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Coalition Slams DHS Plans To Demand Social Media Passwords (Privacy)

by Mike Masnick

from the isn't-that-a-cfaa-violation? dept on Wednesday, February 22nd, 2017 @ 4:46PM

Starting last summer, we noted that the Department of Homeland Security had quietly tested the waters to expand the information it requested of travelers entering the United States, to "optionally" include social media handles. By December it was officially in place. And then, just days into the new administration, the idea was floated to expand this program even further to demand passwords to social media accounts.

In other words: that escalated quickly. We went from "hey, maybe we could ask people to volunteer what their social media profiles are" to "hey, let's demand all social media accounts, including passwords" in, like, six months.

In response, a ton of human rights and civil liberties organizations have posted an open letter condemning this dangerous plan.

This proposal would enable border officials to invade people’s privacy by examining years of private emails, texts, and messages. It would expose travelers and everyone in their social networks, including potentially millions of U.S. citizens, to excessive, unjustified scrutiny. And it would discourage people from using online services or taking their devices with them while traveling, and would discourage travel for business, tourism, and journalism.

Demands from U.S. border officials for passwords to social media accounts will also set a precedent that may ultimately affect all travelers around the world. This demand is likely to be mirrored by foreign governments, which will demand passwords from U.S. citizens when they seek entry to foreign countries. This would compromise U.S. economic security, cybersecurity, and national security, as well as damage the U.S.’s relationships with foreign governments and their citizenry.

Policies to demand passwords as a condition of travel, as well as more general efforts to force individuals to disclose their online activity, including potentially years’ worth of private and public communications, create an intense chilling effect on individuals. Freedom of expression and press rights, access to information, rights of association, and religious liberty are all put at risk by these policies.

The first rule of online security is simple: Do not share your passwords. No government agency should undermine security, privacy, and other rights with a blanket policy of demanding passwords from individuals.

There are lots of reasons why the proposal is bad -- but the security one is probably the biggest. People should never share passwords with anyone, but most especially foreign governments who have no interest in protecting them. And the letter is accurate that this will just encourage other countries to do this back to Americans (and others) and create a massive security nightmare. And that doesn't even touch on the chilling effects created by such promised surveillance.

Of course, one hopes that this kind of insane policy will get people to recognize that passwords suck as a security system. At the very least, it should encourage people to use multifactor authentication that can't just be handed over to some random border control person demanding your passwords. But that's no excuse for DHS going down this path in the first place. It's a bad proposal that won't help DHS protect us, but will cause tremendous harm and create serious security problems.

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Another Free Speech Win In Libel Lawsuit Disguised As A Trademark Complaint (Free Speech)

by Tim Cushing

from the free-roaming-anti-SLAPP-law-pitches-in dept on Wednesday, February 22nd, 2017 @ 2:42PM

Unless the Supreme Court decides to weigh in on this long-running SLAPP lawsuit (highly unlikely -- and unlikely to be appealed to that level), it looks like it's finally the end of the line for Dr. Edward Tobinick and his quest to silence a critic of his questionable medical practices.

Quick recap: Dr. Tobinick claimed he could treat Alzheimer's, strokes, and other neurological maladies by repurposing an immunosuppressant drug. Dr. Steven Novella disagreed with Tobinick's unsubstantiated claims and wrote a few blog posts detailing his problems with Tobinick's treatments.

Tobinick is not a neurologist, and yet he feels it is appropriate for him to treat multiple neurological conditions with an experimental treatment. It is generally considered unethical for physicians to practice outside of their area of competence and expertise. He is trained in internal medicine and dermatology and is certified in those specialties. He has never completed a neurology residency nor is he board certified in neurology.

Despite his lack of formal training and certification, he feels he has ushered in a “paradigm shift” in the treatment of Alzheimer’s disease – a disease that has proved challenging for actual neurologists for decades.

Novella is not alone in his criticism of Tobinick's untested treatment methods. Early on in the case, Marc Randazza summarized the general medical community mood.

Dr. Novella’s critical opinions of the Plaintiffs are not outlier views. In fact, the prevailing view seems to be that Dr. Tobnick is, at best, irresponsible. On the first page of Google alone, there are numerous other articles written by other authors, entirely unrelated to the article at hand, that also express critical and unflattering opinions of Tobinick and Plaintiffs’ “medical” practice.

Hoping to avoid an anti-SLAPP ruling or the judicial scrutiny that normally comes with defamation complaints, Tobinick tried to frame his censorship pleas as trademark law violations, claiming Novella's blog posts were "commercial speech" designed to interfere with his ability to earn an income treating people with questionable drug repurposing.

The lower court didn't care much for Tobinick's arguments. It found no merit in his severely-stretched Lanham Act claims and, better yet, applied California's anti-SLAPP law to the lawsuit Tobinick filed in Florida.

Tobinick appealed. And all he's really succeeded in doing is generating more legal fees he'll be responsible for. The Eleventh Circuit Appeals Court has upheld [PDF] the lower court's decision, handing Dr. Novella, attorney Marc Randazza, and the First Amendment a significant win. (If you're a fan of oral, the arguments can be found here.)

Appellants Edward Lewis Tobinick, MD (“INR CA”), INR PLLC (“INR FL”), and M.D. Edward Tobinick (“Dr. Tobinick”) (collectively, the “Tobinick Appellants”) appeal the district court’s orders striking INR CA’s state law claims pursuant to California’s anti-SLAPP statute, twice denying amendment of the Tobinick Appellants’ complaint, denying relief pursuant to Federal Rules of Civil Procedure (“Rule”) 37, 56(d), and 60 due to potential discovery-related abuses, and granting summary judgment against the Tobinick Appellants on their Lanham Act claim. We affirm the district court in all respects.

As for Tobinick's attempt to keep an anti-SLAPP law from another state from killing his Florida lawsuit, the appeals court points out that if this was an issue Tobinick wanted addressed, he needed to raise it with the lower court, rather than use the appeals process to develop unexplored options.

The Tobinick Appellants waived their challenge to the district court’s application of California’s anti-SLAPP statute based on the Erie doctrine. The Tobinick Appellants did not raise the Erie claim in their response to Dr. Novella’s special motion to strike INR CA’s state law claims, nor do the Tobinick Appellants now contend that they ever raised the issue before the district court. Moreover, when asked by the district judge “what about the issue of anti-SLAPP statutes applying in diversity cases in federal court?” the Tobinick Appellants’ counsel responded “[t]here seems to be a plethora of case law that suggests that it is allowable in diversity actions in federal court.”

No exception to waiver saves the Tobinick Appellants’ claim. The Tobinick Appellants have not identified any miscarriage of justice resulting from a finding of waiver, nor do we see one, given the weakness of the Tobinick Appellants’ state law claims.

The appeals court is even less kind to Tobinick's Lanham Act violation accusations -- all of which hinge on defining Novella's blog posts as commercial speech. Not only did Tobinick repurpose trademark law in an attempt to turn a baseless libel lawsuit into something that might survive the first motion to dismiss, but his Lanham Act arguments rely on a conspiracy theory Alex Jones himself might find implausible.

As a preliminary matter, there is no factual dispute as to where the articles were displayed online, how the websites were set up, and whether the websites generated revenue through advertisements and membership subscriptions. The Tobinick Appellants describe a complex “funneling” scheme to generate profit for Dr. Novella, in which the Tobinick Appellants claim that the two articles are connected to other websites through hyperlinks in a way that readers are directed to websites that generate revenue for Dr. Novella, such as through advertising or membership subscriptions. This funneling theory, which attempts to connect the articles to revenue sources, relies on such a level of attenuation that it fails to demonstrate economic motivation in the commercial speech context.

Even if it were more easily-connected, Novella's speech would still be protected and not in violation of the Lanham Act. The court points out Novella's medical practice has no overlap with Tobinick's. Furthermore, the content of Novella's articles -- the examination of a potentially-dangerous misapplication of immunosuppressant drugs -- is very much in the public interest, which only strengthens its First Amendment protections.

As the court points out, finding critical speech that results in revenue a violation of the Lanham Act would do serious harm to the most famous beneficiaries of the First Amendment.

To be sure, neither the placement of the articles next to revenue-generating advertising nor the ability of a reader to pay for a website subscription would be sufficient in this case to show a liability-causing economic motivation for Dr. Novella’s informative articles. Both advertising and subscriptions are typical features of newspapers, whether online or in-print. But, the Supreme Court has explained that “[i]f a newspaper’s profit motive were determinative, all aspects of its operations—from the selection of news stories to the choice of editorial position—would be subject to regulation if it could be established that they were conducted with a view toward increased sales. Such a basis for regulation clearly would be incompatible with the First Amendment.”

Furthermore, as our sister circuits have recognized, magazines and newspapers often have commercial purposes, but those purposes do not convert the individual articles within these editorial sources into commercial speech subject to Lanham Act liability.

This puts Dr. Tobinick back where he was in October 2015: on the hook for legal fees because he figured the best response to speech he didn't like was a bogus Lanham Act lawsuit. And, as is of particular relevance given recent events, more courts are applying states' anti-SLAPP laws to baseless lawsuits, regardless of the jurisdiction in which they're filed.



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Techdirt's Readers Kept This German Comedian Out Of Prison (Free Speech)

by David Meyer Lindenberg

from the trolling-Gollum dept on Wednesday, February 22nd, 2017 @ 1:20PM

[The following post was contributed by Fault Lines (a Scott Greenfield/Lee Pachia joint) columnist David Meyer Lindenberg, a self-described "wannabe 1-L" and actual German. The last fact explains his in-depth knowledge of German speech laws, which Mike Masnick has graciously allowed him to dump all over Techdirt's pages. Enjoy! {And possibly NSFW around the middle-ish.}]

Remember Jan Böhmermann? The guy who caused a major diplomatic spat back in April when he read out a satirical poem about Recep Tayyip Erdogan, the notoriously thin-skinned Turkish president, on a German comedy show?

Usually, what happens on Central European state-run TV stays on Central European state-run TV. Not this time. “Erdogate” went massively viral: there were protests in the streets of Istanbul. Techdirt covered it at length. Even a guy named John Oliver did a segment on it.

Now Erdogate’s back in the news, with a number of media outlets reporting that a German court just permanently enjoined Böhmermann from reciting his own poem. Sucks for him, right? Actually, no. Bad as it is, things are usually a hell of a lot worse for people in his position.

First, a little historical context. Böhmermann’s poem came at an inopportune time for the German government, which relies on Turkey to help stem the flow of Syrian refugees into Europe. And Erdogan, the Turkish strongman who was himself imprisoned in 1997 for reading a political poem out loud, is exactly the kind of guy to endanger a bilateral agreement over his hurt feelz.

These feelz of his are very sensitive, indeed. For example, he doesn’t like it when you compare him to Gollum. (There are some alleged similarities between the two.) If you’re a Turk and ask him to guess what you’ve got in your pocketses, he’ll have you convicted of a crime. On the other hand, if you’re fortunate enough to live somewhere with freedom of speech, the worst he can do is block you on Twitter.

What if you live in a foreign country that nevertheless has archaic, repressive speech laws? As a lot of surprised Germans found out in mid-April, it may mean Erdogan and other delicately minded people can reach out to your government and get it to punish you for them.

On or around April 15, German prosecutors indicted Böhmermann on a count of insulting a foreign head of state, a felony punishable by up to three years in prison under Article 103 of the federal criminal code. Erdogan also sued -- something he does a lot -- and in May, a Hamburg court issued a preliminary injunction blocking Böhmermann from saying the poem out loud.

Of course, that just had the effect of Streisanding the comedian and his poem into the stratosphere. I wasn’t totally happy with the non-rhyming translation floating around the web, so I came up with one of my own.

That Erdogan, the President’s,

a dumb, repressed, repressive gent.

He reeks of bad kebab. Your nose

will think a pig’s fart was a rose

once you’ve inhaled his scent. He beats

up helpless women in the streets

behind a mask. He gets his kicks

from fucking goats and watching flicks

of child abuse. Christians and Kurds

are made to lick his fetid turds.

Instead of sleep, it’s his delight

to blow a hundred sheep a night.

Compared to theirs, the President’s cock

is limp and floppy as a sock.

As any Turk will tell you, “Yup,

his tiny nuts are shriveled up.“

From Istanbul to Ankara town,

the guy’s a fag of great renown,

a lousy perv, a devotee

of vilest bestiality.

He forces women to his bed,

his balls as empty as his head.

No bunga-bunga party can

be called complete without the man:

his lust for sex is quite unique.

He fucks ‘til, when he takes a leak,

his penis burns like phlogiston.

That’s Recep Tayyip Erdogan,

the Turkish President.

Fast forward to this year. On February 10, the Hamburg court ruled in Erdogan’s favor, making the preliminary injunction permanent and ordering Böhmermann to pay $2000 in legal fees. Bad? Yes. Illiberal? Totally. Anywhere near as bad as it would’ve been if the Streisand effect hadn’t made Böhmermann famous? No. To understand why, we need to understand how insult prosecutions work in Germany.

Something that attracted a lot of attention during the Erdogate coverage was Merkel’s promise to repeal Article 103 as soon as Böhmermann’s case was resolved. The law came in for its share of criticism, including at Techdirt. And rightly so. Laws that criminalize making fun of heads of state are an undemocratic throwback to lèse-majesté, the idea that it’s wrong to offend the king. What’s more, the German government has a long, sad history of using Article 103 to silence people who criticize foreign despots like the Shah of Iran and Chile’s Augusto Pinochet.

While people’s attention was focused on the absurdities of German law, the actual case against Böhmermann died a slow death. On October 4, prosecutors in Mainz announced they were dismissing the charges, allegedly because they didn’t think they could prove the poem was a criminal insult.1 This cleared the way for Merkel to make good on her promise, and in January, the German cabinet announced it was going to follow through and scrap Article 103.

To be sure, it all looks incredibly reform-y. Erdogan got his ass kissed, Böhmermann got away by the seat of his pants and people get to applaud the government for championing free speech. But appearances can be deceiving.

You see, Germany can easily afford to lose Article 103. The state has dozens of speech statutes at its disposal, laws criminalizing everything from US-style defamation to what, in America, would be indisputably protected expression. What’s more, many of these laws cover the same conduct. The result is that some of the more specific statutes work like sentencing enhancements.2

Article 103’s exactly that kind of law. It makes insulting foreign heads of state a felony, but repealing it wouldn’t decriminalize making fun of the likes of Erdogan. If it does, the government can simply prosecute under Article 185, Germany’s misdemeanor-insult statute, one of the most vague, expansive and authoritarian pieces of legislation ever devised. A classic example of an offense under Article 185 -- and I’m not kidding here -- is using an insufficiently formal pronoun to address a cop.

Worse, the law practically invites selective prosecutions. Officially, Article 185 makes it a crime to insult anyone. However, under Section 153 of the federal code of criminal procedure, prosecutors are free to throw out misdemeanor cases if they decide there’s no “public interest” in pursuing charges. It’s prosecutorial discretion at its worst.

The predictable result is that prosecutors only pursue insult cases when you offend a famous person, a government official or someone the prosecutor likes. Conversely, famous people and government officials who insult others are almost never charged.

Everyone knows it, too. The colloquial term for an Article 185 case is “Beamtenbeleidigung” (lit. “insulting an official,”) and when Germany’s economy minister flipped off a bunch of right-wing protesters in August, the media treated it as a hilarious joke.

Things get more interesting, and weird, when you look at what happens when celebrities and government officials insult each other. In 2005, an undeservedly famous singer-songwriter got in a fight with a Hamburg cop over a parking spot. Because failing to respect a police officer’s authoritah is an actual crime in Germany, the cop charged him with insult.

The same court that banned Böhmermann from saying his poem found for the celebrity in 2006, ruling that because he was habitually rude, what he said to the cop was generalized “impoliteness” that didn’t rise to the level of insult.3 This, to put it mildly, is the kind of break no judge would ever cut a less well-connected defendant.

And in December of last year, a cop was charged when he called Merkel “criminal” and “insane.” That case hasn’t been resolved yet, but the fact that some random cop’s a lot less important than the wrath of the Chancellor suggests it’s unlikely he’ll be acquitted.

Because Article 103 duplicates the elements of an offense under Article 185, the same unofficial rules for who gets charged and convicted apply. Böhmermann, a minor celebrity in his own right, was only charged in the first place because he offended an extremely well-connected person. If he’d written his poem about some bum in the street instead of a man with significant value to the German government, the authorities would’ve laughed at the joke and moved on.

But it’s not all bad. The main reason Böhmermann’s case was dismissed, in a country where homeless men are occasionally imprisoned for saying rude things to bureaucrats on the phone, is that people all over the world responded to the Streisand effect and turned him into an international free-speech martyr.

With each retweet of a story about him and his poem, you helped make him more important than Erdogan’s ego. The fact that he’s not a felon right now isn’t on the government and its promise to scrap a law it doesn’t need. It’s on you. And those of us who love free speech appreciate it.


1 If that’s true, they may want to find a new line of work.

2 For example, while Articles 186 and 187 criminalize defamation, 188 covers defaming a government official and provides a steeper sentence. Article 90, one of several lèse-majesté laws, makes it a felony to insult the President of Germany, something that’s already a misdemeanor under Article 185.

3 Did I mention German speech laws are incredibly vague?

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Celebrate Fair Use Week With A New T-Shirt From Techdirt (Culture)

by Leigh Beadon

from the forever-less-a-day dept on Wednesday, February 22nd, 2017 @ 11:23AM

Copymouse, by Techdirt

Get your Copymouse t-shirts, hoodies, mugs and more »

It's Fair Use Week — time to celebrate the all-important safety valve on copyright law and oppose those who want to see it clogged up or removed entirely! Of course, for us that's pretty much every week, but this still seemed like a good time to launch our newest t-shirt design: Copymouse (also available as a v-neck, hoodie, women's tee, mug or sticker). As most of our readers know, Mickey Mouse has a real talent for evading the public domain (even if he has to drag the rest of our culture down with him) and this t-shirt lets you remind everyone of that fact — and the fact that we likely haven't seen the last of that fight.

Also, while all our gear artwork is available on request, for Fair Use Week we figured it was a good idea to make a vector SVG version of the artwork available from the get-go.

(P.S. don't forget to check out the Techdirt store on Teespring for our logo gear (in two styles) and our still-available I Invented Email gear.)

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The Ousting Of Trump's National Security Advisor Shows Just How Dangerous 'Lawful' Domestic Surveillance Is (Privacy)

by Tim Cushing

from the we-got-dirt-on-millions-of-Americans dept on Wednesday, February 22nd, 2017 @ 10:45AM

Those who thought the domestic surveillance Ed Snowden exposed was perfectly acceptable and lawful are finding it much harder to stomach with Trump in charge. The Lawfare blog, which routinely hosts articles supportive of government surveillance activities, has taken on a new tone over the past few months. The lesson being learned: if a power can only be trusted in certain people's hands, then it really can't be trusted in anyone's. This belated realization is better than none, but one wonders if the drastic change in tone would have followed an election that put Hillary Clinton in the White House.

That's not to say the first month of Trump's presidency has borne any resemblance to a "peaceful transition of power." The federal government isn't just leaking. It's hemorrhaging. Underneath the recent ouster of Mike Flynn, Trump's former National Security Advisor, is something disturbing.

What's disturbing isn't the surveillance -- although in "normal" circumstances it might be. Flynn was dumped because recorded phone calls captured him discussing sanctions with Russian officials. This domestic surveillance isn't unheard of. The fact that this information -- including the content of the calls -- was leaked to the public is more notable.

Calls to foreign officials are fair game for US surveillance efforts. The last-minute removal of restraints on sharing unminimized US persons data/communications by the Obama administration just served to ensure Flynn's calls would end up in the hands of multiple federal agencies. The timing of the loosened restrictions is worth noting though, as Marcy Wheeler does in this post about the Flynn ouster.

Finally, remember that for a great deal of SIGINT, FBI wouldn’t need a warrant. That’s because Obama changed the EO 12333 sharing rules just 4 days after the IC started getting really suspicious about Flynn’s contacts with Russia. That would make five years of intercepts available to FBI without a warrant in any counterintelligence cases, as this one is.

But what Lawfare's Adam Klein is concerned with isn't the sharing of unminimized communications between agencies. As he points out in his post, all of that's perfectly legal. What he's more concerned with is the actions of the intelligence community, which has made all of this public.

[T]his case illustrates why surveillance law treats U.S.-person information with the same healthy fear we associate with nuclear waste and biohazard material—that is, with the vigilance reserved for things that are inherently dangerous if not closely guarded. As Eli Lake wrote this week in Bloomberg View, selective leaking of U.S.-person information “gives the permanent state” (or political appointees entrusted with the information) “the power to destroy reputations from the cloak of anonymity.” Even if not leaked to the press, such information can be misused: J. Edgar Hoover and his subordinates infamously used salacious information gleaned from FBI surveillance of Martin Luther King, Jr., to pressure King to retreat from public life.

That's what's happening and that's a cause for concern. The NSA and others have always had these powers, but we were assured they wouldn't be abused. In this case, the abuse isn't in the collection or dissemination (all of it now "lawful"), but in the use of leaked information to kick out a National Security Advisor.

Trump has made few friends in the intelligence community since he became president, comparing the CIA to Nazis and making comments about unprofessional behavior. The problem for Trump is he's fighting with agencies particularly well-armed to take him down. But that's not what we want from our intelligence agencies. They're not tools of government accountability. They're tools for totalitarianism restrained only by oversight and a rigorous set of rules. (I mean, in theory...) But the IC appears to be ignoring the checks and balances put in place to guard against the destruction of the government's head by its body.

It's one thing to cheer for the public flailing of a President you don't like. It's quite another to cheer on the dangerous, easily-abusable network of domestic surveillance that makes it possible.

So, the issue here is more the leaks than the surveillance. The surveillance has its own problems, but the willingness to leak information damaging to US persons -- even if it prevented someone who possibly shouldn't be a National Security Advisor from keeping his job -- is a disturbing indicator of just how much power these agencies (at least 16 of them) now wield, thanks to information sharing.

The other problem is the hypocritical way Trump and his supporters are dealing with the leaked info. Trump wants an investigation to uncover the source of the leaks. Fair enough (albeit somewhat hypocritical, given his love of Wikileaks...). But the House Oversight Committee and Trump himself have no interest in taking a deeper look into the allegations against Mike Flynn. Nonsensically, House Oversight Committee head Devin Nunes said the recording of the phone calls was itself "disturbing." This is something someone involved in intelligence oversight should already know is a perfectly lawful interception under statutes he helps shape and define.

It's a dangerous time to be a whistleblower, as the administration appears far more interested in going after leaks it doesn't like than potentially-illegal behavior by its own staff. And it's just as dangerous to be the target of intelligence committee animosity. No more dangerous than it's always been, but in recent days, we've been given a pretty clear picture of how quickly lawful surveillance can ruin a person's life.

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