Posted on Techdirt - 7 March 2014 @ 12:25pm
This "discussion" about the whole "security vs. privacy" thing the administration claims it has "welcomed" since the Snowden leaks began? Yeah. Still not happening. As Cal Borchers at BetaBoston reports, government reps at an MIT event focused on "big data and privacy" couldn't have appeared less interested in discussing any of the implications of widespread domestic surveillance.
The kicker came during an afternoon panel discussion, when John DeLong, the National Security Agency's director of compliance, should have been awarded an honorary degree in tongue biting. DeLong sat right next to Carol Rose, executive director of the American Civil Liberties Union of Massachusetts, yet refused to engage when she made pointed comments, like this one: "Everything's being done in secret. But for Edward Snowden, we wouldn't even be having this conversation."
DeLong would look down and away (perhaps there was an interesting piece of metatada on the floor of Wong Auditorium), waiting silently for another panelist to move the discussion away from his agency.
This is nothing new for DeLong. Back in August of last year, he gave the Washington Post permission to quote him "by name and title" after holding a 90-minute interview with the paper, after the White House routed all press queries to him directly. When the paper refused to edit quotes after the government's "internal review" of the interview draft, the administration and the NSA then informed the Washington Post that nothing DeLong said
could be used. All of his input was replaced with a bland, prepared statement.
Now, DeLong could
have been interested in participating in this discussion, but this previous administration intervention seems to indicate that the NSA and the White House would prefer DeLong keeps his head down and his mouth shut -- at least in cases where it can't push through its own edit of the "discussion."
DeLong wasn't the only government rep uninterested in discussing government surveillance.
Before DeLong's group took the floor, US Commerce Secretary Penny Pritzker made a brief speech in which she barely touched on the subject of privacy, then exited quickly without fielding questions.
Someone seated near me, in one of those fake whispers that's really meant to be heard by a lot of people, summed things up nicely: "No questions? Why have a real discussion, right?"
Snickers rippled a few rows in every direction.
As Borchers points out, there was plenty of discussion about private companies and privacy, but when it came to the biggest "company" of all, the US government, no one had much to say. White House counselor John Podesta somehow even managed to "phone in" his phoned-in statement (Borchers describes Podesta's contribution as "bland remarks") to open the event.
This is the US government's idea of "discussion." Canned statements and floor-gazing. The NSA made this bed and now refuses to lie in it. (Although officials will often lie outside of it
-- ho, ho! *coughJamesClapper*) The administration plays along, making small gestures but refusing to consider making any substantial statements or changes. The Office of the Director of National Intelligence continues to pass out redacted documents with implied transparency, glossing over the fact that every
document release so far has been compelled by an FOIA lawsuit
This isn't a discussion. This is low murmurs and unintelligible mumbling being passed off as a "discussion" in hopes this new era of faux-openness will soon blow over and allow everyone involved to return to the opacity and darkness they've become accustomed to operating in.
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Posted on Techdirt - 6 March 2014 @ 8:02pm
We've written a lot about the state of Illinois' infamous Eavesdropping Act, a law that has been routinely abused by Illinois law enforcement officers to prevent citizens from recording them while they work. After a long legal battle that nearly made its way to the Supreme Court, the courts found that the use of the law to prosecute citizens who record police officers was unconstitutional and the latest court to hear the state's arguments suggested the law be repealed altogether.
The law is still on the books at the moment (although LEOs can no longer use it against camera-wielding citizens), which may come in handy for the plaintiffs of a class action suit against an Illinois gas company. (h/t to Above the Law)
The lawsuit claims the gas company charged customers unnecessary fees to cover gas line leaks and repairs. According to an investigation that preceded the lawsuit, Nicor Gas collected nearly $26 million in 2009 while paying out only $600,000 in benefits. In a class action lawsuit filed in 2011, the plaintiffs allege that Nicor also charged several customers $19.95/mo. for appliance coverage (while labeling it only as "Nicor Service Charge" on the bill).
So, why is this lawsuit rising to the surface in 2014? Well, it's because Nicor Gas apparently plans to violate the Illinois Eavesdropping Act in order to defend itself against these claims.
The utility recorded millions of phone calls over the course of a decade and plans to “divulge them outside of Nicor and to use them in court as they litigate the consumer class action,” according to a statement about the case...
“The Illinois Eavesdropping Act flatly prohibits corporations who collect or make such recordings from divulging any part of them to any third party and prohibits such recordings be used in court proceedings,” said [Adam] Levitt (plaintiffs' attorney).
“Nicor Gas claims that all customers recorded heard a ‘warning’ before being recorded, and ‘consented’ by remaining on the line after the warning was given. But under the law, any consent only gave Nicor Gas a right to record, not to divulge or use the recordings. Any ‘consent’ they got from customers that permitted them to record was for the limited purpose of internal quality assurance – not for divulgence to outside parties, and certainly not for use in public court proceedings,” according to Levitt.
Even if this use of the Eavesdropping Act may be somewhat questionable given the circumstances (the most probable defense against the claims is that customers agreed to these charges during phone conversations with Nicor Gas), it's hard to see how the power company will route around the specifics of the law.
From the law itself
No communication or conversation or any part, portion, or aspect of the communication or conversation made, acquired, or obtained, directly or indirectly, under this exemption (j), may be, directly or indirectly, furnished to any law enforcement officer, agency, or official for any purpose or used in any inquiry or investigation, or used, directly or indirectly, in any administrative, judicial, or other proceeding, or divulged to any third party.
Exemption (j) covers recorded business-to-consumer "oral telephone solicitation and marketing" recordings. Incoming calls ("What the hell is THIS charge?") are also covered by this exemption.
For the purposes of this subsection (j), "telephone solicitation" means a communication through the use of a telephone by live operators:
(i) soliciting the sale of goods or services;
(ii) receiving orders for the sale of goods or services;
(iii) assisting in the use of goods or services; or
(iv) engaging in the solicitation, administration, or collection of bank or retail credit accounts.
Even if it does somehow find a way to present its recordings as evidence, the calls themselves may be incriminating
Critics accuse Nicor of using scare tactics to sell ComfortGuard.
According to a ComfortGuard marketing script, Nicor call-center reps are instructed to tell customers "the utility is only legally responsible to make the situation safe or make repairs to its own facilities. What that means is that the property owner (such as yourself) may have to find and hire an independent contractor to come in, do an inspection and then make those repairs. That can be expensive, and it could also mean days without any gas to heat the home, cook and so on."
In fact, ICC [Illinois Commerce Commission] staff argue, Nicor is legally required to inspect leak complaints inside customers' homes and make repairs, at charges typically ranging from $50 to $100.
We'll have to see where Nicor goes with this, but the allegations are pretty damning, and it's hard to see how its own sales tactics and vague line item descriptions are going to help its case. Even if it is interesting to see this law being used as a defense mechanism rather than a weapon against citizens, it only helps to highlight how badly written the Illinois Eavesdropping Act is. If nothing else, it presents yet another reason for legislators to seriously consider scrapping the law and starting over.
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Posted on Techdirt - 5 March 2014 @ 1:17pm
The Supreme Court has just given the government (and the NSA's defenders) a little more breathing room on the issue of the legality of the agency's surveillance programs.
In a case very similar to a lawsuit brought by the American Civil Liberties Union (ACLU) against warrantless surveillance made “legal” by the FISA Amendments Act (FAA) of 2008, which the Supreme Court declined to grant “standing” in February 2013, the Center for Constitutional Rights (CCR) announced the Court had rejected their lawsuit against Bush-era warrantless surveillance.
“The Supreme Court’s refusal to review this case guarantees that the federal courts will never address a fundamental question: Was the warrantless surveillance program the NSA carried out on President Bush’s orders legal? The Court’s decision also guarantees that the Obama administration, which has for the last five years refused to take any position on that question, will now never have to answer either,” CCR declared.
This refusal will give those who claim the programs are "legal"
another notch on the rhetoric belt, as if not
discussing the legality (or illegality) of the program was the equivalent to being found legal by the highest court in the land. If the courts are unwilling to entertain surveillance-related cases, either by refusal to grant standing or refusal to hear the case at all, the defenders can continue to claim the programs are legal.
CCR has what would seem to be a pretty solid legal stake in challenging the legality of these programs, especially considering the recent revelations that the NSA signed off
on the collection of privileged attorney-client communications. CCR is representing "hundreds" of Guantanamo Bay detainees, charged as "enemy combatants" and held indefinitely, each of which could be "legally" surveilled as they hold supposedly privileged conversations with their legal representation.
Lawyers have refused to take terrorism cases because they refuse to have their privacy violated by the government, and attorney have also warned their own clients that they should “self-censor” and assume they are being spied upon by the government when they communicate anything.
This is not some “speculative” issue. On February 20, the American Bar Association, which has around 400,000 members, expressed concerns about recent allegations that the “confidential communications” of American lawyers with “overseas clients” had been violated.
As the article points out, this isn't speculative. In addition to the above-mentioned leak
, other evidence has been uncovered that points to the government listening in on privileged conversations. Nicolas Niarchos of The Nation
reviewed classified documents related to terrorist suspect Adis Medunjanin. Medunjanin made 42 phone calls to his legal rep from mid-2009 to 2010. In the classified documents, Niarchos found a CD of these 42 phone calls.
Even if the NSA has no clear directive warning it away from attorney-client communications, it certainly should still be required to conform with the protections of the Constitution. Collecting evidence by listening in on conversations presumed to be privileged further subverts due process by giving the government access to info it normally (via any other agency) wouldn't have access to. You know, I don't want the terrorists to "win" either, but I'd rather not sacrifice my rights on the altar of "security" to achieve that goal.
The Supreme Court's disinterest in this case will only further insulate the government against the consequences of its own behavior.
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Posted on Techdirt - 5 March 2014 @ 11:19am
Another former NSA official has offered his contribution to the "Snowden has destroyed the NSA" narrative. Jack Israel, former "technical director for NSA's analysis & production directorate" has posted an op-ed at the Baltimore Sun that makes all the usual stops on the talking point circuit on its way to claiming the leaks have done "permanent damage" to the NSA.
Sept. 11th? Referenced heavily. The bulk of Israel's op-ed recounts the agency's actions after the Sept. 11th attacks, including its newfound interest in the internet. Rather than acknowledging the failure to collaborate that allowed a known terrorist (and 9/11 participant) to reenter the country unnoticed, Israel blames this on another, older leak.
Our sensors were trained on some of al-Qaida's lieutenants, but there were no signs of an impending attack. Years ago, we listened to the communications of Osama bin Laden, but they went off the air when this source was leaked to the press…
So, according to Israel, the NSA decided to take a look at this new thing called the internet.
Much of the conversation the morning after focused on phone calls, a technology that NSA was long familiar with. But about 15 minutes in, someone opined, what about the Internet? This was a relatively new technology, one that some in NSA feared would cause the agency to "go blind" because of the dazzling volumes of information and endless variety of new and emerging communications modes such as chat, email, and even telephone calls over the Internet…
"How do we know they're even using it?" the head of the data collection directorate asked. Several years ago we had sampled communications channels looking for al-Qaida and had not found a trace.
"They are," a senior analyst responded. "They're saying so in their phone calls."
And the internet proved to be a huge source of data. Israel claims that "within six months," the agency had compiled a huge terrorist database, thanks to these collections. But his recollection of this game-changing event glosses over the NSA's apparent failure to surveil the internet. The NSA was already listening to terrorists' calls. This much is apparent. But the terrorists were saying something and the NSA just wasn't hearing it. Let's repeat that last line.
"They are," a senior analyst responded. "They're saying so in their phone calls."
So, if we're to believe Israel's take, then the NSA KNEW Al-Qaeda was "using the internet" but, until after
the 9/11 attacks, didn't do anything about it
. Several years earlier it had "sampled communications," but despite directly hearing from Al-Qaeda operatives about their internet activities, decided not to pursue that "dead end" again. I guess if we buy that story, then we can see his point about Snowden setting back the agency "ten years." The agency apparently reacts with all the nimbleness of an oil tanker. It knew
but did nothing, until it was too late.
But this isn't the nadir of Israel's op-ed. This interjection, hidden in parentheses towards the end of his piece, is. It's not just stupid. It's also poorly written.
To President Vladimir Putin: Give us Snowden. You already know everything from him.
It was made clear months ago that Snowden had completely offloaded
his stash of documents before setting foot in Russia. Even if you find that hard to believe, the assumptions that Russian intelligence agencies have somehow either a.) cracked device security to gain access or b.) cracked Snowden himself to gain access are equally unbelievable. If "a" is true, then one needs to question the NSA's inability to discover what documents have been "taken." The "b" assumption relies heavily on other conspiracy theories, like Snowden working in conjunction with Russia or him being worked over to give up what he knows. Israel's wording seems to suggest the latter, despite there being no indication that Putin wants Snowden around for anything more than annoying the US government. (This could change, of course, given the events in the Ukraine, and the US government's stance against Russian intervention...)
"You already know everything from him" is a ridiculous assertion made even worse by Israel's choice to put these exact words in that exact order. This clumsy stab at labeling Snowden a traitor follows a sentence equally abhorrent in its misrepresentation of actual events.
He and his supplicants at major press outlets here and abroad publish his revelations as if the national security of this country and the U.K. matter little.
I won't argue the fact that Snowden's leaks have damaged these agencies' surveillance abilities. "Setting them back a decade" is a bit much. But the focal point of the leaks has mostly been the two agencies' insistence on spying on their own countries. They may kick the surveillance ball back and forth to prevent directly
spying on their fellow citizens, but the culture of sharing the GCHQ and the NSA have developed
over the years makes this small distinction irrelevant.
The NSA's defenders are running out of steam. They can't seem to find any real justification for these pervasive surveillance programs and have resorted to hurling mealy-mouthed insults at Snowden and various journalistic entities from the relative safety of op-ed pages and anonymous statements.
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Posted on Techdirt - 4 March 2014 @ 3:08pm
How many lawsuits can a person pursue before the legal system decides to cut them off? In Australia, 50 lawsuits gets you eighty-sixed, as one Sydney man found out. (well, I'd say the "hard way," but he genuinely seemed to enjoy availing himself of this particular service.)
[A]fter 50 cases in just 10 years, a science teacher has been banned from taking anyone else to court after Justice Michael Adams ruled he was a vexatious litigant who has used the judicial system to "harass, annoy or achieve another wrongful purpose".
Mr Rahman, a Bangladeshi immigrant, is the 12th person to be put on the State's vexatious litigant register, meaning he cannot start legal proceedings without first seeking the courts' consent.
Rahman isn't completely forbidden from filing lawsuits. He just has to get permission first, something that will likely be very difficult considering his misuse of the court system over the last decade, misuse that includes filing lawsuits to re-litigate already determined decisions. He also sued his own legal team, resulting in him paying them even more than he previously owed.
You'd think Rahman would quit while he's behind (he's in danger of losing his two homes and has spent over a half-million dollars fighting his legal battles), but he's not giving up yet.
A defiant Mr Rahman said: "This is a crime against humanity, I will take them to the International Criminal Court if I have to."
Techdirt reader Jess sent this story in with a note inquiring about Techdirt's take on this -- whether it was a good/bad idea or simply amusing. Here's mine.
My first thought was about patent trolls
, some of the most "vexatious" of litigants. However, patent trolls really don't want to end up in court. Most are only in court (and only
in East Texas) because their settlement letters failed to result in free money. While some trolls would hit this 50-lawsuit limit quickly, a vast majority wouldn't.
, on the other hand, are more and more frequently being viewed as "vexatious"
by judges handling their mass lawsuits. Again, these trolls only end up in court when the settlement letters fail. Also, they've mostly been allowed to "bundle" their defendants, which makes it even harder for these litigants to hit the 50-suit cutoff. If they were forced to file separately for each Doe, these lawsuits would likely vanish. There's simply not enough of a payoff suing one-to-one.
But, despite all of the above, I can't really see a hard limit on lawsuits being an effective deterrent. Here in the US, this sort of thing would run afoul of protected civil liberties. The system itself can usually work this sort of thing out. Vexatious litigants tend not to stay unknown for very long.
The underlying problem is those stuck at the other end of vexatious lawsuits. Even the most meritless lawsuit costs real money to defend against. Completely uninvolved taxpayers also foot the bill for vexatious legal activity. So, it can be a real problem, but one that an arbitrary cutoff is unlikely to fix without doing corresponding damage to non-vexatious litigants who find themselves tangled in the legal system more frequently than they'd prefer.
And as for the patent/copyright trolls, chances are they'd just create more shell companies to route around any filing limits (although this scheme
may be on its way to extinction), which makes this even more likely to just end up hurting non-trolls and non-vexatious litigants. There's no easy fix but the solution probably lies somewhere between the self-regulation performed by judges (who will have a grasp on which litigants are "vexatious") and legislation targeting the activities of professional "vexations litigants." The common man who sues too much falls between these cracks, but it's better to bear the occasional burden than to risk locking those with legitimate lawsuits out of the process.
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Posted on Techdirt - 4 March 2014 @ 11:49am
Nielsen, perhaps alarmed at its own growing irrelevance in an era of cord-cutting, streaming and DVRs, has decided to dip a toe into the "bogus DMCA notice" waters. This move won't make it any more relevant, but it should harvest it another set of detractors.
In a DMCA notice sent Feb. 26th, Nielsen attempts to claim ownership of publicly-available facts.
DMCA Notice of Copyright Infringement
Re: NASCARnomics (@nascarnomics)
Dear Twitter, Inc.:
I, [redacted] Associate General Counsel of The Nielsen Company (US), LLC, certify under penalty of perjury, that I am an agent authorized to act on behalf of the owner of certain intellectual property rights.
I have a good faith belief that the examples of the items or materials listed below. and all of the other multiple postings tweeted, are not authorized by law for use by the above named domain name owner or their agents and, therefore, infringes the copyright owner's rights. Furthermore, the domain name owner has been posting this type of copyrighted Nielsen information on a continual and repeated basis. These are not just sporadic instances and have occurred on numerous occasions on a regular and continued basis and of which behavior you have been previously notified. Therefore, I request that you immediately notify the infringer of this notice and inform them of their duty to remove the infringing material immediately, and notify them to cease any further posting of infringing material to your server in the future.
Following after this are several screenshots of Tweets by @nascarnomics, which appear to be charts generated using publicly-available Nielsen ratings of NASCAR races. These charts are made by Andrew Maness, who runs the NASCARnomics blog, which "provides relevant insights on the business, economics and statistics of NASCAR."
Nielsen, for whatever reason, believes it "owns" these facts simply because it generates the numbers using its viewer tracking system. But literally anyone can use Nielsen's published ratings. There's nothing proprietary about the number "3.6" (where each full number represents 1.6 million viewers). Nielsen devices may have generated the number but the rating itself is, once published by the entity that "owns" it, a publicly-available fact.
Nielsen may also want to take a long, hard look at the Feist v. Rural case
, which centered on the "copyrightability" of a collection of facts, i.e. a phone book. The Supreme Court ruled that the facts (phone numbers) were not protected by copyright, even if the collection as a whole (phone book) was. In Nielsen's case, its original reports on demographics, viewing habits, etc. are
protected by copyright, but the individual ratings, even as generated by Nielsen's own devices, are not. Maness/NASCARnomics significantly alters the raw data of Nielsen ratings by focusing specifically on a very small part of Nielsen's output -- NASCAR racing. Furthermore, he creates his charts using his own collection of Nielsen data, further separating the facts (ratings) from Nielsen's claimed copyright. (The legal team may also want to take a look at the more recent takedown attempt by the American Banking Association targeting a website's publication
of supposedly copyright-protected bank routing numbers -- a failure of pretty much the same magnitude.)
At no point does the DMCA notice accuse Maness of accessing proprietary information (such as numbers Nielsen hasn't
disclosed). Instead, it simply claims that because Maness uses Nielsen ratings to compose his graphs, he is infringing on Nielsen's copyright. Ridiculous.
Sadly, the abuse worked. The tweets mentioned directly in Nielsen's DMCA notice have had the pictures "withheld."
On the bright side, the @nascarnomics Twitter feed routinely reposts content, so there are plenty more posts
containing the DMCA'ed pictures. And Maness' blog is still intact, so those graphs (as well as Maness' analysis) can be found there as well
. This takedown is even more ridiculous considering pretty much any internet entity covering anything TV-related
routinely uses Nielsen's publicly available ratings
and all without getting hassled by Nielsen's corporate attorneys. Maness could have mined this data from literally hundreds of places and yet it was these tweets that drew Nielsen's interest.
Unless Nielsen's lawyer is withholding information (the notice mentions that Nielsen has flagged this account previously) that the person behind NASCARnomics has access to actual
proprietary or private information, there's nothing legitimate about this takedown notice.
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Posted on Techdirt Wireless - 4 March 2014 @ 8:27am
As we've noted before, several law enforcement agencies, including the FBI, have been deploying "stingray" devices (devices that mimic cell towers) for years, using them to collect data on thousands of cell phone owners. Almost every single "stingray" device has been put into use without informing the public. That opacity is standard operating procedure for everyone, from local law enforcement all the way up through the DOJ.
This opacity is to be expected. The public is rarely notified in advance of deployment. It's only after the use is discovered that an effort is made (and usually a weak one at that) to address the public's concerns. Officials tend to claim the "danger" presented by being transparent far outweighs whatever collateral damage to privacy or civil liberties the public suffers.
That these devices are routinely used without a warrant is also, sadly, unsurprising. As far as the law has been interpreted, US citizens have very little expectation of privacy in the so-called "business records" generated by their cell phones' connection to each and every cell tower. This is why "cell tower dumps" have become a go-to tool for warrantless data hauls.
So far, so routine. But as Kim Zetter at Wired reports, there's yet another reason law enforcement agencies aren't seeking warrants before deploying stingray devices.
Police in Florida have offered a startling excuse for having used a controversial “stingray” cell phone tracking gadget 200 times without ever telling a judge: the device’s manufacturer made them sign a non-disclosure agreement that they say prevented them from telling the courts.
The shocking revelation, uncovered by the American Civil Liberties Union, came during an appeal over a 2008 sexual battery case in Tallahassee in which the suspect also stole the victim’s cell phone. Using the stingray — which simulates a cell phone tower in order to trick nearby mobile devices into connecting to it and revealing their location — police were able to track him to an apartment.
During proceedings in the case, authorities revealed that they had used the equipment at least 200 additional times since 2010 without disclosing this to courts and obtaining a warrant.
This is a new dodge. Law enforcement has usually avoided obtaining warrants by using the third party doctrine and, in most states, this has been deemed perfectly legal. However, it seems unlikely that judges will be sympathetic to claims that a private contractor's NDA supersedes stipulations meant to keep law enforcement in adherence with the Fourth Amendment.
This surprising admission by the Tallahassee Police Dept. is part of a sealed court record. This was inadvertently exposed during the appeal. Courtroom video shows
just how irritated two of the presiding judges were at the PD's violation of warranty requirements.
When the government attorney tried to argue in court that the police had planned to obtain a warrant to enter the apartment, one of the judges interrupted.
“No, no, no, no, no,” he said. “I think this record makes it very clear they were not going to get a search warrant because they had never gotten a search warrant for this technology.”
His fellow judge then interjected loudly, “Two-hundred times they have not.”
This appears at about the 18:00 mark on the video of the oral arguments. The government attorney's explanation (beginning around 16 minutes in) is also informative and entertaining as she dances around the illegality of the entire situation, which also included a warrantless search of an apartment. Apparently, the government's argument is that it intended
to get a warrant for the apartment search, which is supposedly as legitimate as actually obtaining one. (The questions about consent for the search are far from settled, something a Tallahassee police officer made even cloudier by blocking the door from being shut with his foot.)
So, two hundred times the Tallahassee police department deployed a stingray device and never bothered getting a warrant (and that's just since 2010). When finally pressed on the issue, it deferred to the manufacturer's NDA. The manufacturer (Harris) has itself deferred any questions to the police department.
Unfortunately, this case will not
be dealing with the warranty requirements for stingray devices, nor the PD's insistence that a manufacturer's NDA should allow it to skirt any potential privacy issues and withhold information in court cases.
This should put the spotlight on manufacturers of "stingray" devices. If they're using NDAs to keep the public uninformed and prevent the discussion of usage even in court, that's a huge problem. If these agreements are common across manufacturers, then there can be no doubt that law enforcement agencies across the nation have falsified reports and generated alternate narratives to cover up the origins of obtained evidence.
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Posted on Techdirt - 3 March 2014 @ 12:19pm
Public Knowledge is back at it, carving holes in dubious software patent claims by distilling supposedly "complex" ideas into a minimal amount of code. Late last year, Public Knowledge filed an amicus brief in a lawsuit involving Ultramercial, whose disputed patent basically involved appending "on the internet" to a very basic idea.
In that case, "watching a video on the internet" had been turned into a 349-word, 11-step process that convinced the patent reviewer the process was somehow protectable. Charles Duan of Public Knowledge took that word salad and converted it into 16 lines of code, poking rather large holes in Ultramercial's inflated description.
Duan has done it again. In an amicus brief filed on behalf of CLS Bank, Public Knowledge explains that Alice Corp.'s patent claims cover a very general and obvious abstract idea: the exchange of funds via a third party.
Alice Corporation Pty. Ltd. v. CLS Bank International concerns a group of patents on third-party escrow, an age-old technique where two people exchange money through a third party. It’s what most people use to buy a house. It’s PayPal.
Obviously, no one can get a patent on escrow. Abstract ideas (like escrow) can’t be patented. Why not? Because ideas are the starting point for every new business, technology, and product. Patents on ideas would squash innovation. As the Supreme Court explained in another recent case, ideas are the “basic tools of scientific and technological work,” and a patent on an idea “might tend to impede innovation more than it would tend to promote it.”
So, how did Alice Corp. get this patent? By adding a few words to the idea: "done by a computer." Of course, to get protection for an abstract (and simple) idea, you have to use considerably more words than that. Here's the description, which makes it sound much more impressive than it actually is.
a computer, coupled to said data storage unit and said communications controller, that is configured to…
(b) electronically adjust said first account and said third account in order to effect an exchange obligation arising from said transaction between said first party and said second party after ensuring that said first party and/or said second party have adequate value in said first account and/or said third account, respectively.
Here's Charles Duan's reduction of that process, in BASIC no less:
10 LET account1 = 200.00
20 LET account3 = 300.00
30 INPUT “Value to exchange for transaction”; exchange
40 IF account1 < exchange THEN PRINT “Inadequate value”: STOP
50 account1 = account1 – exchange
60 account3 = account3 + exchange
70 PRINT “Instruction to 1st institution: adjust 2nd account by ”; -exchange
Now, extremely efficient code isn't always the sign of a simple process, but patenting an age-old abstract idea like escrow is, first of all, something that (theoretically) isn't allowed by our patent process. Adding "with a computer" doesn't suddenly turn a non-patentable idea into protectable IP… or at least it shouldn't. But as Ultramercial proved, abstract ideas can and do become prime patent troll properties. As Anna Sallstrom of Public Knowledge notes, granting dressed-up ideas patent protection is nothing more than "trading progress for abstract patents." Hopefully, the Supreme Court will see Alice Corp.'s claims for what they are: escrow + a computer.
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Posted on Techdirt - 3 March 2014 @ 9:58am
The ACLU of California has put together a thorough report on metadata, the information harvested daily by the NSA, as well as by several private contractors working in conjunction with law enforcement and investigative agencies.
Those involved in this harvesting often downplay the true impact of this information, which is often accessed without a warrant, claiming that what's gathered amounts to nothing more than tiny, abstract data points. This couldn't be farther from the truth, but pushing this narrative allows the Third Party Doctrine (information voluntarily given to third parties carries no expectation of privacy) to be invoked and the Fourth Amendment (protection against unreasonable searches) to be buried.
The report goes into great detail on just how much metadata can reveal about a person, something these agencies know but are in no hurry to admit to the public. The entire report is an eye-opening read -- the sort of thing that should be put in the hands (or eyes, I suppose) of anyone out there who's still buying into the deflection tactics deployed by the NSA and others.
The ACLU makes a very good point about how the delineation between metadata and content isn't nearly as clear as surveillance proponents make it out to be.
Although this distinction may appear clear, it quickly becomes blurry on closer examination. For example, technically speaking, a URL is very much a “delivery instruction;” it specifies the address of the web page that you are requesting. But it is also content: requesting a web page essentially means sending a message saying “please send me back the page found at this URL.” In addition, a single URL reveals exactly which page was sought, and thus exactly what content was received…
In addition, whether information is content or metadata can depend not only on the type of information but also on the context in which it is created or used. This means that exactly the same information can be content in one situation and metadata in another. For example:
Your location may or may not be content depending on context. If you call your friend and say “I am at Starbucks,” the words you speak are content. If you use your smartphone to “check in” with Foursquare, that check-in is also content. But many courts have held that your cell carrier’s record of the location of your phone at the exact same moment is not content. And what if you take a picture or post a Tweet that you tag (intentionally or unintentionally) with your current GPS coordinates?
The identity of your friends and contacts may or may not be content depending on context. If you write an email stating that “John is my friend,” that statement is content. But it is less clear whether the fact that John is on your Facebook friend list is also content, even though it conveys exactly the same message.
The agencies helping themselves to this data are wholly unconcerned that this data could also be considered content. The laws governing
these "records" have declared it all fair game. As the report points out, even Mike Morrell, the former CIA official, has admitted there's no clear distinction.
“There’s not a sharp difference between metadata and content. . . . It’s more of a continuum.”
But the law says they can have it, and so they take it.
Further on in the report, the ACLU points out that this cavalier attitude towards metadata, coupled with the ease of access, greatly encourages abusive "fishing expeditions."
In 2010, Michigan police sought information about every single phone located near the site of a planned labor protest without a warrant.
A Tennessee sheriff requested the location of his daughter when she was out past her curfew.
A police chief in South Carolina obtained four “tower dumps” providing information about every cell phone within range of two separate cell towers after his personal vehicle was burglarized.
As the ACLU states, these incidents are only the tip of the iceberg. Many more abuses of collected data are happening, most of which won't be exposed until long after the abuse has taken place. This isn't an indictment of law enforcement specifically, but a cautionary statement of what will
happen and continue to happen
until better legal safeguards are put into place. Easy access combined with a wealth of information is abuse waiting to happen.
While the focus of the past several months has been the NSA's surveillance programs, the most frequent requests for data come from law enforcement agencies. This means that even if the NSA has no interest in your metadata, there are a ton of agencies that might find it more fascinating.
Just as certainly as Target can figure out you're pregnant by tracking your shopping habits
in its stores, agencies can draw plenty of their own conclusions from the wealth of metadata that's only a subpoena away (at most). And with news surfacing more and more frequently
that law enforcement and security agencies are equating dissent with terrorism
, this non-stop collection of metadata has the potential to drag those that are simply unhappy with the status quo into their ever-widening surveillance nets -- and quite possibly into the gears of the criminal justice system itself.
There's no such thing as "just metadata
." Given enough data points, anyone's
life is an open book -- one that can be perused at will by a variety of government agencies. The fact that these agencies rely on outdated decisions and make clunky, dusty comparisons (no more expectation of privacy than the outside of an envelope!) clearly exposes the hypocrisy at play: they love
the advantages technological advances give them (and the massive amount of metadata these generate) but they have no desire to update the laws governing these so-called "business records." "Just metadata" is a lie -- a lie that services the surveillance state and makes a mockery of the phrase "expectation of privacy."
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Posted on Techdirt - 28 February 2014 @ 8:36am
The American Bar Association (ABA) has written a letter to the NSA addressing an issue that surfaced via a recent leak: namely, the agency signing off on the interception of privileged attorney-client discussions by Australian intelligence. To make matters worse, the intercepted communications included a US attorney who was representing the Indonesian government in a trade dispute.
While the original article didn't make it clear whether the NSA had accessed this collection, the agency did in fact authorize the surveillance. Even if the NSA chose not to "listen in," the underlying concern remains: are attorney-client communications considered off limits to the agency?
The laws governing this provide no specific exception for attorney-client communications, and the fact that this particular incident involved a foreign nation makes it that much easier for the NSA to justify its actions.
In its letter to the NSA, the ABA asks for assurance from the agency that it won't willingly target these communications, even if they do involve foreign entities or persons.
The ABA understands the critical role that NSA plays in gathering intelligence information and protecting our national security, and we acknowledge that during the course of these activities, it is inevitable that certain communications between U.S. law firms and their clients may be collected or otherwise obtained by the agency. However, irrespective of the accuracy of the recent press reports, we would like to work with NSA on this issue and urge the agency not to actively seek confidential communications between U.S. law firms and their clients. In addition, if NSA obtains such confidential information inadvertently—or such information is obtained by foreign intelligence services or others and then shared with NSA—we would expect NSA to respect the privilege and take all appropriate steps to ensure that any such privileged information is not further disseminated to other agencies or any other third parties.
If the ABA ever receives these assurances (beyond a canned statement reiterating the NSA's talking points), it likely won't make any lawyer feel any more secure. The agency doesn't have a great track record when it comes to accurately representing
its activities. The NSA's response may do nothing more than note these communications aren't exempt from its surveillance efforts.
If so, this leaves the ABA in the same position it began in: reliant on a protection that may not actually exist.
The interception and sharing of attorney-client privileged communications by government agencies—or any third party—raises concerns, including chilling the full and frank discussion between lawyer and client that is essential for effective legal representation. Any government surveillance and interception of confidential communications between law firms and their clients threaten to seriously undermine and weaken the privilege, because as the U.S. Supreme Court noted in Upjohn Co. v. United States, 449 U.S. 383 (1981), “an uncertain privilege…is little better than no privilege at all.”
That's where we are as a nation -- "little better than no privilege at all." The Fourth Amendment is actively skirted by the NSA and any number of investigative and law enforcement agencies on a daily basis, using a very expansive reading of the Third Party Doctrine to access an immeasurable amount of data, some of which is just as revealing
as the communications they can't grab.
The ABA is right to press the issue, considering the NSA only very minimally addressed this when the leak first hit. The NSA obviously cherishes the large amount of confidentiality it and its lawyers enjoy. It should at least have the decency to extend it to the rest of the legal profession.
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Posted on Techdirt - 27 February 2014 @ 3:36pm
A few days ago, the Supreme Court handed down a decision that effectively grants law enforcement and investigative agencies the power to search your home without a warrant. Here's what led to this unfortunate bit of precedent.
At issue in Fernandez v. California was a 2009 search by the Los Angeles Police Department of the home of a robbery suspect. When the officers first arrived, suspect Walter Fernandez denied them entry, but because his girlfriend Roxanne Rojas exhibited signs of recent injury, Fernandez was arrested on separate charges of domestic violence. While Fernandez was being booked, one of the officers returned to the apartment and gained Rojas’ permission to conduct a search, which soon turned up evidence linking Fernandez to the robbery.
Writing for a 6-3 majority, Justice Samuel Alito upheld the LAPD’s actions. “A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant,” Alito wrote. Moreover, he added, “Denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence.”
On one hand, this does make some sense. Multiple adult occupants should have some
stake in control of the residence. But as Fernandez pointed out in his arguments, his refusal to let the police search the apartment without a warrant was disregarded once he was in custody. Fernandez felt his objection should still stand despite being arrested. (And one would think it would -- police still need a warrant to search the premises of arrested individuals.) Because he was no longer at the residence to object, the police went back and got permission for a warrantless search from his girlfriend.
The court argues somewhat elliptically (quoting from 2006's Georgia v. Randolph
) that because Fernandez was no longer there to object, any "reasonable person" would have felt confidence in accepting the remaining individual's invitation to search the premises.
“[I]t is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant’s invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, ‘stay out.’ Without some very good reason, no sensible person would go inside under those conditions.” Id., at 113.
It seems obvious that the calculus of this hypothetical caller would likely be quite different if the objecting tenant was not standing at the door. When the objecting occupant is standing at the threshold saying “stay out,” a friend or visitor invited to enter by another occupant can expect at best an uncomfortable scene and at worst violence if he or she tries to brush past the objector.
But when the objector is not on the scene (and especially when it is known that the objector will not return during the course of the visit), the friend or visitor is much more likely to accept the invitation to enter. Thus, petitioner’s argument is inconsistent with Randolph’s reasoning.
But cops are neither "friends" nor "visitors." They are government officials in possession of a great deal of power. And they are supposed
to obtain warrants to search premises if there's an objection. The conclusion the court reaches here has effectively given law enforcement (yet another) route around the Fourth Amendment.
If one person objects, but the other says "yes," then all the police have to do is detain the objector and search the residence with the other person's permission. The court cautions against meritless detainment and states that evidence obtained in this underhanded fashion will be less likely to hold up in court. But that's a statement the court has to want
to believe to defend its conclusion. There is simply no reason to believe that any law enforcement officer won't be able to find some
charge to throw at the objector in order to remove them from the equation. Even if the arrest turns out to be spurious and used solely to remove the objector, the objector still has to suffer through detainment, and then, if the search turns up anything, fight to get the illicitly-obtained evidence thrown out. Neither of these are pleasant for the person who simply decided to assert his Fourth Amendment rights.
The dissenting opinion correctly notes that the majority's decision shrinks the protections of the Fourth Amendment. Judge Ruth Bader Ginsburg writes:
“Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.”
The "ample time" is an excellent point. Fernandez was arrested. He wasn't going anywhere, so the police had plenty of time to secure a warrant without worrying that the detainee would destroy evidence. But they chose not to. And they took this case all the way to the Supreme Court.
How hard is it to get a warrant? In court, agencies act like it's a nearly insurmountable obstacle, when in fact (in most jurisdictions), it's rarely more than a rubber stamp process. Very rarely does any judge challenge law enforcement officers' claims made "upon information and belief." If time is absolutely of the essence, there are emergency exceptions which can be used (and often, abused).
But law enforcement and investigative agencies don't like obtaining warrants. Despite this protection being a part of this country for nearly its entire existence, these entities have worked tirelessly to eliminate the small requirement that they show probable cause before performing searches. Gideon at A Public Defender quotes yet another law enforcement official talking about the terrible hardship that is securing a warrant
“I mean, it’s like, oh my gosh, as if!” said Wethersfield, CT police chief James Cetran when asked whether obtaining cell phone records of citizens of Connecticut should require a showing of probable cause. Warrants based on probable cause are, like, so “tedious”, he followed up. Further:
“It makes things faster, easier and better for us,” said Cetran. “It’s something you can do within minutes, not hours.*
“Best of all, of course, would be no requirement to get a pesky judge involved, but I’m feeling like a fat cat from where I’m sitting already, so…” he most certainly did not say, but I’m going to pretend that he thought it to himself nonetheless.
*Gideon from A Public Defender feels it should be noted that this quote was the only thing Chief Cetran actually
said. Everything else surrounding it is Gideon's embellishment.
These entities already have warrantless access to tons of data and they're still not satisfied. The following is a small list of the information available to law enforcement, investigative and security agencies without a warrant. (There are, of course, some exceptions state-to-state.)
License plate data
Cellphone location data
Drug prescription data
Email over 180 days old
Almost anything considered a "business record" can be obtained without a warrant thanks to the Third Party Doctrine
. The contents of your cellphone may
be accessed without a warrant, thanks to courts comparing cellphone contents to the contents of your pockets
or address books. Every agency in the nation has some form of "exigent circumstances" exceptions to use instead of warrants, which further weakens the Fourth Amendment.
As Gideon points out, the state of Connecticut already has a built-in workaround for police to (ab)use to skirt the Fourth Amendment.
In Connecticut, unlike, say, in MA [PDF], police departments can obtain cell phone records of anybody by getting a judge to sign an “ex parte application.“
The difference is that the ex parte application merely requires a showing of ‘reasonable and articulable suspicion’, which is the standard that police need to meet in order to stop you on the street and ask you a question, as opposed to ‘probable cause’, which is what they need to search you, your house, your car, or to arrest you. It’s a much lower standard and one that’s only slightly higher than “because I felt like it”...
Which brings me to the second thing: as per Colli’s report, it seems that of the 13,000+ ex parte applications made since 2005, not a single one has been rejected.
Not one in over 8 years. And you think the FISA court was an NSA rubber stamp? Are you confident that all 13,000+ requests involved people whom the police had reason to believe were committing or had committed a crime?
Despite all of this warrantless access, agencies still complain that getting a warrant slows down the "process." The state of Massachusetts plans to appeal the recent state supreme court decision
that stated that warrantless access to cellphone location data violates the state constitution by arguing that the law enforcement agency had enough probable cause to get a warrant. That's the state's trump card: because it could
have obtained a warrant, it should
be allowed to access this data without a warrant.
This logic is as horrendous as it is self-serving. State law enforcement agencies want this loophole left open because they want the freedom to grab records without having to worry about probable cause. The agency could have
obtained a warrant, it still chose not to -- to grab historical data, no less, as if time was even a factor.
The Supreme Court has just carved another path around the inconvenient amendment, one that allows law enforcement to search your residence without a warrant or your permission. All they have to do is find one
resident who will say, "yes." And while they perform this warrantless search, you'll be locked up. This tilts the power balance entirely. You, the citizen, will be completely stripped of the few rights you do have while law enforcement tosses your house for whatever it can find. The US Supreme Court has just cast its vote for the expansion of the police state and trimmed some more flesh from the desiccated body
of the Fourth Amendment.
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Posted on Techdirt - 27 February 2014 @ 1:36pm
The DOJ is asking the courts to extend the amount of time it can hold onto bulk metadata records. The use-by date is normally five years, but the DOJ wants more time. It's stated reason for the request is to prevent spoliation of evidence that might be needed in the several lawsuits filed against the government since the exposure of the NSA's bulk collection programs.
Some things to note: the DOJ is asking for the first FISA order of 2014 to be amended to remove the 5-year expiration date, which seems to indicate that the amendment won't affect anything previously collected. The storage limit has been five years since at least 2006, so what the DOJ is asking for is for data to be held indefinitely, for an indefinite period going forward.
Obviously, this carves a rather large hole in the NSA's (already minimal) minimization procedures. The DOJ claims the retained data will be reserved for "non-analytic" purposes, but I don't really see how the it can make that assertion, considering the NSA, at this point, still collects and stores it. Searches could be limited to five years from date of search, but this presumes a lot of an agency run by people who routinely "explore the edges of the box." (Granted, historical data tends to become less useful the older it gets, but there are hardly any limits placed on the NSA's collection abilities, so it's really not a good idea to let the government start stripping these few stipulations away.)
What's absolutely disgusting about this request is the fact that the DOJ has no interest in allowing these records to be admitted as evidence. In fact, the DOJ has already withheld this information from several defendants, effectively preventing them from discovering where the government obtained the evidence being used against them. The DOJ is talking a good game about due process, etc., but its track record shows it's willing to keep this information hidden for as long as possible.
Before the leaks, the DOJ didn't even have to acknowledge it used these programs to gather evidence against defendants. Before the leaks, other national law enforcement and investigative agencies were given this evidence and instructed to construct a paper trail to cover up the origins. The DOJ can't really get away with this anymore, but that won't stop it from pretending national security concerns outweigh a defendant's need to know what evidence is being used and how it was derived. And that's not even addressing those already imprisoned using evidence the DOJ actively hid from defendants, as Marcy Wheeler at emptywheel points out.
Of course, it was only 24 hours ago when DOJ was last caught violating that principle in Section 702, abrogating a defendant’s right to know where the evidence against him came from. And there are a whole slew of criminal defendants — most now imprisoned — whose 702 notice DOJ is still sitting on, whose rights DOJ felt perfectly entitled to similarly abrogate (we know this because back in June FBI was bragging about how many of them there were). So I am … surprised to hear DOJ suggest it gives a goddamn about criminal defendants' rights, because for at least the last 7 years it has been shirking precisely that duty as it pertains to FISA.
Wheeler also notes that the DOJ may be pretending to be concerned about the lawsuits it's currently
facing, but it expressed no similar concern in the years before Snowden's leaks exposed the NSA's programs.
[A]s EFF's Cindy Cohn pointed out to the WSJ, Judge Vaughn Walker issued a retention order in EFF’s 2008 suit against the dragnet.
"Ms. Cohn also questioned why the government was only now considering this move, even though the EFF filed a lawsuit over NSA data collection in 2008.
In that case, a judge ordered evidence preserved related to claims brought by AT&T customers. What the government is considering now is far broader."
At that point, the DOJ has no problem letting evidence against
the NSA expire, but now it wants an indefinite extension to records going forward, using the pretense that it cares about due process as leverage. The NSA wins either way. Longer retention means more access to the collection, on or off the books. And it knows the incredibly misnamed Dept. of Justice will do its best to keep collected surveillance data out of the harsh judicial sunlight.
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Posted on Techdirt - 27 February 2014 @ 12:38pm
The NSA has received 28 submissions from contractors in regards to handling the logistics of the Section 215 collection's move to the private sector. As part of the administration's NSA reforms, the phone records database is being taken out of the agency's direct control and access limited to court-approved searches. But, as David Kravets at Wired's Threat Level discovered, the new (forced) transparency of the Office of the Director of National Intelligence (ODNI -- better known as James Clapper's staff) remains largely opaque.
Kravets sent a FOIA request to the NSA for the submitted documents, something the wording of the agency's RFI (request for information) indicated would be made available for public viewing.
The RFI informs those responding to "ensure that the submitted material has been approved for public release," which, naturally, led WIRED to believe that the material would be released to the public. Two weeks ago we asked Clapper's office for submissions received under the RFI. We were told to file a Freedom of Information Act request. We did so.
Kravets has now received an answer from the agency. In short, you (Kravets -- and the American public) get nothing.
Jennifer Hudson, the ODNI chief FOIA officer, wrote WIRED saying the agency located 28 documents "responsive to your request," but:
Upon review, ODNI has determined the material should be withheld in its entirety in accordance with FOIA exemptions (b)(4) and (b)(6). Exemption (b)(4) applies to confidential proprietary information involving trade secrets and commercial data obtained from a company which, if released, would result in competitive harm to the company. Exemption (b)(6) applies to information which, if released, would constitute a clearly unwarranted invasion of personal privacy of individuals.
How amusing. The ODNI suddenly cares about privacy. Not so much about the privacy of millions of Americans
whose metadata the NSA is harvesting continuously, but about the employees of the companies that voluntarily
chose to respond to a request for information from the ODNI's office. (And did so knowing
that the information might be released publicly.)
The ODNI obviously is still more comfortable issuing blanket denials and reams of redacted pages
than it is with being even slightly transparent. Let's not forget that the documents released by the ODNI (mostly in reference to the Sec. 215 collection) weren't done with transparency in mind, no matter how Clapper phrases the preamble
attached to every document dump. These documents were pried loose thanks to a lawsuit against the government.
In the ODNI's hands, "privacy" is nothing more than an occasionally useful concept. The ODNI doesn't care about the privacy of Americans because protecting that privacy provides no value to the agency. But when it's most self-serving, the agency will "care" about privacy of some
Americans. The only thing "transparent" here is the ODNI's hypocrisy.
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Posted on Techdirt - 27 February 2014 @ 9:31am
German YouTube users get to see a whole lot of the following rather than actual videos, thanks to the world's most aggressive PRO (performance rights organization).
GEMA, which has been engaged in litigation
against YouTube for several years now in hopes of "negotiating" higher fees, has just secured a ridiculous decision in its favor from a German court that specifically targets the wording used in the "sorry 'bout that, Germans" message
Time and again, users are informed that videos are blocked due to GEMA not granting the necessary music rights. As a result, GEMA has become very unpopular indeed.
Trying to remedy the situation, GEMA applied for an injunction to force YouTube to change the messages, claiming that they misrepresent the situation and damage GEMA’s reputation. YouTube alone is responsible for blocking the videos, claiming otherwise is simply false, GEMA argued.
Yesterday the District Court of Munich agreed with the music group and issued an injunction to force YouTube to comply, stating that the notices “denigrate” GEMA with a “totally distorted representation of the legal dispute between the parties.” Changing the message to state that videos are not available due to a lack of a licensing agreement between YouTube and GEMA would be more appropriate, the Court said.
Poor sweet, sensitive GEMA. It can't handle German users being told that the PRO has yet to grant the rights. Instead, it wants to make it look as though it's entirely YouTube's fault. It wants to pretend it hasn't spent a majority
of the last half-decade battling and suing YouTube, the end result of which has been massive amounts of videos being blocked in Germany.
GEMA's complaint is every bit as ridiculous as that of an artist in a story we covered back in 2012, who claimed that YouTube's "content removed" notices somehow made the artists looks like the "bad guys" by listing the party responsible for the takedown in the message. In that case, this artist was upset that YouTube was doing exactly
what he asked it to do
: take down infringing content and notify the infringer that the content had been removed.
The same thing applies here. GEMA hasn't granted the rights to use this content, therefore it's blocked in Germany. But that heaps too much of the blame on GEMA's tiny shoulders, a burden GEMA (and now a German court) feels should be transferred to YouTube. This despite the fact that GEMA could
have an agreement with YouTube, but because it's asking for $0.17 a stream
(as compared to say, PRS, which receives $0.0034 per view), there's very little chance of it ever obtaining one. In the meantime, Germans will continue to see quizzically apologetic faces and court-ordered wording instead of videos. This ultimately has nothing to do with GEMA's faux concern for its stable of artists (don't forget: GEMA is opt-out
, not opt-in, like other PROs) and everything to do with its public image.
isn't something it can salvage at this point and no amount of wording is going to change the fact that it's its own worst enemy, and pretty much the worst thing that has happened to 95% of its roster (the top 5% or so will continue to rake in cash -- as with every collection agency anywhere). That a PRO with this much power has the audacity to complain to the courts about its self-inflicted wounds shows it still holds very tightly to its outsized sense of entitlement. That a German court would oblige is unfortunate, but not really all that surprising.
No matter what the final wording reads, German artists and fans won't forget who's the real problem here.
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Posted on Techdirt - 27 February 2014 @ 8:22am
Well, it seems like we've heard an opinion on Ed Snowden from nearly everyone in the intelligence community, barring the rank-and-file. (Of course, we've been assured by "unnamed sources" and various named officials that they're all extremely irate that they've been portrayed as the collective eyeball staring through the national peephole. Curiously, we've been offered no proxy opinion on the multiple abuse incidents...)
Finally, the Inspector General of the NSA has weighed in on the Snowden situation, and his comments are indistinguishable from any other die-hard NSA defender's.
During a day-long conference at the Georgetown University Law Center, Dr. George Ellard, the inspector general for the National Security Agency, spoke for the first time about the disclosures made by former NSA contractor Edward Snowden.
In addressing the alleged damage caused by Snowden’s disclosures he compared Snowden to Robert Hanssen, a former FBI agent and convicted spy who sold secrets to the Russians.
It seems impossible for anyone connected with the national security framework to even acknowledge
that Snowden's intentions might be exactly what he's repeatedly stated they are: to inform the public about the NSA's pervasive surveillance efforts. He's never compared to other whistleblowers. Instead, the NSA Defense Squad compares him to infamous spies. To his credit, Ellard admits the only real
comparison between the two is the large number of documents taken.
But then Ellard adds this, which not only plays up the Snowden=spy equivalent, but also exposes a bit more of the national security mindset.
“Hanssen’s motives were venal, for cash perhaps or perhaps they were psychological, a desire to play a very, very dangerous game that is therefore very, very exciting. At the end of his career, Hanssen had almost 30 years in intelligence and counterintelligence. He knew exactly what was of value to his spy handlers and he was very specific in choosing documents to steal. He knew how to control his handlers better than they knew how to control him."
“Snowden, in contrast, was manic in his thievery, which was exponentially larger than Hanssen’s. Hanssen’s theft was in a sense finite whereas Snowden is open-ended, as his agents decide daily which documents to disclose. Snowden had no background in intelligence and is likely unaware of the significance of the documents he stole,” Ellard suggested.
It is quite possible that Snowden grabbed a bunch of documents without vetting them for "public interest," but to call his search efforts "manic" is just a cheap way to downplay both Snowden's technical skill and the agency's astounding lack of internal security.
What's more troubling is how Ellard views the press. Ellard calls the journalists Snowden gave documents to "agents," showing that he (and other national security insiders) view the world through espionage-tinted glasses. Journalists are now "agents," supposedly acting at the behest of their "handler," Edward Snowden. It's a smear thinly disguised as SIGINT shop talk -- a small-minded attempt to portray reporting leaks as a dark and nasty business.
What makes all of this more remarkable than the normal NSA defensive efforts is the fact that Ellard was Snowden's "proper channel
Ellard has been the NSA’s inspector general since 2007. In this capacity he has not spoken in a public forum before so that made what he said additionally significant. Had Snowden made the decision to report his concerns through approved NSA channels it would have been through Ellard’s office.
The route Snowden supposedly should have taken runs right through Ellard's office. And what Ellard would have given him in exchange for his concerns was a recitation of the NSA's talking points.
Ellard was asked what he would have done if Snowden had come to him with complaints. Had this happened, Ellard says would have said something like, “Hey, listen, fifteen federal judges have certified this program is okay.” (He was referring to the NSA phone records collection program.)
This offer to explain the (alleged) constitutionality of the program may have meant something if Ellard had made this statement at any point before June 2013. Delivering it now -- with all the inside information that's been uncovered since then -- is remarkably tone deaf. It shows that NSA officials still have no idea how to approach potential whistleblowers. Those in that position actually still think delivering stale talking points
will somehow dissuade someone who's truly shocked by the vast power and reach of the agency.
If you think this statement indicates Ellard's incredibly out of touch with the reality of the situation, the next assurance effort he offers removes all doubt.
“Perhaps it’s the case that we could have shown, we could have explained to Mr. Snowden his misperceptions, his lack of understanding of what we do. If not, I would have made the Senate and House Intelligence Committees open to him. Given the reaction of by some members of that committee, he would have found a welcome audience."
Really? Mike Rogers
? Dutch Ruppersberger
? Dianne Feinstein
? This is the "welcome audience" Snowden would have faced. They, like Ellard, would have rubbed his boyish head and told him not to worry about all these lawful programs he simply didn't "understand." And then they would have sent him on his way. (And, most likely, reported him to his superiors and redundantly suggested Ellard open an internal investigation.)
The "proper channels" wouldn't have given Snowden anything other than a swift ride to the "EXIT" door and some threats about just
how much of a living hell the NSA would make his life if he passed any of his knowledge on to the general public. Ellard's attitude towards Snowden shows how much hostility awaits those who find themselves unable to be good NSA company men/women. Following proper channels means being greeted with condescension, cliches and a lifetime of suspicion.
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Posted on Techdirt - 27 February 2014 @ 7:18am
Robert Van Tuinen, the Modesto Junior College student who was told by school administration that he couldn't pass out copies of the Constitution on campus, has won his lawsuit (filed with FIRE [Foundation for Individual Rights in Education]) against the school.
California’s Modesto Junior College (MJC) [has] agreed to settle a First Amendment lawsuit filed last October by student Robert Van Tuinen, whom the college prevented from handing out copies of the Constitution on Constitution Day...
As part of the settlement, MJC has revised its policies to allow free speech in open areas across campus and has agreed to pay Van Tuinen $50,000. Van Tuinen was represented by the firm of Davis Wright Tremaine LLP in Washington, D.C., and assisted by the Foundation for Individual Rights in Education (FIRE).
The college, which previously "fought back
" by complaining about negative press and "hatred and cruelty" directed at its staff, has overhauled its free speech policies, opening up the campus to students who wish to exercise their First Amendment rights.
Limited public forums on Modesto Junior College’s campus are “areas generally available to students and the community,” defined as grassy areas, walkways, or other similar common areas.
This is a significant improvement over MJC's previous "free speech area
," which was a small concrete slab only accessible to students who had been granted "permission" by the administration in advance to exercise their free speech rights.
The timeframe available to students has also been expanded and is no longer limited to one-hour reserved slots.
Use of free speech areas is permitted every day from 8:00 am to 9:00 pm. Speakers who will be using the free speech areas outside normal working hours (Monday-Friday from 9:00 am to 5:00 pm) are encouraged to notify the Office of Student Development and Campus Life to coordinate their event.
Note the fact that contact is "encouraged" but not required. These new policies are now in effect not just at Modesto Junior College, but at all schools within the Yosemite Community College District.
While this is a heartening win for free expression on MJC's campus, FIRE notes that 59% of colleges nationwide
still uphold policies that restrict free expression on campus. That this particular situation resulted in litigation is unfortunate, considering the application of a little common sense by school administrators would have saved the college $50,000 plus whatever it racked up in legal fees defending a stupid, restrictive policy.
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Posted on Techdirt - 26 February 2014 @ 1:33pm
Mike's coverage of leaks showing the NSA and GCHQ using the internet to "manipulate, deceive and destroy reputations" (as reported by Glenn Greenwald at firstlook.org) hit the front page of Reddit yesterday, generating lots of traffic for Techdirt. This traffic truly should have gone to firstlook.org, but never made it there. A look at the top comments on our coverage show why:
Why is this story being removed from all the popular subs over and over by mods?
Message the admins about the censorship of this article by /r/news and /r/worldnews mods. They have never seemed to care about this in the past but if enough users message them it will hopefully at least provoke a response of some kind. Something needs to be done about this or this site needs to be abandoned as a platform for legitimate political discourse.
Important Update: So, it turns out that the /r/news mod /u/BipolarBear0 who has been deleting all the instances of this story has previously been caught running a voting brigade to get anti-Semitic content upvoted on /r/conspiracy to discredit the sub. A fact which he admitted to me in another thread just a few minutes ago (he claims he was doing an "experiment"...) . This guy needs to be banned from the site.
A little further down in the thread:
Last night, the original article from firstlook.org was taken down and tagged as "not appropriate subreddit." Meanwhile, another copy of the story was allowed to rise, despite having an editorialized title. Later, the version that had been taken down--which was older and had fewer upvotes because it had been removed--was put back up and the younger version with more upvotes was removed, allegedly because the topic was "already covered."
This tactic has been used to keep other similar stories from rising, such as the one about the NSA sharing information with Israel.
Time and time again, the content on /r/worldnews, /r/technology, /r/news, and /r/politics is manipulated by moderator intervention.
While everyone lets the implications of this kind of content manipulation on reddit regarding stories about online content manipulation sink in, I think it's worth noting that /r/technology has a bot that removes stories about the NSA.
Ninja edit: subscribe to /r/undelete and /r/longtail if you're interested in keeping an eye on popular content that's been removed by mods.
Censorship on reddit? It seems almost ridiculous considering the amount of subreddits available for those submitting stories. But it's there all the same (although not actually "censorship" so much as a bad direction for a community based on meritocracy to go in). According to commenters, both r/news and r/worldnews (two of the biggest subreddits), the firstlook.org post was removed over and over again once they began collecting upvotes, forcing each submission to start over at "0" and face an uphill struggle for visibility.
and lists of removed posts
have been compiled showing the various subs' mods' actions to bury the firstlook.org story. But why? Sooner or later, it was bound to sneak through, like ours did (a link to the Examiner's coverage
did as well).
Speculation on this runs rampant, but most commenters agree that too many mods are abusing their power in order to bury anything they don't like. We saw some of this infighting late last year when r/politics composed a very arbitrary list
[since rescinded, mostly
] of banned submissions sources (including us) in an effort to crack down on overly-politicized articles (on a politics sub no less) and what the mods declared to be "blogspam," a catchall term that somehow included award-winning news outlets like Mother Jones
The decision to clamp down on news detailing this particular leak brought a whole lot of irony with it. The efforts made to remove an unflattering story about intelligence agencies' dirty little efforts to use the internet to destroy reputations and manipulate public perception led to tongue-in-cheek speculation that Reddit itself is compromised. (And there's certainly no way to be sure it isn't…)
Techdirt may have been the inadvertent beneficiary of bad behavior by subreddit mods, but that's hardly reason to celebrate. If the mod situation is as bad as it appears to be, Reddit is going to start heading down the path of Digg, whose infamous "bury brigade"
worked tirelessly to ensure only certain news coverage made its way to the top of the list.
This isn't an easily-solvable problem, thanks to Reddit's hydra-like structure, with hundreds of subreddits and no clear demarcation of command. The corporate Reddit, which ostensibly "controls" the community, has largely taken a hands-off approach. This is still the best option and the reversal of the r/politics arbitrary ban list shows the community still has the power to solve some of its mod problems. But widespread story burial, coupled with evidence of subreddits being gamed by mods, isn't exactly comforting, especially considering Reddit's journalistic aspirations
Like any platform with millions of users, issues will never be non-existent. But a failure to address the abuse of power by mods of larger subreddits will hurt Reddit in the long run. Power coupled with an almost-complete lack of accountability is always a bad thing. But this problem will need to be solved internally by the subreddits themselves. There's power in numbers, something subreddit subscribers should be able to leverage to start cleaning this mess up.
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Posted on Techdirt - 26 February 2014 @ 3:28am
A little bit of good news has made its way out of the KlearGear debacle. (Quick recap: tech tchotchke store KlearGear screws up order, customer writes negative review, KlearGear bills her $3,500 for violating an extortionate "non-disparagement clause" [which wasn't even in force when it screwed up her order] and then sends that bill to collections, thus screwing up her credit record.)
Scott Michelman of Public Citizen, which is suing KlearGear on the customer's (Jen Palmer) behalf, reports that one of the defendants (Fidelity Information Corp.) has fixed its contribution to Jen Palmer's woes.
Our suit also named the debt collector Fidelity Information Corp., who by this point owned the debt. Now Fidelity has done an independent review of the case and reported to the credit agencies that the debt was erroneous. So the Palmers have a measure of relief – the KlearGear debt is off John’s credit report, finally, after 18 months. Today the Palmers voluntarily dismissed Fidelity from the lawsuit.
That's good news for the Palmers, whose credit was damaged enough by KlearGear's fraudulent tactics that it prevented them from getting a loan to purchase a new furnace when theirs broke, as well as hampering their efforts to buy a new home.
That just leaves KlearGear, which has yet to respond to the lawsuit Public Citizen filed more than two months ago. KlearGear's social media accounts remain shuttered and silent
. The company, however, remains open for business, however, with whoever's behind it presumably revising future earning estimates.
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Posted on Techdirt - 25 February 2014 @ 2:25pm
Considering the type of people cops interact with the most, you'd think law enforcement officers be the most broad-shouldered of individuals, easily shrugging off the various slights and indignities they're subjected to on a daily basis. You'd think that, but you'd be wrong.
According to police, a 13-year-old boy was charged as a juvenile with felony aggravated battery against a police officer Wednesday after he hit the officer in the arm with a snowball while the officer was parked in his vehicle in the 4900 block of West Congress Parkway about 3:20 p.m.
A cop, a person not entirely unlike anyone else ever hit by a snowball, found the impact of snow against his arm to be nearly unbearable. The main difference between Joe Citizen and Officer Snowball is that the Chicago police officer has the power to toss the offending person into the gears of the criminal justice system. Which is what he did. Obviously, this has provoked plenty of negative reaction.
"I think that's ridiculous — it's such a big charge," said Latanya Powell, a construction worker on the block. "It's just going overboard. I can see if it were a weapon and harm was done, but it was just a snowball.
"This is a case of kids being kids."
Boys will be boys, but that's only acceptable if they don't extend their natural mischievousness to include this particular uniformed manchild. Once you cross that line -- a line only a cop can see -- you're finished. Say goodbye to childhood and hello to a criminal record that will affect you for years to come.
Not everyone was as nonplussed as Latanya Powell. Local
educator Ray Fields felt this was a totally appropriate response to snowball-throwing.
"If [the boy] had gotten away with it, who's to say what they'd do next? If it doesn't stick to them now, they'll be 16 or 17, and they'll have a gun," Fields said, adding that he has experience with local teens as a teacher and was the victim of a home burglary by neighborhood teens in 2010.
Hmm. Well, if we follow Fields' reasoning (and that of the unnamed cop), we arrive at a couple of conclusions, both equally asinine.
A. Throwing snowballs at authority figures is a gateway drug to a life of crime. (Because snowballs magically become guns when the snowball thrower hits "age 16 or 17.")
B. If a kid hitting a cop with a snowball is felonious battery, then kids everywhere are committing this crime -- repeatedly -- after every snowfall (with the attendant "snowballs lead to gunplay" concerns nowhere to be seen).
Conclusion A is a dead end. It's not unlike the assertion that because criminals play video games, playing video games leads to criminal acts. Many criminals threw snowballs at their friends and authority figures (adults, teachers, cops) during their formative years, therefore snowball throwing leads to criminal acts. Rather than punish criminal behavior, those deploying this stunted logic want to crack down on non-criminal
behavior in the deluded hope of preventing future criminal acts. All the way wrong, all the way down.
Conclusion B just exposes the fact that there are multiple sets of rules in play at any given time: one for citizens, one for cops and one for when the two intersect. Johnny hits Timmy with a snowball and it's "playing." A cop hits another cop with a snowball and it's "playing." But Johnny hitting a cop with a snowball is a felony.
Hanging a felony charge on a kid for snowball throwing is not only completely absurd, it has a much greater chance of converting him to a criminal than his cop-targeting snowball throwing does. Way to go, law enforcement (and enablers like Ray Fields): you're generating scofflaws just as fast as you can trump up charges against them.
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Posted on Techdirt - 25 February 2014 @ 7:20am
Update: An Autharium representative reached out to the Passive Voice blog to admit that sending a DMCA takedown was a "mistake". It's not clear whether this means that it was done in error, or that they've acknowledged their attempted abuse of the system.
The DMCA notice: the multi-tool abused by many. The most common abusive form is the issuance of takedowns to muffle criticism, which is what we have here.
Autharium, a British ebook self-publishing platform, took a bit of a beating last March for its absolutely horrendous Terms and Conditions. Passive Voice, a writer-oriented blog, was the first to expose just how much authors were giving up when they signed with Autharium. In exchange for publishing through Autharium, authors gave the platform exclusive WORLDWIDE rights to "produce, publish, promote, market and sell your Work in any Digital Form" for "the entire legal term of copyright." That's life plus 70 years in the UK.
If an author somehow managed to talk Autharium into reverting the copyright back to him or her, Autharium still retained exclusive, worldwide digital distribution rights. And "any Digital Form" included far more than just ebooks. Paragraph 1.4 of the publishing T&C originally listed the following as being under Autharium's exclusive control.
“Digital Form” means any and all electronic and/or digital forms and media whether now known or later invented or developed including (by way of examples only): (i) any e-book (i.e. using any means of manufacture, distribution or transmission whether now known or later developed including but not limited to electronic and machine-readable media and online and satellite based transmission intended to make your Work available for reading) (“eBook”); and (ii) any electronic version (other than an eBook) for performance and display (whether sequentially or not) in any manner (together with accompanying sounds, images, interactive and/or search features if any) by any electronic means, method or device (“Electronic Version”).
Word quickly spread around the web to other author/ebook-oriented sites like Writer Beware
and The Digital Reader
. The consensus was that this contract was even more exploitative than those offered by other infamous self-publishing platforms/vanity presses like Author Solutions
Shortly after this uproar, Autharium wisely changed its T&C to something much more author-friendly
, including giving their clients the option to terminate the contract and revert rights after three years. It also significantly narrowed its definition of "any Digital Form" by adding this sentence to the paragraph:
For avoidance of doubt this does not include physical or audio book forms, videos, film, television, merchandise or game forms.
As it noted on top of the "new" T&C page, this was overhauled in March of 2013, an effort which stripped away almost everything ridiculous and exploitative about the original. This massive restructuring allowed Autharium to add the following line to its "About" page
, something it couldn't honestly have said at any point before the March 2013 revamp. (The wording isn't present in previous versions
No draconian length of copyright contracts, no signing away of movie, merchandising or physical book rights.
So far, so good. While it's a shame Autharium felt the original T&C was somehow acceptable, it did at least respond quickly to the criticism by making extensive changes. If only Autharium had left it at that.
For no discernible reason, nearly a year after the fracas (and Autharium's ensuing corrective efforts), Autharium issued a DMCA notice
targeting Passive Voice's original blog post. (h/t to Techdirt reader BS Simon
Dear Sir or Madam:
The content on the URL below infringes copyrighted text taken from our site without permission…
We hereby request that you immediately remove or block access to the infringing material, as specified in the DMCA.
Original work URL(s):
Allegedly infringing URLs:
While it could technically be argued that the "copyrighted text" was "taken" without permission, what was actually included in Passive Voice's post was five paragraphs out of 83 total. And it was clearly used as part of the commentary. It's very difficult to explain what's wrong with a contract's Terms & Conditions without quoting it directly, as was done here. Furthermore, there's nothing in the site's Terms & Conditions
that forbids use of the site's text in this fashion.
This has every appearance of a company -- which originally did the right thing and fixed its horrendous contractual text -- attempting to whitewash the past, starting with the blog post that triggered the backlash. But why? Why do this when you've already addressed the problematic T&C and have started to win writers back?
The sad thing about the clearly bogus DMCA notice is that it worked. Passive Voice's post on Autharium's original T&C
was originally on the first page of Google's search results
. It's now been delisted, as noted by the message at the bottom of the page.
Passive Voice isn't just going to let Autharium pretend March 2013 never happened
In the opinion of many, including PG [Passive Guy, blogger at Passive Voice], the legal remedies for bad faith takedown notices that are simply attempts at censorship are inadequate. For a further discussion of this problem, see this post on the WordPress Blog.
PG thinks an alternate remedy – sunlight – might work the best in this case.
Here is PG’s original commentary on the Autharium language without the inclusion of any language from the Autharium terms of service. PG is including his commentary so his opinions about what he believed to be unfair contract terms as they existed on March 10, 2013, will show up on Google.
Fortunately, The Passive Voice has a large enough audience so Google incorporates new posts into its search database very quickly.
And sunlight Autharium will receive. Instead of simply acknowledging that it had screwed up in the past, Autharium is trying to bury it. It changed its T&C for the better, but is now undoing any forward momentum by attempting to erase the past. This will only result in another round of negative press, and a company that used
to look exploitative will now become a company that is currently
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