Back in October, we wrote about the Third Circuit appeals court ruling that attaching a GPS device to someone's car required a warrant. While the Justice Department is now challenging the part of that decision which said that the evidence obtained via the warrantless GPS use must be sustained (the government is arguing for a "good faith exception" to let it use the information under the belief that it was collected legally -- basically saying if they knew it required a warrant they would have gotten one), it has decided to not challenge the larger point that a warrant is needed to attach a GPS device to a car. That's good news, but it's only a little bit of good news.
The government does say that it "respectfully disagrees with the Court's requirement of a warrant to install and use a GPS device" but isn't seeking a review of that ruling. That, most likely, means that it's just waiting for another court to rule on the matter in a different circuit (and hoping for a better outcome) and can pit those two circuits against each other in a Supreme Court review. So, basically, it's just avoiding the issue for the time being.
We had just talked about how Ron Wyden has been trying to pin the NSA down on whether or not it collected mobile phone location data, and how NSA officials continue to dance around the question by claiming "not under this program." Charlie Savage, over at the NY Times, now has an article about a "pilot program" the NSA did doing bulk collection of the location of Americans' mobile phones. The pilot program was run in 2010 and 2011. While the NSA eventually decided not to go forward with the program, they certainly did use it for a period of time. The existence of the program was apparently "recently declassified" by James Clapper -- but not actually revealed (neat trick!). Clapper had a "draft answer" ready about the program if he was asked about it, but with Feinstein carefully making sure Wyden couldn't ask too many questions, it appears the question never made it to the floor. Still, the NY Times received the draft answer, which according to them said:
“In 2010 and 2011 N.S.A. received samples in order to test the ability of its systems to handle the data format, but that data was not used for any other purpose and was never available for intelligence analysis purposes,” the draft answer says, adding that the N.S.A. has promised to notify Congress and seek the approval of a secret surveillance court in the future before any locational data was collected using Section 215.
Senator Wyden told the NY Times that this answer is not providing "the real story":
“After years of stonewalling on whether the government has ever tracked or planned to track the location of law-abiding Americans through their cellphones, once again, the intelligence leadership has decided to leave most of the real story secret — even when the truth would not compromise national security,” Mr. Wyden said.
I imagine there will be much more to come on this story.
Corporate contests. They so often lead to hijinks at the hands of technology, such as that time the internet decided Mountain Dew's new flavor should be "Gushing Granny." Oh, and there was that one online promotion that sent something called Taylor Swift to sing at a school for the deaf. But, lest you think that this volatile mixture of technology and corporate contests is good only for laughs, picture the following.
You're walking down a street in a European city, reading about how something someone did somewhere upset a major world religion, and you decide you need respite from the madness of the news. So you walk into a corner store, buy a candy bar, and tear it open, ready to bite into a soft, gooey explosion of stress-melting flavor-gasm. That, of course, is when the black helicopters and MiBs appear out of nowhere, rushing you with an ominous black suitcase. If someone froze you right there in that moment, what do you think you would likely expect to happen next?
Well, you'd be wrong (probably). Because those aren't darkly dressed neo-terrorists that have for some reason decided to specifically blow you up with a neutron bomb (dear lord, you're self-centered). No, it's your friendly folks at Nestle, responding to the GPS technology in your treat to hand you £10,000 in cold, pants-crappingly terrifying cash. It's all part of the new Nestle contest to reward customers by tracking them down via GPS technology in their candybars within 24 hours of being consumed. They named this campaign "Nestle: we will find you!", because apparently "Nestle: we could find and kill you for eating our products anytime we wanted to" didn't strike quite the right tone.
Now, I know what you're thinking. You're thinking that there's no reason for me to think this contest will play out the way I described above. Well, here's Nestle's own ad for the contest.
Now, I'm generally all for creative promotions, but this all seems terrifying. A private company is going to track me down via GPS and throw a suitcase at me in a major city? Well, not me, since not only am I not European, but I'm one of the six people on the planet that absolutely hates chocolate...but you, sweet Euro-reader! It could be you who fudges your pants after eating fudge! So, in conclusion, the article gives a listing of the candy bars you should avoid if you don't want to be hunted down.
The grand prizes for Nestle's We Will Find You promotion, involve these four chocolate products: KitKat 4 Finger, KitKat Chunky, Aero Peppermint Medium and Yorkie Milk.
($10 says there's a porno parody of those candy names out there somewhere.)
Last year, Google announced that it would begin charging high-volume users for access to its previously free Maps API. It seemed like an odd move. Jacking up the price on something, without actually offering anything new to entice customers to stay, only works if you have a total monopoly—and free competitor OpenStreetMap was already growing rapidly at the time.
Not long after the Google announcement, we reported that property search engine Nestoria was jumping ship to OpenStreetMap. Then, in March, news began to spread that Apple was making a strong push to move away from Google Maps data on the iOS platform. FourSquare also abruptly switched. Now the exodus is continuing, with Wikipedia announcing that the latest versions of its mobile apps for iOS and Android have also ditched Google Maps for OpenStreetMap:
Previous versions of our application used Google Maps for the nearby view. This has now been replaced with OpenStreetMap - an open and free source of Map Data that has been referred to as ‘Wikipedia for Maps.’ This closely aligns with our goal of making knowledge available in a free and open manner to everyone. This also means we no longer have to use proprietary Google APIs in our code, which helps it run on the millions of cheap Android handsets that are purely open source and do not have the proprietary Google applications.
One wonders how Google didn't see this coming—or if they did, what exactly their strategy is here. OpenStreetMap is gaining a lot of momentum, and in some areas even features much better data. The real lesson here is that there's never an incumbent that isn't at risk of being unseated, no matter how widespread the adoption of their product or service—especially if they make an anti-customer decision like Google when it put a price tag on Maps. The situation also points to the long-term strength of open solutions: while a crowdsourced system like OpenStreetMap never could have put together a global mapping product as quickly as Google did, over time it has become a serious competitor in terms of both quality and convenience. Indeed, none of the companies that have switched pointed to the price as their number one reason—potentially superior quality, and the desire to support open data, are generally listed as significant factors. Location-based tools are a rapidly growing field, and by failing to stay ahead of their more open competitors (while becoming less open themselves), Google may have sacrificed their role as a crucial engine driving such services.
Twitter has taken quite a lot of heat for putting in place the capability to block tweets on a geographical basis. This begins to look a little unfair in light of the fact that Google quietly adopted a similar policy before Twitter. That's shown by the answer to a question on Google's Blogger site about blogs being redirected to country-specific URLs, which at the time of writing was last updated on 9 January 2012. Here's what it says:
Q: Why am I seeing a URL change?
A: Over the coming weeks you might notice that the URL of a blog you're reading has been redirected to a country-code top level domain, or "ccTLD." For example, if you're in Australia and viewing [blogname].blogspot.com, you might be redirected [blogname].blogspot.com.au. A ccTLD, when it appears, corresponds with the country of the reader’s current location.
Google is quite frank about why it is doing this:
Q: Why is this happening?
A: Migrating to localized domains will allow us to continue promoting free expression and responsible publishing while providing greater flexibility in complying with valid removal requests pursuant to local law. By utilizing ccTLDs, content removals can be managed on a per country basis, which will limit their impact to the smallest number of readers. Content removed due to a specific country’s law will only be removed from the relevant ccTLD.
This is not only what Twitter is doing, but employs exactly the same topsy-turvy logic: by enabling local censorship, we are promoting free expression. That in itself is obviously troubling, not least because Google may be setting off down a slippery slope that sees all of its services segmented by geography to avoid local problems. But there's an even deeper issue.
If more and more companies follow the lead of Google and Twitter, as seems quite likely, it could represent the beginning of the end of the truly global Internet. In its place will be an increasingly balkanized online world subject to a patchwork of local laws. Looks like geography just made a comeback.
Last week, Twitter announced that it now had the ability to block tweets geographically, if necessary. As we noted at the time, this appeared to be a way to limit the impact of censorship to certain countries. That is, rather than completely taking down content (as it would do before), instead it would limit the blocks to just the geographic region. On top of that, it would be quite transparent about this -- posting all info to ChillingEffects, and trying to let users know if they were visiting the page of a censored tweet.
Unfortunately, many people interpreted this as Twitter giving in to censors and allowing censorship. But that's a misreading of the situation. Again: Twitter already takes down content when required by law. Now it's trying to limit such takedowns. However, because people interpreted this to mean it was getting into the censorship business, there were protests against Twitter, which I think missed the point entirely.
That said, Twitter still deserves some of the blame for the way in which it presented this. While it mentioned it in passing, it should have focused much more heavily on the fact that this was an attempt to limit the ability of countries to more widely censor info. Of course, there are some who believe Twitter should simply stand up against any and all attempts to take down content -- but the fact is that there are legal situations in which content is ordered to be taken down via a court order. In this case, Twitter is providing a lot more info and transparency than it was before. That's a good thing... but it's really not how they positioned their own story.
Twitter just announced that it has set up the ability to block content on a country specific basis (e.g., if Germany demanded some content be taken down, Twitter can now just have that content blocked in Germany). I know some people saw this and got upset about "censorship!" but looking at the details, it actually looks like Twitter is doing a smart thing here. You could argue that the proper response would be to stand up to local governments and say, "sorry, we don't block anything" -- and I'd actually have sympathy with that response. But the truth is that if a government is demanding censorship, then Twitter is likely going to have to comply or face complete blocking. The solution that it came up with is somewhat more elegant: it will just block the specific content in the specific location and (importantly) will try to let users know that the content is blocked while also sending as much info as it can to the Chilling Effects website so that people can learn about what's being censored. This is a lot more transparent and hopefully actually shines more light on efforts to censor Twitter.
As we continue to grow internationally, we will enter countries that have different ideas about the contours of freedom of expression. Some differ so much from our ideas that we will not be able to exist there. Others are similar but, for historical or cultural reasons, restrict certain types of content, such as France or Germany, which ban pro-Nazi content.
Until now, the only way we could take account of those countries’ limits was to remove content globally. Starting today, we give ourselves the ability to reactively withhold content from users in a specific country — while keeping it available in the rest of the world. We have also built in a way to communicate transparently to users when content is withheld, and why.
We haven’t yet used this ability, but if and when we are required to withhold a Tweet in a specific country, we will attempt to let the user know, and we will clearly mark when the content has been withheld. As part of that transparency, we’ve expanded our partnership with Chilling Effects to share this new page, http://chillingeffects.org/twitter, which makes it easier to find notices related to Twitter.
Oh, one useful tidbit of info? While it says it hasn't had to use this country by country blocking yet... and it uses the example of Nazi-related content, the place where it's already been censoring content... is in the US, in response to DMCA complaints as per Danny Sullivan:
Twitter’s already been pulling content where piracy or copyright claims are lodged, under the existing DMCA law. Today’s announcement isn’t changing that, though potentially, Twitter might begin disclosing DMCA takedowns within its own search results and Twitter timelines. That doesn’t happen yet, but Twitter says it hopes to do so over time.
We've covered some of those activities in the past, and if this actually brings more attention to highly questionable takedowns (such as many we've seen issued to Twitter...) that might actually be a good thing.
With all the reports of law enforcement collecting tons of location info from telcos without a warrant, as well as a bunch of court rulings that seem to chip away at what's left of the 4th Amendment, it's somewhat surprising to see a magistrate judge say that police cannot use a warrant to find out your location from a mobile operator, for the purpose of arresting you. From Orin Kerr's summary of the ruling:
Here’s the basic reasoning of the opinion. First Judge Gauvey creates what a appears to be a new distinction in Fourth Amendment law: a distinction between (a) Fourth Amendment rights in location at a given time, and (b) Fourth Amendment rights in movement over time. According to Judge Gauvey, individuals have a reasonable expectation of privacy in both. There is a reasonable expectation of privacy as to a person’s location if a person cannot be visually observed in that same way. And there is a reasonable expectation of privacy in movements, which Judge Gauvey seems to be taking from the DC Circuit’s Maynard/Jones “mosaic theory” case (which the Supreme Court recently agreed to hear). Judge Gauvey then reasons that if everyone has this Fourth Amendment right, people who have warrants out for their arrest have this right to privacy, too. For that reason, the information held by the phone company as to the location of the phone user is protected by the Fourth Amendment.
Judge Gauvey then considers whether the Fourth Amendment allows a warrant to be issued based on probable cause that the information will help execute an arrest warrant. She concludes the answer is no: A Fourth Amendment warrant requires probable cause that evidence or contraband is located in the place to be searched or that a person who committed a crime is in the place to be searched. Mere probable cause to believe that location information would help the police execute a warrant is not enough under the Fourth Amendment.
Kerr suggests that the case law actually disagrees with the judge in this case, and even the judge appears to admit that she thinks the Supreme Court might disagree, but she said without specific guidance from the Supreme Court, she believes her ruling is correct.
It's no secret that patent holders suing for infringement prefer certain venues. And, many tech companies based in the Bay Area like to try to get those cases moved to a local court instead. There's been some efforts to move cases to better locations, but thanks to some tricky games, lawyers can frequently keep the cases where they were filed.
Apparently Twitter thought that it might try some tricky lawyers' games of its own to get one case transferred. The company tried arguing that because the patent holder, Dinesh Agarwal, who was suing them was also a Twitter user, it meant he'd agreed to Twitter's terms of service... which state that all lawsuits against the company must be brought in San Francisco. That's pretty clearly a tortured reading of the Terms of Service, because this lawsuit had nothing, whatsoever, to do with Agarwal's use of the service... and the judge didn't buy it, allowing the case to continue in Virginia, where it was filed. As the judge noted, agreeing to this "would potentially foster satellite litigation in every patent case involving a social networking market participant," basically guaranteeing that such lawsuits could only be brought where social networking companies wanted them to be brought.
Apple and Steve Jobs are semi-famous for the "reality distortion field" that sometimes comes with Apple product announcements. But can it do the same when it screws up. It took a week after the kerfuffle last week concerning iPhones and iPads storing your location for Apple to finally respond, and the full response is an amusing study in corporate doublespeak.
As far as I can tell, Apple's key points are:
Apple (not researchers, or tons of other people who have noted this "bug" for a year or so) "discovered" a bug with location data on the phone:
The reason the iPhone stores so much data is a bug we uncovered and plan to fix shortly
There's no tracking going on. There's nothing to see here.
Apple is not tracking the location of your iPhone. Apple has never done so and has no plans to ever do so.
Even though there's no tracking and nothing to see here, it's still a bug which will be fixed.
The reason people are concerned about this is because people are confused.
Got that? People are confused and there's nothing to see here, but Apple has discovered a minor bug which will be fixed.