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Posted on Techdirt - 27 May 2016 @ 9:31am

Senate Intelligence Committee Expands FBI NSL Powers With Secret Amendment To Secret Intelligence Bill

from the you'll-find-out-about-the-additions-when-you're-told-you-can't-talk dept

The annual intelligence authorization is under way, with the Senate deciding how much money the nation's spy agencies will receive next year, along with anything else they can slip in while no one's looking. The entire discussion takes place behind closed doors, so there's very little stopping the Intelligence Committee's many surveillance fans from amending the bill to increase intelligence agencies' powers.

Fortunately, there's still one person on the inside who continues to perform his oversight duties.

A provision snuck into the still-secret text of the Senate’s annual intelligence authorization would give the FBI the ability to demand individuals’ email data and possibly web-surfing history from their service providers without a warrant and in complete secrecy.

If passed, the change would expand the reach of the FBI’s already highly controversial national security letters.


The spy bill passed the Senate Intelligence Committee on Tuesday, with the provision in it. The lone no vote came from Sen. Ron Wyden, D-Ore., who wrote in a statement that one of the bill’s provisions “would allow any FBI field office to demand email records without a court order, a major expansion of federal surveillance powers.”

Wyden did not disclose exactly what the provision would allow, but his spokesperson suggested it might go beyond email records to things like web-surfing histories and other information about online behavior. “Senator Wyden is concerned it could be read that way,” Keith Chu said.

The FBI's history of abusing NSLs is well-documented. These letters allow the agency to route around judicial oversight by chanting "national security" while composing their requests. (Bonus feature: recipients are forbidden from talking about them... indefinitely.) Increasing the FBI's access with no corresponding increase in oversight is definitely not a good idea, considering it has never shown interest in self-restraint.

The FBI historically has not had access to email records via NSLs, although it did spend several years doing exactly that before being shut down by the DOJ. It obviously wants that access again and FBI Director James Comey claims the only thing standing between it and the access it always thought it had is a "typo."

If this secret amendment passes along with the authorization bill, it would weaken attempts to reform the ECPA -- the 1986 law that gives the government warrantless access to emails and other online documents more than 180 days old. But rather than fix the Senate intelligence authorization bill, legislators are looking to carve a hole in the recently (and unanimously) passed Email Privacy Act.

Sen. John Cornyn, R-Texas, is expected to offer an amendment that would mirror the provision in the intelligence bill.

Privacy advocates warn that adding it to the broadly supported reform effort would backfire.

“If [the provision] is added to ECPA, it’ll kill the bill,” Gabe Rottman, deputy director of the Center for Democracy and Technology’s freedom, security, and technology project, wrote in an email to The Intercept. “If it passes independently, it’ll create a gaping loophole. Either way, it’s a big problem and a massive expansion of government surveillance authority.”

The FBI should be sending out fruit baskets to the Senate Intelligence Committee for both expanding its surveillance reach and undercutting a much-needed reform effort. Secret laws made by secretive committees during closed-doors sessions doesn't seem very "American," but much like the super-secretive NSLs the FBI loves so much, the routine invocation of "national security" tends to ward off the scrutiny this process desperately needs.

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Posted on Techdirt - 27 May 2016 @ 8:31am

President Obama Threw A Cyberwar.... And No One Showed Up

from the firing-off-a-blank-check-from-the-'Executive-Order'-account dept

Last spring, in the wake of the Sony hack, President Obama threw a cyberwar. And no one showed up.

In April 2015, President Obama issued Executive Order 13694 declaring a national emergency to deal with the threat of hostile cyber activity against the United States.

But six months later, the emergency powers that he invoked to punish offenders had still not been used because no qualifying targets were identified, according to a newly released Treasury Department report.

It certainly sounded scary enough. Obama said things about "cyber threats" being a serious threat to national security and the US economy. The state of emergency, according to the President, would create a "targeted tool" for combating our cyber-enemies.

This state of emergency is just one more in a line of uninterrupted states of emergencies dating back to the mid-1970s. A perpetual state of emergency is far more useful to the government than a "targeted tool," so a declaration of (cyber) war against a bunch of noncombatants still served a purpose, if only indirectly.

It started the ball rolling on the CISPA/CISA resurgence, which eventually "passed" after being attached to the coattails of a budget bill with far more momentum and support, as few legislators were willing to stare down the barrel of a government shutdown just to prevent a badly-written cyber-bill from passing.

More importantly, the president's statement and executive order gave the administration permission to do things it doesn't normally get to do.

Under the powers delegated by such statutes, the President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens.

Declaring a state of emergency allows for the potential wreaking of havoc in taxpayers' lives. And even if these powers go unexercised (or anything), it still costs the taxpayers money.

Even though it generated no policy outputs, implementation of the executive order nevertheless incurred costs of “approximately $760,000, most of which represent wage and salary costs for federal personnel,” the Treasury report said.

The expenses of national states of emergency aren't being offset by seized funds or assets related to the targets of the executive order. The Treasury Department's report logically notes that zero targets means zero seizures. According to another report quoted by Steven Aftergood of the Federation of American Scientists, the long-running "state of emergency" prompted by various North Korean actions is resulting in less than ~$60,000 a year -- compared to an operational cost of at least $125,000/month (presumably the North Korean state of emergency is more expensive than the "cyberwar" one). No one really expects a "break even" government, but it's inarguable that targeting known or unknown entities via executive orders really isn't doing much to cripple their operations.

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Posted on Techdirt - 27 May 2016 @ 6:32am

YouTube Personality Files Bogus Copyright Infringement Lawsuit To Shut Up Two Critics

from the 'this-will-end-the-criticism-once-and-for-all!' dept

Copyright: for when you just don't feel like being criticized. (Currently available for periods up to, and including, seventy years past your death!)

Matt Hosseinzadeh, a.k.a. "Matt Hoss," a.k.a. "Bold Guy," a.k.a. "Horny Tony," runs a moderately successful YouTube channel containing his moderately well-done videos of his "characters" performing feats of pickup artistry and parkour. It's all fairly ridiculous, but considering the depths pickup artists can plumb, the HossZone videos are actually fairly tame.

However, they aren't immune to criticsm. The two people behind YouTube channel H3H3 Productions posted a reaction video containing parts of one of HossZone's pickup-and-parkour recordings. The video, which the Kleins made private shortly after the legal threats began, has been mirrored here. This made Hoss irritable and he sent a lawyer after Ethan and Hila Klein of H3H3 Productions.

They've detailed the experience here:

According to H3H3, it all began with a demand for the removal of the video and $3,750 in legal fees racked up so far by Hoss's lawyer. From there, it got stupider. After failing to secure instant capitulation, HossZone's lawyer altered the terms of the deal. ("Pray I don't alter it stupider...") H3H3 could avoid paying any money by apologizing via their channel for misappropriating Hoss's "art," say some nice stuff about him in their apology video, and throw additional compliments HossZone's way for a period of no less than 60 days. (I am not kidding. Watch the video above.)

H3H3 refused to do so, so Hoss has now filed a copyright infringement lawsuit against Ethan and Hila Klein. Hoss also hit H3H3 with a copyright strike, despite the fact that the video central to the complaint had been set to "private" shortly after his lawyer began issuing legal threats.

Unlike others who have sought to abuse copyright to censor critics, Hoss appears to have his end of it pretty much nailed down. He has a valid, registered copyright that predates the H3H3 reaction video and his complaint isn't filled with vagues assertions about ethereal property and even vaguer assertions about how it's been violated.

That being said, detailed allegations aren't always credible allegations. It appears that fair use is still misunderstood by a great deal of the population, including those representing plaintiffs in copyright infringement lawsuits. From the complaint:

On or about February 15, 2016, Defendants published a video on their YouTube channel that copied and displayed virtually all of Mr. Hoss’s original Work (the “Infringing Video”).

The Infringing Video features the Defendants purporting to discuss the Work in what they believe to be a humorous manner but in fact reproduces virtually all of the Work as nothing more than a prop in the Defendants’ “comedy routine.”

Contrary to what Hoss's lawyer implies here, there is nothing in caselaw that forbids the use of "virtually all" of a work under fair use. Judges and juries may be more sympathetic if you don't, but this does not automatically make a work infringing, rather than fair use.

And, contrary to what is stated in the complaint, the ratio of H3H3-to-Hoss is far less that his lawyer would make it appear. [link to ad-blocker blocker Forbes]

The 13 minute h3h3 productions video in question uses about three minutes of HossZone’s skit, while the rest of the video features Ethan and Hila talking about the setting, script, character development, and even the costume design used by HossZone. They also talk about random things pertaining to their life, as most vlogs of theirs do.

The original video runs 5:25, so H3H3 used a little more than half of it, but that half only makes up about a third of the total reaction video runtime. Not that all this math makes much of a difference when fair use is raised as a defense, but it does serve two purposes: it illustrates there was a great deal of commentary surrounding Hoss's content and it appears to contradict the claims made by the plaintiff.

Moving on:

The Infringing Video was created and published without license from Mr. Hoss in direct violation of Mr. Hoss's exclusive rights as an author pursuant to 17 U.S.C. § 106.

Fair use does not require the obtaining of a license from a copyright holder (no matter what Sony Music claims...) because that's exactly what "fair use" is: the use of copyrighted works in a non-infringing way.

The Infringing Video does nothing to alter the original Work with new expression, meaning, or message

The Infringing Video fails to contribute a single substantive comment, criticism, or even parody to or of the original Work.

These are opinions, not factual assertions. The court will determine how substantive Hoss's take on H3H3's video is, but even those standing far outside of the IP-wonk circle can plainly see these are purely subjective statements.

Aside from the fact, as described in greater detail above, that the Infringing Video does not constitute a transformative fair use, it is also the fact that the Defendants operate the Ethan and Hila YouTube channel, where they published the Infringing Video, as an entertainment channel via which the Defendants generate advertising revenues.

People make money from fair use all the time. This argument has been debunked so often, it should ingrained in the mind of any decent IP lawyer.

What's interesting about this lawsuit is that HossZone also accuses H3H3 of filing a "false" DMCA counter notification in response to Hosszone's takedown request.

On or about April 26, 2016, the Defendants submitted to YouTube a counter notification, pursuant to 17 USC § 512(g)(3), affirming under penalty of perjury that the Infringing Video was improperly removed because it was, among other reasons, a fair use and “noncommercial.”

And if it's Hoss's takedown that delivered a strike to H3H3's account is determined to be bogus, what then? Still going to go HAM on the "perjury" angle?

Hoss's lawyer seems to take particular issue with the possibility that the Klein's may have received ad revenue from their reaction video. In addition to claiming YouTube's third-party advertising makes any uploaded video a "commercial" product, the attorney claims that most of H3H3's popularity is due to Hoss's talent and inherent likability, rather than the commentary added to the video or the rest of H3H3's video productions.

Upon information and belief, the Defendants have unfairly derived profit from the Infringing Video in the form of their YouTube channel, which generates advertising revenue, increasing in popularity during the two-month period that the Infringing Video was displayed.

Upon information and belief, the Defendants’ YouTube channel more than doubled its number of subscribers due, at least in part, to the popularity generated by the Infringing Video.

The lawsuit also claims that Hoss is so charismatic his 3-minute appearance in a video mocking him somehow resulted in the Kleins being able to generate income from Patreon and Kickstarter.

All in all, it's a fairly ridiculous lawsuit which is made worse by its apparent motivation: to remove something Matt Hoss doesn't like from the internet. Even if this somehow works out for the parkouring pickup artist, the battle is already lost. A supporter of the Kleins set up a fundraiser for their legal defense, which amassed over $100,000 in under 24 hours. Meanwhile, what's left of Matt Hosszone's web presence is being savaged by dozens of angry commenters -- most of it far more brutal than anything the Kleins said during their criticism of his video.

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Posted on Techdirt - 27 May 2016 @ 3:30am

Judge Says The FBI Can Keep Its Hacking Tool Secret, But Not The Evidence Obtained With It

from the hope-the-feds-enjoy-their-victory-over-transparency dept

Judge Robert Bryan -- having set his own house against itself by declaring the FBI could keep its NIT info secret while simultaneously declaring the defendant in the child porn case had every right to see it -- has managed to find a way out of his self-induced conundrum. And it's going to make the FBI very sad. (h/t Ars Technica)

For the reasons stated orally on the record, evidence of the N.I.T., the search warrant issued based on the N.I.T., and the fruits of that warrant should be excluded and should not be offered in evidence at trial.

Well, not quite.

Michaud hasn't had the case against him dismissed, but the government will now have to rely on evidence it didn't gain access to by using its illegal search. And there can't be much of that, considering the FBI had no idea who Michaud was or where he resided until after the malware-that-isn't-malware had stripped away Tor's protections and revealed his IP address.

The FBI really can't blame anyone but itself for this outcome. Judge Bryan may have agreed that the FBI had good reason to keep its technique secret, but there was nothing preventing the FBI from voluntarily turning over details on its hacking tool to Michaud. But it chose not to, despite his lawyer's assurance it would maintain as much of the FBI's secrecy as possible while still defending his client.

Judge Bryan found the FBI's ex parte arguments persuasive and declared the agency could keep the info out of Michaud's hands. But doing so meant the judicial playing field was no longer level, as he acknowledged in his written ruling. Fortunately, the court has decided it's not going to allow the government to have its secrecy cake and eat it, too. If it wants to deploy exploits with minimal judicial oversight, then it has to realize it can't successfully counter suppression requests with vows of silence.

It's doubtful the FBI will learn from this experience. It did the same thing in 2012 and received nothing but deference from the courts. This time around, courts and lawyers are better educated, thanks to Snowden's leaks and a few hundred FOIA warriors -- all of whom have served to expose the massive, secret expansion of the government's surveillance reach and the near-complete dearth of effective oversight.

The FBI will be pushing hard for the adoption of the proposed Rule 41 changes. If these had been in place, every illegal search it performed using its NIT and the invalid warrant it obtained would have been legal. As it stands now, however, multiple courts have examined the warrant and the hacking tool and found the FBI's actions to be in violation of current statutes. What should have been slam-dunk prosecutions against unsympathetic defendants have instead become multiple participants in an ongoing debacle.

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Posted on Techdirt - 26 May 2016 @ 11:23pm

Nebraska Drug Warriors Lose Bust Thanks To Jurisdictional Limits On Criminal Conspiracy Charges

from the defendant-screwed-everything-up-but-his-choice-of-representation dept

The legalization of marijuana in a few states has led to some interesting law enforcement problems. To date, most of the "solution" appears to be camping out on the borders and seizing drugs from travelers headed out of the state. The lack of legalization on a federal level inflates drug bust stats but doesn't do much for visitors to pot-friendly states whose purchases are completely legal, but their possession -- once crossing the border into a neighboring state -- suddenly isn't.

The legality of the transaction at the point of purchase also makes for some rather unusual court decisions, like the one highlighted by Noel Erinjeri of Fault Lines. Two Minnesota natives were traveling to Colorado to purchase some weed when they were stopped by Lancaster County (NE) Sheriff's deputies, resulting in their arrest and seizure of the cash they were carrying.

In a Friday stop, the department seized $67,007 from 21-year-old James Milton Atkinson of Mankato, Minnesota, and 22-year-old Erik Joseph Felsheim of Waseca, Minnesota.

Prosecutors charged Atkinson and Felsheim Tuesday, and each posted the $2,500 they needed to get out jail.

Some more details on the arrest:

Deputy Jason Henkel asked if he had any drugs or large amounts of cash in the rental car, and Felsheim said no.

Henkel asked if he could search the car, and Felsheim paused but eventually agreed. In the trunk, deputies found $40,000 in a gym bag and $25,000 more in a duffle bag, according to court records.

Felsheim admitted he was going to Golden, Colorado, to buy 10 pounds of pot to sell in Mankato, where he went to college. He said the rest of the cash belonged to passenger James Atkinson, who planned to buy 7½ pounds.

Seems fairly open-and-shut, what with the pair freely admitting they were going to take legally purchased drugs and sell them in a state where marijuana is illegal. It certainly must have seemed that way to James Atkinson, who pleaded no contest and spent 6 months in jail. However, Felsheim decided to roll the dice on a trial… and won.

Felsheim opted for a bench trial, and was acquitted of both felonies. His lawyer, Tim Sullivan, did a good piece of work, and dug up a case called State v. Karsten, which dealt with conspiracies to commit crimes in other states.

Sullivan kept Felsheim from a jail sentence with this:

It is also a fundamental rule that criminal and penal laws are essentially local in character. Ordinarily, no penalty can be incurred under the law of this state except for transactions occurring within this state, and our state law has no extraterritorial effect. A conspiracy in this state to do something in another state which is lawful in that state is not a crime in this state. A conspiracy in Nebraska to gamble in Nevada is a convenient illustration of that principle.

The pot purchase would be legal, even if the resale in Minnesota wasn't. In between lies the route taken by the pair: the state of Nebraska. If someone says they're headed somewhere to purchase pot legally, Nebraska law enforcement can do nothing about it.

The prosecutor tried to salvage the case by saying it was "logical to infer" the pair planned to bring their marijuana back through Nebraska on their way to Minnesota -- that the conspiracy to commit an illegal act in Minnesota would manifest itself as illegal possession en route to that state. As Fault Line's Erinjeri points out, there's not a ton of logic in that inference.

In the age of Google Maps, it’s a relatively trivial exercise to plot a course from Colorado to Minnesota without going through Nebraska. Apparently Felsheim was either smart enough not to admit to that or (more likely) the police didn’t think to ask that question.

As the court noted, if this "loophole" is going to be closed, it's up to the state's legislature, not the court system. And Felsheim can no more be prosecuted under statutes yet to be created than he can for a conspiracy taking place entirely outside of Nebraska's borders and whose first step involves a completely legal purchase.

Unfortunately for Felsheim, a law the legislature did change arrived far too late to be of any assistance on the cash front. His share of the $67,000 is as good as gone, despite him being cleared by the court. Nebraska became one of the few states to require a conviction to seize assets, but that didn't go into effect until earlier this year. His open admission that the money was going to used to fund illegal drug sales is far, far more than any law enforcement agency would need to stake a claim on the cash, much less justify its seizure in the first place.

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Posted on Techdirt - 26 May 2016 @ 11:49am

'Smart Grid' Company Demands MuckRock Turn Over Info On Anyone Who Might Have Seen Public Records Docs Involving It

from the because-trade-secrets-and-terrorism dept

Earlier this year, FOIA enthusiast/privacy activist Phil Mocek requested documents from Seattle City Light, the city's public-owned utility. Mocek was seeking info on the utility's proposed "smart meter" system, which carried with it some obvious privacy implications.

Pursuant to RCW Ch. 42.56 (Public Records Act), I hereby request the following records:

Plans for, schedules of, policies dictating the performance of, requests for proposals to, contracts for, discussion of, and results of all security audits performed of "smart meter" devices (remotely-addressable electrical meters sometimes referred to as "advanced metering infrastructure"), along with metadata. These devices are designed to replace traditional electric meters. They contain sensors that monitor activities inside subscribers' premises and automatically communicate information collected by those sensors to machines in remote locations.

The replacement of regular meters with potentially-invasive "smart meters" is due to begin in 2017, despite concerns about health and privacy. As the EFF points out, the power company's ability to record pinpoint data on customers' power use may seem innocuous, but it's not nearly as benign if that information is shared, either purposefully or inadvertently.

It’s not just utilities who will have access to your data.   It’s potentially a series of third party corporations including (but not limited to) the utility’s contractors and government agencies. Law enforcement agencies in particular are very keen to be able to see this information. There have already been a lot of cases where utility records have been provided to police who use them to bust marijuana growing operations, and this is simply using the raw energy use data.


Insurance companies and employers might also be interested in your personal energy usage information. Smart meters crack open this door into your private life, making available a huge amount of very personal data.

And that's not even factoring in the unauthorized uses that smart meters may inadvertently lead to if not secured properly.

Multiple documents were provided to Mocek by Seattle City Light, including documents related to the company awarded the smart meter contract: Landis+Gyr. Landis+Gyr isn't happy the city of Seattle has made these documents public, so it's logically responded by suing MuckRock. Yes, it's also suing the city and the utility, but for some reason has decided MuckRock (and Phil Mocek) should be included in the litigation, despite them only being the recipients of documents Landis+Gyr wants to keep out of the public's hands.

It's seeking to have future planned responses from the city involving its "trade secrets" blocked. (Seattle plans to release another batch of documents to Mocek on May 26.) But it's also making requests pertaining to MuckRock that are both chilling and completely ridiculous. Not only does Landis+Gyr want the documents taken down, but it also wants info on every MuckRock reader who may have viewed them.

[A]fter receiving certain unredacted documents through inadvertent, accidental, or improper release by the City in circumstances demonstrating that Defendants knew or should have known the documents contain sensitive network security information and trade secret information, Mocek nonetheless allowed the information to be posted publicly and in unredacted form on the internet site of Defendant Plaintiff Landis+Gyr notified Mocek,, and Defendant Michael Morisy of the apparent error and requested that Landis+Gyr’s sensitive and proprietary information be removed from the website and that provide reasonable assistance to allow Landis+Gyr to identify entities that may have obtained access to is sensitive information.

Michael Morisy refused Landis+Gyr's first request. Now, it's upped the ante by petitioning the court to force MuckRock to assist it in the ultimate fool's errand: the removal of information from the internet.

Immediate relief is needed to require Plaintiffs’ protected information to be immediately taken down from the MuckRocks website, to require to provide assistance to Plaintiffs to identify and retrieve protected information that may have been downloaded from the MuckRocks website

If that wasn't enough, the multinational corporation would like the government to engage in a little prior restraint on its behalf.

[...] enjoin Mocek and from posting Plaintiffs’ protected and sensitive information in the future.

Landis+Gyr seems to be most concerned about the pending release of documents containing pricing info and details about its "smart grid" technology. But, it's also demanding the removal of the two documents already released, both of which are fairly innocuous (and can be viewed below!) As MuckRock's Michael Morisy points out, it should be under no obligation to remove the documents as it's received no notice from the city of Seattle that the documents it has in its possession weren't supposed to be released.

Morisy and MuckRock don't plan to back down.

We believe that these legal threats are a chilling attack on free speech and we will not be complying with their demands.

We also believe people have a broad right to understand the security implications of technology purchased by their governments, particularly if, as is the case with the smart electrical meter systems provided by Landis+Gyr, that technology monitors the activities of people in their homes.

At this point, the injunction doesn't appear to have been granted, which means MuckRock can still (for the time being) host the docs it has already obtained as well as anything else Landis+Gyr-related Seattle sends to Mocek while its request is being reviewed.

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Posted on Techdirt - 25 May 2016 @ 12:35pm

DHS/ICE Knew Its World Series 'Panty Raid' Was A Bad Idea; Pressured To Do So Anyway

from the to-secure-the-nation,-starting-with-the-trademarks dept

The Kansas City Royals' long-delayed return to competitive baseballing coincided with one of the most ridiculous raids ever conducted by the Department of Homeland Security. Birdies, a Kansas City lingerie shop, was "visited" by DHS agents -- working in conjunction with ICE -- who seized a number of panties emblazoned with a handcrafted take on the Royals' logo, along with the phrase "Take the Crown."

The agents performing the raid didn't seem all too enthused about their participation in this panty raid, according to the shop's owner, Peregrine Honig.

She says you could tell “they [DHS agents] felt like they were kicking a puppy.”

Honig also pointed out that many local law enforcement officers had purchased lingerie, including the supposedly-trademark infringing panties, without expressing concerns about IP violations or counterfeited goods.

The printing shop that made the panties for Birdies was also visited by DHS agents, who threatened the owner with six years in prison for "breaking copyright law" unless he consented to a warrantless search.

All of this culminated in plenty of unfavorable press coverage highlighting Homeland Security's panty raid and how much "safer" we all were thanks to its intercession on behalf of the Kansas City Royals and Major League Baseball.

Aaron Gordon of Vice Sports has acquired DHS communications related to the infamous panty raid via a FOIA request. The internal emails contain an awesome mixture of self-congratulation, defensiveness, and the agency's willingness to go above and beyond to please its "eager" partner in IP enforcement.

On October 16, five days before the raid, an anonymous ICE officer from the Intellectual Property Rights Coordination Center (IPRC)—in the documents released, names of officers were redacted; an appeal has been filed to release the names of the officers involved—wrote an email with the subject "Op Team Player - world series update," referring to Operation Team Player, ICE's partnership with U.S. professional sports leagues to intercept counterfeit goods, including tickets and merchandise.

The unnamed officer wrote, "They [the Kansas City office] are trying to get their numbers up and will accept any leads for controlled delivery in Kansas or Missouri, even if they do not meet the criteria because the AUSA Prosecutor is eager."

For the want of increased "numbers," the DHS lowered its standards to raid a lingerie shop. That's basically all there is to it. Without the prompting of an "eager" AUSA, this may never have happened.

Within hours of the raid, the story was already spreading across the internet. A blanket statement was composed for handling inquiries from the press: the usual "Go Team IP Enforcement" jingoism that accompanies ICE's sporting event-related raids performed in close partnership with the MLB, NBA, NFL etc. But someone in the email chain knew the usual stuff wasn't going to be nearly as effective in this case.

The headlines at the bottom of the email pretty much say it all. We're going to be all over the news tomorrow for the wrong reasons. We'll obviously try to spin this as an opportunity to discuss IPR, but the panty raid jokes will make it hard.

Apparently, ICE/DHS felt this particular narrative might be beyond its control. So it tried to drag Major League Baseball down with it.

On the same thread, at 9:57 PM, someone wrote, "We need MLB to step forward and throw some support for what we do. Let us get with our MLB contact and we'll be proactive as we can re: media." Someone with the title "Executive Associate Director of Homeland Security Investigations-ICE" replied, "Great idea. Let's move on it."

As Gordon notes, perhaps the hilarious part of the email chain is the agency's severe underestimation of the internet's thirst for stories containing (a) abuse of government power, or (b) women's intimate garments -- especially any combination of (a) and (b) that's capable of composing its own headlines.

[S]omeone else on the same thread exhibited a fundamental misunderstanding of the internet's interest in panty raids by writing, "So far it appears to have just localized press. Hopefully, it won't make it out of the local news bubble."

Well, hope in one hand and hold seized panties in the other, as they say. Still, one agent appeared to believe that the government's panty raid was nothing more than a judicious use of Homeland Security assets and taxpayer dollars.

Excellent work, which speaks for itself!

Sure does. That's why press coverage was unanimously negative. ICE, DHS and an "eager" AUSA joined forces with MLB to generate additional acronyms like "WTF" and "BS." Americans were protected from unauthorized sportsball underwear -- something than can only serve to increase their respect for intellectual property rights... and the sprawling, often-thuggish bureaucracies that enforce them.

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Posted on Techdirt - 24 May 2016 @ 11:23pm

Appeals Court Tells Government It Must Extend Educational Institution FOIA Fee Price Break To Students

from the you-can-always-make-it-up-with-student-loan-interest dept

The perennial FOIA Reform Masquerade Ball is again under way, with legislators attempting to dodge blustery requests to "cut in" by administration officials and similarly-motivated federal agencies. The dance usually ends with Congressional committee chairmen yanking needles from records and booting everyone out of the dancehall.

Meanwhile, limited headway is being made in another branch of the government, far from the muffled protests of overwhelming majorities who have been shouted down by parties of one. The DC Appeals Court has just ruled that the government must extend its FOIA fee discounts to students at educational institutions, rather than just to instructors and administration.

The Department of Defense has fought this the whole way. It wanted a clear-cut delineation between students and staff for reasons only it comprehends, as that would mean saddling those with fewer financial resources (students) with higher fees.

The decision starts out by noting that FOIA fees -- if high enough -- are an effective deterrent to requesters. It then goes on to examine the government's assertion that the category of "educational institution" does not include these institutions' student bodies.

We thus must decide whether the statutory term “educational institution” is properly read, as the Government reads it, to include teachers but exclude students from the category of preferred requesters who are eligible for reduced fees. We conclude that the Government’s reading is inconsistent with the statute. Indeed, we think the Government’s reading makes little sense at all.


It would be a strange reading of this broad and general statutory language – which draws no distinction between teachers and students – to exempt teachers from paying full FOIA fees but to force students with presumably fewer financial means to pay full freight.

The government -- in making its nonsensical argument that students are not part of educational institutions -- relies on two different pull quotes. One is from a statement Sen. Charles Leahy made way back in 1986 during his legislative push to amend the FOIA to reduce fees for schools.

“A request made by a professor or other member of the professional staff of an educational or noncommercial scientific institution should be presumed to have been made by the institution.”

The government has chosen to believe this excludes students. The court, however, points out that Leahy was actually expanding the definition from what was originally assumed: that only top-level representatives of education institutions (presidents, chairpersons, etc.) could benefit from the lowered fees. The amendment, as written, makes no delineation between staff and students, no matter what the government feels Leahy must have meant when he made that statement.

The second pull quote is from an OMB (Office of Management and Budget) FOIA guideline.

“A student who makes a request in furtherance of the completion of a course of instruction is carrying out an individual research goal and the request would not qualify” as a request made by an educational institution.

With this, you'd figure the DoD has a point. But it doesn't, as the court explains. There are questions that need to be answered and one of them is, "How does the OMB arrive at this conclusion without a single statutory leg to stand on?"

In our view, OMB’s rule for student requests is inconsistent with the statute. FOIA refers broadly to an “educational institution.” As we have explained, we see no good basis in the text or context of FOIA to draw a line here between the teachers and students within the educational institution. The Guideline’s ipse dixit distinction of students from teachers is entirely unexplained and unpersuasive. The Guideline says that a geology teacher seeking information about soil erosion to support her research is entitled to reduced fees. But why not the geology student seeking the same information for the same reason? Crickets. We discern no meaningful distinction for purposes of this statute between the geology teacher and the geology student.

As the court sees it, the OMB's diversion from the statutory mean may be more motivated by its position (the "Budget" part of OMB) to seek higher fees from more requesters -- allowing it to make more money while deterring a certain percentage of FOIA requesters. If so, that's its own problem and one it fixes immediately. The FOIA isn't supposed to be a profit-making enterprise, much less a reliable revenue stream.

But this statute, as we read it, does not empower the Government to pursue fiscal balance or provide relief for the FOIA bureaucracy on the backs of students. The statutory text and context lead us to this simple conclusion: If teachers can qualify for reduced fees, so can students.

The court cautions that its take on the "educational institution" price break is not meant to be read as FOIA: Student Edition and used by attendees to obtain cheap documents for personal or commercial use. It says the government can take steps to prevent abuse by requiring things like copies of student IDs, letters from instructors, etc. That being said, the court is similarly not granting agencies the power to follow the letter of ruling while doing everything they can to break its spirit.

We caution agencies against requiring hard-to-obtain verifications that will have the practical effect of deterring or turning away otherwise valid student FOIA requests.

This is a win for student Kathryn Sack and for all others similarly situated. It returns a fee exemption to a more logical place, rather than leaving it in the shape it was, where it could be used to deter requesters with limited means.

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Posted on Techdirt - 24 May 2016 @ 2:04pm

Another Court Finds FBI's NIT Warrants To Be Invalid, But Credits Agents' 'Good Faith' To Deny Suppression

from the sure,-someone-screwed-up-but-it's-not-going-to-help-you dept

Yet another court has found that the warrant used by the FBI in the Playpen child porn investigation is invalid, rendering its NIT-assisted "search" unconstitutional. As USA Today's Brad Heath points out, this is at least the sixth court to find that Rule 41's jurisdictional limitations do not permit warrants issued in Virginia to support searches performed all over the nation.

While the court agrees that the warrant is invalid, it places the blame at the feet of the magistrate judge who issued it, rather than the agents who obtained it.

That Congress has “not caught up” with technological advances does not change the fact that the target of the NIT in Werdene’s case was located outside of the magistrate judge’s district and beyond her jurisdiction under subsection (b)(1). The property to be seized pursuant to the NIT warrant was not the server located in Newington, Virginia, but the IP address and related material “[f]rom any ‘activating’ computer” that accessed Playpen. (Gov’t’s Opp., Ex. 1 Attach. A.) Since that material was located outside of the Eastern District of Virginia, the magistrate judge did not have authority to issue the warrant under Rule 41(b)(1).

So, unlike other cases, this will not result in a suppression of evidence, thanks to the "good faith exception."

Werdene claims that the Government acted with intentional and deliberate disregard of Rule 41 because the FBI misled the magistrate judge “with respect to the true location of the activating computers to be searched.” (Def.’s Mem. at 17.) This argument is belied by both the warrant and warrant application. Agent Macfarlane stated in the warrant application that the “NIT may cause an activating computer—wherever located—to send to a computer controlled by or known to the government, network level messages containing information that may assist in identifying the computer, its location, other information about the computer and the user of the computer.” With this information, the magistrate judge believed that she had jurisdiction to issue the NIT warrant. Contrary to Werdene’s assertion, this is not a case where the agents “hid the ball” from the magistrate or misrepresented how the search would be conducted.


[T]o the extent a mistake was made in this case, it was not made by the agents in “reckless . . . disregard for Fourth Amendment rights.” Davis, 564 U.S. at 238 (quoting Herring, 555 U.S. at 144). Rather, it was made by the magistrate when she mistakenly issued a warrant outside her jurisdiction.

Added to this is another wrinkle that doesn't work in the defendant's favor. The court also follows Third Circuit precedent in finding that there is "no expectation of privacy" in an IP address, even if a person has taken measures to hide that information from others.

Werdene had no reasonable expectation of privacy in his IP address. Aside from providing the address to Comcast, his internet service provider, a necessary aspect of Tor is the initial transmission of a user’s IP address to a third-party: “in order for a prospective user to use the Tor network they must disclose information, including their IP addresses, to unknown individuals running Tor nodes, so that their communications can be directed toward their destinations.” United States v. Farrell, No. 15-cr-029, 2016 WL 705197, at *2 (W.D. Wash. Feb. 23, 2016). The court in Farrell held that “[u]nder these circumstances Tor users clearly lack a reasonable expectation of privacy in their IP addresses while using the Tor network.”

The FBI is struggling to keep its many Playpen cases from falling apart, thanks to bogus warrants, a tool it refuses to discuss, and unexpected pushback from usually ultra-compliant courts. The proposed changes to Rule 41 will remove jurisdiction limits, but it isn't law yet. (Fortunately, there's an actual effort to prevent this from happening, as it would only take Congressional inactivity to see it become codified.) This outcome doesn't necessarily hurt this particular case, but yet another judge finding the warrants invalid from word one isn't exactly a confidence-builder either.

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Posted on Techdirt - 24 May 2016 @ 12:50pm

Federal Judge Catches DOJ Lying, Sanctions Lawyers With Mandatory Ethics Classes

from the a-small-fix-that-indicates-a-larger-problem dept

The DOJ likes to sling lawsuits and injunctions towards law enforcement agencies with histories of misconduct and deception, but it's apparently less interested in ensuring its own behavior is above reproach.

A lawsuit filed by a handful of states in opposition to the administration's new (and controversial) immigration policies have made their way through a number of courts, with one headed to the top court in the land. Meanwhile, down in Texas, a federal judge has uncovered DOJ lawyers have been engaged in a pattern of deception since the inception of the litigation. While the Supreme Court will be tackling the question of whether the administration has to play by its own rules, Judge Andrew Hanen is spending his time reprimanding the government's lawyers for their misdeeds. (via Jonathan Turley)

What remains before this Court is the question of whether the Government’s lawyers must play by the rules. In other words, the propriety of the Defendants’ actions now lies with the Supreme Court, but the question of how to deal with the conduct, or misconduct, of their counsel rests with this Court. To that end, this Court neither takes joy nor finds satisfaction in the issuance of this Order. To the contrary, this Court is disappointed that it has to address the subject of lawyer behavior when it has many more pressing matters on its docket. It is, at best, a distraction, and there is nothing “best” about the conduct in this case. The United States Department of Justice (“DOJ” or “Justice Department”) has now admitted making statements that clearly did not match the facts. It has admitted that the lawyers who made these statements had knowledge of the truth when they made these misstatements. The DOJ’s only explanation has been that its lawyers either “lost focus” or that the “fact[s] receded in memory or awareness.”

These misrepresentations were made on multiple occasions starting with the very first hearing this Court held. This Court would be remiss if it left such unseemly and unprofessional conduct unaddressed.

The lies the DOJ told involve a 2014 DHS directive that changed its handling of Deferred Action for Childhood Arrivals (DACA). The DOJ told the court and opposing counsel that no action under the new guidelines would commence until February 2015. These statements were made both orally (January 15, 2015) and in a filing (December 19, 2014). But in reality, the guidelines were already being used to process immigrants, resulting in over 100,000 modified DACA applications being granted or renewed by the DHS prior to either of these statements.

This was caught by the court in April 2015, but the DOJ insisted its statements weren't lies, but rather the "innocent mistakes" of poorly-informed counsel, shifting the blame towards the DHS. Months later, the real truth has come out.

Now, however, having studied the Government’s filings in this case, its admissions make one conclusion indisputably clear: the Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions.


In fact, the Justice Department knew that DHS was implementing the three-year renewal portion of the 2014 DHS Directive weeks before its attorneys told this Court for the very first time that no such action was being taken. Apparently, lawyers, somewhere in the halls of the Justice Department whose identities are unknown to this Court, decided unilaterally that the conduct of the DHS in granting three-year DACA renewals using the 2014 DHS Directive was immaterial and irrelevant to this lawsuit and that the DOJ could therefore just ignore it. [Doc. No. 242 at 17]. Then, for whatever reason, the Justice Department trial lawyers appearing in this Court chose not to tell the truth about this DHS activity. The first decision was certainly unsupportable, but the subsequent decision to hide it from the Court was unethical.

This isn't the DOJ lying about a minor procedural detail. This is the DOJ lying about the DACA modification central to the states' lawsuit against the US government. To purposely mislead the court and the defendants about the status of DACA applicants cannot be waved away with claims of foggy memories. It also cannot be waved away with claims that the DOJ had no idea so many applicants were already being processed using guidelines still being contested in federal court.

In its own defense, the Government has claimed it did not know before February 27, 2015, that the number of individuals that had been granted three-year deferrals between November 24, 2014, and the date of the injunction exceeded 100,000. It claims that it notified the Court very quickly after it realized that the number exceeded 100,000. This may be true, but knowing the exact number is beside the point. [...] Whether it was one person or one hundred thousand persons, the magnitude does not change a lawyer’s ethical obligations. The duties of a Government lawyer, and in fact of any lawyer, are threefold: (1) tell the truth; (2) do not mislead the Court; and (3) do not allow the Court to be misled. See MODEL RULES OF PROF’L CONDUCT r. 3.3 cmts. 2 & 3 (AM. BAR ASS’N 2013). The Government’s lawyers failed on all three fronts. [...] The failure of counsel to do that constituted more than mere inadvertent omissions—it was intentionally deceptive. There is no de minimis rule that applies to a lawyer’s ethical obligation to tell the truth.

The DOJ's lies made the court's temporary restraining order a joke.

The Court issued the temporary injunction on February 16, 2015. The timing of this ruling was clearly made based upon the representations that no action would be taken by Defendants until February 18, 2015. If Plaintiffs’ counsel had known that the Government was surreptitiously acting, the Plaintiff States could have, and would have according to their representations, sought a temporary restraining order pursuant to Federal Rule of Civil Procedure 65(b) much earlier in the process. [...] Due to the Government’s wrongful misstatements, the Plaintiff States never got that opportunity. The misrepresentations of the Government’s attorneys were material and directly caused the Plaintiff States to forgo a valuable legal right to seek more immediate relief.

Unfortunately, the court is limited to what it can do in response to the DOJ's misconduct. Holding the DOJ responsible for the involved states' legal fees would result in the participating states effectively paying their own legal fees. It would be nothing more than moving around money collected from taxpayers and, thanks to federal taxes, robbing plaintiffs to pay plaintiffs. Instead, Judge Hanen has ordered that any DOJ lawyer who has -- or will -- appear in the courts of the 26 states involved in the lawsuit attend legal ethics courses. The courses will be provided by a legal agency unaffiliated with the DOJ, and the DOJ itself will be required to provide annual reports to the court confirming these courses are being attended.

This may seem like a laughable conclusion to such widespread, persistent dishonesty, but with the case currently in front of the Supreme Court, Judge Hanen only has a few options at his disposal. Awarding fees would be even more of a joke and he's in no position to find in favor of the State of Texas, much less the other 25 plaintiffs. So, this will have to do. More importantly, this opinion is on the record, in writing, and will serve as documentation of the DOJ's willingness to bend/break rules to serve its own purposes.

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Posted on Techdirt - 24 May 2016 @ 8:38am

Web Sheriff Abuses DMCA In Weak Attempt To Hide Info Under UK High Court Injunction, Fails Miserably

from the hopefully-clients-are-only-paying-for-successful-takedown-requests dept

Last week, Twitter engaged in some dubious behavior on behalf of a few super-secret someones who'd rather the press didn't discuss their sexual activity. Twitter was apparently firing off "letters of warning" to users who had dared break an injunction issued by the UK Supreme Court forbidding anyone in the media from discussing a threesome involving a prominent British celebrity.

There was very little legal force behind the "warning letters" (despite threats from local authorities) and Twitter users were under no obligation to comply with the company's request. The fact that Twitter even bothered to issue these highlights the utter futility of injunctions/super-injunctions of this variety, which are really just a way for British citizens of a certain level of importance to control local media. It doesn't really matter if the UK's highest court upholds a super-injunction if it has no way of enforcing it beyond its super-limited purview.

That doesn't mean the lawyers who have obtained these injunctions on behalf of their clients aren't trying. While doing a bit of research for an unrelated story, I stumbled across Web Sheriff's utter failure to talk Google into delisting URLs by waving this injunction around in a threatening manner.


Whatever these clients are paying Web Sheriff, it's far too much. Web Sheriff has issued 12 requests targeting 447 URLs. And so far, all 447 URLs are still live.

Contained in these takedown notices is an awe-inspiring wall of text -- something that might impress the average DMCA notice recipient. But Google? Not so much. Here's just a very small portion of it:

Then, of course, there are the URLs targeted for delisting, which -- thanks to Web Sheriff's failed injunction-quoting requests -- are all basically injunction spoilers.

Included in the failed notices are some seriously dubious requests, like Web Sheriff demanding an entire post at the Onion's AV Club be taken down because of a single comment and what appears to be Web Sheriff's own attempted Zendesk request for removal of content from Reddit.

Thanks to Web Sheriff's efforts to force the rest of the world to comply with UK law and its ridiculously unenforceable injunctions, more people are now aware of who's being "protected" by the ruling and where to find more details.

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Posted on Techdirt - 24 May 2016 @ 6:23am

Fantastic: Now British Firms Are Getting In On The Bogus Website/Bogus DMCA Notice Scam


Here we go again: intellectual property laws being abused to silence critics. In this case -- which resembles the tactics exposed by Pissed Consumer recently -- bogus copyright claims contained in bogus DMCA notices are being used to remove negative reviews from websites.

In this case, it's a British firm -- one that first tried to abuse that country's oft-abused defamation laws.

[Annabelle] Narey, who is the head of programme at an international children’s charity, had turned to London-based BuildTeam for a side return extension, but almost six months later, the relationship had turned acrimonious. The build, which was only supposed to take 10–14 weeks, was still unfinished, she wrote. “On Christmas day a ceiling fell down in an upstairs bedroom,” she says, apparently due to an issue with the plumbing. “Mercifully no one was hurt. [That] there seem to be so many glowing reports out there it is frankly curious. Proceed at your own risk,” the review concluded.

BuildTeam disputes her account. In a letter sent to Mumsnet, which the site passed on to Narey, the builders complained that the comments were defamatory. They say it is “untrue” that the ceiling fell down due to an issue with plumbing, and cited a total of 11 statements they claimed were defamatory.

Mumsnet refused to remove the post, so BuildTeam decided to start harassing Narey at her home, showing up with printouts of the negative review and asking for it to be taken down. BuildTeam's reps refused to discuss Narey's accusations or verify for themselves the damage allegedly caused by their work. They were only interested in the removal of the review.

More unsatisfied customers joined Narey's thread at Mumsnet. So, BuildTeam decided to nuke the entire thread from orbit by abusing the DMCA process and IP laws meant to protect artistic endeavors, not shoddy construction work.

As soon as the DMCA takedown request had been filed, Google de-listed the entire thread. All 126 posts are now not discoverable when a user searches Google for BuildTeam – or any other terms. The search company told Mumsnet it could make a counterclaim, if it was certain no infringement had taken place, but since the site couldn’t verify that its users weren’t actually posting copyrighted material, it would have opened it up to further legal pressure.

But there was no copyright infringement. The DMCA notice links back to a bogus site created solely for the purpose of posting the review BuildTeam wanted removed, backdating it so it appeared to predate Narey's complaint, and use that post as the basis of a bogus takedown request.

The website crafted for the purpose of crafting bogus takedown requests follows the same M.O. we've seen elsewhere: random bits of content are scraped to create the appearance of a legitimate website. After that, the reviews companies/individuals want to see vanished are mixed in and DMCA notices issued.

Someone calling themselves "Douglas Bush" now claims Narey's negative review of BuildTeam was written by him, according to his overwrought DMCA takedown request.

I'm upset at finding out my article was copied without my permission starting at "Do not be taken in by the slick facade this company presents to the public", word for word, till the very end. My name was also removed from the post, and now it looks like it's not mine. I flagged the post and mentioned that it was stolen, but they did not remove it (about a month passed). At least I want it to be removed from Google. Thank you

As the Guardian's Alex Hern points out, there is no "Douglas Bush."

The post, headlined “Buildteam interior designers” was backdated to September 14 2015, three months before Narey had written it, and was signed by a “Douglas Bush” of South Bend, Indiana. The website was registered to someone quite different, though: Muhammed Ashraf, from Faisalabad, Pakistan.

BuildTeam denies having anything to do with Ashraf, Bush, the bogus website, or its bogus DMCA takedown notice -- a statement that deserves no more credibility than "Douglas Bush" himself. This sort of thing does not happen in a vacuum. It may be that BuildTeam has created plausible deniability by placing a series of intermediaries between it and this bogus DMCA takedown, but it's no coincidence that a review it wanted removed badly enough it sent reps to Narey's house has now been destroyed by a scraper site doing double duty as a half-assed reputation management service.

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Posted on Techdirt - 23 May 2016 @ 12:47pm

Self-Proclaimed 'Badass Lawyer' Loses Defamation Suit Against Parody Twitter Account

from the Todd-Levitt-continues-to-hurt-the-ones-he-loves:-namely,-Todd-Levitt dept

Another defamation lawsuit against a parody account has failed, brought on by a lawyer who should have known better but didn't. Todd Levitt -- self-proclaimed "Badass Lawyer" -- has a verifiable history of bad decisions that perhaps made this sort of bogus litigation a foregone conclusion, however.

Levitt tried to fire up his own reality show, which would have presumably covered such lawyeriffic behavior as singing karaoke with college students, inviting comparisons to TV's sleaziest lawyer (Saul Goodman of Breaking Bad), creating a Top College Lawyers website solely for the purpose of awarding himself the title of "Top College Lawyer," and somehow mistaking alleged defamation for a criminal offense.

Levitt sued the person behind the Todd Levitt 2.0 Twitter account, which parodied the original Levitt's more "badass" qualities, like partaking in excessive amounts of drinking/drug use, as well as the lawyer's Skill Crane-esque grasp on the nuances of the law. According to Levitt, the parody account, which clearly stated on more than one occasion that it was a parody account, was resulting in lost clients.

A Michigan court dismissed his lawsuit last February. Levitt appealed the decision only to find the Michigan Appeals Court no more sympathetic to his weak claims. (via The Volokh Conspiracy)

The court spends some time discussing Levitt's own behavior, as it's definitely relevant to the supposed "harassment" he "endured" at the hands of the short-lived, barely-followed parody account.

Todd Levitt is an attorney and a former adjunct professor at Central Michigan University (CMU). Allegedly, university students are a primary clientele of plaintiff law firm. Levitt was actively involved in marketing his law firm on various social media platforms, including Twitter. His since-deleted Twitter account represented that he was a “badass lawyer.” In addition to promoting his law practice on Twitter, Levitt admittedly made several posts which referenced marijuana and alcohol use. For instance, he posted a tweet about serving alcohol in a class he taught at CMU, and in another, stated that “Mr. Jimmy Beam just confirmed a guest appearance in class next week.” In other tweets, he reminisced about his days as a student at CMU, stating that he “tore it up” in the 1980s, and warning students not to “jump [while] drunk” in the elevators at a certain dormitory. He tweeted about being a guest bartender at a local bar and about throwing an end-of-semester party. He also referenced marijuana in several tweets; in one tweet he posted an ode to “mommy marijuana,” who “always put me at ease.” In addition, he tweeted that if marijuana were legal in Mount Pleasant, Michigan, the CMU “dorms would look like they were on fire.”

With this much ammo being provided by the plaintiff, it's hardly surprising that a less-than-impressed CMU IT employee (Zachary Felton) would issue tweets like these from the Todd Levitt 2.0 account.

1. “What’s the difference between the internet and my tweeted legal advice? A: none. They’re both 100% accurate!”

2. “Buying me a drink at Cabin Karaoke will get you extra [credit], but it’s not like that matters because you are guaranteed an A in syllabus.”

3. “Partying = Defense Clients[.] Defense Clients = Income[.] If I endorse partying, will my income grow? It’s like a Ponzi scheme for lawyers!”

4. “@twebbsays should either meet me at 4/20 in my satellite office or take a hiatus from the medical card” and “#inToddWeToke” and “4/20 = Pot smoking holiday[.] Possession of marijuana = Client[.] Client = Income[.] In the words of Snoop Dogg: smoke weed every day. #inToddWeToke[.]”

Why these tweets would "attack Levitt's credibility" more than anything Levitt himself had posted is something only Levitt comprehends. The Appeals Court, however, finds in favor the First Amendment and parody accounts -- especially those clearly defined as parody accounts.

When read in context, defendant’s tweets are a parody and cannot reasonably be interpreted as coming from Levitt, an attorney and college professor. The cited tweets ridicule and demean the legal profession, as well as Levitt’s status as an attorney and a college professor. In particular, some of the tweets encourage followers to commit alcohol and drug-related offenses in order to further Levitt’s business. As aptly stated by the trial court, “[i]t would be quite foolish for an attorney to outright state by way of self-promotion that he wants college students to drink and use illegal drugs so that he can increase his income by defending them in court.” Other tweets suggest that Levitt’s students can earn extra credit in his class by buying him a drink. Surely this statement cannot be interpreted as coming from a college professor. As noted by the trial court, when the challenged tweets are read in the context of Levitt’s own tweets, a reasonable person would see defendant’s tweets as attempting to ridicule and satirize Levitt’s tweets about alcohol and marijuana use.

Moreover, the idea that the tweets were a parody is soundly reinforced by several disclaimers posted to the imposter account stating that the account was indeed a parody. At the outset, the account itself was styled as “Todd Levitt 2.0,” which has come to be commonly accepted jargon for describing an upgrade of an original concept. Thus, “Todd Levitt 2.0” signals that the account was identifying itself as a superior or upgraded version of Levitt, which hints at the notion that it is a spoof. Further, defendant’s tweets expressly stated, on multiple occasions, that the account was intended as a parody. For instance, one tweet read that the account was “[a] badass parody of our favorite lawyer . . . .” Another gave a “gentle reminder to potential seekers of Todd Levitt: This is not him. This is a parody account. You can find the real Todd(ler) @levittlaw.” (Emphasis added). In light of these statements, a reasonable reader could not have interpreted the account as stating actual facts about Levitt.

Levitt's worst enemy isn't a parody Twitter account. It's himself. And it's been that way since long before a CMU student started mocking his outlandish behavior on social media. Levitt is still pursuing a defamation lawsuit against Digital First Media for its coverage of his Twitter lawsuit and, at one point, had Felton's lawyer listed as a defendant. That lawsuit is currently awaiting a decision from the Court of Appeals.

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Posted on Techdirt - 23 May 2016 @ 11:39am

FBI Agent Testifies That The Agency's Tor-Exploiting Malware Isn't Actually Malware

from the just-a-tool-that-does-things-to-people's-computer-w/o-their-knowledge-or-per dept

It wasn't supposed to go this way. The same tactics that are causing the FBI problems now -- running a child porn website, using local warrants to deploy its spyware to thousands of computers around the US (and the world!) -- slipped by almost unnoticed in 2012. In a post-Snowden 2016, the FBI can hardly catch a break.

Just recently, a judge presiding over one of its child porn cases agreed the FBI should not be forced to hand over details on its Network Investigative Technique to the defendant. Simultaneously, the judge noted the defendant had several good reasons to have access to this information. While this conundrum spares the FBI the indignity of the indefinite confinement it's perfectly willing to see applied to others, it doesn't exactly salvage this case, which could be on the verge of dismissal.

In related cases, judges have declared the warrant used to deploy the NIT is invalid, thanks to Rule 41's jurisdictional limits. If a warrant is issued in Virginia (as this one was), the search is supposed to be performed in Virginia, not in Kansas or Oklahoma or Massachusetts.

While the larger issue of whether the evidence can be used against Jay Michaud continues to be discussed, the FBI is spending its time officially expressing its displeasure with its NIT being referred to disparagingly as "malware."

In a testimony earlier this week in the case of US vs. Jay Michaud, FBI special agent Daniel Alfin argued that the hacking tool used to identify Michaud and thousands of other Playpen users—which the FBI euphemistically calls a “Network Investigative Technique” or “NIT”—isn't malware because it was authorized by a court and didn't damage the security of Michaud's computer.

According to the FBI agent, this software isn't malware because it doesn't do any permanent damage.

I have personally executed the NIT on a computer under my control and observed that it did not make any changes to the security settings on my computer or otherwise render it more vulnerable to intrusion than it already was. Additionally, it did not “infect” my computer or leave any residual malware on my computer.

In a very limited sense, Agent Alfin is correct. The tool left no residual damage, nor did it alter settings on the end users' computers. However, it did do something most computer users would consider malicious: it stripped them of their anonymity. The people visiting this site used Tor to obscure their identifying info. They did this on purpose, most likely because they were seeking illegal content. But the fact that the tool removes protections users consciously deployed makes it malicious.

Child porn enthusiasts and other criminals aren't the only people who take active steps to obscure their connection points. Journalists do it. Activists do it. Citizens of oppressive government do it. The FBI doesn't restrict itself to only deploying its surveillance tools against the worst of the worst. It has a long, troubling history of deploying its surveillance tools against people engaged in activities protected by the First Amendment. Anything that undoes something the recipient has proactively done is by definition unwanted, if not simply malicious.

As regular Techdirt commenter That Anonymous Coward pointed out on Twitter, the FBI sure as hell would find this tool "malicious" if it were directed at its computers and devices by someone outside of the agency. This would definitely fit under the CFAA's broad definition of "unauthorized access." Deploying this NIT via a compromised FBI server would make it a lot easier to locate agents working in the field. I don't think the FBI would be OK with this despite there being no "residual malware" left behind after field devices had been identified and located.

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Posted on Techdirt - 23 May 2016 @ 8:28am

Another Whistleblower -- One Who Tried To Protect Other Whistleblowers -- Says The 'Official Channels' Are Worthless

from the an-empty-complaint-box-is-not-an-indicator-of-a-well-run-spy-agency dept

There are no safe routes for intelligence community whistleblowers. The proper channels are pretty much guaranteed to end your career. The same goes for the unofficial channels, which route through countries uninterested in complying with extradition requests.

The administration has prosecuted more than its share of whistleblowers over the last eight years. (In fact, its share of prosecutions outnumbers all those in previous presidential administrations combined.) Another whistleblower has come forward to provide details on… the government's treatment of whistleblowers.

John Crane, a former senior Defense Department official, details his firsthand experience with the government's zealous pursuit of previous NSA whistleblowers like Thomas Drake and William Binney. He was part of the "official channels" and actively fought to protect these individuals from government retaliation. As Mark Hertsgaard of The Guardian notes, Crane carried with him at all times two essential documents: a copy of the Constitution and a copy of the Whistleblower Protection Act of 1989. These were often pulled out to settle disputes over treatment of whistleblowers.

According to Crane, these whistleblowers followed all of the correct protocols when expressing their concerns about warrantless domestic surveillance and the NSA's failure to move forward on communications it had collected from the terrorists who would go on to perform the 9/11 attacks. While this did budge the Congressional needle on a couple of NSA programs, it did nothing to protect the whistleblowers from FBI raids, criminal charges, and the end of their careers with the US government.

The person most instrumental in the prosecution of these whistleblowers was the DoD's general counsel, Henry Shelley. It was Shelley who stripped away the protections granted to whistleblowers in order to serve them up to a highly-irritated Bush White House.

According to Crane, his superiors inside the Pentagon’s Inspector General’s office were eager to help. Henry Shelley, the general counsel – the office’s top lawyer – urged that the IG office should tell the FBI agents investigating the Times leak about Drake and the other NSA whistleblowers.

Crane fought back, pointing out that whistleblowers are supposed to be protected (using the copy of the Whistleblower Act he always carried with him). Shelley was unimpressed by Crane's citation of applicable statutes and told him he was in charge and would do things his way.

There were no further discussions between Crane and Shelley. The next move was made by the DOJ, which sent the FBI after four NSA whistleblowers. Crane suspected Shelley had used information obtained from the Inspector General's office to identify the whistleblowers. Shelley refused to discuss the raids with Crane. Four months later, the FBI raided Thomas Drake's house based on an indictment that seemed all too familiar to Crane.

The complaint from Drake’s lawyers seemed to confirm his suspicion that someone in the IG’s office had illegally fingered Drake to the FBI. Worse, the indictment filed against Drake had unmistakable similarities to the confidential testimony Drake had given to Crane’s staff – suggesting that someone in the IG’s office had not simply given Drake’s name to the FBI, but shared his entire testimony, an utter violation of law.

Crane also claims the Inspector General's office told him to stonewall a FOIA request crucial to Drake's defense against the government's charges until after his trial. The IG's office also "accidentally" destroyed records related to Drake's retaliation complaint against the government. Crane was told by Shelley that this "wasn't a problem" and could continue not being a problem if Crane was a "good team player."

Crane -- like other whistleblowers and those who fight for them -- was forced out of his job. The Inspector General's second-in-command ordered him to resign in 2013. He's been fighting back ever since.

Crane filed a complaint against Shelley and Halbrooks, detailing many more alleged misdeeds than reported in this article. The Office of Special Counsel, the US agency charged with investigating such matters, concluded in March of 2016 that there was a “substantial likelihood” that Crane’s accusations were well-founded. The OSC’s choice of the term “substantial likelihood” was telling. It could have ruled there was merely a “reasonable belief” Crane’s charges were true, in which case no further action would have been required. By finding instead that there was a “substantial likelihood”, the OSC triggered a process that legally required secretary of defense Ashton Carter to organise a fresh investigation of Crane’s allegations.

Unfortunately, the investigation is back in the DOJ's hands because the Department of Defense -- like other government agencies -- isn't allowed to investigate itself. The DOJ is being entrusted with investigating yet another whistleblower's claims, but its history of zealous prosecutions suggests it's far more comfortable investigating the whistleblowers themselves.

John Crane was part of the "proper channels" for whistleblowers and, despite his best efforts, several whistleblowers were raided, indicted, and prosecuted. Crane himself was ousted from his position. The logical conclusion whistleblowers like Ed Snowden will reach is that the official channels are no less dangerous than the "unofficial" options. The latter option may be more unpredictable, but it gives whistleblowers a much better chance of being heard.

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Posted on Techdirt - 23 May 2016 @ 3:23am

Judge Says Defendant Has Right To Examine FBI's Hacking Tool While Stating FBI Has Right To Withhold Details

from the gridlock dept

As we covered recently, the judge presiding over Jay Michaud's case in Washington -- part of the FBI's Playpen child porn sting operation -- recently declared the FBI did not have to turn over information on its hacking tool to the defense. How Judge Robert Bryan arrived at this conclusion wasn't fully explained during his oral order, but it had something to do with the government's secret, judge's-eyes-only presentation that preceded the order.

It also may have had something to do with the government's declaration that it wouldn't be turning over this information to Michaud under any circumstances. Either way, Bryan arrived at the contradictory conclusion that the FBI did not need to turn over this information despite conceding the defense had a right to see this information.

A written ruling has been issued which offers a bit more in the way of explanation while simultaneously failing to deliver Judge Bryan from the conundrum he has created. (via Ars Technica)

The government’s oral arguments on February 17 and May 12, 2016 and its related briefing addressing materiality essentially amount to an ipse dixit argument, without convincing expert support, that 1) giving the defendant full access to the N.I.T. code will not turn up anything helpful to the defense, and 2) a showing of materiality demands facts, not hypotheses, and the defendant has done nothing more than fabricate guesses about what the N.I.T. code could show.

Bryan believes the government is entitled to withhold this information. He also believes the information should be handed over to the defense for a number of reasons.

These arguments bear little fruit. The defendant is not required to accept the government’s assurances that reviewing the N.I.T. code will yield no helpful information. The government asserts that the N.I.T. code will not be helpful to the defense, but that information may well, in the hands of a defense lawyer with a fertile mind, be a treasure trove of exculpatory evidence.

Judge Bryan points out the information still has worth to the defendant even if it doesn't show anything that could result in suppressed evidence. It could also be the details do nothing more than further cement the government's case against Michaud. If so, all the more reason for the defense to have access to it.

Furthermore, even if the defendant’s review of the N.I.T. code ultimately only yields inculpatory evidence,“[e]ven inculpatory evidence may be relevant [because a] defendant who knows that the government has evidence that renders his planned defense useless can alter his trial strategy.

Acknowledging the conundrum is the first step.

The resolution of Defendant’s Third Motion to Compel Discovery places this matter in an unusual position: the defendant has the right to review the full N.I.T. code, but the government does not have to produce it. Thus, we reach the question of sanctions: What should be done about it when, under these facts, the defense has a justifiable need for information in the hands of the government, but the government has a justifiable right not to turn the information over to the defense?

According to motions filed by Michaud, one way out of the mess is the dismissal of the case. Bryan doesn't exactly seem amenable to that outcome -- especially given his belief that the FBI's secrecy is justified -- but with this much paint surrounding his corner, he may be forced to resolve this in favor of the defendant, rather than continue to lock him out of information that could drastically alter its outcome.

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Posted on Techdirt - 20 May 2016 @ 7:39pm

Google Goes On The Offensive Against Troll Armed With Old Mp3 Player Patent

from the Creative-Labs-forcing-its-way-back-into-the-market dept

It wasn't enough that Creative Labs/Creative Technology spent March 24th suing almost every big name in the cell phone business for patent infringement. These lawsuits, all filed in the East Texas patent troll playground, asserted the same thing: that any smartphone containing a music app (which is every smartphone produced) violates the patent it was granted in 2005 to use in conjunction with its mp3 players. "Venue is proper" because smartphones are sold in Texas, even if the plaintiffs are located in California and Singapore, respectively.

That wasn't all Creative Technology did. It also filed a complaint with the US International Trade Commission seeking to block the import of smartphones from manufacturers like Sony, LG, BlackBerry, Samsung, etc. under the theory that every imported phone contains patent-infringing software. The ITC has opened an investigation of Creative's allegations, which will at least hold off any potential import blocks until it reaches a decision. The ITC's summary of Creative's patent claims clearly shows how broad the patent's potential coverage is -- and (inadvertently) why it should be invalidated.

The products at issue in the investigation are portable electronic devices, such as smart phones, with the capability of playing stored media files selected by a user from a hierarchical display.
Creative Labs started its patent war early, suing Apple back in 2006 for "violating" its patent with its iPods. Apple ultimately settled with Creative for $100 million -- not only encouraging Creative's trolling ways but also moving Apple towards more aggressive acquisition (and defense) of patents, even for something truly obvious like "rounded corners."

Google has decided it's not going to wait around for the ITC or east Texas courts to come to the wrong conclusions. It's gone on the offensive, seeking declaratory judgment that it does not violate Creative's broad patent. Every company sued by Creative on March 24th sells Android phones that contain Google's "Play Music" app. On behalf of its customers (and its own Motorola Mobility, which was also sued), Google wants Creative's BS patent's power neutered.
No version of the Google Play Music app directly or indirectly infringes any claim of the ’433 patent. No third party infringes any claim of the ’433 patent by using the Google Play Music app in other devices. Google has not caused, directed, requested, or facilitated any such infringement, and has not had any specific intent to do so. The Google Play Music app is not designed for use in any combination that would infringe any claim of the ’433 patent. Rather, the Google Play Music app has substantial uses that do not infringe any claim of the ’433 patent.


An actual and justiciable controversy therefore exists between Google and Creative regarding whether the Google Play Music app infringes or has infringed the ’433 patent. A judicial declaration is necessary to determine the respective rights of the parties regarding the ’433 patent. Google seeks a judgment declaring that the Google Play Music app does not directly or indirectly infringe any claim of the ’433 patent.
Creative is asking for a substantial payout for something as obvious as selecting and adding songs to a playlist. The claim specified in its lawsuits is this one:
The method of selecting a track as recited in claim 1 wherein the accessing at least one track comprises selecting an item in the third display screen and adding at least one track associated with the selected item to a playlist.
If Google's receives a judgment in its favor, it will at least protect the cell phone manufacturers from having to deal with claims related to its "Music Play" app. For all of those that load their own music apps on their phones (which, again, is all of them), they're still on their own when it comes to fending off Creative's rent-seeking.

The market has changed and left Creative behind. Back when it sued Apple, it at least had a competing mp3 player on the market. Now, it has nothing even remotely related to smartphones, but still thinks it's entitled to a cut of those profits because it made music players once upon a time. And it's so desperate to leech off viable companies that it's willing to abuse more than a friendly district court to achieve its ends.

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Posted on Techdirt - 19 May 2016 @ 11:48am

Cop Abuses Bad Cyberbullying Law To Arrest Man For Calling Him A Pedophile To His Face

from the wrap-your-mind-around-that-for-a-bit dept

Legislators like pushing cyberbullying/cyberharassment bills, but seldom seem to consider how their badly/broadly-written laws will be abused. Like many legislators pushing cyber legislation, New Jersey politician David Norcross just wanted to help the children.

State Sen. Donald Norcross (D-Camden) said the bill is tailored specifically to protect children, closing a loophole in state law that prevents people from being criminally prosecuted for online harassment of minors.

"There have been cases of cyber harassment across the country that have taken a tragic turn, and ended in the loss of life," Norcross, who co-sponsored the bill with state Sen. Nicholas Sacco (D-Hudson), said. "We have to make sure that our state laws reflect the reality that children are being harassed and bullied every day on the Internet. That means making sure those who engage in this conduct can be held accountable under the law."

The bill would ban people from using electronic devices and social media to threaten to injure or commit any crime against a person or his property, or send obscene material to or about someone.
So much for the "specific tailoring." Norcross wanted to protect kids from bullies, but instead it's "protecting" a cop from a local man with a long history of colorful speech and law enforcement interactions.
They’ve busted him for smoking pot, running a business past curfew, and not keeping his restaurant’s kitchen clean enough.

On Friday, however, it was Ed Forchion’s mouth that got him slapped in handcuffs, freedom of speech notwithstanding.

Days after Forchion stood outside his eatery and pot temple shouting “f— the police!” and calling one of the police officers a “pedophile,” NJ Weedman was charged with cyber-harassment and disorderly conduct.

The cyber-harassment charge, according to a copy of the complaint filed by Officer Herbert Flowers, was based on a Facebook and YouTube video of the confrontation in which Forchion is heard telling Flowers he’s a pedophile, while the disorderly conduct was for Forchion’s F-bombs against police “in public and social media forum.”
F-bombs are protected speech, so even the "disorderly conduct" charge is largely baseless. But the use of the cyberharassment law -- which carries a possible penalty of 18 months in jail and a $10,000 fine -- is completely ridiculous. If Forchion committed no crime by calling Officer Flowers a pedophile in person, no crime was committed simply because this confrontation was recorded (by a third party) and posted to YouTube (also, apparently by a third party).

This is simply a bad law being abused because that's what bad laws -- no matter how well-intentioned -- allow people like Officer Flowers to do.

Officer Herbert Flowers has a history of subjectively interpreting Constitutional rights. He may have been upset by Forchion's F-bombs, but that doesn't explain his decision to punish Forchion for using his First Amendment rights. But Flowers has been down this road before.

Here's the conclusion reached by the New Jersey Appeals Court, at the tail end of a six-year legal battle.
[W]e conclude that a reasonable police officer in 2006 could not have believed he had the absolute right to preclude Ramos from videotaping any gang activities or any interaction of the police with gang members for the purposes of making a documentary film on that topic.
The unreasonable police officer was none other than Herbert Flowers.
Ramos is a documentary filmmaker. In 2006, he was working on a project about the emergence of gangs in Trenton. Flowers is a police officer employed by the Trenton Police Department. Ramos contends that he had five encounters with the Trenton Police during the time he was filming the activities of various members of the “Sex Money Murder” Bloods sect, one of the largest Bloods gang units in Trenton. Three of the encounters involved Flowers. He alleges that Flowers’ actions during those three encounters interfered with his constitutional rights to free speech and assembly, as well as his right to be free from unlawful police search and seizure.
One of those encounters:
On July 6, 2006, the Trenton police responded to a call from the Trenton Public Library to investigate a meeting being held by known gang members on its premises. One of Ramos’s sources gave him a tip that he should go to the library to film the events as they unfolded. Once Ramos arrived at the library, Flowers told him he was interfering with a police investigation, adding: “I am sick of you already, I am sick of seeing you, I do not want to hear you anymore, you are not allowed here anymore.” Ramos asserts that Flowers grabbed his video camera and put it in his car. Flowers then told Ramos: “If I see you again … I am locking you up and I don’t care what for … you better not let me see you again … watch what happens.”
The filmmaker was charged with multiple violations after his arrest by Flowers. Only one charge stuck (obstructing a sidewalk), which was downgraded to a mere city ordinance violation.

Flowers is using a badly-written law meant to close statutory loopholes that prevented adults from being charged for harassing minors via social media to punish an adult for saying mean things to him to his face. Because Flowers didn't arrest Forchion on the spot, this means he had to go looking for "evidence" of Forchion's supposed "cyberharassment," which the officer somehow feels is a better statutory match for verbal abuse he experienced in person. Sure, Flowers could try to sue Forchion for defamation, but that takes time and Flowers' own cash. Flowers would rather have taxpayers finance his vendetta and see Flowers face a possible $10,000 fine and a stretch in jail than walk away from the disorderly conduct charge he likely won't be able to make stick.

This is why we warn against the unintended consequences of laws like these. It's not because we don't care about bullied kids. It's because adults -- especially those in positions of power -- will abuse them to stifle speech. Rather than simply ignore the personal attack, Flowers chose to treat it as a criminal offense. The end result is that Forchion, a.k.a. "NJ Weedman" -- a person who runs a "pot temple" he apparently feels is beyond the reach of state regulation -- is now the least ridiculous participant in this confrontation.

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Posted on Techdirt - 18 May 2016 @ 3:36pm

Judge: Taking Your Facebook Account Private During Litigation Isn't Exactly 'Preserving Evidence'

from the 'sharing' dept

If your social media "presence" has been submitted as evidence, you'd better leave everything about it unaltered. That's the conclusion reached by the judge presiding over a Fair Housing Act lawsuit. The plaintiff didn't go so far as to delete Facebook posts relevant to the case at hand, but did enough that the defense counsel (representing the landlord) noticed everything wasn't quite the way it was when the plaintiff was ordered to preserve the evidence.

According to one of the lawyers for the defense, she accessed plaintiff’s accounts at one point despite not being “friends” with plaintiff. She later looked at the accounts and saw many posts were missing. The Plaintiff also testified that, to her knowledge, she never deleted anything. She did hide a few posts from her timeline which appeared there because she had been tagged by others. She said she thought she originally set her Facebook account to private and she merely double checked this after defendant filed its spoliation motion.
Whether or not the plaintiff was telling the truth about the Facebook account's privacy settings ultimately doesn't matter. She changed something after being instructed not to. This resulted in posts being hidden from public view. According to the court, this flip of a digital switch was a violation of the order to preserve evidence.
By altering her Facebook account, Thurmond violated the Court’s May 21 order. Her conduct had the effect of hiding her postings from public view, and hence from defendants’ counsel’s view.
There were no sanctions for this action. Just a few stern words from the judge. The damage done was minimal as the defense counsel was still able to obtain the "missing" posts. The plaintiff herself offered to print out the hidden posts in an effort to comply with the order. Of course, this offer came after she had altered the privacy settings and the defense counsel had noticed the alteration.

The damage, however, could cost the plaintiff her case, even if the judge isn't going to issue sanctions for violating a preservation order and even though the defense was able to recover the missing posts.
Of course, it does not appear that the postings were deleted, and they remain available for defendants’ use, and defendants have not shown that they were prejudiced by Thurmond’s conduct in violating the order. Nevertheless, it is troubling that the posts were removed from public view after this Court issued a consent order designed to preserve the status quo of her social media accounts. Also troubling is Thurmond’s execution of an affidavit that contained a statement she knew to be inaccurate. Although the false statement was ultimately immaterial to the issues in the pending motions, Thurmond’s willingness to sign the affidavit knowing or having reason to know that it included a false statement threatens the integrity of the judicial process. Thurmond’s conduct in both respects is certainly a fair subject for cross-examination at trial and could result in the impeachment of her credibility.
As Venkat Balasubramani points out, changing privacy settings on relevant social media accounts during litigation is something to do "at your own peril." In this case, the damage was minimal. At most, the plaintiff undercut her own credibility. That may cost her a positive ruling, but it won't result in anything more serious like jail time.

What is a larger problem are the federal rules for evidence preservation, which include preserving evidence you possibly won't even know is evidence until you've been indicted. As we've seen in the past, rules meant to prevent corporations from using culpatory documents for bonfire fuel are instead being used by the feds to stack charges against defendants who've done normal computer housecleaning, like culling hard drive clutter or clearing their browser history.

Sarbanes-Oxley says evidence -- which now apparently includes every bit of your digital presence in addition to physical files -- relevant to "foreseeable investigations" must be preserved. Since citizens don't initiate investigations, the ball is completely in the government's court, and every investigation seems "foreseeable" once it's underway. Those being investigated may not have seen it coming, but they're still saddled with a post facto requirement to preserve evidence dating back to whatever arbitrary point the government declares to be the beginning of the alleged wrongdoing. Civil litigants may get away with nothing more than some words from an irritated judge, but federal defendants won't be nearly as lucky. Thanks to the misuse of this law, anyone changing privacy settings to a social media account does so "at their own peril."

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Posted on Techdirt - 18 May 2016 @ 2:09pm

Federal Judge Says Internet Archive's Wayback Machine A Perfectly Legitimate Source Of Evidence

from the score-one-for-the-internet's-unofficial-backup-system dept

Those of us who dwell on the internet already know the Internet Archive's "Wayback Machine" is a useful source of evidence. For one, it showed that the bogus non-disparagement clause KlearGear used to go after an unhappy customer wasn't even in place when the customer ordered the product that never arrived.

It's useful to have ways of preserving web pages the way they are when we come across them, rather than the way some people would prefer we remember them, after vanishing away troublesome posts, policies, etc. performs the same function. Screenshots are also useful, although tougher to verify by third parties.

So, it's heartening to see a federal judge arrive at the same conclusion, as Stephen Bykowski of the Trademark and Copyright Law blog reports.

The potential uses of the Wayback Machine in IP litigation are powerful and diverse. Historical versions of an opposing party’s website could contain useful admissions or, in the case of patent disputes, invalidating prior art. Date-stamped websites can also contain proof of past infringing use of copyrighted or trademarked content.

The latter example is exactly what happened in the case Marten Transport v. PlatForm Advertising, an ongoing case in the District of Kansas. The plaintiff, a trucking company, brought a trademark infringement suit against the defendant, a truck driver job posting website, alleging unauthorized use of the plaintiff’s trademark on the defendant’s website. To prove the defendant’s use of the trademark, the plaintiff intended to introduce at trial screenshots of defendant’s website taken from the Wayback Machine, along with authenticating deposition testimony from an employee of the Internet Archive.
The defendant tried to argue that the Internet Archive's pages weren't admissible because the Wayback Machine doesn't capture everything on the page or update every page from a website on the same date. The judge, after receiving testimony from an Internet Archive employee, disagreed. He found the site to a credible source of preserved evidence -- not just because it captures (for the most part) sites as they were on relevant dates but, more importantly, it does nothing to alter the purity of the preserved evidence.
[T]he fact that the Wayback Machine doesn’t capture everything that was on those sites does not bear on whether the things that were captured were in fact on those sites. There is no suggestion or evidence … that the Wayback Machine ever adds material to sites.
Further, the judge noted that the archived pages were from the defendant's own website and he'd offered no explanation as to why pages from his own site shouldn't be considered as evidence of alleged infringement.

It's nice to know that what many of us have considered an independently-verifiable source of evidence is also acceptable in federal courts. It's more than just a handy way to preserve idiotic statements and potentially-illegal customer service policies. It's also a resource for litigants who might find their opponents performing digital cleanups after a visit from a process server.

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