Canadian gold-mining company Infinito Gold Ltd. announced its intentions to go forward with a $1 billion lawsuit against Costa Rica over the retracted Las Crucitas open-pit gold mining concession in northern Costa Rica, in a statement released on Friday.
The contract was withdrawn for largely environmental reasons:
Costa Rica and the Canadian mining company have been ensnarled in a protracted legal battle over the canceled Las Crucitas project in Cutris de San Carlos, Alajuela, since environmentalists and locals decried the loss of virgin forest and health concerns over leeching chemicals contaminating drinking water.
Infinito has been rattling its saber over a potential ICSID arbitration after the company lost its appeal in Costa Rica's Constitutional Chamber of the Supreme Court, known as the Sala IV, in November 2010.
Now, $1 billion is a lot of money by anyone's reckoning. But for a country like Costa Rica, whose Gross Domestic Product (GDP) is estimated to be around $46 billion for 2012, an award of $1 billion against it would represent about 2% of the country's entire annual economic activity, in a land where 25% of the population live below the poverty line.
The being-bad-at-Photoshop arms race continues! For some reason, there appears to be a culture of "fake it 'til you make it" going on with some of our international rivals. Previous iterations include Iran's using Photoshop to ensure that everyone knows one of their new jets can't actually fly, as well as North Korea (of course) transposing several national leaders into photos to pretend like they opened a school for children (like anyone would believe that).
And now we can add China to the list, given that they're piss-poor attempt at manipulating a photo to look like leaders visited a really old women somewhere resulted in the insinuation that Chinese men have been eating their Wheaties and have turned into big, smiling giant-folk.
According to China News (via HugChina), the above photo supposedly features the vice mayor of Ningguo county and other officials "visiting" a 100-year-old woman—a very small one hundred year old woman, surrounded by a halo and giants.
Quick, someone save that happy old lady from the uber-men surrounding her! And these aren't even your ordinary, run-of-the-mill Chinese mega-men, either. They're ghost giants, as evidenced by that last guy on the right how appears to be made of a non-corporeal substance the likes of which hasn't been seen since the Ghostbusters were still employed!
Now, the image and the report have reportedly been taken down to ensure the Chinese people don't fly into a panic about the ensuing gigantic dominance, but wouldn't it be easier for the Chinese government to have actually visited this sweet old lady rather than parry the ensuing laughter over this poor propaganda attempt?
Biology has inspired artists and scientists and engineers to create all kinds of things from velcro to still life paintings. Living organisms have a seemingly endless supply of tricks up their sleeves, so why not try to use some biological mechanisms to do our bidding? Scientists can already re-create some biology by growing organs that could be used for transplants and by creating an (almost) completely synthetic cell based on a bacterium that normally infects goats (search for J. Craig Venter). Synthetic biology still has a long way to go, but it's a field that is maturing quickly. Here are just a few links on this fast-growing biotechnology.
Over the last few years, the NYPD's intrusive surveillance of the city's Muslim population has raised many concerns about civil liberty violations while simultaneously failing to turn up much in the way of terrorist plots.
Dear Acting Assistant Attorney General Samuels and Section Chief Smith:
The undersigned civil rights, faith, community, and advocacy groups request that the Civil Rights Division of the Department of Justice commence a prompt investigation under 42 U.S.C. § 14141 into the New York City Police Department’s (“NYPD”) discriminatory surveillance of American Muslim communities.
As shown by the NYPD’s own documents, for over a decade, the Department has engaged in unlawful religious profiling and suspicionless surveillance of Muslims in New York City (and beyond). This surveillance is based on the false and unconstitutional premise, reflected in the NYPD’s published “radicalization” theory, that Muslim religious belief, practices, and community engagement are grounds for law enforcement scrutiny. That is a premise rooted in ignorance and bias: it is wrong and unfairly stigmatizes Muslims, who are a law-abiding, diverse, and integral part of our nation and New York City. Unsurprisingly, the NYPD’s surveillance program has had far-reaching, deeply negative effects on Muslims’ constitutional rights by chilling speech and religious practice and harming religious goals and missions. It has frayed the social fabric of Muslim communities by breeding anxiety, distrust, and fear. The NYPD’s biased policing practices hurt not only Muslims, but all communities who rightfully expect that law enforcement will serve and protect America’s diverse population equally, without discrimination.
Under the Violent Crime Control and Law Enforcement Act of 1994 § 210401, the United States Attorney General is authorized to conduct investigations concerning “a pattern or practice of conduct by law enforcement officers . . . that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” 42 U.S.C. § 14141(a)...
As we've seen previously, the NYPD has placed blanket surveillance on entire mosques, justifying it with guidelines weakened by a former CIA officer who exploited post-9/11 paranoia to broadly expand the department's surveillance powers and eliminate built-in protection of civil liberties. This surveillance continues to this day despite an NYPD official admitting these programs have yet to generate a single useful lead or investigation.
The ACLU has drawn support across a variety of religious groups, many of which recognize that while the NYPD may be focused on Muslims now, any other religious (or political, activist, etc.) group could be subject to the same intrusive surveillance if a future attack brings with it guilt by association.
If the DOJ follows through, this will be the second time in recent months that it has weighed in on the NYPD's questionable tactics. Back in June, Attorney General Eric Holder filed a brief recommending that if Judge Scheindlin found the department's stop-and-frisk program to be unconstitutional, independent oversight should be appointed to keep the department in line. Sheindlin did find elements of the program unconstitutional and one of the remedies was, indeed, independent oversight.
As was pointed out then, the DOJ's reputation may be terrible, but one of the few areas in which it has been "aggressive and commendable" is its handling of civil rights violations by police departments. Hopefully, this will result in more of the same.
While NSA boss Keith Alexander issued a misleading denial of this morning's report of how the NSA has infiltrated Yahoo and Google's networks by hacking into their private network connections between datacenters, the NSA has now come out with its official statement which is yet another typical non-denial denial. They deny things that weren't quite said while refusing to address the actual point:
NSA has multiple authorities that it uses to accomplish its mission, which is centered on defending the nation. The Washington Post's assertion that we use Executive Order 12333 collection to get around the limitations imposed by the Foreign Intelligence Surveillance Act and FAA 702 is not true.
The assertion that we collect vast quantities of US persons' data from this type of collection is also not true. NSA applies attorney general-approved processes to protect the privacy of US persons – minimizing the likelihood of their information in our targeting, collection, processing, exploitation, retention, and dissemination.
NSA is a foreign intelligence agency. And we're focused on discovering and developing intelligence about valid foreign intelligence targets only.
Note what is missing from all of this. They do not deny hacking into the data center connection lines outside of the US. They do not deny getting access to all that data, especially on non-US persons. As for the claim that they're protecting the privacy of US persons, previous statements from Robert Litt, the general counsel for the Office of the Director of National Intelligence, have already made it clear that if they collect info on Americans, they're going to use this loophole to search them:
"If we're validly targeting foreigners and we happen to collect communications of Americans, we don't have to close our eyes to that," Litt said. "I'm not aware of other situations where once we have lawfully collected information, we have to go back and get a warrant to look at the information we've already collected."
So, for all the claims that this kind of information will be "minimized," it certainly looks like they've already admitted they don't do that.
Meanwhile, that Guardian article that has the NSA's response also has responses from the 3 other players in this drama. There's the UK's GCHQ, who apparently has partnered with the NSA in breaking into Google and Yahoo. It didn't want to say a damn thing:
"We are aware of the story but we don't have any comment."
Google, however, was reasonably furious about this story.
In a statement, Google's chief legal officer, David Drummond, said the company was "outraged" by the latest revelations.
"We have long been concerned about the possibility of this kind of snooping, which is why we have continued to extend encryption across more and more Google services and links, especially the links in the slide," he said.
"We do not provide any government, including the US government, with access to our systems. We are outraged at the lengths to which the government seems to have gone to intercept data from our private fiber networks, and it underscores the need for urgent reform."
Yahoo's response, unfortunately, was a lot more restrained and not particularly on point.
"We have strict controls in place to protect the security of our data centers, and we have not given access to our data centers to the NSA or to any other government agency."
Yeah, but the story is how the NSA got around your security. Yahoo should be a lot angrier about this. One hopes that once the technical people talk to management, the company will realize just how bad this situation is.
Hopefully, this means that Google and Yahoo will stop just focusing on getting more "transparency" out of the government concerning NSA surveillance, and will start taking a much more active role. This includes: (1) pushing back hard against government surveillance, including going to court to stop it and (2) building much more secure systems that cannot be easily compromised by the NSA.
Ken White blogs at Popehat. He's a litigator and criminal defense attorney at Brown White & Newhouse LLP in Los Angeles. His views are his alone, not those of his firm. This post is cross-posted from Popehat with permission.
And, because we here at Techdirt have had issues with Mike Rogers' office in the past, we hope that they have a dictionary and a copy of the Constitution -- though, given the comments that inspired this post, it seems like he might need a remedial refresher course.
Dateline: Washington, D.C.: Representative Mike Rogers (R-Michigan) was defiant today in the face of accusations that he had installed a small digital camera in the women's bathroom in his office at the Capitol.
In an interesting bit of timing, just as the Washington Post was breaking the news that the NSA had infiltrated Google and Yahoo's cloud data by hacking into the (stupidly) unencrypted data links between data centers, it turned out that NSA boss Keith Alexander was on stage at a Bloomberg Government Cybersecurity conference. He was asked about the report, and he tried to tap dance around it by claiming the NSA doesn't have access to Yahoo and Google's servers. The Guardian has a brief summary:
Alexander, asked about the Post report, denied it. “Not to my knowledge, that’s never happened,” the NSA director said, before reiterating an earlier denial Prism gave the NSA direct access to the servers of its internet service provider partners.
“Everything we do with those companies that work with us, they are compelled to work with us,” Alexander said. “These are specific requirements that come from a court order. This is not the NSA breaking into any databases. It would be illegal for us to do that. So I don’t know what the report is, but I can tell you factually: we do not have access to Google servers, Yahoo servers, dot-dot-dot. We go through a court order.”
But, of course, in typical Alexander fashion, he's choosing his words carefully -- and thankfully people can more easily see through it at this point, since they're getting so used to it. The report didn't say they were accessing those companies' servers or databases, but rather hacking into the network connection between their data centers. That's like a report breaking of the NSA hijacking armored cars with cash, and Alexander claiming "we didn't break into the bank." Nice try.
This whole morning, while all these stories of the NSA hacking directly into Google and Yahoo's network have been popping up, I've been at the Inbox Love conference, all about the future of email. The "keynote" that just concluded, was Ladar Levison from Lavabit (with an assist from Mike Janke from Silent Circle), talking about the just announced Dark Mail Alliance, between Lavabit and Silent Circle -- the other "security" focused communications company who shut down its email offering after Lavabit was forced to shut down. Levison joked that they went with "Dark Mail" because "Black Mail" might have negative connotations. Perhaps just as interesting, Levison is going to be releasing the Lavabit source code (and doing a Kickstarter project to support this), with the hope that many others can set up their own secure email using Lavabit's code, combined with the new Dark Mail Alliance secure technology which will be available next year.
As noted, the Alliance is working on trying to create truly secure and surveillance-proof email. Of course, nothing is ever 100% surveillance proof -- and both members of the alliance have previously claimed that it was almost impossible to do surveillance-proof email. However, they're claiming they've had a "breakthrough" that will help.
The newly developed technology has been designed to look just like ordinary email, with an interface that includes all the usual folders—inbox, sent mail, and drafts. But where it differs is that it will automatically deploy peer-to-peer encryption, so that users of the Dark Mail technology will be able to communicate securely. The encryption, based on a Silent Circle instant messaging protocol called SCIMP, will apply to both content and metadata of the message and attachments. And the secret keys generated to encrypt the communications will be ephemeral, meaning they are deleted after each exchange of messages.
For the NSA and similar surveillance agencies across the world, it will sound like a nightmare. The technology will thwart attempts to sift emails directly from Internet cables as part of so-called “upstream” collection programs and limit the ability to collect messages directly from Internet companies through court orders. Covertly monitoring encrypted Dark Mail emails would likely have to be done by deploying Trojan spyware on a targeted user. If every email provider in the world adopted this technology for all their users, it would render dragnet interception of email messages and email metadata virtually impossible.
Importantly, they're not asking everyone to just trust them to be secure -- even though both companies have the right pedigree to deserve some level of trust. Instead, they're going to release the source code for public scrutiny and audits, and they're hoping that other email providers will join the alliance.
At the conference, Levison recounted much of what's happened over the last few months (with quite a bit of humor), joking about how he tried to be "nice" in giving the feds Lavabit's private keys printed out, by noting that he included line numbers to help (leaving unsaid that this would make OCR'ing the keys even more difficult). He also admitted that giving them the paper version was really just a way to buy time to shut down Lavabit.
Janke came up on stage to talk about the importance of changing the 40-year-old architecture of email, because it's just not designed for secure communications. The hope is that as many other email providers as possible will join the Alliance and that this new setup becomes the de facto standard for end-to-end secure email, which is where Levison's open sourcing of his code gets more interesting. In theory, if it all works out, it could be a lot easier for lots of companies to set up their own "dark mail" email providers.
Either way, I would imagine that this development can't make the NSA all that happy.
If you've been following all the NSA stuff, you're used the regular claims from the NSA's defenders. The folks over at Al Jazeera were able to get the talking points that the NSA has been using in response to the Snowden leaks, and they're exactly everything we've been hearing -- with extra emphasis on playing up 9/11. My favorite talking point, described as a "sound bite that resonates" is:
I much prefer to be here today explaining these programs, than explaining another 9/11 event that we were not able to prevent.
You'll also note an awful lot of "we need to connect the dots," though they leave out the part about how having more data actually makes it harder to connect the dots. They also play up the "over 50 cases" of dealing with "terrorist events" -- a number that has since been totally debunked.
The documents are the basic talking points that Keith Alexander, James Clapper and others have been using in their various Congressional hearings. If you watched the hearing yesterday, for example, you'd notice that Clapper especially was almost always reading off the talking points even when asked questions (Alexander appears to feel more comfortable "winging it"). Given that, there's not much that's totally surprising -- we've heard all of this. But it's still fascinating to see it in black and white.
Yesterday, we wrote about the incredible exchange between Reps. Mike Rogers and Adam Schiff, after Rogers made a big production out of claiming that of course the House Intelligence Committee knew all about the NSA spying on foreign leaders. Schiff (and some others on the committee) made it clear that, contrary to Rogers' condescending claims earlier, they had no idea, despite being on the committee. However, to understand the level of dripping condescension from Rogers towards his colleagues who contradict him on the Committee, you really have to watch the video. If C-SPAN's video clipping service is working correctly (and it's crazy buggy), you should see the whole thing below (or at this link, starting with Schiff's questions to the panel, in which he makes it clear that he was not informed, and that he's not at all happy with James Clapper trying to tap dance around this by spewing a bunch of words that don't mean anything about how he tries to follow "the spirit" of the law.
The fun starts a little over five and a half minutes in when Rogers starts lecturing Schiff about not saying what Schiff knows is true, and making not-particularly-veiled claims that if only Schiff had done his homework, he'd know about it. Schiff shoots back to point out that dumping a ton of documents and insisting that he must know everything in them is quite different than directly informing him of this very serious activity, leading to a long and ridiculous lecture from Rogers that has to be watched to see the scolding father tone he adopts, all the while knowing he's full of crap, because Schiff clearly has him dead to rights. The information may have been buried somewhere, but the Committee clearly was not informed directly about these activities. If they had been, when Schiff asked his question of Clapper, Clapper wouldn't have tap danced like he did around the question. He would have just said, "We did inform you."
Here's a bit of the transcript, though you have to see the tone to believe it.
Rogers: I would argue that to say that we're in the dark is mystifying to me. Some members spend a lot more time based on their schedules, which are significant, in this Congress. But, it is disingenuous to imply that this Committee did not have a full and complete understanding of activities of the intelligence community, as was directed under the national intelligence priority framework, to include sources and methods.
Schiff: Will the Chairman yield?
Rogers: I would yield.
Schiff: Chairman, are you suggesting you and the Committee were informed of the wiretapping of foreign leaders if that report is correct?
Rogers: Well, I wouldn't confirm any specific activity by intelligence community. As the gentleman knows -- as I have highlighted -- that we have access to all sources and methods and there is lots of product to be reviewed by the Intelligence Committee, through the Intelligence Committee and through the members of the Committee. Any implication that through the reviews that this Committee would not be informed to the status that has been in question is not correct.
Schiff I'd be interested to know, Mr. Chairman --
Rogers: We would be happy to take you to the committee and spend a couple of hours going through mounds of product that would allow member to be as informed as a member wishes to be on sources and methods and all activities of the intelligence community under the national intelligence framework.
Schiff: I would just say --
Rogers: I think we need to be careful about what we talk about but I think it would be disingenuous to use the classification...
Schiff: ... I think it would be disingenuous, Mr. Chairman, to suggest we have information if we don't have it. I would like to find out just what we were informed by the intelligence community. I would also like to find out if this is in the posture that you sometimes see in litigation, where you're given a warehouse full of documents...
Rogers: Again, reclaiming my time. Reclaiming my time. This is a very unique Committee on Capitol Hill. It's the only committee on both sides of the chamber that has both military and civilian intelligence activities. That is an enormous responsibility for every member of this committee, enormous. We don't get to take personal staff from the office to assist in processing of information we may have to do as members of this committee. I think it is to the semantics of exactly who, what, when or why, if you're asking if intelligence community submits a selector to every engagement in their business to the intelligence committee, that would be ridiculous. And no one would receive information in that way, not even the Director of National Intelligence would receive it in that particular way. To know what the framework is and know what the guidelines are and know what the reporting is and go through the very significant oversight of this Committee and the review of the product, which is incredibly important to the end, and to say this Committee is somehow in the dark on intelligence activities simply is not accurate.
I think we need to be incredibly careful about making any assertions that somehow we're in the dark because that information is available in robust amounts of material in our particular Committee. It is time consuming. I get it. It's a very time consuming committee. Again, this feeds into this flame of misreporting about lack of oversight or our intelligence community is running around doing what they want to do outside of the law or any oversight is wrong. Again, I just caution members before you might make any statement to the contrary, I would argue that a significant portion of your time should be spent in the committee reviewing the materials available and made available by the Intelligence Committee accordance with the law we are charged to do. With that, Miss Bachmann.
Schiff: Mr. Chairman, can I --
Schiff: -- will you yield?
Rogers: No. Reclaiming my time. I will not. Miss Bachmann.
And, just for fun, I've left Bachmann's questions in the video if you'd like to see what was so important that Rogers had to "reclaim his time" and not allow Schiff to speak. It's a bunch of questions about just how evil Ed Snowden is, complete with making the entire panel state that Snowden is a traitor, despite not actually fitting the classification under the law. The only one who refused to play that game was James Cole who says considering the legal proceedings, he really can't comment, which Bachmann refuses to accept as an answer.
So, rather than actually get to the heart of the matter on an important question of whether or not the intelligence community actually provided this important information to the Committee, we're treated to a game of bogus name calling. Ladies and gentleman, this is "Congressional oversight" under the leadership of Mike Rogers.
Early on with the Snowden documents there had been significant disagreement over the kind of "access" the NSA had to systems at the various big tech companies -- all of which denied the kind of "direct access" that was being reported (unlike the telcos which have more or less confirmed going above and beyond to give the NSA everything it wants by tapping directly into the backbone). Back in September, one of the released docs showed how the NSA, with help from GCHQ, appeared to be conducting man in the middle attacks on Google and others' servers. The latest report, from Bart Gellman and Ashkan Soltani at the Washington Post, uses some more Snowden docs to show how the NSA secretly infiltrates servers from Yahoo and Google without their knowledge, under a program called MUSCULAR (they're not subtle with their code names, are they?).
The National Security Agency has secretly broken into the main communications links that connect Yahoo and Google data centers around the world, according to documents obtained from former NSA contractor Edward Snowden and interviews with knowledgeable officials.
By tapping those links, the agency has positioned itself to collect at will from among hundreds of millions of user accounts, many of them belonging to Americans. The NSA does not keep everything it collects, but it keeps a lot.
There's even this wacky hand-drawn diagram:
There's some evidence that Google figured this out earlier. You may remember that there were reports back in September that Google had been scrambling to encrypt the information flowing between data centers, which is exactly where the NSA hit them. It looks like someone at Google figured out what the NSA was likely doing soon after the original Snowden news broke. Not surprisingly, people at these companies are not happy about this news. When the reporters spoke to "two engineers with close ties to Google," they note that the engineers "exploded in profanity" and urged the reporters to publish that drawing above to expose the NSA.
Either way, attacking the information flow appears to have been fairly effective for the NSA to spy on an awful lot of information, often on Americans:
According to a top secret accounting dated Jan. 9, 2013, NSA’s acquisitions directorate sends millions of records every day from Yahoo and Google internal networks to data warehouses at the agency’s Fort Meade headquarters. In the preceding 30 days, the report said, field collectors had processed and sent back 181,280,466 new records — ranging from “metadata,” which would indicate who sent or received e-mails and when, to content such as text, audio and video.
It also appears that the way that the NSA is claiming this is "legal" is by only breaking into the Yahoo and Google datacenters that are outside the US, where there's significantly less oversight. That is, rather than being under Section 215 of the PATRIOT Act (the metadata collection of phone calls) or Section 702 of the FAA (PRISM and the tapping of the internet backbone from US telcos), this is done under Executive Order 12333 -- which some (especially Marcy Wheeler) have been claiming is where attention should really be paid. This latest report certainly suggests that the NSA is routing a lot of its snooping via this program -- which explains the "not under this program" language they often use around questions on 215 and 702 data collections.
The real question, now, is what Google and Yahoo do in response to this. They should continue (obviously) encrypting those weak points (and, really, everything), but they should also sue the US government. For all the talk (often from the NSA's Keith Alexander) about "cybersecurity" attacks on big internet companies, who knew that the biggest infiltrators were probably the NSA itself.
For the sake of humor, I am generally a big fan of hyperbole. Miley Cyrus is cheaper than a half-off sale at the flea market. The Chicago Cubs are more futile than a company that builds igloos in Hell. See? When you're trying to be funny, hyperbole just works. However, when you're trying to make an actual point, comparing people who have agreed to write for free on the internet to slaves doesn't work, isn't funny, and deserves an argumentative kick in the rocks. We saw this previously in a ridiculous lawsuit by writers of The Huffington Post who somehow thought that their previous agreement to write for free entitled them to untold amounts of cash.
Yet, despite the stupidity of that lawsuit, we're back on the topic again thanks to a New York Times piece that somehow conflates asking for a free written work with slavery, not calling people after you have sex with them, and the nuclear bomb (and, no, I'm not kidding about any of those three). Here are some highlights from Tim Kreider's screed against the world.
People who would consider it a bizarre breach of conduct to expect anyone to give them a haircut or a can of soda at no cost will ask you, with a straight face and a clear conscience, whether you wouldn’t be willing to write an essay or draw an illustration for them for nothing. They often start by telling you how much they admire your work, although not enough, evidently, to pay one cent for it.
Aaaaand we're off, and on shaky ground, no less. I have received numerous cans of soda and even haircuts for free in my life, but I understand what he's saying. If something has value, thou must pay for it. Which would be all fine and good if the concept of writing on the internet were a one-way street, a la a soda can. If Mike Masnick comes up to me, says he's thirsty, and asks me to simply give him my soda can so that he might drink the sugary goodness of it, I am left without my soda can and have gained nothing in return, economically speaking. However, if Mike Masnick asks me to write for Techdirt for free (which he did), and I agree (which I did) with the idea being that I'd get some pleasure from it, build up some reputation that might lead to future paid work (which it did, for Techdirt, actually), and so that I can include that work when I send out query letters to literary agents in the future (which I did), then the transaction works both ways. We both attain something of value and the price tag on my writing is only one part of the equation. In other words, this analogy sucks.
But Kreider takes this on directly.
A familiar figure in one’s 20s is the club owner or event promoter who explains to your band that they won’t be paying you in money, man, because you’re getting paid in the far more valuable currency of exposure. This same figure reappears over the years, like the devil, in different guises — with shorter hair, a better suit — as the editor of a Web site or magazine, dismissing the issue of payment as an irrelevant quibble and impressing upon you how many hits they get per day, how many eyeballs, what great exposure it’ll offer.
Well, you know what, chief, not all of us are willing, capable, or privileged enough to write silly op-eds for the New York Times. Many of us actually do value that exposure that Satan is offering us, which is why we, you know, agree to do this stuff. It seems to me to be the height of arrogance for someone who has done well for himself attempting to unite a population against what they themselves had agreed to do, on the notion that he knows better for the masses. Now for some of the fun stuff:
-This is partly a side effect of our information economy, in which “paying for things” is a quaint, discredited old 20th-century custom, like calling people after having sex with them.
-Just as the atom bomb was the weapon that was supposed to render war obsolete, the Internet seems like capitalism’s ultimate feat of self-destructive genius, an economic doomsday device rendering it impossible for anyone to ever make a profit off anything again.
-Here, for public use, is my very own template for a response to people who offer to let me write something for them for nothing...
I have to admit, that last one is my favorite. The simple irony of completing an op-ed about how you should never give away your writing for free by then giving away something you wrote for free is the kind of thing I couldn't think up. At some point when the idea formed inside my head, the synapses would all shut down, angrily insisting that something so stupid should never be put into print.
That's why this former slave is thankful that he had the opportunity to write for free, which became writing for pay, all while avoiding writing an entire op-ed with a culminating line that negates the entire thing.
We already wrote a bit about yesterday's House Intelligence Committee hearing concerning NSA surveillance. There were two sections to it: the first three hours were the top government spooks and lawmakers, and then the last half an hour or so involved three pundits outside of government (though with former government credentials). At the very very end of that, there was an absolutely incredible exchange between Intel Committee Chair Rep. Mike Rogers and law professor Stephen Vladeck (the only panelist the entire day who expressed concerns about what the NSA was doing). You have to watch the exchange to believe it, but it ends with Rogers insisting that "you can't have your privacy violated if you don't know your privacy is violated, right?" Vladeck immediately disagreed and Rogers seemed to find it astounding that anyone could agree, suggesting that it would upend the law. Watch the exchange:
If you don't watch the video, Rogers basically asks all three panelists if they think it's okay to do the kind of business records search that's currently done, and the two intelligence community apologists on the panel immediately agree. Vladeck suggests that there are caveats, and Rogers attacks him for equivocating, misattributing a quote about "give me a one-armed economist" (it was Harry Truman, but Rogers gives credit to Ronald Reagan). Vladeck again points out that the specifics matter, and notes that it's possible to agree with the concept of a program, but not the implementation of the program -- using the death penalty as a comparison. Rogers gets upset at this (bizarrely appearing to totally not comprehend the point Vladeck is making) and then finally Vladeck again points out that the process matters, and it's ridiculous to answer a substantive question about whether the concept makes sense without discussing the process, leading to the following, in which Rogers suggests there are no process questions because no one has complained:
Rogers: I would argue the fact that we haven't had any complaints come forward with any specificity arguing that their privacy has been violated, clearly indicates, in ten years, clearly indicates that something must be doing right. Somebody must be doing something exactly right.
Vladeck: But who would be complaining?
Rogers: Somebody who's privacy was violated. You can't have your privacy violated if you don't know your privacy is violated.
Vladeck: I disagree with that. If a tree falls in the forest, it makes a noise whether you're there to see it or not.
Rogers (astounded): Well that's a new interesting standard in the law. We're going to have this conversation... but we're going to have wine, because that's going to get a lot more interesting...
This is kind of astounding. According to Mike Rogers, you can apparently violate his privacy, so long as he doesn't know about it. How is it that such a person is supposedly in charge of oversight of the intelligence community? He honestly believes that as long as the NSA spies on people privately, their privacy isn't violated?
You may recall the story from a few months back about the NSA supposedly issuing a takedown over some parody NSA merchandise. The NSA later claimed that it had no problem with the parody T-shirt that was specified, but did admit that a few years ago, it had sent a cease-and-desist letter to Zazzle, the platform that many people use to make such branded content, telling them they couldn't sell any merchandise with the NSA seal, since it would be a violation of 50 USC 3613, which says it's against the law to "misuse" the NSA's logo. It turns out that the Department of Homeland Security, DHS, had sent a similar letter, focusing on 18 USC 506, saying it's a crime to "mutilate or alter the seal of any department or agency of the United States." DHS even warned Zazzle that it could be punished with fines or jail time, and gave Zazzle a link to a general search on the Zazzle site of all items labeled "DHS."
Either way, Dan McCall, who created the NSA T-shirt design which was taken down in August, using the motto "peeping while you're sleeping" has decided to sue for declaratory relief, represented by Paul Levy of Public Citizen (disclaimer: Paul has represented us in various matters over the years).
The lawsuit argues that the two cease-and-desist letters sent to Zazzle have violated McCall's First Amendment rights, which include protecting parody speech, and that the two laws cited should not be construed to forbid parodies because, well, because that's ridiculous. Furthermore, the lawsuit argues that 18 USC 506 is unconstitutional, in that the claim against altering and mutilating seals is way too broad and can, as in this case, lead to protected speech being stifled.
Defendants violated the First Amendment to the United States Constitution by
threatening to enforce 50 U.S.C. § 3613 and 18 U.S.C. §§ 506, 701, and 1017 to forbid McCall from
displaying his NSA Listens Parody, his NSA Spying Parody, and his DHS Stupidity Parody, from
placing the Parodies on products to identify the targets of his criticism, or from selling mugs, T-shirts
or other items bearing those designs to customers who want to display the items to express their own
criticisms of NSA and DHS.
In his blog post about the case, Levy also explains how Zazzle, though not a party in the suit, is really complicit in all of this, for using those single threatening cease-and-desist letters to take down future products and for not pushing back against such overly broad claims from the government. While he notes that when the government comes calling, lots of companies bend over to avoid any legal consequences, he still notes that this is the kind of situation where a competent lawyer at Zazzle should have pushed back on the government and pointed out that these letters were ridiculous (even more bizarre: Zazzle refused to share the letters with Levy, saying they would only read them aloud to him over the phone).
...it is inconceivable that the First Amendment might not protect these uses of the agencies’ shields, and the NSA’s trademark-like statute applies, by its terms, only when the challenged use “convey[s] the impression that such use is approved, endorsed, or authorized by the National Security Agency.” Although the NSA’s cease-and-desist letter specifically identified McCall's “Spying Since 1952" design as violating this statute, we should be able to expect a substantial commercial operation to push back against the implicit suggestion that somebody looking at that mug could have believed that NSA endorses it. Even though the cease-and-desist letter warned Zazzle against “any” future use of its name, initials or seal, it is even more farfetched to think that NSA would have endorsed a version of its seal that says, “Peeping While You’re Sleeping.” Consumers have a right to expect companies like Zazzle to have a thicker skin when faced with preposterous demands, and to wait for specific trademark challenges, rather than policing its service for other uses of the letters NSA, and proactively removing this sort of design in response to a cease-and-desist letter received two years before.
Happily, Zazzle faces commercial competition from others that do get tough on frivolous threats. After Zazzle removed McCall’s designs in response to threats of litigation, McCall posted them to a virtual storefront at CafePress.com. We don’t know whether CafePress has received similar threats from NSA or DHS, but based on previous experiences dealing with CafePress on trademark issues, I would expect CafePress to be more resistant to cease and desist letters.
Still, until Zazzle shows itself to be more energetic in responding to threats against political humor, parodists speaking about controversial subjects should consider voting with their feet by using other vendors.
Indeed. If you actually want a company that will stand up for your basic rights, it seems like Zazzle might not be the best option.
from the surprisingly,-spotify-is-not-the-villain-here dept
A couple of major labels and Spotify are headed for a legal showdown, but not the way anyone would first assume -- and in, of all places, Sweden, where Spotify has enjoyed tremendous success. This isn't friction between Spotify and major labels coming to a head, but rather artists taking on the labels for devouring a majority of Spotify's payouts. It goes beyond inequitable royalty distribution, though. Those bringing the lawsuit are also accusing the labels of granting themselves rights they never had and infinitely extending those they do.
Even Thom Yorke can’t pull his old Radiohead classics from Spotify, because the label has those rights. But what if that isn’t quite true? That’s the question now being tested by Per Herrey and the Swedish Musicians’ Union, Svenska Musikerförbundet. The threatened lawsuits, first reported by Sveriges Radio in Stockholm, allege that labels are not only screwing artists, but extending digital streaming rights that they simply don’t have.
Herrey points to possible legal action against Universal Music Group and Warner Music Group, both majors that have received massive advances and equity shares from Spotify while passing little on to artists.
It's been argued several times on this site that Spotify's royalty payments, which are portrayed by its opponents as insultingly low, aren't truly or completely its fault. Someone's taking a huge portion of those payouts before they hit the artists. Spotify pays out over 70% of its revenue in royalties, a percentage the labels certainly aren't willing to match. Herrey compares the payout artists receive from their labels -- which he estimates is only 6-10% of what's collected from Spotify -- to the normal radio payout, which is split 50/50. A streaming service comprised of mostly non-paying members is going to be hard-pressed to generate sizable artist incomes, but the labels' ability to grab 90% of the payments makes it impossible.
The additional accusation suggests the labels are working to make this situation even worse. According to Herrey, labels are crafting digital rights ownership out of thin air, especially on older, long-running contracts. Herrey suggests the labels should remove all digital works until these contracts can be renegotiated to deal with the shift in content consumption.
Herrey's suggestion (and planned lawsuit) can probably be traced back to Eminem's successful suit against UMG. UMG had been (and likely still continues to do so) playing terminology games in order to maximize its share of royalties from iTunes. UMG called these "sales" in order to claim 85% of the royalties. Eminem's legal team called them "licenses," which would have meant Eminem was due 50% of each sale/license. As anyone who's seen the amount of restrictions applied to your "purchase" of a track from iTunes can attest, you're not really "purchasing" these songs from iTunes -- you're merely "renting" them. Any right of first sale does not apply to most digital goods. Hence, a "license" rather than a "sale."
If UMG's shifty semantics are any indicator of common major label tactics, there's little doubt the digital rights conjured up have been been severely tilted in the labels' favor. And if Herrey's statement about the 6-10% trickle-down from Spotify is correct, then the labels are utilizing some very generous contractual language that somehow views a streamed song as a "sale." Or, perhaps, it doesn't address it at all and hopes the affected artists won't notice.
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Bitcoin shares with drones the unhappy distinction of being the subject of almost exclusively negative reports. Just as drones are usually doing bad things to people, so Bitcoins are usually helping people do bad things because of their supposed untraceability. So it makes a pleasant change to come across an upbeat Bitcoin story like this, as told by the Guardian:
Kristoffer Koch invested 150 kroner ($26.60) in 5,000 bitcoins in 2009, after discovering them during the course of writing a thesis on encryption. He promptly forgot about them until widespread media coverage of the anonymous, decentralised, peer-to-peer digital currency in April 2013 jogged his memory.
In those four years, his Bitcoin holding had become worth around $886,000 -- a rather nice gain on the original outlay. But the real moral here is not, as it might appear, that you should rush out and buy Bitcoins in the hope that they will be worth fabulous sums in a few years' time -- the continuing fluctuations in Bitcoin's value and doubts about its underpinnings make that a very risky proposition. Rather, the key thing to note is the following:
Bitcoins are stored in encrypted wallets secured with a private key, something Koch had forgotten.
Fortunately for him, Koch did manage to remember his password. But just imagine how he would have felt if he hadn't been able to recall his private key, and had meanwhile discovered that he had $886,000 worth of Bitcoins that he couldn't access. So the real moral here is this: make sure you back up all your passwords -- even the ones you think you'll never need again -- just in case.