Posted on Techdirt - 22 February 2017 @ 4:46pm
Starting last summer, we noted that the Department of Homeland Security had quietly tested the waters to expand the information it requested of travelers entering the United States, to "optionally" include social media handles. By December it was officially in place. And then, just days into the new administration, the idea was floated to expand this program even further to demand passwords to social media accounts.
In other words: that escalated quickly. We went from "hey, maybe we could ask people to volunteer what their social media profiles are" to "hey, let's demand all social media accounts, including passwords" in, like, six months.
In response, a ton of human rights and civil liberties organizations have posted an open letter condemning this dangerous plan.
This proposal would enable border officials to invade people’s privacy by examining years of private emails, texts, and messages. It would expose travelers and everyone in their social networks, including potentially millions of U.S. citizens, to excessive, unjustified scrutiny. And it would discourage people from using online services or taking their devices with them while traveling, and would discourage travel for business, tourism, and journalism.
Demands from U.S. border officials for passwords to social media accounts will also set a precedent that may ultimately affect all travelers around the world. This demand is likely to be mirrored by foreign governments, which will demand passwords from U.S. citizens when they seek entry to foreign countries. This would compromise U.S. economic security, cybersecurity, and national security, as well as damage the U.S.’s relationships with foreign governments and their citizenry.
Policies to demand passwords as a condition of travel, as well as more general efforts to force individuals to disclose their online activity, including potentially years’ worth of private and public communications, create an intense chilling effect on individuals. Freedom of expression and press rights, access to information, rights of association, and religious liberty are all put at risk by these policies.
The first rule of online security is simple: Do not share your passwords. No government agency should undermine security, privacy, and other rights with a blanket policy of demanding passwords from individuals.
There are lots of reasons why the proposal is bad -- but the security one is probably the biggest. People should never share passwords with anyone, but most especially foreign governments who have no interest in protecting them. And the letter is accurate that this will just encourage other countries to do this back to Americans (and others) and create a massive security nightmare. And that doesn't even touch on the chilling effects created by such promised surveillance.
Of course, one hopes that this kind of insane policy will get people to recognize that passwords suck as a security system. At the very least, it should encourage people to use multifactor authentication that can't just be handed over to some random border control person demanding your passwords. But that's no excuse for DHS going down this path in the first place. It's a bad proposal that won't help DHS protect us, but will cause tremendous harm and create serious security problems.
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Posted on Techdirt - 22 February 2017 @ 9:24am
The news site Mashable has apparently decided that you, the general public, are simply too dumb to actually own the stuff you thought you bought because you might just injure yourself. We've written about so-called "right to repair" laws and why they're so important. There are a variety of issues, but the most basic one here is about property rights. If you buy something, it's supposed to be yours. It doesn't remain the property of whoever first made it. And they shouldn't then be able to deny you the ability to tinker with, modify, or repair what you bought. However, Mashable's Lance Ulanoff (last seen here being completely clueless about the importance of anonymity online because he, personally, never could see a reason why someone might want to speak truth to power without revealing who they are), has decided that because you might be too dumb to properly repair stuff, the entire "right to repair" concept "is a dumb idea."
The article can basically be summed up as "I have a friend, and her iPhone wasn't repaired properly, so no one should be able to repair your iPhone but Apple." Really.
My co-worker, Tracey, held her iPhone like a baby bird with a bent wing.
I stared at the dark screen. The device was still on, but stuck somewhere between living technology and a dead iPhone. Tracey said that the device made a popping sound and got really hot in one corner while she was making a phone call. Then, her screen cracked, and burnt her ear. She wanted to know what to do. She explained the incident happened shortly after having third-party iPhone screen repair company iCracked replace her shattered iPhone 6 screen. iCracked was ready to let the original technician repair her phone again. I warned her against it. The phone was obviously dangerous—and letting them touch it again probably wouldn’t help. In fact, I thought it might hurt.
Getting past the "using a single anecdote to generalize to absolutely everyone," this still makes no sense. If we want to rule that any kind of repair/modification/tinkering shouldn't be allowed if it might not work right, well... there goes the entire DIY space. This weekend I repaired a broken toilet. It's entirely possible that I could have messed it up (in fact, I did at first, but after a couple of helpful YouTube videos, I got it figured out). Should I not have been allowed to do that? Should I have had to call a plumber who would have charged me $150 just to walk in the door? Lance Ulanoff apparently thinks that's the case. I'm not exactly a handyman, but over the years, I've repaired a ton of stuff in my house from broken dishwashers, computers, garage door openers and more. And sure, if I did it wrong, it could have been dangerous (that garage door opener, in particular, was pretty tricky). But do we really want to live in such a paternalistic society that we shouldn't even be allowed to do that? That seems to be the crux of Ulanoff's article.
Right-to-Repair? What a ridiculous thing to say. No one has the right to repair anything. You might have the skill to repair something (something that iCracked tech might've lacked). And you can hand people all the schematics, instructions, and parts you want and they still won’t be able to replace an iPhone battery or screen.
This is an even sillier argument. His complaint here is with the semantics. It's called a "right to repair," but of course no one's saying everyone will have the ability. The question is whether or not you can even try to repair something that you bought. It's really a question of property rights and whether or not you are breaking the law just trying to tinker with something.
The wonderful world of innovation we live in is built off of people tinkering. The computer industry that makes Mashable possible only exists because a bunch of people were tinkering with different devices and built multiple massive industries out of it. But, Ulanoff is effectively saying that all needs to stop now. Only approved sources can tinker.
Later, Ulanoff tries to clarify that he's fine with people being able to repair stuff... if it has moving parts.
It’s not that I don’t believe in better-built products and repairability. We need tightening against planned obsolescence cycles—TV sets that once lasted 25 years now fail after five. I’m also a tinkerer. I’ve taken apart everything from VCRs to BlackBerry Curve phones and their classic scroll buttons. When I see moving parts, I think: repairability. Today’s phones have almost no moving parts. At least the iPhone 6 had a moveable home button. The iPhone 7 and 7 Plus don’t even have that.
Why the distinction? Who the hell knows? Ulanoff never explains it beyond "when I see moving parts, I think: repairability." Well, good for you Lance. Have a cookie. Not everyone sees the world the way you do. Some people like -- for example -- replacing the significantly weakened battery on their phones so that they can make it last a lot longer. Some people like to replace their cracked screens rather than having to buy a new phone.
But, in the end, Ulanoff is just really concerned that you're just too dumb and you're going to hurt yourself:
I think it’s a fair concern that Right-to-Repair laws could lead to an explosion of Radio Shack-like iPhone and Samsung electronics parts shops. Consumers will wander in with broken iPhone and Samsung Galaxy screens, and walk out with all the parts and tools they need to repair them. And they will fail, miserably.
Plus, what if a consumer's injured during a failed repair attempt? They slice open a finger on the cracked glass, or put it back together incorrectly, so the battery fails (and maybe even explodes). It’s the consumer’s fault, obviously, but they could also try to sue Apple or Samsung.
Try to sue? Sure. Succeed at suing? No. And, really, is that the big concern here? No one should be allowed to tinker with their own devices because they might fuck it up and sue Apple. What?
In the end, once again, this is a question of whether or not people actually own what they buy. Ulanoff, by default, seems to be saying they shouldn't be able to do so. Because they might hurt themselves. Because they're too dumb to know that glass might cut them if not handled properly. But is that really the job of our laws (including copyright law, which is a key component in blocking people from repairing their own phones...) to say "you can't fix or modify something you bought because you're an idiot"? Ulanoff, like in his silly article about not seeing any need for anonymity, apparently doesn't see any need for people to fix their own stuff. Even worse, because he doesn't see such a need for himself, or his friend Tracey, he's decided it's a-ok for the law to clamp down on people who actually are competent and actually are able to modify, tinker or repair products such as phones.
This seems like a very odd way for Mashable to create its opinion pieces. Having some random dude extrapolate his own experiences to apply across everyone. Folks at Mashable responded to lots of people mocking Ulanoff's silly piece by pointing out that it also published a counterpoint. But, as I've noted, this is why I find point/counterpoint arguments so useless. It puts the two arguments on an equal footing and suggests that "welp, you decide." That's silly. Ulanoff's argument makes no sense and is based on nothing more than his own confusion about how the world works. Mashable should feel bad about publishing such an article and pretending it's legit journalism.
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Posted on Techdirt - 22 February 2017 @ 8:17am
Correction: As some of you have noticed, we made a silly mistake in this post. Neil Turkewitz is not with the MPAA, but rather a former RIAA executive who is now with the International Center for Law & Economics, a think tank that reliably advocates for the MPAA & RIAA's positions.
This week has been dubbed fair use week by a whole bunch of organizations (mostly universities and libraries) as a chance to celebrate the usefulness and wonder that is fair use in protecting free speech, enabling creativity and inspiring innovation. As we've said many times in the past, fair use is an incredibly important concept -- if often misunderstood -- so it's good to see these organizations working together to better educate the public on why fair use is so key.
However, not everyone is so enthralled with fair use. The MPAA and RIAA are apparently so frightened by fair use that they, and some of its friends, have been posting weirdly uninformed screeds against fair use over the past few days. Some are more silly than others (such as one that tries to claim that the MPAA has never been against fair use, ignoring that the MPAA's long-time boss Jack Valenti once declared -- totally incorrectly -- that fair use wasn't in the law), but let's focus on the one that comes straight from a former RIAA top exec.
Neil Turkewitz, formerly of the RIAA and now the International Center for Law & Economics Senior Policy Counsel, has published a piece at Medium (a site that relies heavily on fair use to protect it from being sued into oblivion) pretending to honor fair use while actually criticizing it.
In honor of Fair Use Week, let’s begin by unmasking the false premise underlying much of the celebration of fair use — that is, that the basic objective of the copyright system is to achieve a balance between the “public interest” on the one hand, and the interest of private copyright owners on the other. In this formulation, the “public” interest is exclusively defined as the ability to get copyrighted materials as cheaply as possible, with free obviously being the best (since it is the cheapest) option.
Well, here's something where we actually sort of agree -- though for different reasons. I actually disagree with many fair use supporters in arguing that it's about "balance." I've been saying for a decade now that balance is clearly the wrong standard and it unfortunately presupposes that there are two parties in conflict here. That's not true. I still believe, strongly, that a more optimal copyright policy maximizes benefits for creators and the public (though it may squeeze out some gatekeepers...). The idea that there's some tug of war between two sides has poisoned the copyright debate, unfortunately.
But... that's not what the Turkewitz is really arguing here. The end of that paragraph is telling. Those who support fair use aren't just talking about "the ability to get copyrighted materials as cheaply as possible." They're talking about basic concepts such as freedom of expression and access to knowledge and information. That's different than just getting stuff cheaply. We're talking about education and learning and expression -- and rely on fair use not to infringe on someone's copyright (remember: fair use isn't infringement), but to be able to better express ourselves and to better educate.
But Turkewitz is building up a head of steam with this pretty massive strawman he's building, and nothing's going to slow him down:
Groups like EFF, Public Knowledge and re:Create employ emotive rhetoric in an attempt to demonize copyright, and to suggest that “copyright” protection is somehow a “special interest.” They say that they care about “creativity,” and that fair use is critical to the interests of society. Copyright owners agree, but unlike most declared champions of fair use, not only do we care about creativity as an abstract concept, but we actually care about creators and preserving the creative process.
What the hell does "preserving the creative process" even mean? Remember, first of all, that despite all the massive amounts of copyright infringement going on these days (which the legacy entertainment industry constantly reminds us about), we're actually seeing more music, more movies, more video, more books, more written works than ever before in human history. If it's truly the "creative process" that Turkewitz is worried about, well, then there's nothing to worry about. We're witnessing a golden age of content creation, much of it relying on fair use, despite the decades of "sky is falling" rhetoric from Turkewitz and his friends about how strong fair use and new internet innovations will somehow make all the content creators disappear.
Hasn't happened. Maybe it's time for the legacy entertainment industry to try something new, rather than just constantly rebooting or creating sequels to its own failed attack strategy?
We recognize that the creative process indeed is an evolutionary one, and that present creators draw upon past expression for inspiration. But standing on the shoulders of giants doesn’t require misappropriation, and anyone who tells you differently is selling something. Unfortunately, for Fairuseweek.org, and its allies, fair use tends to be little more than a useful slogan that has little to do with fairness, and which frequently masks commercial interests that want to distribute or otherwise make creative works available without licensing.
Yeah. Sure. Who might be "standing on the shoulders of giants" by misappropriation in order to "sell something"? Could it be... say, Disney? The company that copied the works of others willy nilly without licensing at all, and then claimed copyright over all of it? And, no we're not just talking about the public domain (another important concept that the MPAA has trampled on over the years), but the whole concept of "Steamboat Willy" which launched Disney, which was copied from a film a year earlier. Or... how about the record labels, many of whom got their starts by taking classic songs from African Americans and giving them to white artists, then claiming copyrights over those songs. And those same operations regularly helped out artists like Bob Dylan and Led Zeppelin who were famous for simply rewriting the works of others without giving credits to the original artists. Some of us believe that was pretty creative -- but for a former RIAA exec to whine about "misappropriation... without licensing" is, well, a bit rich.
And then we get this bit of pure unadulterated nonsense:
When was the last time that someone was inspired by fair use? Fair use doesn’t enthrall us…it doesn’t capture our imaginations and transport us to places far away or tucked away deep in our memories. So how about this — why don’t we all recognize that celebration of fair use is actually a celebration of the benefits of fueling original creative expression, for if we fail to produce cultural artifacts worth accessing, fair use becomes irrelevant. We have no interest in accessing that which we don’t value.
Of course, one could say the exact same thing about copyright itself. It is not "copyright" that inspires or enthralls. It is content. And, frankly, these days, I find myself inspired and enthralled quite frequently by works that rely on fair use, from mashups to documentaries and the like.
And, yes, if we fail to produce cultural artifacts worth accessing, that's a problem. But it's not a problem, because (again) we're producing more such works than ever before in history, and an awful lot of that is due, either directly or indirectly, to fair use and building on the works of others. How many creators today actually got their starts by messing around and copying the works of others, editing videos they pulled from YouTube, or playing cover songs and posting them on sites like YouTube? The fact that we don't (usually!) sue those people out of existence is often thanks to fair use protections, and that has helped build a new generation of creators who don't rely on the MPAA or the RIAA as gatekeepers (perhaps this is why they are really upset).
Thus, fair use is, on its own, an exceedingly odd thing to celebrate. “Fair” is contextual, and “use” assumes a desire to access. I propose to the folks at fairuseweek.org a renaming ceremony. How about “sustaining creativity week?” If we can succeed in allowing creators to earn a living from their craft, we will have greatly advanced the public interest, and produced a wealth of accessible cultural materials that enrich present and future generations. Now that would be something to celebrate.
Again, everything said here applies many more times to copyright itself. And, frankly, if you want to see lots of "sustainable creativity" your best bet is not to look at the MPAAs and RIAAs of the world (shall we point you to the litany of lawsuits over Hollywood accounting and RIAA accounting that highlight how those industries tend to screw over actual creators?) but rather to the technology enablers and platforms that the MPAA and RIAA have fought against for decades. Look at things like Patreon and Kickstarter and YouTube and Spotify and Netflix and Apple: all tech platforms that the industry fought over the years. All of which have helped create new sustainable models where a much higher percentage of the revenue goes to actual creators, and where fair use and greater creativity is celebrated and encouraged. But, I guess, that would conflict just a little bit with the MPAA and RIAA members' business models of being a gatekeeper and keeping all the profits.
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Posted on Techdirt - 21 February 2017 @ 3:28am
After quite some time, a New Zealand court has said that Kim Dotcom is eligible for extradition to the US -- something he's been fighting for over five years. But there's a weird twist to the story. A key part of the argument that Dotcom's lawyers have been making is that for extradition to the US, there needs to be "dual criminality" (you can hear Dotcom's lawyer, Ira Rothken, discuss this on our podcast a few months back). And, the key "crime" that Dotcom is charged with involves secondary copyright infringement (i.e., creating a platform that others use to infringe). But, that's a problem, as there's no criminal secondary copyright infringement under New Zealand law (nor US law, but that's a separate issue). So, here's the twist. The court actually agreed that there's no such thing under New Zealand law -- and said that Dotcom can't be extradited for copyright infringement. However, the court said that he can be extradited for "fraud" because there's dual criminality there.
As Dotcom's lawyers point out, that means this is no longer, as was claimed by the US, the "largest criminal copyright case" because copyright is officially no longer a part of it. But, if the copyright part is taken out... where's the "fraud"? The whole claim of "fraud" is based entirely on the fact that Megaupload users infringed on copyrights. So if that's not a crime, then, um... where's the fraud?
I know that some will argue that it doesn't really matter, and they'll insist that what Dotcom and Megaupload did was "bad" -- end of story. But we're still supposed to live under the rule of law, and you don't just get to throw people in jail because they're "bad." You have to prove they actually broke the law. But that's a big problem here, because Megaupload didn't violate copyright law. And if it didn't do that... where's the "fraud"? Dotcom's lawyers will now try to appeal this part of the ruling, extending this legal fight even further. But it's a bigger issue than that. If courts can wipe away safe harbor protections by service providers by hiding behind a "fraud" claim, there are no longer safe harbor protections:
The High Court has accepted that Parliament made a clear and deliberate decision not to criminalise this type of alleged conduct by internet service providers, 5 making them not responsible for the acts of their users. For the Court to then permit the same conduct to be categorised as a type of fraud in our view disrupts Parliament’s clear intent. The High Court decision means that Parliament’s intended protection for internet service providers is now illusory. That will be a concern for internet service providers and impact on everyone’s access to the internet.
That's dangerous for free speech, it's dangerous for innovation, and it's dangerous for basic respect for the law.
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Posted on Techdirt - 17 February 2017 @ 3:44pm
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As we mentioned last month, we are currently being sued for $15 million by Shiva Ayyadurai, represented by Charles Harder, the lawyer who helped bring down Gawker. We have written, at great length, about Ayyadurai's claims and our opinion — backed up by detailed and thorough evidence — that email existed long before Ayyadurai created any software. Once again, we believe the legal claims in the lawsuit are meritless and we intend to fight them and win. Earlier today, we filed a motion to dismiss (along with our memorandum in support) and a special motion to strike under California's anti-SLAPP law (along with a memorandum in support). You can see all of those below. I encourage you read through them.
Unfortunately, the fight itself is incredibly distracting and burdensome. It has taken up a significant amount of my time (and the time of others who work here) over the last month and delayed multiple projects that we were working on, and even forced us to pass on writing about many stories we would have liked to cover. Even though we are confident in winning the legal fight, it has already taken a massive toll on us and our ability to function and report. We have now set up a Techdirt Survival Fund at ISupportJournalism.com, which will allow us to continue our reporting on issues related to free speech and the growing threats to free speech online, while continuing to fight this legal battle. We've put together an all-star steering committee to help us oversee how the funds will be spent, including representatives from both the Freedom of the Press Foundation and EFF.
Many of you have already supported us in various ways -- by becoming Techdirt Insiders, supporting us on Patreon or by buying t-shirts. We are so grateful for all initial support we've received, but for us to survive, we unfortunately need to ask for more help. Please consider supporting us via this new fund and spreading the word as well.
In this era, especially, strong independent voices in journalism are necessary. Allowing lawsuits to stifle freedom of expression online, silencing voices and creating chilling effects, is a huge threat to how a responsible society functions. Please support Techdirt and support journalism.
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Posted on Techdirt - 16 February 2017 @ 10:53am
We've been covering the BMG v. Cox case since the beginning, and a bad decision just got made even worse -- and more dangerous. If you've been following the case, you know that it's on appeal right now (and a whole bunch of amici have weighed in), but in the meantime, the judge in the district court, Judge Liam O'Grady, has doubled down on his opportunity to chop up and mock the DMCA's safe harbors by telling Cox it must pay $8 million to BMG in legal fees because its using the DMCA safe harbors as a defense was found to be "objectively unreasonable."
That's crazy, for a variety of reasons, but we'll get there. From the very beginning, this case was a joke, and it's unfortunate that the court didn't realize that early on. The case was filed back in 2014, and we pointed out that it was really BMG (and another publisher, Round Hill Music) acting as a proxy for copyright trolling operation Rightscorp, testing out the wacky legal theory that the DMCA requires that ISPs kick repeat infringers entirely off the internet. No one has ever interpreted the DMCA in this manner. Yes, 512(i) requires a repeat infringer policy, but it had always been widely recognized that that referred to services that hosted content, not network providers (e.g., YouTube is required to have a repeat infringer policy that kicks users off YouTube if they keep posting infringing works, but your ISP shouldn't kick you off the internet for the same thing.)
If that interpretation of the law was legit, you'd think that someone would have tried it in court before -- especially with all the whining from the MPAA and RIAA about how ISPs weren't doing enough to stop piracy. So this was a real stretch as a legal theory.
But, somewhat amazingly -- even after the legal proceedings demonstrated that the lawsuit was really about copyright trolling and exposed some heinously bad behavior by copyright troll Rightscorp -- the case went against Cox and in favor of BMG (Round Hill Music was kicked out of the case early on).
O'Grady made it pretty clear in the case that he's not a big fan of this internet thing, and doesn't see why it's a big deal if someone were to get kicked off the internet. At one point in the proceedings, Public Knowledge and EFF sought to file an amicus brief. Admittedly, many district court judges aren't fans of amicus briefs (they're more usually seen at appellate courts), but O'Grady was so dismissive of this one that it was fairly incredible:
I read the brief. It adds absolutely nothing helpful at all. It is a combination of describing the horrors that one endures from losing the Internet for any length of time. Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it's completely hysterical.
So, yeah. Judge O'Grady then said that Cox wasn't protected by the DMCA at all, which made it easy for the jury to find in favor of BMG and award it $25 million from Cox. Part of the problem was that there was some sketchy behavior by Cox (including some really dumb emails by staff who don't understand the law, but look damning), but none of it should have directly impacted the legal issues, but that behavior clearly influenced O'Grady.
And, now, because of that, O'Grady has awarded legal fees, by arguing that Cox relying on the very same DMCA safe harbors that everyone else relies on and where Cox was the only major ISP that would kick off any user for infringement, was somehow "objectively unreasonable." Think about that for a second. Let's repeat it: Cox's policy was the only one at a major ISP that kicked people off the network for repeat infringement. And every network provider regularly relies on the DMCA safe harbor to protect them from liability. And yet, Judge Liam O'Grady's opinion says that it was "objectively unreasonable." Oddly, O'Grady's opinion here is again entirely focused on the bad behavior by some Cox employees, and not the overall question of whether or not the safe harbor actually works the way O'Grady (and Rightscorp and basically no one else) seems to think it works. Rather than explaining why it's "objectively unreasonable" for Cox to rely on the DMCA's safe harbors, O'Grady basically says that the reliance was unreasonable... because of the bad behavior. That's conflating two separate things. Sanction them for bad behavior if you must, but don't let that cloud the actual legal issue.
The objective reasonableness of a party's position is an important factor in deciding
whether to award fees.... In a hard-fought litigation battle such
as this one, discovery disputes and fierce briefing are to be expected, and they should not be held
too harshly against either party. Nonetheless, there are a few instances in which Cox's advocacy
crossed the line of objective reasonableness. In particular, both Cox's attempts to obscure its
practice of reinstating infringing customers, and its subsequent assertions of a deeply flawed
DMCA defense evince a meritless litigation position that Cox vigorously defended.
.... Although Cox's DMCA defense cannot be
categorized as frivolous or in bad faith, the Court found that "[t]he record conclusively
establishes that before the fall of 2012, Cox did not implement its repeat infringer policy.
Instead, Cox publicly purported to comply with its policy, while privately disparaging and
intentionally circumventing the requirements."... The
evidence supporting this conclusion was overwhelming, and it included "smoking gun" email
conversations.... The most memorable of these contained Cox's own abuse manager
stating: "F . . . the dmca!!!"...
Therefore, although Cox's defensive arguments may have been reasonable as an abstract legal
theory, when viewed in light of the actual facts of the case, they evince an objectively
unreasonable litigation position that was nonetheless vigorously defended.
It's clear that O'Grady is hung up on the bad behavior and statements by Cox employees. And, again, what they were saying was really bad. But the real question is whether or not it actually violated the DMCA. And Cox argued, quite reasonably, that it did not. The DMCA doesn't actually require what O'Grady and BMG insist it does, and no other ISP even goes as far as Cox did (bad behavior or not). So because you have some clueless Cox employees, who were spouting off internally about how much they hate the DMCA (an opinion shared by many) and because they implemented their repeat infringer policy in a way that O'Grady felt wasn't reasonable, suddenly arguing that the safe harbors still should apply (because they should!) is "objectively unreasonable"? That's dangerous.
Again, the earlier parts of the case are already on appeal, so hopefully this will all get wiped out and this order won't matter in the long run either. But if it does stand, it's yet another serious problem that's come out of this particular case.
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Posted on Techdirt - 15 February 2017 @ 10:50am
We've written a few times about Rep. Devin Nunes, who heads the House Intelligence Committee. He's been a long-time vocal supporter of NSA surveillance. He insisted that there was no need for reform after the Snowden leaks and he actively misled the public and other members of Congress to shoot down an amendment that would have stopped so-called backdoor searches of "incidentally collected" information on Americans. Nunes falsely claimed that by blocking backdoor searches of the 702 database, it would have blocked things such as tracking whether or not the Orlando nightclub shooter had overseas contacts (it would not have done that at all).
So it's fairly hilarious to see that Nunes' first reaction to the news of National Security Advisor Mike Flynn's resignation was to demand answers on why Flynn's calls with Russian officials were recorded.
“I expect for the FBI to tell me what is going on, and they better have a good answer,” said Rep. Devin Nunes (R-Calif.), chairman of the House Permanent Select Committee on Intelligence, which is conducting a review of Russian activities to influence the election. “The big problem I see here is that you have an American citizen who had his phone calls recorded.”
Uh, dude, you approved this kind of thing (loudly and proudly), and not only that, but you actively blocked suggested amendments that would have blocked the using of this information to dig into information on US persons. Maybe it's time to rethink that one, huh? Of course, (former assistant Attorney General) David Kris (who knows this stuff probably better than anyone else) has made it clear that Flynn's calls with a Russian official wouldn't need to be "minimized" (i.e., have his identity excluded) because "a U.S. person’s name can be used when it is necessary to understand the foreign intelligence information in the report."
Of course, there's lots of irony to go around here. Timothy Edgar -- who was the director of privacy and civil liberties for the White House National Security staff under Obama (and also did privacy/civil liberties work in the Bush administration) has noted that the leaking of the contents of his phone calls actually means that Flynn's own civil rights have been violated and even suggests he gives the ACLU a call (oh, and another layer of irony: Edgar has been warning about how Flynn and others in the Trump administration might trample on civil liberties... and yet here, he's arguing that Flynn's civil liberties have been violated.)
Along those lines, Glenn Greenwald notes that the leaking of actual content from intercepted communications is a really serious crime, but one that should be seen as totally justified here, as it was clearly a form of whistleblowing (even as he admits that the motives of the leakers likely weren't pure, but were possibly for revenge against Flynn, who many in the intelligence world disliked).
It is a big deal to actually leak the contents of an intercepted communication (most leaks and whistleblowing tend to be about programs, not the actual intercepted communications). Of course, this should raise other questions about why the NSA and FBI are surveilling so many people -- and will the content of those other calls be used for political vendettas rather than true whistleblowing? Unfortunately, it seems unlikely that someone like Devin Nunes is going to care about all that. In typical "high court/low court" fashion, he's only concerned that someone on his team was hurt by such surveillance, not that such surveillance regularly occurs.
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Posted on Techdirt - 15 February 2017 @ 9:26am
We've been pretty damn clear that we think the Trump administration's targeting of people from a few countries by banning them from entering the US is both inhumane and misguided. We were proud to sign on to an amicus brief opposing it and happy that the 9th Circuit agreed -- though the case is far from over. As I've noted repeatedly, to me it's an issue of basic humanity and decency, but some have insisted on making arguments about how certain people are somehow out to get us and we need to protect ourselves from them. I know that, these days, it's considered silly to rely on things like facts for an argument, but it seemed worthwhile to actually explore some facts on this particular topic.
We'll start with a post at Lawfare, by Nora Ellingsen. And we should start out by noting that Techdirt and Lawfare have a pretty long history of... well... not agreeing on much. The site is generally supportive of the intelligence community and supportive of actions taken to protect "national security." We tend to be more skeptical. Ellingsen worked in the FBI's Counterterrorism Division for five years, specifically working on international terrorism investigations inside the US. Since leaving the FBI to go to law school, she's been tracking counterterrorism cases in the US, using DOJ data. And she's gone through that data to try to determine if there's any truth to the idea that people from those countries represent a big ongoing threat. And the answer is that it's just not true. In fact, the real "terrorism" threat in America appears to be... from Americans.:
The Program on Extremism at George Washington University has routinely published statistics indicating that the “vast majority” of individuals charged in the U.S. with offenses related to ISIL are U.S. citizens. When considering all terrorism offenses, that claim holds up—80 of the 97 suspects arrested in the past two years, or more than 82 percent, are American citizens.
Most of those, notably, are not naturalized citizens. Of the U.S. citizens, only six were naturalized. In other words, more than 76 percent of individuals arrested by the FBI over the past two years for terrorism-related offenses were U.S. citizens as a result of having been born in the United States.
The post goes through all of the individuals who were not born in the US and looks at what each was charged with (often just making false statements to the FBI) and how many of them (not many) actually came from the list of banned countries.
And, then, of course, the fact that the FBI these days tends to be arresting a lot more people for plotting violent attacks on Muslims, than Muslims plotting violent attacks on the US:
Since January 2015, the FBI has also arrested more anti-immigrant American citizens plotting violent attacks on Muslims within the U.S. than it has refugees, or former refugees, from any banned country. As we wrote about here, here and here, in October 2016, three white men from Kansas were charged with conspiring to use a weapon of mass destruction. According to the graphic complaint, the anti-Muslim and anti-immigrant men planned to attack a mosque in the area. The men progressed quickly with their plot, amassing firearms and explosives. The targets were people from Somalia, who ironically, would now be covered by Trump’s order.
Similarly, the post notes that there were more US citizens arrested en route to join ISIS in Syria than those arrested trying to plan attacks here.
Since we’re already on the topic, let’s talk about Americans traveling to join ISIL. Over the past two years, the FBI has arrested 34 Americans who aspired to leave, attempted to leave or actually left the United States to join a terrorist group overseas. In other words, although two refugees came into the U.S. and were charged with material support,
Seventeen times that number of U.S. citizens tried to leave the U.S. to conduct attacks and fight overseas. More Americans have snuck into Syria to join ISIL, than ISIL members have snuck into the United States. In September 2015, a congressional report indicated that 250 Americans have gone to Syria and Iraq to fight with ISIL. By comparison, as of December 2015, only 71 individuals in the United States had been charged with ISIL-related activities—the vast majority of whom were also U.S. citizens, according to George Washington University.
Meanwhile, over at Slate, William Saletan has pointed out that if the President really wants to ban travellers from regions that import multiple people aiming to harm Americans... it ought to ban travel from North & South Carolina. He goes through story after story of extremists who left North Carolina to conduct terrorist attacks elsewhere. The list is long, but here are just a few:
It began with Eric Rudolph, a Holocaust denier who grew up in the Christian Identity movement. In 1996, Rudolph traveled from North Carolina to Atlanta, where he detonated a bomb at the Olympics, killing one person and injuring more than 100 others. A year later, Rudolph bombed a lesbian bar in Atlanta, wounding five people. In 1998, he bombed a reproductive health clinic in Birmingham, Alabama, killing a security guard and injuring a nurse. The “Army of God,” which hosts Rudolph’s writings, claimed credit for his attacks.
In 2001, Steve Anderson, another Christian Identity follower, was pulled over for a broken tail light on his way home from a white supremacist meeting in North Carolina. He pumped 20 bullets into the officer’s car and fled. Police found weapons, ammunition, and explosives in his truck and home. A year later, he was captured in the western part of the state.
In 2010, Justin Moose, an extremist from Concord, North Carolina, was arrested for plotting to blow up a Planned Parenthood clinic. Moose, who claimed to represent the Army of God, also opposed the construction of a mosque near ground zero in New York. He called himself the “Christian counterpart of Osama Bin Laden.” Eventually, Moose pleaded guilty to disseminating information on how to make and use explosive devices.
Obviously, the Slate piece is tongue-in-cheek in arguing that the Carolinas are the real threat, but the larger point is completely valid. There seems to be no credible evidence for why people from the countries listed in the original executive order should be banned from the US other than outright bigotry. And, somewhat unfortunately, that same kind of ignorant bigotry (which the executive order is only helping to encourage and spread) is resulting in actual violent attacks from Americans who misguidedly think they're stopping "evil."
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Posted on Techdirt - 14 February 2017 @ 12:09pm
As we discussed over and over again during the past eight years, the Obama White House -- despite a first day pledge to be "the most transparent administration in history" -- was actually quite famous for its extreme secrecy, combined with a seriously paranoid view of anyone leaking anything unflattering to the White House. As we detailed, the Obama White House declared any unflattering leaks as "aiding the enemy." And, of course, the Obama administration went after more leakers/whistleblowers with Espionage Act claims than all other Presidents in history combined.
So, now, I guess we'll see what the Trump administration does about leaks. So far, in just the first few weeks of the Trump administration, the number of leaks out of the White House has been fairly astounding. There are leaks on just about everything, with some being just downright silly (and a few being literally unbelievable). In a larger report in Politico on how Trump is adjusting to the job of being President, there's a brief mention that he's getting increasingly frustrated by the leaks and is seeking to have them stop:
After Trump grew infuriated by disclosures of his confrontational phone calls with foreign leaders, an investigation was launched into the source of the leaks, according to one White House aide. National Security Council staffers have been instructed to cooperate with inquiries, including requests to inspect their electronic communications, said two sources familiar with the situation. It’s not clear whether the investigation is a formal proceeding, how far along it is or who is conducting it.
The administration is considering limiting the universe of aides with access to the calls or their transcripts, said one administration official, adding that the leaks — and Trump’s anger over them — had created a climate where people are “very careful who they talk to.”
And, now, in the wake of a variety of leaks that resulted in National Security Advisor Mike Flynn resigning, the President is trying to shift the story to being about leaks:
This is only marginally hilarious, coming from the same President who regularly praised Wikileaks during his campaign, and who almost certainly owes his presidencey, in part, to multiple damaging leaks on his opponent during the campaign. Sean Spicer doubled down on this angle in a press briefing today — after joking about how he needs to stop lecturing reporters on what stories to cover, he proceeded to lecture them about the idea that they should be focusing on the existence of White House leaks as the real story.
Of course, Washington DC is a town that thrives, and often seems to live off of, leaks from the government. I can imagine just how frustrating it must be to experience it first hand, but it sort of comes with the territory. It's also a very, very important way in which the public is able to hold the government accountable. Leaks reveal things that keep the government's worst impulses in check, which is why it's a form of whistleblowing.
That said, this seems like yet another reason to be annoyed with the Obama administration's vast, paranoid crackdown on leakers. It has set the blueprint for a Trump administration if it chooses to go down that same path. It remains to be seen if the Trump administration will pick up where Obama left off and go after leakers quite as aggressively as the last administration. But the quotes above (ironically... leaked from the White House) certainly indicate a plan to crack down on leakers, and to date, Trump has not shown that he's interested in moderation when it comes to hitting back at those who displease him. One can only hope that he doesn't decide to take the Obama blueprint and go even further in going after leakers and whistleblowers.
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Posted on Techdirt - 14 February 2017 @ 9:37am
In the last few weeks, there's obviously been a lot of attention on the cruel actions of Customs and Border Patrol (CBP), a part of the Department of Homeland Security. Slate has an article detailing some of the awful stories coming out after the Trump executive order on immigration and travel (here are just a few):
At Dallas/Fort Worth International Airport, CBP officers reportedly detained an elderly Sudanese woman suffering from diabetes, high blood pressure, and severe kidney stones. They refused to provide her attorney or her family with any information on her health, status, or whereabouts. Her attorney later learned that CBP officers had demanded that his client withdraw her request for admission into the United States or be barred from entering the country for five years. She signed the document and was promptly deported. Her family never got to see her.
Also at DFW, CBP agents allegedly detained a lawful permanent resident along with her 11-month-old daughter, a U.S. citizen. They refused to let attorneys speak with the mother. When the child’s father came to the CBP office, agents refused to let him see his daughter.
CBP officers at Los Angeles International Airport allegedly deported an Iranian student 90 minutes after a federal judge explicitly barred the deportation of anyone targeted by Trump’s order. They ignored efforts by attorneys to halt the deportation.
CBP officers at San Francisco International Airport allegedly detained an elderly Iranian couple with valid visitor visas for 30 hours. Nineteen of those hours came after a federal judge halted deportations under Trump’s order. One officer informed the couple’s attorney that they might soon be deported. When the attorney explained that this action would violate a federal court order, the officer responded that he was “just following orders.”
An elderly Iranian couple—both of whom were lawful permanent residents—say they were detained for 10 hours at Chicago’s O’Hare International Airport after returning from their son’s wedding in Iran. The two were denied access to food for the length of their detention. Another elderly person being detained along with the couple was shaking from hunger and nearly passed out. CBP officers refused to inform the couple’s immediate family whether the couple had been allowed to take necessary medications.
A complaint to DHS over the implementation of the travel ban noted 26 accounts of abuse by the CBP.
But here's the thing: none of this is new, unfortunately. Yes, the specifics of the executive order are new, and the awful plan and rollout by the administration are new, but CBP being arbitrarily cruel to people is not at all new. We've reported on it many times in the past. Last week, On the Media put together a collection of stories that it had done in the past about egregious behavior by CBP at the border, almost all of which we covered in the past -- and all of which occurred under President Obama.
There was the horrific treatment of On The Media Producer Sarah Abdurrahman and her family (all US citizens) detained at the US border for hours and treated horribly when trying to return to the US from a wedding in Canada. There's also the insane story of Pascal Abador, a student studying Shiites in South Lebanon (he's an atheist himself), who was detained and had his laptop seized while on a train traveling from Canada to the US. CBP found photos on his laptop of Hamas and Hezbollah and then wouldn't give him back his computer. And then there's the truly sickening stories (plural) of CBP bringing people to doctors to be horrendously strip searched for drugs, often undergoing hours-long "inspections" by medical professionals despite never turning up any actual drugs. Here's one example we wrote about, which is similar to, but not the same one discussed in the OTM recording:
1. Eckert's abdominal area was x-rayed; no narcotics were found.
2. Doctors then performed an exam of Eckert's anus with their fingers; no narcotics were found.
3. Doctors performed a second exam of Eckert's anus with their fingers; no narcotics were found.
4. Doctors penetrated Eckert's anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
5. Doctors penetrated Eckert's anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
6. Doctors penetrated Eckert's anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
7. Doctors then x-rayed Eckert again; no narcotics were found.
8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert's anus, rectum, colon, and large intestines. No narcotics were found.
None of this is to say that what Trump is doing is okay. What he's doing is expanding the CBP's power to continue to expand its often arbitrary and capricious activities without any fear of oversight or any sort of reprimand for egregious behavior. But if you're suddenly concerned with how CBP appears totally free to mistreat basically anyone at the border, at least recognize that it's been going on for quite some time and that plenty of people (including us) have been trying to call attention to it for years. And don't assume that just because you're suddenly hearing these stories in the news, that they're a new phenomenon. Unfortunately, they are not. Hopefully, greater attention on CBP cruelty will lead to fixing it, but this administration, unfortunately, seems to want to encourage and expand it.
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Posted on Techdirt - 13 February 2017 @ 8:22am
As was widely expected, back in October, Oracle announced its appeal of Google's big fair use win, concerning its reuse of certain Java API components in Android. If you've been following this (long, long, long) case, you'll recall that Google has won twice at the district court level. The first time, Judge William Alsup correctly noted that APIs were not subject to copyright, because copyright law clearly states that copyright protection does not apply to "any idea, procedure, process, system, method of operation, concept, principle, or discovery," and an API is a process, system or method of operation. However, the Court of Appeals for the Federal Circuit (CAFC), who only had jurisdiction over the case because it initially involved a patent issue, seemed unable to understand that an API is different from software and overturned the lower court's sensible ruling.
That resulted in the second case which was weird, because everyone had to tiptoe around the fact that basically everyone had assumed that APIs were not covered by copyright, in order to instead make a fair use argument, which ultimately succeeded. Oracle then tried to play some games to get that ruling overturned, but that failed miserably, when the judge pointed out that Oracle's argument was almost entirely based on a failure to read what Google had actually given them (Oracle had claimed that Google failed to disclose something important, when the reality was that Oracle's lawyers failed to read the material that Google had given them).
Anyway, now that things are back at CAFC, we have to hope and pray that the court doesn't muck things up any worse than it already has (and, trust me, it's mucked things up badly to the point that it's impacting a bunch of other cases). On Friday, Oracle filed its 155-page opening brief. Feel free to dig in, if you must, but the arguments are (mostly) basically what we expected. Oracle argues that Google's use is not fair use (basically saying the jury got it wrong). It further argues that the case should be sent back to the district court because it was prevented from presenting key evidence that would have undermined the fair use claim. And then, somewhat incredibly, at the end, Oracle continues to try to argue that Google concealed its plans to expand Android into PCs -- the very issue that Judge Alsup smacked Oracle down for when it was revealed that Google had shared that info, and Oracle just hadn't read it. In the filing, Oracle whines that Judge Alsup "blamed the victim" for not having read what Google actually gave them, saying that it was impossible to have read everything Google gave them because there was just too much stuff and this was a "needle in the haystack." That... seems pretty weak. Amusingly, at the same time that Oracle is complaining that Google gave Oracle too much in discovery, it also complains that Google clearly withheld more info. Throw any argument at the wall and see what sticks, I guess.
Frankly, this opening brief seems to really lean in to CAFC's notorious ignorance of how software works, and the fact that last time around it couldn't tell the difference between an API and software. It just keeps focusing on the agreed upon point that Google copied some of Java's APIs, but keeps calling it "copyrighted code." It's impossible to predict how CAFC will rule, because CAFC is frequently hilariously confused when it comes to how technology (and software in particular) actually work. But hopefully someone over there will take the time to figure it out. After all, there have been a few, somewhat shocking signs of enlightenment in the past few months at CAFC. Hopefully that continues.
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Posted on Techdirt - 10 February 2017 @ 4:37pm
Joe Mullin over at Ars Technica has the story of a patent troll, Blackbird Technologies, which was founded by (of course) two patent attorneys to buy up patents and shakedown companies with legal threats. Blackbird Technologies has now sued Netflix, Soundcloud, Vimeo and a variety of other companies over US Patent 7,174,362, issued in 2007 (filed for in 2000) on a "method and system for supplying products from pre-stored digital data in response to demands transmitted via computer network."
Specifically, the lawsuits are targeting various "download to consume offline" features on various content websites. Netflix, of course, just famously launched that long-requested feature, which is useful in cases where people have slow or no internet access (e.g., taking your laptop on an airplane without internet access). If anyone thinks that this kind of feature was developed because of this patent, they're being delusional. And that's especially true because the patent itself isn't even about downloading content from the network for offline viewing. Instead, it's actually about someone ordering some content over the internet, having that content automatically burned to a CD-ROM and having that CD-R shipped off to the person. As Mullin notes, the true irony here, is that the guy who got the patent in the first place, Sungil Lee, may have been inspired by Netflix, which already had a very popular business shipping DVD's ordered online to customers:
Context is important when looking at Lee's patent. It's extremely unlikely an inventor writing up the idea of a web-based system for creating and shipping CD-Rs, in the year 2000, was not acutely aware of Netflix—whose DVDs-in-the-mail business had begun blowing up. If there was any copying at all, it was Lee copying Netflix's idea. But in the upside-down world of patent trolls, it's Blackbird who gets to claim the mantle of defending innovation, while it accuses Netflix of being the copycat.
And the thing is, even the idea of having content written automatically to CD-Rs was hardly new in 2000. This patent never should have been granted. I remember back in 1998, when I was working for a company that did electronic distribution of software being pitched by multiple companies that were working on similar solutions, and even seeing a demonstration of one such company at COMDEX in the fall of 1998 (if I remember correctly, to demonstrate how it worked they burned me a copy of Internet Explorer 5) which had just been released. So this patent never should have been granted in the first place. On top of that, to sue companies for doing the obvious thing of offering downloads for offline viewing is a clear abuse of the patent system.
The lawsuits were filed in Delaware, which has become the "new East Texas" in recent years due to a series of patent troll friendly rulings. Every time we hear stories about how patent trolling is on the decline, we see stories like this, suggesting patent trolling is still a huge problem and still a huge cost on innovation, rather than a boon to innovation.
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Posted on Techdirt - 10 February 2017 @ 10:00am
New Gear From Techdirt: I Invented Email »
Okay, it's been a long time since we ran some t-shirt campaigns around here, and we've been hard at work on some new designs that we think you'll enjoy. First up, we've got one that we've had a few people asking for: our brand new I Invented Email gear, allowing you to express your opinion on certain events. Separate from that, we've got some brand new Techdirt logo gear in two styles. Check 'em out. The email t-shirts are only available for a limited time, so get them while they're here.
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Posted on Techdirt - 9 February 2017 @ 4:14pm
Let's start this out by being quite clear: this is still the beginning of a fairly long legal process. But, the 9th Circuit appeals court has just unanimously ruled that the lower' court's injunction barring Donald Trump's executive order on immigration should remain in place. In short: the federal government remains barred from actually carrying out the order. This does not mean, as our President has wrongly suggested, that people are free to randomly enter the country in droves. They still have to go through the already thorough vetting and visa process. It just means that the blanket ban that caused so much havoc cannot be used to bar entry into the country. We were among those who signed onto an amicus brief for the wider tech industry, asking the court to rule this way, so we're happy they did.
The court is pretty clear, and it's somewhat surprising that the ruling was unanimous. While it's always difficult to tell how judges are going to rule based solely on oral arguments, it certainly felt like two judges were leaning towards the states' argument and one towards the federal government's. But when it was time to write an opinion, all three came down on the side of the states. Not only that, but they did it per curiam, meaning that the entire panel "wrote" the opinion (rather than singling out the specific judge who wrote it). This can be seen as the three judges showing a united front, and also a pre-emption towards the likelihood of our thin skinned President picking directly on one of the three as somehow being responsible (as he did in earlier tweets about the case). Either way, the judges stood together, noting that the federal government's argument was weak:
To rule on the Government’s motion, we must consider
several factors, including whether the Government has
shown that it is likely to succeed on the merits of its appeal,
the degree of hardship caused by a stay or its denial, and the
public interest in granting or denying a stay. We assess those
factors in light of the limited evidence put forward by both
parties at this very preliminary stage and are mindful that our
analysis of the hardships and public interest in this case
involves particularly sensitive and weighty concerns on both
sides. Nevertheless, we hold that the Government has not
shown a likelihood of success on the merits of its appeal, nor
has it shown that failure to enter a stay would cause
irreparable injury, and we therefore deny its emergency
motion for a stay.
Again, this is far from over. There will still be a fight at the lower court over a permanent injunction, and then numerous appeals (not to mention the other cases around the country).
As for the opinion, it's good to see that the court went as far as it did. It really could have just punted the issue on a number of grounds, including that the appeals court has no grounds to overturn a temporary restraining order. But, instead, it went further and suggested that the federal government's position here is weak. There were a few different issues in the case, and the court wasn't very impressed by any of the federal government's arguments. One was that the states (Washington and Minnesota) didn't have standing to challenge the executive order. Not so, says the court, pointing to a number of cases where state universities had standing to sue on actions related to the rights of their students:
Most relevant for our purposes, schools have been
permitted to assert the rights of their students.... As in those cases, the interests
of the States’ universities here are aligned with their
students. The students’ educational success is “inextricably
bound up” in the universities’ capacity to teach them.... And the universities’ reputations
depend on the success of their professors’ research. Thus, as
the operators of state universities, the States may assert not
only their own rights to the extent affected by the Executive
Order but may also assert the rights of their students and
We therefore conclude that the States have alleged harms
to their proprietary interests traceable to the Executive
Order. The necessary connection can be drawn in at most
two logical steps: (1) the Executive Order prevents nationals
of seven countries from entering Washington and
Minnesota; (2) as a result, some of these people will not
enter state universities, some will not join those universities
as faculty, some will be prevented from performing research,
and some will not be permitted to return if they leave. And
we have no difficulty concluding that the States’ injuries
would be redressed if they could obtain the relief they ask
for: a declaration that the Executive Order violates the
Constitution and an injunction barring its enforcement. The
Government does not argue otherwise.
On that procedural question of whether or not the court can even review a temporary restraining order (TRO), the court says it's fine:
We are satisfied that in the extraordinary circumstances
of this case, the district court’s order possesses the qualities
of an appealable preliminary injunction. The parties
vigorously contested the legal basis for the TRO in written
briefs and oral arguments before the district court. The
district court’s order has no expiration date, and no hearing
has been scheduled. Although the district court has recently
scheduled briefing on the States’ motion for a preliminary
injunction, it is apparent from the district court’s scheduling
order that the TRO will remain in effect for longer than
fourteen days. In light of the unusual circumstances of this
case, in which the Government has argued that emergency
relief is necessary to support its efforts to prevent terrorism,
we believe that this period is long enough that the TRO
should be considered to have the qualities of a reviewable
On the question of whether or not courts even have the authority to review this executive order, the court says of course it does and it's patently silly for the federal government to suggest otherwise.
The Government contends that the district court lacked
authority to enjoin enforcement of the Executive Order
because the President has “unreviewable authority to
suspend the admission of any class of aliens.” The
Government does not merely argue that courts owe
substantial deference to the immigration and national
security policy determinations of the political branches—an
uncontroversial principle that is well-grounded in our
jurisprudence. See, e.g., Cardenas v. United States, 826 F.3d
1164, 1169 (9th Cir. 2016) (recognizing that “the power to
expel or exclude aliens [is] a fundamental sovereign attribute
exercised by the Government’s political departments largely
immune from judicial control” (quoting Fiallo v. Bell,
430 U.S. 787, 792 (1977))); see also Holder v.
Humanitarian Law Project, 561 U.S. 1, 33-34 (2010)
(explaining that courts should defer to the political branches
with respect to national security and foreign relations).
Instead, the Government has taken the position that the
President’s decisions about immigration policy, particularly
when motivated by national security concerns, are
unreviewable, even if those actions potentially contravene
constitutional rights and protections. The Government
indeed asserts that it violates separation of powers for the
judiciary to entertain a constitutional challenge to executive
actions such as this one.
There is no precedent to support this claimed
unreviewability, which runs contrary to the fundamental
structure of our constitutional democracy.
The court further notes that the federal government's desire to run around screaming "NATIONAL SECURITY" as if that means the courts are powerless to do anything is also completely bogus.
Indeed, federal courts routinely review the
constitutionality of—and even invalidate—actions taken by
the executive to promote national security, and have done so
even in times of conflict.
On to the key question of whether or not the court should lift the TRO and allow the executive order to be in effect again. The court here basically rips up the federal government and notes that it has no real argument.
The Fifth Amendment of the Constitution prohibits the
Government from depriving individuals of their “life,
liberty, or property, without due process of law.” U.S.
Const. amend. V. The Government may not deprive a
person of one of these protected interests without providing
“notice and an opportunity to respond,” or, in other words,
the opportunity to present reasons not to proceed with the
deprivation and have them considered....
The Government has not shown that the Executive Order
provides what due process requires, such as notice and a
hearing prior to restricting an individual’s ability to travel.
Indeed, the Government does not contend that the Executive
Order provides for such process. Rather, in addition to the
arguments addressed in other parts of this opinion, the
Government argues that most or all of the individuals
affected by the Executive Order have no rights under the Due
And while I've seen a bunch of people (mainly on Twitter) telling me that there's no due process issue because non-US citizens have no Constitutional rights, the court reminds them that they're wrong:
The procedural protections provided by the Fifth
Amendment’s Due Process Clause are not limited to
citizens. Rather, they “appl[y] to all ‘persons’ within the
United States, including aliens,” regardless of “whether their
presence here is lawful, unlawful, temporary, or permanent.”
Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights
also apply to certain aliens attempting to reenter the United
States after travelling abroad. Landon v. Plasencia, 459 U.S.
21, 33-34 (1982). The Government has provided no
affirmative argument showing that the States’ procedural
due process claims fail as to these categories of aliens. For
example, the Government has failed to establish that lawful
permanent residents have no due process rights when
seeking to re-enter the United States. See id. (“[T]he
returning resident alien is entitled as a matter of due process
to a hearing on the charges underlying any attempt to
exclude him.” (quoting Rosenberg v. Fleuti, 374 U.S. 449,
460 (1963))). Nor has the Government established that the
Executive Order provides lawful permanent residents with
constitutionally sufficient process to challenge their denial
of re-entry. See id. at 35 (“[T]he courts must evaluate the
particular circumstances and determine what procedures
would satisfy the minimum requirements of due process on
the re-entry of a permanent resident alien.”).
Separately, the court notes that the federal government's own claims are not trustworthy -- specifically the rapidly-changing claims about whether or not greencard holders are covered by the exec order:
At this point, however, we
cannot rely upon the Government’s contention that the
Executive Order no longer applies to lawful permanent
residents. The Government has offered no authority
establishing that the White House counsel is empowered to
issue an amended order superseding the Executive Order signed by the President and now challenged by the States,
and that proposition seems unlikely.
Nor has the Government established that the White
House counsel’s interpretation of the Executive Order is
binding on all executive branch officials responsible for
enforcing the Executive Order. TheWhite House counsel is
not the President, and he is not known to be in the chain of
command for any of the Executive Departments. Moreover,
in light of the Government’s shifting interpretations of the
Executive Order, we cannot say that the current
interpretation by White House counsel, even if authoritative
and binding, will persist past the immediate stage of these
The court also rejects the argument from the DOJ that a more limited TRO could be used instead, such as one just focusing on previously admitted aliens. No go:
First, we decline to limit the scope of the TRO to lawful
permanent residents and the additional category more
recently suggested by the Government, in its reply
memorandum, “previously admitted aliens who are
temporarily abroad now or who wish to travel and return to
the United States in the future.” That limitation on its face
omits aliens who are in the United States unlawfully, and
those individuals have due process rights as well. Zadvydas,
533 U.S. at 693. That would also omit claims by citizens
who have an interest in specific non-citizens’ ability to travel
to the United States....
There might be persons covered by the TRO who do not
have viable due process claims, but the Government’s
proposed revision leaves out at least some who do.
The court also refuses to restrict the TRO so that it doesn't apply nationwide, basically saying the government failed to explain why it should:
Second, we decline to limit the geographic scope of the
TRO. The Fifth Circuit has held that such a fragmented
immigration policy would run afoul of the constitutional and
statutory requirement for uniform immigration law and
policy.... At this stage of the litigation, we do not need to and
do not reach such a legal conclusion for ourselves, but we
cannot say that the Government has established that a
contrary view is likely to prevail. Moreover, even if limiting
the geographic scope of the injunction would be desirable,
the Government has not proposed a workable alternative
formof the TRO that accounts for the nation’s multiple ports
of entry and interconnected transit system and that would
protect the proprietary interests of the States at issue here
while nevertheless applying only within the States’ borders.
The court then notes that the federal government failed to convince the court that it has any "likelihood of success" in prevailing in support of the executive order, though it's open to changing its mind at a later date, when more fully briefed (i.e., when things come back on appeal down the road).
Finally, there's the question of the "balance of hardships and the public interest" and again the court notes that the DOJ failed to show any evidence of real harm in blocking the executive order, because the DOJ has no actual evidence to support the reasons for the order in the first place. And, again, just screaming "NATIONAL SECURITY" is no excuse:
The Government has not shown that a stay is necessary
to avoid irreparable injury. Nken, 556 U.S. at 434. Although
we agree that “the Government’s interest in combating
terrorism is an urgent objective of the highest order,” Holder
v. Humanitarian Law Project, 561 U.S. 1, 28 (2010), the
Government has done little more than reiterate that fact.
Despite the district court’s and our own repeated invitations
to explain the urgent need for the Executive Order to be
placed immediately into effect, the Government submitted
no evidence to rebut the States’ argument that the district
court’s order merely returned the nation temporarily to the
position it has occupied for many previous years.
The Government has pointed to no evidence that any
alien from any of the countries named in the Order has
perpetrated a terrorist attack in the United States. Rather
than present evidence to explain the need for the Executive
Order, the Government has taken the position that we must
not review its decision at all. We disagree, as explained
In a footnote on that, the court calls bullshit on the idea that there's some super secret info that only the President can see that shows why this ban is necessary, noting that the federal government regularly shares confidential information with judges under seal or in camera to avoid it being seen by others.
Meanwhile, the court notes that the plaintiff states have shown pretty strong evidence of harm:
By contrast, the States have offered ample evidence that
if the Executive Order were reinstated even temporarily, it
would substantially injure the States and multiple “other
parties interested in the proceeding.” ...
When the Executive Order was in effect, the States contend
that the travel prohibitions harmed the States’ university
employees and students, separated families, and stranded the
States’ residents abroad. These are substantial injuries and
even irreparable harms.
And, finally the court notes that the public interest simply does not warrant a stay.
Again, this is just the beginning of a long process, but as an early victory it's a big one. The court could have punted and did not. And in the meantime, our somewhat confused President is angry and doesn't seem to realize he's already in court over this (and losing, badly):
Of course, if that were true, it would help to have the federal government actually lay out some evidence to support that. What the 9th circuit pretty clearly said here is "we've seen none whatsoever."
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Posted on Techdirt - 8 February 2017 @ 2:40pm
For many, many years, we've pointed out why there are problems with an executive branch that is too powerful. As we noted, laws should be designed as if the people you trust the least are in power. Of course, in an era of partisan red team/blue team politics, very few people seem to care or listen. Or, worse, their positions on executive power seem to shift based on whether "their guy" is in power or "the other guy" is in power. But in a situation that would be amusing if it weren't quite so terrifying, some of the biggest advocates for expanded executive power are suddenly freaking out about the very thing they helped bring about now that there's a President Trump.
Ryan Lizza, over at the New Yorker, has a post detailing the ways in which Trump could seize more power following a terrorist attack. And there are lots of ways. That, by itself, may be interesting, but what strikes me as even more interesting is that the people who he quotes are some of the very people who helped create this kind of world where the President has almost unlimited power in certain areas.
First up, he quotes Jack Goldsmith. Goldsmith worked for George W. Bush, and while he's positioned himself as having pushed back against executive branch expansion, while he was there he did sign the Office of Legal Counsel memo that enabled the NSA to basically spy on all Americans' internet usage. That memo included the following:
We conclude that in the circumstances of the current armed conflict with al Qaeda, the restrictions set out in FISA, as applied to targeted efforts to intercept the communications of the enemy in order to prevent further armed attacks on the United States, would be an unconstitutional infringement on the constitutionally assigned powers of the President. The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President’s exercise of that authority.
And, more recently, Goldsmith has argued that we "need" a more invasive NSA which is crazy.
Yet, now, suddenly he's worried that Trump wants these orders to be struck down so he can blame the courts in the event of any terrorist attack, and then use that to claim more powers:
If Trump loses in court he credibly will say to the American people that he tried and failed to create tighter immigration controls. This will deflect blame for the attack. And it will also help Trump to enhance his power after the attack. After a bad terrorist attack at home, politicians are always under intense pressure to loosen legal constraints. (This was even true for near-misses, such as the failed Underwear bomber, which caused the Obama administration to loosen constraints on its counterterrorism policies in many ways.) Courts feel these pressures, and those pressures will be significantly heightened, and any countervailing tendency to guard against executive overreaction diminished, if courts are widely seen to be responsible for an actual terrorist attack. More broadly, the usual security panic after a bad attack will be enhanced quite a lot—in courts and in Congress—if before the attack legal and judicial constraints are seen to block safety. If Trump assumes that there will be a bad terrorist attack on his watch, blaming judges now will deflect blame and enhance his power more than usual after the next attack.
Yeah, that's why we don't say silly things in OLC memos like "The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President’s exercise of that authority."
Next up in Lizza's piece is John Yoo. Yoo, somewhat famously, seemed to have never met an executive power he couldn't justify... until Trump came to power. Yoo, wrote the Bush adminstration's legal justifications for the CIA's torture program after 9/11. He's also argued that the NSA should be given a pass on the 4th Amendment because it takes too long to get a warrant. To him warrantless surveillance is no big deal.
And yet, now suddenly John Yoo is worried about "executive power run amok"?
As an official in the Justice Department, I followed in Hamilton’s footsteps, advising that President George W. Bush could take vigorous, perhaps extreme, measures to protect the nation after the Sept. 11 attacks, including invading Afghanistan, opening the Guantánamo detention center and conducting military trials and enhanced interrogation of terrorist leaders. Likewise, I supported President Barack Obama when he drew on this source of constitutional power for drone attacks and foreign electronic surveillance.
But even I have grave concerns about Mr. Trump’s uses of presidential power.
During the campaign, Mr. Trump gave little sign that he understood the constitutional roles of the three branches, as when he promised to appoint justices to the Supreme Court who would investigate Hillary Clinton. (Judge Neil M. Gorsuch will not see this as part of his job description.) In his Inaugural Address, Mr. Trump did not acknowledge that his highest responsibility, as demanded by his oath of office, is to “preserve, protect and defend the Constitution.” Instead, he declared his duty to represent the wishes of the people and end “American carnage,” seemingly without any constitutional restraint.
Yoo goes on to point out a bunch of problems with some of Trump's actions (while admitting that others he finds perfectly fine).
While I guess it's kinda nice that Goldsmith and Yoo are finally recognizing that an all-powerful executive branch is problematic, they don't seem to recognize their own role in shaping that view of a uniquely powerful executive branch. It's time to own it, guys.
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Posted on Techdirt - 8 February 2017 @ 11:39am
We've written numerous stories about Barrett Brown, the reporter who was sentenced to 63 months in jail after being pressured into signing a plea deal. If you don't recall, Brown's "crime" was trying to get a bunch of people together to crowdsource an investigation into the famous Stratfor email hack. The feds went after him for posting a link (yes, posting a link) to a group to investigate, and because some of the Stratfor info included credit card data, the feds argued that Brown was trafficking in stolen credit cards. Really. And while the feds eventually dismissed the specific charges related to the links, the judge justified the long sentence against him because he copy/pasted that link.
The whole thing was a travesty. Brown is thankfully out of jail now, but earlier this week, Kevin Gallagher, who helped organize a legal defense fund for Brown, sued the Justice Department over claims that the DOJ illegally tracked and monitored everyone who donated to support Brown. Gallagher is looking to make this a class action lawsuit. You can read the full complaint here. From the filing:
The government agents responsible for the arrest and prosecution of
the journalist violated the First Amendment by seeking the identities of the donors to the
crowd-funding campaign, as well as the amounts of each donation. This violation began
when Assistant United States Attorney Candina Heath sent a subpoena (the “WePay
Subpoena”) to WePay, Inc. (“WePay”), the host of the crowd-funded legal defense fund,
directing WePay to send “any and all information” pertaining to the legal defense fund to
Special Agent Robert Smith of the Federal Bureau of Investigation (“FBI”). The subpoena
claimed that the information it requested would be used at the trial of the jailed journalist.
However, the identities of, and the amounts donated by, the journalist’s supporters are
completely irrelevant to the charges levied against the journalist. On information and
belief, the WePay Subpoena was part of a larger scheme by Ms. Heath and Mr. Smith to
unlawfully surveil the donors in violation of the First Amendment. As the Ninth Circuit
has recognized, “[t]he right of those expressing political, religious, social, or economic
views to maintain their anonymity is historic, fundamental, and all too often necessary.
The advocacy of unpopular causes may lead to reprisals – not only by government but by
society in general. While many who express their views may be willing to accept these
consequences, others not so brave or so free to do so will be discouraged from engaging in
The lawsuit further argues that the subpoena violated the Stored Communications Act (part of ECPA), because it sought the content of electronic communications without a warrant. That's because, in using WePay, donors were able to also include messages of support for Barrett Brown -- and the feds requested that info without a warrant (and the content was less than 180 days old, which still does require a warrant). That's... a problem.
The details of the lawsuit also question whether or not the administrative subpoena that was used to request the info was issued under false pretenses (i.e., it was claimed that the info was necessary for the prosecution of Brown, but instead of being sent to the prosecution team, it was sent instead to the FBI):
The WePay Subpoena indicated that the information it requested
would be used in the trial of Barrett Brown. Oddly enough, however, instead of asking
WePay to send its response directly to Ms. Heath, the prosecutor, or to lodge its response
with the court, the WePay Subpoena compelled WePay to produce information directly to
Agent Smith of the FBI. This renders the WePay Subpoena improper under Federal Rule
of Criminal Procedure 17(c). It also demonstrates that Defendants’ claimed purpose of
using the information produced in response to the WePay Subpoena at Barrett Brown’s
trial was purely pretextual. The true goal of the WePay Subpoena, rather, was to facilitate
the unlawful surveillance of the anonymous donors to the crowd-funding campaign.
I have no idea if this case has any chance at all. My suspicion is that the courts will figure out a way to dump it pretty quickly, but at the very least, it should call attention to the question of why the FBI felt that it needed all of the info on everyone donating to Barrett Brown, a journalist they railroaded into jail.
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Posted on Techdirt - 8 February 2017 @ 9:24am
I will admit that Australia's defamation law is fairly baffling, in that it seems to repeatedly allow individuals who have had mean stuff said about them to demand all sorts of content be completely blocked from existence -- based solely on the claims of the aggrieved, and prior to any court ruling. It's a "right to be forgotten" gone mad. The latest such example of this... involves us. We recently discovered that an Australian guy by the name of Michael Roberts is demanding that an entire Techdirt page be removed from Google's index. Having not recalled ever writing about anyone named Michael Roberts, I went to look at the article and discovered... it doesn't mention anyone named Michael Roberts and doesn't seem to involve him at all.
Instead, it's an article from about a year and a half ago about a preemptive lawsuit filed by Ripoff Report against a prosecutor in Iowa who has been aggressively pursuing Ripoff Report for quite some time. As we noted in the article, the judge in the case found no one to like and spends plenty of time pointing out the problems of everyone who is a party to the lawsuit. As the judge noted, the prosecutor pursing Ripoff Report, Ben Smith, appeared to focus on investigating Ripoff Report for "retaliatory reasons." Meanwhile, Ripoff Report was clearly no angel as well, potentially trying to stretch Section 230 of the CDA to cover content written by someone hired by the company (CDA 230 is clearly limited to user generated content, and not to works directed by the company).
That story was kind of interesting, but it apparently just revealed the tip of the ice berg of the dispute between Smith and Ripoff Report. It apparently goes much deeper involving all sorts of conspiracy theories, which we won't even begin to discuss here, other than to note that it appears that many of the people involved in the ongoing dispute all happened to show up in our comments and... go wild posting anything and everything. Some of the back and forth conspiracy theories do involve the guy who sent this notice, Michael Roberts. And, because of that, he wants our entire post (and a whole bunch of other things) entirely blocked from Google. I'm not going to go into the different claims and conspiracy theories in the comments because, frankly, it would take basically a week -- and probably some bulletin boards with photos, printouts and red strings connecting totally unrelated incidents.
But I do find it worrisome that even if Roberts is correct that various negative "imputations" can be made from some of the nuttier comments in the thread, that it means our original story -- which, again, doesn't even mention him -- should be blocked from Google. Honestly, if you read through the comments, and can even keep the various players and claims straight (good luck with that!), it's hard to believe that Roberts is the one who comes out of the whole thing looking bad. But, of course, in filing this takedown notice, he's only causing more people who wouldn't be paying attention at all to go look at the comments and see what this is all about.
Also, it does seem worth noting that beyond our specific articles, and some specific YouTube videos, the takedown request demands entire blogs and social media accounts be blocked, rather than specific statements/posts/articles that could be defamatory. That seems like a clear demand for prior restraint and broad based blocking of individuals, rather than of actually defamatory speech.
There's a popular saying that the best response to speech you dislike is more speech, and this seems like one of those cases. Rather than freaking out and demanding an entire article (not about him) be taken down, why not leave things in context where people can judge the unreliability of the claims on their own merit (or lack thereof).
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Posted on Techdirt - 7 February 2017 @ 5:03pm
The efforts to reform ECPA -- the Electronic Communications and Privacy Act -- have been going on for basically two decades at this point. The law, which was passed in 1986, has a whole bunch of problems, with the biggest one (as we've discussed dozens of times) being that it considers any email that's been on a server for more than 180 days "abandoned," and thus freely searchable by law enforcement without a warrant. That's because there was no concept of cloud computing back in 1986. People who got email "retrieved" those emails off of a server and downloaded them to local storage. Many in Congress have been trying to fix this for so, so, so many years. And it always gets blocked. The IRS and the SEC have both been fairly proactive in trying to block ECPA reform bills that will require a warrant (funny: I thought it was the 4th Amendment that made such a warrant necessary, but, silly me, no one cares about the 4th Amendment any more).
Last year, a plan to fix ECPA, called the Email Privacy Act, with an astounding 315 co-sponsors, passed the House unanimously. As we noted at the time, this is fairly incredible. In these contentious times -- especially on issues related to surveillance and law enforcement -- to have a unanimous vote on a law that says "get a warrant" if you want access to emails, is quite incredible. But, of course, even with that much support on that side of Congress, the Senate has a way of killing ECPA reform each and every year. Last year, a few Senators -- including Jeff Sessions, who is likely to be our next Attorney General -- tried to bury it with ridiculous amendments that would expand surveillance.
On Monday, the reintroduced Email Privacy Act easily passed the House via a voice vote, showing that our Congressional Members still recognize how important this is. Of course, now it gets to go back to the Senate, and we saw how well that worked last year. And then we have to believe that President Trump will sign the bill. Stranger things have happened, of course, but it still seems like a longshot that real ECPA reform will become law this year. It's great that Rep. Kevin Yoder, along with Reps. Jared Polis, Bob Goodlatte, John Conyers, Ted Poe, Suzan DelBene, Will Hurd, Jerry Nadler, Doug Collins and Judy Chu keep pushing this bill. I disagree with many of the folks on that list on a number of other issues we cover, but the fact that they're willing to support basic 4th Amendment concepts for email is worthy of recognition. Now, hopefully, the Senate won't try to muck it up again.
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Posted on Techdirt - 7 February 2017 @ 3:03pm
Disclaimer: As you probably already know, the lawyer in this story, Charles Harder, is the lawyer in the ongoing lawsuit against us.
Back in September of last year, we wrote about how our now First Lady Melania Trump, represented by Charles Harder, had sued the Daily Mail and some blogger in Maryland. As we noted at the time, the choice of Maryland for the venue was odd -- since the Daily Mail is a UK publication and Trump (at the time) lived in NY. We speculated that the blogger -- Webster Griffin Tarpley, who was not widely known -- may have been included solely to try to get the case into a Maryland court. As we noted at the time, Maryland's anti-SLAPP law is notoriously weak. In a profile on Harder last year, the Hollywood Reporter noted that he's well aware of the differences in state laws:
In his offices, Harder keeps charts mapping the differences in libel and privacy laws throughout the country. He also has become a pro on where to strategically file cases.
A couple weeks ago, the court let the case against Tarpley go forward, but late last week dismissed the case against the Daily Mail, saying that the venue was improper. As the ruling rightly notes:
In this case the Article was researched, written for and published in a United Kingdom newspaper and published on a general news website that did not focus on Maryland. The Article was uploaded by MailOne staff in London and MailOne staff in New York posted the Article to the U.S. homepage of MailOnline. No reporter or editor traveled to Maryland in the course of reporting, editing, or publishing the Article.... There are no advertising or business acts conducted by MMI that were purposefully directed to Maryland. Further there is nothing about the parties that connects the case against MMI to Maryland -- MMI does not have an office in Maryland, Plaintiff does not live in Maryland, and the witnesses are not located in Maryland. It would be unreasonable as a matter of constitutional due process for this Court to exert jurisdiction over MMI or MailOnline in the State of Maryland.
Much of the rest of the ruling goes through the arguments brought forth for why Maryland was the proper venue -- including things like having targeted advertising for visitors in Maryland, and having other stories that were local to Maryland -- and disposes of them one by one. None of it stuck.
Of course, on Monday, Harder filed a brand new lawsuit on behalf of Melania Trump against the Daily Mail... in NY state court. The complaint here is much more fleshed out than the original complaint in the Maryland case. The press has mainly pounced on one specific claim in the new lawsuit, about how the original article by the Daily Mail could have harmed Trump's ability to cash in on a "once-in-a-lifetime" opportunity. From the lawsuit:
As a result of Defendant's publication of defamatory statements about Plaintiff, Plaintiff's brand has lost significant value, and major business opportunities that were otherwise available to her have been lost and/or substantially impacted. The economic damage to Plaintiff's brand, and licensing, marketing and endorsement opportunities caused by the publication of Mail Online's defamatory article, is multiple millions of dollars. Plaintiff had the unique, once-in-a-lifetime opportunity, as an extremely famous and well-known person, as well as a former professional model and brand spokesperson, and successful businesswoman, to launch a broad-based commercial brand in multiple product categories, each of which could have garnered mutli-million dollar business relationships for a multi-year term during which Plaintiff is one of the most photographed women in the world. These product categories would have included, among other things, apparel, accessories, shoes, jewelry, cosmetics, hair care, skin care and fragrance.
That's definitely a lot more fleshed out and specific than what was in the original complaint in Maryland (which was filed before the election):
Plaintiff is involved in many business ventures involving the licensing of her name and likeness, and relying upon her valuable reputation, and the defamatory publication foreseeably caused substantial damage to her business, career, reputation and her actual and prosepctive economic relationships. As a result of the conduct of Daily Mail, Plaintiff has been damaged in an amount to be proven at trial.
Of course, what changed between the first complaint and the second complaint was Melania's husband becoming President of the United States. Thus, the clear implication -- that many in the media are making -- is that the "once in a lifetime" opportunity is to somehow cash in on the Presidency. Of course, I do wonder how much damage to her brand could really be attributed to those articles, which have since been deleted, seeing as her reputation -- and the fact that she will now be "one of the most photographed women in the world" -- certainly seems to have massively boosted her reputation and massively increased her areas of opportunity if she does choose to cash in (i.e., it seems that she might have had a stronger case if she had not become First Lady). Separately, in an era where people like Kim Kardashian and Paris Hilton have become massive licensing juggernauts, I'm curious how much damage the Daily Mail reports could actually do to potential brand/licensing deals.
Either way, Harder and Trump will continue pushing forward in their lawsuit against the Daily Mail, just in New York, rather than Maryland. And, yes, if you were wondering, New York has an unfortunately weak anti-SLAPP law.
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Posted on Techdirt - 7 February 2017 @ 10:59am
I recognize that many (especially regular Techdirt readers) will assume from the title above that the question is a rhetorical one in response to the latest craziness around a stupid trademark or awful patent. But, no, we mean that literally. You see, right before the Trump inauguration, it was widely reported that Michelle Lee would stay on as the Director of the US Patent and Trademark Office. That was undeniably good news. For all the complaints we have about the USPTO, Lee has done a fairly amazing job running that office, and seems to be one of the first Patent Office directors who actually understands how patents can do serious harm to innovation. Keeping her on would be a really good sign. After seeing the stories claiming that she was staying, we'd mostly moved on. However, Politico reporter Nancy Scola sent me down something of a rabbit hole after tweeting that it's basically impossible to know who's in charge of the Patent Office right now.
The USPTO's site still says it's Lee:
That seems like that should be that. However, there are conspiracy theories afoot -- mainly being discussed by Gene Quinn over at IP Watchdog. Gene and I disagree about basically everything as it relates to patents, and he's got a history of insulting me, so I have every reason to basically ignore him. But, on this, he may have a point. And the questions about whether or not Lee is actually in charge are also being asked by a much more respectable patent website, Patently-O.
The issue started when Quinn noticed that, despite the claims that Lee was staying on, the Commerce Department (which the USPTO is a part of) leadership page says the role is "vacant." Here's the latest screenshot I took:
As for the PTO's own website, Quinn rightly points out that its leadership page still lists out a number of other individuals who have announced resignations and are no longer there, but whose profiles are still on the website. The Commerce Department seems to be refusing to comment to anyone who asks (I've sent in my own question) and it's quite unclear if Michelle Lee really is the director.
If you look through the fairly long list of articles by Quinn on the subject, it's quite clear that he (as someone who is not a fan of Lee) is hoping that she's been pushed out, and is trying to drum up controversy over the possibility that she might remain. But the lack of any clarity from anyone... is bizarre. Quinn's most recent post on the subject notes that while no one seems willing to say who's running things, Lee "continues to be seen" in the building. That would certainly support the theory that she's staying. But... she's also cancelled a bunch of speaking engagements, and no one at the USPTO or Commerce Dept. seems willing to say anything. Also, in an earlier report, Quinn noted that he'd been told, unofficially, that Drew Hirshfeld is "Acting Director," implying Lee had left. But the whole thing seems to be... unclear:
Who is running the United States Patent and Trademark Office? That straightforward question shouldn’t be imponderable, but it seems that the Trump Administration has chosen to sequester the Director as if he or she has gone into the witness protection program. Indeed, we seem no closer to an answer to who is running the USPTO today than we were 18 days ago. Although sources tell me that Michelle Lee continues to be seen on the 10th floor of the Madison Building, which is where the Director’s Office is located.
As we begin the third week of the Trump Administration I cannot tell you with any definitive certainty who is Director, or if there is an Acting Director, or if the Commissioner for Patents is merely carrying out the responsibilities of Director without being named Acting Director, which has been the case at least once in the past.
Yes, the Trump transition has been a bit of a mess, but this seems particularly bizarre. There's a decent chance that the problem is just that something is afoot and it just hasn't been discussed publicly yet, so the Commerce Dept. and PTO are staying silent. But, as Quinn notes, there are actual, real implications of not having anyone as PTO director:
Indeed, there are many things that the law leaves to the discretion of the Director of the USPTO. While some of those decisions have been delegated out to subordinate officials within the Office, some do still remain only with the Director. For example, if you are a patent owner who believes you are being harassed by repeated post grant challenges the Director alone has the authority to provide a protective remedy. Without knowing who is Director how can patent owners appropriately seek to obtain the assistance of the Director?
Another thing that will soon become problematic is with respect to lawsuits involving the USPTO. Who should be the named party? Generally, the Director or Acting Director of the agency is named as the party on behalf of the agency. While it seems a small point, properly identifying the party is no minor matter in federal court. Are patent applicants supposed to style their appeals to the Federal Circuit as Applicant v. John or Jane Doe, Director of the U.S. Patent and Trademark Office?
In his most recent post, Quinn further wonders if those of us who tend to think certain patents shouldn't have been issued could even use this as a way to claim patents issued recently are invalid:
Sources tell me that the USPTO was prepared last week to issue patents with the signature of Drew Hirshfeld, who is the Commissioner of Patents and seems to be currently in the position of Acting Director. At the last minute, however, a decision was made to reverted back to Michelle Lee’s signature. This creates several significant problems.
First, if Lee is not currently the Director patents that are being issued with her signature are being issued in violation of §153. If we know anything about patent litigators it is that they raise every challenge possible, and it is only a matter of time before the provenance of patents issued during these first weeks and months of the Trump Administration are challenged as being invalid.
These are not unsolvable issues, once things are clarified, but it still... very, very strange. I doubt that challenging the validity of the patents would have much of a chance, but it is interesting. And while I desperately hope that Lee remains, and Quinn desperately hopes that she is forced out, I think (for once!) Quinn and I agree: whatever is happening, and whoever is in charge, should be disclosed publicly.
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