from the now-they're-just-fucking-with-us,-right? dept
Okay, someone in the White House just feels like giving people who believe in protecting civil liberties a giant middle finger today. As a quick review, the President and the administration have been hiding behind secret court orders with secret interpretations of the Patriot Act and the FISA Amendments Act to use a very blunt instrument: collecting pretty much all digital data around, and keeping the whole thing totally quiet for years. In response, Rep. Justin Amash is seeking to pull funding from one of the key NSA programs -- the one that involved a secret interpretation of Section 215 of the Patriot Act by a secret court to pretend that language that clearly applied to only limited data now meant the NSA could order AT&T, Verizon, Sprint and others to hand over every call record on every phone call. And, this is a program that no one knew about until Ed Snowden leaked it to the Guardian and the Washington Post.
In light of the recent unauthorized disclosures, the President has said that he welcomes a debate about how best to simultaneously safeguard both our national security and the privacy of our citizens. The Administration has taken various proactive steps to advance this debate including the President’s meeting with the Privacy and Civil Liberties Oversight Board, his public statements on the disclosed programs, the Office of the Director of National Intelligence’s release of its own public statements, ODNI General Counsel Bob Litt’s speech at Brookings, and ODNI’s decision to declassify and disclose publicly that the Administration filed an application with the Foreign Intelligence Surveillance Court. We look forward to continuing to discuss these critical issues with the American people and the Congress.
However, we oppose the current effort in the House to hastily dismantle one of our Intelligence Community’s counterterrorism tools. This blunt approach is not the product of an informed, open, or deliberative process. We urge the House to reject the Amash Amendment, and instead move forward with an approach that appropriately takes into account the need for a reasoned review of what tools can best secure the nation.
Let me repeat that again: This blunt approach is not the product of an informed, open, or deliberative process. As opposed to the blunt process of collecting all data on everyone which was arrived at via an "informed, open and deliberative process -- known as totally secretly interpreting the plain language of a law in a secret ruling from a secret court to mean something almost entirely different than what the language itself said?
This is a joke, right?
Only someone who really has a sick sense of humor would try to argue that a bill looking to slow down the rampant spying on pretty much all Americans comes from a lack of an "informed, open, or deliberative process" when the process to create that massive surveillance infrastructure was all done in complete darkness.
President Obama's incredibly weak response to the revelations this week of widespread data collection of pretty much everything by the NSA is to say that he "welcomes" the debate. But, of course, he hasn't actually welcomed the debate at all, because people have tried to bring that debate to him for years, and he's brushed them off:
When it comes to surveillance, Obama has as president shown no sign of really wanting to have a robust debate. For years, Sens. Ron Wyden (D-Ore.), Mark Udall (D-Colo.) and former Sen. Russ Feingold (D-Wis.) have been pleading with the administration to disclose more information about call-tracking tactics that they suggested would shock many Americans.
The administration largely rebuffed those calls. Only after the leak Wednesday of a four-page “top secret” court order indicating that millions of Americans’ phone calls were tracked on a daily basis did officials begin to confirm the program’s details.
But Obama could have chosen at any time to disclose the data-sifting program, or even its rough outlines. That fact leaves critics unimpressed with his latest round of let’s-talk-it-over.
In other words, he's not "welcoming" the debate at all. The debate is happening with or without him, and when he had the chance to "welcome" the debate, he didn't. Now, it appears, he's trying to appear willing "to talk" about something that's now gone way beyond the stage where "welcoming the debate" is sufficient.
If anything, his helps explain why over-aggressive secrecy is such a stupid government policy. If they had been open about this and there had been public discussions earlier, and people were free to express their concerns, and the government could explain its position, then the discussion would have been different, and more interesting. But having all this information denied by government officials for years, only to come out via a leak just looks so much worse.
Update: So around the time this post went up, President Obama actually spoke directly about all of this. He focused on a non-issue, however: about how they're not listening to everyone's phone calls. Except that was clear from the beginning. It was always said that it was just the data -- but it's a hell of a lot of data: who you called, when you called, how long you spoke to them. That's data that most people feel should be private. After that, he said this:
Now, with respect to the Internet and emails, this does not apply to U.S. citizens, and it does not apply to people living in the United States. And again, in this instance, not only is Congress fully apprised of it, but what is also true is that the FISA Court has to authorize it.
But that's not entirely accurate, since it seems pretty clear that there was access to data that included US citizens, so long as the claim was that the investigation (not necessarily any of the parties) targeted non-US persons.
He repeatedly points out that Congress and the FISA Court have repeatedly known and authorized all of this -- which could be read as throwing Congress a bit under the bus (not that they don't deserve it):
So in summary, what you’ve got is two programs that were originally authorized by Congress, have been repeatedly authorized by Congress. Bipartisan majorities have approved them. Congress is continually briefed on how these are conducted. There are a whole range of safeguards involved. And federal judges are overseeing the entire program throughout. And we’re also setting up — we’ve also set up an audit process when I came into office to make sure that we’re, after the fact, making absolutely certain that all the safeguards are being properly observed.
But that doesn't help. It just raises more questions about who Congress really represents, and whether or not "the public" is included.
The President does suggest that he might be open to reconsidering some of this, but also explains why he failed to live up to his promise to stop warrantless wiretapping:
But I think it’s important for everybody to understand, and I think the American people understand, that there are some trade-offs involved. You know, I came in with a healthy skepticism about these programs. My team evaluated them. We scrubbed them thoroughly. We actually expanded some of the oversight, increased some of the safeguards. But my assessment and my team’s assessment was that they help us prevent terrorist attacks. And the modest encroachments on privacy that are involved in getting phone numbers or duration without a name attached and not looking at content — that on, you know, net, it was worth us doing.
That’s — some other folks may have a different assessment of that. But I think it’s important to recognize that you can’t have a hundred percent security and also then have a hundred percent privacy and zero inconvenience. You know, we’re going to have to make some choices as a society.
He was also asked how he felt about it being leaked, and said he wasn't happy about it, given that it was secret for a reason -- but then uses the opportunity to throw Congress under the bus again:
That’s why these things are classified.
But that’s also why we’ve set up congressional oversight. These are the folks you all vote for as your representative in Congress, and they’re being fully briefed on these programs.
And if in fact there was — there were abuses taking place, presumably, those members of Congress could raise those issues very aggressively. They’re empowered to do so.
from the awww...-your-pet-legislation-got-shot-down-by-the-Supreme-Court...-u-mad-bro? dept
As we've noted, recent events have pushed the discussion of video games (namely the violent ones) back to the forefront. Even the President has chimed in, authorizing the CDC to perform a study to determine if any link exists between violent media (including video games) and so-called "gun violence."
While most gamers (and indeed, most people who can put two and two together without adding a bunch of rhetoric into the equation) have come to the rather sensible conclusion that violent games do not create violent people, the floor is still open to debate, most likely for the next several years. The sheer number of violent video games sold has failed, over the course of many years, to be matched by a comparable escalation in violent crime. If you're a gamer, you've probably thrown this argument into the debate a number of times and wondered why more people, especially those who active work to censor violent games, haven't arrived at the same conclusion.
"Gamers have got to just quiet down," Yee, D-San Francisco, said in an interview Tuesday. "Gamers have no credibility in this argument. This is all about their lust for violence and the industry's lust for money. This is a billion-dollar industry. This is about their self-interest."
You got that, gamers? No credibility. None. Beat it. If we want to talk about video games, like grown ups, we'll do it without you. We'll just talk to senators and the CDC and concerned parents' groups and the NRA. But we won't be talking to game developers. No way. And certainly not gamers, whose opinion amounts to nothing in a debate of this (periodic) importance.
You know who else won't be included in this conversation until absolutely necessary? The Supreme Court. Because if anyone's opinion is invalid, it's the highest court in the land.
Yee, a former child psychologist, believes the court set the standard too high for any study to firmly link the cause and effect of violence.
Yes. This court, which stated that any effects caused by violent video games were too small to be distinguished from effects produced by other media, needs to butt out. Fortunately for Yee, the Supreme Court rarely offers an opinion until asked directly, unlike the millions of gamers who spout off in every forum imaginable.
Yes, Yee is right about the industry being self-interested. It does have a lot at stake, especially if some sort of government regulation results from this renewed attention. Pleasing a government censor is a lot harder than pleasing an independent ratings group. One has a political motivation to save humanity (mostly "the children") from "violent media." The other has an interest in preserving its autonomy by doing its job properly and giving each game a rating that reflects the content. In other words, one is more willing to kill the end result of $30 million in production costs in order to score political victories while the other wants to make sure mature content doesn't end up with a family-friendly T slapped across the front of the case.
"It's not all about shooting people in the head and guts everywhere, but that's what the public perception is, and probably rightfully so," said Kris Graft, editor-in-chief of the San Francisco-based site Gamasutra, which along with its print magazine sibling, Game Developer, covers the video game industry. "There is plenty of diversity in video games, but I don't think it's being highlighted enough."
So does Kate Edwards of IGDA:
"It's important to point out that some of the most popular video games in history are all titles such as 'Wii Sports,' 'The Sims,' 'Super Mario Brothers,' the Pokemon series and 'Tetris,' " said Kate Edwards, executive director of the trade group International Game Developers Association. "So while the games containing more violence get the attention, they're not a reflection of the game industry as a whole, just as a single genre of film, TV or literature doesn't represent that medium as a whole."
Edwards also welcomes the CDC's study, stating that it will add to the "large body" of existing studies that have failed to show a link between fake violence and real violence.
But Yee doesn't want to hear from these people, who are rightly concerned because they have an investment in this industry and who feel this added attention is doing harm to not only their careers, but also to the games they love.
The people who should be keeping their mouths shut, or at least, sitting in the back with their hands folded until called upon, are those who know nothing about video games beyond scare reels put together by like-minded individuals and anecdotal "evidence" cobbled together out of headlines like 'Adam Lanza played Call of Duty' and 'Hans Breivik said Call of Duty taught him how to use guns.' Without a broader overview of the history, the industry and the culture, they're operating with a damaged data set culled from all the worst humanity has to offer and linked together by a single, gossamer strand of self-identifying as "gamers," ignoring the millions of other self-identifying gamers who are indistinguishable from others who have never played a game in their lives, united by the much thicker linkage of never having committed a violent crime.
We've been covering in great detail the FISA Amendments Act, which is likely to be renewed before the end of the year. As you may recall, this was the "law" that expanded the ability of federal law enforcement to warrantlessly wiretap Americans -- and then, thanks to a secret interpretation appears to be used to scoop up tons of information on Americans, despite appearing to be limited to only foreign communications. As we noted recently, a former judge has made a pretty compelling case why the whole thing is completely unconstitutional. While Senator Wyden has put a hold on the renewal of the FAA, he's also said he'll lift the hold if the Senate will consider some important amendments and actually debate the law.
And yet... that might not happen. Senator Saxby Chambliss, apparently with no regard to the Constitution or the privacy of the public he's supposed to represent, has apparently complained that any debate is a waste of time after Senator Majority Leader Harry Reid tried to bring up the issue.
Reid wanted S. 3276 to be considered with a limited number of amendments, but Sen. Saxby Chambliss (R-Ga.) objected and said he didn’t understand why the Senate couldn’t just pass the House FISA bill. He referred to a letter stating that the Obama administration supports the House-version.
So, apparently, as long as the White House wants to trample on Americans' 4th Amendment Rights, and there's a House version that was passed because Representatives misrepresented or lied about what was in the bill, the Senate should just approve it? Yikes. We deserve better. We should absolutely demand that Congress debate this issue, and not rubber stamp it.
We've pointed out that the unconstitutional FISA Amendments Act (along with its secret interpretation), look likely to get renewed before the end of the year. Senator Wyden is willing to drop his hold, but if he doesn't get certain amendments in, he wants to limit the length of the extension to a short period for the sake of having a debate. Of course, that's the same thing that happened almost exactly one year ago.
Techdirt has joined a number of organizations, including EFF, Free Press, the ACLU, the American Library Association and many, many more in asking the Senate to actually debate the issue. The folks at EFF have set up a tool to help anyone reach out to their own Senators on the subject as well.
We write to share our concern about the reauthorization of the FISA Amendments Act and the dwindling time remaining to have a meaningful debate and amendment process before your target adjournment at the end of next week. We ask that you contact your party leadership and let them know that you expect ample time for floor debate, privacy and transparency amendments, and possible conference with the House on ultimate legislation.
The FISA Amendments Act is a sweeping authority that allows the government to collect international communications without a warrant, even if an American in the US is on one end. After four and a half years, there is no information publicly available describing how many Americans are caught up in this surveillance program or what is done with the information once collected. There also hasn’t been a single minute of Senate floor time scheduled for debating the merits of this program or to considering amendments that would increase transparency of this program and insert basic privacy protections for our sensitive information in preparation for this reauthorization.
Is it really that ridiculous to think that the open debate we've been promised for years should be had before we reauthorize these tools? Is it really ridiculous to think that the NSA and other intelligence officials should be required to publicly reveal such basic things as how many Americans have had records swept up by intelligence agencies under these loose rules?
With the end of the year approaching, Senator Ron Wyden has admitted that he's willing to drop the hold on the renewal for the FISA Amendments Act in exchange for allowing some key amendments to be voted on. As summarized by David Kravetz at Wired:
Wyden said he would lift his hold in exchange for a Senate floor vote on an amendment requiring the government to account for how many times Americans’ communications have been accepted, and another amendment prohibiting U.S. spy agencies from reviewing the communications of Americans ensnared in the program.
If that doesn’t go over, he’d lift the hold so the Senate could vote on brief extension of the act so his amendments and others could be fully debated next year.
“I’m willing to go along with a short-term extension as long as we have a chance in the early future, in 2013, to have a debate,” Wyden said.
Of course, we've seen this before. Just last year we had a "short-term extension" on these things for the sake of debate, but the "debate" never came. Instead, everyone waits until now, when the rules are about to expire, and then demand that it be renewed, sans debate, or else "terrorism!" The whole process is really kind of unfortunate. There should have been a debate years ago, before the FISA Amendments Act was rushed into law. But, unfortunately, actually considering the implications of these laws -- and how they're used and interpreted -- just doesn't seem to be a major issue for Congress.
While having access to geolocation data is clearly useful for law enforcement agencies, without the resource limitations that used to discourage the government from tracking you without good reason, the limits on when and how geolocation data can be accessed are unclear. A police department, for example, might not have the resources to follow everyone who lives within a city block for a month, but without clear rules for electronic tracking there is nothing to stop it from requesting every resident's cellphone location history.
Obviously, we expect people to see us when we step out onto the street each morning, but we don't expect those people to track all of our movements over the course of days, weeks, months, or even years.
Who can possibly argue against all that? Well, there's Joseph Cassilly, who had been the president of the National District Attorney's association. His basic argument is that having easy access to this data makes the job of law enforcement easier:
A recent example of this was in a gang shooting in my jurisdiction wherein an anonymous caller who feared gang retaliation if his identity was known gave the police the identity of two gang members who committed the murder. The police received cell phone information regarding these individuals from prior arrest reports. The cell-site historical information for the time of the killing shows that those two cell phones were hitting off the same tower at the same time in the area of the murder.
Nice story, but there is nothing in the Constitution that says we need to make law enforcement's job easier. In fact, it's the opposite. The reason we have a 4th Amendment is to make law enforcement's job more difficult. But that's a choice we make as a free society, recognizing that protecting our civil liberties and freedoms is an important barrier to inevitable law enforcement abuse.
Also in favor of easier spying on people is Rep. Trey Gowdy, who seems to argue that using your GPS data to track you is no different than other "advancements" like "DNA analysis, fingerprint analysis, voice exemplars, blood spatter, or court-approved wiretapping." Gowdy is a bit more middle-ground here, suggesting the importance of privacy, but saying he thinks that location data should require a "lower standard" for a warrant than probable cause. Of course, the problem there is that the whole "probable cause" bit comes to us from The Constitution. So, changing that is difficult.
Either way, you can check out the full arguments and vote for which ones you find most compelling...
Here's an interesting one. Fast Company had professor Jonathan Taplin, director of the USC Annenberg Innovation Lab and the former tour manager for The Band debate Alexis Ohanian, cofounder of Reddit, Hipmunk* and Breadpig. The debate is definitely worth watching, but I'm disappointed with many of Taplin's claims. He starts out by going for the emotional, talking about how The Band -- whose drummer Levon Helm passed away the day after the debate -- had members who were no longer making $150,000 to $200,000 per year, as they had been able to do up until about 2002. As Alexis notes in response, there are all sorts of useful business models to help them make money -- and he's even offered to help them make money. And, indeed, the story of Helm is quite tragic, but at the same time, most people when they are no longer working tend not to make as much money as they did in the past. Copyright was never supposed to be a pension for retired musicians, so it seems odd to argue that it isn't doing that. That was never the intention.
Frankly, what bugs me most about Taplin's argument is that he continually takes things totally out of context. For example, he cites the familiar numbers about the "music industry" going from $20 billion to $6 billion. Yet he ignores that the overall music industry grew because other parts of the industry grew at a much faster rate. More ridiculous? He claims (totally incorrectly) that Chris Anderson believes that "everything should be free." Either he didn't read Chris Anderson's book, or he's purposely distorting the book, which focuses nearly all of its attention on how to get paid for content. In fact, most of the book is about ways in which a "freemium" model works -- where you have some stuff free, and other things paid. Why Taplin would then claim the book is that "everything should be free" is beyond me. To have a university professor so misrepresent Chris's book is ridiculous. He owes a major apology to Anderson.
Bizarrely, Taplin then claims that Reddit makes money off of piracy. Say what?! At this point I think he's just making things up.
He also completely misrepresents Google having to give the government $500 million concerning advertisements from unlicensed online pharmacies. Taplin calls them "phony drug ads," which is also inaccurate. In many cases the drugs were legit -- but the licensing of the pharmacies to deliver those drugs to the US was in question (some, in fact, appear to have been perfectly legit Canadian pharmacies). He then claims that if Google made $500 million on fake drugs ads they must be making more on "illegal pirate ads." I'm curious: who exactly is buying "illegal pirate ads"?
From there, he tosses in the whole controversy over Backpage.com -- which has nothing to do with copyright, and he falsely smears them as providing a service for pimping "young ladies" -- leaving out the fact that (a) a court has already cleared the company and (b) this has nothing to do with copyright.
Taplin seems to be throwing together a bouillabaisse of arguments without understanding any of them, and thus misrepresenting nearly everything.
Alexis does a great job with his intro, first pointing out how movie box office revenue has increased, and then pointing out how innovation is the key here, and that industries can innovate their way forward, and points to Kickstarter's success as an example of how that's already beginning. Taplin, playing the old curmudgeon, insists this is all crazy. He mocks the movie stat because it ignores the collapse of DVDs. Of course if folks like Taplin had their way, there would be no home video market, because they tried to make it illegal back in the 1970s and 1980s (an inconvenient fact he seems to have forgotten). He also mocks Kickstarter because it won't fund Martin Scorcese's latest film. This is typical of someone who doesn't seem to understand the the innovator's dilemma. It's kind of shocking, frankly, that someone in charge of a so-called innovation lab doesn't understand how innovation works.
In the second part of the debate, Taplin goes full on elitist, mocking those people who use Kickstarter to fund a piddly $50,000 movie, because apparently, to him, those movies don't count. And yes, earlier in the debate, he was talking about how he was really concerned about the up and comers. He also seems to think that the only movies that matter are the movies that score big distribution deals. He's internally inconsistent and doesn't even seem to realize it. He goes on to mock the idea that musicians can make money other than through record sales. Except, he assumes (incorrectly) that the only way to make money is concert sales, and then says that some acts just can't get enough people to see them live. Um, duh. But that's always been true. Most musicians never sold enough music to make a living either, but we don't pass a law to change that. Taplin seems to be complaining that not all musicians or movie makers are rich. I didn't realize that was an issue.
Taplin then comes up with his "solution." It's to have every ISP charge users $2 to $3/month which would go into a giant global pool that would be distributed to copyright holders. Immediately, someone in the comments points out that doesn't fix bad contracts. It's even worse than that. First, the entertainment industry would insist that $2 to $3 is way too low. Hell, most music services alone get $10 or so per month. And really what Taplin is doing is to create a giant bureaucracy that won't effectively help small artists. He talks about ASCAP as the model for this. I wonder what he has to say about the fact that ASCAP takes money from up-and-coming artists and gives it to the largest acts.
Both videos are worth watching. The whole thing is only about 25 minutes, and I think Alexis more than holds his own, though it would have been nice if there was a little more time to hit back on many of Taplin's claims.
* Corrected after learning that Alexis didn't found Hipmunk -- just joined pre-launch.
It really was just a few weeks ago that a Hollywood lobbyist laughed at me (literally) when I suggested that SOPA/PIPA might become a national issue during the Presidential campaign. As he noted, copyright issues just aren't interesting outside of a small group of people. My, how things have changed. After this week's protests made front pages and top stories everywhere, it's not all that surprising that the candidates at the latest GOP debate were asked their opinion of the bills... and all four came out against them. Of course, this seems to fit with the new GOP positioning that they're the anti-SOPA/PIPA party (so sorry Lamar Smith...). Mediaite has the video:
And here's a transcript of what each candidate said:
Gingrich: "You are asking a conservative about the economic interests of Hollywood? I am weighing it and thinking fondly of the many left wing people that I am so eager to protect. On the other hand, you have so many people that are technologically advanced such as Google and You Tube and Facebook that say this is totally going to mess up the Internet. The bill in its current form is written really badly and leads to a range of censorship that is totally unacceptable. I believe in freedom and think that we have a patent office, copyright law and if a company believes it has generally been infringed upon it has the right to sue. But the idea that we have the government start preemptively start censoring the Internet and corporations' economic interest is exactly the wrong thing to do."
Romney: "The law as written is far too expansive, far too intrusive and far too threatening of freedom of speech and information carried across the Internet. It would have a depressing impact on one of the fastest growing industries in America. I care deeply about intellectual content going across the Internet and if we can find a way to very narrowly go after those people who are pirating especially those offshore. But a very broad law that gives the government the power to start saying who can pass what to whom, I say no and I am standing for freedom."
Paul: "I am one of the first Republicans to oppose this law and so glad that sentiment has mellowed up here as Republicans have been on the wrong side of this issue and this is a good example on why its good to have someone who can look at civil liberties ... freedom and the constitution bring people together."
Santorum: "I do not support this law and believe it goes too far. But I will not agree with everyone that there isn't something that should be done to protect the intellectual content of people. The internet is not a free zone where anyone can do anything they want to do and trample the rights of other people. Particularly when we are talking about entities off shore. The idea that the government has no role to protect the intellectual property of this company, that's not right. The idea that anything goes on the Internet? Who has that idea. Property rights should be respected."
But, really the most interesting part of what happened was not the candidates answering the question, but the audience's response. When John King asked the question and gave a brief explanation of SOPA/PIPA... he also mentioned that CNN's parent company, Time Warner, supported the bill... and the crowd booed loudly. When the candidates -- particularly Gingrich and Paul -- made their claims, the crowd cheered loudly.
The people who are still brushing off the whole protest as "an internet thing" or (even more ridiculous) "a Google thing," still don't seem to realize. Pretty much the entire public has turned against these kinds of bills.
It's just, simply, PC piracy is at the most incredible rates. This game cost a huge amount of money to develop, and it has to be, quite rightly - quite morally correctly - protected.
If there was very little trouble with piracy then we wouldn't need it.
Gabe shoots back:
We're a broken record on this. This belief that you increase your monetization by making your game worth less through aggressive digital rights management is totally backwards . It's a service issue, not a technology issue. Piracy is just not an issue for us.
DRM is not a decision taken by us as a developer at all. It's a purely a publisher decision. The publisher has every right to protect their investment.
It's difficult to get away from the fact that as a developer, as somebody who puts their blood, sweat and tears into this thing... And from the publisher's point of view, which invests tens and tens and tens of millions into a product - by the time you've got marketing, a hundred million - that piracy on the PC is utterly unbelievable.
Gabe shares a story of how Valve protected their investment, in Russia no less:
When we entered Russia everyone said, 'You can't make money in there. Everyone pirates.'
When people decide where to buy their games they look and they say, 'Jesus, the pirates provide a better service for us.'
The best way to fight piracy is to create a service that people need. I think (publishers with strict DRM) will sell less of their products and create more problems.
Ok, so it wasn't a long debate, but I think the point is clear. Ubisoft and many other developers and publishers are under the impression that those who pirate games are doing so just to get free games. Yet, Valve has learned that piracy is a symptom of a greater problem: unmet customer needs. It learned that Russians pirated games to get a better quality localization than what the publishers provided. It didn't respond by upping the DRM. It responded by providing high quality localization.
So rather than fight your fans and treat them like criminals, why not embrace them and provide them with the product they want? It's amazing that anyone needs a debate to figure that out.