from the yeah,-that's-like-totally-believable dept
Officials at Ft. Leavenworth prison, where Chelsea Manning is confined has apparently become super interested in protecting EFF's copyright. Or so they claim. Manning has been blocked from reading printouts of EFF blog posts, and the US Disciplinary Barracks (USDB) insists it's just about the copyright and not because they might disapprove of the EFF's message.
Manning was only allowed to have the Bureau of Prisons documents—an agency handbook and slide show on Facebook takedowns—but everything else was withheld. Instead, Manning received a notification that said the mail was rejected because it contained “printed Internet materials, including email, of a volume exceeding five pages per day or the distribution of which may violate U.S. copyright laws.”
It is possible that the Army withheld the documents because they were longer than fives pages. However, we believe this to be unlikely since the documents it did deliver were far longer than any of the other materials and exceeded five pages. That means that it was potentially copyright concerns that resulted in Manning’s mail being censored.
EFF quickly sent USDB a letter explaining that all EFF content is available for reuse under a Creative Commons Attribution license that allows for the material to be freely shared and remixed. The Creative Commons license is indicated, and the full policy linked, at the bottom of every page of our website. As the copyright holder, we asked the prison to provide Manning with the documents immediately and not to block any further EFF material from the facility. We further pointed out that our comments to the FCC were also public records, not simply information printed out from the Internet. We asked for a response by Thursday, February 18, 2016.
Needless to say, the USDB did not respond. And it seems like a patently ridiculous argument to use copyright as an excuse to block prisoners from reading content sent to them, when it's quite clear that the copyright claim is being used solely as an excuse not to give prisoners content that the prison likely disapproves of.
And, again, this is the EFF we're talking about. Beyond the fact that the content is clearly licensed under Creative Commons to allow widespread sharing, perhaps no group has fought harder for things like fair use and the more widespread sharing of important information. To claim to be protecting EFF's copyright is basically spitting in the face of the EFF. An organization that wants to spread its information widely, and wants to make sure copyright law is amenable to that is now finding that it cannot distribute its own information... because of the very copyright law it fights against. And yet we're told again and again that copyright is for protecting the creators of content, yet here's it's being actively used against their wishes to block them from disseminating their own content. That's crazy.
Yet again (and this is all too common) we see copyright claims being used as a form of censorship (even as copyright system supporters still insist that's impossible). Yes, Manning is in prison and with that comes a loss of many freedoms. But using copyright as an excuse to deny EFF reading materials seems particularly ridiculous.
One of the biggest victories of the copyright maximalists was the successful adoption of the 1996 WIPO Copyright Treaty, implemented by the DMCA in the US, and the Copyright Directive in the EU. Its key innovation was to criminalize the circumvention of copyright protection mechanisms. That strengthens copyright enormously by introducing yet another level of legal lockdown, and thus yet another powerful weapon for copyright holders to wield against their customers. But as Techdirt has reported, the anti-circumvention laws are now being used to prevent people from exploring or modifyingphysical objects that they own.
The DMCA's anti-circumvention rules not only strengthen an old monopoly -- copyright -- they create a new one. Because it is forbidden to circumvent protection measures, only the original manufacturer or approved agents can legally repair a device that employs such technologies. Motherboard has an interesting profile of efforts by the wider repair industry to dismantle that new monopoly before it spreads further and becomes accepted as the norm:
Repair groups from across the industry announced that they have formed The Repair Coalition, a lobbying and advocacy group that will focus on reforming the Digital Millennium Copyright Act to preserve the “right to repair” anything from cell phones and computers to tractors, watches, refrigerators, and cars. It will also focus on passing state-level legislation that will require manufacturers to sell repair parts to independent repair shops and to consumers and will prevent them from artificially locking down their products to would-be repairers.
The Repair Coalition will primarily work at a federal level to repeal Section 1201 of the DMCA, which states that it's illegal to "circumvent a technological measure that effectively controls access to a work protected under [the DMCA]." Thus far, activists have tried to gain "exemptions" to this section -- it's why you're allowed to repair a John Deere tractor or a smartphone that has software in it. But the exemption process is grueling and has to be done every three years.
Given the power of the industries that support Section 1201, it's hard to see it being repealed any time soon. However, the other part of the Repair Association's strategy looks more hopeful:
On a state level, the group will push for laws such as one being proposed in New York that would require manufacturers to provide repair manuals and sell parts to anyone -- not just licensed repair people -- for their products. The thought is that, if enough states pass similar legislation, it will become burdensome for manufacturers to continue along with the status quo. At some point, it will become easier to simply allow people to fix the things they own.
As software is routinely added to yet more categories of everyday physical objects, so the issue of the repair monopoly created as a by-product of the DMCA will become more pressing. It's good that there is now an advocacy group focussed on solving this problem. Let's hope it succeeds.
We've written a few times now (including just recently) about the Spanish firm Ares Rights, whose sole purpose and job in this world appears to be to abuse any and all systems to take down content to try to hide content that either Ares Rights or its clients dislike. Mainly, the takedowns seem to focus on the interests of what appears to be its main client, the government of Ecuador, and its main tool is totally bogus DMCA notices, that too many companies follow without looking at the details.
However, Ares Rights also has a history of abusing takedowns to try to hide negative information about itself. And apparently, it will abuse other tools as well, such as Twitter's policy on shutting down accounts for abuse.
Daniel Nazer is a lawyer for EFF (focusing mostly on patent issues). Last week, he found out that his Twitter account had been shut down. Eventually, he was allowed back into the account, but was told he could only reopen the account if he agreed to delete a tweet. Which tweet? One in which he referenced Ares Rights and linked to an email exchange he'd had with the head of Ares Rights, Jon Palma. As background, Nazer explained how, back in 2014, he had tweeted negatively about Ares Rights, (accurately) calling what the company engages in as "copyfraud." Palma, apparently misunderstood Nazer's tweet, thinking that it was in support of Ares Rights, and emailed Daniel asking for business advice. Nazer posted the content of that email:
There are all sorts of levels of ridiculousness here, from Palma misunderstanding Nazer's tweet, to the fact that he filed an abuse complaint with Twitter, to Twitter's decision to disable Nazer's account. Someone from Twitter who saw me discussing this (on Twitter, naturally), reached out to point to Twitter's policy on private information posted on Twitter. This is the policy that's supposed to allow Twitter to shut down accounts of people doxxing someone, posting credit cards, harassing people, or posting revenge porn or whatnot. And it seems likely that the folks at Twitter would argue that Nazer's original screenshot of the email revealed Palma's "non-public" email address. If that's the case, even then it seems like a stretch. In context, it's clearly not for the sake of "doxxing" or harassing Palma, and it's unlikely that anyone actually looked at the original screenshot and decided to angrily email Palma.
Twitter claims that it "may consider the context and nature of the information posted," but it's hard to see how that was the case this time. In the end, things worked out, and Ares Rights, yet again, looks like a horrible, censorious, thin-skinned bully. But it's a bit disappointing that Twitter was willing to help the company along in that endeavor.
Back in 2011 we noted how a group of Falun Gong members filed suit against Cisco in San Francisco, alleging that Cisco held some culpability for the Chinese government's crackdown on dissidents, critics, and others. According to the lawsuit at the time, Cisco "competed aggressively" for the contracts to design China's Golden Shield system, "with full knowledge that it was to be used for the suppression of the Falun Gong religion." The full, amended complaint (pdf) accused Cisco CEO John Chambers and two other senior executives of working with the CCP to find, eavesdrop on and track Falun Gong members.
The class action lawsuit leaned on a law known as the Alien Tort Statute, which allows non-US citizens to file human rights abuse claims in Federal court. But in 2014 a California court cited the U.S. Supreme Court's 2013 decision in Kiobel v. Royal Dutch Petroleum Co., -- stating that the Falun Gong members failed to cleanly show evidence that Cisco or its directors were directly tied to the human rights abuses and "interrogation." The court again upheld that point in 2015:
"[T]here are insufficient allegations that defendants obtained a direct benefit from the persecution of Falun Gong practitioners,” Judge Davila said. “While plaintiffs allege that anti-Falun Gong features in the Golden Shield are lucrative to defendants and appealing to the Chinese government, there is no indication that defendants would earn a reduced profit if those features were absent from the Golden Shield system."
Throughout this fight, the Electronic Frontier Foundation has consistently tried to argue that Cisco didn't need to be physically present in China to aid in human rights violations via the use of its systems, designed and constructed in Cisco's offices in San Jose, California. The group has also pointed repeatedly to marketing material and internal documents that show Cisco knew its systems would be used for surveillance and torture, though the EFF's consistently had its amicus briefs (pdf) rejected by the court. In one, the EFF details Cisco acknowledges the construction of:
"A library of carefully analyzed patterns of Falun Gong Internet activity (or “signatures”) that enable the Chinese government to uniquely identify Falun Gong Internet users;
Highly advanced video and image analyzers that Cisco marketed as the “only product capable of recognizing over 90% of Falun Gong pictorial information;”
Several log/alert systems that provide the Chinese government with real time monitoring and notification based on Falun Gong Internet traffic patterns;
Applications for storing data profiles on individual Falun Gong practitioners for use during interrogation and “forced conversion” (i.e., torture);
"Cisco’s conduct is part of a growing trend of U.S. and European technology companies helping repressive governments become highly efficient at committing human rights violations,” said Cope. “We are asking the Ninth Circuit to recognize that victims of such abuses can seek to hold accomplices like Cisco accountable for their role in brutal persecutions."
Attempting to hold Cisco accountable for violating U.S. law while doing business in China is obviously a pretty steep uphill climb. And while many would love to see companies like Cisco held responsible for willfully aiding in the surveillance and torture of a group of people whose biggest crime was compassion, others rightly worry that trying to dictate who companies can and can't do business with is a troubling and ultimately fruitless affair. Still, the case continues to generate an interesting discussion on just where the lines of culpability and liability truly lie.
The big story of last week was T-Mobile CEO John Legere's meltdown over people calling out the bullshit claims about BingeOn "optimizing" mobile video when the truth is that it was simply throttling all video traffic (partners and non partners alike). Things got even worse when Legere decided to attack EFF and suggest that it was being paid to discredit BingeOn. The simple fact remains, however, that T-Mobile is throttling video streams (and downloads).
Legere briefly went quiet about all of this, but on Monday came out again with yet another statement in the form of an "Open Letter to Consumers about Binge On" which is at least a little more honest, but is still mostly misleading bullshit -- the very thing T-Mobile has built its recent reputation on avoiding.
We invented Binge On to provide customers with an easy and effective way to stretch their data bucket. Knowing that the number one (and climbing) use of data out there is video, it was obviously the natural place to focus. Binge On is like an economy button built into a new car to save gas, and it’s a benefit that customers got the minute we launched, to use it as much as they want to. Period.
Again that sounds good but is totally misleading. First of all, it's T-Mobile that sets the data buckets in the first place. So relieving consumers of the burden that T-Mobile itself placed on consumers is not a consumer-friendly move. It's punching someone and then claiming you're being nice by offering them a hand to get them off the ground. If you start the anti-consumer practice, it's not pro-consumer to roll back a tiny part of it.
Binge On is a FREE benefit given to all T-Mobile customers. It is and always has been a feature that helps you stretch your data bucket by optimizing ALL of your video for your mobile devices.
If this were truly a "benefit" then why does it also apply to unlimited accounts (like mine)? Unlimited account holders don't need or want this "benefit" (and it's not really much of a benefit as we'll get to).
We use our proprietary techniques to attempt to detectall video, determine its source, identify whether it should be FREE and finally adjust all streams for a smaller/handheld device. (Most video streams come in at incredibly high resolution rates that are barely detectable by the human eye on small device screens and this is where the data in plans is wasted). The result is that the data in your bucket is stretched by delivering streamed video in DVD quality - 480p or better (whether you have a 2GB, 6GB or 10GB plan etc.) so your data lasts longer. Putting aside the 38+ services for which we provide FREE data for video through Binge On, as discussed below – this “stretching” of your data bucket is estimated to allow you to watch UP TO 3X MORE VIDEO from your data plan than before. This is a huge step forward.
Again, it's worth remembering that when T-Mobile launched this supposedly consumer-friendly offering, they completely hid the fact that it applied to all video, implying strongly that it only applied to partners. In fact, the company's CTO argued that it was not even possible to identify many YouTube videos -- a claim that turned out to be one of the many lies T-Mobile has spread over this mess.
Second, T-Mobile keeps claiming that most users can't tell the difference between 480p videos and higher quality HD videos, but that's bullshit. In many cases the difference in quality is quite obvious. And, again, if this was all about having your data "last longer" there would be no reason at all to turn it on for unlimited account holders.
Also note that T-Mobile is being a bit misleading here, as its original marketing on BingeOn noted that the free video streaming did not apply to accounts that had less than 3GB on their caps:
Next up, Legere continues to pretend that this is clearly a beneficial service that his customers wanted, despite many, many users saying that they wanted no such thing:
As with virtually all of our Un-carrier benefits, we immediately gave it to everyone! First we reached out to all of our customers via email and SMS message, and told them all about the new functionality that was coming their way. Then we turned it on, for everyone! So if you are a T-Mobile customer – you already have Binge On!
Again, this makes absolutely no sense for unlimited accounts, and the fact that it's not opt-in is just silly:
We strive to default all of our customer benefits to “ON.” We don’t like to make customers dig around to find great new benefits -- that is something a traditional carrier would do when they really hope you, the consumer, won’t take any action. Can you imagine the disappointment, if people saw our TV commercials about Binge On, then went to watch 10 hours of video expecting it to be free, and only THEN learned that they needed to go into their settings to activate this new benefit? That’s how the Carriers would do it, but not T-Mobile. Everyone has it from day 1, period.
So instead of making customers dig around to find this (which is not a "great new benefit"), they make customers dig around to find how to turn it off because they don't want it. That's exactly how the big carriers do things. And, once again, there's simply no reason why it should ever be turned on for unlimited data users.
But here’s the thing, and this is one of the reasons that Binge On is a VERY “pro” net neutrality capability -- you can turn it on and off in your MyTMobile account – whenever you want. Turn it on and off at will. Customers are in control. Not T-Mobile. Not content providers. Customers. At all times.
This is what T-Mobile is banking on as the reason why it's not violating the bright line rule against throttling in the FCC's net neutrality rules -- because there's a small "out" in the rules, saying that the no throttling rule doesn't apply to choices made by the end user to throttle traffic. Of course, that's assuming a situation where the end user proactively decides to slow down certain types of traffic, not where it's forced upon them, and there's a convoluted process to opt-out of it.
Either way none of this addresses the actual concerns raised by many T-Mobile subscribers: T-Mobile lied. It said that it was "optimizing" the video when the truth is that it was just slowing down the video. It doesn't change the fact that T-Mobile was far from transparent in explaining that this throttling (not optimizing) applied to all video, even with non-partner video. Finally, T-Mobile lied in insisting that this "optimization" would make videos load faster, when the reality is that for many video services it neither saves any data (the full file is downloaded, just slower), nor does it speed things up. Instead, it makes it buffer when there's plenty of available bandwidth.
That's what people are complaining about and T-Mobile ignores all of it, continuing to insist that BingeOn is nothing but a consumer friendly offering.
In the end, Legere gives a weak apology to the EFF that again fails to recognize why so many people took issue with his characterization of the EFF ("who the fuck are you? and who pays you?") and pretends that it's just about a difference of opinion:
I will however apologize for offending EFF and its supporters. Just because we don’t completely agree on all aspects of Binge On doesn’t mean I don’t see how they fight for consumers. We both agree that it is important to protect consumers' rights and to give consumers value. We have that in common, so more power to them. As I mentioned last week, we look forward to sitting down and talking with the EFF and that is a step we will definitely take. Unfortunately, my color commentary from last week is now drowning out the real value of Binge On – so hopefully this letter will help make that clear again.
The problem wasn't "offending" EFF, it was that EFF did a good job exposing what T-Mobile is actually doing, and rather than responding to them, you freaked out, attacked them and their credibility and acted like they were some nobody shills. That's not offensive, it's stupid and raises serious questions about T-Mobile's intentions.
Again, what is the "value" of BingeOn, other than throttling video down? Legere still keeps insisting things that aren't really true at all. It's too bad, because Legere had built up T-Mobile to be customer friendly and his reaction to this whole situation has done serious damage to that reputation.
Well, this has really turned into quite a week for T-Mobile CEO John Legere, huh? First, his lies about BingeOn throttling were exposed. Then he doubled down on the lie insisting that BingeOn wasn't throttling despite clear evidence that it is. Then, he attacked EFF for exposing his lie. All the meanwhile, T-Mobile spokespeople were confirming that the company is, absolutely, slowing down all video traffic.
In light of recent events and comments made by your CEO, John Legere, we have decided to halt our participation in Binge On and disable our traffic shaping rules for the time being. As per the agreement, please consider this 24 hours notice that 4Stream.TV will no longer participate in the program.
As net neutrality supporters and EFF Members, we encourage you to be more honest and transparent about the issue and develop a program that we can be proud to participate in.
Kudos to Patrick Hampson and Aaron Zufall for making that decision.
Of course... the unfortunate truth, as we now know from all of this, is that even once they've decided not to participate in the program it doesn't change the fact that their videos will get throttled.
from the Baltimore-PD-has-a-lifetime-of-explaining-to-do dept
Baltimore law enforcement officers love their cell tower spoofers. They have deployed them over 4,300 times since 2007, in most cases without a warrant. Instead, the Baltimore PD uses pen register orders, which both hide the technology being used and allow the department to abuse a lower suspicion standard.
Little by little, the devices behind the bogus pen register orders are being exposed. The PD delayed the inevitable by withdrawing evidence. When confronted by judges and defense lawyers, it pointed to the non-disclosure agreement it had signed with the FBI.
Now, it's watching another case fall apart. The PD is currently appealing a judge's suppression of evidence obtained through warrantless use of a Stingray device. At the center of this case is an attempted murder charge. The PD isn't quite as willing to let this one go, as it has done with others in the past. But, at this point, it's losing badly.
Police relied on the pen register order to use a “Hailstorm” cell site simulator (a newer version of the Stingray that can track 4G/LTE phones). They tracked Andrews’s phone to a Baltimore home, and found him inside.
As the prosecution of Mr. Andrews moved forward, police doubled down on their secrecy. They repeatedly failed to comply with their obligation to disclose to the defense attorney that they had used the technology, only admitting it under pressure as the scheduled trial date approached. In June, after holding a hearing where Baltimore Police finally were forced to testify about using the Hailstorm, a judge concluded that the cops had intentionally withheld the information from the defense, in violation of their legal disclosure obligations.
In August, another judge granted Andrews’s motion to suppress evidence obtained as a result of the Hailstorm use. The judge concluded that use of the Hailstorm without a warrant violated the Fourth Amendment, and that the government’s decision to hide their intent to use the device when applying for the pen register order meant that their use of the Hailstorm was never authorized by a judge.
As the ACLU notes, this is quite possibly the first time a judge has granted a motion to suppress evidence obtained by warrantless use of a Stingray device (this one an upgraded version known as a Hailstorm). The Baltimore PD must really want to take Kerron Andrews down because it hasn't offered to dismiss charges and is actively fighting the suppression order.
The ACLU's amicus brief (written in conjunction with the EFF) details the misleading (and unconstitutional) use of pen register orders to obtain more data (and in a more intrusive manner) than would normally be gathered through old school trap-and-trace methods.
Traditionally, courts recognized a pen register as a device operated by the phone company that records the numbers dialed by a telephone. Smith v. Maryland, 442 U.S. 735, 736 & n.1 (1979). Although pen registers now may also “record” other “routing, addressing, or signaling information,” Md. Code Ann., Cts. & Jud. Proc. § 10-4B- 01(c)(1), the government here sought a pen register order to authorize use of a “Pen Register . . . and Cellular Tracking Device,” (R.54).
Maryland’s pen register statute makes no provision for, or even mention of, a “cellular tracking device.” Without a description from the government of what it meant by “cellular tracking device,” it would have been near-impossible for the issuing judge to know that the government was in fact referring to a Hailstorm. Even more unlikely would have been the court’s independent understanding that, unlike a true pen register, a Hailstorm does not merely “record,” but broadcasts signals that penetrate the walls of every private home in its vicinity and force responses from bystanders’ phones.
The documents provided by the ACLU also include the oral transcript of August's suppression hearing. There are a few gems to be gleaned from this earlier record, like the previous judge's determination that the detective who participated in "willful and egregious discovery violations" was no longer a credible state witness and should not be permitted to testify.
The other highlight is the court shutting down the "good faith exception," basically telling the state's lawyer that willfully misleading a judge by applying for a pen register order (to obscure the use of the Hailstorm) is a bad faith act, and any further actions (not just evidence) are tainted by this point of origin.
[T]he Court's not persuaded nor do I think that it's applicable in this particular case because it is a violation of the Fourth Amendment that led them there [where the defendant was arrested]. So in terms of good faith, the good faith is the bad faith in illegally essentially locating him or locating him through using the Hailstorm in violation of his Fourth Amendment rights. And so it's, to me I think the good faith exception doesn't really apply here.
What's being asked of the government isn't much: just a modicum of respect for citizens' rights and civil liberties. If you're going to use a cell tower spoofer, get a warrant. And then turn that information over to defendants, so the playing field is somewhat level when they go to trial. But the government continues to treat these requests as obnoxious impositions (at best) and a threat to law enforcement efficiency.
I kinda feel bad for the PR people at T-Mobile. This morning, CEO John Legere put out a completely bullshit statement pretending to respond to the accusations that its BingeOn program is throttling online video. It didn't address the actual issues, made statements that were clearly false, and then accused people questioning the program of being "jerks." That seemed weird, considering the widespread concerns about all of this combined with T-Mobile's attempt to brand itself as the only consumer friendly mobile service provider.
But, if you really wanted to undermine the idea that you're a "consumer-first" operation that "cares about the open internet" and had to pick one group that you shouldn't go off on an unhinged rant about, you'd probably pick EFF. The group, which has been around forever, is somewhat famous for its willingness to fight for the public's digital rights, and unwillingness to compromise its beliefs. It has regularly sued or challenged numerous big companies that have undermined privacy and the open internet, including AT&T and Google.
I've emailed T-Mobile's PR people to find out if Legere really doesn't know what EFF is, or if he really thinks that EFF is somehow a front group for a company attacking T-Mobile. I doubt I'll hear much of a response. But if Legere wanted to totally undermine his pro-consumer position in a single sentence, I don't think he could have picked a much worse one than what he actually came out with.
from the they're-wrong-about-the-throttling,-maybe-not-on-the-jerk-thing dept
On Monday we wrote about T-Mobile flat out lying about the nature of its BingeOn mobile video service -- and after a couple of days of silence, the company has come out swinging -- by lying some more and weirdly attacking the people who have accurately portrayed the problems of the service. As a quick reminder, the company launched this service a few months ago, where the company claimed two things (though didn't make it entirely clear how separate these two things were): (1) that the company would not count data for streaming video for certain "partner" companies and (2) that it would be "optimizing" video for all users (though through a convoluted process, you could opt-out).
There were a bunch of problems with this, starting with the fact that favoring some partner traffic over others to exempt it from a cap (i.e., zero rating) is a sketchy way to backdoor in net neutrality violations. But, the bigger issue was that almost everything about T-Mobile's announcement implied that it was only "partner" video that was being "optimized" while the reality was that they were doing it for any video they could find (even downloaded, not streamed). The biggest problem of all, however, was that the video was not being "optimized" but throttled by slowing down video.
Once the throttling was called out, T-Mobile went on a weird PR campaign, flat out lying, and saying that what they were doing was "optimizing" not throttling and that it would make videos stream faster and save users data. However, as we pointed out, that's blatantly false. Videos from YouTube, for example, were encrypted, meaning that T-Mobile had no way to "optimize" it, and tests from EFF proved pretty conclusively that the only thing T-Mobile was doing was slowing connection speeds down to 1.5 Mbps when it sensed video downloads of any kind (so not even streaming), and that actually meant that the full amount of data was going through in many cases, rather than an "optimized" file. EFF even got T-Mobile to admit that this was all they were doing.
So that makes the response of T-Mobile execs yesterday and today totally baffling because rather than actually respond to the charges, they've doubled down on the blatant lying, suggesting that either it's executives have no idea what the company is actually doing, or that they are purposely lying to their users, which isn't exactly the "uncarrier" way that the company likes to promote.
We'll start with the big cheese himself, CEO John Legere, whose claim to fame is how "edgy" he is as a big company CEO. He's now released a statement and a video that are in typical Legere outspoken fashion -- but it's full of blatant lies.
The video and the typed statement are fairly similar, but Legere adds some extra color in the video version.
Let's parse some of the statements. I'll mostly be using the ones from the written statement as they're easier to cut and paste, rather than transcribe, but a few from the video are worth calling out directly.
I’ve seen and heard enough comments and headlines this week about our Binge On video service that it’s time to set the record straight. There are groups out there confusing consumers and questioning the choices that we fight so hard to give our customers. Clearly we have very different views of how customers get to make their choices -- or even if they’re allowed to have choices at all! It’s bewildering …so I want to talk about this.
Of course, this is a nice, but misleading attempt to frame the conversation. No one is complaining about "giving choices to consumers." They're complaining about (1) misleading consumers and (2) providing a worse overall experience by throttling which (3) directly violates the the FCC's prohibition on throttling. The next part I'm taking from the video itself, rather than the printed statement, because Legere goes much further in the video, including the curses, which magically don't show up in the printed version:
There are people out there saying we’re “throttling.” That's a game of semantics and it's bullshit! That's not what we're doing. Really! What throttling is is slowing down data and removing customer control. Let me be clear. BingeOn is neither of those things.
This is flat out wrong and suggests Legere doesn't even know the details of his own service. As the EFF's tests proved (and the fact that YouTube videos are encrypted should make clear) T-Mobile is absolutely slowing down data. In fact, EFF got T-Mobile to confirm this, so Legere claiming it's "bullshit" is... well... bullshit!
But he's playing some tricky word games here, claiming that throttling is not just slowing down data, but also removing customer control. That's (1) not true and (2) also misleading. For all of Legere and T-Mobile's talk about "giving more options to consumers" or whatever, they're totally leaving out the fact that they automatically turned this on for all users without a clear explanation as to what was happening, leading to multiple consumer complaints about how their streaming videos were no longer functioning properly -- even for users on unlimited data plans.
Customer choice? Sure they could "opt-out" after through a convoluted process that many did not understand. But T-Mobile made the choice for all its users, rather than providing a choice for its customers to make.
Mobile customers don’t always want or need giant heavy data files. So we built technology to optimize for mobile screens and stream at a bitrate designed to stretch your mobile data consumption. You get the same quality of video as watching a DVD, but use only 1/3 as much data (or, of course, NO data used when it’s a Binge On content provider!). That's not throttling. That's a huge benefit.
Again, this is both wrong and misleading. There is no optimization. Legere is lying. They are 100% slowing down the throughput on video when they sense it. The EFF's tests prove as much. Yes, for some video providers when they sense lower bandwidth, they will downgrade the resolution, but that's the video provider optimizing, not T-Mobile. T-Mobile is 100% throttling, and hoping that the video provider downgrades the video.
But in cases where that doesn't happen then it doesn't save any data at all (the EFF test confirmed that the full video file still comes through, just slower).
Also, note the play on words "You get the same quality of video as watching a DVD." At first you think he's saying that you get the same video quality overall, but he's not. He's saying as a DVD, at 480p, which is lower than the 1080p that many HD videos are offered at. And that's what many people are complaining about -- that they'd like to watch videos at the full 1080p, but T-Mobile made the choice that they can't do that unless they go through a convoluted process to turn this off.
Rather than respond to any of this, Legere then claims that "special interest groups" and Google are doing this.... "to get headlines."
So why are special interest groups -- and even Google! -- offended by this? Why are they trying to characterize this as a bad thing? I think they may be using Net Neutrality as a platform to get into the news.
Wait, what? Google -- the same Google that absolutely refused to say anything publicly at all about net neutrality for years during the debate suddenly wants to get into the news by jumping on the net neutrality bandwagon? Does Legere have any idea how ridiculous that sounds? And it's not like Google has a problem getting into the news. And what about EFF and others? Does he really think they need to get extra news coverage?
But note the facts here: at no point does Legere respond to the actual charges leveled against the company. He then concludes by yelling at everyone for daring to complain about this:
At T-Mobile we're giving you more video. More choice. And a powerful new choice in how you want your video delivered. What's not to love? We give customers more choices and these jerks are complaining, who the hell do they think they are? What gives them the right to dictate what my customers, or any wireless consumer can choose for themselves?
Nice. I'm part of the contingent complaining about this and I'm also a T-Mobile customer... and the CEO just called me a jerk while telling me he's fighting for his customers? Really now?
And again this whole statement is blatantly misleading. The "choice" was made by T-Mobile for all users, and getting out of it involves a convoluted process that most don't understand and where none of this was made clear to end users. Beyond violating the FCC's "no throttling" rule, I wonder if it also violates the FCC's transparency rules as well, in which they are required to be much more upfront about how the data is being treated.
Also, the statement above is from the video where we're described as "jerks," but in the written version it leaves out the "jerks" claim, but also includes the following bit mocking YouTube for letting users choose to change the resolution on videos:
YouTube complained about Binge On, yet at the same time they claim they provide choice to customers on the resolution of their video. So it's ok for THEM to give customers choice but not for US to give our customers a choice? Hmmm. I seriously don't get it.
But that's bullshit also. YouTube's choice option there is a clear pulldown on every video shown, so that a user just needs to click on the video their watching and set the resolution. T-Mobile's is a process that's not clear at all, with some users reporting they had to call in and get T-Mobile customer service to turn BingeOn off for their account. To compare the two situations is completely bonkers.
As far as I can tell, Legere either doesn't understand what his own company is doing technically, or knows and is purposely misrepresenting it. Neither of those look good and go against the entire "uncarrier" concept they keep pitching. I'd expect better as a T-Mobile customer than being told that I'm a "jerk" for pointing this out.
And it appears he's not the only one among senior execs at T-Mobile who still don't realize what their own company is doing. On Wednesday at a Citigroup conference, T-Mobile's Chief Operating Officer Mike Sievert
spewed some more nonsense suggesting he, too, has no idea what his own company is doing:
At a Citigroup investor conference Wednesday, T-Mobile executives shot back, saying YouTube’s stance is “absurd.” YouTube is owned by Alphabet Inc. “We are kind of dumbfounded, that a company like YouTube would think that adding this choice would somehow be a bad thing,” said T-Mobile Chief Operating Officer Mike Sievert. He said YouTube hasn’t “done the work yet to become part of the free service.”
Taken at face value, that comment makes no sense. If YouTube hasn't done the work yet to become a part of the free service than why the fuck is T-Mobile slowing down its videos? YouTube wasn't complaining about "adding this choice." YouTube was complaining about direct throttling of video content by T-Mobile, in clear violation of the FCC's prohibition on throttling.
Sievert and Legere both don't seem to understand (1) what YouTube and users are complaining about or (2) what his own company is doing. That's... troubling, given that these are the CEO and COO of the company. It really seems like T-Mobile execs might want to spend some time talking to its tech team to understand the fact that the only thing T-Mobile is doing to video is throttling it down to 1.5 Mbps, rather than any actual "optimization" before spewing more nonsense and calling their own customers "jerks." And, they might want to realize that their claim that this is all "bullshit" is actually complete bullshit. And that their bullshit may very well violate the FCC's rules.
One of the big EFF lawsuits against NSA surveillance, Jewel v. NSA, which has been going for many years (since before the Snowden revelations) has just been dismissed by the 9th Circuit appeals court, for "lack of jurisdiction." The issue is really more of a procedural one, than on the substance, but it's still unfortunate. Without going into the details (you can read the full 17 page ruling if you want that), there was an effort to "expedite" (as much as you can use that word for a case that has been going on for almost a decade) a single part of the ruling, and the appeals court basically says you can't do that, and things need to wait until there's a full decision from the lower court.
We are sympathetic to the Jewel plaintiffs’ desire to bring
at least part of this case to a close. But awaiting a decision on
a single claim, which is not a linchpin claim either factually
or legally, does not advance this result. In fact, the result of
this appeal has been to bring the district court proceedings to
a halt. Both sides point fingers as to why no final decision
has been reached. We do not take sides in that debate, except
to say that the parties’ and judicial resources would be better
spent obtaining a final judgment on all of the claims, instead
of detouring to the court of appeals for a piecemeal resolution
of but one sliver of the case.