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We've been discussing for a while now about how the MPAA, with the help of the Copyright Office, has been propping up the complete myth that the FCC's plan to create more competition in the cable set top box space involves violating the copyrights of studios. It's a complete myth. The cable industry has been leading the charge here, mainly because it makes billions of dollars by charging people to "rent" its crappy boxes. But it found a strong ally in copyright maximalists who have repeatedly misrepresented the proposal. As we noted, the Copyright Office put out a report that flat out lied about what the FCC's proposal entailed and about how copyright itself works (arguing that contracts between two third parties could somehow eliminate the fair use rights of private citizens). And, incredibly, the basic argument being put forth by copyright maximalists, if taken to its logical conclusion, would mean that VCRs and DVRs are illegal too.
That's not how copyright law actually works -- but the message has caught on, and the FCC has already been forced to weaken its proposal -- and the industry is still bitching about it.
The MPAA’s argument that studios have the right to control the device on which you view your content reflects a fundamental misunderstanding of copyright law. Copyright gives its owner the right to control the making of copies and public performances of a work. But it does not give them control over any use of a work. That’s no accident. Once the copyright owner has been paid once for a particular copy, its control over that copy ends. That’s why I can lend a book to friends, or sell my used record collection outright.
True, there are some things I can ‘t do even with a copy of a movie or song I own. I can’t upload it on a file-sharing site, for instance, and I can’t play it on the radio. But that’s because doing those things either makes a new copy or makes a new, public performance of the work.
The studios have already been paid for the movies shown on a cable or satellite service. Indeed, they’ve been paid specifically for the right to publicly perform the work by transmitting it to my (and everyone else’s) home.
And here, copyright law says something very important to copyright owners: that’s all you get. Once the cable companies have paid the MPAA for the right to deliver their movie into my home, the MPAA loses control over how I choose to watch their movie in the privacy of my own home. I can record it on a DVR and watch it whenever I want. I can watch it on a big-screen TV or a small one, with the sound on or off, in one sitting or many, while fast-forwarding through parts I don’t like or rewinding to rewatch parts I do. I can watch it again and again. Most important, I can watch it on any device I want, including my computer, my iPad, or my phone.
And, while the MPAA and its supporters keep calling the FCC proposal a "compulsory license," Lemley points out that it's not a compulsory license that lets you record a TV program to your VCR or DVR, and neither is this:
That isn’t a “compulsory license” of copyrights; it’s a limit on the scope of those rights. That limit exists even if copyright owners try to declare that it doesn’t. This is the law. It has always been the law. Every effort by copyright owners to control how I watch a show in my own home has ended in failure.
Unfortunately, this blatantly false attack by Hollywood and the Copyright Office on the FCC's plan has been effective. It seems unlikely that the plan will go through, and what's troubling about it is that it's all based on flat-out falsehoods by Hollywood, the Copyright Office and its supporters.
We've been explaining this since it was first proposed two years ago: but the IANA transfer away from the Commerce Dept. is a good thing on a variety of important levels. Earlier this year, we did a more thorough explaination on why it was a good thing, and then a further post earlier this month explained why Ted Cruz, who was leading the charge in blocking the transition, was basically wrong on every point about it. And not just wrong, dangerously so. Cruz keeps claiming that the transition makes it easier for Russia, China and the UN to "take control" over internet governance. The exact opposite is true. But we'll get there.
"Donald J. Trump is committed to preserving Internet freedom for the American people and citizens all over the world. The U.S. should not turn control of the Internet over to the United Nations and the international community. President Obama intends to do so on his own authority – just 10 days from now, on October 1st, unless Congress acts quickly to stop him. The Republicans in Congress are admirably leading a fight to save the Internet this week, and need all the help the American people can give them to be successful. Hillary Clinton’s Democrats are refusing to protect the American people by not protecting the Internet.
The U.S. created, developed and expanded the Internet across the globe. U.S. oversight has kept the Internet free and open without government censorship – a fundamental American value rooted in our Constitution’s Free Speech clause. Internet freedom is now at risk with the President’s intent to cede control to international interests, including countries like China and Russia, which have a long track record of trying to impose online censorship. Congress needs to act, or Internet freedom will be lost for good, since there will be no way to make it great again once it is lost." - Stephen Miller, National Policy Director
First of all, here's Trump going on and on about "internet freedom" and "free speech." And yet... this is the very same candidate just a few months ago who talked about "shutting down parts of the internet" and mocking those who would say "oh freedom of speech" claiming anyone who fell back on that claim were "foolish people."
So, apparently it's okay to shut down parts of the internet, and those talking about free speech are "foolish people," but a symbolic effort over who controls the domain name system must be stopped because internet freedom and free speech are too important.
More importantly, almost everything the Trump campaign says in those two short paragraphs about the transition is wrong. And it's a really, really stupid and dangerous position to take for the internet. First off, as we've explained, the current link between the Commerce Department and ICANN and its IANA functions is more theoretical than real anyway. The US government really doesn't have any official control here. It's symbolic and that symbolism is doing a hell of a lot more to hurt the internet than to help it. Yes, Russia and China have, in the past, tried to take more control over internet governance via the UN/ITU, but that was stopped. But -- and this is the important part -- a big part of their rationale for trying to do so was the US's "control" over IANA via the Commerce Dept. That is, keeping this small bit of internet governance loosely connected to the US government adds fuel to the fire for authoritarian governments to seek more control over the internet. And that doesn't even get into the backlash that it will create if we go back on our word and refuse to complete the transfer of IANA away from the Commerce Dept (again, a largely symbolic move anyway).
But, don't trust me. Trust basically anyone and everyone with any actual knowledge on the situation. Here's Tim Berners-Lee, the guy who invented the web itself, explaining why the transition must go forward and why Cruz (and, by extension now, Trump) are totally wrong:
The global consensus at the heart of the Internet exists by virtue of trust built up over decades with people from all over the world collaborating on the technical design and operation of the network and the web. ICANN is a critical part of this global consensus. But if the United States were to reverse plans to allow the global Internet community to operate ICANN independently, as Sen. Cruz is now proposing, we risk undermining the global consensus that has enabled the Internet to function and flourish over the last 25 years.
Contrary to the senator’s view, ICANN is no “mini-United Nations.” ICANN is a vital part of the voluntary, global network of private organizations that provides Internet stability and the ability to innovate free from government interventions around the world.
Berners-Lee makes it clear that going back on the transfer will put the US gov't in the same kind of dangerous category that Cruz (and Trump) put Russia and China in:
But by forcibly undermining the global Internet community’s ability to make decisions about ICANN, the United States would stoop to the level of Russia, China and other authoritarian regimes that believe in the use of force to limit freedom online.
If not them, how about Kathryn Brown, who runs the Internet Society. She also argues that delaying the transition is what helps the case for Russia and China, rather than the other way around:
Some warn that if the plan to transition authority on Oct. 1 is delayed, countries like Russia and China could try to shift domain name responsibilities to the United Nations, giving those nations more influence over global internet policy.
"Any delay would add a degree of instability and make the prospect of government control of the internet more likely, not less," said Kathryn Brown, president of the Internet Society, a nonprofit organization that advocates open internet policies.
It vaguely suggests that the transition might create “an opportunity for an enhanced role for authoritarian nation-states in Internet governance,” but provides no evidence as to how or why it does. In fact, if the U.S. is forced to abort the transition now it would play right into the hands of authoritarian states. Killing ICANN’s reforms through impulsive and arbitrary American action would fatally undermine the global Internet governance model rooted in nonstate actors. It would strengthen the case for national sovereignty-based Internet models favored by authoritarian states. “Look,” they will say, “the U.S. wants to control the Internet, why can’t we?” ICANN’s independence from unilateral U.S. government control is a logically and politically necessary consequence of its independence from all governments. By getting in the way of that, it is the Congressmen, not the Commerce Department, who are creating an opportunity for authoritarian states to enhance their influence in Internet governance.
The Congressmen suggest that “this irreversible decision could result in a less transparent and accountable Internet governance regime.” But how? No reference is made to the actual reform plans. In fact, the transition brings with it major corporate governance changes that would significantly improve ICANN’s accountability and transparency. The transition brings with it a new set of bylaws that gives the public enhanced rights to inspect ICANN’s books, the right to remove board members, and the power to prevent the board from unilaterally modifying its bylaws. Under U.S. government supervision for the past 18 years, ICANN has been almost completely unaccountable – yet this is the status quo they want to retain. By opposing the transition, the Congressmen are getting in the way of reforms that address the very things ICANN critics have been complaining about.
The congressmen claim that “Questions have been raised about ICANN’s antitrust status.” Well, what questions, and what are their implications for the future of Internet governance? No answer. This is a phony issue. ICANN is not, and never has been, exempt from antitrust liability.
And so forth and so on. Part of the attempt to throw a wrench into the transition was Cruz claiming that Congress needs to approve the transition, as it has the power to determine if the government can "dispose of... property." But the Government Accountability Office (GAO) just released a report basically saying that doesn't apply here and the Commerce Dept is free to move ahead with the transition. Specifically, the GAO finds it to be ridiculous that the entire domain name system should be considered "property of the US government" because it's not.
It is unlikely that either the authoritative root zone file—the public “address book” for the top
level of the Internet domain name system—or the Internet domain name system as a whole, is
U.S. Government property under Article IV. We did not identify any Government-held
copyrights, patents, licenses, or other traditional intellectual property interests in either the root
zone file or the domain name system. It also is doubtful that either would be considered
property under common law principles, because no entity appears to have a right to their
exclusive possession or use.
In short, there's a legitimate concern that Russia and China would like more control over the internet. But that's the only point that Trump and Cruz get right. What's astounding is that their preferred course of action -- delaying or even blocking the IANA transition away from the Commerce Dept actually supports Russia and China in their efforts to gain control over the internet. So if you care about the future of the internet and how it is governed, could someone please educate Cruz and Trump that they're doing exactly the kind of damage they claim to be trying to stop?
We've long noted how the FCC's decision to avoid prohibiting zero rating (exempting your own or a paid partner's content from usage caps) opened the door to letting incumbent ISPs trample net neutrality -- if they're just creative enough about it. And that's precisely what has happened, with Comcast and Verizon now exempting their own content from usage caps, while T-Mobile and Sprint explore throttling all video, games and music unless users pay a $20 to $25 leave me the hell alone fee.
The FCC's total inaction on this front has also emboldened AT&T, which recently began exempting its own DirecTV streaming video app from the company's usage caps while still penalizing customers that use competitors like Netflix, Hulu or Amazon. But as we warned then -- AT&T isn't done. This week it confirmed that it will also zero rate its upcoming DirecTV Now streaming video service, which is AT&T's massive new entry into the streaming video market:
“We’ll be rolling it out in a couple of months,” Stephenson told attendees at an investors conference. “We’re talking 100-plus channels at a very, very aggressive price point. And when you buy this content, the data required to stream it onto your mobile device is incorporated into the price of the content…. If you choose to use that in a mobile environment on AT&T, your data cost is incorporated into your content cost."
That's a pretty clever logical tap dance. AT&T isn't unfairly giving its own content a leg up in the streaming video market, you see, it's just "incorporating" the cost of wireless data into your content costs. Either way you slice it, AT&T is using its stranglehold over the fixed and wireless markets to give its own content an unfair advantage, and you'd be pretty hard pressed to find too many tech beat writers, customers, or regulators that seem to give much of a damn. Why? Because under superficial inspection it looks like customers are getting something for free, even if usage caps are artificial and arbitrary constructs to begin with.
That said, AT&T is making it pretty clear it doesn't think regulators will do much about its latest anti-competitive gambit. Speaking at the recent CTIA wireless trade show in Las Vegas, AT&T Mobility President Glenn Lurie proclaimed that the company isn't worried about a regulatory crackdown:
“We have no regulatory concerns about it. We feel very good about it from that aspect. We’re not prioritizing [data], we’re treating it all the same,” Lurie told FierceWireless here on the sidelines of the CTIA Super Mobility trade show. Lurie is president and CEO of AT&T’s mobility and consumer operations. “So we’re not worried about that.”
Even though AT&T's tactic here is to basically lie and say it's treating "all data the same," it doesn't think the FCC will act. That means it's either emboldened by the FCC's apathy on this front, or it has received private indications from the agency that it doesn't intend to tread into the zero rating waters. But with large, incumbent broadband providers now using their monopoly over the last mile (and spectrum) to give their own content a leg up, you'll soon find many consumers wondering why the hell we have net neutrality rules in the first place.
What about this time? Well, Fight for the Future has posted the details including the charge sheet and it's ridiculous. She's charged with "resisting" when the "force cell team" went to her cell to respond to her suicide attempt. "Resisting" in this case being that she was unconcious. Really.
This charge stems from the “force cell team” being activated. They were called to respond to her suicide attempt, though there were no obstructions to the door and Chelsea was unconscious and unable to resist when they arrived. The charge sheet itself specifies on page 5 that “Inmate Manning did not resist the force cell move team.”
And yet, she's still charged with resisting. Next up "conduct which threatens." That's a pretty broad term -- especially for someone who is unconscious from a suicide attempt. And yet... conduct which threatens. It seems the only thing being "threatened" here is basic human dignity. And then we've got another "prohibited property" claim, just like last year:
On July 6th, Gabriella Coleman’s book “Hacker, Hoaxer, Whistleblower, Spy” was found in Chelsea’s cell, allegedly not properly marked with Chelsea’s name and inmate number on the inside cover. (A new regulation, that appears to have been crafted in response to Chelsea’s confiscated books/expired toothpaste incident from last summer.) In fact, this book was one of the books confiscated from Chelsea’s cell last summer.
Huh? First of all, this is a great book -- one that we've recommended and whose author, Gabriella Coleman, we've had on our podcast. But the fact that this was one of the books that was confiscated last year and then was still in her cell suggests the kind of messed up rules that are used to always have to charge someone with if they don't like you. What a fucked up system.
And people wonder why Ed Snowden doesn't think he'd get a fair trial.
It appears that Manning is resigned to the fact that she's being railroaded and there's little she can do to stop it.
Manning, who is serving a 35-year sentence at the US Army's Fort Leavenworth prison in Kansas, will have to defend herself at the hearing, and told VICE News she's not feeling optimistic. "It doesn't matter what I say or do," she said, through an intermediary, as she's not allowed to speak directly to the press. "The outcome is going to be the same."
Feelings of "hopelessness and helplessness" are hard to shake, she says.
Yup, great way to "punish" a suicide attempt: to take away people's hope even more. I'm sure that'll work. Manning's hearing will be held later today and, hopefully someone with some level of common sense is involved in the decision making process.
Over the last few years, we've well documented the abysmal security in the internet of things space. And while refrigerators that leak your Gmail credentials are certainly problematic, the rise in exploitable vehicle network security is exponentially more worrying. Reports emerge almost monthly detailing how easy it is for hackers to bypass vehicle security, allowing them to at best fiddle with in-car systems like air conditioning, and at worst take total control of a compromised vehicle. It's particularly problematic given these exploits may take years to identify and patch.
Enter Tesla, which, while indisputably more flexible in terms of technology, finds itself no less vulnerable to being embarrassed. Reports this week emerged that Chinese white hat hackers discovered a vulnerability in the Tesla S series that allowed an intruder to interfere with the car’s brakes, door locks, dashboard computer screen and other electronically controlled systems in the vehicle. In a video, the hackers demonstrated how they were able to target the vehicle's controller area network, or CAN bus, from up to twelve miles away:Fortunately in this instance, the attack required a fairly strict set of circumstances, including fooling the car's owner into first connecting the vehicle to a malicious hotspot -- while the car's internet browser was in use. Also, unlike some vulnerabilities, which have taken traditional automakers up to five years to patch in the past, the researchers said in a blog post that Tesla was quick to update the car's firmware and fix the vulnerability:
"Keen Security Lab appreciates the proactive attitude and efforts of Tesla Security Team, leading by Chris Evans, on responding our vulnerability report and taking actions to fix the issues efficiently. Keen Security Lab is coordinating with Tesla on issue fixing to ensure the driving safety of Tesla users."
That said, this isn't the first time that hackers have highlighted vulnerabilities in Tesla vehicles. A group of hackers earlier this year demonstrated how they were able to use about $100,000 in radio equipment to fool the Tesla S model's autopilot feature into perceiving obstacles that technically didn't exist, or obscuring obstacles the car would normally avoid:
"A group of researchers at the University of South Carolina, China’s Zhejiang University and the Chinese security firm Qihoo 360 says it’s done just that. In a series of tests they plan to detail in a talk later this week at the Defcon hacker conference, they found that they could use off-the-shelf radio-, sound- and light-emitting tools to deceive Tesla’s autopilot sensors, in some cases causing the car’s computers to perceive an object where none existed, and in others to miss a real object in the Tesla’s path."
Comforting! Obviously these are just the vulnerabilities we know of, and there's likely a very hot zero day market for car vulnerabilities, with state actors willing to pay top dollar for exploits allowing the staging of "accidents" local yokel investigators aren't likely to ferret out as malicious. Alongside the even worse security in many "smart" (read: wholly idiotic) internet of things appliances, we've been happily introducing tens of thousands of new network attack vectors annually. As we rush unpatched toward the driverless future of tomorrow, what could possibly go wrong?
You might be forgiven if you were under the impression that the Russian government is a bit behind the times when it comes to modern technology and its never ending desire to stifle every last bit of dissent possible. Between the bouts its had with internet censorship and some strange claims about how binge-watching streaming services are a form of United States mind-control, it would be quite easy to be left with the notion that this is all for comedy. Alas, blunders and conspiracy theories aside, much of this technological blundering is mere cover for the very real iron grip the Russians place upon free speech, with all manner of examples in technology used as excuses to silence its critics.
And now it's no longer just human beings that need fear the Russian government, it seems. Just this past week, a robot was arrested at a political rally. And, yes, I really do mean a robot, and, yes, I really do mean arrested.
A robot has been detained by police at a political rally in Moscow, with authorities attempting to handcuff the machine. The rally was for Valery Kalachev, a candidate for the Russian Parliament, who had rented the robot for his campaign.
Police have not confirmed why they detained the machine named Promobot, but local media was reporting the company behind the robot said police were called because it was "recording voters' opinions on [a] variety of topics for further processing and analysis by the candidate's team".
In other words, it sounds like the robot was acting as something of an automated pollster at a political rally. Given how much pollster data is fed directly into computers and machines upon its gathering, a robotic pollster is probably something of a natural next step. But not if the Russian government has its way, apparently. Yes, the same government that is busy happily hacking into all the things outside its country is busy keeping a robot from doing a menial task within it.
Based on my quick research, I'm not absolutely certain that this is the first formal arrest of a robot in history, but I can't seem to find any others. In which case it seems perfectly on point for that historic moment to be achieved by the Russian government and the fact that they tried to slap handcuffs on iRobot is absolutely perfect. Free Promobot!
In recent days, megalith digital games platform Steam found itself making headlines with a tweak to its game reviews system. At issue was Steam's prioritizing reviews from customers who bought a game on Steam over anyone else. Asked for an explanation for the move, Valve suggested that some game developers were attempting to game the reviews system by exchanging download codes for positive reviews. While this explanation omitted the prevalence of crowdsource funding of games, such as Kickstarter funding, Valve at least was putting on a public face of trying to treat its gaming customers well.
And now we have the second such story of Valve looking out for its gaming customers, as the platform has chosen to entirely drop a game developer known for its anti-consumer behavior off of the Steam store. You may recall that Digital Homicide is a game developer that has been featured on these pages before, having decided that the best way to deal with some mildly scathing reviews of its games was to sue the reviewer for ten million dollars, alleging emotional, reputational and financial distress. It seems that lawsuit wasn't a one-off, as Digital Homicide has now apparently filed suit against a whole bank of Steam users (at least 100), who reviewed Digital Homicide games, to the tune of $18 million, with a court recently granting a subpoena requesting that Steam turn over identification data for those users.
By Friday evening twitter user "lashman" discovered Valve had removed all of Digital Homicide's games from Steam. Games like Wyatt Derp, Temper Tantrum, and The Slaughtering Grounds (the first game Sterling reviewed)—are all gone along with their community pages, reviews, and associated downloads as if they'd never been there. You needn't worry if you've already bought the games in the past. They're still there, accessible through your account's library. But if you have a pressing desire to play Wyatt Derp in the coming days, you'll have to look somewhere else besides Steam.
"Valve has stopped doing business with Digital Homicide for being hostile to Steam customers," Valve VP of marketing Doug Lombardi told Motherboard in a brief email. He didn't say how Valve plans to handle the subpoena or if "being hostile" even directly refers to the lawsuits.
Valve went as far as to allow community groups and past purchases to remain up on Steam, but everything else is gone. No more games for sale. No more reviews of any kind. No promo videos or early access projects. It's gone.
Digital Homicide, as is its wont, is attempting to wrap itself in the blanket of victimhood, throwing all kinds of accusations at its targets and doing everything it can to pretend that this legal action doesn't revolve around negative reviews of its products.
On Saturday night, Digital Homicide responded with a lengthy post on the studio's homepage, suggesting it targeted Steam reviewers who harassed them.
"The lawsuit recently filed is solely in regards to individuals where no resolution was able to be obtained from Steam to provide a safe environment for us to conduct business," Digital Homicide said. "We submitted numerous reports and sent multiple emails in regards to individuals making personal attacks, harassment, and more on not only us but on other Steam customers who were actually interested in our products."
The post then goes on to show screenshots of posts on the Steam community boards illustrating these personal attacks. Two of the biggest examples, in which one user says he wants "to murder every single person responsible for this [game]" and another that tells Digital Homicide chief James Romine he should "kill himself for making me waste 0.14 for your ****** game," don't appear in the leaked documents from a few days ago.
They don't appear there because these lawsuits have nothing to do with the kind of over-the-top vitriol that any game developer ought to have fashioned a thick enough skin to wave off in this digital era. This is all about the reviews and nothing but. Were the court to suddenly find itself burdened with lawsuits against every game review that included nasty language, the system would collapse on itself. Everyone knows this, everyone deals with this. It may not be pleasant, but it isn't a reason for a lawsuit.
Yet Digital Homicide's suit claims harassment, alongside -- swear to god -- disorderly conduct, stalking, criminal impersonation, tortious interference, libel, unjust enrichment, restitution, negligence, damages, and conspiracy to commit civil rights violations. In its response to being dropped from Steam, the developer goes on to claim that Valve's siding with its customers is an indication that Steam is not a "safe environment", before suggesting that some form of legislation is needed.
It better come quick, along with a win against every John Doe it is suing in court, because the prospects for Digital Homicide making any money from selling its games to a public now informed of these actions are bleak indeed. Valve meanwhile, and its Steam platform along side it, have built up just a little more goodwill with that same public in siding with customers over an abusive game developer.
from the playing-fast-and-loose-with-the-Fourth-Amendment dept
Cyrus Farivar of Ars Technica reports that another federal judge has found the warrant used by the FBI to deploy its Tor-busting malware is invalid. This finding isn't unique. Multiple judges in various jurisdictions have found the warrant invalid due to Rule 41, which limits execution of warrants to the jurisdiction where they were issued. But only in a few of the dozens of cases stemming from the FBI's child porn investigation has a judge ruled to suppress the evidence obtained by the FBI's NIT.
A federal judge in Iowa has ordered the suppression of child pornography evidence derived from an invalid warrant. The warrant was issued as part of a controversial government-sanctioned operation to hack Tor users. Out of nearly 200 such cases nationwide that involve the Tor-hidden child porn site known as "Playpen," US District Judge Robert Pratt is just the third to make such a ruling.
In other cases, judges have found the warrant invalid, but have granted the FBI the "good faith" exception or found that the information harvested by the agency's hacking tool isn't protected under the Fourth Amendment. In one particularly memorable case, the presiding judge wandered off script and conflated security and privacy, suggesting that because computer hacking is so commonplace, the FBI should be allowed to peek into compromised computers (and compromise them!) and extract whatever it can without worrying about tripping all over the Fourth Amendment.
With hundreds of cases all over the nation (and many more handed off to foreign law enforcement agencies) stemming from a single warrant, this collection of rulings is far from coherent. But, more often than not, judges have found that the reach of the FBI's NIT deployment far exceeded its Rule 41 grasp. That all could change by the end of the year, making future investigations handled in this manner (running seized websites to deploy hacking tools) much less likely to be successfully challenged in court.
Judge Pratt's ruling [PDF], however, did at least shut down the government's Third Party Doctrine arguments.
There is a significant difference between obtaining an IP address from a third party and obtaining it directly from a defendant’s computer.
If a defendant writes his IP address on a piece of paper and places it in a drawer in his home, there would be no question that law enforcement would need a warrant to access that piece of paper—even accepting that the defendant had no reasonable expectation of privacy in the IP address itself. Here, Defendants' IP addresses were stored on their computers in their homes rather than in a drawer.
Analogies to physical objects are seldom perfect, but Pratt's does better than most.
"Judge Pratt correctly interpreted the NIT's function and picked the correct analogy," Fred Jennings, a New York-based lawyer who has worked on numerous computer crime cases, told Ars. Jennings continues:
[Pratt] correctly points out that the usual analogies, to tracking devices or IP information turned over by a third-party service provider, are inapplicable to this type of government hacking. A common theme in digital privacy, with Fourth Amendment issues especially, is the difficulty of analogizing to apt precedent—there are nuances to digital communication that simply don't trace back well to 20th-century precedent about physical intrusion or literal wiretapping.
The evidence suppression will likely result in charges being dropped, as anything located on the defendant's devices would have stemmed from the invalid NIT warrant. Outcomes like these don't do much to appease the general public, as the actions alleged are often viewed as indefensible. But the ugliness of the crime has no bearing on the Constitution and the rules governing search warrants.
The FBI can't play by different rules just because the targets are less sympathetic. That's why the push back against the proposed Rule 41 changes is important, because alterations to jurisdictional limits won't solely be used to chase down the worst of the worst. It will greatly expand the reach of questionable search warrants and investigative tools and encourage magistrate shopping by law enforcement to lower the level of scrutiny their deficient affidavits might otherwise receive.
Our latest Techdirt t-shirt is the Math Is Not A Crime shirt (also available as women's tees, hoodies, v-necks, mugs and stickers), which was initially inspired by some of the debates around outlawing strong encryption -- but also refers to much, much more. One of the key points that defenders of strong encryption have been making in response to attempts to outlaw strong encryption or to demand backdoors is that encryption is just math, and it should never be a crime to do math. But the message actually goes beyond that. It's pointing out that since it is just math, someone else can do the math too and create their own encryption. One of the key legal fights around encryption, Bernstein v. United States, basically centered around the question of whether or not the government could declare a mathematical encryption algorithm a "munition" in order to block its export. Eventually it was determined that source code (and with it, math) are protected by the First Amendment.
But it's not just about encryption. The issue of outlawing math has come up in other contexts that we talk about as well. For example, the patenting of software is one example that has raised concerns about outlawing math. Algorithms are basically just mathematical formulas and not being able to write an algorithm because someone has patented some of it seems particularly stupid. Over a decade ago, Ben Klemens wrote a great book called Math You Can't Use.
And, of course, this enters the copyright realm as well. We're constantly talking about DRM, and a key bit of law that props up bogus DRM systems is Section 1201 of the DMCA, which outlaws any circumvention of DRM. But, many of those circumventions are little more than math as well.
This should be concerning to all of us. Attempting to hold back innovation, privacy and progress by outlawing math is a problem, and that's the reason behind our shirt. Oh, and it's also cool for math teachers and students too. Get yours today, and don't forget to check out the other gear in our super-early holiday sale.