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by Mike Masnick
Tue, Jun 30th 2015 9:31am
The rules enshrine the principle of net neutrality into EU law: no blocking or throttling of online content, applications and services. It means that there will be truly common EU-wide Internet rules, contributing to a single market and reversing current fragmentation.Sounds good, right? But there's a pretty big catch. Those rules and the "open internet" don't cover what most people think of as the internet. Instead, it's been boxed in. Because the deal also creates a made up new categorization known as "specialized services" where such prioritization will be allowed.
- Every European must be able to have access to the open Internet and all content and service providers must be able to provide their services via a high-quality open Internet.
- All traffic will be treated equally. This means, for example, that there can be no paid prioritisation of traffic in the Internet access service. At the same time, equal treatment allows reasonable day-to-day traffic management according to justified technical requirements, and which must be independent of the origin or destination of the traffic.
Got it? The "regular" internet has no fast lanes. But... right over here, we have the "specialized services" part of the internet which, you know, kinda looks like a fast lane. Because it is. So, now, basically, in Europe you can buy your way into the fast lane by claiming your services are "specialized" and watching as the regular internet pokes along at slower speeds.
What are specialised services (innovative services or services other than Internet access services)?
The new EU net neutrality rules guarantee the open Internet and enable the provision of specialised or innovative services on condition that they do not harm the open Internet access. These are services like IPTV, high-definition videoconferencing or healthcare services like telesurgery. They use the Internet protocol and the same access network but require a significant improvement in quality or the possibility to guarantee some technical requirements to their end-users that cannot be ensured in the best-effort open Internet. The possibility to provide innovative services with enhanced quality of service is crucial for European start-ups and will boost online innovation in Europe. However, such services must not be a sold as substitute for the open Internet access, they come on top of it.
Oh, and of course, the new rules allow zero rating, which is the sneaky trick by which telcos use data caps to backdoor in preferential treatment to those willing to pay, while pretending this is some sort of benefit to consumers. The EU sees no problem with this, despite the fact that it enables large internet companies to squeeze out startups and smaller players.
By allowing the provision of innovative services, are we not promoting a two-tier Internet?
No. Every European must be able to have access to the open Internet and all content and service providers will be able to provide their services via a high-quality open Internet. But more and more innovative services require a certain transmission quality in order to work properly, such as telemedicine or automated driving. These and other services that can emerge in the future can be developed as long as they do not harm the availability and the quality of the open Internet.
Therefore it is important to have future proof rules which, while fully safeguarding the open Internet, allow market operators to provide services with specific quality requirements in order to provide them in safe manner. It is not a question of fast lanes and slow lanes - as paid prioritisation is not allowed, but of making sure that all needs are served, that all opportunities can be seized and that no one is forced to pay for a service that is not needed.
Of course, Digital Commissioner Oettinger inadvertently appeared to confirm that this is the end of net neutrality with his poorly worded tweet on the subject, in which he notes that this is "the end of roaming and net neutrality."
What is zero rating?
Zero rating, also called sponsored connectivity, is a commercial practice used by some providers of Internet access, especially mobile operators, not to count the data volume of particular applications or services against the user's limited monthly data volume.
Zero rating does not block competing content and can promote a wider variety of offers for price-sensitive users, give them interesting deals, and encourage them to use digital services. But we have to make sure that commercial practices benefit users and do not in practice lead to situations where end-users' choice is significantly reduced. Regulatory authorities will therefore have to monitor and ensure compliance with the rules.
by Tim Cushing
Tue, Jun 30th 2015 8:23am
A federal judge has just ordered the government to return $167,000 it took from a man passing through Nevada on his way to visit his girlfriend in California. The officers really wanted that money, too. They used two consecutive stops to jerry-rig some probable cause… even though at that point they thought they were only dealing with $2000. From the original stop forward, the entire situation was deplorable, indisputably showing that everyone involved was more interested in taking (and keeping) a bunch of cash than enforcing laws or pursuing justice.
The order is a jaw-dropping read. It begins with the flimsiest of "reasonable suspicion" and heads downhill after that. Straughn Gorman was driving across Nevada in his RV when he was pulled over for a "left-lane violation" -- driving too slow in the passing lane. (This itself isn't actually a moving violation, but the Supreme Court's Heien decision has ensured that law enforcement needn't be slowed by actual knowledge of the laws they're supposed to be enforcing.)
This lead to some questioning, because reasons:
Upon request, Gorman produced his license and registration and told Monroe that he was traveling to Sacramento, California to visit “his chick.” Id. at 60:9-61:5. Gorman told Monroe that his girlfriend lived in downtown Sacramento, but was not able to produce her exact address, noting that it was entered into his GPS system. Id. at 84:2- 22. Gorman’s use of the word “chick” aroused Monroe’s suspicion that Gorman’s answers were rehearsed because Monroe thought that “chick” was an unusual word for a person Gorman’s age—thirty-one at the time of the stop—to use.Obsolete vernacular = "reasonable suspicion." That and State Trooper Greg Monroe felt Gorman's claimed employment with a "beach activities and paddle board company" sounded similarly "rehearsed." Monroe went back to his vehicle and tried to rustle up a K9 unit. But there were no units nearby, the records check was coming up clean and Monroe was running out of ideas. First, he told Gorman he was free to leave. Then he started fishing:
Immediately afterward, Monroe asked Gorman if he could ask some additional questions. Monroe first asked how Gorman could afford to drive a motor home cross-country when gas prices were over $3.00 per gallon. Monroe then asked if Gorman still sold paddle boards for a living, and asked about his compensation, to which Gorman responded “I don’t want to talk about how much I make.” At approximately 9:25 a.m., Monroe asked if there was anything illegal in Gorman’s motor home, or if he was carrying large amounts of U.S. currency. Gorman then told Monroe that he was only carrying about $2000 in U.S. currency in the motor home. At 9:25:45 a.m, Monroe asked Gorman “do you mind if we search the vehicle?,” to which Gorman said “I do mind, yes.” At this point, Monroe told Gorman that he was free to leave [for the second time], returned to his vehicle, and said “he’s carrying money” aloud to himself.Monroe smelled money and he wasn't about to let $2000 travel across his state without being apprehended. So, he called the Highway Patrol and told dispatch his suspcions, stating that the only way the vehicle could be searched was with the use of a drug dog. Dispatch called Deputy Doug Fisher and informed him that Gorman did not consent to a search and that he "might want to follow up on the information." Here we have two different law enforcement entities basically colluding to perform a search simply because one entity experienced a refusal. The court isn't impressed.
The Court is particularly troubled that the officers’ belief that Gorman would not consent to a search, and his opposition to the canine sniff, appears to have contributed to the officers’ purported reasonable suspicion to extend the stop and continue the investigation. Individuals have a right to refuse consent for a search, and the existence of this right requires that denial of consent not be a basis to prolong a stop.On top of this, Monroe called Deputy Fisher directly to "relay his suspicions." He also inflated the amount of money Gorman had admitted to be carrying with him -- from $2000 to $5000. Fisher left the Sheriff's Office ostensibly to perform a "roving patrol," but soon decided to park himself on the side of the highway in order to catch Gorman when his RV passed by. Fisher pulled the RV over after it "crossed the fog line" a few times.
[A]pproximately twelve minutes into the traffic stop, Fisher released his drug-detection canine “Euros” from his vehicle. Fisher and Euros then approached the motor home and began walking around it in the clockwise direction, starting at the rear left-hand side of the vehicle. As Fisher and Euros circled the rear of the motorhome, Euros sat down near the vehicle’s back right compartment, facing the compartment. Fisher described this as a “committed sit and stare,” which he considered to be a positive alert.Even if you believe -- like the Supreme Court does -- that drug dogs are mostly reliable and unlikely to respond to signals (unconscious or otherwise) from their handlers, Fisher's next statements indicate that bringing a drug dog onto the scene is just an easy way to generate "probable cause" where none exists.
Gorman then referred to the back rear compartment and said “I can open that if you want to look in it. It’s charcoal and stuff like that, do you want to look in it?” Fisher replied “do you want to talk to me now?” Gorman replied “if he alerted somewhere, look in it because there’s no drugs.” Fisher then noted that odor could come out anywhere on the vehicle, and that the rear back compartment was on the “downwind side of the vehicle.”Armed with the drug dog's affirmation that drugs might be located somewhere in the RV, the deputy acquired a telephonic warrant and immediately began searching the entire interior of the RV. And while the drug dog continued to "alert" on objects inside the vehicle, no drugs were found. The only thing "illegal" in Gorman's motorhome was $167,000 in cash, stashed away in the freezer, microwave and bedroom. Gorman was (for the third time in under two hours) free to go. But his money wasn't.
Here, Gorman was initially stopped for a minor traffic offense at approximately 9:03 a.m. and released at approximately 9:26 a.m. when Monroe concluded that he did not have probable cause to search the motor home. Gorman was stopped the second time, again for a minor traffic offense, at approximately 10:15 a.m., and held for more than nine minutes before Fisher asked if he could conduct a canine sniff. Fisher knew that Monroe had previously ran a records check and lacked probable cause to hold Gorman, but nonetheless two additional records checks were conducted in order to prolong the detention and make time for a canine sniff. The positive alert occurred approximately twelve minutes after the second traffic stop occurred.On top of that, the government -- when arguing for its "right" to take money just because -- claimed the two stops were entirely unrelated.
All tolled, Gorman was detained for a total of approximately thirty-five minutes without convincing independent reasonable suspicion—before the officers conducted a canine sniff of the motor home and obtained probable cause for the search. Of course, “an individual who has already been seized can still be further seized for purposes of the Fourth Amendment.” Hopkins v. Bonvicino, 573 F.3d 752, 772 n.12 (9th Cir. 2009). But a second stop requires additional reasonable suspicion independent of the reasonable suspicion present in the first stop.
In its supplemental briefing, and after it became evident that the two stops were connected, the United States argues that “Monroe’s earlier traffic stop is wholly irrelevant to the Fourth Amendment analysis applicable to Gorman’s motion to suppress.” Specifically, the United States contends that “Fisher’s traffic stop was based on his own observations of traffic violations being committed by Gorman, without regard to any information provided” by Monroe. These statements cannot be reconciled with the testimony by Monroe and Fisher, or an independent review of the evidence before the Court.Note the phrase "after it became evident." This wasn't evident at first. Deputy Fisher hid this fact from the magistrate judge when requesting a warrant over the phone and lied about what Gorman had actually told him.
[T]he warrant application never mentions Monroe’s original stop, that Monroe called Fisher with information about Gorman and Gorman’s vehicle, or that Fisher was dispatched to investigate Gorman. This omission thereby represented to the magistrate that Fisher pulled Gorman over solely due to his traffic violations, as opposed to having been encouraged to investigate Gorman by NHP and Monroe. Second, Fisher represents in the warrant application that Gorman “indicated he had no job.” This is unambiguously contradicted by the video of Fisher’s questioning of Gorman, in which Gorman states clearly that he works for a Maui paddle board company.These lies -- kindly called "omissions" by the court -- sadly wouldn't be enough on their own to suppress the evidence obtained by the search. But the application of the Supreme Court's Rodriguez decision (officers can't unnecessarily prolong stops to perform [often dog-assisted] fishing expeditions) does call for suppression.
The Court is disappointed that the United States would aggressively pursue this forfeiture action while all of its moving documents for summary judgment and supporting affidavits contained material omissions concerning the history leading to the traffic stop and canine sniff at issue. The government’s Motion for Summary Judgment, with supporting affidavits from Deputy Fisher and the Assistant United States’ Attorney, made no disclosure of anything which would have suggested that Fisher’s stop was a follow-up on Monroe’s stop and was based upon suspicion of a drug related offense.This is how the government portrayed Fisher's actions in its provided documents.
On January 23, 2013, ECSO Deputy Doug Fisher was monitoring west-bound traffic on Interstate 80 near Elko, Nevada.But, as pointed out earlier in the order, Doug Fisher wasn't assigned to traffic patrol and wouldn't have just been "monitoring traffic" if he hadn't received a call from dispatch about Gorman's RV, as well as a direct call from Trooper Monroe himself.
[E]ven assuming that the officers had probable cause to search the back right compartment where the canine alerted, the Court is not convinced that the dog’s positive alert to the compartment gave the officers probable cause to search the entire motor home. Despite Gorman’s consent to search the compartment, the officers did not even begin their search of the motor home with the compartment, instead beginning with a search of the motor home’s main cabin. “Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.” United States v. Ross, 456 U.S. 798, 824 (1982)The court doesn't weigh this issue specifically (although it does express its skepticism) but it doesn't have to. The prolonged detainment without probable cause is enough to suppress the evidence under Rodriguez.
Gorman is undoubtedly the successful party here.This order shows law enforcement at its ugliest: willing to lie and cheat to maintain control of what it stole.
by Karl Bode
Tue, Jun 30th 2015 6:23am
"It is important to note that Internet access is not a necessity in the day-to-day lives of Americans and doesn’t even come close to the threshold to be considered a basic human right," he said. "People can and do live without Internet access, and many lead very successful lives."And while that's not necessarily wrong (broadband provides no phytonutrients or Omega-3 fatty acids, after all), broadband is increasingly a vital tool to connect people to health care, employment data, government services and everything else under the sun, making it pretty god-damned important. Whether broadband should be thought of as a necessity, utility and luxury has always caused endless, idiotic hyperbolic debate in the telecom sector. Why? Because if you consider broadband essential, you then have to then reconcile the fact that we've done a horrible job at trying to expand and improve it, whether that's through incentives, public/private partnership or policies that encourage competition (all of which O'Rielly opposes).
"It is even more ludicrous to compare Internet access to a basic human right," said O'Rielly. "In fact, it is quite demeaning to do so in my opinion. Human rights are standards of behavior that are inherent in every human being. They are the core principles underpinning human interaction in society. These include liberty, due process or justice, and freedom of religious beliefs. I find little sympathy with efforts to try to equate Internet access with these higher, fundamental concepts."And that's great and all, but O'Rielly's not sitting on the Supreme Court or teaching a Constitutional ethics class. He's employed by an agency that has, as one of its Congressionally-mandated goals, the responsibility to "encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans." That's something we've failed at by any measure (unless you're blinded by politics, employed by an ISP or paid by an ISP to look the other way). And again, if you're going to oppose subsidy programs like Lifeline, you at least need to support or recommend policies that can help drive more competition and services to areas with a low rate of return on the ISPs' investment.
by Mike Masnick
Tue, Jun 30th 2015 4:12am
“The Department of Defense does engage” in computer network exploitation, according to an e-mailed statement from an NSA spokesman, whose agency is part of the Defense Department. “The department does ***not*** engage in economic espionage in any domain, including cyber.”These claims are made in a strange attempt to suggest that the NSA is somehow "better" than those like the Chinese, who absolutely do engage in economic espionage, looking for corporate secrets and the like. Of course, it's not entirely clear why not engaging in economic espionage is such an important moral argument for the NSA -- but, at the very least, the agency claims it has its limits.
Tue, Jun 30th 2015 1:12am
When it comes to old notions that are used to stave off the need to embrace new business models in the digital age, nothing is more annoying than the whole "the masses just want everything for free" myth. That belief is snappy, punchy, and as simple to understand as it is completely and demonstrably wrong. But for a certain segment of the population, typically older generations of the kind that pine for the good old days when America was all apple pie and tasteful cartoons, the myth persists. Now, however, the myth is old. Old enough that it's begun to lose its flavor, like a piece of gum that you've been chewing on since Metallica shut down Napster. The new flavor is every digital success story that proves the myth wrong. Kickstarter happens to be my favorite example of this. What's remarkable about Kickstarter is that it's over half a decade old and, despite some still embracing the old myths, it's somehow still setting records in raising money for content producers.
Shenmue 3 isn’t only the fastest game to raise a million dollars on Kickstarter, it’s also the fastest game to raise two million dollars. The project was announced last night at Sony’s E3 press conference. It’s the follow-up the Shenmue 2, which was released fourteen years ago.Were you to believe the legacy content producers, who insist the public are free-loading internet anarchists hell-bent on ruining everything and everyone, this shouldn't even be possible. The fact that records for raising money are being broken now is perfect in debunking every part of the myth. The money rolls in over a decade after the myth's creation, despite the expectation that every day would see an increase in younger generations just wanting "everything for free." The money rolls in six years into Kickstarter's existence, meaning nobody can claim that all this money is currently pouring in due to the embrace of some new platform, the popularity of which will quickly die away. The money rolls in for a video game, the exact kind of product that those who believe the myth would expect to be the most pirated.
Site performance is back up to speed. We're still monitoring everything. We've never seen anything like this. Thanks for your patience! #E3— Kickstarter (@kickstarter) June 16, 2015
Mon, Jun 29th 2015 9:05pm
Chanel is a company that does fashion and perfume. I know this because I can't walk into a department store without walking past a bunch of glass cases that smell like someone boiled six billion flowers in a pot and then threw it on me, leaving me only to walk past the purses and handbag sections and laugh at the prices for tiny, tiny little bags. Chanel does not sell chocolate, unless you count naming some of the afore-mentioned perfumes and handbags with vaguely chocolate-y names. I know this because I did a Google search to make sure, and those are infallible. And, yet, for some reason, Chanel has decided to play trademark-goalie on a two-person chocolate shop operating in Australia.
Global fashion house Chanel has forced a small Australian chocolate maker to change its branding after it claimed a trademark infringement on its No.5 perfume. A letter from Chanel's lawyers was the last thing that Chocolate @ No.5 owner Alison Peck expected when she set up her company. After all, her business is a "two-man show," named after its address – 5 Main Street Hahndorf, a village in the Adelaide Hills – and makes chocolate, not perfume or haute couture. Her company would have most likely gone unnoticed by the multinational fashion giant had it not applied for a trademark registration.At which point Chanel's lawyers fired off a threat letter. A letter, I'll concede, perhaps not entirely without merit. Here is the original branding of Chocolate @ No. 5 alongside the branding of a Chanel bottle of perfume.
Chanel wanted Ms Peck to only use the digit or word 'five' while her business was located at it current address. "It was implied if I ever moved I would have to change the name. That was when I realised I was being bullied. They don't own the number five. In the future do we go to school and go 'one, two, three, four, trademark protected, six?' It's just crazy. Never mind that China is churning out [counterfeit] Chanel at a rate of knots. I was not trying to pass of my chocolates as being Chanel No.5. That's just silly because it's chocolate."It sounds to me like the legal team at Chanel is sort of using the descriptive clauses in reverse, suggesting her logo is not infringing if it describes the company address, but if that address changes it suddenly becomes infringing because it's no longer descriptive. If that is indeed the argument they're making, it's a very silly one, because, again, chocolate. Add to that the idea that the number five is getting this much attention in the trademark realm and you can imagine the frustration of a small shop just trying to make a living.
"I was happy to withdraw my application and change my logo because there is nothing wrong with a bit of freshness to a product. Our product is still the same."For Christ's sake, Chanel, have a chocolate and calm the hell down.
This appears to have placated Chanel, which Ms Peck said had backed down on its other demands. But the fashion titan is "monitoring" her business.
by Michael Ho
Mon, Jun 29th 2015 5:00pm
Mon, Jun 29th 2015 3:50pm
Like all of the patents we highlight in our Stupid Patent of the Month series, this month's winner, U.S. Patent No. 6,795,918, is a terrible patent. But it earns a special place in the Pantheon of stupid patents because it is being wielded in one of most outrageous trolling campaigns we have ever seen.
Patent No. 6,795,918 (the '918 patent), issued from an application filed in March 2000, and is titled: "Service level computer security." It claims a system of "filtering data packets" by "extracting the source, destination, and protocol information," and "dropping the received data packet if the extracted information indicates a request for access to an unauthorized service." You may think, wait a minute, that's just a firewall. By the year 2000, firewalls had been around for a long time. So how on earth did this applicant get a patent? A good question.
Here's how you get a patent on a firewall more than a decade after firewalls were invented. Step 1: File a description of your so-called invention that is nothing more than mundane details about how firewalls work. Step 2: Add some language saying this is totally not just a firewall. Step 3: Claim a firewall. With any luck, the Patent Office will just wave you through.
To be fair, the '918 patent suggests a firewall system that is not "user configurable." The idea is that unsophisticated home users might misconfigure their firewalls so it is better to give them a system they cannot mess up. Just like a real firewall, only dumber! The patent also hedges its bets by claiming a system that is "substantially free from user adjustment," whatever that means. Even if that was a new idea in 2000, this is not actually a technological improvement. It's kind of like putting a padlock on the front hood of a car and then saying you've invented a new kind of car.
The '918 patent spent its entire life in well-deserved obscurity. Indeed, the original inventor chose to let the patent expire in September 2012 by not paying the maintenance fee. This is unsurprising. Why waste money keeping a terrible patent alive? Usually, that is where the story would end. Unfortunately, even an expired garbage patent can be useful in the hands of a patent troll.
In January of 2015, a newly-formed company called Wetro Lan, LLC, purchased the '918 patent. Shortly after that, it began filing dozens of lawsuits in the Eastern District of Texas against companies that provide, you guessed it, firewall technology. The troll can do this because damages for patent infringement go back six years. So, technically, it can still demand damages for alleged infringement that took place from mid-2009 until the patent expired in September 2012 (though the defendants might have a good laches defense). Wetro Lan has sued just about everyone who sells a product relating to network security, from Avaya to ZyXEL.
To take one suit as an example, Wetro Lan has sued Hacom, LLC, a small company based in Santa Ana, California, that provides embedded hardware, software, and consulting for implementation of open-source applications. In its complaint, Wetro Lan says that Hacom's Phoenix IT-100 Appliance and its other routers directly infringe the ‘918 patent. But Hacom doesn't sell anything remotely like the dumb, non-configurable, firewall discussed in the '918 patent. They sell advanced products which enable users to configure settings through a web-based interface or at the command line. In fact, since Hacom's products incorporate free software (free as in freedom), they are configurable down to the source code level.
There's no way that Hacom's products infringe a patent that, even if it were valid, would cover only the dumbest of firewalls. But if Wetro Lan is like most trolls, that's not the game here. The likely point of this litigation is to extract a nuisance settlement. We have significant doubts that Wetro Lan would ever litigate one of its cases on the merits, and win.
The attorneys behind the Wetro Lan campaign are the same lawyers who sued our client in the Garfum v. Reflections by Ruth case. We desperately need legislative reform to stop more abusive litigation from these trolls. Such reform should include fee shifting, heightened pleading requirements, and venue reform to stop shell company trolls dragging innovators to the Eastern District of Texas. Without help from Congress, trolls will keep shaking down small companies like Hacom.
Republished from the EFF's Stupid Patent of the Month series
by Tim Cushing
Mon, Jun 29th 2015 2:41pm
Here's something you see all too rarely -- not because the government's civil asset forfeiture programs aren't routinely abused -- but because it's a good way to spend lots of money fighting a losing battle.
Vu Do, owner of two nail salons in New York City, is trying to retrieve nearly $44,000 -- his life savings which he had put together over twenty years -- taken from him by the DEA at the JFK airport. The complaint points out that Do has run two legitimate businesses in NYC for several years, and not once has he been arrested or even charged for violations of controlled substances laws.
Nevertheless, the DEA took all of Do's money under the assumption that he's involved in the drug business, despite being more than willing to let him go without even a citation. Do had planned to take his money to California to help his financially-struggling siblings out, but ran into the DEA first.
Then there's this:
The Plaintiff did not know that it was a violation of Federal regulations to carry cash in excess of $5,000 at the time of the seizure.There's a good reason for not knowing this. There is no federal regulation prohibiting citizens from walking around (or boarding planes) with any amount of cash. Asset forfeiture laws make this practice unwise, but nothing in federal law says Do was forbidden from boarding a plane with his $44,000.
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