It should be noted that when an injunction had been put on Gawker to take down the video, they did, but then merely linked to another video site hosting it instead.
If the logic stands, surely that video site must have been sued by Hogan too. But it wasn't. In other words Gawker have got the "leaker" role here and that is why they must bear the legal burden, not the folk echoing what was leaked e.g. the video site.
If Gawker had a source who provided them with the tape, they could have said they weren't the leaker but merely the echo. Though that would mean having to defend the identity of the source against a possible legal demand to reveal it. None of that happened. It could have also been possible that Gawker were actually the folk who got a hold of the tape without a middleman, considering how they didn't even attempt to pass the buck.
It needs reminding that the hackers of the iCloud celebrity photos were rightfully punished, though folk reposting them on Reddit were not. I don't think a free expression claim is warranted when hackers were trespassing onto property like that. Given the unexplained nature of how Gawker came into possession of that tape (they may have indeed trespassed Hogan's property to get it themselves for all we know), the judgement for damages was probably justified.
Though it sucks. Every instinct in me tells me that gutter press is the FIRST area to defend against censorship precisely because of the huge hate it generates. Hate is fine, gutter press gonna gutter. Censorship is not. If I can defend the rights of Holocaust deniers to speak their minds, and I do justly, I can certainly defend it for sharticles these tabloids put out.
A person who deeply, deeply offends everyone on the internet requires EXTRA protection for free expression, not less. Because it still benefits us. If it is true that knowledge is power, then knowledge of what is false is just as liberating as knowledge of what is true. Every time you hear disgusting, revolting opinions the more you know how low humanity can sink. It's important, otherwise you won't know what to do when confronted with lynch mobs of racist hate peddlers marching on the doors of a minority because you weren't given the space to get angry about the bile building up beforehand. Know thy enemy. You can't do that if you shut them up. Beautiful flowers cannot live without being dependent on pollen-carrying stinging pests.
Here, an anus-inverted tabloid has self-destructed in a manner similar to News of the World here in the U.K., preventing us the right to know about how nasty and cold-hearted an opinion can be. A man has also been the victim of revenge porn but walked away with, what he'd consider, not enough compensation. A billionaire Silicon Valley tycoon walks away with a smile on his face knowing that folk who are nowhere near as rich as him will never have the same kind of financially-backed justice if they ever end up as revenge-porn victims, who he probably couldn't care less about - he will continue to be rich and not stand by his supposed principles, on the basis that revenge can solve anything.
I should point out a correction, Mike. This isn't a superinjunction, it's an injunction. A superinjunction is when you can't even mention the injunction exists without being in contempt of court, which is illiberal because it essentially means secret courts. Though a regular injunction you can say that the injunction exists, which is why papers are allowed to talk about the injunction in England and Wales without actually mentioning the names, and they have done so. See the Daily Mail's "The Law Is An Ass!"
Here in Scotland I could probably name the names without legal trouble. However if I were to step across the border only a couple hundred miles away I probably could not. And I'm not sure if it counts if a copy of my message would be read in HTML in England despite me posting from Scotland to an American server.
I do have some sympathy with my opponents here. If some poor woman were photographed nude without her permission and that image went viral across multiple sites globally, she'd be pretty pissed, and she would be a bit disgusted at folk who try to mock her resisting it as creating a "Streisand Effect", as if she were to blame for everybody else's violation of her privacy, which is what "fighting it makes it stronger" can only mean in this case. The thing about the Streisand Effect is that it only gets you so far morally. It can lead to victim blaming.
And my opponents could also say that it is possible to beat the Streisand Effect by citing the example of the naming of the identities of the killers of James Bulger. This had gone a bit "viral", but then the names had indeed still been removed at every instance in the end.
Though I fear the above example was only due to luck and the example above that no doubt due to the ignorance of porn viewers when determining if each and every nude image is consensual or not. There was more interest here in the UK about the James Bulger killers' identities than say in the US because it was a UK story at its origin, and not as many were spreading the identities because many others objected to it, which may have made it easier for the police to stop.
It's a bit scary to think that law has lost its competency here, and that no amount of law can stop memetic information if it's up against millions willing to resist it. If the law does appear to succeed in putting it down, is that because the law's force was strong, or because the people simply chose not to make the content viral? That's a critical question, because if law is all in the mind anyway and authority is an illusion just like free will is, it would make sense that the latter bit of the answer would be right. We all, in the end, decide if laws should be followed or not, and papers called "laws" are inanimate objects that only mean something if we choose to act in favour of them. Law comes from Order, not the other way around.
That's pretty disturbing, so it is possible that memes can't be stopped by law online - and I really do mean meme in the Dawkins sense of the word: natural selection of expressions. So how do we deal with the nasty stuff?
I think we need to start considering focusing all the justice of civil compensation and prosecutions etc, if there is a case of course, on the "point of the leak", not on folk who simply echo the leak. So if Hulk Hogan wants compensation for an act of revenge porn (I don't know the full details but I assume it must have been revenge porn, I don't think he would have won if he himself published it), he'd have to take it to Gawker or even the person who sent it to Gawker, not everyone else reporting on the story. Otherwise you get farces where because of international servers anyone can find out the UK injunction names but cannot talk about it between them in certain regional parts of the Union. And I'm sure you can still find the Hulk Hogan sex tape somewhere. If you worked hard enough, the killers of James Bulger too.
One exception to this might be child rape images, where those who echo them must also be punished. Though I think that works because the "Is it consensual? How am I meant to know?" line of thinking doesn't hold up since a child cannot consent whatsoever. And the presumption must be made that those who possess such images must also have knowledge of and history with child rape criminal gangs who profit from the slavery, so it is easily justified to say why law must fight against it. And it succeeds very well because the majority will report and fight against child rapists, not spread evil images.
...so again, law only "works" because the masses follow it.
Therefore, in regards to the stuff where you've got to stop the point of the leaks, we may have to simply face the fact that we're in an age where you can't just walk up to printing-press bottlenecks anymore and put a hold on them. You're up against a massive ball of rubberbands the moment something leaks, and even if you get 99% of them that 1% still lingers waiting to instantly turn into the big ball again (I'm sure there's a better metaphor... probably the ProtoPets from Ratchet and Clank 2). So in this day and age, it makes more sense to focus all your justice on those who take something out of your private sphere initially into the public sphere without permission. Because chasing the echoes is only going to be horrible and ugly.
I know what'll stop piracy! The Stop All Piracy Act! And don't worry artists, this law will continue indefinitely, or in other words it'll never stop!
But seriously, we're not talking with rational people here. Just imagine debating against a crazy wing of libertarianism demanding a "JPEG standard" to replace our fiat currencies: there's a point where you just have to accept no amount of reason will do.
Even the gold standard enthusiasts would know it was time to give up if research into technology lead to discoveries where you could suddenly download gold at the click of a mouse.
A law that forbids a work from being expressed in another language if the "property" holder chooses is an assault on freedom of expression.
A law that forces historians who speak other languages to only do their research through secondary sources as a result of deliberate language barriers is an assault on freedom of expression.
Because as Christopher Hitchens once rightly said, freedom of expression is not just about the right of someone to speak, but it is also the right of everybody to read and listen.
Shutting off books with artificial language barriers is isolationaism, anti-free trade and anti-globalisation (yes, globalisation is a good thing and this is one reason why). Democracy and pluralism IS up for export to all of civilisation in the face of dictatorship and authoritarianism. The best way of doing this is to make all literature available in all languages so those who want to retaliate and rebel against their unelected leaders know how and why to do so. Copyright stands in the way of that with its language barriers.
Or tries to, rather. Thankfully because copyright is unenforceable we can tell such a law to go to hell and translate however we please, even if it is somewhat underground. It should be morally self-evident to everyone that copyright is a farce and would be very ugly if it really did have the power it wishes to have. But no, we'd rather get hysterics such as "Google must have Content-ID on its Google-translate program!!!" before people will ever realise this.
Let me repeat once again: there's a reason why a JPEG dollar would be laughed away as a medium of legal tender. There's a reason why libertarians call for a gold-standard instead of a salt-standard. There's a reason why Bill Hicks' joke "Dirt For Sale" in Sane Man is funnier than it seems: Creating scarcity from abundancy doesn't work and never will.
If you want to protect your property - or labour, rather - name your price on Patreon, however high you want that price to be. It really is that simple, and there's no contradiction in rights either.
You would think that with a procedure that notices a website to take down content, that they would actually go to the website itself and send that notice to take down the content. That way it becomes irrelevant if Google links to it or not since there's no longer any content to direct to.
But no, apparently we need to keep on whacking the mole that simply tells people that site and the content is there instead of the content itself, as if that will somehow magically make everyone forget that it's there.
When I say "The Pirate Bay" I've just linked someone to the Pirate Bay. Because then they'll go research the site, it's domain name, etc etc. Which is no different from an actual URL or a URL to a URL, because a URL is just words and letters too.
The logical conclusion of this is that everybody should be forbidden from talking about the Pirate Bay whatsoever. Because to talk about it is to link someone to it.
It is also worth remembering that when it comes to issues of "freebooting" on Facebook, the complaints are in the opposite direction: that Facebook hides links to pirated content too well. After all, artists must be able to see where the piracy is happening! As they say.
And it all comes from folk who still haven't done a thing about the Pirate Bay after 15 odd years. They are beyond serious consideration.
The gold shirt or medals or transporter by themselves do not necessarily constitute appropriation - but in its entirety this is essentially what the movie is. It is an appropriation of Star Trek without permission or paying royalties. This is the very essence of what copyright was designed to prevent.
You know what I always say to somebody who claims to be against cultural "appropriation", whether it be in the form of portraying/sampling everything from rap music to Japanese Kimono? It's this: when you protest something like this, deciding what is "culturally appropriate" is the very thing you are trying to do, not them.
I don't find it a coincidence that copyright's core mantra dating all the way back to its conception in the 1600s has very much in common with the petty social justice warrior movements of today, plaguing the minds of the naive and turning many decent folk away from universities. And not just that. Back in the 50's and 60's communists like Sam Aaronovitch protested the capitalist "appropriation" of American comics seeping their way into British cultural life in place of what should have been purist socialist ideology. In other words, unauthorised forms of culture were to be resisted simply for being alien, in place of more appropriate appropriation.
There is a reason why those of us aligned with Thomas Paine, 18th century liberal radicalism and freedom of expression are good at seeing through these things. Though I do wish most on my side would see the connection with the problems of copyright's right to decide what culture is "appropriate" too.
It goes right back. When things like the Inquisition and the Dark Ages were afoot every bit of blasphemy could be pinpointed as an equivalent of morons killing each other based on what was culturally appropriate for Jesus and the like. I came to realise that whenever I criticised this solipsistic concept of ownership of expression instead of freedom of expression in copyright circles, I often found I would say copyright believers were in effect wanting blasphemy laws protecting their work from being defamed, wich in any other context would be seen for the transparent prior-restraint tripe that it is, which would logically extend to silencing critics of the work too since they too could sway the culture in the direction outside of the artist's "permission". Yet copyright squares the circle and pretends that the logic doesn't extend that far for a reason I've yet to hear. I was not, and am not, wrong to make this comparison.
It's not an encryption issue, because the brute-forcing bit is easy. It's a hacking issue because the software/hardware is forbidding the speedy process of it. The FBI want Apple to tinker with their source code essentially.
Though I keep stressing the warrant was granted here. It's not comparible to unwarranted, mass unconstitutional spying. If it were, by definition Apple would be asked to do it secretly anyway.
Law enforcement asking for a key to a house does not mean we should all be afraid of our locks on the count of the possibility that law enforcement could be forcing all keymakers to keep copies of keys in secret, as a result of that one house "hacking".
"The government can't be trusted" is an argument you could make against any security breach, even so much as walking through a criminal's front door rendering all doors untrustworthy.
And it's worth asking as well: we always talk about on this site the importance of security holes in programs coming to light, precisely so that they can be patched and fixed with greater security in the end. Sometimes not in ways I approve of - I don't exactly think that because someone's front door is left wide open that therefore you need to walk into the house and tresspass in order to make the point that there's a security hole. In fact local police here in the U.K. did that exact same thing and were rightly criticised for it: http://www.huffingtonpost.co.uk/2016/01/26/coventry-police-criticised-over-burglary-patrol-tactic_n_ 9075722.html
So I don't believe it is honourable to hack a company through its security hole in order to make them aware of that security hole.
However, I am in favour of raising awareness of those security holes (discretely, so that noone may take advantage of them in the meantime). And ultimately that means Apple need to make it so that they can't hack their way into a phone whatsoever.
If they are still able to hack into the phone, it's a flaw with the initial design in the first place. And if you acknowledge that this flaw is unavoidable because that's the nature of coding - that is, someone with the source code can recode and infiltrate - you have to accept that it's the case regardless, and the FBI are entitled to get Apple to hack this single phone without hacking others.
Asking for one key is not the same as asking for all keys. If it were, we wouldn't be trusting our door locks at all.
Well you could say that could happen after any crime. You wouldn't therefore dismiss the validity of warranted searches on that basis.
I mean, state forces can bully anyone into spying without a warrant in secrecy in regards to any kind of pretence. You could therefore say the slippery slope would apply to any court order and do away with prosecutions completely.
I've recently read a book by the ever brilliant Simon Singh called The Code Book. It's not as up-to-date because it was published in the year 2000 I believe. However it details the historical progression of encryption from Ancient Egypt to the internet and provides a fascinating look into encryption arms races: the prosecution against the Mary Queen of Scots, the uncracked Beale Papers, the Enigma machine and Alan Turing, the use of ultra-rare languages from the Navajo as a means of encryption against the Japanese in WWII, the decipherment of lost scripts such as Linear B providing revolutionary material for historians to better document the past (the conclusion of which will fill us folk who are passionate about science and the enlightenment with such pride and joy), and finishes both on one of the most counter-intuitive sceintific breakthroughs: that of assymetric encryption through a clever interpretation of modular mathematics and number theory, and the purely theoretical concept of quantum computing which harnesses the one-time pad perfect encryption (and will take you a good couple of reads to process as it did with me - if you think you understand quantum theory, you don't understand quantum theory).
Encryption has always been mathematical warfare. Let us just hope nobody solves the P vs NP problem before quantum encryption gets here.
I'm starting to have second thoughts about this particular case. Don't get me wrong I'm all for civil liberties and "warrant or gtfo", but a warrant was delivered here and I'm beginning to suspect Apple's "masterkey" theory is a bit far-fetched.
If the argument is "if we were made to crack this phone all other phones (the 5C) will be compromised" but it's worth bearing in mind that the FBI have stated they do not want possession of the hack-update that will unlock this phone. See here: http://www.bbc.co.uk/news/technology-35601035 so if anything Apple are at liberty to destroy the hack after it's all unlocked and finished.
What's being asked is, essentially, to customise the iOS source code and compile it for this device only, which again it must be stressed is not an update required to be in possession of the FBI. If this were not the case I would probably protest against that, but that alone, not the hacking at the behest of a warrant. Because it would be the equivalent of - don't think "masterkey" - giving a copy of all unique keys to everybodys' houses for the sake of allowing law enforcement to find one key into a single house. But it is quite possible to be against the former and be for the latter, and suspect that the keybearer is incorrect when he says the handing over of one key will lead to the handover of all keys as some kind of "slippery slope".
Slippery slope fallacies exist too, and this could be one of them.
"Keys" isn't even the right metaphor here anyway. What we are talking about is not encryption, but hacking. It's also not right to say "if someone else has a way in bad guys will exploit it" - well, does the fact that "good guys" can change their source code for updates on their end also mean a slippery slope where "bad guys" will exploit? In other words, is the fact that source code is updateable at ALL in itself a "backdoor"? It can't be, unless you really stretch it. I mean, criminals can break into companies and steal source code all the time e.g. Half Life 2, but we wouldn't talk about thatin the rhetoric of "You SEE? This is why we need end-to-end encry-*cough*, sorry, source code security!" There is no such thing as "end-to-end" source code which is unhackable by a good or bad middleman.
The point about true "end-to-end" encryption is that not even the encryption designer, Apple, can get in. But if Apple can get in here, the "backdoor" is already there, but that's because of source code, not asymmetric keys or anything.
As for this slippery slope, again no court or even government agency would seriously say that because we need to break into this guy's house, therefore all citizens from now on must have no locks on their doors. It wouldn't get far.
Re: Why this is an impossible request from the court
Good post. If it is the case that we're getting to the stage where Apple are winning on a microscopic warfare front, to the point where a simple 4-digit pin will do, for all practical purposes this would suffice for security in itself.
Who needs copyright law when you can design device-unique combined hardware/softwa-*cough*- Digital Rights Management that makes the copying of flash data exponentially hard? Apple seems to be able to stop the copying process so well with natural scarcity as it is that they don't even need copyright law! I guess the FBI will be joining forces with the EFF to condemn DRM then.
Anyway, I wouldn't want to be one of those Apple programmers. One slip-up, one bug, one wrong library, and you face possible federal prosecution for triggering the self-erase function.
What would be hilarious is if they unlock the phone only to find third-party advanced RSA encryption on the phone without any private prime-number keys - the only location being inside the criminal's mind, memorised using mnemonics. Because after all that is the only way you can guarantee (for now) that nobody will ever crack your messages.