from the [placard]-BAN-THE-BAN-[/end-placard] dept
Legislators in two states have proposed (largely unworkable) bans on the sale of encrypted phones, citing (of course) concerns about all the criminals who might get away with something if law enforcement can't have near immediate access to the entire contents of their phones.
Congressmen Ted Lieu (D-Calif.) and Blake Farenthold (R-Texas) have introduced what they call the Ensuring National Constitutional Rights of Your Private Telecommunications (ENCRYPT) Act of 2016. It’s an attempt, Lieu and Farenthold wrote in a letter to their colleagues, to address “[c]oncerns over the privacy, security and technological feasibility of a ‘backdoor’ into encrypted devices for the government and law enforcement” by making encryption a federal issue and keeping individual states from trying to ban it.
Not only would such bans/backdoors make device usage less safe for users, but the lack of unified stance on phone encryption would turn phone sales in the US into a logistical nightmare, to the detriment of all involved.
“We are deeply concerned,” Lieu told the Daily Dot in a phone interview, “that a patchwork system with different encryption requirements in every state would not only undermine national security—it would also threaten the competitiveness of American companies and dampen innovation.”
Whether this will go anywhere remains to be seen. It would appear few legislators are willing -- at least as this point -- to tell the FBI to stop asking for backdoors or bans. Alarmingly, despite the ongoing discussion bringing more evidence to the surface that such actions are not only bad ideas, but pretty much impossible to implement without doing away with encryption entirely, it seems like more legislators are moving towards the FBI's line of thinking.
Unfortunately, that is often the nature of the political business, where fear nearly always trumps rational thinking. For too many, it's perfectly acceptable that thousands of phone users be left open to attacks than one criminal suspect go free.
from the at-best,-plaintiff-will-lose-nothing-more-than-his-filing-fee dept
In the continually developing saga that is the Wu-Tang Clan's unexpected entanglement with the embodiment of everything that's wrong with the pharmaceutical industry, it is now apparently time for the bogus lawsuits to begin.
Artist Jason Koza, a Wu-Tang Clan fan, is suing Tarik Azzougarh, a rapper, producer and manager "associated" with the group, along with one of its members (RZA) and pharma supervillain Martin Shkreli, last seen pleading the smirk in front of a Congressional hearing.
Mr. Koza has long admired the music of the Wu-Tang Clan, and in late 2013 and early 2014, he rendered original portraits of nine members who recorded the group’s first album.
The nine portraits are titled: “Ghostface Killa-Koza,” “GZA-Koza,” “Ol’ Dirty Bastard-Koza,” “Method Man-Koza,” “Masta Killa-Koza,” “Inspecta Deck-Koza,” “U- God-Koza,” “RZA-Koza,” “Raekwon-Koza” (hereinafter the “Wu-Tang Clan Portraits”)...
In or around late 2013 or early 2014, Mr. Koza saw a solicitation on the WuDisciples.blogspot.com website stating as follows: “Every Thursday we will be posting up pics of Wu-Tang artwork from fans, artists and aliens. If you have artwork you would like to share, please email us at: WuArtTats@gmail.com.”
Mr. Koza submitted digital images of his nine Wu-Tang Clan Portraits to the WuArtTats@gmail.com email address and the works were posted on the WuDisciples.blogspot.com website.
The WuDisciples.blogspot.com did not display any language or disclaimer granting the website a license for submitted works.
Mr. Koza did not grant an express license to the WuDisciples.blogspot.com for the use of his Wu-Tang Clan Portraits, although he intended that they be used for the limited purpose of public display on that website.
Mr. Koza did not authorize the use of his Wu-Tang Clan Portraits outside of the implied license he granted for their display on the WuDisciples.blogspot.com.
Upon information and belief, prior to 2014, Defendants Diggs and Azzougarh began work on a new Wu-Tang Clan album.
Upon information and belief, in 2015, Mr. Diggs and Mr. Azzougarh completed production of a new Wu-Tang Clan album, which had been recorded secretly over the course of several years, titled “Once Upon a Time in Shaolin.”
Upon information and belief, the album was sold with a leather-bound book containing, inter alia, unauthorized copies of all nine of Mr. Koza’s Wu-Tang Clan Portraits.
Upon information and belief, Mr. Diggs and Mr. Azzougarh made, or caused to be made, the unauthorized copies of Mr. Koza’s Wu-Tang Clan Portraits that were included in the leather-bound book.
Upon information and belief, in 2014 or 2015, Mr. Diggs and Mr. Azzougarh engaged New York-based online auction house Paddle8 as their agent to sell and/or distribute the “Once Upon a Time in Shaolin” album, including the leather-bound book that contains the infringing copies of Mr. Koza’s artwork.
This $2 million album, along with the book of artwork allegedly containing Koza's portraits, is now in former Turing Pharmaceutical head Martin Shkreli's possession.
Koza may have a case against the unauthorized use of his work in the book sold to Shkreli. Nothing on the Wu-Tang fan site indicates Koza would have handed over his rights to his artwork by having it posted there. If those responsible for putting the book together used his work, then he may have a fairly solid infringement case.
However, Koza did not register his artwork with the US Copyright Office until February 1st of this year, which is well past the point in time the infringement allegedly occurred. (The album was sold in 2015 and the book of artwork was compiled before the sale.) This may cut him out of the statutory damages he's seeking as these fees are only retroactive if the registration occurs within 90 days of publication. In his own recounting of the events, Koza indicates the first publication (at the Wu-Tang fansite) occurred sometime prior to April 8, 2014 -- the point at which he was contacted by Azzougarh about the "one copy album" he and RZA were putting together. Koza's copyright filings occurred nearly two years later.
Despite Martin Shkreli doing nothing more than paying an exorbitant amount for an album packaged with a book of artwork he likely assumed was properly licensed, Koza wants to nail him for infringement as well.
Upon information and belief, the album was unique in that only one copy was produced and Mr. Shkreli is contractually prohibited from distributing further copies commercially for 88 years following the sale.
On January 29, 2016, Mr. Koza saw an article published by Vice.com that included photographs of the leather-bound book that was included with the album.
The pictures in the article revealed that at least three of Mr. Koza’s Wu- Tang Clan Portraits were reproduced in the book: “Raekwon-Koza,” “Ol’ Dirty Bastard-Koza,” and “Inspecta Deck-Koza.”
Mr. Koza never gave his permission, express or implied, for any third party to copy, distribute, or publicly display copies of his works, other than his submission to the WuDisciples.blogspot.com website for the limited purpose of displaying the works thereon.
The thing about purchased items is that "third parties" are mostly free to do what they want with their purchased goods, including displaying artwork they purchased. That this was "displayed" in an article at Vice.com does nothing to implicate Shkreli or Vice. Shkreli has the Right of First Sale and Vice.com has fair use -- even if Vice selected which pictures would be published. Koza's legal arguments in relation to this supposed infringement are pretty much nonsensical.
Mr. Shkreli has infringed Mr. Koza’s exclusive right of public display by permitting at least three of the nine Wu-Tang Clan Portraits to be displayed to the public in a news article without Mr. Koza’s permission or license.
Including "in a news article" in his claim pretty much guarantees Vice.com's fair use defense will work, if a judge even lets the case get as far as requiring a response from the website. As for Shkreli, he's done nothing wrong, which is probably the first time that's been said about him since his ascension into the public eye.
Koza even tries to claim his truncated email exchange with Azzougarh -- combined with the fansite's nonexistent statement on who retains what rights to submitted artwork -- somehow coheres into a contract the defendants have violated.
The facts alleged regarding Mr. Koza’s submission of the nine Wu-Tang Clan Portraits to the WuDisciples.blogspot.com website and the subsequent communications between Mr. Koza and Mr. Azzougarh give rise to an implied-in-fact contract for a license from Mr. Koza for use the nine Wu-Tang Clan Portraits in the album in exchange for payment from Defendants.
Once a judge reviews this mess of a lawsuit, it's very likely most of the defendants will be dismissed. On the sort of bright side, if the lawsuit makes it far enough, the exclusive book owned by Shkreli may be entered into evidence, giving Wu-Tang fans a chance to see at least nine pages of the multimillion dollar book.
But as far as legal assertions go, Koza's are at least as shaky as anything delivered to date by Wu-Tang members unhappy with their album being in the possession of the Most Hated Man in America (Corporate Division). But at least when one of them does it, it's far more entertaining. Calling Shkreli "the man with the twelve-year-old body" beats "somebody owes me money... probably" any day of the week.
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If you're a CIA Director, one would assume that you know how to be cool under fire, right? Apparently that's not the case for current CIA Director John Brennan who seemed to completely freak out when Senator Ron Wyden started asking questions about the CIA's infamous decision to spy on the network and computers of Senate Intelligence Committee staffers who were compiling a report on the CIA's torture program. The details are a bit complex, but the short version is that the Intelligence Committee, which has oversight powers over the CIA, had been set up in a CIA building, with special access to CIA documents, and a special search tool. Apparently, at some point, that search tool returned a document which the CIA had never intended to share with the intelligence committee staffers. That document, called "the Panetta Review" was a draft document that then-CIA chief Leon Panetta had tasked people internal at the CIA to prepare on what the Senate Intelligence Committee staffers were likely to find as they went through the documents.
Yes, this is fairly meta. You had Senate staffers reviewing CIA documents, and at the same time, the CIA reviewing those same documents to try to get out ahead of any controversy -- and to make matters confusing, the Senate staffers then got access to that CIA review document as part of their regular searches. When the CIA was questioned about this Panetta review, they freaked out, wondering how the Senate staffers got their hands on the document, and did what the CIA does: they spied on the Senate staffers' computers and network to try to determine how they got the document in the first place. This was despite a promise from the CIA that the Senate staffers' computers and network were considered off-limits (due to an even earlier incident). That resulted in Senator Dianne Feinstein accusing the CIA of illegally spying on the Senate (its overseers). In response, Brennan first denied the spying altogether, and then insisted that it was the Senate staffers who broke the law, saying they illegally mishandled classified CIA documents in how they handled the Panetta Review.
Eventually, the DOJ decided that there wasn't enough evidence that either side broke the law, and refused to make any criminal charges either way. While both the CIA's Inspector General and a special review board Brennan himself set up found that the CIA did, in fact, spy on the Senate staffers' network and computers, and that this was inappropriate, neither seemed to say that it rose to a truly controversial level. Not surprisingly, the review board Brennan set up himself cleared him of wrongdoing.
Mixed in with all of this are remaining questions about how involved Brennan himself actually was in all of this (he refuses to say) and an ongoing request for an apology. While the CIA's Inspector General claimed that Brennan apologized for the breach, later reporting by Jason Leopold at Vice showed that Brennan had drafted an apology, but never sent it. Instead, he apparently provided a very narrow apology solely to Feinstein and then vice chair Saxby Chambliss, basically of the "I'm sorry if what did upset you" manner.
Given this, during a rare open Senate Intelligence Committee hearing, Wyden decided to quiz Brennan about all of this, leading to a rather sarcastic and testy exchange that needs to be watched to be believed:
Immediately, Brennan gets snarky, noting that "This is the annual threat assessment, is it not? Yes?" implying that he doesn't think it's appropriate for Wyden to be bringing up this "other" topic in such a hearing. And it only gets worse from there. He immediately jumps to the argument, again, that it was the Senate staffers' fault for getting access to a document he didn't want them to see. He then says the CIA therefore had an "obligation" to find out how that happened. And then he, somewhat insultingly, suggests that Senator Wyden had not actually read the IG's account, or the report of the review panel that Brennan himself set up.
Wyden cuts him off, quoting directly from the report and notes that other agencies have all said it would be inappropriate to review Senate oversight computer systems, and asks Brennan if he disagrees. Brennan is clearly pissed off:
Brennan: Yes, I think you mischaracterize both their comments as well as what's in those reports. And I apologized to the Chairman and the Vice Chairman about the de minimis access and inappropriate access that CIA officers made to five emails or so of Senate staffers during that investigation. And I apologized to them for that very specific inappropriate action that was taken as part of a very reasonable investigative action. But do not say that we spied on Senate computers or files. We did not do that. We were fulfilling our responsibilities.
Wyden: I read the exact words of the Inspector General and the Review Board. You appointed the Review Board! They said nobody ought to be punished, but they said there was improper access. And my point is, in our system of government, we have responsibilities to do vigorous oversight. And we can't do vigorous oversight if there are improper procedures used to access our files.
Wyden then admits his time is up... but Brennan's so angry that he won't give up. He breaks all proper Senate hearing protocol and jumps back in, asking Wyden to say, again, that it was the Senate staffers' fault for accessing the Panetta Review:
Do you not agree there was improper access that senate staffers had to CIA internal deliberative documents? Was that not inappropriate or unauthorized?
Wyden angrily points out that everything the Senate staffers did was appropriate, and anyway, he's now asking about the CIA's activities, and points to the Inspector General review and the other review board... all the while with Brennan angrily shaking his head at Wyden. When Wyden finishes, Brennan goes back to being snarky, saying:
And I'm still awaiting the review that was done by the Senate to take a look at what the staffers actions were.
And then there's this:
Separation of powers between the executive, legislative branches, Senator, goes both ways.
In short: even if you have oversight over us, don't mess with the CIA, Senator. That's quite a statement.
He then goes on to again claim that Wyden is mischaracterizing everything, and that what the CIA did was entirely appropriate. Wyden concludes:
It's pretty hard to mischaracterize word for word quotes that use the words "improper access."
The NSA isn't too concerned about the use of encryption. Unlike the FBI, which continues to claim the sky is fallingdarkening thanks to the spread of math, the NSA is relatively comfortable with the march of technology in this direction.
For one thing, the NSA has made progress towards cracking some forms of encryption. On top of that, it maintains a unit that does nothing but stick implants into hardware that allows it to bypass protection schemes used by its targets.
There's no "going dark" fear at the NSA. The Director of National Intelligence -- James Clapper -- has just issued a "Worldwide Threat Assessment" and nowhere in it will you find an extensive discussion about encryption's supposed deleterious effect on national security. There is one small paragraph that notes it's likely a part of terrorists' efforts to hide their communications, but not the element that concerns his office the most.
Terrorists will almost certainly continue to benefit in 2016 from a new generation of recruits proficient in information technology, social media, and online research. Some terrorists will look to use these technologies to increase the speed of their communications, the availability of their propaganda, and ability to collaborate with new partners. They will easily take advantage of widely available, free encryption technology, mobile-messaging applications, the dark web, and virtual environments to pursue their objectives.
There are far too many options for those who'd like to keep the NSA out of their business, according to the report. There's no sense in decrying a single aspect of it -- especially one that also provides substantial security benefits to non-terrorists.
But the Internet giveth just as certainly as it taketh away. Echoing the sentiments of the recent report debunking the "going dark" fears of James Comey, certain legislators and a handful of smaller law enforcement agencies, Clapper points out that the Internet of Things will provide intelligence services with plenty of data to fill in their surveillance holes. (h/t Emptywheel)
Internet of Things (IoT). “Smart” devices incorporated into the electric grid, vehicles—including autonomous vehicles—and household appliances are improving efficiency, energy conservation, and convenience. However, security industry analysts have demonstrated that many of these new systems can threaten data privacy, data integrity, or continuity of services. In the future, intelligence services might use the IoT for identification, surveillance, monitoring, location tracking, and targeting for recruitment, or to gain access to networks or user credentials.
The tea kettle that talks to the thermostat that shares a signal with the fridge that exposes your emails to the wardriving criminal who just obtained your Wi-Fi password from the doorbell will all be sources of useful data for law enforcement and intelligence agencies. Considering much of the industry has opted to ship smart things with dumbass defaults most users will never change, the Internet of Eminently Crackable Things will be the informants government agencies always wished they had -- ones that can tell when suspects are home, what they're doing and opening up otherwise secured networks for easy intrusion.
Also worth noting is the highly dubious use of the future tense when referring to the surveillance of targets via their Smart Things. It's hard to believe the NSA isn't already on top of this. It's not as though it would need to alter its permission slips. Section 702 gives it the power to snake info from the internet from basically anywhere in the world and the government is busy arguing that people "know" their connected devices share tons of identification/location info with "the world," so there's really no expectation of privacy that might limit surveillance via smart objects.
While overseas terrorists may not be purchasing Nest thermostats in bulk at the moment, the march towards the interconnectedness of everything means it's likely one object or another will provide another surveillance vector for intelligence agencies in the near future.
A little over a year ago, the FCC voted to raise the minimum definition of broadband from 4 Mbps downstream, 1 Mbps upstream -- to 25 Mbps downstream, 3 Mbps upstream. The standard better reflects household usage in the gigabit connection and Netflix binge watching era. However, the broadband industry has been whining like a petulant child ever since, largely because the change highlights how a lack of competition and the resulting failure to upgrade networks means a huge swath of the country doesn't technically have broadband.
Outraged by the FCC's sudden decision to have standards, incumbent broadband providers convinced six Senators to write in and scold the FCC last month, arguing that 25 Mbps was just a crazy metric, and that nobody needs that kind of bandwidth:
"Looking at the market for broadband applications, we are aware of few applications that require download speeds of 25 Mbps. Netflix, for example, recommends a download speed of 5 Mbps to receive high-definition streaming video, and Amazon recommends a speed of 3.5 Mbps. In addition, according to the FCC's own data, the majority of Americans who can purchase 25 Mbps choose not to."
As we noted then, the Senators apparently don't have teenage kids (or have them and don't pay attention to what they do), since 25 Mbps is a pretty reasonable standard for a household of hungry gamers, streamers, and social media addicts. And while the Senators use Netflix HD streaming as the holy grail for what constitutes "real" bandwidth usage, they apparently didn't realize that as Netflix moves to 4K, each stream will eat 25 Mbps all by itself. In the age of Google Fiber and gigabit cable, 25 Mbps is a pretty fair per household metric; in fact the upstream standard probably isn't high enough.
But this being Congress, the technical realities don't matter nearly as much as the campaign contribution cash tied at the end of telecom talking points memo. Not to be outdone by the manufactured outrage of their friends in the Senate, Congressmen Fred Upton and Greg Walden have similarly decided to waste everybody's time with a letter of their own (pdf), which accuses the FCC of "troubling actions" that "distort – or outright ignore – the FCC’s requirements to produce honest, data-driven reports to inform policymakers and the public."
Why, the Congressmen argue, does the FCC feel the need to mess with such an obviously competitive market?:
"The Communications Act requires the FCC to assess and report on the state of broadband deployment, the level of video competition, and the level of effective competition in the nation's mobile wireless market. Since 2011, it appears that the Commission has applied inconsistent definitions and analyses in making those determinations. Those reports have then been used to justify Commission actions to intervene in seemingly competitive markets. Despite the plain language of the Communications Act, the FCC's actions seem to benefit specific classes of competitors and do not promote competition. This behavior concerns us.
Yes, that's the Chairman of the Subcommittee on Communications and Technology complaining about having standards.
Of course the only reason the markets were "seemingly competitive" is that for fifteen years, the FCC has been basing policy on flimsy standards and cherry-picked industry data. Once the FCC raised the standards and started thinking a little more independently, phone companies that were happily selling snail-esque DSL at next-generation prices were suddenly outed for not trying very hard. Under the new standard, FCC data suggests 31 million Americans don't technically have broadband, and two-thirds of homes lack access to speeds of 25 Mbps from more than one provider.
Again, the real outrage isn't really that the FCC is some kind of rogue agency setting unrealistic standards just to make giant companies cry, the real outrage stems from the fact that the new standard makes it harder than ever to pretend that the United States is a competitive broadband market.
Last week we wrote about the only place that German politicians are currently allowed to view the latest texts of TAFTA/TTIP: a tiny room, guarded at all times, and involving all kinds of humiliating restrictions for visitors. Katja Kipping was one of the first to enter, and she has written up her experiences for lesser mortals like you and me, who are not permitted to besmirch this sacred place with our unworthy presence. Even though she is -- of course -- forbidden from speaking about what she read there, a translation of her account, made by War on Want, nonetheless contains some interesting new details:
Once I'd registered, I was sent the instructions on how to use the room. The first thing that I noticed was that the terms and conditions had already been the subject of negotiations between the European Commission and the USA. Get your head round that: TTIP isn't even signed yet, and already individual countries have lost the right to decide who gets to read the texts, and on what terms.
Here's how the actual visit went:
A guard took me in through security and asked me to lock away my jacket and my bag. He checked that I wasn't taking any camera or mobile phone into the reading room, and then knocked on a door. The heightened level of secrecy made me all the more excited as to what I was going to find, but the room itself was nothing special. There were eight computer work stations, and I was only allowed to sit at the one designated for me. A friendly woman sat in the room. She got me to sign the visitor rules -- if you don't sign, you don’t get in, so I signed. There was a thermos of coffee and a plate of biscuits in the corner. Yet no amount of caffeine or blood sugar would have made it possible to get through the 300 or so pages of text in the two hours I had available to me.
Even though this reading room for German politicians has finally been opened -- two and a half years after the TAFTA/TTIP negotiations began -- numerous obstacles are placed in their way to make that opportunity as inconvenient as possible. First, the texts are only available in English -- imagine if US politicians were only allowed to read the French version of the negotiating texts. Moreover, the German visitors to the room are completely on their own: they cannot take even security-cleared specialists with them in order to decode the highly-abstruse wording of the documents. Finally, as Kipping notes above, she had just two hours to get through 300 pages -- roughly 24 seconds per page.
Even racing through the pages made available to her, Kipping says that she was unable to find anything that allayed her concerns about the proposed agreement. And despite the blanket prohibition on giving things away, she does reveal one dirty secret about the TAFTA/TTIP texts:
the documents are simply crawling with typos. The word 'and' is regularly written 'andd' and 'the' often appears as 'teh'. Either the negotiators are really shoddy workers or this is one of those famous security measures we've heard about.
She is doubtless right that these errors are fairly unsubtle attempts to create unique copies so that any leaks can be traced back to their source, since visitors to the reading room are directed to a particular computer when reading the text. And she is also correct in her conclusion:
Anyone who was going into these negotiations to enhance environmental protection, consumer protection and labour standards would have nothing to fear from transparency. Anyone who's engaged in selling out democracy, on the other hand, is obviously going to want to avoid public scrutiny. If [Germany's Minister for Economic Affairs] Sigmar Gabriel and the negotiators are really so convinced of the benefits of TTIP, why don't they just make the text available to everyone online?
It will be interesting to see what other snippets of information escape from the little room as the negotiations proceed, and as more German politicians visit it -- and whether they, too, still encounter texts that are crawling with highly-suspicious typos.
While we have written quite a bit about major professional sports leagues marching towards expanded streaming options for viewers, and while each league is making progress in that direction, not all of the leagues are equal in how they're going about it. The NHL has been by far the least progressive in this arena, which is somewhat strange given how much more progressive it has been on other issues of modernity. On streaming, however, there seems to be some flip-flopping, with the league banning the use of services like Periscope by journalists, but then seeking to piggyback on baseball's fantastic MLB Advanced Media product to get better streaming to its viewers. The entire point of increased streaming options is to get the product out to as many people as possible, grow the fanbase, and ultimately rake in more money via increased viewership.
Which is what makes is supremely odd to see the NHL fail so hard recently with its streaming product and react to that failure by menacing anyone who might try to route around it. If you weren't already aware, a recent upgrade to the league's NHL.tv product appears to have instituted a refreshed round of blackout rules for games at the exact time when other leagues are attempting to minimize the impact of blackouts. Per Deadspin:
We’ve been getting tips all week from frustrated NHL.tv customers who installed NHL.tv’s new upgrade this week, only to see the entire service dissolve into an malfunctioning mess of blackouts. At pretty much any time when games are on, the @NHLTVSupport account’s mentions are full of hordes of complainers and angry people trying fruitlessly to be able to watch games on the platform they paid $160 for.
In addition to the surprise blackouts suddenly rearing their ugly heads, it appears that NHL.tv is having trouble working across certain devices for whatever reason. Chromebooks in particular appear to be affected, but other devices render the stream into a pixelated hell-scape. This is particularly problematic for a sport that relies so heavily on high-res viewing in order to follow the puck and the action in an arena where color differentiation is much more limited than with other sports.
But adding insult to injury is the all-caps threat clause the NHL slid into the update.
IF YOU CIRCUMVENT OR ATTEMPT TO CIRCUMVENT ANY BLACKOUT RESTRICTION OR OTHER USE RESTRICTION: YOUR SUBSCRIPTION WILL BE SUBJECT TO IMMEDIATE TERMINATION AND A CHARGE OF ONE HUNDRED DOLLARS ($100.00) FOR EARLY TERMINATION WILL BE APPLIED TO YOUR CREDIT OR DEBIT CARD; YOU MAY BE SUBJECT TO LEGAL ACTION; AND THE NHL RESERVES THE RIGHT TO REPORT SUCH MISCONDUCT TO APPROPRIATE LAW ENFORCEMENT AUTHORITIES.
Lovely. So a product that doesn't appear to work as advertised, served up to a customer base that appears to have been ill-informed about the blackout rules subsequently put in place for the product, is now on notice that doing anything to address this beyond waiting for the NHL to get their shit together will lose their subscription, be charged a fine, and be reported to the authorities for legal action.
Not exactly the best way to win over existing and new customers, NHL, particularly given that you're the league that can least afford to lose any fans.
The Cannonball Run plot of racing across the US has inspired some drivers to set illegal records -- though the concept was started in 1933 by Edwin "Cannonball" Baker who drove from NYC to LA in 53 hours (and popularized in the 70s as a protest against highway speed limits). We've previously mentioned Alex Roy making the trip in about 32 hours, but more recently, Ed Bolian and a couple other drivers/passengers did it in just 28 hours and 50 minutes. If you've always wanted to drive across country in some insane way, check out some of the records that other people have set.
The state of Massachusetts has some of the worst open records laws in the nation, which have not been updated since the 1970s. The main problem is the statutes provide no deterrence for abusive behavior by government agencies and very little in the way of recourse for public records requesters.
The laws -- as they stand now -- operate on the presumption of secrecy, which is completely antithetical to the purpose and spirit of the statutes. There's really no reason the state's public record laws should contain this much secretive bloat. Here's Allison Manning of Boston.com detailing just one of the many problems with the laws.
Our public records laws are abysmal, especially compared to those elsewhere.
There are 19 pages of exemptions alone in the 60-page guide to Massachusetts public records. How does this supposedly progressive state have such backwards open government laws?
[A]fter the Globe challenged State Police for withholding the arrest record of one of its troopers, [t]he state’s supervisor of public records, Shawn Williams, ruled in favor of the police, finding that police had “the discretion to withhold records” that were covered under rules meant to protect criminal rap sheets from being misused; such discretion meant that the Globe could not obtain the names of the five Massachusetts police officers charged with drunken driving. A far more rational interpretation of the criminal-records rule would protect information about criminal proceedings, not the arrest records themselves. After all, the criminal-records law was never intended to open up a memory hole to conceal unflattering information about the police.
The state's House pushed through a set of open records law reforms late last year. It was a decided improvement (what wouldn't be?), but advocates still expressed concern the legislation didn't go far enough. Like many reform efforts, it started out robust and full-figured but was hacked to death by legislators and agencies who preferred to operate in as much darkness as possible.
“This doesn’t fix the fundamental issues with the law,” Michael Morisy, founder of the open records site MuckRock, tells Boston magazine. “Records take forever to get back to people. There’s no mandatory awarding of attorney’s fees, so agencies really don’t care if people sue them because they know by the law there are no consequences even if they lose. And while this bill does offer judges to grant attorney’s fees, that’s entirely discretionary, and what we’ve seen is that when things are discretionary, when things are optional, typically they just don’t happen.”
“One thing that public records law in Massachusetts really needed was teeth, and this bill just doesn’t do that,” Morisy says.
The Senate has introduced its version of the reform bill, and it's already receiving complaints from government entities which feel it swings the needle too far in the direction of accountability. The Massachusetts Municipal Lawyers Association doesn't like much of the Senate's proposed legislation and has issued a five-page memo to its members detailing its concerns. (h/t Michael Morisy)
For one thing, the MMLA wants government agencies to be given the discretion to ignore filers if they believe someone is requesting records too frequently, or simply requesting too much.
S. 2120 provides no protection to a municipality from the frequent and harassing requestor. Considerable staff time is wasted in responding to overly broad and frequent requests. The municipality should not have to respond to someone abusing the system.
The memo does not detail how agencies would determine what constitutes "abuse" of the system, nor what they would have to offer as proof that they are being "harassed" by an open records requester. It appears the MMLA would prefer to have this left solely to the discretion of responding agencies, giving them one more way to refuse to hand over documents.
The MMLA also doesn't like the fact that the legislation would dial back the amount of money agencies can charge requesters or that it would make requests fulfilled in under a certain amount of hours automatically free. It believes all efforts made should be billed to requesters no matter what.
Considering state agencies are well-known for their extreme reluctance to respond to requests in a timely fashion, it's rather rich to see this government body demand that open records requesters have as little time as possible to pursue litigation over delayed responses or refusals.
There is no time period or statute of limitations within which the requestor must appeal to court. As in the House bill, there should be a 30-calendar day time period, from the date of receipt of the SPR’s order, within which a civil action must be filed, whether by the requester or by the municipality.
Statutes of limitations are generally in the one-year range. The MMLA wants one month. The singular purpose of this demand is to allow the state to dodge as much litigation as possible. Thirty days to engage representation and file a lawsuit is an incredibly tight time frame. Open records requesters had better hope everyone's schedule is clear. The MMLA may look like it's acting in fairness when it applies the same time limit to government agencies, but it doesn't point out the head start they'll have: in-house representation.
Other parts of the MMLA memo veer into sheer vindictiveness, as if open records requesters were a pestilence inflicted on honorable government employees. The Senate's bill -- having just been introduced and still sheltered from the carving knives of transparency opponents -- contains an automatic fee award for open records requesters who prevail in litigation against the government. In the interest of "fairness," the MMLA wants this to be a two-way street.
Reciprocity is necessary. If fees are to be mandated against municipalities, fees and costs should also be awarded to the municipality against frivolous and harassing requesters.
The MMLA's take on this conveniently ignores the truth of the matter: the only reason this stipulation exists is because state agencies have proven they cannot be trusted to comply with the law. The longstanding problem with open records laws everywhere in the nation has never been an epidemic of frivolous or overburdensome requests. It has been the ongoing exploration of the outer limits of open records laws by dozens of government agencies who have repeatedly refused to reply to requests in a timely manner. Agencies ignore requests, set up massive "paywalls,"abuse exemptions, knowingly perform inadequate searches for records and otherwise do anything they can to avoid transparency.
The MMLA wants fee shifts to affect requesters -- a move that would do nothing to improve the state's horrendous laws or response track record. It's just a form of bullying being sold as fairness. The entity with deeper pockets and control of the records wants to have the right to smack around citizens for daring to ask for the "wrong" information.