by Mike Masnick
Fri, Mar 6th 2015 7:39pm
Fri, Mar 6th 2015 6:16pm
from the sorry-spock dept
What does Leonard Nimoy's "Vulcan salute" have to do with European newspaper headlines? They both might one day be regulated by new international intellectual property rules, if some have their way. One might think that what constitutes "intellectual property" is set in stone, but it isn't. Around the world, different interests are lobbying for governments to create new types of intellectual property all the time.
As DisCo has covered before, news publishers in Europe and elsewhere are currently pushing for the creation of new IP rights in newspaper headlines, so that online sites can be forced to pay for the privilege of quoting or linking to news coverage. Spain and Germany have already created these rights, and there is pressure in Brussels for a pan-European rule.
At the same time, for more than a decade there have been efforts within the World Intellectual Property Organization to create rights in "traditional cultural expression" (which, as explained below, may include the hand gesture on which Leonard Nimoy based the Vulcan salute). Some indigenous communities are distressed about the commercial exploitation of their folklore and other forms of cultural expression by "outside" entities. In a desire to (a) prevent uses that they believe are disparaging and (b) regain control over an important part of their identity, these communities have lobbied for a treaty that would require the creation of intellectual property rights in "traditional cultural expression."
Concerns have been raised about the scope of the draft treaty. If adopted in its current form, critics say, the treaty could interfere with cultural life around the world, pulling out of the public domain material that is incorporated in countless novels, paintings, films, sculptures, operas, and other musical compositions. This is because these works are based on stories, legends, dances, rituals and other forms of expression that the treaty could protect without a limitation on term.
How does this relate to Leonard Nimoy's Vulcan salute? The famous actor's death last week provoked extensive discussion of his contribution to popular culture, including the famous Vulcan salute used by his character Spock in the Star Trek television series and movies. The Vulcan salute (hand raised with the palm forward and the thumb extended, while parting the fingers between the middle and ring finger) could violate the exclusive rights that a treaty on traditional culture expression would create. This is because Nimoy, according to his autobiography, based the Vulcan salute on the hand gestures in the priestly blessings he saw in synagogue as a child.
The priestly blessing is an elaborate ritual performed during the Jewish worship service by men who believe they are descendants of Aaron, the High Priest and Moses's brother. These men are referred to as Kohanim (Hebrew for "priests"). At the beginning of the ritual, the hands of the Kohanim are washed by the descendants of the tribe of Levi, the Levi'im. The Kohanim then remove their shoes and stand up in front of the congregation. They cover their heads with their prayer shawls, turn towards the congregation, and raise their hands (underneath the shawls) in what is now popularly referred to as the Vulcan salute. With the fingers and thumbs spread in this manner, each hand looks like the Hebrew letter shin, which is the first letter of the word "Shaddai," a name for God. The Kohanim then recite the words of the priestly blessing set forth in the book of Numbers: "May the Lord bless you and guard you; may the Lord make His face shed light upon you and be gracious to you; may the Lord lift up His face to you and give you peace." (If the words sound familiar, that's because the song "Sabbath Prayer" in Fiddler on the Roof is based on them. It's also Solemn Blessing #10 in the Roman Missal used by Catholics.)
Although the words of the priestly blessing derive from the Old Testament, and thus are over 2,500 years old, the hand gesture probably developed later. It is described in the Shulchan Aruch (Hebrew for "Set Table"), a codification of Jewish law first published in 1565, thus indicating that it was in wide use 450 years ago. Currently, the priestly blessing is conducted daily in traditional Sephardic congregations, and on holidays in traditional Ashkenazic congregations.
Although no one seems to have objected to Nimoy's adaptation of the gesture for his Vulcan character, the hand gesture of the priestly blessing may nevertheless fall within the scope of the draft treaty. Traditional cultural expression includes actions such as ceremonies and rituals. The treaty's protection would extend to the traditional cultural expression created, expressed, and maintained, in a collective context, by the treaty's beneficiaries. The class of beneficiaries remains in flux. The treaty refers to "indigenous peoples" and "local communities and nations" without defining any of these terms. These terms may encompass traditional Jewish communities. Moreover, the treaty appears to allow national law to determine which communities are beneficiaries. One could easily imagine Jewish communities in some countries (e.g., Israel and the United States) successfully lobbying for the treaty's protection.
Under the treaty, the rights in the traditional cultural expression would be collectively administered by a "competent authority" for the benefit of the members of the beneficiary community. The competent authority would have the authority to license the use of traditional cultural expression and distribute any resulting compensation. Although Nimoy was Jewish, it is unlikely that the treaty would have permitted him to use the hand gesture in a non-traditional way such as the Vulcan salute in Star Trek without the approval of the competent authority. And the treaty certainly would not have permitted the unauthorized use of the hand gesture by any Vulcans played by non-Jewish actors. The current draft of the treaty does not include a grandfather clause, so if the treaty were adopted in the future, the competent authority in each country would be able to prevent the further dissemination of existing Star Trek works containing the Vulcan salute, as well as the use of the salute in future films.
Folktales permeate modern Western culture, from Disney films to Lord of the Rings to the Twilight series to Wagner's Ring of Nibelung to Tchaikovsky's Swan Lake. Thus, it is no surprise that the treaty on traditional cultural expression has little support among the developed countries and WIPO is unlikely to adopt it soon, if ever. But this just highlights the fact that what receives intellectual property protection is a policy choice, rather than a reflection of natural law. As a result, types of protection vary across countries. For example, the "ancillary rights" that restrict newspaper snippets in Europe have received no traction in the United States. Similarly, Congress rejected the attempt by large publishers to import the EU Database Directive's protection for non-original databases a decade ago. This policy decision has allowed U.S. researchers to engage in enormously productive text and data-mining, which the Database Directive prevents their colleagues in the EU from performing.
Just as policymakers were confronted with a choice over creating database rights, they may one day be presented with a similar choice about news snippets, or hand gestures, and the choices they make could have a considerable effect on culture and communication worldwide.
Republished from the Disruptive Competition Project
by Michael Ho
Fri, Mar 6th 2015 5:00pm
from the urls-we-dig-up dept
- Data mining thousands of Indian food recipes reveals that chefs of this cuisine pair flavors in a way that western cuisine generally does not. Western food combines ingredients that have overlapping flavors, but Indian cuisine pairs ingredients that seem to minimize common flavors. [url]
- IBM's Chef Watson (based on its Jeopardy-winning algorithms) has created some "cognitive cooking" by analyzing thousands of recipes to create new dishes of its own. When will a robot competitor appear in an Iron Chef episode? [url]
- Some foodie snobs are worried that artificial intelligence in the kitchen will lead to a destruction of cuisine as an art and part of culture. Other folks, though, are more optimistic that kitchen AI will free humans from the drudgery of cooking and open up a new world of culinary art. (Still, others are concerned that software cannot be inventors under US intellectual property laws, and that novel recipes or inventions created by AI won't be protected by patents or copyright.) [url]
by Maira Sutton
Fri, Mar 6th 2015 4:02pm
from the up-is-down,-black-is-white dept
Sen. Ron Wyden and Sen. Orrin Hatch are now in a stand-off over a bill that would put secretive trade deals like the Trans-Pacific Partnership (TPP) agreement on the Fast Track to passage through Congress. The White House meanwhile, has intensified their propaganda campaign, going so far as to mislead the public about how trade deals—like the TPP and its counterpart, the Transatlantic Trade and Investment Partnership (TTIP)—will effect the Internet and users' rights. They are creating videos, writing several blog posts, and then this week, even sent out a letter from an "online small business owner" to everyone on the White House's massive email list, to further misinform the public about Fast Track.
In a blog post published this week, the White House flat out uses doublespeak to tout the benefits of the TPP, even going so far as to claim that without these new trade agreements, "there would be no rules protecting American invention, artistic creativity, and research". That is pure bogus, much like the other lies the White House has been recently saying about its trade policies. Let's look at the four main myths they have been saying to sell lawmakers and the public on Fast Track for the TPP.
Myth #1: TPP Is Good for the Internet
First, there are the claims that this agreement will create "stronger protections of a free and open Internet". As we know from previous leaks of the TPP's Intellectual Property chapter, the complete opposite is true. Most of all, the TPP's ISP liability provisions could create greater incentives for Internet and content providers to block and filter content, or even monitor their users in the name of copyright enforcement. What they believe are efforts toward protecting the future of the Internet are provisions they're advocating for in this and other secret agreements on the "free flow of information". In short, these are policies aimed at subverting data localization laws.
Such an obligation could be a good or a bad thing, depending on what kind of impact it could have on national censorship, or consumer protections for personal data. It's a complicated issue without an easy solution—which is exactly why this should not be decided through secretive trade negotiations. These "free flow of information" rules have likely been lobbied for by major tech companies, which do not want laws to restrict them on how they deal with users' data. It is dishonest to say that what these tech companies can do with people's data is good for all users and the Internet at large.
Myth #2: Fast Track Would Strengthen Congressional Oversight
The second, oft-repeated claim is that Fast Track would strengthen congressional oversight—which is again not true. The U.S. Trade Representative has made this claim throughout the past couple months, including at a Senate Finance Committee hearing in January when he said:
TPA puts Congress in the driver’s seat to define our negotiating objectives and strengthens Congressional oversight by requiring consultations and transparency throughout the negotiating process.
Maybe we could believe this if the White House had fought for Fast Track before delegates began negotiating the TPP and TTIP. Maybe it could also have been true if that bill had ensured that Congress members had easy access to the text and kept a close leash on the White House throughout the process to ensure that the negotiating objectives they had outline were in fact being met in the deal. However, we know from the past several years of TPP negotiations, that Congress has largely been shut out of the process. Many members of Congress have spoken out about the White House's strict rules that have made it exceedingly difficult to influence or even see the terms of these trade deals.
The only way Fast Track could really put "Congress in the driver's seat" over trade policy would be if it fully addressed the lack of congressional oversight over the TPP and TTIP thus far. Lawmakers should be able to hold unlimited debate over the policies being proposed in these deals, and if it comes to it, to amend their provisions. It would be meaningless if the new Fast Track bill enabled more congressional oversight, but if it did not apply to agreements that are ongoing or almost completed.
Myth #3: Small Online Businesses Would Benefit from Fast Track
Then the third misleading claim is that Fast Track would help small businesses. Their repetition of this has become louder amid increasing public awareness that the TPP has primarily been driven by major corporations. What may be good for established multinational companies could also benefit certain small online businesses as well. The White House says that tariffs are hindering small online businesses from selling their products abroad, but research has shown that the kinds of traditional trade barriers, like tariffs, that past trade agreements were negotiated to address are already close to non-existent. Therefore it is unclear what other kind of benefits online businesses would see from the TPP.
Even if there were some benefits, there are many more ways that the TPP could harm small Internet-based companies. The TPP's copyright provisions could lead to policies where ISPs would be forced to implement costly systems to oversee all users' activities and process each takedown notice they receive. They could also discourage investment in new innovative start-ups, even those that plan to "play by the rules", due to the risk that companies would have to sink significant resources into legal defenses against copyright holders, or face heavy deterrent penalties for infringement established by the TPP.
Myth #4: TPP and Other Secret Trade Deals Are a National Security Issue
The last, and most confounding of the White House's assertions is that the TPP and TTIP are an "integral part" of the United States' national security strategy, because its "global strategic interests are intimately linked with [its] broader economic interests." As we have seen with the U.S. government's expansive surveillance regime, "national security" is often invoked for policies even if they directly undermine our civil liberties. It is hard to argue with the administration whether the TPP and TTIP are in fact in the United States' economic or strategic interests, since only they are allowed to see the entire contents of these agreements. Either way, it seems like a huge stretch to say that we can trust the White House and major corporate representatives to determine, in secret, what is in fact good digital policy for the country and the world. We may be hearing this line more and more in the coming weeks as the White House becomes more desperate to legitimize the need for Fast Track to pass the TPP and TTIP.
The fact that the White House has resorted to distorting the truth about its trade policies is enough to demonstrate how little the administration values honesty and transparency in policy making, and how much the public stands to lose from these agreements negotiated in secret. The more they try and espouse the potential gains from Fast Track—while the trade agreements this legislation would advance remain secret—the more reason we ought to be skeptical. If the TPP is so great and if Fast Track would in fact enable more democratic oversight, why are the contents of either of them still not public?
Reposted from the Electronic Frontier Foundation Deeplinks blog
by Glyn Moody
Fri, Mar 6th 2015 2:49pm
from the more-clarity-needed dept
EU's 'right to be forgotten' is still relatively new -- the original ruling was made less than a year ago. Since then, the EU courts and companies have been trying to work out what it means in practice, which has led to some broadening of its reach. But an interesting court ruling in Spain seems to limit its scope. It concerns the following case, reported here by Stanford's Center for Internet and Society:
The claimant was a Spanish citizen who found that when typing his name on Google Search, the results included a link to a blog with information about a crime he had committed many years ago. While the official criminal records had already been cancelled, the information was thus still findable on the internet.
The Spanish Data Protection Authority (DPA) made two rulings. One was that Google should remove the information from its search engine, and the other was that Google should remove personally identifiable information from a blog hosted on its Blogger platform. When these decisions were reviewed by Spain's National High Court, it confirmed the first ruling, and clarified that Google needed to remove the link to the criminal records information from its search results. However, it did not confirm the second ruling:
The National High Court reversed that and held that the responsible for the processing is not Google but the blog owner. It further held that the DPA cannot order Google to remove the content within a procedure for the protection of the data subject's right to erasure and to object.
This is significant, because it says the "controller of the processing" -- a key concept in EU data protection law -- is the blog owner, not Google, and so the latter cannot be forced to take down a blog post. The Center for Internet and Society post notes:
Arguably, under the rationale that the platform is not the controller of the processing, other user generated content sites such as YouTube or social networking sites might also fall outside the scope of the right to be forgotten.
Well, not entirely outside the scope: presumably, search engines could still be required to remove links to user-generated content, but it would be the creator of that content that would be asked to remove it entirely, not the hosting company. Clearly, further cases will be needed to clarify how exactly this will work in Spain, and whether it applies anywhere else.
by Karl Bode
Fri, Mar 6th 2015 1:42pm
FCC Approval Of Zero Rating Shows Companies Can Still Violate Neutrality Under New Rules, They Just Have To Be More Clever About It
from the it's-neutral-if-I-say-it-is dept
So how will the FCC's new net neutrality rules impact AT&T's plans? There's every indication it won't. The rules are still a few years and a few legal challenges away from becoming tangible, and in the interim, the FCC is telling companies that none of the zero rated efforts currently in play should be impacted. Meanwhile, the Netherlands, Slovenia, Norway, Chile and now Canada all realize the threat posed by zero rated apps and have passed net neutrality rules that outlaw zero rating. The FCC, in contrast, has consistently implied it sees zero rating as "creative" pricing.
That's given AT&T the justifiable confidence to sally forth with its dangerous precedent. After all, injecting a gatekeeper like AT&T (with a generation of documented anti-competitive abuses under its belt) right into the middle of the wireless app ecosystem won't hurt anyone, and has nothing whatsoever to do with net neutrality. Isn't that right, AT&T?:
"AT&T mobile and enterprise CEO Ralph de la Vega characterized the effort as a billing method and not a speed issue, which could be interpreted as a violation of neutrality. He said his initial belief is that the net neutrality policies passed by the FCC last week won’t impact the company’s plans. "It never was an issue of net neutrality,” he said. “I’m very pleased it looks like that will not be impacted."My guess is that the FCC is going to be so busy trying to appease all of the folks fanning their faces over "heavy handed government regulation," that it will probably give ample leeway to services like this. And that's a problem. As I've noted a few times, AT&T, Verizon and Comcast are smart enough to avoid ham-fisted neutrality abuses like outright blocking or throttling services, and U.S. telecom regulators have already shown they're perfectly ok with all manner of anti-competitive behavior -- provided you pony up a half-assed technical justification for plausible deniability.
Blocking Google Wallet to try and give your own mobile payment service a leg up is perfectly okay, provided you offer a feeble, faux-technical explanation that leans heavily on network security. Double dipping and forcing Netflix to pay new interconnection fees just to reach your customers is okay, provided you argue you're just negotiating fair, run-of-the-mill peering arrangements. Making the biggest and most popular music services cap exempt (in the process hamstringing independents and small companies) is just great, provided you dress it up as consumer freedom. Don't like that HBO's streaming app could cannibalize your pay TV subscribers and set top revenues? Just refuse to make the app work and offer a rotating crop of excuses.
U.S. regulators haven't seriously batted an eyelash over any of these. Are these anti-competitive? Are they net neutrality issues? If we agree net neutrality is about preventing gatekeepers from abusing their dominant market position to hurt smaller companies, then aren't these all at least part of the broader conversation? With ham-fisted throttling and blocking off the table, ISPs and cable companies have shifted their focus to abusing gatekeeper power without looking like they're abusing gatekeeper power. If a company's really good at it, it can even trick consumers into rooting against their own best self interests (all the Redditors who don't understand the bad precedent set by T-Mobile's Music Freedom plan are a great example of this).
So again, while it's great the FCC grew a rare spine and crafted tougher net neutrality rules that are legally defensible, they won't mean much if the FCC isn't willing to be as consistently creative and aggressive in enforcing the rules -- as carriers are going to be when in comes to tap dancing around them.
by Tim Cushing
Fri, Mar 6th 2015 12:40pm
from the the-trigger-happy-thug-with-the-IP-boomstick dept
In just six years, Portland, Oregon's Olympic Provisions has gone from a small restaurant with an attached charcuterie facility to a major brand complete with Portlandia immortality and an upcoming cookbook. And now it has to change its name, thanks to a cease-and-desist notice from the International Olympic Committee, the organization that coordinates the Olympic Games. OP co-founder/meat-maker Elias Cairo says OP's two restaurants (one of which has been a longtime member of the Eater Portland 38) and meat department will soon re-brand into Olympia Provisions, bypassing the trademark dispute by altering one letter.The former Olympic Provisions says it was caught up in the IOC's periodic "random sweeps" -- which sounds an awful lot like the sort of behavior one district court memorably called out when dealing with a trademark bully.
The owner of a mark is not required to constantly monitor every nook and cranny of the entire nation and to fire both barrels of his shotgun instantly upon spotting a possible infringer.But that is very much the way of the IOC, and it monitors every nook and cranny of the entire world with its fingers on the trigger. The cease-and-desist it sent to the former Olympic Provisions was so overwrought that the owners first thought it was a joke. But a discussion with its lawyers made it clear it wasn't. The IOC's tactics would be laughable if only they weren't so often successful and damaging to the businesses on the receiving end.
"We start looking around at everything we've branded, from packaging to restaurants to delivery trucks," Cairo says of the costs to change OP's name. "To put a dollar figure on it would be impossible."The IOC doesn't care about the source of the business names it finds infringing. It will make exceptions for businesses located around geographic features that already carry the name "Olympic," pretty much limiting US use of the term to the Washington area. And the local arm of the IOC -- the United States Olympic Committee -- will step in if the marketed goods bearing an Olympic brand are sold outside of that region.
Olympic Provisions, however, is named for a historic building -- something the IOC won't permit, although it has "graciously" allowed the business a little time to make the change.
For Olympic Provisions — which was named after the building that houses its first restaurant, Portland's historic Olympic Mills building — they've reached a deal with the IOC that will allow them to slowly phase out the old OP labels and branding. (The short-term solution involves simply stamping a letter "A" on top of the existing labels; the OP team expects to be completely rebranded by this summer.)The IOC claims it fears trademark dilution when defending its aggressive domination of the word "Olympic," but only comes off as unhinged and paranoid. But most entities don't have the funds to engage in legal warfare with this brand giant, so it often needs nothing more than a threatening letter to assure compliance.
by Tim Cushing
Fri, Mar 6th 2015 11:36am
Court Tells AZ Legislator To Fix His Unconstitutional Revenge Porn Bill; He Immediately Makes It Much Worse
from the Y-CAN'T-MESNARD-LEGISLATE? dept
Arizona's "revenge porn" law is bad. So bad it was challenged by the ACLU -- along with a number of journalistic entities -- who pointed out the overbroad wording would make all sorts of free speech criminal. Like publishing photos of the atrocities committed on naked prisoners at Abu Gharib. Or pictures of women breastfeeding. Or a sexual assault victim showing nude pictures of her assaulter to friends or family.
The court agreed, finding the law as written, unconstitutional. It temporarily blocked it from going into effect until it could be rewritten with a more narrow focus, so as not to criminalize protected speech. So, legislator J.D. Mesnard took his law and amended it. And made it worse and less constitutional. Amanda Levendowski, who has been following this law since its genesis, noted that one of the amendments strips out a much-needed First Amendment protection.
So, Arizona revised its revenge porn law to remove the public interest exception:Sure enough, Mesnard is breaking what's fixed and "fixing" what isn't broken. It appears Mesnard doesn't like the idea of a narrowly-crafted revenge porn law. Interviewed shortly after the court shot down his law, Mesnard stated that it's too much to expect the state to prove accused revenge pornographers are actually revenge pornographers before charging them with felonies.
And they [law opponents, including the ACLU and the Media Coalition] want it to apply only to someone who was in an intimate relationship and displays a photo that their partner expected would be private with the intent to embarrass, harass or otherwise harm the person.Mesnard wants to divorce criminal activity from criminal intent. He wants a law that makes the accused immediately guilty. Not only did he strip more free speech protections from his law, but he's trying to make eye-of-the-beholder the legal standard for revenge porn cases.
Mesnard said that language would be a deal-breaker because of the need to prove intent to harm, which he said would create "a big old loophole."
"I'm definitely hesitant to go down that road because it will in my view make the law nearly meaningless," he said. "Because someone could say `I thought it was funny, I didn't mean to cause harm, I was proud of my ex-girlfriend and the way she looks.' They can come up with all sorts of excuses, and suddenly the very same action which in one circumstance is a crime in another circumstance isn't."
Intent is important. It's what separates murder from homicide. It's what separates security researchers and bug hunters from cybercriminals. It's what keeps every offhand, stupid remark on social media from being punishable as a "true threat." Or, that's the way it should be. The government -- at all levels -- seemingly has very little interest in determining intent. It's more comfortable in criminalizing non-criminal activity than fulfilling its obligations as a prosecutorial force.
Mesnard is no different. It's "hard" to prove intent so let's just write a law that doesn't require any additional thought or legwork. Guilty until proven guilty.
A court tells Mesnard his law is bad and must be fixed. And Mesnard makes it even worse. "Revenge porn is bad," he explains. Someone needs to do Mesnard a favor and put down his crippled hobby horse. The only upside here is that there's no way the court is going to find this version any better than the one it rejected a few months ago. And if he and his fellow legislators can't actually fix it, hopefully it will be overturned. But Mesnard remains an eternal optimist, despite being unable to compose a constitutional law.
"I'm confident that we'll come up with something that will be even clearer and cleaner that what we came up with last year and something that even if the ACLU continues to challenge in court will be upheld," Mesnard said.Maybe he could start by asking the ACLU how this should be written. As the article points out, 13 other states have implemented "revenge porn" laws, but only Mesnard's have been challenged by the ACLU. It is possible to write a narrowly-crafted law that will survive legal challenges, but Mesnard is clearly uninterested in doing this. He's hoping to just muscle his free speech-threatening law past challengers and the court itself. Mesnard may view himself as tenacious, but if he continues to keep doing the same thing over and over again and expecting different results, he'll find another, much less flattering term being applied.
by Tim Cushing
Fri, Mar 6th 2015 10:30am
from the Five-Eyes-but-one-master dept
Since 2009, the Government Communications Security Bureau intelligence base at Waihopai has moved to "full-take collection", indiscriminately intercepting Asia-Pacific communications and providing them en masse to the NSA through the controversial NSA intelligence system XKeyscore, which is used to monitor emails and internet browsing habits.This sort of spying -- while apparently "normal," in light of previously-released documents -- indicates many governments enjoy spying for spying's sake, rather than for the justifications they often offer in defense of untargeted surveillance.
The documents, provided by US whistleblower whistleblower Edward Snowden, reveal that most of the targets are not security threats to New Zealand, as has been suggested by the Government.New Zealand's intelligence agency, along with Prime Minister John Key, have previously refused to acknowledge or deny the use of the NSA's XKeyscore system. A short blurb from the obtained documents renders this Glomar null.
Instead, the GCSB directs its spying against a surprising array of New Zealand's friends, trading partners and close Pacific neighbours. These countries' communications are supplied directly to the NSA and other Five Eyes agencies with little New Zealand oversight or decision-making, as a contribution to US worldwide surveillance.
The wording indicates that GCSB is indeed using this system for its collections, which are then immediately accessible to the NSA. NSA analysts must first read through an online ("iLearn") briefing on NZ law and answer a few questions correctly before they're allowed to search the collection.
The collection itself is impressive. It contains phone calls, text messages, emails and social media interactions. In the parlance of the Five Eyes intelligence agencies, this is "full-take," a far more intrusive form of surveillance than skimming metadata off the top.
Even though it's purportedly an anti-terrorism tool, the surrounding friendly nations have given New Zealand little reason to spy on them. But that's how the anti-terrorism game is played by spy agencies: everything from everyone, for as long as possible. What's not legal to "look at" in one country can always be used by another. The built-in "protections" for each nation's citizens are nearly useless, considering the breadth and depth of these untargeted collections. Incidental collections are a certainty, rather than an anomaly analysts should be wary of.
Whatever's being collected had better be doing a bang-up job keeping terrorists at bay. Prime Minister John Key has openly stated that sending his own citizens off to die is foreign warzones is just paying Five Eyes membership dues.
In his strongest hint yet that the Cabinet will approve a deployment of troops to train Iraqis alongside Australians, Mr Key in an interview with the BBC drew heavily on New Zealand pulling its weight as part of "a club".Of course, Key has also reassured New Zealand citizens that the GCSB isn't spying on them, betting his job against that probability.
"Ultimately are we going to say we are going to be part of a club like [we] are with Five Eyes intelligence?
"Even if the contribution is small - of course it will be proportional - there has to be some contribution," he said.
"It is the price of the club."
Asked if he and GCSB chief Ian Fletcher would resign if there were mass surveillance, he said yes.Key's hedges make it almost impossible to hold him to his promise. Domestic surveillance has been confirmed, both by these documents and previous revelations. The interception points and untargeted dragnet make it inevitable that New Zealanders' communications are being swept up indiscriminately. The problem is that this is likely legal. The only way to violate New Zealand's surveillance laws (and hold PM Key to his promise) is to find proof that GCSB is intentionally targeting its countrymen. By making surveillance programs broad and untargeted, the GCSB can avoid violating the law while still collecting a great deal of domestic data and communications. Minimization comes into play post-collection, but there's nothing built into the system to prevent -- or even minimize -- these "incidental" collections.
"But the facts of life are it won't happen."
For that to happen, the GCSB would have to undertake illegal activity.
He clarified later saying "both" would resign if there was mass surveillance.
"If I wholesale blatantly flout the law as Prime Minister I'm never going to survive anyway."
Whatever the GCSB offers in assurances about minimization should probably be ignored. It doesn't maintain any control over the communications it grabs. The collection belongs to the NSA. GCSB analysts have to run queries through the American agency just to see what it's gathered from its neighbors.
The documents show that when GCSB staff want to access communications intercepted at Waihopai, they have to log into NSA computer databases. Minutes of a June 2009 meeting at the NSA headquarters, where a GCSB officer was present, show how integrated the GCSB is into the NSA systems. The GCSB officer, manager of an intelligence analysis unit, told the meeting that 20 per cent of GCSB's analytic workforce did not have accounts or access to key NSA databases.Because the GCSB doesn't control the database, it really can't destroy anything it shouldn't have access to. New Zealanders caught in this dragnet now "belong" to the NSA, which has very few minimization procedures for foreign collections -- even if the actual "collection" utilized another agency and occurred under another set of laws. GCSB analysts may constrain themselves from searching or viewing New Zealanders' communications, but it can't promise to delete unlawfully-obtained "incidental" collections.
It works out this way: the New Zealand government will provide military support -- including the deployment of troops -- in exchange for whatever the NSA allows it to look at. It provides the intercepts, but the NSA enjoys the greatest share of its "partner's" collection efforts. This hardly seems like an equitable exchange. And now New Zealand is going to be dealing with irritated neighboring countries and more than a few irate New Zealanders. And for what? A massive, untargeted collection that it doesn't even control and which does very little to aid in the country's anti-terrorism efforts.
by Mike Masnick
Fri, Mar 6th 2015 9:29am
from the shake-down dept
Hood lashed out angrily about all of this, even as the NY Times revealed that the metadata on the letter he sent Google showed that it was really written by top MPAA lawyers. Hood continued to angrily lash out, demonstrating how little he seemed to understand about the internet. He made claims that were simply untrue -- including pretending that Google would take users to Silk Road, the dark market hidden site that could never be found via a Google search. Hood also dared reporters to find any evidence of funding from Hollywood, and it didn't take us long to find direct campaign contributions to his PAC from the MPAA and others.
Given all of this, we filed a Mississippi Public Records request with his office, seeking his email communications with the MPAA, its top lawyers and with the Digital Citizens Alliance, an MPAA front-group that has released highly questionable studies on "piracy" and just so happened to have hired Hood's close friend Mike Moore to lobby Hood in Mississippi. Moore was the Mississippi Attorney General before Hood and helped Hood get into politics.
We've had to go back and forth with Hood's office a few times. First, his office noted that Google had actually filed a similar request, and wanted to know if we were working for Google in making the request. We had no idea Google made such a request and certainly were not working on behalf of Google in making our request -- but Hood's office helpfully forwarded us Google's request, which was actually a hell of a lot more detailed and comprehensive than our own. This actually is helpful in pointing to some other areas of interest to explore.
However, after some more back and forth, Hood's office first said that it would refuse to share the emails between Hood and the MPAA's lawyers as they "constitute attorney-client communications" or "attorney work product" and that finding the rest of the emails would... require an upfront payment of $2,103.10:
In response to your request for e-mails between this office and the Motion Picture Association of America or the Digital Citizens Alliance, we estimate it will take our IT department five hours to conduct searches for e-mails responsive to your request. The hourly figure for the lowest paid employee able and available to do this work is $30.62, for a total of $153.10.I had one further back and forth with the office, asking why these estimates seemed so high. In this day and age, how could it honestly take five hours to run a search on an email system? More importantly, how could it possibly take 30 hours of high priced time to review each document like that? I may not be a FOIA master like Jason Leopold, but I've never seen a response to a FOIA request like this. Normally, when a journalist is seeking records, it's fairly standard to exempt fees, but it seems clear that Jim Hood's office doesn't want these emails getting out, so it's not going to do that.
The documents will then have to be reviewed to determine if they fall under the definition of "public records" as defined by Miss. Code Ann. §25-61-3(b), and if they are otherwise exempt from the Public Records Act. At this time, a rough estimate of the amount of time to review the requested records is thirty hours. At $65 per hour, the total, conservative estimate to review your request is $1,950. Pursuant to statute, these total estimated costs of $2,103.10 must be paid in advance. We will revise the estimate as necessary after the search is completed and we have a better idea of how many documents must be reviewed. Of course, if we are able to fulfill your request for less than the estimate, then we will refund the difference to you.
It also is already telegraphing the fact that it's likely not going to release any of the emails that actually matter, claiming that they are either "attorney work product" or "investigative reports." While Hood's office says there are "nearly 900 emails" responsive to my request, it expects most of them to be exempt from public records requests. Thus, all we'd end up doing is forking over $2,103.10 that we don't have to Jim Hood's office to use to further its own efforts. I have no interest in further funding Hood attempting to attack fundamentals of free speech and the internet, but this little bit of obstructionism certainly is suggestive of the way Hood's office operates, and its absolute fear of transparency.
It certainly makes you wonder why his office is so afraid to release those emails? The Sony Hack certainly revealed some questionable activities going on between Hood, the MPAA, its lawyers and the Digital Citizens Alliance. If Hood's work with the MPAA and its lawyers and partners were truly above board, and Hood were truly committed to transparency, you'd think his office would be eager to release the emails and clear up any misconception. Unfortunately, they'd rather demand thousands of dollars from a small blog. That says a lot.