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Mike is the founder and CEO of Floor64 and editor of the Techdirt blog.

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Posted on Techdirt - 22 March 2017 @ 9:20am

Should You Have Any 4th Amendment Rights In An Airport?

from the seems-kind-of-important dept

For many years, we've written about the craziness of the so-called "border search exception" to the 4th Amendment, in which the US government has insisted that the 4th Amendment doesn't apply at the border, and thus it's allowed to search people at the border. The initial reasoning was -- more or less -- that at the border, you're not yet in the country, and thus the 4th Amendment doesn't apply yet. But that's expanded over time -- especially in the digital age. Perhaps, back when people just had clothes/books/whatever in their luggage, you could understand the rationale for allowing a search, but today, when people carry laptops and handheld electronic devices that basically store their whole lives, the situation is a lot scarier. Unfortunately, (with just a few small exceptions) the courts have simply taken the historical ability to search luggage at the border and expanded it to cover electronic devices. Then, things got even more ridiculous, when Homeland Security decided that anywhere that's within 100 miles of the border could be "close enough" to count as a "border search," making the "border search exception" apply. That's... messed up.

There's now a case in the 4th Circuit that shows how this is expanding even further, and on Monday we joined with the Cause of Action Institute and the Committee for Justice to file an amicus brief in the case of Hamza Kolsuz (the ACLU has also filed an amicus brief). Kolsuz had his phone searched under a "border search exception" -- but here's the thing: He was in the process of leaving the country, not entering it. A regular bag search turned up handgun parts in his checked luggage, for which he was arrested. After that, his iPhone was seized and searched without a warrant. Remember, just a few years ago, the Supreme Court ruled that you need a warrant to search a mobile phone in the Riley case. But here there was none.

Law enforcement tried to get around this by claiming that since Kolsuz was at the airport, the search of his phone should count as a border search exception. But that's crazy. Unfortunately, the district court accepted this reasoning -- and now the case is on appeal. We signed onto this amicus brief for a variety of reasons, but a big one is that, as journalists, protecting sources and documents is important. We shouldn't be subject to warrantless searches of our work every time we just happen to be in an airport. As the brief notes:

The District Court erred in denying Mr. Kolsuz's Motion to Suppress and this Court should reverse and remand for a new trial. First, while the border search doctrine constitutes a narrow exception to the otherwise unequivocal Fourth Amendment requirement that the government obtain a warrant to conduct a search, the governmental interests that justify this narrow border search exception were not in play when the Defendant's smartphone was searched incident to his arrest, and this exception therefore cannot be used to justify the search here. The fact that Mr. Kolsuz was arrested and his phone seized at an airport--the equivalent of a border--does not change this case from one that fits squarely within Riley v. California... to one that is suddenly part of a narrow exception of cases justified by the sovereign's customs enforcement rules.

The Court should see this search for what it was: a month-long, detailed, forensic search to gather evidence against Mr. Kolsuz for use in a trial on the very charges for which he was arrested. Since the search here was not actually a border search, the border search exception cannot save it.

Second, the United States essentially seeks a mechanical application of a Fourth Amendment exception even where the interests that justify the exception were not implicated in this case. The dangers of such a mechanical application are readily apparent. People traveling into and out of the United States routinely cross with smartphones or computers that contain the equivalent of "every piece of mail... every picture... [and] every book" a person has.... These individuals include journalists, lawyers, and business travelers with confidential information typically safeguarded under American jurisprudence. Nevertheless, customs agents purport to have unfettered access to the contents of electronic devices carried by such individuals, without any reasonable suspicion or probable cause of a crime, simply by the fact that the individual wishes to leave or enter the United States. This is not the application of the border search exception that the Supreme Court had in mind when it outlined its narrow purview.

Of course, many of us still find the very idea of a "border search exception" to be nonsensical in the first place. But if it's there, the idea that it could be abused in this manner is even more problematic and concerning. Hopefully the 4th Circuit corrects this injustice. We're proud to sign onto this brief, and hope the court listens.

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Posted on Techdirt - 21 March 2017 @ 2:41pm

Just Prior To Hearing Over NSL Gag Orders, Court Allows Cloudflare & CREDO Mobile To Be Named As Plaintiffs

from the about-time dept

In December, we wrote about how (thanks to EFF's lawyering) mobile phone provider CREDO Mobile was finally (after many years) allowed to reveal the National Security Letter (NSL) it had received from the DOJ back in 2013. As per usual, the NSL had a complete gag order, barring the company from admitting it had received such a letter. Then, just about a month later, Cloudflare was similarly ungagged over an NSL it had received in 2013 as well.

On Wednesday, EFF will be back in the 9th Circuit appeals court arguing that these NSLs are First Amendment violations, but for the first time, it can actually name those two companies as its clients. Even though those NSLs were finally allowed to become public in the last few months, the case itself still did not include their names, until Monday, when the court was told by the DOJ, that since the FBI had concluded the various investigations, and because it had enabled each of the companies to reveal those specific NSLs they had received, that it no longer required the plaintiffs' names in the case to be sealed. Of course, we don't know how many other NSLs are still gagged (possibly even with these two companies). Indeed, the EFF's announcement certainly hints at more:

On Wednesday, EFF Staff Attorney Andrew Crocker will tell the United States Court of Appeals for the Ninth Circuit that these gags are unconstitutional restrictions on CREDO and Cloudflare’s free speech and that the FBI’s belated decision to lift some of the gags only underscores why judicial oversight is needed in every case. The gag orders barred these companies from participating in discussion and debate about government use of NSLs—even as Congress was debating changes to the NSL statute in 2015.

Hopefully, the appeals court recognizes the serious First Amendment issues at play here.

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Posted on Techdirt - 21 March 2017 @ 11:42am

Man Actually Arrested For Assault With A Deadly Tweet

from the trolling-with-a-deadly-gif dept

Late last year, we wrote about the crazy case in which journalist Kurt Eichenwald was suing an anonymous Twitter troll, claiming that the troll had sent Eichenwald a flashing gif designed to cause some small percentage of epileptics to have a seizure. Eichenwald claimed that it had worked and he'd had a seizure on the spot. As we noted at the time, we're no fans of Eichenwald. In our opinion, he's an absolutely terrible journalist with a fairly long history of really weird issues, and a strange obsession with massively overselling stories. He has me blocked on Twitter and has indicated that he's no fan of us either.

Still, the lawsuit was interesting. At a first pass, the very idea that a "tweet" could be a weapon seems preposterous, and even troubling. But as we noted in that story, Eichenwald actually could have a legitimate case. We cited a bunch of lawyers and law professors, who each laid out why a tweeted image, deliberately designed to cause real harm to someone, could certainly violate the law. Of course, many people (reasonably!) wondered if the troll would ever be found. It's not too difficult to hide your identity behind a fake Twitter account (in this case, the rather unsubtle "@jew_goldstein"). But, then again, perhaps we didn't expect that the troll would do this:

That, is an image of John Rivello holding up his own driver's license. And it's attached to the very iCloud account that was attached the iPhone that he used, via an "untraceable" Tracfone prepaid account, to set up the @jew_goldstein Twitter account. And we know that because the DOJ arrested Rivello late last week and released the criminal complaint and affidavit that explains how Rivello the troll was tracked down. It's quite fascinating.

The short version is this: when setting up the Twitter account, a real phone number was used. That information was obtained via a search warrant to Twitter -- which also turned up a bunch of direct messages that are kinda useful to prosecutors:

If you can't see those, it's a series of Direct Messages from the "@jew_goldstein" account, saying things like that Eichenwald "deserves to have his liver pecked out by a pack of emus." "I hope this sends him into a seizure." "Spammed this at [Eichenwald] let's see if he dies." "I know he has epilepsy."

Those statements are kinda useful for law enforcement when charging someone under a cyberstalking law -- 18 USC 2261A that includes this:

Whoever--

(2) with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that—

(A) places that person in reasonable fear of the death of or serious bodily injury to a person described in clause (i), (ii), or (iii) of paragraph (1)(A); or
(B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of paragraph (1)(A)

That whole "intent to kill, injure, harass, intimidate" part is helped along with direct tweets saying something like "I hope this sends him into a seizure" and "let's see if he dies."

Anyway, back to the investigation. With that info in hand from Twitter, investigators asked AT&T for info on the phone number associated with the account (it appears this wasn't via a search warrant -- it looks like law enforcement just asked and AT&T responded, which is kind of consistent with the way AT&T seems to handle these sorts of things). AT&T noted that it was a Tracfone prepaid account, so there was no subscriber info... but also noted that it was using a specific model iPhone.

So, from there, the DOJ sent a search warrant to Apple about the iCloud account associated with that phone number, and that's where they hit jackpot. Not only did they get back an Apple ID with the name John Rivello, but they got the photo above. And this:

If you can't see it, that's the flashing gif that @jew_goldstein sent Eichenwald and it says "You Deserve A Seizure For Your Posts." This was the same one that Eichenwald's wife found on Kurt's computer when she found him having a seizure. The affidavit includes a screenshot she took of his computer screen showing that exact gif. Oh, and also stored in Rivello's iCloud? A screenshot of an edited Wikipedia page of Eichenwald, claiming that he'd died the day after the gif was set. And also screen shots of an article about epilepsy seizure triggers, and an article about how the police were trying to track down the troll.

So that's a lot of pretty damning evidence. As lawyer Keith Lee notes, it's something of a miracle he was tracked down. Even though he took some fairly basic precautions to cover his tracks (fake account, Tracfone phone connection), he didn't take that many and didn't seem to realize how many other ways there were to track him down.

I know that some have raised concerns about the idea that anyone could face criminal charges for a tweet -- but as we explained when Eichenwald first filed his (civil) lawsuit, there are legit causes of action here -- and it's a fairly rare fact pattern that would lead to these things. It would have to be a tweet or other message that is likely to cause actual harm -- which is a very, very, very limited set of tweets. And then there has to be the intent to cause that harm. In this case, it actually appears that all of that is legitimately in place.

Of course, I'll let the criminal defense lawyers chime in here with a deeper analysis, but in Keith Lee's post (prior to the actual charges being released) he pointed to that stalking law, and noted a few problems with it, including that it requires that the defendant travels across state lines and tends to require a pattern of such actions rather than a single action. So there may be some issues there, though it wouldn't surprise me to see an updated complaint with other charges that may be tougher to deal with. So, yes, while there are reasonable concerns about anyone being arrested for a tweet, this does seem like a fairly specific case where at least some sort of legal action does make sense. This wasn't just annoying someone with a meme -- it was causing a real physical attack that could have resulted in death. And it was done on purpose. Don't do that.

Either way, we now have an actual indictment for a crime of assault with a deadly tweet.

If you can't see that, it's the grand jury referral, noting that the offense is "aggravated assault with a deadly weapon" and it notes that:

... said defendant did use and exhibit a deadly weapon, to wit: a Tweet and a Graphics Interchange Format (GIF) and an Electronic Device and Hands, during the commission of the assault.

We live in such strange times.

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Posted on Techdirt - 21 March 2017 @ 10:45am

Homeland Security Starts Banning Laptops & Tablets On Planes From The Middle East

from the that-is-going-to-piss-off-a-lot-of-people dept

It's been a very long time since I last flew somewhere without my laptop. I actually am more productive than usual on planes, and I tend to use flying time to just focus in and get a ton of stuff done. I can't even begin to explain how ridiculously frustrating it would be to find out that I wouldn't be allowed to bring a laptop onto a plane, and yet it appears that our new Homeland Security overlords have put in place new restrictions on flights to the US from certain countries in the middle east barring tablets and laptops from the cabin (apparently no American carriers are impacted -- just foreign ones). Passengers are being told to check such things (which is odd, since normally you're not supposed to check lithium ion batteries...). Flights from 13 countries are being hit with this, and Homeland Security won't give any further explanation beyond the usual "national security." And, just this morning, the UK announced that it would be doing the same thing.

Homeland Security has been hinting that this is due to some sort of specific threat -- so it sounds like there's intelligence around a planned attack using such a device. Perhaps then the extra precaution is sensible. But, once again, this feels like a form of overkill security theater: inconveniencing basically everyone (to extreme levels) based on the slight possibility of a very small number of bad actors. There has to be a better way. Every time one of these new restrictions is put in place, it not only completely inconveniences people, but it shows people that if they somehow convince the scaredy cats at DHS of some new type of threat, they can inconvenience people even more. It's almost as if each additional inconvenience is impacting things way more than an actual exploding laptop or whatever might.

Of course, it should be no surprise that former TSA boss Kip Hawley, is now running around arguing that this is no big deal and Wired is happy to tell everyone to calm down and just "buy a book." But that's kind of crazy -- especially for people who have important or sensitive information on their laptops and don't want to hand them off to baggage carriers with a history of snooping through bags and stealing expensive electronics.

Also, since this is limited to just a few Middle Eastern airports, it's not hard to think that if there are terrorists planning something, they'll just head to different airports instead. Yes, I'm sure that someone saw something that they thought was a threat, and it's reasonable to put in place plans that try to minimize some of that risk. But it has to take into account the cost side too, and there has to be a better way to deal with it than such a blanket ban impacting so many people.

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Posted on Techdirt - 21 March 2017 @ 3:23am

Eli Lilly Loses Quixotic Quest To Get Canada To Pay $500 Million For Rejecting Its Bad Patents

from the corporate-sovereignty-saved dept

Over the last few years, we've written a ton about "corporate sovereignty" provisions in trade agreements. Technically, these tend to be called "Investor State Dispute Settlement" or ISDS provisions, but I really believe that a decent part of the reason they're called something so boring is to stop people from paying attention to just how nefarious these provisions truly are. One of the reasons we first started paying attention to these provisions -- as they were showing up in agreements under negotiation, such as the TPP and TTIP -- was following a story involving the pharmaceutical giant Eli Lilly demanding $100 million from Canada for rejecting two of its patents.

The issue was that Canada had rejected these two patents because the company couldn't prove that the patented drugs were actually useful. Eli Lilly claimed that Canada had no right to reject patents on that basis, arguing that it was a "dramatic" shift in how patents were reviewed, and thus it was "expropriating its property" and undermining the company's "expected future profits." Think about that for a second. By the time this case went to an actual tribunal, the amount that the company was demanding had ballooned from $100 million to $500 million. This battle has waged on for many years -- and for Eli Lilly, this was a huge deal. Management at the company basically bet the company on continuing to get new patents, and any hiccup -- even a rejection of patents for not being useful -- could be a disaster for the company. The company even pushed to get Canada slammed during diplomatic proceedings in the infamous Special 301 Report for the USTR for daring to reject its patents -- and the USTR complied.

Well, it looks like all of that may have been for nothing. That's because Eli Lilly has lost entirely, and not only won't it be getting the $500 million it wanted, but it also has to pay Canada's $5 million in legal fees. You can read the final award here or down below. Of course, some may argue that this shows that the ISDS corporate sovereignty provisions work out fine in the end, with tribunals getting things right (even if that's not actually true in many cases), but just the fact that the Canadian government had to go through this massive and expensive process for many years just for rejecting two bad patents should show why ISDS provisions are such a problem.

In the ruling, the tribunal even notes the Special 301 report that Eli Lilly worked so hard to have call out Canada's patenting practices, but more or less dismisses it, by noting that others, such as Mexico didn't complain similarly:

The Tribunal has paid particular attention to the 2014 and 2015 editions of the Special 301 Report of the USTR. In these documents, USTR notes that the United States “has serious concerns about the lack of clarity and the impact of the heightened utility requirements for patents that Canadian courts have applied recently”. This comment cannot be dismissed outright as a lobbying effort by Claimant, as suggested by Respondent. However, the Special 301 Report stands alone in the record as a complaint regarding Canada’s utility doctrine from any other State, including Mexico, in the decade since the promise utility doctrine was allegedly adopted. For the Tribunal, that silence speaks louder than the single, brief criticism contained in the USTR’s Special 301 Report.

In other words, sure, maybe it wasn't just because Eli Lilly heavily lobbied Congress and the USTR to attack Canada on this point, but the fact that no other country seems concerned with Canada's standards for denying patents, it certainly looks like this wasn't such a big deal.

Also in the ruling, there's a focus on "expectations." Remember, a big part of Eli Lilly's claims was how this impacted its "expected" profits. But here, the tribunal basically notes that just because Eli Lilly expected Canada to ignore its own law, it doesn't mean that it actually enforcing its own laws is some nefarious plot:

The record shows that at the time Claimant made its investments, it was aware that Canadian patent law required patented inventions to be useful. Eli Lilly executives testified that they understood the Canadian utility requirement to be a low threshold. In fact, it appears that the utility of Strattera and Zyprexa in Canada was taken for granted within the company. Claimant expected its patents would not be invalidated for lack of utility.

However, this perception cannot amount to a legitimate expectation. For the reasons stated above, the Tribunal has found that each of the three elements of the alleged promise utility doctrine had a foundation in Canadian law when Claimant’s patents were filed. At that time, although Claimant may not have been able to predict the precise trajectory of the law on utility, it should have, and could have, anticipated that the law would change over time as a function of judicial decision-making.

The idea behind ISDS was to encourage investment in developing nations, where there was a fear that a sketchy government might seize a factory or something. But that's not a problem between Canada and the US, and Eli Lilly should have been able to put on its big boy pants and recognize that maybe, just maybe, Canada can reject some of its patents, and the company doesn't need to throw an international hizzy fit. Next time, rather than betting the company on patents, perhaps the company will start thinking about business models that don't require a complete lottery ticket.

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Posted on Techdirt - 20 March 2017 @ 10:40am

Things Looking Even Worse For Prenda's Paul Hansmeier: Bankruptcy Fraud On Deck

from the welcome-to-the-big-leagues dept

So, let's just say that things probably haven't been looking very good for Prenda's Paul Hansmeier lately. Obviously, there was a long series of legal losses in the Prenda and Prenda-related cases, but those are in the distant past now. Back in September, he lost his law license for some of the Prenda copyright trolling activities (if you haven't been playing along, Prenda set up their own honeypots with their own films --which they pretended were some other company's, filed bogus CFAA charges to try to get IP addresses, demanded cash from people to drop lawsuits, lied in court multiple times and more...). Then, in December, the two main players: John Steele and Hansmeier were finally indicted and arrested. Then, just a couple weeks ago, Steele took a guilty plea, making it clear he's thrown Hansmeier under the bus and will testify against him (given the history of Steele throwing many others under rapidly approaching buses, this is no surprise).

So... that's not a really good position to be in. But it may be getting worse. As you may recall, in July of 2015, after a number of cases went against Prenda, and Steele and Hansmeier were told to pay large sums of money in opposing legal fees and sanctions, Hansmeier declared bankruptcy. Except, as with so much related to Hansmeier, that was a disaster too. It got so bad that Hansmeier's own lawyer admitted to the court that "he's a bad actor." As the bankruptcy process wore on, it became apparently worse. Turns out that he denied a certain trust fund was under his control, but that wasn't actually true. Oh and also more shell companies. Oh, and also $180,000 in cash hidden under his bed. As we noted all the way back in 2015, even before all of this came out, bankruptcy fraud is a bad idea.

And now, according to some of the latest filings in Hansmeir's bankruptcy case (also submitted in his criminal trial), Hansmeier admits that he's aware he's being investigated for bankruptcy fraud as well (ht: SJD):

Oh, and back in December it was reported that the FBI was also investigating his ADA trolling efforts. So that makes him indicted for Prenda and under investigation over more potential (serious) issues for doing more Prenda-like activities with the ADA and then also for bankruptcy fraud. As Paul Hansmeier himself once said in an angry threat letter: "welcome to the big leagues." Amusingly, that was in a letter to a critic threatening litigation for daring to suggest that Hansmeier had been involved in criminal activities.

Oh, and that's not all. Also via SJD, we find out that the trustee in the bankruptcy case, noting the indictment, has been asking Hansmeier to "waive his discharge" (effectively forcing Hansmeier to remain in bankruptcy, rather than being able to discharge his debts). The trustee (who is, somewhat amazingly, a former law school classmate of Hansmeier's) sent Hansmeier an email to this effect, noting that assuming Hansmeier would invoke the 5th Amendment in his criminal case, that will "allow the bankruptcty court to draw numerous adverse inferences against you."

Ouch. The document below, in which Hansmeier reveals the bankruptcy fraud investigation, is actually part of his effort to have the bankruptcy court to hold off on these proceedings while all this other stuff gets taken care of. But, even if he weren't facing criminal charges where his partner in crime has already admitted everything and agreed to testify against him, and even if he weren't also facing separate investigations over bankruptcy fraud and ADA trolling, it appears that Hansmeier's bankruptcy case is getting even worse than it was before. This is beyond big leagues. This is beyond the All-Star game. This is truly Hall of Fame material.

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Posted on Techdirt - 20 March 2017 @ 3:23am

This Won't Be Abused At All: Google Offers Tool To Flag And Downrank 'Offensive' Search Results

from the this-whole-thing-is-offensive dept

Google is constantly under pressure from all sides to change how it ranks just about everything. There's a massive SEO industry, a decent portion of which is dedicated into tricking Google into ranking some stuff higher than others (or downgrading content that someone doesn't like). And, then, of course, there are the "outside" interests. For years, the legacy recording and movie industries would misleadingly blame Google for piracy and demand that it downrank "pirate" links. Google caved in and did so, and the end result has been kind of a mess. Because it's based on DMCA notices in to Google, the company now gets flooded with an ever increasing number of DMCA notices -- many of which are completely bogus (and potentially just designed to mess with search rankings).

On top of that, in cases where it does downrank so-called "pirate" sites, since people are still looking for unauthorized content anyway, they end up going to more dangerous sites, where they're more likely to get malware. And, of course, as we predicted, despite caving in and giving the RIAA/MPAA a tool to shape search results, those industries still aren't satisfied. Because they'll never be satisifed. That's because they fail to understand that the problem isn't Google. Google is just a representation of what's on the internet -- and many people on the internet want access to content that is otherwise difficult to get. That's not Google's fault.

A couple of years ago, Google also announced that it would allow people to remove "revenge porn" results from search. And you can certainly understand why pretty much everyone would want this as an end result. But, still, once you make that tool available, there's reason to fear that it, too, will be abused. And even if a company as large as Google may be able to properly staff up to go through and review each request, this only puts pressure on everyone else -- including much smaller, less well-staffed, less well-resourced players to do something similar.

And now... for reasons that are unclear, Google has announced that it opened up a tool that will let people report "offensive" results and potentially downrank those results.

With the change, content with racial slurs could now get flagged under a new category called "upsetting-offensive." So could content that promotes hate or violence against a specific group of people based on gender, race or other criteria.

While flagging something doesn't directly affect the search results themselves, it's used to tweak the company's software so that better content ranks higher. This approach might, for instance, push down content that is inaccurate or has other questionable attributes, thereby giving prominence to trustworthy sources.

Again, at a first pass, this kind of thing absolutely sounds good. We should want better results, and the idea of letting Google's many millions of users help flag certain sites to be carefully reviewed for "upsetting or offensive" content makes sense. But... again, this definitely seems like the kind of thing that is open to widespread abuse. First off, what is "upsetting or offensive" anyway? That's a completely subjective standard, and one that we've seen people judge very, very differently. Second, what do you do if you really dislike a particular site? You open up a vote-brigade by a bunch of people to label it "upsetting or offensive." Trump haters can go after Breitbart and Trump supporters can go after the NY Times. Hopefully Google resists those kinds of vote brigading, but just the fact that this kind of tool is open to such abuse is concerning. And, again, when Google does something like this, it puts more pressure on other sites, with many fewer resources, to do something similar or get branded as somehow "supporting" offensive content.

Again, none of this is to say that Google must be promoting "offensive" content. It has the right to create its search results however it wants. But the more tools it opens up to the public to potentially downrank sites, the more the risk is that such tools get widely abused.

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Posted on Techdirt - 17 March 2017 @ 9:40am

Facebook Sued In Israel For Blocking All Links To Site Critical Of Facebook & Suggesting Site Was 'Unsafe'

from the questions,-questions,-questions dept

Mizbala is an Israeli marketing/creative agency that runs a news site as well, commenting on issues related to internet marketing and advertising. The site has been quite critical of Facebook, including a few recent posts where it mocked Facebook for its aggressive/arbitrary blocking of users and content:

Over the past few days, Mizbala has written about other cases in which Facebook automatically blocked and/or erased posts. In one case, comedian Guri Alfi complained about the erasure of one of his posts, which he attributed to the fact that he credited photographer Guy Kushi. The Hebrew word “kushi” is a derogative term for blacks.

In another incident, Gili Cohen, a participant in the “Big Brother” reality show, was blocked for 30 days after posting a video clip in which he harshly criticized the fact that he and others had been blocked for using “banned words” in old posts.

This is something that we've been known to post about on quite a few occasions as well. The fact is, Facebook isn't always good with its blocking decisions. Frankly, this isn't a huge surprise, given that it has to use a combination of algorithms and low level human reviewers to cover a fairly large amount of content -- a decision the company made when it decided that it would be the arbiter of what is and what is not allowed on the site. Mistakes are going to happen, and with it comes people mocking Facebook for making bad decisions.

However, with Mizbala, something extra strange happened. Soon after posting a few of these stories mocking Facebook, suddenly Mizbala itself was blocked by Facebook. Entirely. Even worse, previous links to Mizbala disappeared and anyone posting a link to Mizbala was given a fairly scary sounding message suggesting the site was deemed "unsafe" by Facebook.

In some other cases, it told people posting Mizbala links that the links "might be spam."

Yeah, so that certainly feels pretty sketchy. The site is regularly critical of Facebook -- specifically how it blocks people arbitrarily -- and suddenly it too gets blocked by Facebook with a nasty warning that the site itself is "unsafe." Even if this was an accident, it really looks quite bad.

In response, Mizbala has sued Facebook in Israel arguing that the messages associated with the block are defamatory and a "false description" of Mizbala (which appears to be similar to the concept of "false light" in American law).

I'll admit that I'm a bit torn about this whole thing. The arbitrary/hamfisted blocking is pretty ridiculous, and it's made much worse when it comes right after Mizbala was directly criticizing Facebook for arbitrary blocking and when it then is telling people that the site is either unsafe or spam. But, at the same time, it seems like a flat out public shaming is always going to make more sense here than going legal. In the US, at least, this kind of lawsuit would almost certainly fall flat (quickly). Nearly a decade ago, we wrote about a case in which it was found that Section 230 of the CDA protected an antivirus company (Kaspersky) from calling some adware "spyware." CDA 230(c)(2) makes it quite clear that attempts by companies to filter content taken in good faith don't expose the company to liability (of course, if this case were in the US, I'd guess that Mizbala could argue that the block wasn't made "in good faith.")

Of course, the case is in Israel, not in the US, and Israel doesn't have an equivalent to Section 230 for cases like this.

Given all that, this case could be troublesome. Obviously, Facebook's actions here look sketchy, and I'm all for calling out the company for its bad filtering policies, and the really iffy "unsafe" labelling it gave to the site here. But by putting liability on a company for deciding to block certain sites opens up a pandora's box of mischief. It could enable just about any site that was blocked -- even if for legitimate reasons, to gum up the judicial system with lawsuits and would make it much more difficult for lots of internet companies (including small ones who don't have the litigation budget of Facebook) to have to defend almost any moderation decision they make. This is the kind of thing that Section 230 protects against in the US, letting companies make their own moderation decisions (while the First Amendment then lets anyone mock the companies for making bad decisions).

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Posted on Techdirt - 16 March 2017 @ 1:09pm

Once Again, Senator Wyden Wants To Know How Many Americans Are Being Surveilled By The NSA

from the why-is-this-so-difficult dept

Many people seem to forget that before Ed Snowden came along, Senator Ron Wyden was beating the drum in Congress about how the NSA was abusing Section 702 of the FISA Amendments Act to spy on Americans. Here's a story we did back in 2011 concerning Wyden raising concerns about the failure of the Director of National Intelligence to say how Section 702 was being used on Americans. Even earlier in 2011, we wrote about then Director of National Intelligence, James Clapper, refusing to answer this question, saying that "it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed."

Wyden kept up a series of similar requests, famously leading to the 2013 hearing in which Wyden directly asked Clapper about whether or not information was being collected on Americans and Clapper flat out lied. Snowden himself has credited that particular exchange as playing a big role in convincing him to leak documents.

Fast forward to now. Last week, Senator Wyden sent a letter to incoming Director of National Intelligence* Dan Coats, once again asking how many Americans are having their communications watched under Section 702 of the FISA Amendments Act (which, again, is supposed to be used for foreign intelligence, but which we now know is regularly used to do surveillance on Americans).

I and other members of Congress have been seeking an answer to this question since 2011. We posed the question again in the context of the reauthorization of Section 702 in 2012. It is now central to the debate this year over the reauthorization of the program, which you have described as your "top legislative priority."

As Wyden notes:

The lack of information on the extent to which Americans' communications have been collected under Section 702 is relevant not just to the question of whether Section 702 should be reauthorized, but to what reforms may be needed. For example, the government is currently authorized to conduct warrentless queries for Americans' communications collected under Section 702. Without data on the number of Americans' communications available to government, it is impossible to know the full extent to which these queries intrude on the privacy and constitutional rights of Americans.

Wyden was hoping to get an answer to this question, prior to Coats' being voted in. That, of course, did not happen. However, Wyden gave one of his big speeches about this issue:

In it, he calls out these issues quite clearly:

But I want it understood that the reason that I’m going through this background is that I believe the American people deserve a fully informed debate about the Foreign Intelligence Surveillance Act reauthorization. You cannot have that debate — you cannot ensure that the American people have security and liberty unless you know the impact of section 702 of that bill on the constitutional rights of law-abiding Americans.

So for six years, Mr. President, in this body Democrats and Republicans — in the other body, Democrats and Republicans — have been asking the same question: How many law-abiding Americans are having their communications swept up in all of this collection?

Without even an estimate of this number, I don’t think it’s possible to judge what section 702 means for the core liberties of law-abiding Americans.

Without this information, the Congress can’t make an informed decision about whether to reauthorize section 702 or what kind of reforms might be necessary to ensure the protection of the individual liberties of innocent Americans.

There's a lot more in the nearly 50-minute speech (the transcript is in the link above). But it's truly incredible that the executive branch refuses to give Congress this information that it needs for oversight:

Mr. President, how many law-abiding Americans — innocent, law-abiding Americans are getting swept up in these searches? It will be an increasingly important issue, as the nature of telecommunications companies continues to change because it is now a field that is globally interconnected. We don’t have telecommunications systems just stopping at national borders.

So getting the number of Americans whose communications have been collected in the first place is the prerequisite to doing real oversight on this law and doing our job at a time when it is being reauthorized and the American people want both security and liberty and understand that the two are not mutually exclusive. So, Director Clapper then suggested reviewing the classified number of targets that were later determined to be located in the United States. But the question has never been about the targets of section 702, although the mistaken targeting of Americans and the people in our country is another serious question.

The question that Democrats and Republicans have been asking is about how many Americans are being swept up by a program that, according to the law, is supposed to only target foreigners overseas. So let me repeat that. That’s what the law says. The Foreign Intelligence Surveillance Act says that the targets are supposed to be foreigners overseas. And Democrats and Republicans want to know how many law-abiding Americans who might reside in Alaska or Oregon or anywhere else are getting swept up in these searches. So this bipartisan coalition has kept asking.

Wyden goes on to explain how many in the intelligence community are misleading the public on how broad the powers and searches under Section 702 really are. He even highlights the claims that some have made that anyone against 702 must be part of a "bad guy caucus." But the issue is that, as currently used, Section 702 can and likely is being used to broadly conduct warrantless surveillance on Americans:

I’ve heard my colleagues on the other side talk frequently. Well, you know, if law-abiding Americans are having their communications swept up, we shouldn’t get all concerned about that because this array of Americans’ communications is being minimized, and somehow that means that it’s not getting out. It’s being hidden. That’s not what necessarily happens.

To begin with, all that collection does not stay at the National Security Agency. All the e-mails collected through the PRISM component of section 702 go to several other agencies, including the C.I.A. and the F.B.I. Then you have those three agencies in particular authorized to conduct searches through all the data for communications that are to, from, or about Americans. Look for an American’s name, telephone number, e-mail address, even a key word or phrase. They can do that without any warrant. There doesn’t have to be even a suspicion, even a suspicion that an American is engaged in any kind of wrongdoing.

The F.B.I.’s authorities are even broader. The F.B.I. can also conduct searches for communications that are to, from, or about an American to seek evidence of a crime. Unlike the National Security Agency and the Central Intelligence Agency, the F.B.I. doesn’t even report how many searches for Americans it’s conducting. Moreover, neither the F.B.I. Nor the C.I.A. Reports on the number of searches for Americans it conducts using metadata collected under section 702.

Now, the authority to conduct searches for Americans’ communications in section 702 data is new. Before 2011, the FISA court prohibited, prohibited queries for U.S. persons. I’m going to repeat that: Under the Bush Administration and the first two years of the Obama Administration, it was not possible to conduct these back-door, warrantless searches of law-abiding Americans. Then the Obama Administration sought to change the rules and obtained authority to conduct them.

In April, 2014, the Director of National Intelligence in response to questions from myself and Senator Mark Udall publicly acknowledged these warrantless searches, and my June, the House voted overwhelmingly to prohibit them. That prohibition didn’t become law, but I can tell you it’s sure going to be considered in the context of this reauthorization, and the House voted overwhelmingly, overwhelmingly to prohibit these warrantless searches. So the question really is what exactly is the privacy impact of these warrantless searches for Americans?

There's a lot more in the speech as well, but this post is getting to be long enough. Unfortunately, of course, the speech will get little attention. It's not the exciting sort of political football that cable news likes to cover. There's no partisan horse race element to it. It's just the kind of thing that impacts the basic Constitutional rights of all Americans. And, apparently, only a few people actually seem to care about it -- and none of them seem to be in roles where they can stop this kind of 4th Amendment violation from happening again.

* Clapper, astoundingly, was never fired or otherwise punished for lying to Congress, and only left at the beginning of this year with the change in administrations.

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Posted on Techdirt - 16 March 2017 @ 11:51am

Actor James Woods Now On The Receiving End Of Questionable Twitter Defamation Claim

from the what's-good-for-the-goose dept

Remember James Woods? The Hollywood actor sued a Twitter troll for $10 million, claiming defamation, because that troll had sarcastically referred to Woods as a "cocaine addict." Woods, of course, has a long history of mixing it up on Twitter with lots of people, including saying things almost identical to what he sued over:

Throughout the case, Woods continued to make it abundantly clear to the world that he is a horrible person. Specifically, during the course of the case, the (anonymous) defendant unexpectedly passed away, leading Woods to gloat about the guy's death, after first claiming that the reason the appeal in the case was dropped was because he was winning the case:



Not only that, but even after the defendant passed away and the case was dropped, Woods continued the lawsuit and forced the opposing side to reveal the name of the anonymous Twitter user who so enraged Woods.

Of course, as we've said time and time again, people should be very careful in gleefully taking down the rights of others, because you never quite know when that same sort of thing might boomerang back around. Case in point: the Hollywood Reporter notes that James Woods is being sued for defamation... over some of his tweets. The lawsuit, seeking $3 million, and brought by Portia Boulger, claims that Woods defamed her and then was insincere in his apology:

This all started in March 2016, after the Chicago Tribune posted a campaign rally photo of a woman who was wearing a Trump T-shirt and giving a Nazi salute — the well-known 'Heil Hitler' salute with her right hand raised straight up — and several Twitter users misidentified the woman in the picture as Boulger, according to the complaint. Woods tweeted the photo from his verified account and wrote, “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?”

[....]

After Boulger's attorneys contacted the actor, he deleted the tweets and wrote a new series of them that were meant to be a retraction. However, two of the three apology tweets were untrue, according to Boulger.

A March 23 tweet by Woods reads: “Ms. Boulder [sic] has reached out to me and asked me to use my many followers to stop people from harassing her. I am more than happy to do so.”

That was followed by another: “Though she supports @BernieSanders, I am happy to defend her from abuse. I only wish his supporters would do the same for other candidates.”

You can read the full lawsuit here if you're interested.

Now, here's the thing: while there's obviously the emotional appeal of seeing Woods hit with the same kind of lawsuit that he saddled someone else with, this lawsuit appears to be just as misguided, if not worse. I know (first hand...) that some people think that it's okay to cheer on bogus lawsuits against people you dislike, but some of us have principles. Bogus defamation lawsuits are an affront to free speech, whether they're brought against people we like or not. And this certainly looks like a bogus defamation lawsuit. I hate to say it, because I'm sure Woods will continue to gloat and never realize the contradictions if he does, but Woods should win this lawsuit easily.

The original tweet may be borderline, but it would be quite difficult to argue that Woods posted it with actual malice, defined as knowledge that the information was false, or with reckless disregard for the truth -- which is the standard necessary if Boulger is deemed a public figure, which seems likely in this case (Boulger is a political activist and that's a big part of what the dispute is about). Yes, the tweet misidentified her, but hard to argue that it could pass the bar to be defamation. The fact that Woods then deleted the tweet after being informed that he was wrong, and posted the follow up tweets helps his case as well, even if Boulger's lawyers attack those tweets too. Here's what the complaint says about them:

The second and third of these tweets were false, insulting and demeaning as Ms. Boulger never asked Mr. Woods to “reach out to my many followers to stop people from harassing her.” Rather, Ms. Boulger, through counsel, had demanded a retraction and apology.

Yeah... that's such a difference of degree that there's almost no way it will be seen as defamatory. Furthermore, "insulting and demeaning" is not defamation, nor is it against the law. Unfortunately for Woods, Ohio, where the case is filed has no anti-SLAPP law as far as I can tell. So this case becomes yet another example of why a federal anti-SLAPP law is important. Of course, Woods could try to move the venue or push for California's anti-SLAPP law to apply, since he's a resident of California.

In certain ways, this case actually has a fair number of similarities to the Katie Hopkins Twitter defamation lawsuit in the UK that we wrote about earlier this week. We noted in that story how different UK and US defamation law can be, but also noted that Hopkins was widely disliked, and thus many people who otherwise tend to be good on free speech issues were celebrating her "loss." One hopes that on this one people can remain above that sort of thing, and recognize that if you support true freedom of expression, then this case must fail, even if you don't like James Woods, or were furious at him for filing his own wacky defamation case over tweets not too long ago.

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Posted on Techdirt - 16 March 2017 @ 10:45am

Rep. Devin Nunes' Hypocrisy On Display In 'Concerns' Over NSA Surveillance

from the let's-try-this-again... dept

We've talked about the astounding hypocrisy of Rep. Devin Nunes a few times in the past. He heads the House Intelligence Committee, which is supposed to be conducting "oversight" of the intelligence community, but has generally been a cheerleader for mass surveillance in recent years. Nunes, in fact, has regularly slammed any attempt to cut back on surveillance, to the point of actively misleading the public in making false claims about how NSA surveillance programs work. The hypocrisy became clear when Nunes flipped out following the firing/resignation of Mike Flynn as National Security Advisor, arguing that it was somehow unprecedented that an American's phone calls with Russian officials were recorded by the intelligence community. Of course, that suggests either near total ignorance of the programs he's supposedly in charge of overseeing, or just blatant political pandering.

And now it's getting worse. Reporter Katie Bo Williams got her hands on an interesting letter that Nunes, along with ranking member Rep. Adam Schiff, just sent to the heads of the CIA, NSA and FBI, continuing to dig in on the whole "recorded Mike Flynn" thing. The target now is Executive Order 12333, which we've spoken about quite a lot. That's the executive order signed by President Reagan, that more or less gives the intelligence community total free rein in conducting surveillance overseas. As an ex-State Department official revealed back in 2014, the vast majority of NSA surveillance actually is done under 12333, and it just uses other programs -- like Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act -- to fill in the gaps of what they can't get via 12333. Executive Order 12333, for example, was used to hack into Yahoo and Google's servers overseas, allowing the NSA to scoop up lots of info without any oversight by US courts.

Anyway, based on the letter that Nunes has sent, he's suddenly quite concerned about 12333. And this demonstrates his massive hypocrisy, because another letter he sent a few years ago has him arguing that there should be less oversight on 12333... but we'll get to that. This new letter suggests that the Flynn recording came under 12333, and so he's demanding all sorts of data on how 12333 is used on US Persons.

Of course, what's interesting here is that the Congressional intelligence committees have long stated that they don't really have much oversight into anything under 12333. Dianne Feinstein (who was a top member of the Senate Intelligence Committee) admitted in the past that the committees get zero insight into 12333 intelligence collection:

“The other programs do not (have the same oversight as FISA). And that’s what we need to take a look at,” she said, adding that her committee has not been able to “sufficiently” oversee the programs run under the executive order. “Twelve-triple-three programs are under the executive branch entirely.”

Feinstein has also said the order has few, if any, privacy protections. “I don’t think privacy protections are built into it,” she said. “It’s an executive policy. The executive controls intelligence in the country.”

Got that? Good. At least when Feinstein was bringing it up, she was bringing it up to argue that the Intel Committees should be getting more insight into what 12333 is used for.

However, Devin Nunes, apparently wanted it to be kept in the dark. And wanted the public kept in the dark. That's because I just received in a surprisingly well-timed FOIA response, a letter that Nunes, along with Senate Intel Committee boss Richard Burr, sent a letter to the Privacy and Civil Liberties Oversight Board (PCLOB) back in 2015, basically telling the PCLOB to stop looking into 12333, because it was outside its purview. As you may recall, after doing detailed reports on Sections 215 and 702, the PCLOB announced that it was going to do a detailed study on 12333 to determine if it was violating the privacy and civil liberties of Americans. While that was announced way back in 2014, nothing final ever came out -- and it's unlikely to ever come out because the PCLOB is effectively dead.

But Nunes and Burr were apparently so concerned that the PCLOB might find actual problems with 12333 and how it violates the rights of Americans, that they made it clear that the PCLOB should knock it off:

As we are sure you are aware, intelligence activities conducted under E.O. 12333 address a broad range of national security issues beyond counterterrorism, including significant and important foreign intelligence matters that fall well outside of the PCLOB's limited statutory charter. Many intelligence activities conducted under E.O. 12333 predate the creation of the PCLOB and were not within the scope that the 9/11 Commission or Congress envisioned when PCLOB was established. The purpose is clear and specifically defined by Congress.

We trust you will keep in mind the finite statutory authority as you move forward and work with the Intelligence Community to limit appropriately your review only to those matters which Congress has specifically authorized you to review.

In other words, just two years ago, Devin Nunes was telling the one body in the government specifically tasked with reviewing intelligence collection programs to see how they're being used on Americans, that they should stop doing that. And now, today, he's suddenly demanding to know how the intelligence community uses 12333 to spy on Americans -- as if it had never crossed his mind before that the program was used this way.

This is not effective oversight. This is a hypocritical joke by the name of Rep. Devin Nunes.

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Posted on Techdirt - 15 March 2017 @ 2:45pm

Tech Companies File Amicus Brief, Still Opposed To New Trump Immigration Order

from the same-problems dept

Last month, we noted that a ton of tech companies -- including us at the Copia Institute -- had signed on to amicus brief opposing the Trump Executive Order on immigration. As you know, the administration came out with a new executive order a few weeks later, trying to get around the multiple courts that had blocked the original order. The new order is just a cosmetic rewriting of the original one with a few small changes that the administration hopes will survive judicial scrutiny. A number of challenges have already been filed to the new order, and in one of them, brought by the state of Hawaii, a bunch of tech companies (again, including the Copia Institute) have now filed an amicus brief opposing the order. In particular, this brief focuses on the harms to the tech industry, including actual examples of harms created by this exec order:

  • A U.S. resident employed at a cutting-edge software company fears that he cannot leave the U.S. because he is a national of a Muslim majority country targeted by President Trump’s travel ban. If he attempts to travel outside the country, he could be detained and refused re-entry. After the travel ban went into effect, he canceled plans to bring his mother to the U.S. to visit him, out of concern that she might be detained or turned away. He has not been home for five years. The U.S. company he works for, which employs over 100 people and has raised hundreds of millions of dollars in capital, was founded by an immigrant.
  • A high-tech, U.S.-based software company devoted significant resources to an event it scheduled in February 2017 where it planned to host owners of small businesses and tech start-ups based overseas. Before these entrepreneurs became business and start-up owners, they were Syrian refugees. After President Trump’s travel ban went into effect on January 27, 2017, the event was abruptly postponed, because the guests were unable to travel to the U.S. on account of their status as Syrian refugees. The U.S.- based software company plans to reschedule the event at a location outside the U.S., so the Syrian refugees and entrepreneurs can safely attend.
  • A U.S.-based mobile app and website development company with millions of users worldwide employs U.S. residents who are nationals of the Muslim-majority countries targeted by President Trump’s travel ban. In late January and February 2017, some of these employees had planned to fly outside the U.S. for business or personal reasons. Since the travel ban was announced, these employees canceled their flights for fear they would be detained or not permitted to re-enter the U.S.
  • A U.S.-based technology company courted promising job candidates overseas and was prepared to offer them employment when the prospects suddenly withdrew from consideration because they were worried about immigration issues in light of President Trump’s travel ban.
  • After the implementation of President Trump’s travel ban, foreign born founders of a U.S.-based technology company began exploring the possibility of moving their company outside of the U.S.—and taking the company’s jobs with them.
The filing goes through the history of the initial ban, and then notes that the new version is still just as bad:

President Trump’s new travel ban is no different. It will inflict the same substantial and irreparable harm upon U.S. companies and their employees. And in implementing the promise of a “Muslim ban,” the new travel ban suffers from many of the same defects as the first travel ban. It violates the prohibition against nationality-based discrimination that Congress established through the Immigration and Nationality Act. It exceeds the authority granted to the Executive. It is arbitrary and overbroad in scope. And it impermissibly discriminates on the basis of religion and deprives individuals of Due Process rights, thus violating the U.S. Constitution. In sum, President Trump’s new travel ban has not overcome the constitutional and legal deficiencies that led courts to enjoin his first travel ban. Accordingly, the new travel ban should meet the same fate as the first travel ban— it should be enjoined nationwide.

This amicus brief is at the district court level, so it's still quite early in the process -- and there are other legal challenges in other courts. This will still take a while to sort itself out, but we're proud to stand alongside others in the industry in speaking up for why these immigration executive orders are illegal and unconstitutional, not to mention bad for innovation and the economy.

Update: Oh, and just an hour or so after I posted this, the judge has granted a temporary restraining order, blocking the executive order from going into effect...

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Posted on Techdirt - 15 March 2017 @ 11:53am

Prenda May Be Dead, But Copyright Trolling Still Going Strong

from the no-signs-of-slowing-down dept

With one of Prenda Law's key players, John Steele, pleading guilty and likely spending many, many years in prison, you might think that it would mean an end to egregious copyright trolling. However, Matthew Sag, who's spent years tracking the number of copyright trolling lawsuits, lets us know that trolling is still going strong, and it's only slightly modified since the days of Prenda:

...in the post-Prenda era, lawsuits filed against John Doe defendant made up more than 52% of all copyright cases in in the United States in 2014 and 58% in 2015. The number of suits dropped slightly after Malibu Media lost a case on summary judgment in January 2016, but the rate of filing is increasing again. Even so, between 2014 and 2016 copyright trolling accounted for 49.8% of the federal copyright docket.

Our analysis of the federal court filing records indicates that in 2016, the average number of defendants in each of the John Doe cases was 4.7 on a conservative estimate . In other words, although there were 1,362 John Doe copyright cases filed last year, 6,483 individual defendants were targeted. Without doubt, some of those people were illegally downloading movies, but a great many were not.

As Sag notes, copyright trolls don't seem to care much about being legally correct. They just need to be convincing enough to get people to pay up to avoid the lawsuit:

The new breed of plaintiffs who filled Prenda’s shoes are different to Prenda, but not different enough. The plaintiffs’ claims of infringement still rely on poorly substantiated form pleading and are targeted indiscriminately at non-infringers as well as infringers. Plaintiffs have realized that there is no need to invest in a case that could actually be proven in court, or in forensic systems that reliably identify infringement without a large ratio of false positives. Their lawsuits are filed primarily to generate a list of targets for collection; and are unlikely-in our view-to withstand the scrutiny of contested litigation.

The human cost of copyright trolling is significant. It is true that sometimes the plaintiffs get lucky and target an actual infringer who is motivated to settle. But even when the infringement has not occurred or where the infringer has been misidentified, some combination of the threat of statutory damages of up to $150,000 for a single download, tough talk, and technological doublespeak are usually enough to intimidate even innocent defendants into settling.

Copyright -- with the help of insane $150,000 statutory damages -- is still being used as a shakedown weapon, scaring people into paying up, not because of actual infringement, but because copyright trolls have learned how to use the law and the court system as a business model very similar to the one used by organized crime in certain neighbors: pay up or someone's going to get hurt. The unfortunate "new" part of this is that the "weapon" here isn't a baseball bat, but federal copyright law and the judicial system.

Sag now has a longer paper, along with Jake Haskell, looking at "the dark arts of copyright trolling" and how to defend against them. The paper has much more details than Sag's blog post linked above, along with pretty charts like the following one:

Of course, it also notes that this is a niche industry, with 62% of the trolling cases coming from just five companies. Malibu Media, unsurprisingly leads the way (by a lot), as it has done for several years. While Malibu Media has run into some problems in the courts, I'm still at least somewhat surprised that it hasn't received Prenda-level treatment by more judges. Perhaps that will change soon.

Either way, it's fairly clear that copyright remains seriously flawed if it's open to being abused so frequently, even if by a very small number of players.

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Posted on Techdirt - 14 March 2017 @ 9:06am

New Filings In Our Ongoing Lawsuit

from the go-ahead-and-read dept

A quick update in the lawsuit filed against us. Today we filed additional motions for Leigh Beadon, part of the team here, who was also sued. We've filed a motion, on Leigh's behalf, to have the lawsuit thrown out on anti-SLAPP grounds, because this is a strategic lawsuit designed to chill our exercise of First Amendment rights. At the time of our initial filings in the case, Leigh had not yet been served. That happened a few days later, and now we've also filed the motions to dismiss for Leigh as well, and a related memorandum detailing the reasons why he should be dismissed. Please read the filings. Also, just to have them all in one place, we've posted our original filings below as well.

As we noted before, this lawsuit is a huge distraction for us, and we appreciate everyone who has stepped up already to help keep us going and to keep publishing through this ordeal. Please check out the site ISupportJournalism.com to let us know you support our reporting on a variety of important issues. Or, check out some of our t-shirts, hoodies and other gear, as we've been refreshing some old favorites and some new designs as well.

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Posted on Techdirt - 13 March 2017 @ 1:25pm

General Franco Is Still Dead And Michelle Lee Is Still Director Of The US Patent Office

from the moving-on dept

Last month, we wrote about the truly bizarre situation in which no one in the federal government seemed willing to say who was in charge of the US Patent and Trademark Office (USPTO). You see, there had been widespread reports right before the inauguration that the current director, Michelle Lee (who's been really, really good at the job) was being kept on in that role. But, for some reason, the Commerce Department's website listed the role as vacant. And there were a series of other confusing and conflicting signs. But the most bizarre part was that the USPTO and the Commerce Department simply refused to say who was in charge. Which is... weird.

Late on Friday, it appears that the Commerce Department responded to two separate FOIA requests simultaneously, from the two sites that had been covering the issue most closely, Patently-O and IP Watchdog, confirming that Lee remains the Director:

Dennis Crouch, who runs Patently-O, notes that, while it's bizarre that no one would respond (especially since Lee was retaining the role, not moving into it...), it's time to move on. IP Watchdog, who has long hated Lee for daring to recognize that over patenting and bad patents can be serious problems, is still agitating to get Lee removed. Thankfully, that looks like a long shot. And that's doubly good, since one of the other people gunning for the slot was former chief judge at CAFC (the appeals court that handles patent cases) Randall Rader. Rader, who resigned over an ethics scandal, was a key component in making the patent system worse during his time on the court. So, for now, at least, a bullet has been dodged.

Still, it's quite bizarre that this whole thing happened in the first place. What was so hard about having the USPTO or Commerce Department just admit that Michelle Lee was still the director?

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Posted on Techdirt - 13 March 2017 @ 10:47am

Bad Libel Law Strikes Again: Silly UK Twitter Spat Results In Six Figure Payout

from the wtf? dept

For years we've pointed out that UK libel law, in particular, was horrible and easily abused to chill speech. Things appear to have gotten somewhat better -- as some really bad cases at least made people realize that some of the more extreme issues needed to be fixed, but on the whole, UK libel law is still incredibly broad, and can and does stifle speech (and, yes, I know, the UK doesn't have the same free speech protections as the US does -- but it should). This latest case is just a good example of why the UK's standards for libel are so problematic.

The story involves two columnist/writers in the UK who got into a bit of a Twitter spat. Part of the problem, here, is that a lot of people have very strong emotional opinions about at least one of the parties in the lawsuit. Katie Hopkins has made a name for herself saying outrageous things and has been referred to, multiple times, as a professional troll. There are lots of people who dislike her, and certainly are quite happy to see that she's come out the big loser in this libel dispute. But before you celebrate, the details here are important, and quite worrisome, if you support freedom of expression.

I recommend reading the full ruling by the UK High Court, which makes it pretty clear that this was just a fairly quick and silly Twitter spat -- not unlike one that many, many people (perhaps, including, some of you reading this right now...) get involved in each day. The background is that another columnist, Laurie Penny, had tweeted something more or less saying she was okay with some graffiti on a WWII memorial in London. Hopkins got angry at Penny's tweets and there were some angry tweets about Penny. That got some press attention for reasons I don't fully understand. A week or so later, Hopkins starts tweeting angrily at a different columnist, Jack Monroe, sort of referencing back to Penny's tweets about the memorial vandalism. And, as the court ruling notes, the following happened:

  1. At 7.20pm Ms Hopkins posted the first tweet of which Ms Monroe complains (“The First Tweet”). It was in these words: “@MsJackMonroe scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?”
  2. At 7.33pm Ms Monroe tweeted in these terms: “I have NEVER ‘scrawled on a memorial’. Brother in the RAF. Dad was a Para in the Falklands. You’re a piece of shit.” (With a screenshot to the First Tweet)
  3. Ms Monroe tweeted again at 7.36pm: “I’m asking you nicely to please delete this lie Katie, and if I have to ask again it will be through my lawyer.” (With a link to the First Tweet)
  4. At 8.14pm Ms Monroe tweeted again, this time using Ms Hopkins’ Twitter handle: “Dear @KTHopkins, public apology +£5k to migrant rescue & I won’t sue. It’ll be cheaper for you and v. satisfying for me.”
  5. At some point between the posting of that tweet and 9.47pm, the First Tweet was deleted by Ms Hopkins.
  6. At 9.47pm Ms Hopkins posted the second tweet of which Ms Monroe complains (“the Second Tweet”). It was in these terms: “Can someone explain to me - in 10 words or less - the difference between irritant @PennyRed and social anthrax @Jack Monroe.”
  7. At some point that evening, I infer about this time, Ms Hopkins blocked Ms Monroe. That prevented Ms Monroe from communicating with her via Twitter.
  8. Later on 18 May 2015 the Claimant published the following on Twitter: “BA_DA_BOOM! It lies! It smears! It’s wrong! It panics! It blocks! It’s @KTHopkins everyone!” (With six pictures of a chicken)
  9. At 22:30 on 18 May 2015 the Claimant published the following on Twitter: “Gin o clock. Cheers. God isn’t it good sweet justice when a poisonous bully gets shown up for what it is and runs runs runs away.”

That's it. Literally that's it. That was the entire Twitter spat, which again -- for reasons I cannot comprehend -- got a bunch of press attention. Based on that, Monroe sued Hopkins for defamation. And won. Again, let's be clear about the entire extent of the fight here. Hopkins tweeted something that was, admittedly stupid and provoking, at Monroe. But it made no statement of fact about Monroe (as would be required in the US). That tweet was deleted within 2 and a half hours (and possibly earlier). Then there was a second tweet, in which Hopkins seemed to admit that she got confused between Monroe and Penny, but again made no statement of fact, just called Monroe "social anthrax."

I've been in Twitter fights significantly worse than that. In fact, there's a decent chance I'll be in a Twitter fight significantly more crazy than that by the end of this week. These kinds of silly spats happen all the time. It's just kind of the nature of Twitter. In the US, such a lawsuit would go nowhere quite fast on basically every possible grounds. There's no false statement of fact that would in any way harm Monroe's reputation. There's no actual malice as required for defamation of a public figure (which Monroe certainly is). And the entire thing is a Twitter spat, which in context is little more than a few insults flung back and forth at one another. Honestly going through the entire exchange, the only thing even remotely sorta, barely (but not really) approaching a "statement of fact" would be Monroe calling Hopkins "a piece of shit." But that's clearly rhetorical hyperbole, as was most of the discussion.

This kind of dispute would be laughed out of a US court. But... over in the UK, Monroe wins, even as the court admits the whole thing is kind of silly. The court even admits that no "reasonable reader" would think that Hopkins was actually saying that Monroe had done the vandalism. But the court still finds this to be defamation -- which boggles the mind:

Ms Monroe complains of the natural and ordinary meaning. That is not the same as a literal meaning. The literal meaning, that Ms Monroe had herself scrawled on and vandalised a memorial, would be rejected by the reasonable reader, having regard to the context. The reader would see the tweet as having an element of metaphor. But it is, to my mind, an inescapable conclusion that the ordinary reasonable reader of the First Tweet would understand it to mean that Ms Monroe “condoned and approved of scrawling on war memorials, vandalising monuments commemorating those who fought for her freedom.” That is a meaning that emerges clearly enough, making full allowance for everything that seems to me relevant by way of context: the characteristics of Ms Hopkins and Ms Monroe, the nature of Twitter, and the immediately surrounding contextual material on Twitter. The reference to Grandma would not be understood, but that would not affect the reader’s conclusion.

But how is that possibly "defamatory"? Well, again, in the UK, what counts as defamatory is quite different than what counts as defamatory in the US. Apparently, in the UK, saying mean things about someone is defamatory. Indeed, the court even admits that this is about whether or not your feelings get hurt:

All of this, however, is about injury to feelings, and the issue I have to address at this stage is whether serious harm to reputation has been proved.

Injury to feelings? That's where freedom of speech goes to die. Anyone's feelings can get hurt over just about anything. People insult one another all the time, sometimes publicly. I'm constantly reading about politicians (including in the UK) insulting one another. That shouldn't be defamation. But, apparently, it is.

I have reached the clear conclusion that the Serious Harm requirement is satisfied, on the straightforward basis that the tweets complained of have a tendency to cause harm to this claimant’s reputation in the eyes of third parties, of a kind that would be serious for her.

And, yes, I understand that part of the reason why UK defamation law (and defamation law in many other countries) works this way. Historically, it was to allow those who had no other recourse to hit back at the more powerful saying things that would damage their reputation. So, for example, if a newspaper printed something that seriously harmed someone's reputation, that individual would not have any recourse. But that's not the case today. And that's clearly evidenced by the fact that this happened on Twitter where both sides got to clearly express their side and their anger. So you don't need a court to come in and claim that there was "serious harm" to Monroe's reputation, because that makes no sense. Those who respect Monroe would clearly see her tweets responding angrily to Hopkins and would pretty quickly recognize that Hopkins, in true Hopkins fashion, was saying nutty stuff again.

The court tries to do away with this point, by arguing that the two did not have many overlapping followers, so the followers of Hopkins wouldn't necessarily see Monroe's responses:

Ms Monroe’s own responses on Twitter. These are said to have mitigated harm by making her position clear. There are several difficulties with this contention. One is that denials are not at all the same thing as corrections, retractions or apologies. The response of the accused is inherently unlikely to undo the damage caused initially. A second, and probably more significant point, is that Ms Monroe had no access to the followers of Ms Hopkins. The fact that the overlap in their followers was so small tends to undermine this submission.

But if that's the case, what's the "concern" here? This also seems to ignore that the original Hopkins tweet appears to have been directed at Monroe, meaning only those who followed both would see it. Separately, given the widespread news coverage of this, people who actually cared would likely have seen the whole debate play out. Furthermore, what difference does it make that "denials are not at all the same thing as corrections, retractions or apologies." So what? In the marketplace of ideas, people present their positions and everyone gets to decide who they believe. And here it seems pretty clear to anyone with half a brain that Hopkins tweeted out some crazy angry insults without realizing what she was doing. That should harm her own reputation (even if her reputation is saying silly nonsense stuff already) without needing a court to say she defamed Monroe.

Eventually, the court comes up with a totally subjective "scale" of injury to feelings to determine how much Hopkins needs to pay:

In this case, the allegations were serious but certainly not towards the top end of the scale. The extent of publication was significant but not massive in its scale. The harm to reputation, though serious, will not have been grave. The need for vindication is not a weighty factor, as there has been no attempt to prove the truth of what was alleged. This judgment will make the position clear to those who were unaware of it already. Ms Monroe is a public figure, in the sense that she chooses to engage in public life and to engage in political discourse in public forums. The injury to feelings was real and substantial, and has continued. It has been significantly exacerbated by the way the defence has been conducted. Nonetheless, compensation for hurt feelings should be in scale with the award that seeks to compensate for harm to reputation.

Taking account of all these matters, my award is £24,000. That is divided into £16,000 for the First Tweet and £8,000 for the Second Tweet. The reason for this division is that the majority of the harm to reputation will have been caused by the First Tweet, and it was that tweet that caused the greatest injury to feelings at the time. These awards are higher than they would have been, if damages had been assessed at or shortly after the time of publication, because they take account of the fact that harm to reputation has continued, and injury to feelings has been increased by the defendant’s behaviour.

The First Tweet was a mistake. It was not fully retracted but there has been no attempt to prove the truth of what was suggested. Ms Hopkins will realise, and no doubt be advised, that to repeat the same message would be likely to result in a substantial damages award. I do not consider that there is any evidence of a threat or risk of repetition. There is no need for an injunction.

I don't understand this at all. The whole idea that someone's feelings getting hurt is defamation is completely antithetical to any reasonable support of a regime of freedom of expression. Based on the standards in this ruling, a ridiculous number of tweets happening right this very second could be subject to massive monetary awards in the UK, and that's crazy. At worst this will lead to more silly litigation over schoolyard spats that now take place online. Alternatively, it will lead people to self-censor and simply not speak out online for fear of being sued. That's the chilling effects that comes when you have laws that decide freedom of expression is not a priority. No matter your opinion of Hopkins or Monroe (and I'm no fan of Hopkins), this ruling is dangerous for freedom of expression online.

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Posted on Techdirt - 13 March 2017 @ 6:20am

Move Over, Series Of Tubes, The Internet Is Now A Bridge Over A Creek For A Dozen People?

from the senators-say-the-darnest-things dept

What is it about Senators and their awful internet analogies around net neutrality? It's been just over a decade since the late Senator Ted Stevens gave his infamous "series of tubes" analogy in which he tried to explain the internet and net neutrality. Remember?

"I just the other day got, an internet was sent by my staff at 10 o'clock in the morning on Friday and I just got it yesterday. Why? Because it got tangled up with all these things going on the internet commercially... They want to deliver vast amounts of information over the internet. And again, the internet is not something you just dump something on. It's not a truck. It's a series of tubes. And if you don't understand those tubes can be filled and if they are filled, when you put your message in, it gets in line and its going to be delayed by anyone that puts into that tube enormous amounts of material, enormous amounts of material."

Given how viral that went, and how widely mocked Stevens was, you'd think that any competent Senate staffer would prepare their bosses not to make a similarly idiotic statement. But, no. Not the staffers of Senator Ron Johnson. They sent him out to a hearing with the current FCC commissioners... and had him say that the internet is like a bridge between neighbors. Or something. I've watched this clip over and over again and I'm still trying to figure this one out:

Let's break this down, because the level of wackiness is hard to comprehend without exploring each and every beautiful inane thing said. First, the transcript of Johnson's key "analogy":

We all agree that we want greater innovation. We want expansion and greater access to high speed broadband. I think one of the things that inhibits that is all the rhetoric and slogans and buzzwords and I want to cut through a little bit. I know net neutrality sounds great. And in trying to convey why that harms investment and innovation, I've come up with analogy. I kinda want to run this by you and see if this is pretty accurate.

Let's say a group of neighbors want to build a bridge over a creek so they can cross over and talk to each other a lot, so it's really for a neighborhood, maybe a dozen people. But then they find out that the local government is going to require that that bridge is open to the entire community of a million people, no prioritization whatsoever. They don't get to cross first to go see their neighbor. A million people can come onto their property, ruin their lawns, and walk over that bridge.

Isn't that kind of a similar analogy, is that a pretty good analogy in terms of what net neutrality is all about, not allowing for example a company that is going to invest billions of dollars in the pipeline, not allow them to sell a prioritized lane, for, oh, I don't know, doctors who want to prioritize distant diagnostics? They're going to have to share that same pipeline, no prioritization, with for example people streaming illegal content or pornography? Tell me where that analogy is maybe not accurate.

Whoo boy. For someone who wants to "cut through" the "rhetoric and slogans and buzzwords" he sure chose to come up with what may be the dumbest analogy for the internet so far. It actively makes people less informed on the issues. It's that bad. Literally nothing about the analogy is even remotely accurate. This isn't a situation where a small community is building a tiny community bridge and is suddenly overwhelmed with millions of people "ruining their lawns" without allowing the little community over the bridge. None of that makes any sense at all.

Net neutrality is about how massive, giant internet access providing monopolists and duopolists want to double dip and double charge for the value provided at the endpoints, rather than being satisfied with getting paid for the value they provide in connecting the end points. The issue has nothing to do with millions of people rushing through a "pipeline" that was built for "maybe a dozen people" and somehow "ruining lawns" (?!?) while doing so. Nothing in net neutrality has anything to do with over-clogging local pipes. In fact, it allows for standard network management. And again, going back years and years and years, internet backbone experts have pointed out that there's capacity to spare. There are no ruined lawns. There are no distraught home owners wishing to "talk a lot" to their 11 closest neighbors, dismayed that a million people are trampling their lawns.

A more correct analogy is that the government granted some private companies land and rights of way and massive subsidies in terms of grants and tax rebates to build giant highways. And to pay for those roads, they could charge tolls to get on the road. So far, so good. But then, after the highways were built, the corporate owners of these highways saw that others were using the roads themselves to make money. They saw lots of UPS trucks and FedEx trucks. And they decided that it "wasn't fair" that UPS and FedEx got to make money by delivering stuff, even though each UPS and FedEx truck was paying the proper toll to enter the road. So they decided that from now on they'd cut deals. Maybe, FedEx would have to pay double. Or maybe FedEx would have to cough up a piece of the cost of every package delivered to the road company -- let's call it the American Road and Runway company (AR&R for short). Or, maybe, AR&R would decide to just buy up one of those companies, like UPS, and allow it to travel on the roads for free, while telling FedEx, it couldn't travel along those roads at all. Or maybe it wouldn't let FedEx off the road at prime locations where most of its deliveries were targeted. Or maybe it would let UPS use faster lanes while telling FedEx it could only ride on the shoulder.

All net neutrality did was say, "hey, you can't do that." If you're building a road, especially, with all this government support, you have to provide it equally to everyone. You can't pick and choose which companies to favor. And you can't block some companies from getting on the road because they compete with some other business you have.

As for the whole telemedicine vs. pornography thing, that's just pure bullshit. Someone fed Senator Johnson that line and him repeating it is basically proof he has absolutely no clue what he's talking about. Because the very FCC net neutrality rules that he's attacking, explicitly say he's wrong. As Jon Brodkin over at Ars Technica points out:

there is a way for telemedicine offerings to get paid prioritization under the FCC’s existing rules. The FCC distinguishes between “Broadband Internet Access Service (BIAS),” the usual type in which all Internet content shares the same network capacity and “Non-BIAS data services,” which are given isolated capacity to ensure greater speed and reliability. VoIP phone offerings, heart monitors, and energy consumption sensors qualify for this category, which is exempt from net neutrality rules. Telemedicine (another word for remote medical diagnosis) can also be exempt if it’s delivered over the network in the same way.

“We note that telemedicine services might alternatively be structured as ‘non-BIAS data services,’ which are beyond the reach of the open Internet rules,” the FCC’s net neutrality order said. The FCC reserved the right to scrutinize non-BIAS services to ensure that they don't harm competition, but the specific reference to telemedicine indicates that the FCC would not oppose isolated network capacity for remote medical diagnosis. The FCC did not provide any similar allowance for pornography.

Isn't this the kind of thing that a sitting Senator discussing net neutrality is supposed to know? Or is quoting from the actual FCC order that "rhetoric, slogans and buzzwords" Johnson was talking about?

Now, here, was a point in which FCC Chair Ajit Pai had the chance to show some intellectual honesty. I know that we've criticized Pai a lot in the past, but I genuinely think that he's a smart and knowledgeable guy who isn't some clueless drone. I've met him a few times and always found the conversations thoughtful and enlightening. But he blew it here. Big time. He could have, and should have, noted that while he dislikes the current net neutrality rules, the analogy presented is not an accurate description of the issue at all. Instead, he says:

I think you put your finger on one of the core concerns...

But, uh, he didn't. He made up a silly analogy that has nothing, whatsoever, to do with the debate at hand. But, okay, go on...

... which is that all of us favor a free and open internet, where consumers can access lawful content of their choice.

And what does that have to do with the inane analogy that Johnson put forth? Absolutely nothing. Yes, I know, Pai is being political here and it's not a good idea to tell a sitting Senator who has oversight powers that his analogy may be the dumbest thing you've ever heard about net neutrality. But, we're not done yet. Pai jumps to his easily debunked talking points about net neutrality decreasing investment:

We also want to incentive the construction of these networks, which requires massive capital expenditures -- especially as we go into the future with 5G networks and the like. How to balance those concerns is something I think people of goodwill can disagree on. But our goal is obviously, to make sure -- to use your analogy -- that those bridges continue to be built. That they continue to be maintained and upgraded as traffic modernizes over time.

Except that wasn't Johnson's analogy. In Johnsonland, twelve neighbors get together to build a bridge, and net neutrality brings a horde of millions to trample their lawn. That's not about getting more bridges built or maintaining them. These things have nothing to do with one another.

But Johnson's not done yet:

Yeah, in my example, I don't think too many neighbors would chip in to build that bridge, when they realize, we're not ever going to be able to use it, or certainly not get priority on it.

(That last half of the sentence didn't make it into the video clip above, but that's what he said). But, that's... just wrong. Again. First of all, nothing about net neutrality says that the people building the network can't use it. What the hell does that even mean? I mean, you could just as easily turn much of this analogy around on Johnson and argue that it's him expressing strong support for municipal broadband -- something I'd almost guarantee he's against. Indeed, Johnson signed a letter slamming municipal broadband not too long ago. And that's even though it's basically what he's describing: a group of neighbors getting together to build their own bridges to the internet.

But getting back to the net neutrality argument, Johnson's statements are ludicrous. The "bridges" he's discussing aren't being built among neighbors. What's happening is that the giant companies (AR&R from above) have already built the bridges, and are telling the neighbors that FedEx won't be able to deliver to them any more in a convenient, timely or cost effective way... unless FedEx agrees to pay up (meaning that the community will have to pay more since the costs will be passed on). And, again, his claim that investment would go down under his analogy that has nothing to do with net neutrality is just... factually wrong because all of the big broadband providers are public companies where their capital expenditure data is public. And it shows that they've increased spending on their networks with the open internet rules, rather than the opposite.

How is it that a sitting Senator can make statements so ridiculously wrong and no one calls him on it?

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Posted on Techdirt - 8 March 2017 @ 10:39am

Won't Have Perfect 10's Silly Lawsuits Setting Precedent Anymore: Judge Appoints Receiver For Perfect 10's Assets

from the well,-there-goes-that-one dept

Welp, it looks like the quite long history of Perfect 10 filing frivolous copyright lawsuits and losing (while setting useful precedent) has finally come to a close. A court has now put Perfect 10's assets into receivership to be sold off.

We've written a ton about Perfect 10 over the years. As we've noted, while the company officially styled itself as a porn magazine company, it was an early form of copyright troll, focusing on suing basically every large company imaginable for being somehow kinda partially related to any of Perfect 10's pictures showing up online. As such, Perfect 10 was astoundingly useful in setting some really fantastic and useful precedents concerning intermediary liability protections, and making sure that third parties and platforms weren't held liable for copyright infringement. The key, frequently cited, cases include:

All of them resulted in major losses by Perfect 10, and really useful, citable, opinions that are regularly raised in other cases. There are more such cases as well. In one famous case, a party laid out how Perfect 10 was apparently deliberately setting things up to have more companies to sue, rather than actually doing anything to limit copyright infringement.

In the most recent Perfect 10 case, we noted that Perfect 10 lost big time earlier this year. It had sued Usenet provider Giganews, but the court found that Perfect 10's legal arguments made no sense at all, and sided completely with Giganews. Most importantly, the court upheld the multimillion fee award that the court had dumped on Perfect 10 for filing such a bogus lawsuit. It turns out that Perfect 10 doesn't seem to have that kind of money, so all of its assets are now controlled by a court-appointed receiver.

Pursuant to the terms of the enclosed Order, I am hereby taking possession of all of your "intellectual property," which specifically includes but is not limited to domain names, copyrights and copyright interests, trademarks, trademark interests, and associated goodwill, and related interests, as well as all royalties, rents, issues, profits and income (including any cash) resulting from or generated by such intellectual property.

This reminds me of another famous copyright trolling case, Righthaven (the company that was spun off from newspaper company Stephens Media to shake down bloggers reposting snippets from news stories). In that case, lawyer Marc Randazza beat back Righthaven in court so many times in so many ways that it was just getting silly. Eventually, the court handed over Righthaven's IP and it was eventually "sold" back to Stephens Media as a way to pay the outstanding legal fees.

Feel free to speculate what will be done with Perfect 10's assets.

In the meantime, though, it truly is the end of an era. Perfect 10 has been filing lawsuits going back at least until 2002 (possibly longer...). And it's set so many useful precedents, even as each new filing seemed more pointless than the previous one. So long Perfect 10, and thanks for all those useful rulings in cases you lost.

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Posted on Techdirt - 8 March 2017 @ 9:23am

First Amendment Lawyer Apparently Surprised That The First Amendment Covers Everyone

from the that's-how-it-works dept

The Wrap, a Hollywood-focused online publication, has a somewhat bizarre article by First Amendment/entertainment lawyer Susan Seager. It's officially about California's anti-SLAPP law (which we've written plenty about) and how it's popped up in a bunch of cases in Hollywood over the past few years, protecting a number of people and companies from having to go through questionable lawsuits based on their speech. This is exactly what the law is supposed to do. But Seager, for some reason, seems to imply that the law should only be used for "small-town citizens" and shouldn't be used by larger players. The article goes through a number of example cases, and then notes:

The statute was not originally enacted to protect the entertainment industry. The California Legislature enacted the SLAPP statute in 1992 to protect mostly small-town citizens from expensive lawsuits brought by large developers and companies to chill the citizens’ protests and testimony against development in their neighborhoods.

The purpose of California's anti-SLAPP law (and many other state anti-SLAPP laws, not to mention the proposed federal anti-SLAPP law) is to get cases quickly tossed out of court when the cases pretty clearly are designed to stifle expression. And, yes, many early cases involved people protesting/speaking out against companies, but the principles of stopping speech-stifling go beyond that, and it's pretty clear that California (and other states) passed laws for this very reason. They're aware that being a defendant in a lawsuit -- even a highly questionable one -- can create massive chilling effects and can be a huge drain on time and resources. And thus, we've got Caliofrnia's anti-SLAPP law, designed to do two things: quickly get those cases dismissed before they get too onerous and to deter such lawsuits by including fee-shifting, making the plaintiff pay.

However, Seager seems surprised that California's anti-SLAPP law has been construed to apply to situations other than those "small-town citizens."

But in recent years the courts have interpreted the “public interest” requirement so broadly that it now applies to any lawsuit that targets speech about “any issue in which the public is interested,” according to a California appellate court.

“In other words,” the court said in Nygard v. Uusi-Kerttula, “the issue need not be ‘significant’ to be protected by the anti-SLAPP statute — it is enough that it is one in which the public takes an interest.”

These decisions mean that the SLAPP law covers pretty much anything created by Hollywood that is followed by a large number of people, whether in tabloids, social media, websites, or other sources of information.

I'm trying to figure out why this is a problem. I'm hardly going to be considered an apologist for Hollywood (have you seen what I've written about Hollywood?) but why shouldn't Hollywood also be protected by California's anti-SLAPP law? We should all be concerned about lawsuits designed to stifle anyone's speech without any legitimate basis. And while I frequently point out how Hollywood seems to have no problem stifling speech through over-aggressive use of copyright, that doesn't mean I won't stand up and argue it deserves just as much protection under the 1st Amendment as anyone else -- and that's why, of course, California's anti-SLAPP law should apply to them -- and it does.

On top of that, while I think that Hollywood has strayed quite far from its roots, historically, Hollywood and the MPAA were strong defenders of free speech, and owe much of their business to a strong First Amendment. It's unfortunate that they've since become very opportunistic about it, choosing to only defend free speech principals when it directly impacts their bottom line, while being quite happy to whittle away free speech rights with stronger copyright or other tools of control. But, given most of what Hollywood does is expressive, there's no reason why anti-SLAPP laws shouldn't apply fully to them, just as they apply to everyone else.

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Posted on Techdirt - 7 March 2017 @ 10:45am

CIA Leak Shows Mobile Phones Vulnerable, Not Encryption

from the and-cia-isn't-helping dept

As you've probably heard by now, this morning Wikileaks started releasing a new cache of information regarding CIA hacking tools. This is interesting on a variety of levels, but many of the reports focus on the claims that encrypted chat apps like Signal, Whatsapp and Telegram may be compromised. See the top two links in this screenshot:

Wikileaks itself may have contributed to this view with the following paragraph in its release:

These techniques permit the CIA to bypass the encryption of WhatsApp, Signal, Telegram, Wiebo, Confide and Cloackman by hacking the "smart" phones that they run on and collecting audio and message traffic before encryption is applied.

But the details don't seem to show that those apps are compromised, so much as that Android and iOS devices are compromised. It's always been true that if someone can get into your phone, the encryption scheme you use doesn't matter, because they can just pull keystrokes or grab data before you encrypt it -- in the same way that someone looking over your shoulder can read your messages as well. That's not a fault of the encryption or the app, but of the environment in which you're using the app itself.

And that should really be the bigger concern here. Over the years, nearly all of the focus on hacking mobile phones has been on the NSA and its capabilities, rather than the CIA. But it's now clear that the CIA has its own operations, akin to the NSA's hacking operations (kinda makes you wonder why we need that overlap). Except that the CIA's hacking team seems almost entirely unconcerned with following the federal government's rules on letting private companies know about vulnerabilities they've discovered.

Remember, the Obama White House put in place what it called a Vulnerabilities Equities Program in which the intelligence community is supposed to default to letting private companies know about vulnerabilities. And, yes, this was always something of a joke as there was a giant loophole involving "except for a clear national security or law enforcement need" that the NSA basically used to withhold vulnerabilities all the time. Still, at least the NSA appeared to get around to revealing some vulnerabilities eventually (probably once they were no longer useful).

Here, however, it looks like the CIA was hoarding some really serious vulnerabilities with wild abandon. In a chart released by Wikileaks you see that the CIA is getting these vulnerabilities from a variety of sources. Some it's finding itself, some it's purchasing, and some are shared via other agencies, such as the NSA or the UK's GCHQ. As Ed Snowden notes, there is now clear evidence (which many suspected, but which had not been proven) that the US government was secretly paying to keep US software unsafe and vulnerable. That's really dangerous. It's putting basically everyone in much more serious danger, just so the CIA, NSA and others can get in when they want to:

This is why the whole conversation about mandating backdoors and "going dark" was so dangerous in the first place. Those were plans to force even more of these vulnerabilities into the wild, just for the very very rare cases where they were needed by law enforcement or intelligence.

At a time when the President is suddenly acting as if he's concerned about domestic surveillance (at least of himself), perhaps now would be a good time to crack down on this kind of stuff. I'm not holding my breath -- but, for now, we're getting a lot more insight into the CIA's electronic surveillance methods, and it sounds like there's more to come.

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