We keep pointing to examples like this, but the examples are getting starker and more depressing. Lots of people keep arguing that internet platforms (mainly Facebook) need to be more aggressive in taking down "bad" speech -- often generalized under the term "hate speech." But, as we've pointed out, that puts tremendous power into the hands of those who determine what is "hate speech." And, while the calls for censorship often come from minority communities, it should be noted that those in power have a habit of claiming criticism of the powerful is "hate speech." Witness the news from Burma that Rohingya activists have been trying to document ethnic cleansing, only to find Facebook deleting all their posts. When questioned about this, Facebook (after a few days) claimed that the issue was that these posts were coming from a group it had designated a "dangerous organization."

So, is it a dangerous organization or a group of activists fighting against ethnic cleansing? Like many of these things, it depends on which side you stand on. As the saying goes, one person's terrorist is another's freedom fighter. And this just highlights the tricky position that Facebook has taken on -- often at the urging of people who demand that it block certain content. Facebook shouldn't be the ones determining who's a terrorist v. who's a freedom fighter and when we keep asking the site to be that final arbiter, we're only inviting trouble.

The real issue is how we've built up these silos of centralized repositories of information -- rather than actually taking advantage of the distributed web. In the early days of the web, everyone controlled their own web presence, for the most part. You created your own site and posted your own content. Yes, there were still middlemen and intermediaries, but there were lots of options. But centralizing all such content onto one giant platform and then demanding that platform regulate the content -- these kinds of problems are going to happen again and again and again.

The ongoing prosecution of document leaker Reality Winner has developed some new wrinkles. Despite having a very traceable leaked document in hand, the FBI is pitching in by misleading government lawyers -- and by extension, the presiding court. Maybe it's deliberate. Maybe it isn't. Either way, the administration wants desperately to crack down on leakers, and having a high-profile case result in a multi-year sentence would be a good start.

Right now, the government just wants to keep Winner locked up until her trial. Prosecutors have been arguing against her being released from jail by misconstruing the contents of recorded calls from Winner. (h/t Jeremy Scahill)

In arguing for her to be kept in the Lincoln County Jail in Lincolnton, Assistant U.S. Attorney Jennifer Solari told a judge Winner was recorded in a jailhouse phone call discussing some “documents” — plural — raising concerns she might have gathered other top-secret information beyond the NSA report she is accused of leaking. Solari said she was also overheard directing the transfer of $30,000 from her savings account to her mother’s account because the court had taken away her free appointed counsel.

But none of this is true. And it's not as though it's a matter of interpretation. Recordings exist.

But in an email to Winner’s attorneys on June 29, Solari said Winner could be heard in the recording telling her mom she “leaked a document,” singular. And in another recorded phone call, Solari said, Winner asked her mom to transfer her money because of fears authorities “might freeze it.” Winner’s attorneys said she was afraid she would not be able to pay her bills if her account were frozen.

So, where did this bogus info come from? The FBI, of course, which can't be bothered to let a recording literally speak for itself. US Attorney Solari stated in her email her comments on plural documents and the reasons for the requested funds transfer came from "verbal summaries" of the calls provided by the feds.

If there's anything the FBI has shown a systemic dislike for, it's recordings. Despite several decades of recording tech advancements, the FBI prefers pen-and-paper for "recording" interviews with suspects, indictees, and witnesses. In this case, the FBI could have given the prosecutor the recordings directly. Instead, it chose to provide an inaccurate summary. With the FBI, it's never your word against theirs. It's the FBI's words. Period.

Winner's attorneys have asked for her release pending trial, pointing to former military personnel who were allowed to roam free before having their day in court -- people like Gen. Petraeus, who was allowed to retain his position as CIA director up until he plead guilty to mishandling classified documents. But, as her attorneys are surely aware, a multi-tiered justice system doesn't allow for the release of NSA contractors who don't have Forever War Hero listed on their resumes.

Beneath all of this is one incredible fact: the FBI chose to present a verbal recap rather than hand over recordings. If the prosecutor hadn't bothered to listen to the tapes, the judge would be relying on misstatements made by the FBI when making a decision affecting someone's freedom. And if it had gone further than this, those verbal recaps might have been entered as evidence showing Winner was seeking to cut-and-run and possibly leak more documents -- both of which would have had an extremely adverse effect on her sentencing.

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Making American Political Hypocrisy Great Again:

President Trump's son-in-law and senior adviser Jared Kushner has used a private email account to conduct and discuss official White House business dozens of times, his lawyer confirmed Sunday.

Kushner used the private account through his first nine months in government service, even as the president continued to criticize his opponent in the 2016 presidential election, Democrat Hillary Clinton, for her use of a private email account for government business.

And, because once is never enough:

Ivanka Trump used a personal email account to communicate with a member of President Trump’s administration, a watchdog group said Monday.

American Oversight obtained documents through the Freedom of Information Act (FOIA) that show Ivanka Trump, a senior White House adviser to her father, used a personal email account to contact Small Business Administration Administrator Linda McMahon in February.

It's not as though anyone isn't aware of their responsibility to use official government email accounts for official government business. There's a duty to preserve records that goes hand-in-hand with FOIA law. Those who choose to do business this way are either lazy or devious. And it doesn't necessarily have to be one or the other.

At this point, the criticisms that paved the way to Trump's win can almost all be levied against the new administration. All we're really waiting for is someone to show up with a birth certificate showing Donald Trump isn't a natural-born US citizen.

Clinton's excuse for her continuous use of a private email account was "convenience." Guess what Kushner's is:

Once in the White House, Kushner used his private account for convenience from time to time — especially when he was traveling or using a personal laptop, according to two people familiar with his practice.

As innocuous as the use appears to be -- at least according to obtained documents and unidentified sources' statements -- the point is people in government positions know better than to continue using private email accounts for government business. There's no excuse at this point -- not with more than 25 years of mainstream email use and a half-century of federal public records law.

That officials continue to do this highlights a flaw in public records laws: the fact that they're written by people with the most interest in keeping some communications secret. Private email accounts are used because there's a good likelihood courts won't force every email to be turned over in the event of a records request lawsuit. Even better, since the chance of an actual lawsuit being filed is low enough, many public figures feel these dice are safe to roll.

This isn't solely a Trump Administration problem, but it's definitely a case of double standards. We expect those from our politicians, sadly. But we don't expect them on the level we've seen over the past several months, where political opponents are savaged by administration officials (including the president) for behavior Trump's own team engages in.

For much of this year, Sprint and its Japanese owner Softbank have been buttering up the Trump administration in the hopes it will sign off on a merger between Sprint and T-Mobile. Sprint tried the same merger back in 2014, but found the attempt wisely blocked by regulators because it would have killed one of just four major wireless competitors in the space. Said buttering up has involved letting Trump falsely claim responsibility for murky Softbank job creation claims that were originally planned years ago, have nothing to do with the merger, and even less to do with Donald Trump.

Obviously the wireless market is enjoying a bit of a resurgence lately courtesy of T-Mobile, which has been giving bigger competitors fits by simply listening to what consumers want (fewer hidden bullshit fees, no contracts, cheaper international roaming) and providing it. In turn, wireless consumers have seen some notable improvements in the last year or two, including AT&T and Verizon being forced to bring back unlimited data plans they had previously tried to claim consumers didn't want. It's a resurgence that wouldn't have happened if regulators hadn't blocked AT&T's own attempted takeover over T-Mobile back in 2011 (something telecom giants and the "who needs government oversight?" sect would have you forget).

Yet here we are once again. With the Trump administration now acting as little more than a rubber stamp for telecom sector incumbents (see the killing of privacy protections, net neutrality rules, attempts to bring competition to the cable box, efforts to bring broadband to the poor, etc.) most analysts believe the Trump DOJ and FCC will happily approve this deal, the obvious competitive repercussions be damned. To help make sure, Sprint this month hired a lobbyist connected to Trump in the hopes of further greasing the skids for deal approval.

As a result, the proposed superunion between Sprint and T-Mobile appears to be quickly gaining steam, with a deal to be formally announced sometime in October:

"The transaction would significantly consolidate the U.S. telecommunications market and represent the first transformative U.S. merger with significant antitrust risk to be agreed since the inauguration of U.S. President Donald Trump in January. The progress toward a deal also indicates that T-Mobile and Sprint believe that the U.S. antitrust enforcement environment has become more favorable since the companies abandoned their previous effort to combine in 2014 amid regulatory concerns.

With the deal set to make headlines, you can expect an absolute torrent of pay-to-play editorials to start popping up in newspapers and websites nationwide, all of them trying to insist this deal will be of indisputable benefit to consumers. A wide variety of groups take telecom cash to repeat whatever they're told, whether it's rural Texas school associations, the U.S. Cattlemen's Association or co-opted minority groups, and you can be damn sure the dollar-per-hollar voices paid to support shitty policy will be out in force making a littany of false claims about the supposed perks of this latest, attempted union.

But as John Oliver just got done exploring, history isn't murky on this particular point: the elimination of a major competitor by merger undermines competition in a sector that's already well-known for a lack of it. Removing one of four competitors in the space will drive up prices, and could result in the elimination of unlimited data plans that only just re-appeared on the market. Apparently, this isn't a historical reality many T-Mobile customers are particularly tuned into, if this informal poll is any indication:

Many of these looming pay-to-play editorials selling this turd of a deal will try to argue that Sprint needs the deal to remain viable, but under SoftBank Sprint has notably improved its balance sheet and network, and there's a litany of possible suitors that could help Sprint manage its debt load (Comcast, Charter, Dish) that don't involve killing one of four major wireless competitors. Others will try to claim immeasurable job creation from the merger, when history repeatedly indicates that these kinds of mergers are indisputable job killers -- thanks to the elimination of countless redundancies at the acquired company.

The real challenge in selling this merger will fall in the lap of John Legere, the admittedly amusing T-Mobile CEO that has built a reputation for saying fuck a lot on Twitter and for being a consumer ally (even if this dedication has proven skin deep on subjects like net neutrality and the EFF). Leaks suggest Legere will stay on at the freshly-merged company, but may face headwinds in convincing some of the more alert T-Mobile customers that dramatically reducing market competition will somehow, magically, be immeasurably good for them.

Here's how you can become a terrorist without actually participating in anything terror-related. Just hang out in the UK with locked devices until law enforcement develops an interest in you.

A director of a Muslim advocacy group has been convicted of failing to hand over passwords for an iPhone and a laptop, which he said contained sensitive information from a torture victim.

Muhammad Rabbani, 36, from London, was found guilty but walked free after being handed a 12-month conditional discharge at Westminster magistrates' court on Monday. He was ordered to pay £600 in costs.

The police may have failed to sweat passwords out of Rabbani during last November's three-hour detention, but they were instrumental in getting him charged under the UK's terrorism laws. Rabbani will be serving the UK equivalent of a suspended sentence. No jail unless "further violations" occur. This means all police have to do is stop him somewhere else and demand his passwords. Any refusal to do so will be a violation of his conditional discharge.

Unlike the US, there's no question of potential rights violations to be resolved. The UK's anti-terror laws enable this sort of law enforcement behavior. Rabbani said he had sensitive information on his devices he didn't feel comfortable sharing with police, especially when they had little reason to suspect him of being up to anything terroristic.

Rabbani is apparently investigating a torture case linked to the US, involving a citizen in one of the Brown Countries (a.k.a., a Gulf state). His trips back and forth have been greeted with much consternation and demands for device passwords. But it wasn't until last November UK law enforcement finally decided to move ahead with charges.

The court handing down the sentence was almost apologetic.

In sentencing, senior district judge Emma Arbuthnot said she believed Rabbani was protecting sensitive information but was bound by the law to find him guilty.

This is why bad bills should never be made law. They force people -- like judges -- to sentence someone for the crime of being uncooperative. Testimony during the case didn't clear anything up. The officer who performed the attempted search and actual arrest wouldn't say whether he was acting on specific information about Rabbani, or simply hassling someone UK police had hassled several times before without feeling the need to turn it into a terrorism case.

Passwords/pins are a foregone conclusion in the UK if the court can be convinced law enforcement demands were somehow related to national security. That's how the 2000 terrorism law was designed. And with Rabbani, we're being shown how it works.

Back in March of this year, Techdirt wrote about ResearchGate, a site that allows its members to upload and share academic papers. Although the site says it is the responsibility of the uploaders to make sure that they have the necessary rights to post and share material, it's clear that millions of articles on ResearchGate are unauthorized copies according to the restrictive agreements that publishers typically impose on their authors. As we wrote back then, it was interesting that academic publishers were fine with that, but not with Sci-Hub posting and sharing more or less the same number of unauthorized papers.

Somewhat belatedly, the International Association of Scientific Technical and Medical Publishers (STM) has now announced that it is not fine with authors sharing copies of their own papers on ResearchGate without asking permission. In a letter to the site from its lawyers (pdf), the STM is proposing what it calls "a sustainable way to grow and to continue the important role you play in the research ecosystem". Here's what it wants ResearchGate ("RG") to do:

RG's users could continue "claiming”, i.e. agreeing to make public or uploading documents in the way they may have become accustomed to with RG's site. An automated system, utilizing existing technologies and ready to be implemented by STM members, would indicate if the version of the article could be shared publicly or privately. If publicly, then the content could be posted widely. If privately, then the article would remain available only to the co-authors or other private research groups consistent with the STM Voluntary Principles. In addition, a message could be sent to the author showing how to obtain rights to post the article more widely. This system could be implemented within 30-60 days and could then handle this "processing" well within 24 hours.

In other words, an upload filter, of exactly the kind proposed by the European Commission in its new Copyright Directive. There appears to be a concerted push by the copyright industry to bring in upload filters where it can, either through legislation, as in the EU, or through "voluntary" agreements, as with ResearchGate. Although the lawyer's letter is couched in the politest terms, it leaves no doubt that if ResearchGate refuses to implement STM's helpful suggestion, things might become less pleasant. It concludes:

On behalf of STM, I urge you therefore to consider this proposal. If you fail to accede to this proposal by 22 September 2017, then STM will be leaving the path open for its individual members to follow up with you separately, whether individually or in groups sharing a similar interest and approach, as they may see fit.

What this latest move shows is that publishers aren't prepared to allow academics to share even their own papers without permission. It underlines that, along with fat profits, what the industry is most concerned about in this struggle is control. Academic publishers will graciously allow ResearchGate to exist, but only if they are recognized unequivocally as the gatekeeper.

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So, you've probably heard stories in the past about the fear some trademark lawyers have about "genericide" -- where their product's name becomes so attached to the product that it's considered generic and the trademark no longer applies? Think kleenex and xerox for example. We've found, over the years, that people get a bit too worked up about this, leading trademark lawyers to make some really dumb demands along the way to try to "prevent" what is generally impossible to actually prevent. We also often see people claim (falsely) that this means companies are required to stop any and all uses of their mark, even when not infringing (or, even worse, seeing people falsely claiming that the same thing applies to copyright). Either way, the company Velcro has taken... well... quite a unique approach to the fact that everyone calls their most famous product "velcro" -- even when made by competitors. They made an absolutely hilarious "We are the World"-style video begging you not to call it Velcro and telling you, in no uncertain terms, that they it's "fucking hook & loop." Really.

When I first saw it, I thought it was a John Oliver or SNL-style parody video, but nope. It's real. It's on Velcro's official YouTube feed, and they even have a behind the scenes "making of" video to explain how the video was made and how it came about (including the fact that two actual Velcro lawyers are in the video).

Of course, they insist they're doing this to get people talking about the importance of calling it "hook and loop" though I think at best, it will just get people talking about how incredibly dumb trademark law has become, where this kind of thing is seen as necessary. The only people who will now start calling it "hook and loop" are likely to be people doing it ironically. In which case, they may go with the longer "this is fucking hook and loop," as the song suggests. But, as the song itself suggests, it's totally ridiculous that the company has to do this to try to get you to stop saying the brand name that the company spent "60 plus years" building. The song also jokingly references other genericized brands, such as Clorox, Band-Aid and Rollerblades.

Thankfully, they don't seem to get the finer points of the law really wrong in the song -- noting that the patent on velcro expired 40 years ago, and if everyone calls everything similar velcro, the company might "lose our circle R." Of course, they leave out the fact that if they lose the trademark... it's actually probably not that big a deal. People will still call all similar products velcro, but Velcro-brand velcro will almost certainly still be able to charge a premium, since people will recognize the brand name.

And that's really what highlights how dumb all of this is. Even if you lose the trademark to genericide, that doesn't mean the company packs up and moves on. It just shows how much the brand itself has resonated, and companies have lots of ways to continue to capitalize on that brand, even without the registered trademark. So, while I can always get behind hilarious videos concerning oddities in trademark, copyright or patent law, this video seems like a much better lesson in the stupidity of trademark law (and how much lawyers overreact to the fear of genericide) than any legitimate argument against calling someone else's velcro-like fastner "velcro."

A few weeks ago, we noted that Judge Rodney Gilstrap, a judge in East Texas who is infamous for handling approximately 25% of all patent cases in the entire country, appeared to be ignoring the Supreme Court in an effort to keep all those patent cases in his own docket. You see, earlier this year, in an important case, the Supreme Court said that the proper venue for a patent lawsuit to be brought should be where the defendant "resides" rather than just wherever they "do business." Previously, patent trolls had said that the lawsuits could be brought wherever a company did business -- which, with internet firms, meant anywhere -- allowing them to file in their favorite court in East Texas. The Supreme Court said "that's not what the law says."

But Gilstrap tried, somewhat creatively, to twist himself around those rules, by arguing that all sorts of other factors could be used to determine "residence" -- basically including (again) if you had any connection to that jurisdiction at all -- and thus continue to allow East Texas to be an acceptable venue. We listed out those factors in the earlier post, but don't need to do so again, because the Court of Appeals for the Federal Circuit has already weighed in and said "nope, that's not how it works."

The ruling is pretty straightforward. Basically, it says "when we say a defendant has to reside in that venue, we mean it."

As discussed in greater detail below, our analysis of the case law and statute reveal three general requirements relevant to the inquiry: (1) there must be a physical place in the district; (2) it must be a regular and established place of business; and (3) it must be the place of the defendant. If any statutory requirement is not satisfied, venue is improper...

The court then points out that words have meaning, and making up a "test" that is untethered to the meaning of the words in the statute is simply not acceptable.

The statutory language we need to interpret is “where the defendant . . . has a regular and established place of business.” 28 U.S.C. § 1400(b). The noun in this phrase is “place,” and “regular” and “established” are adjectives modifying the noun “place.” The following words, “of business,” indicate the nature and purpose of the “place,” and the preceding words, “the defendant,” indicate that it must be that of the defendant. Thus, § 1400(b) requires that “a defendant has” a “place of business” that is “regular” and “established.” All of these requirements must be present. The district court’s four-factor test is not sufficiently tethered to this statutory language and thus it fails to inform each of the necessary requirements of the statute.

And thus, Gilstrap's argument that a "virtual" presence in the district is enough... is not, in fact, enough:

As noted above, when determining venue, the first requirement is that there “must be a physical place in the district.” The district court erred as a matter of law in holding that “a fixed physical location in the district is not a prerequisite to proper venue.” ... This interpretation impermissibly expands the statute. The statute requires a “place,” i.e., “[a] building or a part of a building set apart for any purpose” or “quarters of any kind” from which business is conducted. William Dwight Whitney, The Century Dictionary, 732 (Benjamin E. Smith, ed. 1911); see also Place, Black’s Law Dictionary (1st ed. 1891) (defining place as a “locality, limited by boundaries”). The statute thus cannot be read to refer merely to a virtual space or to electronic communications from one person to another. But such “places” would seemingly be authorized under the district court’s test.

The court dings the other prongs of Gilstrap's test as well, showing that each is insufficient and then sends it back to the lower court to determine which other court the case should be transferred to, but making it clear that "East Texas" is not one of the options.

There was a shocking moment in this week’s Senate Commerce Committee hearing on the Stop Enabling Sex Traffickers Act (SESTA). Prof. Eric Goldman had just pointed out that members of Congress should consider how the bill might affect hundreds of small Internet startups, not just giant companies like Google and Facebook. Will every startup have the resources to police its users’ activity with the level of scrutiny that the new law would demand of them? “There is a large number of smaller players who don’t have the same kind of infrastructure. And for them, they have to make the choice: can I afford to do the work that you’re hoping they will do?”

Goldman was right: the greatest innovations in Internet services don’t come from Google and Facebook; they come from small, fast-moving startups. SESTA would necessitate a huge investment in staff to filter users’ activity as a company’s user base grows, something that most startups in their early stages simply can’t afford. That would severely hamper anyone’s ability to launch a competitor to the big Internet players—giving users a lot less choice.

Sen. Richard Blumenthal’s stunning response: “I believe that those outliers—and they are outliers—will be successfully prosecuted, civilly and criminally under this law.”

Given the extreme penalties for under-filtering, platforms would err in the opposite direction, removing legitimate voices from the Internet.

Blumenthal is one of 30 cosponsors—and one of the loudest champions—of SESTA, a bill that would threaten online speech by forcing web platforms to police their members’ messages more stringently than ever before. Normally, SESTA’s proponents vastly understate the impact that the bill would have on online communities. But in that unusual moment of candor, Sen. Blumenthal seemed to lay bare his opinions about Internet startups—he thinks of them as unimportant outliers and would prefer that the new law put them out of business.

Let’s make something clear: Google will survive SESTA. Much of the SESTA fight’s media coverage has portrayed it as a battle between Google and Congress, which sadly misses the point. Large Internet companies may have the legal budgets to survive the massive increase in litigation and liability that SESTA would bring. They probably also have the budgets to implement a mix of automated filters and staff censors to comply with the law. Small startups are a different story.

Indeed, lawmakers should ask themselves whether SESTA would unintentionally reinforce large incumbent companies’ advantages. Without the strong protections that allowed today’s large Internet players to rise to prominence, startups would have a strong disincentive to grow. As soon as your user base grows beyond what your staff can directly police, your company becomes a huge liability.

But ultimately, the biggest casualty of SESTA won’t be Google or startups; it will be the people pushed offline.

Many of SESTA’s supporters suggest that it would be easy for web platforms of all sizes to implement automated filtering technologies they can trust to separate legitimate voices from criminal ones. But it’s impossible to do that with anywhere near 100% accuracy. Given the extreme penalties for under-filtering, platforms would err in the opposite direction, removing legitimate voices from the Internet. As EFF Executive Director Cindy Cohn put it, “Again and again, when platforms clamp down on their users’ speech, marginalized voices are the first to disappear.”

The sad irony of SESTA is that while its supporters claim that it will fight sex trafficking, trafficking victims are likely to be among the first people it would silence. And that silence could be deadly. According to Freedom Network USA, the largest network of anti-trafficking advocate organizations in the country (PDF), “Internet sites provide a digital footprint that law enforcement can use to investigate trafficking into the sex trade, and to locate trafficking victims.” Congress should think long and hard before passing a bill that would incentivize web platforms to silence those victims.

Internet startups would take the much greater hit from SESTA than large Internet firms would, but ultimately, those most impacted would be users themselves. As online platforms ratcheted up their patrolling of their users’ speech, some voices would begin to disappear from the Internet. Tragically, some of those voices belong to the people most in need of the safety of online communities.

Republished from EFF's Deeplinks blog