US District Court Judge Beryl Howell said at a hearing Friday morning that absent an objection by government attorneys, the court would post to its website next week a list of all case numbers from 2012 in which federal prosecutors in Washington, DC applied for an order to install a pen register or a trap and trace device.
This is a response to a petition by Leopold and Vice to unseal court dockets containing electronic surveillance affidavits, orders, etc. The step forward towards more transparency is welcome news, but it appears the wheels of justice aren't grinding any faster. This petition was submitted to the court in 2013.
Default mode for nearly any case involving law enforcement surveillance is pitch-black darkness. The government asks for cases to be sealed with alarming (and annoying) frequency, often claiming the potential exposure of law enforcement means and methods would be detrimental to the business of catching criminals. This makes no sense considering the technology used is decades old and the methodology has been common knowledge for nearly the same length of time.
And yet, these requests are granted more often than not. Howell's district (Washington DC) presides over an extremely high percentage of sealed cases.
That traditional aversion to court secrecy has been overcome in the last few decades. To take but one example, the case name In re Sealed Case first appeared in 1981; it is now the most common case name on the D.C. Circuit Court of Appeals docket.
That may be changing. In addition to cutting loose a list of 2012 case numbers, Howell is looking to prevent the government from relying on the DC district to rubberstamp its secrecy requests.
At Friday's hearing, Howell approved a plan that would lay the groundwork for the systematic review and unsealing of a large volume of federal court documents related to the government's use of electronic surveillance.
This is a process that should have been put into place years ago. And, if implemented, should be spread to all federal court districts. The government asks for dockets to be sealed because it doesn't want to tip off those who are being surveilled. Fair enough, but that doesn't explain why dockets remained sealed for months or years after investigations have been closed.
Howell is asking for a response from government officials, so there's a chance it will still be months or years before the list of 2012 sealed cases is released. But if the review process changes (i.e., there actually is one), then indefinite docket sealing will no longer be the presumption.
Documents provided by Outside Legal Counsel show the department seized the Ostipow’s 1965 Chevy Nova SS on April 24, 2008, when the vehicle’s mileage was 73,865. [Sheriff William L.] Federspiel, who signed the vehicle title transfer form, sold the partially restored muscle car over a year later on June 4, 2009, for $1,500.
The vehicle’s title certificate filled out by Federspiel around the time it was sold says the mileage was 130,000 — 54,000 miles more than when the department seized the car.
The backstory to this seizure and extended joyride starts at the plaintiff's farm. In 2008, the sheriff's office obtained a warrant to search a second house on the Ostipow's property -- one in which their son lived. In the house, deputies found marijuana plants and seeds. The Ostipow's steadfastly maintain they knew nothing about their son's illegal activities. Presumably, they allowed him to live his own life in a house located some distance away from theirs. [Photo courtesy of Outside Legal Counsel]
Instead of only seizing the illegal plants and seeds, deputies seized essentially everything from the farmhouse, including, oddly, dozens of animal mounts being kept long-term at the farmhouse by Gerald because Royetta, his wife, simply didn't like these mounted animals in the main house.
But that is not all the deputies seized. The deputies also went out to outbuildings of the farmhouse and seized all the equipment, deer blinds, hundreds of tools, and many other items which lacked any realistic connection to the pot plants and seeds of Steven's grow. They even seized the '65 Nova and the car trailer it was on.
Not satisfied with cleaning out the farmhouse the Ostipow's son resided in (as well as every building surrounding it), the deputies returned with another warrant and cleaned out the Ostipow's house -- one located a half-mile away from the supposed grow operation. They found no illegal evidence, but that didn't stop them from taking plenty of their property, including the cash in Gerald Ostipow's wallet.
Then they just kept coming.
In the weeks that followed, deputies from the Saginaw County Sheriff's Office would arrive, off duty, in their personal vehicles and would continue to take more items long after the completion of the execution of the search warrants. No inventory tabulation exists for these items taken and there appears to be no records of these "self-help" items being officially sold.
The proceedings -- which have dragged on for eight years now -- never resulted in criminal charges against the Ostipows. After a trip up to the state Supreme Court, it was finally determined that Gerald Ostipow "should have been aware" of the grow operation taking place on his property. But it was also determined that Royetta's (Gerald's wife) interest in the belongings taken was free and clear. The Sheriff's office was ordered to return most the property it seized.
The problem is that the Sheriff's department no longer had the property it seized, including the vehicle it racked up 54,000 miles on.
However, the injury inflicted upon the Ostipows was not complete. After the final judgment was entered, it was discovered that all of the Ostipow's property had been sold by Sheriff Federspiel (he himself having signed the vehicle title transfer document for the Nova) and members of his department before there was a final determination about forfeitability of items seized and held.
The department's actions are indicative of an agency that seldom has trouble retaining anything it designates as "guilty" property. So secure was the sheriff's office in its belief that it would ultimately prevail -- despite never bringing criminal charges against the couple whose assets it seized -- that it moved ahead with converting the property to cash without having any legal right to do so.
The Ostipows are now suing [PDF] the sheriff and his deputies in federal court for blithely blowing past even the minimal protections granted to victims of asset forfeiture. In addition to $1 million+ in damages, the Ostipows are seeking declarations that the asset forfeiture processes deployed by the sheriff's department are Constitutional violations and the compelled released of documents requested by the couple in an earlier FOIA request.
Federspiel hopes his department will claim more vehicles through drug forfeiture or drunk driving laws to equip his six-person cadre of captains, lieutenants and sergeants by the end of his first term. “I don’t want to buy another vehicle for my command staff,” he says.
He’s targeted a 2008 black Cadillac Escalade which, if acquired, would become the mobile, anti-drug dealing billboard for Undersheriff Robert X. Karl.
Given that this is the voice of leadership in the department, it's hardly surprising deputies feel search warrants entitle them to grab as much as they can from citizens they either can't or won't bring charges against.
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So, just a few hours ago, the reports were still spreading that the Senate would absolutely include Ted Cruz's preferred language that would block the (largely symbolic, but really important) transfer of control over the IANA functions of ICANN away from the Commerce Department. We've explained over and over and over again why this is important -- including once this morning in response to Donald Trump suddenly taking a stand (an incredibly ignorant one, but a stand) on the issue.
And then... poof. The Senate Appropriations Committee released its "short term continuing resolution" (CR for short) and it does not include any language on blocking the IANA transition. So... all the talk and (misleading) hype was apparently a bunch of grandstanding and hot air over nothing. It may have just been posturing and used to negotiate something else. Or, maybe (just maybe) people who actually understood what was happening with the IANA transition were actually able to explain to those in charge how stupid all this rhetoric was. That would certainly be a nice explanation for this -- though it seems tragically unlikely.
But, for the short term, this means a very dangerous thing for the internet, pushed for by Ted Cruz (and, as of yesterday, Donald Trump) has been avoided. It's possible that the House could try to somehow move to block the transition, but that seems unlikely. So, we may have actually won one here and narrowly avoided political grandstanding mucking up a piece of the internet. Phew.
Apparently the legal battle between a bunch of contractors providing "smart meter" equipment to the city of Seattle and FOIA clearinghouse MuckRock isn't over. The last time we checked in, a judge had overturned his own hastily-granted injunction, relieving MuckRock of the impossible demands placed on it by miffed tech provider Landis+Gyr -- which included handing over the details of everyone who might have seen Landis+Gyr's documents and "retrieving protected information that may have been downloaded" from the site.
MuckRock was allowed to reinstate the documents and Landis+Gyr walked away from a debacle of its own making. Another contractor utilized by Seattle Power and Light (Ericsson) had pursued a similar injunction but dropped MuckRock from its complaint, following Landis+Gyr into battle against the entity that had released the documents to requester Phil Mocek: the city of Seattle.
But there's still one company pursuing a case against MuckRock. The EFF, on its way back into court to fight the tenacious litigant, points out that Elster Solutions, LLC is still hoping to hold MuckRock accountable for publishing documents received from the city of Seattle. But it's impossible to ascertain why it's going after MuckRock.
First off, Section 230 shields MuckRock from this sort of litigation.
Section 230 provides broad protections for online platforms such as MuckRock, shielding them from liability based on the activities of users who post content to their websites. Given that broad immunity, MuckRock cannot be sued for hosting public records sought by one of its users regardless of whether they contain trade secrets.
MuckRock isn't the correct target because it only hosts the documents. It did not demand them itself, nor did it actively participate in the posting of the documents. MuckRock's system is automated. Default user settings will, without addtional input or control, post all correspondence and responsive documents pertaining to public records requests routed through the site. This makes Mocek's request and published documents third party, user-generated content.
The other reason why Elster's decision to name MuckRock as a defendant is completely misguided is this simple fact:
MuckRock currently does not host any documents from the company, Elster Solutions, LLC, that are subject to the public records request.
Even if MuckRock were able to obtain these documents, it wouldn't be doing so directly -- which is exactly what Elster claims has happened or might possibly happen. It wants to prevent the release of unredacted documents to the site (via requester Phil Mocek), but its litigious attention should be solely focused on the entity releasing them, rather than the site hosting them. At this point, MuckRock doesn't have anything Elster wants to argue about, and yet, it's doing so anyway. Its complaint is not only seemingly unfamiliar with Section 230 protections, but also severely deficient. From the EFF's motion to dismiss [PDF]
The Court should dismiss MuckRock from the lawsuit due to the obvious deficiencies in in Elster’s allegations in the Complaint. With respect to MuckRock, the Complaint contains precisely the type of bare, conclusory, or formulaic allegations the Court said were insufficient in Iqbal. See Yates, 2014 U.S. Dist. LEXIS 71077, at *8 (“[b]are, conclusory and formulaic allegations of involvement do not state a claim for relief against a particular defendant”). The Complaint mentions MuckRock in only three paragraphs, and in all three instances fails to specify any conduct by MuckRock that underlies any purported claim against it. (See Complaint ¶¶ 2, 6, 18.) Paragraph 6 references MuckRock’s domicile and state of incorporation. Paragraph 18 merely recites that Phil Mocek made a request for certain documents. And paragraph 2 is an introductory paragraph vaguely alleging that Mocek “and/or” MuckRock submitted a records request.
This lawsuit shouldn't last for much longer. What's surprising is that it's lasted this long already.
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We've been discussing for a while now about how the MPAA, with the help of the Copyright Office, has been propping up the complete myth that the FCC's plan to create more competition in the cable set top box space involves violating the copyrights of studios. It's a complete myth. The cable industry has been leading the charge here, mainly because it makes billions of dollars by charging people to "rent" its crappy boxes. But it found a strong ally in copyright maximalists who have repeatedly misrepresented the proposal. As we noted, the Copyright Office put out a report that flat out lied about what the FCC's proposal entailed and about how copyright itself works (arguing that contracts between two third parties could somehow eliminate the fair use rights of private citizens). And, incredibly, the basic argument being put forth by copyright maximalists, if taken to its logical conclusion, would mean that VCRs and DVRs are illegal too.
That's not how copyright law actually works -- but the message has caught on, and the FCC has already been forced to weaken its proposal -- and the industry is still bitching about it.
The MPAA’s argument that studios have the right to control the device on which you view your content reflects a fundamental misunderstanding of copyright law. Copyright gives its owner the right to control the making of copies and public performances of a work. But it does not give them control over any use of a work. That’s no accident. Once the copyright owner has been paid once for a particular copy, its control over that copy ends. That’s why I can lend a book to friends, or sell my used record collection outright.
True, there are some things I can ‘t do even with a copy of a movie or song I own. I can’t upload it on a file-sharing site, for instance, and I can’t play it on the radio. But that’s because doing those things either makes a new copy or makes a new, public performance of the work.
The studios have already been paid for the movies shown on a cable or satellite service. Indeed, they’ve been paid specifically for the right to publicly perform the work by transmitting it to my (and everyone else’s) home.
And here, copyright law says something very important to copyright owners: that’s all you get. Once the cable companies have paid the MPAA for the right to deliver their movie into my home, the MPAA loses control over how I choose to watch their movie in the privacy of my own home. I can record it on a DVR and watch it whenever I want. I can watch it on a big-screen TV or a small one, with the sound on or off, in one sitting or many, while fast-forwarding through parts I don’t like or rewinding to rewatch parts I do. I can watch it again and again. Most important, I can watch it on any device I want, including my computer, my iPad, or my phone.
And, while the MPAA and its supporters keep calling the FCC proposal a "compulsory license," Lemley points out that it's not a compulsory license that lets you record a TV program to your VCR or DVR, and neither is this:
That isn’t a “compulsory license” of copyrights; it’s a limit on the scope of those rights. That limit exists even if copyright owners try to declare that it doesn’t. This is the law. It has always been the law. Every effort by copyright owners to control how I watch a show in my own home has ended in failure.
Unfortunately, this blatantly false attack by Hollywood and the Copyright Office on the FCC's plan has been effective. It seems unlikely that the plan will go through, and what's troubling about it is that it's all based on flat-out falsehoods by Hollywood, the Copyright Office and its supporters.
We've been explaining this since it was first proposed two years ago: but the IANA transfer away from the Commerce Dept. is a good thing on a variety of important levels. Earlier this year, we did a more thorough explaination on why it was a good thing, and then a further post earlier this month explained why Ted Cruz, who was leading the charge in blocking the transition, was basically wrong on every point about it. And not just wrong, dangerously so. Cruz keeps claiming that the transition makes it easier for Russia, China and the UN to "take control" over internet governance. The exact opposite is true. But we'll get there.
"Donald J. Trump is committed to preserving Internet freedom for the American people and citizens all over the world. The U.S. should not turn control of the Internet over to the United Nations and the international community. President Obama intends to do so on his own authority – just 10 days from now, on October 1st, unless Congress acts quickly to stop him. The Republicans in Congress are admirably leading a fight to save the Internet this week, and need all the help the American people can give them to be successful. Hillary Clinton’s Democrats are refusing to protect the American people by not protecting the Internet.
The U.S. created, developed and expanded the Internet across the globe. U.S. oversight has kept the Internet free and open without government censorship – a fundamental American value rooted in our Constitution’s Free Speech clause. Internet freedom is now at risk with the President’s intent to cede control to international interests, including countries like China and Russia, which have a long track record of trying to impose online censorship. Congress needs to act, or Internet freedom will be lost for good, since there will be no way to make it great again once it is lost." - Stephen Miller, National Policy Director
First of all, here's Trump going on and on about "internet freedom" and "free speech." And yet... this is the very same candidate just a few months ago who talked about "shutting down parts of the internet" and mocking those who would say "oh freedom of speech" claiming anyone who fell back on that claim were "foolish people."
So, apparently it's okay to shut down parts of the internet, and those talking about free speech are "foolish people," but a symbolic effort over who controls the domain name system must be stopped because internet freedom and free speech are too important.
More importantly, almost everything the Trump campaign says in those two short paragraphs about the transition is wrong. And it's a really, really stupid and dangerous position to take for the internet. First off, as we've explained, the current link between the Commerce Department and ICANN and its IANA functions is more theoretical than real anyway. The US government really doesn't have any official control here. It's symbolic and that symbolism is doing a hell of a lot more to hurt the internet than to help it. Yes, Russia and China have, in the past, tried to take more control over internet governance via the UN/ITU, but that was stopped. But -- and this is the important part -- a big part of their rationale for trying to do so was the US's "control" over IANA via the Commerce Dept. That is, keeping this small bit of internet governance loosely connected to the US government adds fuel to the fire for authoritarian governments to seek more control over the internet. And that doesn't even get into the backlash that it will create if we go back on our word and refuse to complete the transfer of IANA away from the Commerce Dept (again, a largely symbolic move anyway).
But, don't trust me. Trust basically anyone and everyone with any actual knowledge on the situation. Here's Tim Berners-Lee, the guy who invented the web itself, explaining why the transition must go forward and why Cruz (and, by extension now, Trump) are totally wrong:
The global consensus at the heart of the Internet exists by virtue of trust built up over decades with people from all over the world collaborating on the technical design and operation of the network and the web. ICANN is a critical part of this global consensus. But if the United States were to reverse plans to allow the global Internet community to operate ICANN independently, as Sen. Cruz is now proposing, we risk undermining the global consensus that has enabled the Internet to function and flourish over the last 25 years.
Contrary to the senator’s view, ICANN is no “mini-United Nations.” ICANN is a vital part of the voluntary, global network of private organizations that provides Internet stability and the ability to innovate free from government interventions around the world.
Berners-Lee makes it clear that going back on the transfer will put the US gov't in the same kind of dangerous category that Cruz (and Trump) put Russia and China in:
But by forcibly undermining the global Internet community’s ability to make decisions about ICANN, the United States would stoop to the level of Russia, China and other authoritarian regimes that believe in the use of force to limit freedom online.
If not them, how about Kathryn Brown, who runs the Internet Society. She also argues that delaying the transition is what helps the case for Russia and China, rather than the other way around:
Some warn that if the plan to transition authority on Oct. 1 is delayed, countries like Russia and China could try to shift domain name responsibilities to the United Nations, giving those nations more influence over global internet policy.
"Any delay would add a degree of instability and make the prospect of government control of the internet more likely, not less," said Kathryn Brown, president of the Internet Society, a nonprofit organization that advocates open internet policies.
It vaguely suggests that the transition might create “an opportunity for an enhanced role for authoritarian nation-states in Internet governance,” but provides no evidence as to how or why it does. In fact, if the U.S. is forced to abort the transition now it would play right into the hands of authoritarian states. Killing ICANN’s reforms through impulsive and arbitrary American action would fatally undermine the global Internet governance model rooted in nonstate actors. It would strengthen the case for national sovereignty-based Internet models favored by authoritarian states. “Look,” they will say, “the U.S. wants to control the Internet, why can’t we?” ICANN’s independence from unilateral U.S. government control is a logically and politically necessary consequence of its independence from all governments. By getting in the way of that, it is the Congressmen, not the Commerce Department, who are creating an opportunity for authoritarian states to enhance their influence in Internet governance.
The Congressmen suggest that “this irreversible decision could result in a less transparent and accountable Internet governance regime.” But how? No reference is made to the actual reform plans. In fact, the transition brings with it major corporate governance changes that would significantly improve ICANN’s accountability and transparency. The transition brings with it a new set of bylaws that gives the public enhanced rights to inspect ICANN’s books, the right to remove board members, and the power to prevent the board from unilaterally modifying its bylaws. Under U.S. government supervision for the past 18 years, ICANN has been almost completely unaccountable – yet this is the status quo they want to retain. By opposing the transition, the Congressmen are getting in the way of reforms that address the very things ICANN critics have been complaining about.
The congressmen claim that “Questions have been raised about ICANN’s antitrust status.” Well, what questions, and what are their implications for the future of Internet governance? No answer. This is a phony issue. ICANN is not, and never has been, exempt from antitrust liability.
And so forth and so on. Part of the attempt to throw a wrench into the transition was Cruz claiming that Congress needs to approve the transition, as it has the power to determine if the government can "dispose of... property." But the Government Accountability Office (GAO) just released a report basically saying that doesn't apply here and the Commerce Dept is free to move ahead with the transition. Specifically, the GAO finds it to be ridiculous that the entire domain name system should be considered "property of the US government" because it's not.
It is unlikely that either the authoritative root zone file—the public “address book” for the top
level of the Internet domain name system—or the Internet domain name system as a whole, is
U.S. Government property under Article IV. We did not identify any Government-held
copyrights, patents, licenses, or other traditional intellectual property interests in either the root
zone file or the domain name system. It also is doubtful that either would be considered
property under common law principles, because no entity appears to have a right to their
exclusive possession or use.
In short, there's a legitimate concern that Russia and China would like more control over the internet. But that's the only point that Trump and Cruz get right. What's astounding is that their preferred course of action -- delaying or even blocking the IANA transition away from the Commerce Dept actually supports Russia and China in their efforts to gain control over the internet. So if you care about the future of the internet and how it is governed, could someone please educate Cruz and Trump that they're doing exactly the kind of damage they claim to be trying to stop?
We've long noted how the FCC's decision to avoid prohibiting zero rating (exempting your own or a paid partner's content from usage caps) opened the door to letting incumbent ISPs trample net neutrality -- if they're just creative enough about it. And that's precisely what has happened, with Comcast and Verizon now exempting their own content from usage caps, while T-Mobile and Sprint explore throttling all video, games and music unless users pay a $20 to $25 leave me the hell alone fee.
The FCC's total inaction on this front has also emboldened AT&T, which recently began exempting its own DirecTV streaming video app from the company's usage caps while still penalizing customers that use competitors like Netflix, Hulu or Amazon. But as we warned then -- AT&T isn't done. This week it confirmed that it will also zero rate its upcoming DirecTV Now streaming video service, which is AT&T's massive new entry into the streaming video market:
“We’ll be rolling it out in a couple of months,” Stephenson told attendees at an investors conference. “We’re talking 100-plus channels at a very, very aggressive price point. And when you buy this content, the data required to stream it onto your mobile device is incorporated into the price of the content…. If you choose to use that in a mobile environment on AT&T, your data cost is incorporated into your content cost."
That's a pretty clever logical tap dance. AT&T isn't unfairly giving its own content a leg up in the streaming video market, you see, it's just "incorporating" the cost of wireless data into your content costs. Either way you slice it, AT&T is using its stranglehold over the fixed and wireless markets to give its own content an unfair advantage, and you'd be pretty hard pressed to find too many tech beat writers, customers, or regulators that seem to give much of a damn. Why? Because under superficial inspection it looks like customers are getting something for free, even if usage caps are artificial and arbitrary constructs to begin with.
That said, AT&T is making it pretty clear it doesn't think regulators will do much about its latest anti-competitive gambit. Speaking at the recent CTIA wireless trade show in Las Vegas, AT&T Mobility President Glenn Lurie proclaimed that the company isn't worried about a regulatory crackdown:
“We have no regulatory concerns about it. We feel very good about it from that aspect. We’re not prioritizing [data], we’re treating it all the same,” Lurie told FierceWireless here on the sidelines of the CTIA Super Mobility trade show. Lurie is president and CEO of AT&T’s mobility and consumer operations. “So we’re not worried about that.”
Even though AT&T's tactic here is to basically lie and say it's treating "all data the same," it doesn't think the FCC will act. That means it's either emboldened by the FCC's apathy on this front, or it has received private indications from the agency that it doesn't intend to tread into the zero rating waters. But with large, incumbent broadband providers now using their monopoly over the last mile (and spectrum) to give their own content a leg up, you'll soon find many consumers wondering why the hell we have net neutrality rules in the first place.
What about this time? Well, Fight for the Future has posted the details including the charge sheet and it's ridiculous. She's charged with "resisting" when the "force cell team" went to her cell to respond to her suicide attempt. "Resisting" in this case being that she was unconcious. Really.
This charge stems from the “force cell team” being activated. They were called to respond to her suicide attempt, though there were no obstructions to the door and Chelsea was unconscious and unable to resist when they arrived. The charge sheet itself specifies on page 5 that “Inmate Manning did not resist the force cell move team.”
And yet, she's still charged with resisting. Next up "conduct which threatens." That's a pretty broad term -- especially for someone who is unconscious from a suicide attempt. And yet... conduct which threatens. It seems the only thing being "threatened" here is basic human dignity. And then we've got another "prohibited property" claim, just like last year:
On July 6th, Gabriella Coleman’s book “Hacker, Hoaxer, Whistleblower, Spy” was found in Chelsea’s cell, allegedly not properly marked with Chelsea’s name and inmate number on the inside cover. (A new regulation, that appears to have been crafted in response to Chelsea’s confiscated books/expired toothpaste incident from last summer.) In fact, this book was one of the books confiscated from Chelsea’s cell last summer.
Huh? First of all, this is a great book -- one that we've recommended and whose author, Gabriella Coleman, we've had on our podcast. But the fact that this was one of the books that was confiscated last year and then was still in her cell suggests the kind of messed up rules that are used to always have to charge someone with if they don't like you. What a fucked up system.
And people wonder why Ed Snowden doesn't think he'd get a fair trial.
It appears that Manning is resigned to the fact that she's being railroaded and there's little she can do to stop it.
Manning, who is serving a 35-year sentence at the US Army's Fort Leavenworth prison in Kansas, will have to defend herself at the hearing, and told VICE News she's not feeling optimistic. "It doesn't matter what I say or do," she said, through an intermediary, as she's not allowed to speak directly to the press. "The outcome is going to be the same."
Feelings of "hopelessness and helplessness" are hard to shake, she says.
Yup, great way to "punish" a suicide attempt: to take away people's hope even more. I'm sure that'll work. Manning's hearing will be held later today and, hopefully someone with some level of common sense is involved in the decision making process.