At the Mobile World Congress convention in Spain last week, one of the most well-hyped products in convention history was something that doesn't technically exist. Fifth generation wireless (5G) was all the rage at the show, with multiple carriers promising they were in various stages of bringing the new ultra-fast wireless standard to consumers. The problem is that while engineers have a general idea of some of the technologies that may be included in the final standard when approved, nobody actually knows what 5G is yet. And when it does finally get solidified, it's likely to be 2020 or later before actual launches occur.

For marketing departments, this apparently wasn't a problem, but an opportunity. Verizon immediately set to work well ahead of any standard ratification, telling anybody who'll listen that the company has begun trialing 5G wireless service capable of 1 Gbps, with deployment scheduled for sometime in 2017. That resulted in a lot of press outlets crowing that we'll be enjoying wireless service faster than Google Fiber in just a few years. But to be clear, Verizon's testing a lot of technologies that may or may not be part of 5G, including beam forming, NFV and SDN integration, and millimeter wave technologies.

But these early trials (focused mostly on fixed, not handset, 5G) overshadow the fact that there's still multiple global partners and a wide variety of coalitions debating what the standard will even look like. A hard standard isn't actually expected to emerge until 2018, with actual real-world deployment not expected until 2020 (which in telecom terms means 2021 or 2022). Verizon competitor T-Mobile isn't mincing words when it comes to what Verizon's up to:

"We're starting to see a lot of news starting to form in and around the 5G space," T-Mobile CTO Neville Ray said during a conference call to discuss the carrier's quarterly earnings. "I think folks have seen some of the earlier announcements, and you know, Verizon trying to move and saying they're going to be the first to 5G, well, it's kind of BS, to be honest."

Entertaining T-Mobile CEO John Legere was a little more blunt in his assessment of Verizon's planned 2017 5G "launch":

"That's pure horseshit; it's not going to happen," Legere said on the call. "Either (McAdam) doesn't know, or what they're attempting to do is what they've done before several times, to connect the current (capabilities) to a long-term strategy for 5G, but call it 5G way before the standards or the handset capabilities are available."

Why's Verizon marketing 5G so hard, so early? As competitive pressure from T-mobile has grown, Verizon has found it harder and harder to avoid having to compete directly on price. Verizon avoids direct price competition like a chatty, annoying party attendee, arguing price competition isn't necessary because Verizon has the superior network. But as T-Mobile's network has gained ground, Verizon's argument has started to run out of runway. Enter 5G: something Verizon can "beat" the other carriers at even if nobody actually knows what the race track even looks like:

"We’re so far away from it, it’s not even funny,” Recon Analytics’ Roger Entner said. “There is a lot of prep work going on, but to a certain extent this all reminds me of a toddler wearing a Harvard class of 2035 bib. So we have to be measured with our enthusiasm.”...“In a marathon run, we’ve barely passed the 100 meter line,” Entner said. “It’s way too early (to tell who’s ahead), so everybody is just saying ‘Hey, we’re out of the starting blocks, look at us.’ But all of them are neck and neck with each other."

Ah, marketing. That's not to say 5G doesn't offer some major reasons to be excited, and it will usher forth the start of wireless actually being a stronger fixed-line broadband alternative. But with the kind of pricing companies like Verizon have pushed with their 4G services, whether you'll be able to afford the next-generation leap is another question entirely. And given that the United States currently sits 55th in terms of overall current 4G LTE speeds, 5G's potential doesn't mean U.S. carriers should get too far ahead of themselves.

As Techdirt has reported over the years, views on whether software should be patentable, and if so, to what extent, have ebbed and flowed. In the US, the Supreme Court's decision in Alice v. CLS Bank seems to have established that most software isn't patentable. In the EU, the fate of software patents is less clear. According to the European Patent Convention, patents are not available for computer programs "as such" -- but that metaphysical "as such" rider has allowed thousands of software patents to be issued anyway. Muddying the waters further is the Unified Patent Court, which may or may not come into existence soon, with almost unchecked powers to reshape the patent landscape in Europe.

In India, by contrast, the situation regarding software patents has just been clarified, and in a rather dramatic manner. An informative press release from India's Software Freedom Law Centre (SFLC.in) explains that last August the Indian Patent Office published some Guidelines for Computer Related Inventions (CRIs), which would have opened the floodgates to software patents. In response:

SFLC.in along with iSPIRT (Indian Software Product Industry Round Table) and Knowledge Commons led a group of civil society organisations, academicians and start-ups in writing a joint letter to the Prime Minister’s Office, the concerned ministries and the Patent Office requesting to recall the Guidelines.

Remarkably, things were put on hold:

The [Controller General of Patents, Designs and Trademarks], after listening to the views expressed by SFLC.in and Knowledge Commons at a meeting held on October 21, 2015, issued an order dated December 14, 2015 keeping the guidelines in abeyance. The Controller then held a public consultation at the patent office in Mumbai on January 19, 2016.

Even more remarkably, the Indian patent office went on to accept a three-part test suggested by SFLC.in to determine the patentability of CRIs, which is as follows:

(1) openly construe the claim and identify the actual contribution;

(2) If the contribution lies only in mathematical method, business method or algorithm, deny the claim;

(3) If the contribution lies in the field of computer programme, check whether it is claimed in conjunction with a novel hardware and proceed to other steps to determine patentability with respect to the invention.. The computer programme in itself is never patentable. If the contribution lies solely in the computer programme, deny the claim. If the contribution lies in both the computer programme as well as hardware, proceed to other steps of patentability.

The key part is the last of these, which specifies that the "computer programme in itself is never patentable." As the SFLC.in press release points out, this welcome decision comes hard on the heels of the strong net neutrality rules issued in India recently. This decisive action in two quite different fields suggests the Indian government is consciously trying to place itself in the hi-tech vanguard, presumably with a view to encouraging domestic start-ups.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Last September, Techdirt reported on the EU's plan to replace the highly-controversial corporate sovereignty provisions in TAFTA/TTIP -- the "investor-state dispute settlement" (ISDS) chapter -- with something it called the "Investor Court System" (ICS). As we reported then, even if ICS addressed all the problems of ISDS -- spoiler alert: it certainly doesn't -- there was a huge backdoor in the form of CETA, the trade deal between the EU and Canada. If CETA includes old-style corporate sovereignty provisions, US companies with subsidiaries in Canada will be able to use CETA to by-pass TAFTA/TTIP's new ICS system completely, and sue EU nations using ISDS with all its widely-recognized faults. In fact, Bernd Lange, the MEP with responsibility for making recommendations on how the European Parliament (EP) should vote on international trade matters, said at the time that he would not support CETA if it included ISDS.

The arrival of a new government in Canada while CETA is still undergoing "legal scrubbing" -- checking and tweaking the exact wording -- has given the European Commission the opportunity to re-negotiate the corporate sovereignty chapter in CETA, even though it rather sneakily claimed it couldn't do that. But it turns out it could, and did, in a move that is likely to have important repercussions:

The European Commission and the Canadian Government have agreed to include a new approach on investment protection and investment dispute settlement in the EU-Canada Comprehensive Economic and Trade Agreement (CETA).

The negotiations on a free trade deal between the European Union and Canada were concluded in 2014 with a reformed investment dispute settlement system, notably with full transparency of proceedings and clear and unambiguous investment protection standards.

Following the legal revision of the text, the agreement now reached goes even further. All the main elements of the EU's new approach on investment, as outlined in the EU's TTIP proposal of November 2015 and contained in the recently concluded EU-Vietnam free trade agreement, have been included in the finalised CETA text.

This represents a clear break from the old Investor to State Dispute Settlement (ISDS) approach and demonstrates the shared determination of the EU and Canada to replace the current ISDS system with a new dispute settlement mechanism and move towards establishing a permanent multilateral investment court. This revised CETA text is also a clear signal of the EU’s intent to include this new proposal on investment in its negotiations with all partners.

By persuading Canada to accept the ICS instead of a marginally-updated ISDS, the European Commission can claim to have addressed Lange's concerns. Indeed, his party, the Socialists and Democrats (S&D), rushed out a press release that tries to claim credit for the move:

The Socialists and Democrats in the European Parliament welcome the announcement made today by the European Commission and the Canadian government on the changes in the trade agreement between the EU and Canada (CETA) so as to include the S&D demands.

What matters here is not who did what, but that the S&D are now unlikely to block CETA because of the corporate sovereignty provision. With broad S&D support, CETA stands a better chance of being ratified by the European Parliament sometime later this year.

However, even with ICS in CETA, the European Commission still faces an uphill battle convincing the US that it too should agree to replace the old-style corporate sovereignty in TAFTA/TTIP. Last week, during the 12th round of the TTIP negotiations, the EU formally proposed its ICS alternative (pdf), but we don't yet know what the official US response will be. Unofficial comments suggest that it is lukewarm about the idea. Since some powerful US business lobbies seem unhappy with the ICS approach, Canada's decision to accept it in CETA may paradoxically stiffen US resistance to the idea in TAFTA/TTIP. And without ICS, Lange's S&D could decide they have to vote against the deal if and when it comes up for ratification in the European Parliament.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Despite our supposed intelligence, humans don't actually know how our own brains work. But even in our ignorance, we're still developing algorithms and machines that might catch on to how we learn and think. Google's autonomous vehicle project has a pretty good driving record, except that the world is messy, and predicting how human drivers will react isn't always certain -- especially when they drive buses. Our relationship with robots is going to be more and more complex in the next few years. We'll need to recognize when robots are faulty, and that might get harder and harder to do.

• We've seen people blindly follow GPS navigation directions that endangered the driver's safety, so would you expect people to follow a robot unquestioningly in an emergency? Yup. A study at Georgia Tech created a "guide robot" that was purposely made to be unreliable (and human participants in the study were told the robot was broken), but during a faked emergency, humans still followed the robot's bad directions to evacuate a building -- even when they conflicted with clearly-marked exit signs. [url]
• A "Data Science Machine" might have better intuition than teams of humans when it comes to big-data analysis. MIT researchers entered their data machine in three data science competitions, and the machine placed ahead of more than half of the human contestants. [url]
• It's difficult to really grasp exponential improvements in technology -- other than to look back and be amazed that things like the iPhone didn't exist just a few short years ago. And it's even more challenging to predict where technology is headed when artificial intelligence projects look so primitive now (and have for some time), but by 2040, we could have significantly more autonomous devices performing complex tasks for us. (Assuming the robots haven't enslaved us instead....) [url]

After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

It's been no secret that Tidal, Jay-Z's foray into the music streaming business, hasn't exactly had the success it was supposed to have. In the wake of all the angry sentiment about just how much other streaming services were paying musical artists, Tidal positioned itself as artist-friendly, the option for fans that want to make sure musicians get paid. It sounded great, except now Tidal finds itself joining the club of streaming services facing legal action over artist royalties.

Over the weekend, Yesh Music Publishing and John Emanuele (of the duo American Dollar) filed a lawsuit against Tidal for $5 million. The lawsuit claims that Tidal licensed at least 118 songs by American Dollar without the group’s permission and hasn’t paid the royalties it owes for streaming the songs. The complaint also says Tidal is “deliberately miscalculating” its per-stream royalty rates and failing to send reports to the American Dollar about streams of their songs.

If this all sounds incredibly familiar, it should, because these are the same accusations leveled against the other streaming services. This particular action is similar to David Lowery's suit against Spotify, in that it appears to revolve around mechanical licenses for compositions used in streaming music. While Tidal will likely argue that it properly licensed the works via its agreement with the Harry Fox Agency and via Section 115, it's not exactly settled that streaming services are covered by Section 115. Under Section 115, Tidal would serve a "notice of intention", or NOI, in order to get the license if it is unsure of whom it should be paying royalties to for a given composition. Tidal, like many streaming services, works with a third party to manage their licensing and NOIs for them (more on that in a moment). Indeed, the suit directly claims that no NOIs were filed, but sadly doesn't include the Exhibits in that PDF so that the reader could determine exactly which compositions are in question in this case.

Defendants failed to serve NOIs or timely NOIs for Plaintiffs’ and the Putative Class’ Copyrighted Compositions. Defendants’ failure to serve NOIs before the start of distribution precludes the creation of a compulsory license, and it does so both as to copies distributed prior to service and as to copies distributed thereafter. The tremendous power granted to Defendant under Section 115 is balanced by the strict obligations regarding notice. Defendant intentionally failed to adhere to its Section 115 obligations, while enjoying all of the benefits afforded by Section 115.

The filing goes on to acknowledge that Tidal has a third-party administrator managing the royalty payments and serving NOIs for them. That third-party is the Harry Fox Agency, the same company that was involved in Lowery's Spotify suit, along with a company called Music Reports. The suit claims that Tidal's ownership is named on the suit because those ownership entities "know full well that Harry Fox and Music Reports do not even try to serve NOIs...or calculate proper mechanical royalty rates unless expressly directed."

On top of this, the suit claims that Tidal is being shifty with how royalties are both calculated and reported.

Defendants’ systematic underpayment of royalties was done in several ways. First Defendants deliberately miscalculating the per-stream royalty rates by including millions of streams Defendants do not pay royalties in the calculation. This diluted the paid per-stream rate for royalty payments by up to 35%. Next Defendants systematically undercut the calculation of mechanical royalties to Plaintiff and the Putative Class by illegal deals with equity investor partners 65. Finally, Defendants failed to serve monthly detailed reports as required by the statute.

Tidal, as expected, is pointing back to the third-parties as being responsible.

TIDAL is up to date on all royalties for the rights to the music stated in Yesh Music, LLC and John Emanuele’s claim and they are misinformed as to who, if anyone, owes royalty payments to them. As Yesh Music, LLC admits in their claim, TIDAL has the rights to the Master Recordings through its distributor TuneCore and have paid TuneCore in full for such exploitations. Their dispute appears to be over the mechanical licenses, which we are also up to date on payments via Harry Fox Agency our administrator of mechanical royalties.

The entire catalogue in question streamed fewer than 13,000 times on TIDAL and its predecessor over the past year. We have now removed all music associated with Yesh Music, LLC and John Emanuele from the service. This is the first we have heard of this dispute and Yesh Music, LLC should be engaging Harry Fox Agency if they believe they are owed the royalties claimed.

Except, again, nobody seems to agree on whether or not Section 115, the basis for the compulsory license, applies to streaming sites like Tidal.

But the larger lesson in all of this is just how certain a thing it is that any new service that is in any way disrupting will be targeted and vilified. Keep in mind that Tidal was supposed to be the artist-friendly streaming service for music -- the one that artists would be excited to work with, rather than those other guys. And here we are, not terribly far from the birth of the service, finding the same attacks from artists on it as were levied against the incumbent streaming services. Either the artist-owned Tidal tried to be artist-friendly but couldn't because of the insane nature of music licensing, or the artist-owned Tidal found being so-called "artist-friendly" to be impossible in the modern era of music services. Either way, the cure for this isn't more vilification of streaming services, it's getting copyright and licensing on sane, stable ground.

Back in December, we noted that, somewhat ridiculously, all of the super popular Whatsapp service (owned by Facebook) was blocked in Brazil, because Facebook refused to reveal information on Whatsapp users as part of a drug trafficking investigation. While the court only allowed the block to last for a little while, apparently things have escalated, with a senior Facebook exec now being arrested for failing to cooperate in this case:

Facebook’s vice president for Latin America has been arrested on his way to work in São Paulo, Brazil. Federal police picked up Diego Dzodan because Facebook disobeyed a court order to help investigators in a drug case that involves a WhatsApp user.

The arrest was made at the request of officials from the state of Sergipe, in Brazil’s north-east. In a statement, the federal police said Facebook/WhatsApp had repeatedly failed to comply with court orders relating to an organized crime and drug-trafficking investigation.

This reminds me, somewhat of the case where some Google execs were tried and convicted in Italy, because they didn't take down a video fast enough (the company took it down, just not fast enough). While the underlying issues are different, arresting execs of tech companies because you don't like the way they operate their business seems like a good way to make sure innovative internet services are not offered in your country at all. And, in this case, where Facebook relies on strong encryption in Whatsapp, it seems likely that the issue may be that it was impossible to comply with the court order in this case (though the full details are not yet known). Either way, arresting an exec over this seems extremely troubling -- especially in a country such as Brazil that has been trying to set itself up as a strong supporter of a free and open internet, and that had argued against surveillance.

We all know the patent system is riddled with problems, and badly in need of reform. But reform comes slowly — really, really slowly. So some tech companies have been doing what they do best: innovate. They are finding ways to get around the biggest problems of the patent system without waiting on go-nowhere legislative reform efforts. This week we're joined by Julie Samuels, President of the Board at Engine, to discuss the innovation-based approach to navigating the patent system and changing patent culture with a focus on a new paper from Engine and EFF on hacking the patent system.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Google's self-driving cars have driven millions of miles with only a dozen or so accidents, all of them being the fault of human drivers rear-ending Google vehicles. In most of these cases, the drivers either weren't paying attention, or weren't prepared for a vehicle that was actually following traffic rules. But this week, an incident report by the California Department of Motor Vehicles (pdf) highlighted that a Google automated vehicle was at fault in an accident for what's believed to be the first time.

According to the report, Google's vehicle was in the right-hand turn lane in a busy thoroughfare in Google's hometown of Mountain View, California, last month, when it was blocked by some sand bags. It attempted to move left to get around the sand bags, but slowly struck a city bus that the car's human observer assumed would slow down, but didn't. All in all, it's the kind of accident that any human being might take part in any day of the week. But given the press and the public's tendency toward occasional hysteria when self-driving technology proves fallible, Google's busy trying to get out ahead of the report.

Google historically compiles monthly reports for its self-driving car project; and while its February report addressing this specific accident hasn't been made public yet, Google's been releasing an early look to the media. In the report, Google notes that just like humans, trying to predict another driver's behavior isn't always successful on the road:

"Our test driver, who had been watching the bus in the mirror, also expected the bus to slow or stop. And we can imagine the bus driver assumed we were going to stay put. Unfortunately, all these assumptions led us to the same spot in the lane at the same time. This type of misunderstanding happens between human drivers on the road every day.

This is a classic example of the negotiation that’s a normal part of driving – we’re all trying to predict each other’s movements. In this case, we clearly bear some responsibility, because if our car hadn’t moved there wouldn’t have been a collision. That said, our test driver believed the bus was going to slow or stop to allow us to merge into the traffic, and that there would be sufficient space to do that.

We’ve now reviewed this incident (and thousands of variations on it) in our simulator in detail and made refinements to our software. From now on, our cars will more deeply understand that buses (and other large vehicles) are less likely to yield to us than other types of vehicles, and we hope to handle situations like this more gracefully in the future."

Live and learn. Or compute and learn. Whatever. If automated vehicles were going to cause an accident, it's at least good that this appears to be an experience (don't give city bus drivers the benefit of the doubt) programmers will learn from. The problem historically is that like so many technologies, people are afraid of self-driving cars. As such, automated vehicles can't just be as good as human beings, they'll have to be better than human beings for people to become comfortable with the technology seeing widespread adoption.

By any measure self-driving cars have been notably safer than most people imagined, but obviously there's still work to do. Recent data from the General Motors-Carnegie Mellon Autonomous Driving Collaborative Research Lab suggests that self-driving cars have twice the accidents of human-driven vehicles -- but again largely because people aren't used to drivers that aren't willing to bend the rules a little bit. Striking an acceptable balance between having an automated driver be perfect -- and having an automated driver be more human like -- is going to be a work in progress for some time.

Oh, John Yoo. The former top Bush administration lawyer -- who is already well-known for writing that administration's (totally bullshit) "legal defense" for torture -- has also been an outspoken advocate for NSA surveillance as well. Soon after the Snowden revelations, Yoo defended the NSA arguing that the 4th Amendment shouldn't apply to the NSA because it takes too long. Then, he said that judges shouldn't be allowed to determine if the NSA violated the 4th Amendment because they're too out of touch with the American public. It's long been known that Yoo also was deeply involved in creating the legal justifications for that very warrantless surveillance program he's been defending, and now, finally, years later, the Office of the Director of National Intelligence has released the May 17, 2002 letter that Yoo sent to the FISA Court chief judge Colleen Kollar-Kotelly. You can read it here.

As the ODNI release notes, Judge Kollar-Kotelly was allowed to read the letter, justifying the NSA's warrantless surveillance on Americans, but "was not authorized to retain a copy or take notes" because nothing says transparency democracy like secret interpretations of the law where no one's allowed to know the details, and the people overseeing it are only allowed to glance at the justifications. It was the "re-evaluation" of this John Yoo rationalization that created the now infamous hospital room showdown in March of 2004, when some in the administration realized that Yoo was basically full of shit.

Anyway, now the Yoo memo (with plenty of redactions, of course!) has been released, and we can see just how absolutely ridiculous the whole thing was. In short, Yoo argues that even though, historically, the NSA was not allowed to do warrantless surveillance on Americans and the Foreign Intelligence Surveillance Act (FISA) made it clear that domestic surveillance needed to first be approved with warrants to the FISA Court (which is barely a court anyway), there was nothing that said that had to be the case, and the President was basically free to turn the NSA loose to spy on Americans without any FISA approval. First, he notes that the NSA is not technically or legally limited in surveilling Americans, even if it historically avoided doing so: In short, that says because Congress didn't explicitly limit the NSA in the same manner as the CIA, that must mean it's okay for the NSA to spy on Americans. This basically ignores the history and rationale for the NSA, which was entirely secret for much of its early history anyway, and created and run out of the executive branch with little Congressional oversight. Yoo then admits that the driving executive order that enables much of the NSA's activities -- the infamous Executive Order 12333 -- does explicitly say that the NSA can only conduct foreign signals intelligence surveillance, but that doesn't matter, because future Presidents aren't bound by previous Presidents' executive orders. He also argues that if the NSA is spying on Americans in order to seek "significant foreign intelligence," then it's perfectly fine as well. He then admits, generously, that even though there's no actual legal restriction (in his mind) on the NSA spying on Americans, that it could "be in tension with FISA" since FISA requires a warrant for domestic surveillance. But fear not, evil legal genius John Yoo has a bullshit way around that as well. He goes through a detailed description of the limits of getting a warrant approved by FISA and bemoans the fact that it wouldn't be possible to intercept all phone calls from a certain country under FISA.

And here's where he gets really tricky. He says that FISA is not necessarily a limitation on what kind of surveillance can be done, but merely a safe harbor such that if you follow it you're automatically presumed safe under the 4th Amendment. However, he insists that FISA cannot limit the President's constitutional powers, and thus the President can still order warrantless domestic surveillance outside of FISA, and the only issue is that it's outside of the FISA "safe harbors" -- so it may not be automatically presumed in compliance with the 4th Amendment: From there, he goes on for a while insisting that the President has the Constitutional power to order warrantless surveillance basically whenever he wants, with the only limitation being the 4th Amendment (which we'll get to). And then he pulls a neat little trick, insisting that the President doesn't require a warrant for conducting surveillance for national security related purposes (pointing to some caselaw involving questions around due process in espionage cases), and notes that, even better, FISA itself means that "surveillance conducted for national security purposes is not subject to the same Fourth Amendment standards that apply in domestic criminal cases."

Did you see the neat trick he played there? First, he showed that the President can ignore FISA and Executive Order 12333, and then used FISA (which he already said the President could ignore) to argue that the 4th Amendment standards don't really apply either. You want to know why lawyers get a bad name for bullshit arguments? Look at John Yoo -- and then remember that his bullshit arguments weren't just around a single case, but to justify spying on all Americans without a warrant (we'll leave aside the fact that he did the same thing for torture as well).

From there, he actually argues that a court reading FISA to restrict the President would create a constitutional conflict: This is a pretty fascinating rewriting of history. The whole point of the Foreign Intelligence Surveillance Act was to put limits and oversight on the collection of foreign intelligence information. And here Yoo argues that Congress intended no such thing as the very purpose of the law. That's kind of astounding.

From there, Yoo then tries to argue that warrantless wiretapping of basically everyone in America also does not violate the 4th Amendment. First, he argues that the 4th Amendment does not apply to non-US persons. Next, he said that communications that leave the US electronically are also no longer subject to the 4th Amendment due to the "border search exception" -- an issue that we've discussed plenty of times for people who have had their laptops searched as they enter the country. This, apparently, is part of Yoo's 4th Amendment loophole. Any communications involving Americans that happens to slip outside of US borders loses any 4th Amendment protections. The fact that it's digital, not physical, makes no difference according to John Yoo's extremely distorted moral compass. But, he admits that there might be some concerns about the border search theory with regards to the contents of email and phone calls, so he has a trick: how about we just say the 4th Amendment doesn't apply to the metadata, and we'll call it even.

Then he uses the infamous Smith v. Maryland case, that established the Third Party Doctrine to argue further that there's no 4th Amendment issue with sucking up all metadata. We've heard this argument many times in court by now. Because this one 1979 ruling, which was about whether or not law enforcement could get the phone records of a single phone from a person that they were tracking for criminal behavior, that means that everyone has given up any expectation of privacy in any metadata they have on any communications record -- including email. This also suggests Yoo has no clue how email works. The reason that the phone records were considered legit was because the phone company had to track all of your phone calls for billing reasons, and thus had a "legitimate business purpose" in keeping track of all your phone record metadata. That's not how email works, but Yoo basically pretends it does: My ISP doesn't get access to who I email. Because that's not how email works.

Next up, Yoo argues that because the Fourth Amendment was really designed to deal with "curbing law enforcement abuses," it really shouldn't apply to support for "military operations." And since the response to 9/11 is really about military operations, the 4th Amendment shouldn't apply to spying on all Americans because it's to support that purpose: Finally, he argues that even if this program were subject to the 4th Amendment, which he doesn't think it should be, that's still okay, because snooping on every American's communications is still "reasonable" under the 4th Amendment... because TERRORISTS!!!!!!! In short, Yoo basically wipes aside anything that protects Americans from mass surveillance, despite the fact that the 4th Amendment was specifically designed to stop "general warrants" that allowed for mass surveillance, and despite the fact that FISA was passed to stop government abuse of surveillance powers. To Yoo, there's an excuse for basically any kind of government intrusion on our private lives, and even if the laws and Constitution do apply, no problem, you just shout "terrorism" and all is allowed.

This is a really sickening letter. At the very least, it should have been made public at the time it was written so that it could have been debated (and trashed as ridiculous) at the time it was made. Instead, it was done in secret, given to a judge who could only read it and not keep it or take notes, and then wasn't revealed publicly for almost 14 years. This is not how a democracy is supposed to function.

Learn how to take your UI/UX design skills to the next level with the 6 course UI & UX Design Bootcamp available for $39. Over the 39+ hours of training, you'll learn how to interview users, develop projects from start to finish and how to build and execute upon a UX/UI strategy. The courses cover mobile app design with a focus on design fundamentals, learning various programming languages, working with Android Marshmallow, and how to design apps that keep your customers coming back for more.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.