from the indeed dept
And, of course, how could Oliver resist responding to that challenge.
by Mike Masnick
Mon, Jun 16th 2014 8:35pm
by Michael Ho
Mon, Jun 16th 2014 5:00pm
by Mike Masnick
Mon, Jun 16th 2014 3:28pm
by Glyn Moody
Mon, Jun 16th 2014 2:11pm
Net neutrality is a hot topic on both sides of the Atlantic, but it's not only in those regions that governments are trying to formulate policies that will keep the Internet fair and open for innovation. One country at the forefront of this field is Chile, which passed its net neutrality law in 2010. Here's how how Global Voices summarized the legislation:
The reform implies, among other things, that Internet Service Providers will not be able to arbitrarily block, interfere, discriminate, hinder or restrict content, applications or legal services that users perform on their networks.
That's a pretty standard framing for net neutrality, with a prohibition on discrimination -- and that includes positive discrimination. As GigaOM reports, Chile has now taken action against this kind of preferential treatment online:
The Chilean telecommunications regulator Subtel has banned mobile operators from offering so-called zero-rated social media apps -- services like Twitter and Facebook that, through deals with the carriers, can be used without having to pay for mobile data. Subtel says such practices are illegal under Chilean net neutrality law.
That might seem perverse, since it means that Chilean mobile users must now pay to access those services, but it is nonetheless exactly what governments that have mandated net neutrality need to do. That's because providing these services for free makes it much harder for newcomers -- specifically new services from local startups -- to compete with established ones that are provided free. Indeed, it's striking how Facebook, for example, has kept its head down during the net neutrality debates -- doubtless conscious that it has benefitted hugely from these schemes that run counter to net neutrality principles. As Vox wrote recently:
One factor in Facebook's growing global popularlity is Facebook Zero. Under this program, Facebook pays the data charges for users who log into a stripped down version of Facebook from their mobile phones. The program has made Facebook accessible to millions of users who wouldn't otherwise be able to afford it.
That's clearly anti-competitive. But what about this from 2012?
Orange has struck a deal with Wikipedia to make its digital encyclopaedia available free of data charges to millions of mobile phone users across the Middle East and Africa.
Although that breaks net neutrality in the same way as Facebook Zero, Wikipedia sees it as something that should be encouraged:
Sue Gardner, executive director of the Wikimedia Foundation, the non-profit organisation that runs Wikipedia, said:
"Wikipedia is an important service, a public good, and so we want people to be able to access it for free, regardless of what device they're using. This partnership with Orange will enable millions of people to read Wikipedia who previously couldn't."
That's certainly true, so perhaps there should be an exception to net neutrality for non-profits. But that would still produce the same tilting of the playing field in favor of one supplier, making it hard for a new rival to Wikipedia, say, to compete. Tricky stuff this net neutrality....
by Tim Cushing
Mon, Jun 16th 2014 1:10pm
Your request appears to be related to recently published information about alleged NSA activities. Therefore, to the extent that your request seeks any information about NSA intelligence programs, or in relation to any specific methods or means for conducting the programs, we cannot acknowledge the existence or nonexistence of such information.Quick question: if the material, in fact, does not exist, is it still "properly classified?"
We have determined that the fact of the existence or nonexistence of the materials you request is a currently and properly classified matter in accordance with Executive Order 13526, as set forth in Subparagraph of Section 1.4. Thus, your request is denied pursuant to the first exemption of the FOIA which provides that the FOIA does not apply to matters that are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign relations and are, in fact properly classified pursuant to such Executive Order.
In addition, this Agency is authorized by various statutes to protect certain information concerning its activities. The third exemption of the FOIA provides for the withholding of information specifically protected from disclosure by statute. Thus, your request is also denied because the fact of the existence or non-existence of the information is exempted from disclosure pursuant to the third exemption.So, not only are the phrases apparently subject to a variety of FOIA exemptions, even a simple nod of recognition in the direction of the NSA's "collect it all" aspirations is strictly forbidden. It's enough to make you want to drag the NSA into the nearest interrogation room and yell at it while jabbing repeatedly at the slide above, "THIS! THIS! DOES THIS LOOK FAMILIAR?!??"
by Mike Masnick
Mon, Jun 16th 2014 12:21pm
We cannot find any basis in statute or case law for extending a copyright beyond its expiration. When a story falls into the public domain, story elements—including characters covered by the expired copyright—become fair game for follow-on authors...Posner notes that while the ten stories published after 1923 (it's not fair to call them "new") are derivative works of the original, and the only thing protectable in those are the "original elements added" in those later stories. Everything done before that is public domain.
The estate offers the hypothetical example of a mural that is first sketched and only later completed by being carefully painted. If the sketch is allowed to enter the public domain, there to be improved by creative copiers, the mural artist will have a diminished incentive to perfect his mural. True; but other artists will have a greater incentive to improve it, or to create other works inspired by it, because they won’t have to pay a license fee to do so provided that the copyright on the original work has expired.Posner also destroys the rationale of the Doyle Estate in which they have a made up concept of "flat" and "round" characters, where "round" characters are continually added to through newer and newer works, and the characters are never fully complete because of all that adding. Posner notes that this whole thing has nothing to do with copyright law:
The estate defines “flat” characters oddly, as ones completely and finally described in the first works in which they appear. Flat characters thus don’t evolve. Round characters do; Holmes and Watson, the estate argues, were not fully rounded off until the last story written by Doyle. What this has to do with copyright law eludes us.Posner further points out that, for all the talk that the Estate is worried about the harm of "new" versions of Holmes it doesn't like, in truth it seems clear that the Estate just wants to get paid. Finally, Posner notes that this appears to be an attempt to create a perpetual copyright, which violates the "limited times" aspect of the Constitution:
With the net effect on creativity of extending the copy-right protection of literary characters to the extraordinary lengths urged by the estate so uncertain, and no legal grounds suggested for extending copyright protection beyond the limits fixed by Congress, the estate’s appeal borders on the quixotic. The spectre of perpetual, or at least nearly perpetual, copyright (perpetual copyright would vio-late the copyright clause of the Constitution, Art. I, § 8, cl. 8, which authorizes copyright protection only for “limited Times”) looms, once one realizes that the Doyle estate is seeking 135 years (1887–2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story.That seems like a rather useful line given the likelihood of a copyright term extension fight coming up in the next few years...
by Mike Masnick
Mon, Jun 16th 2014 11:15am
More importantly, an encouragement test would inflate the meaning of “development” to the point of eclipsing the immunity from publisher-liability that Congress established. Many websites not only allow but also actively invite and encourage users to post particular types of content. Some of this content will be unwelcome to others—e.g., unfavorable reviews of consumer products and services, allegations of price gouging, complaints of fraud on consumers, reports of bed bugs, collections of cease-and-desist notices relating to online speech. And much of this content is commented upon by the website operators who make the forum available. Indeed, much of it is “adopted” by website operators, gathered into reports, and republished online. Under an encouragement test of development, these websites would lose the immunity under the CDA and be subject to hecklers’ suits aimed at the publisher. Moreover, under the district court’s rule, courts would then have to decide what constitutes “encouragement” in order to determine immunity under the CDA—a concept that is certainly more difficult to define and apply than the Ninth Circuit’s material contribution testAs the appeals court notes, this clearly goes against what Congress intended:
Congress envisioned an uninhibited, robust, and wide-open internet,... but the muddiness of an encouragement rule would cloud that vision. Accordingly, other courts have declined to hold that websites were not entitled to the immunity furnished by the CDA because they selected and edited content for display, thereby encouraging the posting of similar content. ... (“Such weak encouragement cannot strip a website of its section 230 immunity, lest that immunity be rendered meaningless as a practical matter.”); ... We do the same.This is important for a variety of reasons. Just this morning, I saw a debate break out on Twitter about whether or not someone is liable for retweeting a defamatory tweet. In other parts of the world the answer, ridiculously, is yes. Thankfully, this ruling highlights why that's not the case here in the US. Merely selecting and editing content for display does not remove your safe harbors. In this case, the court goes even further in noting that "ratifying or adopting" others' statements in no way makes you suddenly liable for those statements:
An adoption or ratification theory, however, is not only inconsistent with the material contribution standard of “development” but also abuses the concept of responsibility. A website operator cannot be responsible for what makes another party’s statement actionable by commenting on that statement post hoc. To be sure, a website operator’s previous comments on prior postings could encourage subsequent invidious postings, but that loose understanding of responsibility collapses into the encouragement measure of “development,” which we reject.... As other courts have recognized, the adoption theory of “development” would undermine the CDA for the same reasons as an encouragement theoryAnd thus, Dirty World is protected here:
Dirty World and Richie did not author the statements at issue; however, they did select the statements for publication. But Richie and Dirty World cannot be found to have materially contributed to the defamatory content of the statements posted on October 27 and December 7, 2009, simply because those posts were selected for publication.... Nor can they be found to have materially contributed to the defamatory content through the decision not to remove the posts.... The CDA expressly bars “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.”Also, thankfully for us at Techdirt in particular, the court points out that Dirty World's name doesn't remove liability just because it has "dirt" in it:
Nor does the name of the website, www.TheDirty.com, suggest that only illegal or actionable content will be published.The court also notes that while Richie's additional comment "why are all high school teachers freaks in the sack" may be "absurd," it does not "materially contribute to the defamatory content." Nor, by the way, did Jones claim that Richie's own comments were ever defamatory -- the lawsuit was entirely focused on the content written by others. Instead, Jones' lawyer tried to claim that Richie's non-defamatory comments contributed to the defamation, and thus took away his safe harbor protections. But the court points out how absurd this is:
Richie’s remark was made after each of the defamatory postings had already been displayed. It would break the concepts of responsibility and material contribution to hold Richie responsible for the defamatory content of speech because he later commented on that speech. Although ludicrous, Richie’s remarks did not materially contribute to the defamatory content of the posts appearing on the website. More importantly, the CDA bars claims lodged against website operators for their editorial functions, such as the posting of comments concerning third-party posts, so long as those comments are not themselves actionable.And, the court also offers a pretty direct dig at Jones and her lawyers for targeting the wrong party (not the original lawsuit which totally targeted the wrong site, but for going after the site instead of the original commenters):
We note that the broad immunity furnished by the CDA does not necessarily leave persons who are the objects of anonymously posted, online, defamatory content without a remedy. In this case, Jones conceded that she did not attempt to recover from the person(s) whose comments Richie elected to publish. She conceded that she did not attempt to subpoena Richie or Dirty World to discover who authored the defamatory posts. Instead, she sued Dirty World and Richie. But, under the CDA, Jones cannot seek her recovery from the online publisher where that publisher did not materially contribute to the tortious content.All in all, this is a good win for Section 230 safe harbors for online publishers, and a good win for free speech. This case should have gone this way at the district court level -- and it only went sideways because of a confused judge who basically misread or ignored pretty much all precedent on the issue.
by Mike Masnick
Mon, Jun 16th 2014 10:12am
“Whether it’s Bitnet, The Tor – which is 90% of the Internet – peer-to-peer sharing, or the streaming capability worldwide. At what point does civil society say that as well as the benefits that brings, this enables huge risk and threat to our society that we need to take action against?”Yeah, try to parse that one. Beyond not being true, it's almost entirely nonsensical. And this guy is ordering websites completely shut down based on nothing more than his say so?
"The Internet pushes through every border control legislation we have and it is carrying a huge amount of harm to our society, as well as offering creative opportunity for business. At some point there has to be a debate and a challenge about the harm the Internet brings."Yeah, that debate happened long ago, and people realized (1) the claims of harm are completely overblown by folks like yourself and (2) the benefits are massive. Debate closed.
"The new legislation that’s necessary is not just about prosecuting people and protecting people, we’ve got to think about some of the enabling functions that allow this to happen that we just take for granted.""Enabling functions"? He's talking about regulating the internet to add deeper layers of secondary liability, thereby effectively destroying one of the most important ingredients to the internet's success. All because his friends in the obsolete legacy parts of the entertainment industry haven't figured out how to adapt.
by Tim Cushing
Mon, Jun 16th 2014 9:11am
For weeks, senior officials from the FBI, the CIA, the State Department and other agencies assembled nearly every day in a desperate search for a way to apprehend the former intelligence contractor who had exposed the inner workings of American espionage then fled to Hong Kong before ending up in Moscow.Snowden didn't misstep, but the US did, concentrating its efforts on a flight to Bolivia that the former NSA contractor never boarded. (It also scrambled a rendition jet on the off-chance that Snowden could be seized out in the open.) And even if he had decided to head that direction, there was actually very little the US could have done about it. Forcing the plane to land (as it did with the president of Bolivia's jet) wasn't the problem. This could be done in any allied airspace. The problem was that the country's jurisdiction ended where the plane's cabin began.
Convened by White House homeland security adviser Lisa Monaco, the meetings kept ending at the same impasse: Have everyone make yet another round of appeals to their Russian counterparts and hope that Snowden makes a misstep.
Even if Snowden had been a passenger, officials said, it is unclear how he could have been removed from a Bolivian air force jet whose cabin would ordinarily be regarded as that country’s sovereign domain — especially in Austria, a country that considers itself diplomatically neutral.But what is probably more concerning is the fact that US intelligence seems to have little idea what Snowden's doing, where he's living or anything else. While some officials have made claims that Snowden is now working for Russian intelligence, any actual intelligence is sparse and nearly impossible to verify.
“We would have looked foolish if Snowden had been on that plane sitting there grinning,” said a senior Austrian official. “There would have been nothing we could have done.”
Snowden is facing espionage-related charges, and the FBI has power to conduct wiretaps and enlist the NSA and CIA in its investigative efforts overseas. But even with such help, officials said, the bureau’s reach in Moscow is limited.Further hampering its investigation is the lack of evidence that Snowden is working for a "foreign power" or actively aiding an enemy state. Russia, despite its problems, simply doesn't qualify as a direct opponent of our national security. And so far, nothing obtained has indicated Snowden is now an FSB operative. Without this crucial stipulation, the government can only go so far in its efforts.
“The FBI doesn’t have any capability to operate in Moscow without the collaboration of the FSB,” said a former senior U.S. intelligence official who served in the Russian capital.
Several U.S. officials cited a complication to gathering intelligence on Snowden that could be seen as ironic: the fact that there has been no determination that he is an “agent of a foreign power,” a legal distinction required to make an American citizen a target of espionage overseas.For all the claims that Snowden has done irreparable harm to US security with his leaks, it's kind of surprising that the government can gather so little information on the current situation of its public enemy #1. This also shows that the surveillance state is severely limited without cooperative partners, something countries expressing outrage over expansive data/communication harvesting should take note of.
by Tim Cushing
Mon, Jun 16th 2014 7:49am
The IRS has told Congress that it lost more than two years’ worth of emails involving former IRS official Lois Lerner, due to a computer crash.Camp points out that the IRS withheld these emails for over a year before suddenly "discovering" they were unavailable. The IRS says it can find everything Lerner sent to and received from other IRS employees but nothing containing correspondence with those outside the agency.
House Ways and Means Committee Chairman Dave Camp (R-Mich.) on Friday said it was “unacceptable” that he was just learning of this problem now, after a lengthy investigation into Lerner’s involvement in the IRS targeting scandal.
I believe the government uses Microsoft Exchange for their email servers. They have built-in exchange mail database redundancy. So, unless they did not follow Microsoft's recommendations they are telling a falsehood.The IRS's own policies on email state that its employees use both Microsoft Outlook and Exchange, which means it should have some form of backup available.
Secure Messaging enrollment is an automated process for all LAN accounts with an Exchange mailbox in IRS. You can find the instructions for configuring the Outlook client to use the certificates at the Secure Enterprise Messaging Systems (SEMS) web site: http://documentation.sems.enterprise.irs.gov/.According to Cillo, the only other explanation for the IRS's inability to recover these emails is that the agency is "totally mismanaged and has the worst IT department ever." Unfortunately, the government seems to have a lot of mismanaged and terrible IT departments, so this may be closer to the truth than anyone would really like to admit. Perhaps the general ineptitude of large government agencies is behind the Treasury Department's policy that all email sent to or from IRS employees be "archived" via hard copy printouts.
If you create or receive email messages during the course of your daily work, you are responsible for ensuring that you manage them properly. The Treasury Department’s current email policy requires emails and attachments that meet the definition of a federal record be added to the organization’s files by printing them (including the essential transmission data) and filing them with related paper records. If transmission and receipt data are not printed by the email system, annotate the paper copy.There's more information here, citing the IRS's own internal guidelines on tape backups, etc., that suggest further levels of redundancy, as well as the commissioner of the IRS testifying that the agency stores its emails on servers.
“I have asked NSA Director Rogers to send me all metadata his agency has collected on Lois Lerner’s email accounts for the period which the House sought records,” said Stockman. “The metadata will establish who Lerner contacted and when, which helps investigators determine the extent of illegal activity by the IRS.”Yeah, let me know how that works out for you, Steve. The NSA can't even confirm or deny its monthly water usage at its Utah data site, much less that it has metadata pertaining to Americans' communications.
by Tim Cushing
Mon, Jun 16th 2014 5:35am
[A]ccording to a source inside City Hall, the officials who aggressively pursued Daniel, the creator of the account, were also wrong in a much more mundane way: They thought I was behind @peoriamayor and assumed I worked for the local paper, the Journal Star...This adds a bit more background to the mayor's apparent disdain for the media. Glawe also points out that the braintrust behind the account shutdown not only seemed to have a poor grasp of the law (perhaps intentionally), but was also mystified by the technical aspects of dealing with an online social media platform.
In an email that was released because of a Freedom of Information Act request, Ardis asked his subordinates what “JS reporter” lived with Daniel, and a police official said he didn’t know. If the source in City Hall is correct, Ardis was convinced that reporter was me, and likely thought that by exposing me as the foul-mouthed fiend behind @peoriamayor he’d ruin my reputation as a journalist and that of the Journal Star in the process.
At one point, some city officials and cops thought they could call Twitter to have @peoriamayor shut down, so it’s no surprise that they apparently couldn’t be bothered to google my name and find out who I was and whom I work for.In related news, Peoria Police Chief Steve Stettingsgaard has stepped down to take a job with Caterpillar, Inc. While his entire tenure at the head of the PPD has been marked with controversy, there's no doubt this latest incident played a part in convincing him to exit the law enforcement business.
Mayor/Manager, I reviewed this matter with Detective Feehan. He is in the process of shutting down the account as you saw from my last email. This phony Twitter account does not constitute a criminal violation in that no threats are made. I'm not sure if it would support a civil suit for defamation of character. I'm not an expert in the civil arena but my recollection is that public officials have very limited protection from defamation.If Ardis decides to pursue this, he'll just be adding to his list of highly-public debacles. His defensive press conference indicates he's unable and unwilling to learn from his mistakes. There's no case to be made here, especially if Ardis decides to go after Twitter itself for the actions of one of its users. But it appears Ardis has dignity to burn, even if most of it is riddled with self-inflicted wounds.
by Tim Cushing
Mon, Jun 16th 2014 3:35am
The government does enjoy installing cameras pretty much everywhere it can do so with a minimum of complaints. If it thinks there might be some controversy, it just buries the details until after the fact.
Eugene Volokh has a roundup of new places state governments are planning to install cameras -- only the government won't be buying the cameras… or maintaining them… or even installing them. That's left to the private businesses these bills are pushing additional surveillance requirements on.
Chicago Mayor Rahm Emanuel has proposed an ordinance that would compel all gun dealers to video-record sales (“to discourage traffickers and buyers who use false identification”). Presumably the video recordings would have to be kept for an extended time, since future investigations that would use the video recordings could happen years after the sale. A similar New York state bill would require that the videos be kept for one year.And all the government asks in return for its impositions is total, at-will access.
Likewise, two weeks ago, Minnesota enacted a law — with much less fanfare — that would require video- or photo recording of people who come to sell cellular phones, with each recording to be kept for at least 30 days
Recordings and images required by paragraph (a) shall be retained by the wireless communications device dealer for a minimum period of 30 days and shall at all reasonable times be open to the inspection of any properly identified law enforcement officer.New York's bill mandating surveillance in gun shops says this:
THE STORED IMAGES SHALL BE MAINTAINED AT THE PERMITTED BUSINESS LOCATION FOR A PERIOD NOT LESS THAN ONE YEAR FROM THE DATE OF RECORDATION, AND SHALL BE MADE AVAILABLE FOR INSPECTION BY A POLICE OFFICER UPON REQUEST.It's not just phone and gun dealers. Minnesota's scrap metal dealers are also included:
The scrap vehicle operator shall also photograph the seller's vehicle, including license plate, either by video camera or still digital camera, so that an accurate and complete description of it may be obtained from the recordings made by the cameras. Photographs and recordings must be clearly and accurately associated with their respective records. Any video must be shown to law enforcement, upon request.The problems with legislation like this are numerous. While many of these businesses may record these transactions for their own safety, being compelled to do so is a completely different matter, especially when it's bundled with open, warrantless access by law enforcement.
I suspect that, especially if the gun sales videorecording bills are enacted, similar laws will be proposed for sales of alcohol (which is often sold to underage buyers who have fake IDs, or to straw purchasers who are buying on behalf of an underage buyer), for sales of marijuana in places where it has been legalized, for sales of legal substances that are nonetheless potential drug or bomb precursors, and so on.Given the government's penchant for equating nearly everything with its two favorite Wars (Terrorism/Drugs), a vast cross-section of retailers will find themselves legislatively "encouraged" to oblige the government's "collect it all" excesses.
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