The scientific method has undoubtedly advanced the growth of knowledge, but with the enormous amount of data that can be collected now, it can be difficult to turn all that information into reliable and understandable facts. On the other hand, science is also pushing the boundaries of what can possibly be measured -- but can we still call it science if we're proposing unknowable multiverses and spatial dimensions that can never be explored? Almost anyone can publish their crazy ideas -- and sometimes those sketchy papers submitted to arxiv.org lead to successful work proving an infinite number of twin primes. Do the crackpots outnumber the "real" scientists? Does it matter?

• Advances in cosmology are pulling away from experimental verification. Some theorists argue that their theories to explain the universe may not be verifiable by observations -- and that it doesn't matter. They assert we're in a "post-empirical" period for understanding fundamental physics. [url]
• Verification of experimental results is a fundamental aspect of science, right? Providing more funding for researchers to perform replication experiments may be increasingly necessary to ensure our scientific knowledge isn't merely based on anecdotes (or bad experiments or biased analysis). [url]
• Will traditional scholarly journals have a future? There's a growing movement to decentralize the peer review and publication process that doesn't require a for-profit scholarly journal. Yay? [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Thanks to its ongoing FOIA lawsuit against the NSA, the EFF has managed to secure another set of documents detailing the legal rationalizations behind the intelligence agency's "collect it all" approach, as well as the FISA's courts approval of expanded surveillance powers in the wake of the 9/11 attacks.

The documents were supposed to be released in January, but the NSA ignored a direct court order and unceremoniously dumped them in the EFF's lap late in the evening of March 2nd.

The so-called "raw take" document dates back to July 2002 and shows the FISA court granting the NSA, FBI and CIA to continue increased surveillance powers and expanded information sharing.

This matter is before the Court on the motion of the United States, filed by James A. Baker, Counsel for Intelligence Policy and approved by the Attorney General of the United States, to modify the minimization procedures already approved and in use in the above captioned cases since January 1, 2001: to authorize the Federal Bureau of Investigation (FBI) to disseminate to the Central Intelligence Agency (CIA) and to the National Security Agency (NSA) "raw data" (unminimized information) only where the raw data relates to international terrorism; to include communications of or concerning United States persons collected by the FBI in electronic surveillances and physical searches authorized by this Court under the Foreign Intelligence Surveillance Act and to allow the CIA and NSA to review, translate, analyze, minimize, use, retain and disseminate such information pursuant to supplementary minimization procedures approved by the Attorney General and filed with the Government's motion.

The documents cite several supporting documents and exhibits filed by the government. Unfortunately, none of those "attached" documents are actually attached, meaning it will take more legal wrangling to gain any more insight into the government's justification of expanded powers.

The other document is a September 2008 FISA court opinion that the EFF refers to as the "Rosetta Stone" of FISA-authorized surveillance.

This opinion… purportedly represents the FISC’s full assessment of the range of legal issues presented by NSA surveillance under Section 702 of the FAA—a provision of law authorizing the government to conduct warrantless surveillance within the United States of overseas targets. Importantly, the opinion likely discusses the constitutionality of the NSA’s upstream surveillance operations—currently, the only federal court decision on this topic. Despite this opinion's centrality to understanding FAA surveillance, it has remained secret for nearly 7 years.

The FISA court approved everything the government asked for and states its reasons for doing. Unfortunately, you'll (again) just have to take the FISA court's word that the government's arguments and supporting documents were satisfactory. Nearly everything involved in the crafting of this opinion was filed ex parte and reviewed in camera.

Supposedly, targeting of a person will "cease immediately" once they're determined to either be a US person or have entered the United States. Collections past this point are supposed to be purged. But there are exceptions.

If, in Order to protect against an immediate threat to national security, the NSA determines that it must take action, on a temporary basis, in apparent departure from these procedures and that it is not feasible to obtain a timely modification of these procedures from the Attorney General and [the DNI] NSA may take such action and will report that activity to [the Department of Justice and the Office of the DNI]. Under such circumstances, the Government will continue to adhere to all of the statutory limitations set forth in subsection 702(b) of [FISA].

The NSA then admits that it's not really in the business of thwarting immediate threats.

The government expects that this departure provision will be invoked only under "very extreme circumstances," and in fact is not likely to be used at all.

The court notes that nothing in the applicable statutes actually requires the NSA to prevent the targeting of US persons. All it demands is that the NSA not do it "intentionally." Hence, all sorts of incidental collection. Sure, there are minimization procedures in place, but there's also a lot of information sharing between agencies (FBI, CIA) that utilizes "raw" data and communications.

In this case, there are three sets of minimization procedures that have been adopted by the Attorney General: a set of procedures for each of the two agencies that will conduct acquisitions, the NSA and the FBI, and a third set of procedures for the CIA, which may receive from those agencies the raw data from acquisitions. Each of these sets of procedures closely resembles minimization procedures that have been found by judges of this Court to meet the definition of minimization procedures under section 1801(h) in the context of cases that have a significantly greater likelihood of acquiring communications to, from, or about United States persons.

It's the minimization procedures that introduce the most loopholes. The CIA's loopholes are the most expansive.

Any communication . . . acquired through the targeting of a person who at the time of targeting was reasonably believed to be a non-United States person located outside the United States but is in fact located inside the United States at the time such communication is acquired or was in fact a United States person at the time of the targeting shall be destroyed unless the Director of the [CIA] determines in writing that such communication is reasonably believed to contain: significant foreign intelligence information; evidence of a crime that has been, is being, or is about to be committed; or information retained for cryptanalytic, traffic analytic, or signal exploitation purposes.

As for the NSA, its minimization exceptions leave the door propped open for the retention of US persons' communications and data.

[T]he Director of NSA may also authorize retention upon a finding that "the communication contains information pertaining to a threat of serious harm to life or property" or "information necessary to understand or assess a communications security vulnerability."

The order also notes that additional expansions of surveillance power occurred on May 2007, under the heading of "raw take."

[T]he procedures adopted by this Court in In re Electronic Surveillance and Physical Search of International Terrorist Groups. Their Agents, and Related Targets, Order, No. [REDACTED] (May 2002), as extended and modified by orders of this Court, most recently on December 6, 2007…

Interestingly, just as FISA Judge Mary McLaughlin was finding a bunch of government ex parte submissions wholly credible and the agency's Section 702 program no threat to the Fourth Amendment, the government was fighting with FISA Judge Walton for the survival of a less intrusive program (the bulk phone records collection)... and losing.

McLaughlin found the minimization and targeting practices the agency instituted to be a sufficient deterrent to abuse. Meanwhile, Reggie Walton was finding plenty of abuse and obfuscation in his dealings with the NSA. By early 2009, he was threatening to shut down the program for "frequent and systemic violations" of minimization procedures. One FISA judge took the government's claim that internal procedures would prevent abuse at face value -- for a program that gathered content and communications. Almost simultaneously, Judge Walton was discovering the NSA's internal procedures weren't preventing anything.

This is as close to a "whole picture" as we have on the government's arguments for its internet backbone communications collection, at least at this point. And most of the arguments are missing. What we have is a judge stating that she believes the government when it says words like "oversight," "minimization" and "reasonable belief." Not exactly heartening, considering its past abuse of similar minimization procedures with its bulk records program.

In the interest of full disclosure, I hope there is a special place in Hell reserved for the Macy's people. A decade ago, the department store giant waltzed into my hometown of Chicago and gobbled up the State Street institution known as Marshall Field's, forever changing how Christmas is experienced by young people in this city of mine. Now, making matters worse, it appears that Macy's is attempting to retain some kind of ownership over the brands its buy-ups dissolved, contrary to the rules about trademark abandonment.

When Macy’s Inc. swallowed up a slew of department stores across the land — from Marshall Field’s to Filene’s, Abraham & Straus to Jordan Marsh — it rebranded many of them, turning the formerly regional chains into Macy’s stores. But in a new lawsuit brought by the company that echoes a suit from 2011 that was slated to come to trial soon, Macy’s says the California company behind the resurrection of Hydrox and Astro Pops is infringing on trademarks it held for many of those recognizable brand names.

Macy’s alleges that Strategic Marks infringed on its trademarks once again when it began selling T-shirts and candy under those 12 additional brands last month. In 2010, Strategic Marks had applied to register for trademarks for some of those names to be on clothing sold online and potentially in pop-up stores in the future, “using typestyles which are intentionally identical to those used by Macy’s,” the suit says.

Strategic Marks vehemently disagrees in a countersuit, pointing out that after Macy's bought up all those brands, it then rebranded them as Macy's stores and abandoned the use of the original names. Under the Lanham Act, the failure to use a trademark for at least three years constitutes abandonment, leaving others free to use them as they see fit. Which is exactly what Strategic Marks did in selling nostalgic apparel using the brand-names. Ellia Kassoff, founder of Strategic Marks, is once again asserting abandonment, as he did when Macy's first filed against him in 2011.

“They weren’t using these trademarks,” he told Consumerist back then, claiming, “We have proof they weren’t using these trademarks… Macy’s went to the Trademark Office and said, ‘No, no! These are ours! These are ours! We started it! This has our heritage! It’s our heritage!’ And the Trademark Office said, ‘Sorry, but you’re not using it. You haven’t used it in years.’”

Should that prove to be true, the Macy's suit is meritless and smacks of a company seeking to dissolve brands through buyouts and then attempting to control the use of those dissolved brands after they've been buried in the graveyard. Large companies buying out local corporations is an unfortunate but legal reality, but detaining those beloved brands even after they've been put to death isn't just silly, it's cruelly authoritarian. On top of that, given that Macy's went to some length specifically to re-brand the old names into the Macy's fold, it's difficult to understand where customer confusion over nostalgic apparel is going to come in.

The trial date for both suits is set for March, where hopefully the dead brands will be set free.

I'm a little surprised to say that we have yet another Streisand Effect story involving NHL hockey players. The previous post had to do with a rookie hockey player who tried to trademark a nickname with some negative connotations to it in order to control how that nickname was being used. This one is a little bit different and, honestly, it sounds like the start to really bad joke: two hockey players and actress Elisha Cuthbert want an apology and cash from a sports station that aired a joke tweet about a love triangle between the three of them during the trade deadline coverage.

That's the joke tweet. It was part of a rolling tweet embed that sports stations do all the time, instructing viewers to use a particular hashtag and then pulling those tweets and putting them on the air. This particular tweet, concerning the Toronto Mapleleafs' Joffrey Lupul, Dion Phaneuf, and Phaneuf's wife, who happens to be Elisha Cuthbert, probably would have made it past any automated filters the station, TSN, had set up. After all, there's no obvious vulgar words or anything like that. So, whether such filters exist or not, the tweet pops up on air.

And the three subjects of the joke are pissed.

"On behalf of our clients Dion Phaneuf, his wife Elisha Cuthbert and Joffrey Lupul, we have sent a letter to TSN demanding that TSN issue a formal apology and pay a significant amount of damages to each of our clients for broadcasting a false and defamatory tweet during their trade deadline show yesterday. We are sending a similar letter to the author of the tweet, Mr. Anthony Adragna.

It is bad enough that there are people who spend their time using social media to publish such false and malicious stories, but it is made much worse when a reputable media outlet like TSN gives broad circulation and credibility to these false stories by republishing them as TSN did. If TSN and Mr. Adragna do not immediately comply with the demands set out in our letters, we have instructions from our clients to immediately commence a lawsuit against them. Our clients will not be discussing this matter with the media. Any questions should be directed to the undersigned."

So, a couple of things here. First, it's questionable how much validity a lawsuit against either party would be. The tweet itself is obviously a joke to anyone who bothers to read the wording of it, which makes a defamation case problematic. TSN has alreay issued an apology to the three of them and they clearly had no intention of defaming anyone at all.

But, finally, and most importantly, what the hell, you three? It was a flash of a joke tweet that was on a Toronto TV station for, like, a couple of seconds. But because you three freaked out about it and got the lawyers involved, there's been national media attention on the very thing you wanted to erase from our collective consciousness to begin with. Talk about Streisanding your way towards the opposite goal.

Recently, there was something of a scare around GNU Privacy Guard (GPG), a "free implementation of the OpenPGP standard as defined by RFC4880 (also known as PGP)." An article on Propublica revealed that GPG was essentially the work of one person, who was running out of money. Just at the moment when we needed properly-implemented strong crypto most, it looked like the project was on the verge of collapse. Fortunately, that same article also succeeded in raising people's awareness of the situation, and enough money was pledged as a result to secure the future of GNU Privacy Guard, at least for the immediate future.

Now GPG is under attack again, and from a surprising quarter. Moxie Marlinspike is the pseudonym of a well-known computer security researcher. You might expect him to be pretty supportive of what GPG is doing, and yet in a recent blog post he is anything but uplifted when he receives encrypted email using it:

When I receive a GPG encrypted email from a stranger, though, I immediately get the feeling that I don't want to read it. Sometimes I actually contemplate creating a filter for them so that they bypass my inbox entirely, but for now I sigh, unlock my key, start reading, and -- with a faint glimmer of hope – am typically disappointed.

Here's why:

Eventually I realized that when I receive a GPG encrypted email, it simply means that the email was written by someone who would voluntarily use GPG. I don't mean someone who cares about privacy, because I think we all care about privacy. There just seems to be something particular about people who try GPG and conclude that it's a realistic path to introducing private communication in their lives for casual correspondence with strangers.

Increasingly, it’s a club that I don’t want to belong to anymore.

The rest of his interesting post goes on to describe the flaws of GPG. Basically, it is extremely hard to use, not widely deployed, and has turned into impenetrable, backward-looking code -- all of which are entirely reasonable criticisms. Marlinspike concludes:

GPG isn't the thing that's going to take us to ubiquitous end to end encryption, and if it were, it'd be kind of a shame to finally get there with 1990's cryptography. If there’s any good news, it's that GPG’s minimal install base means we aren't locked in to this madness, and can start fresh with a different design philosophy. When we do, let's use GPG as a warning for our new experiments, and remember that "innovation is saying 'no' to 1000 things."

In the 1990s, I was excited about the future, and I dreamed of a world where everyone would install GPG. Now I'm still excited about the future, but I dream of a world where I can uninstall it.

Again, those are all good points. And yet for all GPG's faults, and for all its failings, it seems somewhat ungrateful to berate it in these terms. I suspect that it has saved a good many people living in countries with oppressive and brutal regimes from arrest or worse; it has doubtless helped journalists to receive crucial information they might not otherwise have been sent, and to keep their sources safe; and it certainly made Snowden's revelations possible -- at least once Glenn Greenwald finally worked out how to install it. To say that it could have been better, or that its unintuitive approach may have prevented more people from using it misses the point, which is that in its own idiosyncratic way it was there when people really needed it, and that it did the job asked of it -- and for that, we should be hugely grateful, even while hoping that something better will come along soon.

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

As part of its continued foray into film and more flexible release windows, Netflix this week announced it had acquired the Cary Fukunaga film "Beasts of No Nation." Based on the novel by Uzodinma Iweala, the movie stars Idris Elba and examines the impact of civil war on an unnamed West African country. Like the company's acquired sequel to "Crouching Tiger, Hidden Dragon," Netflix is using the opportunity to kick down the doors of antiquated release windows, pushing the film to theaters the same day it will be available on Netflix instant streaming.

Given this would challenge the aging structure of the film industry, you'll probably not be surprised to learn that the primary response to Netflix's move has been of the hissy fit variety. That home video viewing will kill theaters has been the refrain of theater owners for decades now.

So, when Netflix announced it would be offering its Crouching Tiger sequel in IMAX on the same day as streaming availability, AMC, Regal and Cinemark -- which, combined, run 247 of the 400 IMAX theaters in North America -- unsurprisingly announced they'd be boycotting the movie this summer. Similarly, those same chains have joined forces to boycott Netflix's release of "Beasts of No Nation," insisting they need to do so to protect the 90-day delay between a theatrical debut and a home entertainment release.

That inflexibility has opened the door to folks like Alamo Drafthouse CEO Tim League, who somehow grasps the immeasurably complicated idea that sometimes people like going out to the movies, and sometimes they like staying home. League shot down the idea that tinkering with release windows was a death knell for theater owners:

"I’m agnostic about this sort of thing,” said Tim League, the company’s CEO and founder. “I look at films I want to play and I play them regardless of the release strategy." League noted that Alamo Drafthouse had success showing “Snowpiercer,” even though that science-fiction adventure debuted last summer on-demand while it was still in theaters.

"I don’t look at myself as a competitor to Netflix,” said League. “I think that argument is a little bit of a red herring. I watch a lot of movies at home, but there comes a time where I want to get out of the house. I look at cinemas as one of those options that compete with restaurants or baseball games or all of those things I can’t do in my living room."

Flexibly focusing on the consumer instead of crossing your arms and making a pouty face when inevitable industry evolution occurs? Ridiculous! Somebody clearly forgot to inform League that change is always bad, and pouting like a petulant child is the only effective and profitable path forward when history and technology threaten to rattle the status quo.

Last December, an artistic piece appeared on the University of Iowa (UI) campus that rubbed a whole lot of people the wrong way. It resembled a hooded KKK member and was constructed from newspapers containing stories on racial violence. UI, being a typical university, removed and condemned the artwork, apparently unable to see anything past the shape of the object -- like the subtext or even what its own condemnation meant in this context. (It was this effigy that prompted a completely ridiculous/trollicious response at Thought Catalog -- one that compared free speech to Nazism.)

The school went on to soothe its thin skin by inviting its students -- especially those with equally thin skin/inability to contextualize artistic statements -- to come up with more ideas for repressing further free speech.

Emails obtained Wednesday by The Gazette reveal UI administrators sent that draft to student leaders who had expressed indignation over the effigy, asking for “suggestions.” The students sent a “response draft” with a handful of changes and stronger language.

UI Vice President for Student Life Tom Rocklin said in internal emails that “some of what they have written, I think, is out of the question.”

The students, for example, suggested [President Sally] Mason call the statue a “portrayal of hate” and say “this action of an individual at an educational institution at the pedestal of the Pentacrest was not and will never be tolerated.”

They also suggested Mason call for an investigation.

Fortunately, most of the suggestions were never implemented. But the university still forced the artist -- a visiting professor who was on hand during the controversial effigy's very brief appearance on campus to answer questions and explain his motivations -- to remove it from the campus' informal free speech area, called the "Pentacrest."

The better news is that another local college -- Kirkwood University -- has found a home for Professor Serhat Tanyolacar's artwork.

Titled, "Fear of Art: Free Speech, Controversy and Public Space," the forum attracted about 150 Kirkwood faculty, students and community members — who posed dozens of questions after a 30-minute opening statement from Tanyolacar.

UI, meanwhile, maintains that it didn't remove the effigy because it was supposedly offensive, but because Tanyolacar didn't ask its permission before exercising his First Amendment rights. The administration also claims that if it had been asked, it would have granted its permission. This, of course, can't be proven after the fact, so it's a safe thing to say, even if most people don't believe a word of it.

What the university has done with its swift removal of protected expression in response to a heckler's veto is provide the student body with a blueprint for further attacks on free speech. FIRE's (Foundation for Individual Rights in Education) Ari Cohn phrases it this way:

@uiowa has turned its students into such anti-#freespeech goblins that they are calling police to report suspected unregistered protests.

If you don't like something, start tattling.

University of Iowa police Lt. Joe Lang, who was on scene at the demonstration, said the police were called to the event because someone saw the demonstration and decided to report it.

“We’re out here to make sure they went through the proper channels to get permission for this demonstration,” he said “We’re protecting the vested interest of the university; we just want to avoid a situation similar to what happened a few months ago.”

The "demonstration?" A public "free speech wall" where any student could write down anything he or she wanted to, provided -- with permission from the university -- by the school chapter of the Young Americans for Liberty. But someone (or someones) on campus would rather shut down free speech -- using law enforcement, no less -- than deal with the possibility that someone might be offended.

This is the culture that is indulged by the University of Iowa. It claims (like many other schools that say one thing and do another) to be a supporter of free expression, but its previous actions show nearly no heckler will be denied his or her veto power. The school has decided -- through its statements and actions -- that free speech can only be defended if it's popular speech. UI's president, Sally Mason, has already gone so far as to apologize to students who felt "terrorized" by Tanyolacar's "unauthorized" artwork. In complete seriousness, she also claimed to support free speech while simultaneously asserting that the UI campus was no place for "divisive or insensitive displays."

The censoring of Tanyolacar's artwork has already produced a chilling effect on free expression, as is evidenced by the summoning of police to a free speech "demonstration." The campus cops are already geared up to "prevent" students from being "terrorized" by protected speech. And now a certain subset of students has been given more power than they can responsibly handle. It's clear which "side" of free speech the college has chosen to throw its weight behind: the side that limits, rather than encourages, an open exchange of ideas.

If you love our nation's stupid Drug War and our government's legalized theft system d/b/a asset forfeiture… well, it's highly unlikely that you read this blog with any regularity. If you don't like either of those, then here's more bad news for you.

The ATF -- another rogue DOJ agency and one which was previously only adjacent to the Drug War -- has been formally invited by the DOJ to jump in and start seizing more stuff. The initial dip of the ATF's toe into drug-related administrative forfeiture has been such a moneymaker that the DOJ is permanently removing the only barrier between the ATF and warehouses full of other people's property.

In February 2013, the Department of Justice started a pilot program allowing the ATF to process property related to drug offenses through administrative forfeiture, when weapons were also being seized. By Sept. 30, 2014, the ATF had seized and processed assets with a total value in excess of $19,300,000, according to the new rule.

The program will continue, according to the Justice Department.

The only thing holding the ATF back from being a full-blown soldier in the War on Drugs was paperwork and logistics. Formerly, if it seized something purportedly "drug-related," it had to turn it over to the DEA or a US Attorney for processing -- the latter option usually resulting in a trip through the court system. No longer. Now, it can handle forfeitures from start-to-finish.

This speeds things up for the US government, which still strongly feels (despite Eric Holder's recent rule tweak) that taking stuff from people under the assumption that the stuff itself is guilty of criminal activity is a great way to destroy drug empires, punish fraudsters and generally wreak law enforcement havoc on criminal enterprises. For the people on the other end of these "forfeitures" -- the only party saddled with the burden of proof -- it often looks like nothing more than government-ordained robbery.

According to the DOJ, "fast and effective" is better than "right."

Administrative forfeiture is expedient and effective, the Justice Department believes.

The DOJ notes, rather disingenuously, that all the legal hassle of disputed forfeitures is "costing" it thousands of dollars every year. Hence, it would prefer that its agencies be allowed to process their own administrative forfeitures, increasing the likelihood that due process will be bypassed some tax dollars can be "saved" while relieving taxpayers of their "guilty" property.

An uncontested administrative forfeiture can be done in 60-90 days for minimal cost, whereas judicial forfeiture generally can take 6 months to a year and cost hundreds or thousands of dollars. In the meantime, the government incurs additional costs if the property requires storage or maintenance until a final order of forfeiture can be obtained, the rule states.

Now, some entities (like the DOJ and its various three-letter underlings) believe that an "uncontested" forfeiture is a tacit admission of guilt. It's a stupid assumption but it probably lets them sleep better at night. In reality, an "uncontested" seizure is usually the result of a person realizing that an uphill court battle, multiple powerful government agencies and a massive amount of legal fees stand between them and their seized property. In most cases, it isn't worth the fight.

This policy change perverts the ATF's incentives, pretty much ensuring that the process will be abused (further) in the future. Anything that speeds up a corrupt and broken process will work out badly for those on the receiving end of the ATF's new powers. The further muddying of the lines separating agencies' jurisdictions will only make things worse, turning the ATF into a part-time Drug War ally who will now be looking for anything that might be "drug-related," rather than limiting itself to its designated duties.

Over a decade has passed since the 9/11 attacks, and the intelligence community still won't let the attack it didn't prevent be laid to rest. It is exhumed over and over again -- its tattered remains waved in front of legislators and the public, accompanied by shouts of, "YOU SEE THIS?!? THIS IS WHAT HAPPENS WHEN WE DON'T GET OUR WAY!"

It's grotesque and ghastly and -- quite frankly -- more than a little tiresome. The NSA's Section 215 program is set to expire on June 1st and James Clapper is making statements in its defense -- statements that read like someone attempting to sound more disappointed than angry. But this is James Clapper speaking, and all prior evidence points to him being unwilling to make any concessions on the domestic surveillance front.

Here's what he had to say about the impending death of the bulk phone records collection:

"In the end, the Congress giveth and the Congress taketh away," he said. "If the Congress, in its wisdom, decides the candle isn't worth the flame, the juice isn't worth the squeeze, whatever metaphor you want to use, that's fine."

"The intelligence community will do all we can within the law to do what we can to protect the country. I have to say that every time we lose another tool in our toolkit, it raises the risk," he added. "If that tool is taken away from us, 215, and, some untoward incident happens which should have been thwarted had we had it, I hope everyone involved in that decision assumes the responsibility and it not be blamed, if we have another failure, exclusively on the intelligence community."

The subtext is clear and Jason Koebler at Vice spells it out succinctly: Kill Section 215, but don't blame us if another 9/11 happens.

The intelligence community continues to argue -- without evidence -- that the program has aided in combating terrorism. It can't say how or offer any details as to attacks thwarted, but it makes the assertion all the same. The Privacy and Civil Liberties Oversight Board (PCLOB) has access to intelligence documents most Americans will never see and yet it came to this conclusion: the bulk records program is both useless and a violation of civil liberties.

Clapper's defense of the program seems to be faith-based. In a single clumsy metaphor, Clapper summons the spirit of two Simpsons characters.

"215, to me, is much like my fire insurance policy for my home," he said. "The house never burns down, but I buy fire insurance, just in case."

Lisa Simpson argued against Homer's specious "bear patrol" reasoning by claiming a rock she found on the ground could keep tigers away -- noting that the lack of nearby tigers "proved" the rock worked. This is Clapper's sales pitch: the lack of another 9/11 attack is "proof" the program is necessary. Well, we haven't had a Summer Olympics hosted in this country since 1996, so it could also be claimed that Section 215 of the PATRIOT Act has been instrumental in preventing the US from hosting this extremely destructive parasite momentous event. After all, the roots of Section 215 also trace back to a 1990s partnership between the NSA and DEA to collect phone records on calls to foreign countries originating in the US.

Ned Flanders -- perhaps the most upstanding (and naïve) Springfieldian -- notably considered insurance coverage to be a form of gambling. Clapper's "gamble" -- his supposed "insurance" -- bets on surveillance state wins while putting Americans' privacy up as collateral. Even when viewed through Clapper's twisted perspective, the metaphor fails.

The difference here, is that the NSA's "insurance" is intrusive information on just about every citizen in the United States, regardless of whether or not they've done anything wrong.

The defenders of the surveillance framework always point to attacks they didn't prevent (like the Boston Bombing) as justification for intrusive spy programs. That argument alone should be greeted with riotous, disbelieving laughter. But they press this even further, giving themselves credit for every lull between major attacks and ignoring every report or investigation that shows their favorite programs do little more than make the job of counterterrorism more difficult.

Clapper seems to believe the death of the Section 215 program will be the death of us all. It's an absurd belief. Unfortunately, it's shared by far too many of those in the position to prevent its expiration.

About a year ago we noted how Comcast has a weird tendency to prevent its broadband users from being able to use HBO Go on some fairly standard technology, including incredibly common Roku hardware. For several years Roku users couldn't use HBO Go if they had a Comcast connection, and for just as long Comcast refused to explain why. Every other broadband provider had no problem ensuring the back-end authentication (needed to confirm you have a traditional cable connection) worked, but not Comcast.

HBO Go is part of the cable and broadcast industry's "TV Everywhere" initiative, the shortfalls of which we've tackled previously. HBO Go, as part of the TV Everywhere initiative, requires you prove you're a traditional cable customer before you can access most online content. For example, if you want to watch HBO Go on your Roku 3, the HBO Go app simply needs Comcast servers to quickly confirm that you are a paying cable customer. Comcast's refusing to make this part of the connection process work, effectively restricting users from using bandwidth they pay for, over hardware they own, to access content they also pay for.

The goal of course is to keep as many users as possible on Comcast's X1 set top platform and away from the most popular Internet video devices. Last I saw, Roku sells around 30% of all streaming video hardware sold in any given month. Comcast clearly can't admit they're being shifty, so when pressed on why it takes them years to set up a simple authentication mechanism, the company usually makes up a rotating crop of bullshit excuses:

"With every new website, device or player we authenticate, we need to work through technical integration and customer service which takes time and resources. Moving forward, we will continue to prioritize as we partner with various players."

Roku had to file an FCC complaint to get Comcast to finally stop doing this. At the time, the filing argued that while "throttling" and "blocking" get all the attention as weapons of discrimination, the TV Everywhere authentication model is also a useful weapon for large cable providers when it comes to harming competing services:

"While an ISP can throttle content delivery speeds to effect anti-competitive discrimination, throttling is only the most transparent of a long list of discriminatory actions than an ISP with market power can undertake. [Additional discriminatory actions may] include control over data caps and authentication to hinder content and platforms that directly compete with the ISP's own or affiliated content."

And the problem wasn't just with Roku. When HBO Go on the Playstation 3 was released, it worked with every other TV-Everywhere compatible provider, but not Comcast. When customers complained in the Comcast forums, they were greeted with total silence. When customers called in to try and figure out why HBO Go wouldn't work, they usually received incorrect statements from front level support (it should arrive in 48 hours, don't worry!).

Fast forward nearly a year since the HBO Go Playstation 3 launch (it still doesn't work), and Sony has now announced an HBO Go app for the Playstation 4 console. And guess what -- when you go to activate the app you'll find it works with every major broadband ISP -- except Comcast. Why? Comcast still won't really say, but the company appears to have backed away from claims that the delay is due to technical or customer support issues, and is now telling forum visitors the hangup is related to some ambiguous business impasse:

"HBO Go availability on PS3 (and some other devices) are business decisions and deal with business terms that have not yet been agreed to between the parties. Thanks for your continued patience."

Since every other ISP (including AT&T, Verizon, and Time Warner Cable) didn't have a problem supporting the app, you have to assume Comcast specifically isn't getting something from Sony or HBO it would like (read: enough money to make them feel comfortable about potentially cannibalizing traditional TV/HBO viewers). Comcast's basically using the TV Anywhere authentication mechanism -- as opposed to outright blocking or throttling -- to prohibit its customers from accessing content in a way Comcast doesn't approve of. In this way Comcast's behavior, while not necessarily a net neutrality offense on its surface, is certainly part of the conversation in regards to gatekeeper power.

Fortunately for users in this instance, HBO's about to launch a stand alone app that won't need cable authentication, taking Comcast out of the equation anyway. Still, this is a good example of how crafting net neutrality rules is only part of the conversation about mega-ISP power. It's great to have rules governing the pipes themselves, but they don't mean much if other anti-competitive behaviors can just be hidden behind half-answers and faux-technical nonsense for years on end without repercussion.