered by artificial intelligence, Rekognition can identify, track, and analyze people in real time and recognize up to 100 people in a single image. It can quickly scan information it collects against databases featuring tens of millions of faces, according to Amazon.

It's already been deployed to several areas around the country, with Amazon acting as the government's best friend a la AT&T historic proactive cooperation with NSA surveillance efforts. The documents [PDF] obtained by the ACLU show Amazon has been congratulated by local law enforcement officials for a "first-of-its-kind public-private partnership," thanks to its deployment efforts. On top of providing deployment assistance, Amazon also offers troubleshooting and "best practices" for officers using the tech. It has even offered free consulting to agencies expressing an interest in Rekognition.

These efforts aren't surprising in and of themselves, although Amazon's complicity in erecting a law enforcement surveillance structure certainly is. Amazon is looking to capture an underserved market, and the more proactive it is, the more market it will secure before competitors arrive. To further cement its position in the marketplace, Amazon is limiting what law enforcement agencies can say about these public-private partnerships.

In the records, Amazon also solicits feedback and ideas for “potential enhancements” to Rekognition’s capabilities for governments. Washington County even signed a non-disclosure agreement created by Amazon to get “insight into the Rekognition roadmap” and provide additional feedback about the product. The county later cited this NDA to justify withholding documents in response to the ACLU’s public records request.

Documents also suggest Amazon is looking to partner with body camera manufacturers to add its facial recognition tech. This is something body camera manufacturers are already considering, and licensing an established product is far easier than building one from the ground up.

The system is powerful and can apparently pull faces from real-time footage to compare to databases. It also allows agencies to track individuals. It puts passive cameras on surveillance steroids, giving any person who strolls past a government camera a chance to be mistaken for a wanted suspect. To date, facial recognition software has managed to generate high numbers of false positives, while only producing a handful of valid arrests.

These efforts have been deployed with zero input from the largest stakeholder in any government operation: the general public.

Because of Rekognition’s capacity for abuse, we asked Washington County and Orlando for any records showing that their communities had been provided an opportunity to discuss the service before its acquisition. We also asked them about rules governing how the powerful surveillance system could be used and ensuring rights would be protected. Neither locality identified such records.

It may be the NDAs discourage public discussion, but more likely the agencies acquiring the tech knew the public wouldn't be pleased with having their faces photographed, tracked, stored indefinitely, and compared to pictures stored in law enforcement databases. And if public agencies are unwilling to discuss these programs with the public, they're far less likely to create internal policies governing use of the tech. Amazon's push to secure a sizable portion of this market is only making things worse, and its use of NDAs is going to further distance these public agencies from being accountable to the people they serve.

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This is it — the last day of the campaign! If you haven't yet backed our project to revamp and produce the CIA's declassified training game, today's your last chance to check out the Kickstarter page for CIA: Collect It All and secure a copy.

The campaign closes tonight at midnight! Don't delay!

We've had a huge influx of last-minute backers thanks in large part to The Verge's review of an advance copy of the game, so if you're not yet a backer, help us keep that momentum going — and if you are, please tell your friends! CIA: Collect It All comes with over 150 high-quality playing cards, with physical copies available for $29 (shipping to 170 countries), the print-and-play PDF version for $10 (anywhere, of course!) and a five-copy bundle for retailers or groups who want to team up to save on shipping.

We are planning to continue accepting some additional pre-orders before we complete the game, but we don't have that set up just yet, and we still have no plans to continue production beyond a single print run — so if you definitely don't want to miss out, back the campaign before it's too late!

For years now broadband providers have used a lack of competition to impose all manner of obnoxious additional fees on the backs of broadband consumers. That includes arbitrary and obnoxious usage caps and overage charges, which not only raise rates on captive customers, but quite intentionally make using streaming video competitors more expensive and cumbersome. Once caps are in place, large ISPs often exempt their own content from usage caps while still penalizing streaming competitors (aka zero rating).

ISPs used to claim that such limits were necessary to manage network congestion, but as that argument was increasingly debunked (caps don't actually help manage congestion) they've shifted their justifications to more flimsy alternatives. These days, ISPs usually offer no justification at all, or issue vague declarations that they're simply trying to help users "better understand their consumption habits."

Case in point: Verizon DSL customers in Virginia recently began noticing language on Verizon's website indicating that the company's already expensive (and slow) DSL service will now face ambiguous "usage" limitations depending on the speed of your tier. While caps are now pretty common among cable ISPs, it's the first time Verizon has begun flirting with such limits:

For some context: Verizon has long been trying to get rid of DSL customers it doesn't want to upgrade so it can spend more of its time focused on slinging ads at Millennials via its new Oath (Yahoo and AOL) brand. It has been doing this by either refusing to repair and upgrade these users, or by constantly imposing rate hikes on lines that can't even get close to the FCC's 25 Mbps definition of actual "broadband." Because regulations require they keep servicing these lines (since most were taxpayer subsidized), they've had to engage in more creative methods to drive users off of them.

When I pressed Verizon as to why the company felt the need to impose any "usage" restrictions upon slow, over-priced DSL lines at all, it first informed me that these aren't caps because they aren't being enforced (yet). It then tried to claim that the company was simply trying to help consumers "see their usage":

"We're not applying data caps, overage fees or any sort of restrictions on DSL customers," Verizon claims. "There is a small trial in Virginia of displaying data usage in customer billing. It affects less than 2,000 homes over three remote terminals. But while the customers are shown data allowances of 150-250 GB, none of them are charged if they exceed those amounts."..."We've never had a way for these customers to see their usage," a company spokesman added, stating this is "just a very small trial with that." "Lots of cable companies display broadband data usage to customers even though they don't impose data caps. I'm afraid this isn't as exciting as you think," the spokesperson argued.

But there's simply no legitimate reason for Verizon to even be hinting at usage caps. The company's DSL lines are so slow, the cost of providing the service is largely negligible, and the volume of bandwidth these lines consume are largely irrelevant. And if the company really wanted users to understand their consumption, it could have simply provided an actual usage meter that mirrors the meters you often see on routers or the OS. So why is Verizon doing this?

As ISPs flirt with usage caps, usually they'll first employ "soft caps" (read; intially unenforced) and a usage meter (usually inaccurate) aimed at "educating" users on their monthly bandwidth consumption. This usually warms consumers up to later efforts at hard caps and overage fees (usually around $10 per each additional 50 GB). It's like the boiling frog anecdote: once users are ok with the idea of such restrictions, ISPs can then tighten the noose slowly to further monetize these users -- with less of a backlash if than if you'd simply imposed hard caps from the start.

But in this case Verizon didn't even bother to offer users an actual usage meter showing their usage. I pressed Verizon as to why, if it's simply concerned about consumers understanding their usage, it didn't just provide users with an actual bandwidth meter? Why even use language hinting at usage limits at all? It's at that point the company stopped responding to my inquiries.

Again, Verizon has made it abundantly, repeatedly clear that it doesn't want to keep these DSL users as the company shifts focus. For Verizon, the goal is either to drive them to Verizon Wireless, or to a cable competitor (that in many instances will upsell them to a Verizon Wireless service bundle anyway). The very worst case scenario for Verizon is these users stick around and wind up paying even more money for last-generation DSL. "Educating consumers" is traditionally the very last thing on an ISP exec's mind when a company begins flirting with this kind of language.

It's pretty clear Verizon was experimenting with the idea of caps and simply hoped the limited footprint meant nobody would notice. And with net neutrality now formally slated to expire June 11, there's going to be a lot more "experimentation" where this came from.

Journalist Adam Johnson's FOIA lawsuit against the CIA has been brought to a halt. Johnson sued the CIA for refusing to release classified documents it had previously voluntarily "leaked" to selected journalists. The CIA argued the documents were still classified and not subject to FOIA requests. Johnson argued the CIA had already released the documents to the public when it decided to release this classified info to journalists.

Back in February, it appeared the court was on Johnson's side. Responding to the government's motion to dismiss, the court pointed out the CIA couldn't waive FOIA exemptions when dumping docs to journalists and then seek to use them when other journalists asked for the same info.

There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including "trusted reporters," for any purpose, including the protection of CIA sources and methods that might otherwise be outed. The fact that the reporters might not have printed what was disclosed to them has no logical or legal impact on the waiver analysis, because the only fact relevant to waiver analysis is: Did the CIA do something that worked a waiver of a right it otherwise had? The answer: CIA voluntarily disclosed what it had no obligation to disclose (and, indeed, had a statutory obligation not to disclose).

After another round of submissions by the plaintiff and the government, the judge has reached a final decision [PDF]. What once looked like a win for the FOIA requester has been turned into judicial support for selective disclosure. The CIA can waive and reinstate FOIA exemptions as often as it wants, so long as it only dumps documents to "trustworthy" journalists who won't make the waiver permanent by publishing them in full. (h/t Chris Geidner)

I fail to see why the fact that the information exists in electronic form on some private organization's server, which server can theoretically be hacked by an unauthorized user, should be treated any differently. If the only way that information can be seen by the general public is by stealing it from an authorized recipient, logic dictates that the information is not available to the general public- it is not "in the public domain." Plaintiff and Amici make a good deal out of the fact that the newspapers' servers are not secure servers, but I do not believe that the security level of a sending or receiving server makes the slightest difference to the analysis.

So Plaintiff fails because he is unable to demonstrate that the information he seeks resides today in the public domain; assuming, for purposes of argument, that the CIA' s decision to email the information to the reporters placed it there.

There is another reason why one cannot conclude that these particular emails are in the public domain. Even if there were a copy of the emails in the files of Mr. Shane or Mr. Ignatius or Ms. Gorman, or even if the reporter-recipients could still readily call up the full text on their computers, there is no evidence in the record that any member of the public could walk into the offices of the Times or the WaPo or the WSJ and demand to see a copy. For that matter, there is no evidence that anyone could obtain the information via service of a subpoena on the reporter-recipients. This court would be shocked if the three eminent news organizations whose employees received these emails did not fight tooth and nail against any effort to make them public; and as I understand matters, the law is on their side. If that were not so, Johnson would not be asking the CIA to disclose the redacted information; he would be suing the New York Times, the Washington Post and the Wall Street Journal.

The court notes the judicial system has bent over backwards to insulate national security agencies from FOIA requesters and these agencies' own careless handling of classified material. Agencies that regularly participate in selective leaking can still keep leaked documents out of FOIA requesters' hands so long as the leak recipients haven't published the documents in full. In this case, Johnson had redacted copies of the emails sent to journalists and was seeking to have the redactions stripped away. He had already cleared the high hurdle of knowing exactly what documents had been leaked to journalists. But despite clearing a nearly impossible hurdle, the court, while sympathetic, notes judicial precedent allows the CIA to have it both ways: release info to members of the public while claiming the information was never released publicly.

When grappling with the possibility of waiver via selective and limited disclosure of classified information, courts clearly outlined a way for Government officials dealing with national security and foreign affairs material to have their cake and eat it, too. They could make disclosures to third parties when the Director deemed it necessary to protect intelligence sources and methods, and they could do so without waiving their right to invoke relevant FOIA exemptions, as long as they did so in a way that created no permanent record outside the confines of the agency of exactly what was disclosed (exactly meaning, literally, "in haec verba "). In that way, the courts could never be entirely sure that whatever "public" record did exist (the notes taken by the people who were briefly shown the records at issue in Muslim Advocates, for example) was the "specific information" that had been disclosed previously. This bit of sophistry allowed the courts deny FOIA requests on the basis discussed in Wilson v. CIA, 5 86 F .3d 171, 186 (2d Cir. 2009).

It all comes down to one thing: the journalists who received the CIA's leaks never published the documents in full. Because of this -- despite there being copies of unredacted classified info residing on certain newsroom servers -- the CIA can claim this was not a public release and keep its redactions in place. The court's refusal to hold the government to a higher standard when it invokes national security claims has resulted in this illogical conclusion: what's been made public is not public info if certain caveats apply. To celebrate this ridiculous victory for government opacity, the journalists who received these documents should publish them in full. As the court notes, they'd be well within their legal rights to do so. But that would mean they wouldn't be trusted with selective leaks in the future, so it's unlikely these members of the public will undo the damage done by 40 years of NATSEC jurisprudence.