from the you're-in-danger-thanks-to-bad-copyright-laws dept
May 6th is the official Day Against DRM. I'm a bit late writing anything about it, but I wanted to highlight this great post by Parker Higgins about an aspect of DRM that is rarely discussed: how DRM makes us less safe. We've talked a lot lately about how the NSA and its surveillance efforts have made us all less safe, but that's also true for DRM.
Section 1201 of the Digital Millennium Copyright Act (DMCA) is the U.S. law that prohibits circumventing "technical measures," even if the purpose of that circumvention is otherwise lawful. The law contains exceptions for encryption research and security testing, but the exceptions are narrow and don’t help researchers and testers in most real-world circumstances. It's risky and expensive to find the limits of those safe harbors.
As a result, we've seen chilling effects on research about media and devices that contain DRM. Over the years, we've collected dozens of examples of the DMCA chilling free expression and scientific research. That makes the community less likely to identify and fix threats to our infrastructure and devices before they can be exploited.
That post also reminds us of Cory Doctorow's powerful speech about how DRM is the first battle in the war on general computing. The point there is that, effectively, DRM is based on the faulty belief that we can take a key aspect of computing out of computing, and that, inherently weakens security as well. Part of this is the nature of DRM, in that it's a form of weak security -- in that it's intended purpose is to stop you from doing something you might want to do. But that only serves to open up vulnerabilities (sometimes lots of them), by forcing your computer to (1) do something in secret (otherwise it wouldn't be able to stop you) and (2) to try to stop a computer from doing basic computing. And that combination makes it quite dangerous -- as we've seen a few times in the past.
DRM serves a business purpose for the companies who insist on it, but it does nothing valuable for the end user and, worse, it makes their computers less safe.
If you watch pets closely enough and for long enough, you might get a sense that animals can understand certain cues from people and that they sometimes try to communicate their wishes to people. Certainly not all pets are intelligent, but it's a common experience for many people. Wild animals aren't so different from their domesticated cousins, so it should maybe not be surprising that various wild animals are intelligent in some ways. Here are just a few links on the growing evidence of advanced animal cognition.
This is hardly surprising, but it appears that in the wake of the feds taking down the "dark marketplace" Silk Road and arresting its alleged creator Russ Ulbricht, replacement marketplaces quickly sprung into place to try to take its place. This was exactly as we predicted. A few of the markets have come and gone (usually associated with scandals), but it appears that the one that has stuck around is "Silk Road 2.0" -- and it's actually now larger than Silk Road ever was, in terms of the amount of products being offered. The article linked above, from Coindesk, notes that, somewhat ironically, the reason why Silk Road 2.0 seems to be standing out above the others is because it's worked hard to establish trust.
This effect was likely boosted by sensible policies at Silk Road. Most significantly, soon after February’s hack, the site’s operators announced that they would pay back bitcoins lost by customers.
Silk Road’s moderator Defcon said at the time: “We are committed to getting everyone repaid even if it takes a year.”
In anonymous drugs marketplaces, as in any market, confidence is key, it seems.
That's not to say Silk Road 2.0 is going to stick around -- there are plenty of reasons to think it won't. But, in some ways, you wonder if this is a kind of Napster moment all over again. After the original got shut down, a series of replacements all came about vying to take its place, leading to some interesting innovations -- even if those who wanted to shut down the original decried how awful and illegal each new version was.
It's no secret that the USTR has been pushing for copyright maximalist policies over the past few years (mostly done by a guy who recently went through the revolving door to become an MPAA lobbyist). However, one thing they keep claiming is that they're only looking to get other countries to match existing US laws, rather than expand them. That's clearly untrue if you look through the actual language being negotiated (only available via leaks). But, even so, it's pretty clear that the USTR is pushing an extreme maximalist approach. Last week, it released its latest Special 301 report, in which it names which countries are "naughty" about intellectual property. "Naughty" is not defined by any objective standard. Rather, the USTR asks various industry lobbyists to tell them which countries they dislike the most, and the USTR rewrites it into the list. The Special 301 process has long been a complete joke that even many maximalists recognize as silly (we heard the former head of the US Copyright Office once mock it).
The latest version of the report is more of what we've come to expect in previous reports. China has been naughty. India and Spain have been called out of class for a special extra review. Blah blah blah. But, it also notes that both Italy and the Philippines were removed from the Watch List "in recognition of their intellectual property rights accomplishments." Both countries have certainly become much more aggressive on copyrights recently -- and they've done so by being a lot more aggressive than the US. In fact, as we've been reporting, Italy made a dangerous move to allow an administrative agency to issue censorship bans on websites without any judicial process. And, in fact, it's already begun issuing questionable death sentences on sites, forcing ISPs to block access.
If this sounds like the approach originally considered in SOPA (actually, it's going even further than that), that was then massively rejected by the public, you'd be exactly right. So you would think that the USTR would, perhaps, chastise Italy for such an abuse of intellectual property for censorship in a manner that the American public (who the USTR is supposed to represent) have rejected. But, nope. The USTR praises this very approach:
Italy is removed from the Watch List in the 2014 Special 301 Report in
recognition of the Italian Communications Regulatory Authority’s (AGCOM) adoption,
on December 12, 2013, of long-awaited regulations to combat copyright piracy over the
In other words, here you have the USTR basically admitting that it approves of countries moving to an approach even more extreme than SOPA. Of course, the reality here is pretty transparent. If Italy and others implement SOPA, down the road, it can be negotiated into various international agreements, so that the US will claim that it has to implement SOPA to "comply with our international obligations." It's been done before. That's exactly how we got the DMCA. Congress initially rejected it, and so Bruce Lehman specifically went to WIPO to get the DMCA put into the 1996 Copyright Treaty... and, voila, two years later Congress said it had to pass the DMCA to comply with that treaty.
The USTR has long been a supporter of maximalist policies. Praising Italy for implementing an even more extreme version of SOPA just highlights how little concern the USTR has for the interests of the American public. Instead, it appears almost entirely focused on the interests of the most powerful lobbyists (who, not surprisingly, are also the USTR employees' likely future employers).
We wrote yesterday about Congress suddenly lurching forward with two competing NSA reform bills: the USA Freedom Act from Rep. Jim Sensenbrenner and the House Judiciary Committee and the FISA Transparency and Modernization Act from Reps. Mike Rogers and Dutch Ruppersberger and the House Intelligence Committee. As we noted, the USA Freedom Act -- which had been the general consensus choice as the best bill for actually stopping the worst of the worst NSA surveillance (while still not fixing everything) -- was actually being watered down by Sensenbrenner's manager's amendment.
Marcy Wheeler has been digging in and highlighting just how badly the bill has been weakened, and has now started calling it the USA Freedumb Act, noting that it's stripped out nearly all of the good stuff, basically wiping out most of the protections for you and me, but making sure that the telcos are well protected from any lawsuits that might emerge over them handing all of our info over to the government. The bill also wipes out the transparency requirements that the tech companies had pushed strongly for.
The problem then, becomes something of a political one. One of these two bills is likely to move forward, and both are pretty bad at this point, though USA Freedom is marginally better. Do you support a marginally better bill in the hopes of blocking a really bad bill? Or do you hope (with little chance of it happening) to block both bills and pray for a magical third solution that actually does something useful? It's a pretty blech situation all around.
One of the tricky parts of bills like these, which adjust the language in existing bills, is that merely reading the bills alone isn't nearly enough, because they're amending existing language, and pointing to various places. You have to put it all together to figure out what's really going on. Wheeler, again serving a tremendously important role, is attempting to do that, showing how Section 215 would look under the manager's amendment under USA Freedom. This suggests that a big problem is the lack of some key definitions -- with "selection term" being one which might actually create a loophole for the NSA to drive a surveillance barge through.
One hopeful idea is that during tomorrow's markup, someone can actually get some amendments through that actually defines these undefined terms in a way that actually limits the NSA's powers (and potentially bringing back some of the transparency requirements). Right now it's not clear if that will happen, though there's typical political horse trading going on in the back rooms. Still, a good definition (and there's a chance that any definition would be bad...) would go a long way towards taking the USA Freedumb Act back to being the USA Freedom Act.
from the what-do-you-give-industries-that-have-everything? dept
One of the rules of public speaking is: know your audience. You can hold people's attention better and garner support by following this rule. This doesn't mean you need to prostrate yourself before them and give them exactly what they want, however. Once you do that, you're just preaching to the choir, like Vice President Joe Biden and Rep. Robert Goodlatte did recently.
Here's the pitch:
Vice President Joe Biden told members of the tech and entertainment industry that intellectual property protections need to be bolstered to account for changing technologies and foreign threats.
That's a pretty delusional assumption on Biden's behalf. There's no indication that "bolstering" IP laws is the only route worth taking, especially when considering "changing technologies." Stronger IP protection isn't a panacea. It's little more than legislatively pleasuring overly-satiated incumbent industries.
But every choir needs a preacher, especially this one.
American creativity needs protections at home and abroad to thrive, he said, speaking at an event hosted by the Motion Picture Association of America and Microsoft.
Give the people what they want to hear. That's the real message Biden is sending. Lifetime plus 70 years still isn't enough protection. 20-year patents (plus extensions triggered by any number of variables) isn't enough protection. Trademark forever isn't enough protection. ICE partnering with the MPAA to play copyright cop isn't enough protection.
But enough about the domestic front. The other "obstacle" these industries face on their way to record sales numbers is "weak" protections abroad.
In addition to benefitting American creators, other countries would benefit from having stronger intellectual property protections, he continued.
“Until they clamp down on copyright infringement … those nations will remain second-rate powers, unable to nurture that environment that enables home grown innovation.”
Oh, sweet lord. Trust Daddy Yankee. The First World is the First World because copyright lasts well over 100 years in most cases. All of you "second-rate" countries need to lock IP the fuck down if you ever want to make something of yourselves. Look at all this condescension! Play by our rules if you want to succeed, Biden says, without offering anything in the way of evidence.
You can practically hear the "amens" from here. Of course Microsoft and the MPAA want to hear the US will shame, cajole, threaten or TPP every other country into compliance. Might = right, and the US wields the mightiest IP laws of all.
Ultimately, the U.S. needs to have laws and business models that protect intellectual property, Goodlatte continued.
“We’ve got to convince consumers that they’ve got a long term investment in paying something,” he said.
“If you don’t reward the creators, you’re not going to get the creativity.”
The US has "laws and business models that protect intellectual property." Does he actually believe the US doesn't? What Goodlatte envisions is some sort of IP utopia where nothing is ever stolen infringed and incumbents are allowed to return to their profit-margin heydays of physical goods and exorbitant profit margins. The MPAA simply isn't thrilled with the options that do exist, with the attendant irony being that it has had a hand in the creation of these suddenly inadequate laws.
But Goodlatte goes further and blames those who pay for content for not paying enough, or often enough. Stupid consumers, Goodlatte says, why don't you just make everyone rich(er)? If you're not going to buy DVDs for $20-25 and CDs for $15-20, then the whole creative system will just collapse. At some point. In the future. Presumably.
Napster killed everything off in 1999, according to RIAA lawyers, and since then, it's been a real struggle to find music being made or movies being produced or books being written, said no one outside of the incumbent industriesever. The world is full of creative works, which are being generated at a pace faster than any time in history. Technological advances have made every computer a recording studio/production studio/publishing platform, and yet somehow "technology" is pointed out as the entity that destroyed creativity.
The MPAA wants you to believe that without its help -- and its lobbied-for IP laws -- no one would make movies. Microsoft wants you to believe that other countries are destroying its business, while it retains lucrative contracts with government agencies and controls the most widely-used software in the business world. Won't someone step up and give these poor souls a hand in their fight against third-rate countries with lousy IP laws and even worse extradition policies?
And up come BIden and Goodlatte's free hands, signaling their intent to browbeat the rest of the world into deploying the same crappy IP laws that gut the public domain, block affordable generic drugs and generally make it that much harder for our "second-rate" brethren get a leg up in the international economy.
With all the hand-wringing over the FCC and net neutrality, the folks over at Mozilla have jumped into the fray, offering the FCC another possible path. Much of the fight is over whether or not the FCC should "reclassify" broadband providers under Title II of the Telecommunications Act, thereby making them "telco services" (subject to common carrier rules) or leave them under Title I as "information services" (not subject to common carrier rules). The problem is that even though they almost certainly should be telco services, the political shitstorm it would create to reclassify means that no one in the FCC seems to have any interest in kicking off that particular political battle (not to mention that the FCC would be required to have a very good reason for why it's changing the designation -- beyond just "we think it's better.")
Mozilla's plan is a somewhat crafty attempt to avoid the worst of the political mess that reclassification would cause, by arguing that there are two separate markets: the markets for broadband providers to end users (i.e., our own broadband bills) and then a separate market for the relationship between internet companies (what Mozilla is calling "edge providers") and the broadband providers. Mozilla is saying that since these are separate markets, the FCC could reclassify just the connection between internet companies and broadband providers as telco services, and leave the last mile setup unchanged as an information service. Thus, it's arguing that the transit market more accurately reflects a telco service, and thus would be much easier to reclassify. In a sense, this would also be a way to attack the interconnection problem, which is where the net neutrality debate has effectively shifted.
As Stacey Higginbotham notes, this is a way that Mozilla is more or less calling FCC boss Tom Wheeler's bluff concerning his willingness to use Title II reclassification -- opening up a way to do so with (just slightly) less political fallout (and probably a more legally defensible argument in court for why it's reclassifying). Karl Bode is reasonably skeptical that Wheeler or the FCC would ever actually go this route, given the general "lack of spine" the FCC has shown for years on these issues. On top of all that, Wheeler himself still doesn't seem willing to admit (publicly, at least) that the fights over interconnection and access are related to the net neutrality problem, so he'd have to make that leap before necessarily agreeing to try this path.
Still, that doesn't mean it's a bad idea. In fact, by making it just slightly more feasible both politically and (importantly) legally, there's a chance that maybe, just maybe, the FCC will seriously look at this option. I'll agree that the probability is still quite low, but it's not zero. There do appear to be folks in the FCC who have been desperately seeking alternatives to the current, unpalatable options on net neutrality, and Mozilla's suggestion offers a path that is less politically and legally fraught than full reclassification. It would still be a massive leap, and would require an FCC with a spine (which makes it unlikely), but it's just that much more likely than full reclassification to make things interesting.
New NSA boss Admiral Mike Rogers (once again, a different guy than NSA "overseer" and "chief #1 fan" Rep. Mike Rogers) has kicked off his new job by significantly understating the current predicament of the NSA with regards to its relationship with the public. In fact, count the multiple understatements in his comments:
“I tell the [NSA] workforce out there as the new guy, let’s be honest with each other, the nation has lost a measure of trust in us,” Admiral Michael Rogers told a conference of the Women in Aerospace conference in Crystal City, Va.
"A measure of trust." I guess that depends on exactly what "measure" you're talking about, but I'd start with a fairly large one, and then go up from there. And then up some more.
In the future, he said, “If we make a mistake, you will hear about it. That’s my job as director and I have no problem with it. ... We are not going to hide our mistakes.”
Yes, the director of the agency which once denied its own existence and was referred to as No Such Agency is claiming the agency won't hide its mistakes? Pretty much the only thing that the NSA does is hide its own activities. That's its core competence. Hiding everything that it does, which all too frequently includes its mistakes.
“The whole media leaks issue as we call it, has caused quite a stir,” said Rogers, who was sworn in as director of NSA and assumed command of U.S. Cyber Command at the beginning of April.
"Lost a measure of trust," "media leaks issue," "quite a stir." Yes, Admiral Rogers is the master of the understatement.
And, for all the talk about how the NSA won't hide from its mistakes, rather than taking responsibility for its mistakes, Admiral Rogers takes the easy way out: blame the media!
Rogers didn’t lay complete responsibility at the doorstep of the NSA: He blamed public mistrust on the way the newsmedia had framed the issues raised in the Snowden revelations.
“From my perspective the debate and the dialogue to date have been very uneven,” he said.
“Your neighbors are saying to you: ‘Man, I’ve been listening about you on the TV and reading about you in the papers and I had no idea what a bad person you are,’” he joked.
That's a joke?
He said the NSA and its staff had to work to “earn and sustain” Americans’ trust, but could not be too open about the work of the ultra-secret agency, which specializes in electronic eavesdropping and other surveillance using the latest high technology.
Wait. I thought he was just saying that the NSA wouldn't hide from its mistakes any more (note that he has still yet to admit to a mistake, but instead, blamed the media for everything).
“I believe in transparency and I will be as transparent as possible, but I also have to be mindful that in doing so I cannot undermine the specifics of what we’re doing” to protect the country, he said.
“To do that [be transparent] I have to get out of my comfort zone,” he acknowledged. “I have to walk that tightrope.”
So, he doesn't know how to be transparent, but he believes in transparency.
To sum up, Admiral Rogers appears to be saying that the NSA lost some trust because of a "media leak" which caused "a bit of a stir," and because of that he's going to embrace transparency and not hide from his mistakes. But... at the same time, he won't admit to a single mistake, and it's really all the press's fault for misreporting on things that need to be kept secret. And, also, he believes in transparency so much that he admits he isn't comfortable with transparency, and if he's actually transparent, we might all die.
That's not exactly going to win back any of the "measure" of trust the NSA lost there...
from the you-can't-fix-stupid,-you-can-only-assign-it-to-desk-duty dept
When the appeal to authority fallacy doesn't work, try appealing to ludicrousness. That seems to be the M.O. in play here. NYPD officers arrested a bicyclist for running a red light, but that arrest wasn't effected until the bicyclist attempted to film the interaction. Here's all ten seconds of it before the cop shut the arrestee's impromptu shooting down.
I was told by another officer while in the car that recording a police officer was illegal because people are using iPhones as guns and shooting cops through the camera lens...I told him that I have the right to be recording a cop and he said that there were incidents, specifically in uptown Manhattan where a kid shot a cop with his iPhone. Straight face. Very serious.
Now, it's true that recording footage is often slangily referred as "shooting footage," and that cops are increasingly on the receiving end of these types of "shootings." But there has yet to be any evidence produced that indicates phones and cameras are being converted into guns on any sort of mass scale or that these new hybrids are so common that this "fear" has a rational basis.
A kid may have "shot" a cop with his iPhone, but without any data to back up this claim, the only thing taking a hit was the officer's mistaken belief that public service is afforded an expectation of privacy. Cops telling citizens this sort of cop-centric urban legend to defend the trampling of the First Amendment indicates that they believe citizens are idiots.
Paybarah, meanwhile, spent 13 hours in lockup over a red light infraction. Well, not entirely. By the time the cop was finished effecting the arrest of the person holding the theoretically weaponized iPhone, charges of resisting arrest, obstruction and criminal mischief had been added -- charges that are just as malleable as cops' minds.
Cops walk or drive by plenty of people holding "weapons" in plain sight, all of them unlicensed and potentially deadly. An overwhelming majority of the public wouldn't even consider leaving the house without being "strapped," and yet, months and years go by without cops being shot in the face by iGuns. Perhaps the police chalk up this low rate of deadly incidents to their expedient neutralization of camera gun wielders. The price of freedom is eternal vigilance and all that, and the cops can't be expected to protect the freedoms they'll take from you if they're constantly being "shot" by armed citizens.
Better safe than sorry -- that's the real intent of the Constitution. An officer getting home safe (and unrecorded) at the end of every shift is a far worthier goal than the vague rights pre-supposed to idiot citizens by a handful of amendments.
Maybe the cops should switch out their service pieces for deadly cameras -- you know, in order to keep up with "the streets" in the arms race. That way, the next time they get drunk and start shooting, the end result will be nothing more than a bunch of shitty Instagrams.
Last Thursday, we wrote about Larry Lessig launching the MAYDAY Citizens' SuperPAC, an attempted "moonshot" to crowdfund a SuperPAC with the long term goal to elect politicians to Congress who will be dedicated to ending the power of money in politics. It is, as we noted, the SuperPAC to end all SuperPACs. The structure of the plan is interesting in that it's a staged approach explained on the Mayone website. The first two "test" stages happen this year, with the first goal being to raise $1 million by the end of May, at which point Lessig will get someone (who almost certainly is already lined up) to donate another $1 million. Then they launch stage 2 for June, which is an attempt to do the same, but at $5 million (with a further matching $5 million). If both of those work out, the SuperPAC will then have $12 million, which it will use in 5 races for the mid-term elections this year. And, with that in place, the goal will be to launch a much bigger crowdfunding effort for 2016. Many people seemed to misunderstand the original plan, thinking that this $12 million part was the moonshot. It's not. It's a test flight.
Anyway, the first stage of the test flight is just to get to that $1 million mark, and it's worth noting that here we are on May 6th, just five days into the effort, and the MAYDAY Citizens' SuperPAC is already more than halfway to its goal. That is, they've already hit the $500,000 mark less than a week into the effort. Will that be enough to hit both of the 2014 goals? That's tough to say, but as an initial effort, it sure seems like a very nice start, and almost certainly goes way beyond what many people expected would happen. Still, this is just the start. A moonshot is inherently risky, but the first week has been tremendously encouraging.
We've definitely seen musicians overreact to the threat of infringement in all sorts of bizarre ways, but this may be the most extreme. Some Pashtun musicians in Pakistan are now claiming that piracy is worse than the Taliban -- and that includes a musician who the Taliban tried to kill. This is, of course, crazy. The Taliban, somewhat famously, has banned music in places where they are in control. In fact, just a few months ago, the WSJ had a big article explaining how the Taliban was directly targeting and silencing Pashtun musicians. It explains the real reasons for the problems for Pashtun musicians:
For centuries, Pashto musicians such as Mr. Alam were based in Dabgari Bazaar in Peshawar's ancient, walled inner city. Music shops lined the top floors of old two-story buildings with wooden balconies. The ground floors housed merchants who sold household material such as woven beds and embroidered cushions for newlyweds.
"The place was full of music shops—it was like a packed train," said 72-year-old Ustad Ahmad Gul. A musical prodigy who recorded his first tracks for Radio Pakistan when he was 8 years old, Mr. Gul had a shop in Dabgari for 18 years.
But amid the new climate of intolerance, the neighborhood's residents took the initiative to start expelling the musicians from Dabgari in 2004, said Mohamaed Ershad, an elderly shopkeeper there who sells cotton.
The musicians "had changed—they were no longer the old respected artists," complained Mr. Ershad, who at the time had rented his top floor to a musician. "There was dancing here."
When the musicians resisted leaving Dabgari, shops were set on fire and musical instruments flung to the streets. Police also barged into Nishtar Hall, the city's premium space for performing arts, during a concert and kicked the microphones as a live audience watched.
So, forgive me for thinking that, perhaps, the Taliban is a hell of a lot more responsible for the problems of Pashtun musicians than "digital piracy." And yet, that's not what people in the article linked above are claiming.
Yousafzai, 44, has invested his life in Pashtun music, which is known for both its stirring and calming melodies as well as its emotive folk songs.
In 2008, he survived an assassination attempt by the Taliban in his hometown of Malakand. But now he maintains that the militant group which considers music and entertainment un-Islamic is the least of his worries.
I have no doubt that it's difficult to be a Pashtun musician these days, but to blame it on piracy seems ridiculous given the circumstances. Even if there has been an increase in piracy, it seems that much of that is likely because of the Taliban going around, killing people for dancing and threatening to blow up music stores if they don't close down.
I recognize that "piracy" is an easy scapegoat, but it hardly seems like the appropriate one in Pakistan.
Of course, guess who is helping to spread the myth that Pakistaini piracy is the problem? Why, it's the US government, of course, in the form of the USTR! In its latest Special 301 report, it complains that Pakistan hasn't cracked down on piracy, and that its law enforcement should have more power to go after pirates even when the rightsholder isn't complaining.
Widespread counterfeiting and piracy, particularly book and optical disc piracy, continue to present serious
concerns for U.S. industry. Pakistan should ensure that its enforcement officials can exercise ex
officio authority without the need for a formal complaint by a rights holder, and should provide
for deterrent-level penalties for criminal IPR infringement. Pakistan should also take the
necessary steps to reform its copyright law to address the piracy challenges of the digital age.
Again, of course, if the US hadn't been so instrumental in helping the Taliban become more powerful in Pakistan over the last decade and a half, perhaps more music stores would have remained open and piracy wouldn't be such a big deal. But, no, of course the answer must be to push for stricter copyright laws. I'm sure that's a major priority for the Pakistani government right now...
Just the fact that this bizarre article claiming piracy is worse than the Taliban is coming out right at the same time as the Special 301 effort raises questions. It certainly sounds like the start of a concerted campaign to push for stricter copyright laws in a country that should be focusing on a lot of other things right now.
We kind of expected this to happen, but after a long process in which the Australian Law Reform Commission (ALRC) carefully reviewed all sorts of proposals and evidence on copyright reform, and released some sensible proposals, Australia's Attorney General (who is also its Arts Minister apparently), George Brandis, has ignored all of it, preferring to only listen to a Hollywood front group, leading him to push for a three strikes plan and censorship in an attempt to "protect" Hollywood. He does this, even though some of the best research on how terribly ineffective three strikes programs have been comes from Australian scholar Rebecca Giblin.
In other words, despite lots of careful research by independent parties, and plenty of scholarly work to inform the debate, Brandis has decided to ignore all of it, and go with what the MPAA is telling him to do -- and yes, the "Australian Screen Association" is actually run by folks in Hollywood (though it changed its name from AFACT to ASA to try to hide that).
For years, our biggest complaint with copyright policies is the fact that so much of it is entirely faith-based. The movie and recording industries go on big emotional pleas about how "piracy" is destroying their industries (despite record output), and insist that the reason is piracy -- ignoring tons of evidence that this is not the case. There is no doubt that these industries are facing serious transitions, but time and time again, we've seen that those who embrace the transition and (here's the key part) provide more of what the public wants in a convenient fashion tend to do better than they did before. At the same time, merely ratcheting up enforcement and censorship creates massive unintended consequences and little actual benefit for the industries who push for those policies.
Australia's decision to cave to Hollywood on this will be cheered as a victory by the MPAA and its various supporters, but it's a massive loss for everyone. Promoting censorship along with anti-innovation and anti-consumer policies are no way to embrace the future.
from the transparency-is-only-for-when-you're-trying-to-get-elected dept
Adopting a tactic that has been used by officials ranging from Sarah Palin to staffers of New Jersey Gov. Chris Christie, aides to New York Gov. Andrew Cuomo are sending emails from private accounts to conduct official business.
I know because I got one myself. And three other people who interact with the governor's office on policy or media matters told me they have too. None of the others wanted to be named.
The tactic appears to be another item in the toolbox of an administration that, despite Cuomo's early vows of unprecedented transparency, has become known for an obsession with secrecy. Emailing from private accounts can help officials hide communications and discussions that are supposed to be available to the public.
"Government business should never be conducted through private email accounts. Not only does it make it difficult to retrieve what is a government record, but it just invites the suspicion that a government employee is attempting to evade accountability by supervisors and the public," said Christopher Dunn of the New York Civil Liberties Union, a frequent requester of records under the state's Freedom of Information Law.
Emailing from private accounts also may violate state policy. State employees are not to "use a personal email account to conduct State business unless explicitly authorized," according to a policy bearing the governor's name published by the Office of Information Technology Services.
The Cuomo administration declined to comment on whether any employees are authorized to use private accounts.
Back when he was running for governor, Cuomo pledged, "We must use technology to bring more sunlight to the operation of government."
The governor himself uses a Blackberry messaging system that does not save messages to communicate with aides, the Daily News reported in 2012. Under the Freedom of Information Law, those records would typically not have to be released because there is an exemption for internal deliberative material.
But emails with anyone outside of the administration – such as lobbyists, company executives, or reporters – usually have to be made public upon request. It is for those communications, with people outside the administration, that private email accounts have been used.
Last year, I was poking around on a possible story and filed some public records requests that sought emails from Director of State Operations Howard Glaser, a top Cuomo adviser. One day in October, just hours after filing a request with the governor's office, an email appeared in my inbox from Glaser himself.
The email, inquiring what I was working on, was sent from a @glasergroup.net address rather than a government account. The note had a signature line about not using the email address for official business (even though it appeared to be doing just that). My interest was piqued.
So I filed a request under the state's Freedom of Information Law, asking for all records sent to and from Glaser's private account. It is not supposedto matter if an email is sent from an official account or a private one: If it pertains to government business, it typically has to be released.
A couple of months later, the Cuomo administration responded with a terse denial: "Please be advised that the New York State Executive Chamber has conducted a diligent search, but does not possess records responsive to your request."
I appealed, noting that I had in my possession a record responsive to the request – Glaser's email to me – and included it as an attachment.
The administration upheld its original denial, now citing a retention issue.
"[T]he fact that this record is in your possession does not mean that the Chamber failed to produce a responsive record in its possession. Emails and certain other correspondence are not required to be preserved indefinitely," the March letter said.
When I asked about the email this month, Cuomo spokesman Rich Azzopardi took a different tack, now disputing that Glaser was emailing me in his official capacity at all and calling the email "informal." "It would be inaccurate to characterize Howard's email as official business – as he noted, your official business was being handled by the FOIL office, not him," Azzopardi said.
But I have no personal relationship with Glaser, and my Freedom of Information Law requests focused only on his activities as a state official. When I recently asked Glaser about his email practices, he said, "I don't use personal email to conduct official business." He would not say how he defines "official business."
In its letter denying my request for emails from Glaser's private account, the administration cited the general retention policy of the State Archives. That policy says that "many email communications are not records and are therefore suitable for immediate destruction" but also that those emails which are records must be preserved.
So how does one determine which emails are "records"?
The governor's office seems to take a particularly narrow view. The governor's policy says that emails are only "records" if they are formal documents like press releases and nominations. Azzopardi, the Cuomo spokesman, said: "Official email is not required to be retained unless it meets the definition of a particular kind of record (eg – contract), consistent with the State Archives policy."
But the Archives, which Cuomo's office itself cited, takes a more expansive view, even as state law gives the governor leeway to determine which records should be kept.
Quoting the official definition of records, Archives spokeswoman Antonia Valentine said an email is a record if it is created "in connection with the transaction of public business (and provides) … evidence of the organization, functions, policies, decisions, procedures, operations, or other activities (of an agency)."
In practice, Glaser seems to be either eschewing his official email account or promptly deleting messages of substance. When I asked for a 10-day sample of emails from Glaser's official account, I got back little actual communication: 147 pages that are largely filled with newsletters, press releases, and the occasional terse email to set up a phone call.
The use of private accounts can result in even more roadblocks when an official leaves the government. (Glaser is reportedly leaving the administration in June.)
The issue has come up before.
In 2007, executives from the insurance giant AIG filed a public records request with the Office of the Attorney General, seeking, among other things, former Attorney General Eliot Spitzer's communications with the press from the period when he had sued the insurance giant. That request was resisted for years by Spitzer's successor as attorney general: Andrew Cuomo.
While Cuomo's office eventually released emails sent from official accounts, it maintained that Spitzer's use of a private account put any of those emails beyond its reach.
"[T]he reality is that the Office of the Attorney General lacks access to this account and possession of whatever e-mails it may contain, thus rendering them beyond the scope of petitioner's FOIL request both practically and legally," Cuomo's office said in a 2009 court filing.
A judge ruled against the attorney general's office, which has appealed. Seven years since the original request, the case is still in the courts and Spitzer's private email account – which he was known to use in his capacity as a state official – has never been searched for records.
Lawyers for Spitzer joined the case this year, arguing in a March filing that because Spitzer is now a former employee and a private citizen, the Freedom of Information Law doesn't apply.
Beyond the governor's office, the state is reportedly moving toward an email system that would automatically delete emails after 90 days except for those marked by users to save.
It's not clear how that process would work or how the state will ensure that records are not destroyed. The Office of Information and Technology Services declined to provide the memo describing the new policy, requiring that I file a formal public records request to get it.
Transparency advocates have criticized 90 days as too short a period because emails may only become relevant months later after a scandal or other event.
A document on the IT office's website references the possibility in a state email system for "recovery of deleted mailbox contents for the length of the retention period" – another capability that would not exist for officials using private accounts.
Across the river in New Jersey, private email accounts are at the center of the Bridgegate scandal.
The infamous "Time for some traffic problems in Fort Lee" email was sent from a Christie aide's Yahoo account to another official's Gmail account. That tactic held off public access to the email for a time.
In December, the Christie administration claimed it did not have records in response to a request from the Record of Bergen, N.J. The emails became public later, only after the officials were subpoenaed by the state Assembly.
If you have gotten emails from the private account of an official in the governor's office or other state or city agencies, email me at firstname.lastname@example.org.
Reposted from ProPublica via its Creative Commons (BY-NC-ND) license.