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Posted on Techdirt - 16 April 2015 @ 4:05pm

New Appointees To Congressional Oversight Committees Have Deep Ties To Military/Industrial Contractors And The CIA

from the what-if-they-gave-a-war-and-nobody-wanted-to-end-it? dept

There are several reasons why the US government's War on Terror will never end, but every one of them traces back to two prime motivators: money and power. They're inseparable, as are the interests that almost always conflict but almost always get overlooked as the Congressional revolving door spins.

If you want a war -- possibly even a CYBERwar -- you'll get one. The oversight committees that are charged with keeping the NSA and others in line are actually acting as filters. Those on the committees pick and choose what's passed on to other Congress and Senate members. In addition, the oversight has been further compromised by recent additions whose employment histories indicate there will be continued expansion of government powers in the future.

Lee Fang of The Intercept has a rundown of the new oversight committee members. To no one's surprise, they have ties to government contractors and secretive government agencies.

In January, Jeffrey Shockey became the most powerful staffer on the House Intelligence Committee after Chairman Devin Nunes, R-Calif., named him staff director, the highest ranking staff assignment. Shockey has gone in and out of lobbying and congressional work for over two decades
Shockey's ties to an appropriations scandal, in which he helped obtain $150 million in contracts for his military-industrial clients via improper earmarks, hasn't prevented him from taking a seat at the intelligence table, where his decisions can alter the flow of funding to and from intelligence agencies. His former clients -- and there are a lot of them -- stand to benefit from any expansion of surveillance programs or newly-approved offensive cyberweaponry. Over the course of his lobbying career, Shockey has represented Academi (formerly Blackwater), General Dynamics, Northrop Grumman and a handful of closely-related corporations.

Rep. Bill Hurd -- a newcomer -- has scored a choice seat at the head of the brand new House Oversight Committee for technology. How fortuitous.
Before running for office, Hurd worked in offensive cyberoperations as a CIA officer, joined the Crumpton Group, a private intelligence firm led by a former CIA official, and later helped build a cybersecurity company called FusionX.
It's not just the NSA and CIA that stand to benefit from appointees who empathize deeply with the work the agencies do, as well as the private companies that help them get it done. The DHS is also honing its synergy by appointing former Chertoff Group senior associate Jena Baker McNeill as Deputy Staff Director for the Senate Homeland Security committee. The Chertoff Group was founded by former DHS Secretary Michael Chertoff. McNeill's appointment keeps DHS control "in the family," so to speak.

A lot of entities -- both inside and outside the government -- have grown accustomed to running a well-funded war machine. They're in no hurry to give it up. If the Snowden leaks ever result in serious surveillance reforms, the shift to Plan B (cybersecurity) will ensure no one goes hungry. The players may change periodically but the underlying interests will continue to be well-protected by company men (and women) and intelligence insiders.

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Posted on Techdirt - 16 April 2015 @ 3:04pm

Complaints To FTC About Rightscorp Detail Robocalls, Harassment And Baseless Threats To Sever Internet Connections

from the you-know,-all-those-things-everyone's-suing-about dept

If these FTC complaints are to be believed, Rightscorp is doing pretty much everything Morgan Pietz's class action lawsuit has accused it of.

Among other wrongful conduct: Rightscorp has engaged in telephone harassment and abuse (15 U.S.C. § 1692d); made various false and misleading representations (15 U.S.C. § 1692e); engaged in unfair collections practices (15 U.S.C. § 1692f); failed to provide validation and required notices relating to the debts (15 U.S.C. § 1692g); and furnished emails and letters knowing they would create false beliefs on the parts of consumers that their Internet Service Providers (“ISPs”) were participating in the attempt to collect on the purported debts when in fact the ISPs were not participating (15 U.S.C. § 1692f).
Robocalls, baseless threats, seemingly endless harassment, constantly fluctuating "settlement offers"... it's all included in the FTC complaints. (And turned over with extreme expeditiousness by the FTC -- seven days from the point my FOIA request was received.) [Spreadsheet link. Scroll all the way to the right to see complaint details. Also note there are two tabs of complaints.]
Consumer had his internet turned off and he called his service provider and they told him that Digital Rights Corp sent them a warning telling him that they would shut off his internet if he didn’t contact them and he did and they told him that they had 34 counts against him of uploading a children’s song and they told him that it could be $150 thousand dollars per each count and they have admitted that he didn’t do it but he has to pay it because his service was used to do this and he has to pay teh consumer was told if he gave them $500 they would make everything go away. Advised Consumer to call the State Attorney General.


Consumer is receiving repeated phone calls from a company claiming to be from Rights Corp and the company claims that the consumer has illegally downloaded music and the company is trying to collect money for the illegal downloads. Consumer states that the company states that the consumer must pay immediately and they tried to obtain a cc number. Consumer states that the company claims that if the consumer does not pay over the phone the amount of the money owed would be mulitplied by 100% and that they would terminate the consumer's internet services.
Every settlement offer looks "reasonable" when compared to maximum statutory infringement damages -- something Rightscorp has no intention of pursuing. As for the claim that the alleged infringer's internet connection could be cut off? It's mostly false. Rightscorp has managed to push around a few small ISPs using its untested theory that the DMCA requires service providers to boot repeat infringers. But at this point, any internet disconnection is a purely voluntary action on the part of the ISP. There's no legal basis for its claims and no court decision that backs its assertions up. And, most importantly, Rightscorp can't actually cut off anyone's internet connection -- at least not on its own. But that doesn't stop it from insinuating that it possesses this power.

How can you tell Rightscorp has far less power than it pretends to have? By how swiftly it resorts to bargaining.
The Digital Rights Corp. has charged us with 216 illegal down loads. They said that 153 sucessfully down loaded. They first wanted us to pay 3,000 dollars. Now everytime we speak to them the amount changes from 3,000, 560.00, 500.00, and the last amount was 390.00.


Rightscorp, Inc sent us a letter about 6-24-2014 saying we owe $4,060 for copyright infringments. We called to inquire on this accusation. They stated pay $460 by ~6pm (that day ) or pay the full amount. They also pressed for a credit card number. To this day they have been calling about 3x's a week. (They threaten to cut off our internnet service.)
And how can you tell Rightscorp is nothing more than a troll? Because if you feed it, it comes back for more.
Forwarded by the State of Alabama Office of the Attorney General… Consumer responded to first email and paid $20 for the fee requested. She received 27 more emails each requesting $20… Consumer received another email threatening to shut down her internet service demanding settlement. Consumer states she is now getting phone calls from this company.


Digital Rights started annoying robot calls after I made a $20 payment on behalf of a third party to settle an alleged copyright issue. They decided I "owed" them a lot more, $280. I demanded no further calls...They insisted they can call me as much as they want by any means even though I was not actually involved directly with the internet account.(gift,not at my home) They sent a threatening letter and emails, too...


I received notification from my internet provider that a report had been made of illegally download. I contacted Charter who offer no assistance they were "only relaying a message" I then contacted the RIGHTSCORP. I was hesitant to give them information but was coerced into giving them our name and phone number. Initially they said they wanted 20.00 or else they would sue us for 150,000.00 dollars. I told them I had checked with the entire family and they did not believe they had downloaded these songs. She , Cecilee, called back and stated the charges were now 180.00.


I made a single payment on behalf of my son in law to clear a digital rights claim as I gave him a year internet as a gift. Now they won't stop calling me trying to get more money for more "claims."
Rightscorp apparently deploys two tactics with regularity, both unpleasant: threats and harassment.
Rightscorp sent me a letter for copyright infringement so I called the number on the paper they sent and they said that it carries a fine of $150,000 but if I gave them $20 they would settle it. Now they call me every Monday, Wednesday & Friday and are continuing to send me the same letter.


Rights Corp is claiming that I owe them money because they served my internet service provider with a subpoena for my information. They call 3 or 4 times per day in addition to text messaging…


This company has been calling my home 3-4 times a day for months, originally threatening me to pay them thousands of dollars or they would sue us. Since the initial call with them, which I refused to comply with, they have called continually, everyday and on weekends, always with a recorded message that I never pick up...
And the company's "collection agents" appear to be disguising the origin of the calls.
False claims of copyright infringement from well-known copyright "troll". Company is California based, but call came from Tennessee.


...They are trying to intimidate me into giving them money for nothing by harassing me over the telephone. Most of the telephone calls are not live people, but an automated message that leaves me a voice mail from several different numbers with several different area codes..
I've reached out to Rightscorp to see if it has any comment on the FTC complaints. I'm not holding my breath for an answer, considering much of what's alleged in these complaints is the subject of two class action suits. But what's detailed here is nothing more than pure copyright trolling: baseless threats, harassment, and settlement offers. We've seen this deployed by a fair number of supposed rights enforcement entities and most of those are now languishing. Rightscorp isn't looking too healthy itself.

And the most amazing part is that -- despite two lawsuits centering on this abusive behavior -- it hasn't reined in its collection efforts. Many of the complaints filed with the FTC appeared after Morgan Pietz filed his lawsuit in November of 2014, with the latest listed being March 24, 2015. Apparently, it's just going to keep up its questionable tactics until it's forced to stop, even though there's little indication they've resulted in anything more than a few scattered, small settlements.

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Posted on Techdirt - 16 April 2015 @ 8:16am

Student Sues College After Campus Cops Demand He Get A Free Speech 'Permit' Before Handing Out Fliers

from the stinking-badges dept

Hey, budding adults! Welcome to college! Now, kindly shut up for the next few years.

Cal Poly Pomona’s campus policies impose a web of restrictions before students can distribute literature on campus: They must check in with the Office of Student Life, allow the school to copy their IDs, and wear badges signed by an administrator. Even then, would-be speakers are relegated to the so-called “free speech zone.” Badges can only be issued from 8 a.m. to 5 p.m. on weekdays, although the Office of Student Life pledges to “work with” any student who wishes to engage in expressive activity on evenings or weekends. Additionally, students must register in advance for outdoor events, and the Office of Student Life must approve all flyers and posters.
That's what the First Amendment has been reduced to at Cal Poly Pomona: asking permission, wearing "free speech" badges and a standing-room-only patch of ground. These restrictions have prompted a lawsuit from student Nicolas Tomas, who alleges campus police prevented him from handing out pro-vegan fliers on a campus sidewalk and directed him to jump through the college's many speech-curbing hoops before exercising his First Amendment rights.

Despite being a public college -- which should encourage it to keep its free speech meddling to a minimum -- Cal Poly Pomona continues to issue policy-related "Presidential Orders" that strip away students' First Amendment rights. Because some of these orders haven't been made public, they're open to abuse, as Tomas points out in his lawsuit.
Together, the policies establish an unconstitutional “free speech zone” and impose unconstitutional prior restraints on expressive activities that limit free expression at Cal Poly Pomona.

The policies are contradictory, confusing, and do not provide adequate notice to students regarding Cal Poly Pomona’s policies on free expression. For example, the Student Life webpage on the Cal Poly Pomona website provides links to the Interim Freedom of Expression Policy (dated 2002) and the 2008 Presidential Order policies, but not the 2014 Presidential Order.

The inconsistent policies allow administrators to pick and choose provisions that they are going to enforce, allowing them unlimited discretion to promote or silence speech based on its content or the identity of the speaker.
At some point between March 5th and today's date, CPP personnel updated the site to include the missing 2014 Presidential Order. No new link is provided, nor has the title of the existing link ["New Presidential Order: Use of University Buildings, Facilities, or Grounds (PDF)"] been altered. Only the destination document has. Instead, whoever was in charge of this simply swapped out the 2008 Order for the 2014 Order without any indication this change had taken place. Crafty.

Cal Poly Pomona vows to respect your free speech rights, provided you inform the administration 10 days in advance, are granted permission to speak and are willing to wear a speech permit while remaining in the properly-designated area. That's just not how free speech works. Tomas is hoping his lawsuit will result in the school's policies being found unconstitutional. Even if Tomas can't get the constitutionality declaration and permanent injunction he's requesting (along with damages and costs), maybe his efforts will push the school to reconsider its policies.

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Posted on Techdirt - 15 April 2015 @ 2:38pm

Obtained Emails Show FBI, DOJ Fought Over Charges In Blackwater Shooting Case

from the and-nobody-won dept

The DOJ and the FBI aren't seeing eye-to-eye -- and apparently haven't for years. The FBI has been stiff-arming the DOJ's Inspector General over the past several months, preventing him from doing his job of providing oversight for the DOJ's many law enforcement agencies. The FBI appears to have gone rogue.

Maybe it isn't the FBI deciding it's above accountability. Maybe it's because it doesn't view the DOJ as a useful entity... or even a trustworthy ally -- even as the FBI is technically a part of the DOJ. At its heart, the FBI is a law enforcement agency. It pursues bad guys and turns them over to be locked away. It firmly believes in the inherent "rightness" of its mission, even when its investigative activities have partially devolved into terrorism-related shots on unguarded goals.

Emails obtained by the New York Times provide some insight to the friction between the FBI and DOJ over the handling of the Blackwater case. In 2007, Blackwater -- a private company hired by the State Department to provide security in Iraq -- opened fire on civilians in Baghdad, injuring 20 and killing 17. The FBI's investigation concluded that 14 of the 17 Iraqis were killed "without cause." The FBI wanted to stack charges in order to assure the contractors felt the full consequences of their actions. The DOJ, on the other hand, wasn't so sure.

The F.B.I. had wanted to charge the American contractors with the type of manslaughter, attempted manslaughter and weapons charges that could send them to prison for the rest of their lives for the shooting, which left more than a dozen Iraqis dead and many others wounded in September 2007.

But at the last minute, the Justice Department balked. In particular, senior officials were uncomfortable with bringing two machine-gun charges, each of which carried mandatory 30-year prison sentences.
The lead agent, John Patarini, felt that dropping this mandatory chunk of prison time would allow those involved to walk away from killing 17 civilians with five-to-seven year sentences. This outcome may have been more aligned with the DOJ's sense of justice (after all, the contractors were required to carry weapons by the State Department) but it didn't mesh with the FBI's more law enforcement-oriented definition of justice. So, Patarini decided to play politics.
Mr. Patarini was incensed. “I would rather not present for a vote now and wait until the new administration takes office than to get an indictment that is an insult to the individual victims, the Iraqi people as a whole, and the American people who expect their Justice Department to act better than this,” he replied.
Playing politics only made sense. The charge itself is a political by-product -- a relic from the Drug War's decade-long obsession with crack. This charge was legislated into existence solely to stack charges against drug dealers to turn low-level possession charges into decades-long stints in federal prisons.

The DOJ's reluctance to use a law it had wielded so willingly against drug dealers and gang members in the past against federal contractors who gunned down dozens of Iraqis is troubling. The FBI's desire to see Blackwater's employees face lengthy prison sentences is also troubling, considering it's usually all too happy to do the same thing to people accused of far less heinous behavior.

The regime shift the FBI felt would keep the weapons charges alive also changed the DOJ's stance. Nothing in the obtained emails states explicitly why the DOJ reconsidered its position, but its recent statements on the Blackwater case are closely aligned with Special Agent Patarini's 2008 desire to see the contractors sentenced to decades in prison.
Echoing the emails from nearly seven years ago, the Justice Department said the sentences would “hold the defendants accountable for their callous, wanton and deadly conduct, and deter others wielding the awesome power over life or death from perpetrating similar atrocities in the future.
The only winners here are those who know how to game the political system. The FBI knew it needed a friendlier DOJ, which required a friendlier White House. But the FBI doesn't play politics to the extent the DOJ does. No matter how inflamed its sense of injustice, there was little chance the DOJ would fight the previous administration to pursue gun charges against the employees of a major political donor. Seven years later, the DOJ finally feels comfortable using a bad law to put four killers in jail for an extra-long time. There's no "right" here. There's only the sickening interplay of political expedience.

The FBI fought the DOJ -- not for the greater good -- but for much smaller, much more temporary ends. The FBI wants to put bad guys away. The DOJ's position isn't as clear-cut. It's quick to throw the book at certain defendants, but it's just as likely to investigate allegations of police misconduct and civil rights violations. Although both are ostensibly aimed at the same goal -- justice -- the DOJ is the weaker of the two, more prone to cutting the accused some slack and far more willing to criticize the FBI's colleagues and allies: the local law enforcement agencies it often partners with. Because of this, the FBI views the DOJ as unworthy of its respect -- just as likely to sell it out as back it up. The DOJ may be the FBI's parent agency, but it's clear the FBI views it as ineffective and impotent.

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Posted on Techdirt - 15 April 2015 @ 9:56am

Homeland Security Will Finally Admit To Banned Flyers That They're On The No Fly List

from the sued-into-acting-like-a-responsive-agency dept

Good news has arrived for fliers who'd like to know exactly what the hell is going on when they're forbidden to board an airplane.

The government will no longer refuse to confirm or deny that persons who are prevented from boarding commercial aircraft have been placed on the “No Fly List,” and such persons will have new opportunities to challenge the denial of boarding, the Department of Justice announced yesterday in a court filing.
Thanks to several lawsuits, the DHS is no longer able to Glomar its way out of responding to travelers who suspect they've been blacklisted from flying. This filing addresses Mohamed v. Holder, but builds on revised redress procedures promised in the wake previous lawsuits.
Under the previous redress procedures, individuals who had submitted inquiries to DHS TRIP generally received a letter responding to their inquiry that neither confirmed nor denied their No Fly status. Under the newly revised procedures, a U.S. person who purchases a ticket, is denied boarding at the airport, subsequently applies for redress through DHS TRIP about the denial of boarding, and is on the No Fly List after a redress review, will now receive a letter providing his or her status on the No Fly List and the option to receive and/or submit additional information.
It's a huge step forward from just being told less-than-nothing by the agency's misnamed "Traveler Redress Inquiry Program." The first step has the DHS performing its own "redress review" -- something that appears to have no time limit for responses. And that's the beginning of the process. Members of the public will finally receive better and more detailed responses, but they will asked to perform several rounds of hoop-jumping, with the first couple of steps seemingly redundant.
If such an individual opts to receive and/or submit further information after receiving this initial response, DHS TRIP will provide a second, more detailed response. This second letter will identify the specific criterion under which the individual has been placed on the No Fly List and will include an unclassified summary of information supporting the individual’s No Fly List status, to the extent feasible, consistent with the national security and law enforcement interests at stake.
Other than "because we're a bureaucracy," there doesn't seem to be any reason full details could not be provided in a single letter. But that's the government for you: if it's not killing trees and utilizing its underused postal service, it's not being productive. Why do in one step what can be done in several (also: in triplicate, if possible), etc.

Even with these redress improvements, some travelers will still receive answers containing little to no information or guidance.
The amount and type of information provided will vary on a case-by-case basis, depending on the facts and circumstances. In some circumstances, an unclassified summary may not be able to be provided when the national security and law enforcement interests at stake are taken into account.
On the upside, the DHS will actually allow this to be a bit more adversarial. Travelers will be able to submit responses to the DHS's initial No Fly List determination and submit information that might prompt a reconsideration of their inclusion on this list. The final decision is still the government's but at least it's open to basing its decision on more than its own security-first worldview and limited, supposedly inculpatory data.

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Posted on Techdirt - 15 April 2015 @ 8:34am

TSA Agents Outwitted By Cory Doctorow's Unlocked, 'TSA-Safe' Suitcase

from the the-skies-won't-be-safe-until-every-checked-bag-has-been-destroyed dept

Prior to the 9//11 attacks, you only had to worry about airport baggage handlers beating the hell out of your luggage or stealing your valuables. Thanks to the post-attack panic, there's a new layer of ineptitude and deceit your luggage is subjected to on its way to its destination (which may not be your destination).

Boing Boing's Cory Doctorow (or rather, his luggage) was recently subjected to the brutish charms of the Transportation Security Administration.

[T]he TSA still routinely and unaccountably destroys luggage equipped with "TSA-safe" locks, just because they can. Last week, TSA inspectors at Phoenix's Sky Harbor airport pried the locks off of my unlocked, "TSA-safe" suitcase before taping it shut again and loading it onto my London-bound flight.
Here's what Doctorow's luggage looked like after the "TSA-safe" locking mechanism outmaneuvered the TSA agent in charge of crowbar-wielding and packaging tape application.

This appears to be the luggage Doctorow "submitted" to the TSA (although Doctorow's is possibly an earlier iteration), which then handled it with all the grace and skill of two male supermodels trying to retrieve files from a computer.

The TSA should have had no trouble unlocking the suitcase (using keys, rather than physically attacking it). Rimowa's site states that its luggage features "TSA combination locks."

Bypassing it with a master key was the option the TSA was supposed to use. Instead, it just forced it open, taped it back together and handed it back to Doctorow without even a shrug of bureaucratic regret.

It did, however, respond to his legitimate complaint. If you can call it a response. First, it loads up on disclaimers. (Doctorow's interjections are bracketed.)
Thank you for contacting the Transportation Security Administration (TSA) Contact Center regarding damaged or missing checked baggage locks.

TSA is required by law to screen all property that goes onboard commercial passenger airlines, including checked baggage. To ensure the security of the traveling public, it is sometimes necessary for Transportation Security Officers (TSOs) to inspect checked baggage by hand. Locked checked baggage [[MY BAG WAS UNLOCKED]] may cause delays due to the need for TSOs to open locked baggage by using alternative measures, including force. Please be advised that TSA is not liable for any damage to locks or bags that are required to be opened by force for security purposes. [[HOW CONVENIENT – WHY NOT?]]
Yes. The agency takes no responsibility for breaking something that was a.) unlocked and b.) even if it wasn't, had passkeys it could have used. It inexplicably mentions this unused option while explaining why it manhandled Doctorow's luggage like the world's most inept burglar.
In cooperation with private industry, TSA implemented a system under which TSOs are able to identify, unlock, and then relock certain locks using passkey sets available to TSA screeners [[AND ANYONE WITH HALF A BRAIN AND A BIT OF GUMPTION]]. TSA-recognized locks can be opened and relocked by TSOs without force and with little delay. TSA cannot, [[WHY THIS COMMA?]] guarantee that such locks will never be damaged or lost while TSOs and airline employees handle checked baggage [[HOW CONVENIENT]].
On top of being unable to perform its job without destroying luggage, the TSA is apparently unaware that URLs can be copied and pasted, rather than carelessly typed into a response email for maximum ineffectiveness.
To learn more about damaged locks, please visit\node\1428.
Just try to do what the TSA didn't and paste that not-a-URL-at-all into an omnibox. (Well, it will be automatically converted into a real URL, but that's only because web browsers are smarter than TSA Customer Service agents.) Doctorow says this indicates some sort of DOS mindset, which is its only level of scary.

So, to recap: the TSA can break your stuff, despite having the tools to do otherwise and despite having a number of luggage manufacturers specifically making passkey-compliant suitcases to prevent this sort of thing from happening and despite the suitcase being UNLOCKED THE WHOLE TIME. And the traveler's path of recourse is a mistyped URL surrounded by "not our fault" boilerplate.

The TSA will never have to pay for broken luggage. Because terrorism.

I miss the good old days when this sort of behavior was only displayed by baggage handlers searching for valuables/setting distance records in amateur luggage-tossing competitions. At least then you could find someone to hold accountable for the damage sustained.

The TSA, however, is above even the most minimal level of accountability. If its employees are outsmarted by a "TSA-safe" lock, it's your fault for not ensuring your checked luggage was already open and dumping its contents all over the conveyor belts by the time it reached the TSA's elite group of suitcase-battering counterterrorists. This entire situation (especially the TSA's "response") cleary shows that Doctorow is the guilty party here. If he truly loved America, he'd have prepared for this eventuality… or at least just taken back the taped-together remains of his $1000 suitcase and shed a tear of gratitude for all the hard work the TSA did to ensure his flight didn't get blown up/hijacked.

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Posted on Techdirt - 14 April 2015 @ 4:17am

UK Government Can Now Hand Out Two-Year Sentences For Revenge Porn, Online Trolling

from the another-round-of-'message-sending' dept

Revenge porn is now officially a crime in the UK, as last year's amendments to the Criminal Justice and Court Acts come into effect. This particular amendment targeting revenge porn was proposed last October.

The change will cover the sharing of images both online and offline. It will mean that images posted to social networking sites such as Facebook and Twitter will be caught by the offence, as well as those that are shared via text message. Images shared via email, on a website or the distribution of physical copies will also be caught. Those convicted will face a maximum sentence of 2 years in prison.

The offence will cover photographs or films which show people engaged in sexual activity or depicted in a sexual way or with their genitals exposed, where what is shown would not usually be seen in public. Victims and others will be able to report offences to the police to investigate. Officers will work with the Crown Prosecution Service to take forward cases for prosecution.
Fortunately, the law contains affirmative defenses, including one for journalistic entities or other disclosures in the public interest. It also appears to keep the burden of proof (mostly) where it should be: on the entity bringing the charges.

However, this amendment seems to be more borne of social pressure than actual need. Trafficking in revenge porn has been punished successfully under the UK's harassment laws. This law just feels extraneous -- a way to "do something" that increases penalties for violating existing harassment laws. There's a two-year maximum sentence attached to this amendment, which is far lower than the surprising 18 years handed to revenge porn site operator Kevin Bollaert, but far more than a previous "revenge porn" prosecution under the UK's already existing laws, which only netted a 12-week sentence.

The enacted amendments also give UK Justice Secretary Chris Grayling what he wanted: increased penalties for the crime of being a jerk online. The UK has jailed trolls before, but now the government has a new upper limit on sentencing - quadrupling the former 6-month maximum.

This revenge porn law may be less broadly-written than others we've discussed, but that slight positive is negated by the UK's vastly more limited free speech protections.

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Posted on Techdirt - 13 April 2015 @ 1:23pm

Baltimore Cops Asked Creators Of 'The Wire' To Keep Cellphone Surveillance Vulnerabilities A Secret

from the works-of-fiction-with-too-much-truth? dept

Over the past decade, criminals have apparently gained an insurmountable technology lead over law enforcement. I'm not sure how this is possible, especially considering many criminals don't have access to the same technology cops do, much less access to generous DHS funding, and yet, here we are witnessing police officers (following orders from the FBI) tossing cases and lying to judges in order to "protect" secret tools that aren't all that much of a secret.

We recently covered a Baltimore detective's courtroom admission that a) the Baltimore PD had deployed its Stingray equipment 4,300 times over the past seven years and b) that it had hidden this information from courts and defendants. The argument for this secrecy was that doing otherwise allows criminals to devise ways to beat the system.

No one's looking to expose ongoing investigations, but as far as some law enforcement agencies are concerned, everyone is under continuous investigation by default. And since that's the case, anything that might be construed as giving criminals a head start is subject to a thoroughly ridiculous code of silence that excludes the majority of the justice system.

This cop-specific technopanic is so all-encompassing that it has bled over into the unreality of creative efforts -- like TV shows. (via The Verge)

David Simon, creator of "The Wire" and a former Baltimore Sun reporter, said in an email that "the transition from landlines to cellular technology left police investigations vulnerable well over a decade ago."

He noted that there was new technology at the time — such as Nextel phones that mimicked walkie-talkies — that "was actually impervious to any interception by law enforcement during a critical window of time."

"At points, we were asked by law enforcement not to reveal certain vulnerabilities in our plotlines," Simon said. That included communications using Nextel devices.
The Wire also featured detectives using a cell signal-capturing device called a "Triggerfish." Any relation to today's Stingrays is likely not coincidental, no matter what the post-credits disclaimer might have stated. The Stingray isn't a secret, but it has been awarded an unprecedented amount of secrecy. Cops lie to judges, defendants and even prosecutors to keep the Stingray out of the public eye. And yet, it seems clear that The Wire's creators knew something about the technology over a decade ago.

But the inherent ridiculousness of asking a fictional television show to withhold dramatic elements just because they may have hewed too closely to reality can't be ignored. Criminals will find vulnerabilities in the system and law enforcement will work hard to close these gaps. But criminals aren't so far ahead as to be unstoppable.

This attempt to censor The Wire isn't much different than the law enforcement secrecy efforts we see being deployed in courts. The motivation behind these efforts is highly suspect. It doesn't seem so much to be aimed at preventing criminals from exploiting vulnerabilities as it is at keeping law enforcement officers from working any harder than they feel they should have to. It's not about keeping bad guys from outmaneuvering cops. It has more to do with preventing public disclosure from resulting in unwanted changes -- like additional scrutiny from magistrate judges or the challenging of submitted evidence. It's about preserving the most efficient law enforcement methods -- generally anything that doesn't require permission from an outside entity or generate a paper trail.

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Posted on Techdirt - 13 April 2015 @ 5:56am

Teen Changes Wallpaper On Teacher's Computer; Gets Charged With A Felony By Sheriff's Office

from the CFAA:-Teen-Edition dept

Change a teacher's desktop wallpaper? That's a felony.

The Pasco County Sheriff's Office has charged Domanik Green, an eighth-grader at Paul R. Smith Middle School, with an offense against a computer system and unauthorized access, a felony. Sheriff Chris Nocco said Thursday that Green logged onto the school's network on March 31 using an administrative-level password without permission. He then changed the background image on a teacher's computer to one showing two men kissing.
Seemingly everyone at every level of government wants to talk about cybersecurity. Most of what's discussed is delivered in the breathless cadence of a lifetime paranoiac. (Won't someone think of the poor multimillion-dollar studios?!!?) This school is one level of government. So is the sheriff's office. Both felt the 14-year-old's actions were severe enough to warrant felony charges. Why? Because somebody hacked something. If you can even call it "hacking…"
Green had previously received a three-day suspension for accessing the system inappropriately. Other students also got in trouble at the time, he said. It was a well-known trick, Green said, because the password was easy to remember: a teacher's last name. He said he discovered it by watching the teacher type it in.
The teen changed a computer's wallpaper and was able to do so because the most basic of security precautions weren't taken. Multiple students took advantage of this lax security to access computers with webcams so they could chat "face-to-face" while utilizing the school's network.

The school got all bent out of shape because some of the computers accessed contained encrypted test questions. It turned the student over to law enforcement because it deemed his "breach" of its system too "serious" to be handled by just a 10-day suspension. It had him arrested because of things he could have done, rather than the thing he actually did.
One of the computers Green, 14, accessed also had encrypted 2014 FCAT questions stored on it, though the sheriff and Pasco County School District officials said Green did not view or tamper with those files.
And yet, Sheriff Chris Nocco is still looking to prosecute a 14-year-old for attempting to annoy one of his teachers. Here's the student's description of what he did.
"So I logged out of that computer [because that computer didn't have a webcam] and logged into a different one and I logged into a teacher's computer who I didn't like and tried putting inappropriate pictures onto his computer to annoy him," Green said.
Here's Sheriff Nocco's statement:
"Even though some might say this is just a teenage prank, who knows what this teenager might have done," Nocco said.
Well... you do know what "he might have done," Sheriff Nocco. And yet, your response to this situation is to hand out felony charges to a teen for something he might have done? Is that the way law enforcement is really supposed to work? [The FBI has issued the following statement: "That's the way it works for us. Almost exclusively."]

He told you exactly what he did and why he did it. Your own investigative efforts confirmed he never accessed the oh-so-untouchable FCAT questions. Incredibly, Sheriff Nocco wants to not only punish this student for something he might have done, but any other teens who might do stuff.
The sheriff said Green's case should be a warning to other students: "If information comes back to us and we get evidence (that other kids have done it), they're going to face the same consequences," Nocco said.
Sheriff Nocco: I will arrest and charge teens with felonies for annoying educators and/or exposing their inability to make even the most minimal effort to keep their computers secure. If I lived in this county, I'd be very concerned that law enforcement officials are keen on the idea of arresting and prosecuting teens for stuff they didn't do (access test questions) or things they might have done (TBD as needed for maximum damage to teens' futures).

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Posted on Techdirt - 10 April 2015 @ 6:17pm

2009 DHS Document Says Border Patrol Can Search/Copy The Contents Of Your Device Just Because It Wants To

from the all-about-that-privacy-you-won't-be-allowed dept

FOIA clearinghouse MuckRock has scored another revealing document, this time from Customs and Border Protection. As we're well aware, the US border isn't technically considered to be part of the United States, at least not as far as the Constitution is concerned. All bets are off, 4th (and others) Amendment-wise. If you're traveling with anything -- whether its a vehicle, suitcase or laptop -- expect it to be searched.

What MuckRock has obtained is the DHS's Privacy Impact Assessment of the CBP's search policies. The only thing seen of this near-mythical document to this point has been a two-page summary of the report's contents, released nearly three years after its border search policy went into effect.The assessment basically says privacy will be severely impacted… and not much else. To do otherwise is to open the borders to terrorists, illegal immigrants, drug runners, child porn traffickers... at least according to the talking points. If you're none of the above, you're not exempt from in-depth warrantless searches of your person and belongings, including laptops and other electronic devices.

Based upon little more than the opinion of a single US Customs and Border Patrol (CBP) officer, any device can be searched and its contents read. With approval from a supervisor, the device can be seized, its contents copied in full, or both.
These opinions, also known as "gut feelings" and "mental coin tosses" (the latter extremely popular with the TSA's Behavioral Detection Officers), are all it takes to initiate a very intrusive search.

Part of this we can blame on the courts and their deference to national security fears.
Under DHS authorities to conduct border searches, travelers' electronic devices are equally subject to search as any other belongings because the information contained in them may be relevant to customs and immigration inspection processes and decisions. While the terms "merchandise" and "baggage" are used, the courts have interpreted border search authorities to extend to all of a traveler's belongings, including electronic devices and the information in such devices.
Beyond the hunches that trigger warrantless searches of electronic devices, the CBP also has the authority to demand travelers translate foreign languages and/or decrypt files.
Demand for Assistance: During a border search, ICE and CBP have specific statutory authority to demand assistance from any person or entity. For searches of electronic devices, CBP or ICE may demand technical assistance, including translation or decryption or specific subject matter expertise that may be necessary to allow CBP or ICE to access or understand the detained information.
In some cases, travelers will be notified that their device has been searched. In others, the CBP and ICE will withhold this information from the person who owns the searched device. This includes cases where the agents image the entire contents of the device in order to perform a search later. In fact, in most cases where this is done, the person is cut out of the informational loop.
Instead of detaining the electronic device, CBP or ICE may instead copy the contents of the electronic device for a more in-depth border search at a later time. For CBP, the decision to copy data contained on an electronic device requires supervisory approval. Copying may take place where CBP or ICE does not want to alert the traveler that he is under investigation; where facilities, lack of training, or other circumstances prevent CBP or ICE from performing the search at secondary inspection; or where the traveler is unwilling or is unable to assist, or it is not prudent to allow the traveler to assist in the search (such as providing a password to log on to a laptop).
And, again, this sort of detainment/search can be triggered by nothing more than an agent's feelings about the person being vetted. And while a CBP officer may have to check with a supervisor before imaging a device, ICE agents are able to self-approve intrusive searches and seizures.
As federal criminal investigators, ICE Special Agents are empowered to make investigative decisions based on the particular facts and circumstances of each case. The decision to detain or seize electronic devices or detain, seize, or copy information therefrom is a typical decision a Special Agent makes as part of his or her basic law enforcement duties. However, although no additional permission is required at this stage, Special Agents must comply with precise timeframes and supervisory approvals at further stages throughout each border search.
While there are oversight guidelines in force, they aren't set in motion until after the copying/searching has already been performed.

As the PIA notes later, the DHS's agencies don't care whether it's papers in a briefcase or the entirety of your digital life housed within a smartphone. Either way, it claims to have the right to search, seize and copy data without probable cause. Or so it did until recently.

The 9th Circuit Court's 2013 decision on border searches of electronic devices undercuts a lot of the assertions in this 2009 DHS document. Most importantly, the decision forces the government to stop pretending the contents of a laptop or cellphone are no different than the contents of a briefcase or suitcase. (h/t to Daniel Nazer for pointing out this superseding decision)
The amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler’s luggage or automobile. That is no longer the case. Electronic devices are capable of storing warehouses full of information. The average 400-gigabyte laptop hard drive can store over 200 million pages—the equivalent of five floors of a typical academic library.... Even a car full of packed suitcases with sensitive documents cannot hold a candle to the sheer, and ever-increasing, capacity of digital storage.
The nature of the contents of electronic devices differs from that of luggage as well. Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails. This type of material implicates the Fourth Amendment’s specific guarantee of the people’s right to be secure in their “papers.”.... The express listing of papers “reflects the Founders’ deep concern with safeguarding the privacy of thoughts and ideas—what we might call freedom of conscience—from invasion by the government.”... These records are expected to be kept private and this expectation is “one that society is prepared to recognize as ‘reasonable.’”
This decision partially restores the Fourth Amendment to the Constitution-free Zone -- at least the portion covered by the Ninth Circuit. The decision doesn't forbid these searches. It just holds them -- and the CBP/ICE -- to a higher standard than agents' hunches.

So, in all the principles (transparency, minimization, information safeguards) listed in the DHS's 2009 Privacy Impact Assessment of warrantless border searches, there's not a single one devoted to warrants, warrant requirements or establishing reasonable suspicion. It took a court to reach that obvious conclusion and it took a court's explanation as to why a laptop isn't a briefcase to force the CBP to stop behaving like a law unto itself in the Ninth's jurisdiction. A privacy impact assessment that doesn't mention Fourth Amendment implications is a waste of 50 sheets of paper.

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Posted on Techdirt - 10 April 2015 @ 3:50pm

Hecklers Try To Veto University Screening Of 'American Sniper;' May Find Themselves Watching 'Paddington Bear' Instead

from the this-alternate-option-is-perfect-because-YOU-ARE-SPOILED-CHILDREN dept

The University of Michigan has succumbed to a heckler's veto, mistaking an alternate point of view for the only point of view, and shutting down legitimate speech in response.

The Center for Campus Involvement announced Tuesday afternoon they would cancel a planned showing of “American Sniper” at UMix following a student petition over the depiction of certain communities in the film.
Notably, the students opposed to this screening didn't do any of the following:

  • Protest at the showing.
  • Offer a contrasting point of view, either by hosting a movie more closely aligned with their worldview or by asking to be allowed to provide some sort of rebuttal before or after the screening.
  • Note that they disapproved of the screening and leave it at that.
  • Write letters to the editor of the campus newspaper or any other related journalistic entity.

No. They chose to shut down the screening by circulating a petition that described how hurt their feelings were that the university hadn't consulted with every last student before choosing which film to screen.

“Although we respect the right to freedom of speech, we believe that with this right comes responsibility: responsibility of action, intention, and outcome,” the letter read. “The movie ‘American Sniper’ not only tolerates but promotes anti-Muslim and anti-MENA rhetoric and sympathizes with a mass killer.”
1/4 - would not recommend

The Center for Campus Involvement immediately folded and offered its apologies to everyone it inadvertently offended with its movie selection.
“Student reactions have clearly articulated that this is neither the venue nor the time to show this movie,” the statement read. “We deeply regret causing harm to members of our community, and appreciate the thoughtful feedback provided to us by students.”
"Harmed" how? By offering a movie no one on campus was obligated to watch? It wasn't a mandatory event and those offended by the movie had several options available, most of which didn't involve ensuring no one on campus could see the movie.

In what would appear to be a dig at the "victims" infantilization-by-proxy of the entire student body, but is more likely due to a limited selection of last-minute offerings (guaranteed not to result in a swift petitioning), the CCI decided to screen "Paddington Bear" instead. For a student body composed of 18-23 year olds.

Howard Wasserman, writing at PrawfsBlog, wonders where the notion of "counter-speech" has disappeared to -- the long-held belief that the best weapon against "offensive" speech is more speech, not less. He posits there are a few reasons we see this so infrequently exercised on campus: It's hard. It sometimes doesn't work. Restrictive campus speech rules -- free speech zones, permits, etc. -- make it almost impossible to mobilize counter-speech efforts.

But the big one is this: people tend to take the easiest route -- shouting someone down -- and many campuses are quick to indulge those engaging in this behavior. Wasserman quotes Floyd Abrams:
"Surely, this is the best evidence yet that a speech-destroying storm is sweeping across American campuses. The students who seek to ban speech have much to learn but a university that yields to their demands can hardly be trusted to teach them.”
There may be hope for Michigan's CCI. Sometime during the night following its capitulation, it rediscovered its spine and respect for free speech. This statement arrived the following day:
It was a mistake to cancel the showing of the movie “American Sniper” on campus as part of a social event for students.

The initial decision to cancel the movie was not consistent with the high value the University of Michigan places on freedom of expression and our respect for the right of students to make their own choices in such matters.

The movie will be shown at the originally scheduled time and location.
And, as a concession to those with nothing better to do and/or still offended by the "American Sniper" screening, the CCI still offering a film targeted at the 10-and-under crowd.
We recognize, however, that some students are uncomfortable with the content of the movie, and appreciate that concern.

Therefore, the university also will show an alternative movie, “Paddington,” in another location on campus at that same time and date to provide our students with additional options that evening.
So, if the hecklers aren't interested in staying home and brooding about their failed veto, they're more than welcome to sit through "Paddington" -- something guaranteed to be as blandly inoffensive as a documentary on vanilla ice cream. Or maybe those so thoroughly offended by this optional event might take this opportunity to actually engage in some speech of their own, rather than (virtually, via Google Docs) shouting down the speech of others.

And maybe the next time this sort of situation arises, the university won't be so swift to grant all of the credibility to a small number of complainers -- something far too many schools do by default.

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Posted on Techdirt - 10 April 2015 @ 2:31pm

Court Adds Much-Needed Element Of Malice To Nova Scotia's Terrible Cyberbullying Law

from the one-of-the-many-problems-with-emotionally-charged-laws dept

Nova Scotia's supremely awful cyberbullying law is finally receiving a much-needed tweak, but it took a trip to the Supreme Court to do it. (As noted by a commenter below, the Supreme Court is just Nova Scotia's first level of trial court, rather than the province's highest court.) The law's original wording was so broad it had the potential to "make bullies of us all," as MacLean's Jessie Brown put it when the law went into effect.

The law -- hastily pushed through the legislative system in response to a cyberbullying victim's suicide -- contained this passage, which was open-ended enough to criminalize all sorts of previously-protected speech:

…any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably [to] be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way.
As attorney Karen Bennett-Clayton explains, this wording eliminates nearly every form of defense against cyberbullying allegations. (via Barry Sookman)
This definition of cyberbullying captures a wide range of communication, from the truly insidious statements calculated to cause fear and intimidation to statements that are simply embarrassing or somehow harmful to the recipient’s emotional well-being. The definition contains no requirement to show motive or intent, nor does it require that the communication be false or misleading. On a plain reading of it, true statements could be considered cyberbullying so long as they are repeated and are distressing or harmful to someone’s self-esteem. Moreover, and as it includes those who “assist” in such communications, the definition is also arguably broad enough to include those who publish the electronic communication, such as web hosts or internet service providers (ISPs).
Safeguards that are typically seen in defamation and harassment laws are completely missing from Nova Scotia's cyberbullying law -- which would explain why a person who felt himself a victim of defamation or harassment might take the easier route and use the badly-written cyberbullying law to shut down his "bully," instead. And that's true, even though much of what was said had not risen to the level of defamation, and much of what was contested occurred before the law went into effect.

The court examined the law and the protective order issued by a lower court justice of the peace and found both wanting. As for the law's wording itself, the Supreme Court found it too inclusive to be anywhere near reasonable and, in fact, a threat to normally protected speech. While the law is in place to address cyberbullying, the definition is vague enough to cover far more than internet communications. This has the potential to stymie news reporting through traditional channels, as well as cover "communications" never intended to be included in the cyberbullying law.
Both the ordinary meaning of “electronic” and the inclusive definition capture uses of electricity for communication that were common long before cyberspace (1984). Here are a few examples from the old days: cylinder phonograph records (1877); disc gramophone records (1894) including 78s (1898), long plays (1948), singles (1949), and extended plays (1952); studio cast recordings (1943 or before); broadcasting by way of commercial radio (1920s), commercial television (1928), walkie-talkie (1940), and citizens’ band (1948), and, of course; telegraph (1834) and telephone (1876), including fax (1964). All of these are within the definition of “electronic”, at least when it is read literally.
The Supreme Court continues, providing examples of how this badly-written law could be twisted to cover nearly every form of communication imaginable, so long as the communication itself causes "fear, intimidation or distress."
The first thing to note in the definition of cyberbullying is the disconnect between the ordinary meaning of the word and the literal definition. One who communicates electronically, whether it be by text message or telephone, and says something reasonably expected to cause fear, intimidation, humiliation, or distress is a cyberbully.

The next thing to note is the absence of conditions or qualifications ordinarily part of the meaning of bullying. Truth does not appear to matter. Motive does not appear to matter. Repetition or continuation might (“repeated or with continuing effect”) or might not (“typically”) matter. A neighbour who calls to warn that smoke is coming from your upstairs windows causes fear. A lawyer who sends a demand letter by fax or e-mail causes intimidation. I expect Bob Dylan caused humiliation to P. F. Sloan when he released “Positively 4th Street”, just as a local on-line newspaper causes humiliation when it reports that someone has been charged with a vile offence. Each is a cyberbully, according to the literal meaning of the definitions, no matter the good intentions of the neighbour, the just demand of the lawyer, or the truthfulness of Mr. Dylan or the newspaper.
As the court sees it, the law demands the inclusion of a motivation -- malice -- and yet, its hurried passage failed to include this key element. Adding in that factor goes against the lower court's finding justice of the peace's decision and nullifies the issued protective order.
The evidence does not malice as required, according to my interpretation, for a finding of cyberbullying after August 6, 2013. Firstly, the events after that date, except for the e-mail, are relatively mild. Secondly, the full correspondence between Mr. Baha’i and Mr. Fraser about removal, which Justice of the Peace Gass did not see, shows efforts by Mr. Baha’i, an unanswered request for suggestions, and statements of Mr. Fraser’s assessment of Mr. Baha’i’s liabilities closing the discussion. This correspondence is inconsistent with malice on Mr. Baha’i’s part.


Mr. Self chose his forum. It is one in which Mr. Baha’i is entitled to disclosure and discovery, to fully test the many allegations. Unlike Cyber-safety Act proceedings, it is one in which the parties can find out who is, rather than speculate. It is also a forum in which serious risk of defamatory repetition could be controlled by interim injunction, without the ex parte one-sidedness of the Cyber-safety Act. Despite this, the cyber protection order prevents Mr. Baha’i from communicating with the very person who is suing him.

The evidence satisfies me that malicious repetition by Mr. Baha’i is unlikely. Unlike Justice of the Peace Gass on the ex parte application, I have a full picture of the attempts to satisfy Mr. Fraser’s demands on behalf of Mr. Self. Whether he can force Mr. Baha’i to expunge what is not in his control, and whether he can recover damages against Mr. Baha’i for third party reproductions, risk of repetition by Mr. Baha’i is not in issue. Also, unlike the justice, I take into account that the Cyber-safety Act was not law when Mr. Baha’i was active on the present subject.
Summing up, the Supreme Court finds Nova Scotia's cyberbullying law -- as written -- to be a threat to protected speech.
In my assessment, the damage caused by the cyber protection order to Mr. Baha’i’s constitutional right to free speech and to his property right to use his own equipment outweighs the potential harm to Mr. Self if Mr. Baha’i is able to communicate freely. Justice requires that the order be revoked.
This fixes one of the major holes in the law, and restores much-needed protections for uninvolved third-parties (social media platforms, ISPs) who can't, by definition, show malice by hosting or transmitting communications made illegal by this law.

Unfortunately, it doesn't address another of its major flaws -- the wholly ex parte accusation process, which can result in severe penalties for the accused (loss of internet connection or access to electronic devices, gag orders, etc.) without being allowed to present their side of the issue in court.

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Posted on Techdirt - 10 April 2015 @ 9:43am

Copyrights & Patents Have Become A Religion; All Data Will Be Ignored

from the I-WANT-TO-BELIEVE dept

If you've read Techdirt for any length of time, you'll have noticed that intellectual property laws have been decoupled from logic for several years now. Because the entities heavily-reliant on IP protections (and who mostly serve as gatekeepers and middlemen, rather than perform any creative work of their own) have trouble producing evidence that extended copyright terms or increased enforcement efforts are actually instrumental to the creation of future artistic works, they have tended to fall back on assertions that various governments have a "duty" to protect their interests.

It's not an assertion borne of data or extensive research. It's a statement of faith. Record labels and movie studios spend millions every year issuing takedowns and lobbying for favorable laws. And every year, they fail to point out where these efforts have added to the bottom line. When confronted with this lack of evidence, they'll often declare this is only because we're not doing the things that aren't working hard enough or often enough or with enough severity.

Mark Lemley, whose work -- especially that focused on the broken patent system -- has been featured here before, has just published a paper examining this thought process: Faith-based Intellectual Property.

Lemley opens by noting that we supposedly live in an "age of reason," with a wealth of information and powerful data tools at our fingertips. But when the data fails to produce the desired evidence for increased IP protections, reason is swiftly abandoned and replaced with nothing more than unfounded beliefs.

This isn't just a post-file sharing phenomenon. This dates back more than a half-century.

Fritz Machlup, commissioned by Congress in the 1950s to evaluate the patent system, came to the strikingly wishy-washy conclusion that if we didn’t have a patent system, the evidence wouldn’t justify creating one, but since we had one the evidence didn’t justify abolishing it.
There's more evidence available now than there was 60 years ago, but nothing's improved.
The upshot of all this evidence is something rather less than a complete vindication of the theory of IP regulation... This doesn’t mean that we are no better off than we were in Fritz Machlup’s day. The problem isn’t that we don’t have enough evidence, or the right kind of evidence. The problem is that the picture the evidence paints is a complicated one. The relationship between patents and innovation seems to depend greatly on industry; some evidence suggests that the patent system is worth the cost in the biomedical industries but not elsewhere. Copyright industries seem to vary widely in how well they are responding to the challenge of the Internet, and their profitability doesn’t seem obviously related to the ease or frequency of piracy... Money doesn’t seem to be the prime motivator for most creators, and sometimes it can even suppress creativity. And an amazing number of people seem perfectly happy to create and share their work for free now that the Internet has given them the means to do so.
Despite the lack of clear indicators that strengthened IP laws result in more creativity, or at least, more profitability for industries which rely heavily on IP protections, the push for expanded terms and more draconian IP-enforcement penalties hasn't let up. When the available data doesn't support held beliefs, there are options.

Shoot the messenger:
A lesson I learned early in my academic career is that while people will dispute, ignore, or shrug off policy arguments they disagree with, they get really incensed when the data disagrees with them. And one way they can justify ignoring that data is to persuade themselves that the source of that data must be biased in some way and so their numbers cannot be trusted. The most vitriolic attacks I have experienced in more than twenty years as a law professor were directed at the most innocuous-seeming papers—papers that presented data that revealed some uncomfortable facts about the status quo.
Someone can be paid to produce data that agrees with held views.
A second reaction to data you don’t like is to try to go out and buy some of your own. Companies with a vested interest in a system that empirical evidence calls into question have been spending a great deal of money to fund studies written (sometimes preposterously) to lead to the conclusion they support.
Or, you know, 'find God," as it were...
Participants on both sides of the IP debates are increasingly staking out positions that simply do not depend on evidence at all. That is, their response to evidence that doesn’t accord with their beliefs is not to question their beliefs, or even to question the evidence, but to retreat to a belief system that doesn’t require evidence at all.
Lemley quotes Berkely's Rob Merges, a leading patent scholar -- one who turned to faith when the data didn't support his predispositions.
After decades at the forefront of economic analysis of the patent system, Merges threw up his hands: “Try as I might, I simply cannot justify our current IP system on the basis of verifiable data showing that people are better off with IP law than they would be without it.” While one might think that the logical thing to do if the evidence doesn’t support one’s theory is to question the theory, Merges instead observes that “through all the doubts over empirical proof, my faith in the necessity and importance of IP law has only grown.”
With adherents like these, who needs evidence? What were once a limited rights, granted for the betterment of all, are now an expansive rights, benefitting only a select few. Any lack of supporting evidence is no longer germane to the argument. IP rights are now being controlled by those who "feel" or "believe" in the fundamental "rightness" of their arguments. Data need not apply.
The adherents of this new religion believe in IP. They don’t believe it is better for the world than other systems, or that it encourages more innovation. Rather, they believe in IP as an end in itself—that IP is some kind of prepolitical right to which inventors and creators are entitled.
There's a reason why religions and governments shouldn't be allowed to intermingle. This adherence to the "moral" rights of creators plays hell with the system.
It intervenes in the market to interfere with the freedom of others to do what they want in hopes of achieving the end of encouraging creativity. If we take that purpose out of the equation, we are left with a belief system that says the government should restrict your speech and freedom of action in favor of mine, not because doing so will improve the world, but simply because I spoke first.
When the faithful guide the creation of legislation, bad things happen -- things that undermine the societal benefits of limited rights for a limited amount of time. Those limits are no longer in place, and supposed protections like "fair use" give more value to intellectual property than freedom of expression. The system is broken and those exploiting it the most don't want it fixed.
Trademark rights extend to prevent uses that would happily have coexisted fifty years ago. We have added a slew of new copyright statutes, expanding the term as well as the scope of protection, increasing penalties, and reaching conduct further and further removed from actual infringers. We issued six times as many patents in 2014 as we did three decades before, and most of the patent suits filed are brought by patent trolls, a category of plaintiffs that didn’t even exist forty years ago and that one might think has a weaker moral claim on IP than people who actually make products.
Unfortunately, Lemley realizes the ultimate futility of his research. While small factual misconceptions can often be corrected, adherents to any form of faith-based system (whether they be pro- or anti-IP) are almost impervious to arguments that run contrary to their beliefs -- no matter how much data is provided.
If you are a true believer, we have nothing to say to each other. I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others. Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong.
This where we are today: subject to laws written to accommodate true believers. The faithful that have been indulged in their expansion efforts even while a whole host of supposed "industry killers" have risen and fallen with little to no discernible damage done to entrenched IP-reliant industries.

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Posted on Techdirt - 10 April 2015 @ 6:13am

DOJ Asserts Its Desire To Live In A Fantasy World Where Publicly-Disclosed Documents Haven't Been Publicly Disclosed

from the a-place-between-bureaucracy-and-secrecy-we-call...-the-The-Twilight-Zone dept

The DOJ's Office of Legal Counsel (OLC) is still trying to keep its memos related to extrajudicial drone killings a secret. The push for secrecy isn't surprising. The surprising part is how much the DOJ continues to fight this lost battle.

Quick recap: the New York Times and ACLU sued the DOJ in an FOIA suit for the release of the OLC's drone-killing memo. The DOJ, of course, maintained it needed to be kept secret for national security reasons and because it was "legal advice," something lying outside the confines of the FOIA law.

The district court saw things differently, mainly because the government -- through officials named and unnamed -- had openly discussed the contents of this memo several times. The government had also confirmed drone targets, drone operation areas and engaged in what the court referred to as "an extensive public relations campaign" to convince the public of the "rightness" of its killer drone program.

So, the court ordered the release of the memo. And then ordered the release of other, similar memos. The DOJ obviously wasn't happy with this decision, but its officials' decision to talk up the legality of drone killing over a period of several years undercut its arguments that the memos were too "secret" to be publicly disclosed.

But the DOJ won't stop trying to reclaim the secrecy it gave away so frequently. Jameel Jaffer at Just Security noticed a particularly disingenuous bit of barn door-shutting being performed by the agency in its brief to the Second Circuit Court. [pdf]

In a footnote, the government provides this take on the court’s publication of the July 2010 OLC memo (which the government calls the “OLC-DOD Memorandum”):

For purposes of preserving its argument for potential further review, the government respectfully notes its disagreement with this Court's prior ruling that the government has officially disclosed and waived privilege for certain legal analysis contained in the OLC-DOD Memorandum. As set forth in the government's briefs in the earlier appeal, the public disclosures and statements relied on by the plaintiffs did not meet the standard for official disclosure or waiver of applicable privileges. We further note that the Court' s release of the OLC-DOD Memorandum and its order compelling disclosure by the government of additional information would not themselves constitute an independent official disclosure or waiver by the government that would strip protection from otherwise exempt information and material.
As Jaffer notes, the first two sentences have arrived too late to serve any purpose for the DOJ. It had a chance to petition the Supreme Court on this ordered disclosure, but that window open and closed without the DOJ taking any action. The last sentence, however, is where the DOJ heads right off the rails -- at least in terms of logic or credibility.
But it’s the last sentence of the footnote that is truly remarkable — unreal, one might even say. Sure, the government says, the Second Circuit published the July 2010 memo, and sure, it published the memo after having concluded that the government had officially acknowledged the memo’s contents, and after the government declined to file a petition for certiorari to the Supreme Court. But so what?, the government says. We don’t consider the Second Circuit’s publication of the memo to have been an official disclosure. As far as we’re concerned, the government says, the memo is still secret.
Yes. The government is arguing that even though documents have been disclosed thanks to a court order, they haven't been disclosed because the DOJ didn't want them disclosed. That's the argument. Because the DOJ decide to do it itself, it may as well have never happened. Those requesting copies of this document in the future will be denied, even though the document has already been made public.

When government agencies fight for secrecy, logic is immediately sent to the front line of the battlefield to die a swift and brutal death. We've seen this sort of behavior far too frequently, whether it's the government ordering employees not to view leaked documents because they're somehow still "secret" or agencies withholding/redacting documents that have already been made public. Over-classification and default secrecy has brought the US government into the realm of surrealism... or at least, more so.

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Posted on Techdirt - 10 April 2015 @ 3:50am

Philly PD Declares All Drivers To Be 'Under Investigation' While Denying Request For License Plate Reader Data

from the the-REAL-wretched-hive-of-scum-and-villainy dept

We've all heard nasty things about the citizens of the apparently ironically-named "City of Brotherly Love." They'll boo Santa Claus. They throw batteries at opposing baseball players... and their own. And that's just the sports fans.

More bad news has just arrived on the "We're all not that terrible" PR front: according to Philly's police department, each and every car owner whose vehicle's license plate has had the misfortune of being scanned by the PD's license plate readers is some sort of criminal. Charges TBD.

The City of Philadelphia does not want you to know in which neighborhoods the Philadelphia Police Department (PPD) is focusing their use of powerful automatic license plate readers (ALPR), nor do they want disclosed the effectiveness (or lack thereof) of this technology, as they continue to fight a Declaration public records request filed in January with MuckRock News.

City officials argue in their response that every metro driver is under investigation, in an effort to exempt so-called criminal investigatory records from release under PA’s Right-to-Know Act:

Moreover, records “relating to or resulting in a criminal investigation” are exempt from disclosure under the Act, in particular “[i]nvestigative materials, notes, correspondence, videos and reports.” 65 P.S. § 67.708(b)(16)(ii). Such individual license plate readings and accompanying information are investigative materials that relate to individual criminal investigations, and, as your request indicates, these investigations may result in vehicle stops, arrests, or other police actions. Therefore, the individual license plate reading data is exempt from disclosure under the Act.
Investigative reporter Dustin Slaughter and The Philly Declaration have been battling the city for access to two weeks of raw ALPR output and, after multiple appeals, have been told every scan is exempt because every scan is part of a criminal investigation. This bizarre claim echoes the Los Angeles Police Department's public records request-thwarting declaration: all scans are, and always will be, tied to investigations.

The Declaration is seeking this data to see if deployment patterns signal any sort of bias or prejudicial treatment. What it has managed to pry free from law enforcement are the following facts: At least 10 ALPRs are in steady use. Non-hit data is retained for a year. Data actually related to investigations is held indefinitely. (Which would mean -- if the PD's stated logic holds -- that all scans are held indefinitely...)

The PD did hand over some summary data "pertaining to the time period requested," but it must have grabbed the wrong figures or misread Dustin Slaughter's request. He asked for data for a two-week period (Jan. 1-14, 2015). These are the numbers the PD handed over.
Number of Tags Read: 22,810,687
Terror Watch Reads: 77
Stolen Autos Recovered: 420
Stolen Plates Recovered: 23
Felony Arrests Made: 19
Misdemeanor Arrests Made: 9
Total Read Hours ALPR Fleet: 81,197
While it's theoretically possible 22 million plates could be scanned in two weeks, there's no way the Philly PD racked up 81,197 read hours during that time period, even if distributed across multiple vehicles. If this is a two-week period summary, the PD would need 241 units running 24 hours a day to hit the quoted "read hours."

But even if these numbers are a lifetime summary of the the ALPR program, they're still pretty impressive… at least in terms of scanning efficiency.
The department launched its ALPR program in or around 2011, according to Newsworks’ reporter Tom MacDonald.
This means the department is raking in around 7 million scans per year. On the other hand, if 22 million scans have only generated 19 felony arrests, you have to start wondering about the return-on-investment -- something that doesn't exactly back up Commissioner Charles Ramsey's claim that the ALPRs are "highly effective crime fighting tools." While it's nice to see the department is recovering around 140 stolen vehicles every year, it's a bit more disheartening to hear that it's only led to 28 total arrests -- especially when it considers every single one of these 22 million scans to be part of criminal investigations.

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Posted on Techdirt - 9 April 2015 @ 1:59pm

Supreme Court Says Lifetime GPS Monitoring Of Sex Offenders May Be Unconstitutional

from the slowly-restoring-the-Fourth dept

Most people would agree that cops slapping a GPS device on a suspect's vehicle for months or years at a time would have Fourth Amendment implications. It's often the length of the intrusion that has bothered courts the most (and mostly at state level, not federal), not the initial surreptitiousness of the GPS placement. Once it starts resembling a long-term tracking of a person's movements, some courts (including the Supreme Court) have declared a warrant requirement should be in place.

When it comes to tracking recidivist sex offenders for the rest of their lives, most people -- and most courts -- don't see this as much of an issue. Both involve the long-term tracking of individuals, but more people can stomach the idea of permanent tab-keeping on known sex offenders than on people only suspected of criminal activity.

The context matters -- at least in terms of how much of the population views the potential intrusion. But context doesn't matter when it comes to the Fourth Amendment, as the US Supreme Court recently ruled.

If the government puts a GPS tracker on you, your car, or any of your personal effects, it counts as a search—and is therefore protected by the Fourth Amendment.

The Supreme Court clarified and affirmed that law on Monday, when it ruled on Torrey Dale Grady v. North Carolina, before sending the case back to that state’s high court. The Court’s short but unanimous opinion helps make sense of how the Fourth Amendment, which protects against unreasonable search and seizure, interacts with the expanding technological powers of the U.S. government.
What's interesting about this recent unanimous ruling is that it extends Fourth Amendment protections to convicted criminals, rather than just to suspected criminals. It's also a very short opinion -- partially due to the lack of dissent -- that gets straight to the heart of why the lower court's decision was wrong, starting with its rejection of the ruling in US v. Jones.
The only explanation provided below for the rejection of Grady’s challenge is the quoted passage from State v. Jones. And the only theory we discern in that passage is that the State’s system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment. That theory is inconsistent with this Court’s precedents.
The State further argued that the Jones decision did not apply because the monitoring program is civil in nature, rather than criminal. The Supreme Court corrects this misconception.
It is well settled,” however, “that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations,” Ontario v. Quon, 560 U. S. 746, 755 (2010), and the government’s purpose in collecting information does not control whether the method of collection constitutes a search. A building inspector who enters a home simply to ensure compliance with civil safety regulations has undoubtedly conducted a search under the Fourth Amendment.
More ridiculously, the State tried to claim that a lifetime monitoring program may not actually collect information about the subject's movements and whereabouts -- a non-conclusion it reached by dumping the burden of proof on the plaintiff. This, too, is treated harshly by the Justices.
Without evidence that it is acting to obtain information, the State argues, “there is no basis upon which this Court can determine whether North Carolina conducts a ‘search’ of an offender enrolled in its SBM program.” Ibid. (citing Jones, 565 U. S., at ___, n. 5 (slip op., at 7, n. 5) (noting that a government intrusion is not a search unless “done to obtain information”)). In other words, the State argues that we cannot be sure its program for satellite-based monitoring of sex offenders collects any information. If the very name of the program does not suffice to rebut this contention, the text of the statute surely does:

“The satellite-based monitoring program shall use a system that provides all of the following:

“(1) Time-correlated and continuous tracking of the geographic location of the subject . . . .
“(2) Reporting of subject’s violations of prescriptive and proscriptive schedule or location requirements.” N. C. Gen. Stat. Ann. §14–208.40(c).

The State’s program is plainly designed to obtain information. And since it does so by physically intruding on a Cite as: 575 U. S. ____ (2015) 5 Per Curiam subject’s body, it effects a Fourth Amendment search.
While the Supreme Court didn't go so far as to rule all such tracking programs as Fourth Amendment searches, it did vacate the state Supreme Court's decision and makes it clear that lower courts are to address this issue, rather than gloss over potential Fourth Amendment ramifications.

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Posted on Techdirt - 9 April 2015 @ 11:35am

Former Prenda Lawyer Hit With A $50,000 Counterclaim In ADA Shakedown Lawsuit

from the trolling-for-ADA-dollars dept

Late in 2013, Paul Hansmeier, formerly of Prenda Law's Legal Buffoonery on Wheels Copyright Death Suicide Squad, realized that participating in a multi-jurisdictional legal train wreck had left him oddly unfulfilled. If the promise contained in his law degree was ever to be fulfilled, he would need to reassess his shakedown-focused lawyering.

After an indeterminable amount of thought, Hansmeier apparently arrived at the conclusion that -- unfulfilled promise or no -- he was really only good at one thing: shaking people down. And, sadly, he wasn't even all that great at that. But "sue what you know," as they say, and Hansmeier went about rebranding himself as a Champion of the Weak and Underprivileged.

No longer would he be throwing shaky demand letters and even shakier lawsuits at Household Members Voted Most Likely To Download Porn by the loose confederation of shakedown artists d/b/a An Actual Law Firm ("Come see our letterhead!"). That was the old Paul Hansmeier.

The new Paul Hansmeier would instead be throwing shaky lawsuits and demand letters at any company whose towel racks were located more than 32" above the ground or whose entry threshold was a ¼" above the legally-mandated height. The smaller the company the better, as they rarely even bothered to show up in court and would instead settle for a small fee.

The new Paul Hansmeier's operations were so efficient he could barely keep himself stocked in A4. Filings were submitted so fast not even the plaintiffs were aware they were listed as plaintiffs. And it was working, to a limited extent. Hansmeier was able to knock over a few mom-and-pop businesses for a few grand each. But now he's run into Kahler Hotels, which not only isn't interested in his ADA shakedown claims, but is countersuing him for $50,000+. (h/t to Dan Browning of the Minneapolis Star-Tribune)

In its response to Hansmeier's complaint, Kahler denies a majority of the allegations before moving on to its own complaints.


1. Defendants are owners of real property located in Rochester, Minnesota.

2. Plaintiffs filed and served the instant action alleging violations of the Americans with Disabilities Act, violation of the Minnesota Human Rights Act and unfair discrimination.

3. Plaintiffs have an ulterior purpose in pursuing the claims set forth in their Complaint.

4. Plaintiffs’ Complaint misuses and perverts the purpose of a civil action.

5. As a direct and proximate result of Plaintiffs’ abuse of process, Defendants have sustained damages in excess of $50,000.


6. Defendants incorporate in this paragraph the allegations set forth in Paragraphs 1 through 5 as though they were fully set forth herein.

7. The Plaintiffs are engaged in a civil conspiracy to accomplish some concerted action, which injures Defendants.

8. The Plaintiffs did commit, and executed certain acts in pursuance of certain torts as previously delineated against the Defendants.

9. That as a result of the Plaintiffs’ tortious conduct alleged herein, Plaintiffs did conspire and agree to commit such acts.

10. As a direct and proximate result thereof, Defendants have sustained damages in excess of $50,000.

WHEREFORE, Defendants pray for entry of judgment as follows:

1. Plaintiffs take nothing by their Complaint as alleged;

2. Defendants are awarded damages in excess of $50,000 together with interest, costs, disbursements and attorney’s fees; and

3. The court order such further relief as it deems just and equitable.
Whether or not the counterclaims (which are really, really vague) hold up remains to be seen, but this motion should give Hansmeier second thoughts about trolling this particular venue for easy ADA cash.

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Posted on Techdirt - 9 April 2015 @ 10:33am

Baltimore PD Has Deployed Stingray Devices Over 4,300 Times, Instructed By FBI To Withhold Info From Courts

from the 'to-sever-and-deflect' dept

Say what you will about the Baltimore PD and its cell tower spoofers (like... "It would rather let accused criminals go than violate its [bogus] non-disclosure agreement with the FBI…" or "It hides usage of these devices behind pen register/trap and trace warrants and then argues the two collection methods are really the same thing…"), but at least it's making sure the hundreds of thousands of dollars it's spent on the technology isn't going to waste.

On Wednesday, Baltimore police Det. Emmanuel Cabreja said the department has deployed the device, called Hailstorm, and similar technology about 4,300 times since 2007.
As the AP notes, the number of deployments admitted to here is the largest ever made public. This doesn't necessarily mean the rate of usage (more than once a day, on average) is out of the ordinary, however. Thanks to the very restrictive non-disclosure agreement the FBI forces law enforcement agencies to sign (while falsely claiming "the FCC made us do it!"), information on cell tower spoofers has very rarely been disclosed.

Det. Cabreja confirmed the ultra-restrictive terms of the FBI's NDA, which forbids law enforcement agencies from producing any information on Stingray devices, no matter who's asking for it.
Cabreja said under questioning from defense attorneys that he did not comply with a subpoena to bring the device to court because of a nondisclosure agreement between the Baltimore police and the Federal Bureau of Investigation.

“Does it instruct you to withhold evidence from the state’s attorney and the circuit court of Baltimore city, even if upon order to produce?” asked defense attorney Joshua Insley.

“Yes,” Cabreja replied, saying he spoke with the FBI last week about the case.
There's nothing quite like hearing confirmation that two law enforcement agencies worked together to withhold information from a party being prosecuted by directly violating a court order. But it gets even better. The Baltimore PD's NDA was made public, and it shows the State's Attorney's office signing off on withholding Stingray information from judges and defendants, as well as agreeing to toss cases if exposure seems unavoidable. In contrast, the Erie County Sheriff's Department's agreement obtained by the NYCLU only contained signatures from law enforcement officials.

The courts -- at least in Baltimore -- seem to be tiring of this secrecy. Baltimore judge Barry Williams has previously questioned the Baltimore PD's citation of its non-disclosure agreement with the FBI, with one memorably pointing out that the PD "doesn't have a non-disclosure agreement with this court." Unfortunately, if the Baltimore PD prioritizes its NDA over its obligation to obey court orders and turn over requested evidence, then it does actually have an NDA "with the court," albeit one the court never agreed to. If the FBI says Stingray info isn't going to be turned over -- no matter who's asking for it -- that information will remain hidden, even if it means tossing criminal cases.

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Posted on Techdirt - 8 April 2015 @ 9:02pm

[Updated] Employees Caught Throwing Away Thousands Of Records They Were Supposed To Be Archiving For The US Government

from the file-under:-wastebasket dept

[Update: Amy Rubenstein of has pointed out a few inaccuracies within this post and I have corrected information as needed. Some claims made are still open for debate, so rather than strike statements that are less than wholly resolved, I have added Rubenstein's statements directly after these sentences.] has long been a government contractor, converting millions of hard copy records into electronic files. In conjunction with the National Archives & Records Administration (NARA), it has performed monumental tasks like indexing and scanning all US Census records from 1790 through 1930. Or has it?

The private company operates with minimal oversight and its relationship with the NARA is a "closely-guarded secret." [Rubenstein says's archival work is overseen by "government employees and monitors." This would suggest more oversight than Matthew M. Aid -- intel historian and NSA expert -- asserts there is in his introduction to the news article quoted here. Rubenstein made no statement concerning the "closely guarded" secrecy of's relationship with the NARA.] This lack of accountability has naturally resulted in, shall we say, lackluster efforts from its employees. (via Unredacted)

An employee of who was working at the federal records center in north St. Louis County was fired for allegedly throwing out draft-card information, a federal administrator said.

Bryan McGraw, director of the National Personnel Records Center, said Friday that his staff recovered all the papers, some of them from a trash can. The incident on March 12 prompted the federal agency to halt contract work by Ancestry Inc., which operates as, at St. Louis and four other sites.
The currently-on-hold project involved scanning in 49 million draft records. Apparently, an employee found it easier to satisfy his/her supervisor to hit quotas by dumping files in the nearest trashcan… or glove? [Rubenstein says does not "hand out quotas." It monitors employee efficiency by "tracking average scanning output," but does not issue quotas directly to its employees.]
McGraw said the employee apparently had been warned about productivity by his supervisor and tried to dispose of a pending stack of supplemental papers that had been attached to individual draft cards. McGraw said another person found some of the records on the employee’s desk and others stuffed into a latex glove in a trash can.
This isn't the first time's been caught destroying files it's supposed to be archiving. ['s Rubenstein points out that the company did not take over the archival efforts at this location until August 26, 2014. The incidents discussed here occurred in 2012, with the investigation finally wrapping up in 2014. I have amended the article title to reflect the fact that employees did NOT dispose of "thousands of records." According to Rubenstein, the number of records trashed in this recent incident was "slightly over 100. My apologies to for stating both incidents happened under's purview.] Last year, employees at the same location were caught disposing of thousands of records.
National Personnel Records Center workers here dumped, stashed or otherwise destroyed 4,000 records of individual federal employees, the head of the National Archives revealed in a memo this week.
That alone would be bad enough, but the documents the St. Louis Post-Dispatch acquired suggested that the problem had been ongoing for years.
A July 30, 2012, letter from the Office of Inspector General said that as the old records center facility in Overland was being decommissioned in 2011, employees found documents hidden in pillars and stuffed in the space between the floors and the lowest shelves.
This finding -- along with the recovery of supposedly-archived documents in the woods [!] outside of Alton, Missouri, led to the NARA contacting 132 veterans to inform them that their personal information may have been exposed. It did not, however, lead to the pulling of contracts from [See above note about's takeover date.] Sentences were handed down to two employees -- one of whom threw away or destroyed 850 of the 1,200 records he'd been assigned. Others were allowed to resign rather than face punishment for their actions. The exposure of's carelessness resulted in little more than the NARA's Inspector General suggesting someone should do something about maintaining the integrity of the records entrusted to the commercial service.

This isn't the full extent of's abuse in relation to its federal archival efforts. Despite not being the true "owner" of the documents and the information contained therein, the company has done everything from issuing bogus DMCA takedown notices on by-default public domain records to locking up US government-produced records behind paywalls. As to the latter, it claims it was done for "security reasons," in order to prevent Social Security numbers of the recently-deceased from being exploited by identity thieves. What's spokesperson failed to mention in public statements is that Congressional pressure forced the redaction of Social Security numbers. Moving the records behind a paywall was just a fortuitous byproduct of its earlier careless exposure of SSNs -- a decision made for purported "security" reasons but one that allowed it to monetize publicly-funded, public domain records.

The issue here is the lack of oversight. Private companies often provide essential services to the government, often at a fraction of the cost of the government performing the work itself. But these government agencies need to be closely watching their hired help and to react more quickly, and with more severity, when the relationship is abused -- on either end.'s work is essential to the establishment of a permanent home for indexed government records. Unfortunately, the oversight needed to prevent the sort of behavior exhibited here isn't in place and that's going to create holes in the public record and prevent from being considered a trustworthy repository of public information. [As noted in updated sections above, is monitored by government employees. Obviously, the oversight has a few flaws, but there is some form of oversight in place.]

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Posted on Techdirt - 8 April 2015 @ 12:20pm

New Documents Show FBI Instructing Law Enforcement To Throw Out Cases Rather Than Give Up Info On Stingray Use

from the in-order-to-ensure-the-public's-safety,-we-must-compromise-the-public's dept

Documents obtained by the New York ACLU (via a lawsuit, naturally) provide more details on the FBI's efforts to cover up usage of Stingray devices. Back in February, an FBI memo obtained by the Minnesota Star Tribune stated clearly that the agency required all public records requests for Stingray documents be routed through it.

This agreement between the FBI and the Erie County (NY) Sheriff's Department is even more restrictive. It opens up with the FBI repeating one of its lies in hopes of making the highly-restrictive agreement following it seem less like federal bullying and more like just one of those unfortunate byproducts of pesky regulation.

Consistent with the conditions on the equipment authorization granted to Harris Corporation by the Federal Communications Commission (FCC), state and local law enforcement agencies must coordinate with the FBI to complete this non-disclosure agreement prior to the acquisition and use of the equipment/technology authorized by the FCC authorization.
This paragraph is apparently included in every FBI/Stingray agreement and, according to the FCC, it's all a bunch of BS. The FCC may require coordination with the FBI prior to the purchase of Stingray equipment, but it does NOT require the signing of a non-disclosure agreement. Here's its reply to an FOIA requester seeking the text of this supposed FCC requirement.
We do not require that state and local law enforcement agencies have to complete one or more non-disclosure agreements with the Federal Bureau of Investigation prior to acquisition and/or use of the authorized equipment. We have no documents responsive to your request.
So, the FBI opens with a lie, and then moves on to instructing law enforcement agencies to lie about their Stingray usage... to damn near everybody.
In order to ensure that such collection equipment/technology continues to be available for use by the law enforcement community, the equipment/technology and any information related to its functions, operation, and use shall be protected from potential compromise by precluding disclosure of this information to the public in any manner including but not limited to: in press releases, in court, during judicial hearings, or during other public forums or proceedings.
The government wants law enforcement agencies to lie to the courts -- which includes lying to judges, prosecutors and defendants. Everyone is included. This is made even more explicit a few paragraphs later.
The Erie County Sheriff's Office shall not, in any civil or criminal proceeding, use or provide any information concerning the Harris Corporation wireless collection equipment/technology… beyond the evidentiary results obtained through the use of the equipment/technology including, but not limited to, during pre-trial matters, in search warrants and related affidavits, in discovery, in response to court ordered disclosure, in other affidavits, in grand jury hearings, in the State's case-in-chief, rebuttal, or on appeal, or in testimony in any phase of civil or criminal trial, without the prior written approval of the FBI.
In short: parallel construction. The Sheriff's Office can hand over the results of Stingray collections, but not divulge how it arrived at these results. If it's going to deploy a Stingray, it either needs to do it without a warrant, or mislead the judge on its search techniques when applying for one.

When not lying to judges, the Sheriff's Office will need to lie to defendants and their counsel. Most incredibly, the FBI instructs the law enforcement agency to directly disobey court orders, if it would mean turning over Stingray information.

If any of this seems unavoidable, our nation's top law enforcement agency encourages its colleagues to toss out criminal prosecutions rather than risk exposing Harris Technology's equipment.
In addition, the Erie County Sheriff's Office will, at the request of the FBI, seek dismissal of the case in lieu of using, or providing, or allowing others to use or provide, any information concerning the Harris Corporation wireless collection equipment/technology [...] if using or providing such information would potentially or actually compromise the equipment/technology.
With one caveat…
This point supposes that the agency has some control or influence over the prosecutorial process.
But what a caveat. This is the FBI stating that it assumes any law enforcement agency it enters into this agreement with can easily push prosecutors to drop cases. It naturally follows that this sort of influence would also allow law enforcement agencies to push questionable prosecutions forward, if so inclined.

If the law enforcement agency doesn't have that kind of pull, the FBI suggests they make rogue prosecutors sign on the dotted line as well.
Where such is not the case, or is limited so as to be inconsequential, it is the FBI's expectation that the law enforcement agency identify the applicable prosecuting agency, or agencies, for inclusion in this agreement.
And the lies being told by the Erie County Sheriff's Department have already been numerous. As the NYCLU points out, a court order for the deployment of the devices was obtained only once in the 47 incident reports returned as responsive documents -- which isn't what Sheriff Howard said when (mostly not) answering questions about his office's Stingray use last May:
Howard said the machines are used under "judicial review" in all criminal matters.
Well, obviously not. And for that matter, the Sheriff's Office isn't performing much oversight on its own. The NYCLU requested several more Stingray-related documents, including department policies, warrant applications, agreements with communications providers and records concerning the technology's use in investigations. None of these requested documents were withheld. They simply did not exist. The NYCLU sees this as extremely odd:
This leaves us puzzled. Either the $200,000 device is just sitting around somewhere without being used or the agency is using the device without creating and maintaining records.
The latter is more probable, especially in light of the FBI's restrictive non-disclosure agreement. There's no better way to avoid violating that agreement than simply not creating any records that might somehow find their way to the many venues the FBI has listed as off-limits.

What it all boils down to is this: the FBI believes it is more important to protect law enforcement technology than protect the public. It says toss out prosecutions if it might compromise Stingray specifics and actively withhold information from every other participant in the justice system -- from defendants seeking information in discovery all the way up to every judge, at every level, presiding over these cases. The first potentially puts dangerous criminals right back out on the street. The latter guts the protections built into the system. Neither of these are done in the public's interest, and as far as these documents go, the public is way, way down on the FBI's list of priorities. The same goes for law enforcement agencies that willingly sign these agreements.

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