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List of blogs started with enthusiasm, which now mostly lie dormant:

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Posted on Techdirt - 18 January 2018 @ 3:23am

Appeals Court Says Accessing Data In A Way The Host Doesn't Like Doesn't Violate Computer Crime Laws

from the if-access-is-still-permitted,-the-access-process-is-irrelevant dept

The Ninth Circuit Court of Appeals has ruled [PDF] that accessing publicly-accessible info in a way the hosting entity has said isn't permissible isn't a violation of the law. In this case, it's a couple of laws, since Oracle's bid to shut down a competitor involves two different states and two different computer crime laws.

Oracle sued Rimini Street alleging a bunch of computer law-related violations after it continued to harvest data without Oracle's explicit permission. The EFF, which filed a brief in this case backing Rimini Street, breaks down the details of the alleged violation.

Oracle v. Rimini involves Oracle’s terms of use prohibition on the use of automated methods to download support materials from the company’s website. Rimini, which provides Oracle clients with software support that competes with Oracle’s own services, violated that provision by using automated scripts instead of downloading each file individually. Oracle sent Rimini a cease and desist letter demanding that it stop using automated scripts, but Oracle didn’t rescind Rimini’s authorization to access the files outright.

After ceasing/desisting for about a year, Rimini went back to automated downloading, allowing it to provide faster service for its customers. Oracle's decision to continue to grant access to Rimini Street is what ultimately undoes its case. It tried to use two different states' laws (Nevada and California) to force Rimini to go back to the old, slow, "permissible" downloading protocol. A jury found Rimini in violation of these laws, but the Appeals Court does not agree.

We hold that taking data using a method prohibited by the applicable terms of use, when the taking itself generally is permitted, does not violate the CDAFA. Because the same reasoning applies to the NCCL claim, we reverse the judgment as to both claims.

Oracle obviously disapproved of the method— automated downloading—by which Rimini took Oracle’s proprietary information. But the key to the state statutes is whether Rimini was authorized in the first instance to take and use the information that it downloaded.

That strikes down the violations alleged. It still leaves Oracle with a substantial award on its copyright infringement claims, but it will "only" end up with $22 million in damages instead of the $27 million awarded by the lower court.

This is a good decision that protects automated access of publicly-available information. Plenty of useful web/data tools rely on automation. Allowing companies to undercut competition and discourage innovation with bad applications of worse laws isn't the answer. With very little legislative movement towards rewriting bad laws like the CFAA, it's up to the courts to sort out these conflicts. In the meantime, companies like Oracle will continue to try to thwart competitors with lawsuits and criminal charges, rather than with better products and service.

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Posted on Free Speech - 17 January 2018 @ 10:42am

Psychiatrist Drops His Lawsuit Against Critic Who Left Wordless One-Star Review

from the but-the-damage-is-already-done dept

It looks like the psychiatrist who sued a pseudonymous reviewer over a wordless one-star review has finally decided to stop digging this particular hole. Since news broke of psychiatrist Mark Beale's defamation suit against "Richard Hill," Beale has amassed a great many one-star reviews by non-patients. There's no telling if Beale will be seeking to file an en masse lawsuit against these Does (taking a page out of copyright trolls' handbooks), but this cannot possibly be what he envisioned when he decided the original one-star review was worth suing over.

Unbelievably, Beale managed to convince a judge to allow him to seek the real identity of "Richard Hill" in order to continue with his lawsuit. Not only did the judge give enough credence to Beale's argument that a one-star review was per se defamatory, but the judge granted the unmasking order, calling a review of business "commercial speech" -- something given less protection under the First Amendment.

University of South Carolina professor Eric Robinson has been keeping an eye and the local docket and sends us news that Beale has dismissed the case. It's a voluntary move [PDF] on Beale's part, but it's also without prejudice, leaving the path clear for Beale to refile.

But it doesn't look like Beale will amend this suit or refile, even if he's found a judge willing to bypass First Amendment protections to unmask a critic who left nothing more than a wordless single-star review. At least not against a Doe defendant. The unmasking did happen and Beale's request [PDF] to view the information turned over under seal to his lawyer was granted [PDF] by the judge. Soon after that, the request for dismissal [PDF] was filed.

This means Beale now knows who "Richard Hill" actually is. He could have stuck with the lawsuit, amending it to include the Doe's real name and serving the defendant. But he sought dismissal instead. Does that mean Beale found "Richard Hill" was actually someone he didn't want to take to court, or worse yet, someone he already knew? Remember, his original lawsuit contained some very curious assertions to bolster his allegations, the weirdest being that his mother thought "someone she knew" was trying to ruin his reputation.

Or it could be Beale discovered Hill was an actual patient of his, despite his assertions otherwise. (His lawsuit claimed two things: "Richard Hill" was a fake name and "Richard Hill" was not a patient of his. These two statements are tough to make definitively, but Beale asserted both simultaneously in his lawsuit.) Maybe he didn't feel like pursuing an unhappy patient in court, especially after he had already sworn otherwise in his complaint. Or maybe Beale is planning some sort of offline, out-of-court battle against the unmasked critic -- something that would be unfortunate but at least wouldn't allow this particular judge to continue his attack on the First Amendment.

That makes this cut-and-run a bit more interesting than it would normally be, as litigation has ceased after discovery of the only thing Beale appeared to be missing from his suit: a defendant he could serve. Equally problematic is there's a judge in the South Carolina court system where locals can take their grievances about anonymous commenters and expect unmasking to proceed, no matter how weak their arguments are.

Whatever the future holds for Beale and his litigious moves is unknown, but there's no undoing the damage Beale did to his own reputation by trying to make a case out of a one-star review. Had he done nothing, it would have been carried away by internet flotsam with zero damage to his career or future prospects. Instead, Beale could not let a one-star, wordless review go unanswered, and now his Google results are full of them.

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Posted on Techdirt - 17 January 2018 @ 9:30am

Quack Doctor Treating Cancer With Baking Soda Sues Skeptic For Questioning Her Cancer Treatment Methods

from the playing-the-'batshit-crazy-German-law'-wildcard dept

Very little attracts legal threats faster than someone calling a quack a quack. If it energizes tap water like a duck and promotes off-label use of dangerous drugs like a duck, it's probably a duck. The legal history of "alternative" medical practices is littered with cease-and-desist orders and failed lawsuits. The legal present is just as cluttered.

Blogger/skeptic Britt Hermes could have gone down the road to quack infamy. She was on the "naturopathic" career path when she came to the realization the whole things was horseshit. Rather than exploit the horseshit to make sick people sicker, Hermes decided to let the world know just how much horseshit her former colleagues were peddling.

One of her targets is Colleen Huber, an Arizona naturopath who is in the process of duping cancer patients out of their health, if not their lives. Here's what Hermes has to say about Huber:

Colleen Huber does not use conventional chemotherapy or radiation. She treats cancer with intravenous baking soda, vitamin C, and other “natural” substances, while instructing patients to cut out sugar from their diets. She thinks sugar feeds cancer.

Steven Novella, who has stared down lawsuits filed by angry quacks, has more to say about Huber's dubious treatments and even more dubious "science."

[Huber's clinic] specifically states that they do not treat their patients with chemotherapy or radiation. Further, they appear to discourage standard treatment as evidenced by this statement on their website:

Your best opportunity is to begin the natural treatments before the conventional treatments (chemo, radiation, etc.) sicken and weaken you and ultimately strengthen the disease. Many of the patients who opted for only natural treatments never even got sick and saw no side effects.

So in their view chemotherapy strengthens the cancer. Meanwhile they recommend implausible treatments that are not evidence-based. David Gorski has already done an excellent job reviewing the literature on vitamin C and cancer – bottom line, it doesn’t work.

Huber likes to claim her research backs up her outlandish claims. But as Hermes has pointed out, there's no way her research is ever going to be questioned, considering Huber's position gives her the power to grade her own papers.

Nowhere in any of her “research” that I could find did she write that she obtained written, informed consent from her patients/research subjects. Nor did she write that her “research” was approved by an Institutional Review Board (IRB) or was registered with These are fundamental ethical requirements for research on human subjects.

But don’t worry, Colleen Huber is a founding member of a naturopathic Institutional Review Board that has apparently approved her research. The board, which also oversees several other naturopathic organizations, including the Naturopathic Oncology Research Institution (NORI), was established in 2010, and from what I can tell, was registered with the FDA in 2013. This registration is legally required in order to approve research on human subjects. According to the IRB’s meeting minutes from November 8, 2013, the first study approved was a study on an herbal gel for cold sores. But Huber says she started her research in 2006…before her IRB was formed.

What comes next is unsurprising. (You did read the headline, right?) Huber didn't like having her horseshit exposed and sent a cease-and-desist to Hermes last fall. Hermes, secure in her conclusions and statements, ignored the C&D. Huber has now taken the next step and is suing Hermes for factually reporting on Huber's dubious… everything.

Arizona naturopath Colleen Huber is suing me in Germany for defamation over my opinions about her so-called natural cancer treatments and research. The lawsuit was filed in Kiel, Germany (where I live) on September 17th, 2017. This legal action came four weeks after Huber’s lawyers sent me a cease and desist letter that demanded I remove a blog post about Huber and pay Huber’s legal fees. My lawyer responded that allegations laid out in the letter were not correct and therefore, I would not comply. I believe Huber is attempting to stifle my right to freedom of speech with this SLAPP (strategic lawsuit against public participation).

The first sentence of Hermes' post spells trouble for the naturopath-turned-skeptic: Germany is not a great place to defend critical speech. Defamation is a criminal offense in Germany, rather than a civil offense. A lawsuit can result in criminal charges, fines, and prison sentences. Truth is still a defense against defamation claims, but somehow the German government still manages to secure over 20,000 defamation convictions every year. And, of course, there's no such thing as an anti-SLAPP law in Germany, meaning Hermes must foot the bill for legal fees defending herself from Huber's transparent attempt to silence a noisy critic.

Fortunately, Hermes has secured one of the best for her legal representation. Dr. Daniel Kötz comes highly recommended by none other than Marc Randazza and is the only European member of the First Amendment Lawyers Association. She has also set up a crowdfunding page for her defense against Huber's attempt to have "might" triumph over "right." Hopefully, this will be dispensed of cheaply and quickly and Huber can go back to having her "medical" practice thoroughly and factually disparaged by actual medical professionals and well-qualified skeptics.

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Posted on Techdirt - 16 January 2018 @ 3:24am

Washington State AG Sues Motel 6 For Handing Over Guest Registry Info To ICE

from the keep-it-in-your-proverbial-pants,-moteliers dept

At some point in the recent past, Motel 6 owners decided they were deputized law enforcement personnel. So what if people paid for a night's worth of uninterrupted sleep and expected that visits from federal and local officials would be kept to a minimum. These owners -- which the Motel 6 corporation takes great pain to point out are "independent" owner/operators -- have decided to ingratiate themselves with untrustworthy organizations like ICE… or the local PD.

Some Motel 6s decided to fax guest lists to police departments every night. Others decided they'd turn over every name that looked slightly non-Caucasian to ICE. In both cases, Motel 6 (the corporation) brought the hammer down, swearing it had never given franchisees the permission to turn guest lists into tip sheets for law enforcement. The post-facto corporate rollback wasn't enough for Washington's Attorney General. The state looked into local policies after hearing about rogue ICE relationships in Arizona. It found more of the same occurring in Washington, resulting in a state lawsuit against company for turning guests list into ICE fodder.

The hotel chain Motel 6 routinely gave federal immigration agents guest lists with personal information that it used to make arrests, according to a lawsuit filed on Wednesday by Washington’s attorney general.

At least six Motel 6 locations in the state provided the information to U.S. Immigration and Customs Enforcement agents — some on a near-daily basis — without any reasonable suspicion, probable cause or search warrants, the lawsuit charges. Agents would then single out guests by their national identity, at times circling “Latino-sounding” names on the list, according to the court complaint.

The lawsuit [PDF] requests an injunction preventing Motel 6 employees from passing on information to ICE agents without being provided with at least some legal reason to do (probable cause) by government agents. If this were filed at a federal level, it wouldn't likely find a sympathetic court. A Supreme Court decision overturning a Los Angeles statute granting law enforcement constant, unchallengeable access is about the only restriction on sharing guest lists with law enforcement.

The allegations the Washington AG raises are concerning, but they're not actually illegal... at least not under federal law.

Since at least 2015, Motel 6 has had a policy or practice of providing to ICE agents, upon their request, the list of guests staying at Motel 6 the day of the agents' visit. The guest lists included some or all of the following information for each guest: room number, name, names of additional guests, guest identification number, date of birth, driver's license number, and license plate number.

ICE's usual practice was to come to Motel 6's reception desk and request the guest list from the receptionist. The receptionist would print out the guest list and give it to the ICE agent, along with a "law enforcement acknowledgment form" for the agent to sign, acknowledging receipt of the guest list. The ICE agent would review the guest list and identify individuals of interest to ICE. Motel 6 staff observed ICE identify guests of interest to ICE, including by circling guests with Latino-sounding names.

On a number of occasions after reviewing the guest list, ICE agents arrested or detained Motel 6 guests.

Motel 6 trained its new employees to follow the practice described above to provide guest lists to ICE agents upon request, without requiring the agents to show any reasonable suspicion, probable cause, or search warrant for the guest registry information.

However, at the state level, this appears to be a violation of local statutes.

Motel 6's privacy policy also states that Motel 6 may disclose guest registry information to law enforcement agencies pursuant to a court order or in compliance with any applicable law, regulation, rule, or ordinance.

Under Article 1, § 7 of the Washington Constitution, motel guest registry information constitutes a private affair protected from disclosure without probable cause. Motel 6 guests in Washington have a reasonable expectation of privacy that their guest registry information will not be disclosed to ICE without probable cause.

Motel 6 guests in Washington also have a common law right to the privacy of their guest registry information.

This is where the State AG hopes to prevent Motel 6 from using guest lists for ICE bait: at the state level where guest registry info is given more privacy protections than other places in the nation. It seems like ICE shouldn't be too put out by having to show a little probable cause paperwork before it starts browsing registries, but the government doesn't roll like that. It would be pretty easy for Motel 6 to get out from under this lawsuit. All it has to do is tell Washington franchisees to knock it off. It's unclear what benefit Motel 6 receives from this possibly-illegal relationship with ICE. So why not just institute a policy that actually complies with local laws?

It certainly won't make ICE happy. No federal agency likes having to ask permission from judges to perform searches. ICE is not a party to this lawsuit, but I'm sure it will find some way to make its presence felt. It may argue the Fourth Amendment does not require warrants to access third party records. Hopefully, the court presiding over this will remind ICE (and Motel 6) state laws can provide more protection than the Fourth Amendment without damaging federal authority. The Fourth Amendment is the baseline. Everything else above that -- established at the local level -- is a completely legal bonus for the state's residents.

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Posted on Techdirt - 12 January 2018 @ 11:55am

Scammy Lawyer Award Company Sends C&D To Website For Pointing Out Its Scammy Behavior

from the when-u-find-the-truth-defamatory dept

Appealing to someone's ego is profitable. Lawyers of Distinction names many, many lawyers to its "distinction" list every year. Some people believe this actually means something. But it doesn't, as Kelsey Butchcoe explained late last year in a post for marketing blog Mockingbird. A lawyer getting a letter from Lawyers of Distinction announcing their selection to the vaunted "top 10%" is, in reality, getting nothing more than unsolicited marketing materials.

Following up with Lawyers of Distinction provides curious attorneys the opportunity to spend $425-775 annually to obtain plaques, "crystals," and backlinks to their law firm websites from LoD. Following up further, as Butchcoe did, also uncovers the fact Lawyers of Distinction's prestigious awards emanate from a UPS Store in Las Vegas, Nevada.

This post did not make Lawyers of Distinction happy. The "in-house counsel" of Lawyers of Distinction, "Jesse Brodsky ESQ," fired off an emailed cease-and-desist to Conrad Saam of Mockingbird, demanding Saam do some impossible things -- like take the threat seriously and remove the post "from the internet." The email is embedded below, but we'll quote it in full here because:

A. It's really short
B. It's really dumb
C. It closes with a threat ensuring the body of the email will never be taken seriously.

It has been brought to our attention that you published an article titled "When the Top 10% Means Nothing." In this article, you include which is defamatory toward Lawyers of Distinction, Inc.

Your article is actionable and we will be initiating lawsuits against the author individually, as well as Mockingbird Marketing if this post is not immediately removed from the internet. Your post is rife with false and misleading information regarding Lawyers of Distinction, Inc.

For instance, you refer to our offices as being in a strip shopping center, when in fact we have a corporate office in a traditional office building. This is merely a small example of your intent to knowingly publish false and defamatory information, which is meant to harm Lawyers of Distinction's reputation and economic well being, at the same time trying to create a pecuniary gain for your marketing company.

If this article is not removed from the internet on or before the close of business on October 10th, 2017, we shall file a lawsuit seeking appropriate actual, compensatory and punitive damages. You have been warned and placed on notice. Every day of delay in removing this article will increase the damages we shall be seeking. Please govern yourself accordingly.

Conrad Saam has broken down the best parts of the C&D at Mockingbird, not the least of which is the demand the post be "removed from the internet," as though that were a thing people could actually do. I'm sure Brodsky ESQ meant "delete it from the Mockingbird website" but that just doesn't sound as (vaguely) threatening (and completely unenforceable) as "delete it from the internet." Combine that with "govern yourself accordingly," and you have some poorly-written fluff blustering about noisily in hopes of being mistaken for saber-rattling.

Saam has not removed the offending post from Mockingbird nor the internet beyond. Equally unsurprising, Brodsky and his strip mall law office have not filed any lawsuits over the supposedly defamatory post. Saam did reach out for some legal advice before posting the C&D, asking Florida lawyer Brian Tannebaum if he should be concerned about this lawsuit threat.

Here's what Tannenbaum suggested Saam be worried about in the context of this angry email from Lawyers of Distinction's in-mall counsel:

If I were you, the thing I’d be worried about right now is what you are going to eat for breakfast. After that I’d start concerning myself with lunch and then plans for the weekend. I’d put worrying about what you wrote right below whether you are soon to run out of toothpaste.

Being threatened by a lawyer who speaks for an entity that sells plaques to narcissists is low on the list of things to be worried about. There's nothing remotely actionable in the post targeted by the C&D. Nor is there anything actionable is Saam's follow-up posts, which provide more details about LoD's inner workings, as well as successful attempts to get a chicken and a dog recognized as "Lawyers of Distinction." (This is not the first dog to receive top lawyerly accolades from Lawyers of Distinction.)

Anyone receiving unsolicited emails from LoD should immediately flag them as spam, because that's all they really are. Or, if so inclined, an attorney could imagine it to be something flattering, and plaster his website with as many meaningless accolades as possible, as this Cincinnati lawyer has. Searching for "lawyers of distinction" reveals a great many lawyers have chosen to republish LoD's meaningless announcements, press releases, and supposed "top 10%" designations. This doesn't prove Lawyers of Distinction is legitimate. All it proves is appealing to egos is guaranteed to separate fools from their money.

Lawyers of Distinction certainly seems like an easy way for lawyers to waste their money. It will apparently allow almost anyone (or anything) to claim membership in the "top 10%" of lawyers stratosphere -- and it will autobill recipients $425-775 annually should anyone desire some overpriced memorabilia commemorating the time they got suckered on the internet. The "top 10%" designation means nothing, except to those willing to part with a chunk of their money and reputation. The problem is unsuspecting people looking for representation might believe this "award" -- bought and paid for by an attorney -- actually signifies better-than-average lawyering. Those are the people taken in by "services" like these. Those paying for plaques are only victims of their own hubris.

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Posted on Free Speech - 12 January 2018 @ 10:40am

Trump's Personal Lawyer Sues Buzzfeed For Publishing Allegedly False Statements Written By Someone Else

from the tossing-around-federal-litigation-like-hand-grenades dept

Another day, another stupid lawsuit/legal threat emanating from the Trump offices. Trump's personal lawyer, Michael Cohen, has decided to rub up against the libel laws Trump so badly wants to "open up" by filing a ridiculous defamation lawsuit against Buzzfeed for publishing the Christopher Steele dossier compiled by Fusion GPS. Fusion is also being sued, but the addition of Buzzfeed strips the lawsuit of much of its credibility.

Cohen has every reason to dislike what was said about him in the dossier. According to the Fusion GPS opposition report, Cohen was supposedly instrumental in hooking the president's people up with high-ranking Russian officials during the presidential campaign. Cohen maintains all of these allegations are false. From the lawsuit [PDF]:

Under this report, Plaintiff is alleged to have an inappropriate and possibly criminal relationship with the Russian government stemming from his wife's familial relations with a Russian property developer. None of these allegations are true. Plaintiff does not have any relationship with Russian officials and his father-in-law is not a leading property developer in Moscow; he has only been to Russia once. In fact, Plaintiff's father-in-law does not even own a vacation home in Sochi, nor has he ever been there. Additionally, Plaintiff's wife was born in the Ukraine region and immigrated to the United States over forty (40) years ago; she has never been to Russia.

The dossier was published in full last January. In March, Cohen provided Buzzfeed with his passport, showing he had never traveled to the areas the report said he had. That should have been enough for Cohen, but he's decided to, at the very minimum, force Buzzfeed to defend itself against defamation claims up to a motion to dismiss.

The lawsuit goes on and on about allegations made in the report, each one supposedly provably false. Several paragraphs are devoted to quoting parts of the report, followed by Cohen's rebuttal of the report. Even a casual observer of defamation suits should be able to see the problem. The entity Cohen should be suing is Fusion GPS, and Fusion GPS only.

Cohen's lawsuit is largely made up of counterspeech. The best weapon against speech you don't agree with is more speech, delivered from your side. But using a federal lawsuit to engage in counterspeech doesn't do anything positive for the First Amendment. If Cohen wanted to rebut these allegations publicly, I'm sure there's no shortage of press outlets willing to make space for an op-ed piece by the president's personal lawyer. Cohen has instead decided to use the government to grant credence to his side of the story and is hoping to take home $100 million on top of whatever collateral damage he does to the First Amendment.

Cohen has to stretch to make Buzzfeed the target of a lawsuit complaining about things that weren't said by anyone at Buzzfeed.

Defendants knew that the Dossier reports were false and/or acted with reckless disregard in determining whether the reports were true or false.

While it's true Buzzfeed thought the document might be sketchy, it did warn readers the dossier had not been verified and included errors. This is hardly "reckless" behavior. The dossier was definitely newsworthy. On top of that, government officials had already acted on information contained in the document, lending it further credence and adding to its public interest value. Buzzfeed's Ben Smith offered his defense of the document's public value (and implicit pedigree) at the New York Times. His statement goes right to the heart of Cohen's "reckless disregard" allegations:

When we published the dossier, we knew a lot: We knew that it had been written by the former head of the Russia desk at Britain’s main foreign intelligence agency, a man whose job had made him a leading source on Russian espionage. We knew that key members of the Senate — Harry Reid, the Nevada Democrat, and John McCain, the Arizona Republican — had acted on its contents. We had also learned that intelligence officials had briefed President Barack Obama and President-elect Trump on the dossier, and that the F.B.I. was already looking into it.

So, it's not as though some internet rando jammed a bunch of virtual papers through Buzzfeed's SecureDrop mail slot. This document had received vetting from government officials, many of which saw enough in it to move forward with investigations and Congressional hearings.

To be fair, Cohen is also suing Fusion GPS. But adding Buzzfeed to the lawsuit serves zero purpose other than to hassle it for ensuring the document ended up in the public's hands. This rolls back a lot of the fairness I so recently extended Cohen. New York has a severely-restricted (and mostly useless) anti-SLAPP law so Buzzfeed won't be able to turn around and demand a refund from Cohen for wasting its time.

Cohen clearly doesn't like what was said about him in the Fusion report. Great, sue Fusion. Sue Christopher Steele. But don't make this about a third party that did nothing more than publish a document of public interest with fair warning to readers about the dubious veracity of the contents.

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Posted on Free Speech - 12 January 2018 @ 9:26am

For The Second Time In A Week, German Hate Speech Laws Results In Deletion Of Innocent Speech

from the hate-speech-law-takes-on-law-of-unintended-consequences;-loses-immediately dept

It's going to be a fun few months for German government officials as they run from one embarrassing fire to the next, hoping to keep their newly-minted "hate speech" law from being scrapped for sheer ineptitude.

The law went live January 1st, promising hefty fines for social media companies if they don't remove poorly-defined "hate speech" fast enough. This has resulted in exactly the sort of side effects the law's critics promised. The only remarkable thing is how fast the side effects have presented themselves.

Within 72 hours of the law's debut, a satirical post mocking a German's politician's bigoted words was deleted by Twitter in an apparently proactive move. The 24-hour window for content removal is backed by €50m fines for each violation. Given the amount of money on the line, it's no surprise social media companies are trying to stay ahead of Germany's government when it comes to regulating speech. It's also no surprise Twitter, et al are relying heavily on users to help narrow down which questionable posts it should be looking at.

You can already see where this is headed. For the second time in less than a week, Twitter has pulled the trigger on an innocent tweet. And, again, the entity whose tweet has been deleted is big enough to attract the attention of German lawmakers.

Germany signalled on Monday it was open to amending a controversial law combatting online hate speech as the justice minister fell victim to the rules he himself championed.

The move came after Twitter deleted a post by Heiko Maas dating back to 2010 before he was appointed justice minister, in which he called a fellow politician "an idiot".

The post was deleted after Twitter received several complaints, fuelling a simmering row over the new regulation which critics say stifle freedom of speech.

Proponents of laws targeting speech tend to believe the law will operate in a pristine vacuum where only the purest of intentions will be honored. Anyone operating outside of this mindset knows exactly how speech-targeting laws work in real life: exactly like this, where an internet dogpile resulted in the deletion of a tweet that didn't even meet the expansive definitions of hate speech handed down by the German government.

As a result of multiple, high-profile false positives, many German politicians are now complaining about the law and demanding it be altered or struck down. But even with political sentiment swiftly turning against the just-enacted law, the German government will apparently take a wait-and-see approach to touching up the law.

Government spokesman Steffen Seibert said an evaluation would be carried out within six months to examine how well the new law was working.

The way things are going, it's doubtful the law will make it six weeks before being clawed back for a rewrite.

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Posted on Techdirt - 12 January 2018 @ 3:23am

FBI Says Device Encryption Is 'Evil' And A Threat To Public Safety

from the thanks,-g-men.-we'll-take-it-under-advisement. dept

The FBI continues its anti-encryption push. It's now expanded past Director Christopher Wray to include statements by other FBI personnel. Not that Chris Wray isn't taking every opportunity he can to portray personal security as a threat to the security of the American public. He still is. But he's no longer the only FBI employee willing to speak up on the issue.

Wray expanded his anti-encryption rhetoric last week at a cybersecurity conference in New York. In short, encryption is inherently dangerous. And the FBI boss will apparently continue to complain about encryption without offering any solutions.

The Federal Bureau of Investigation was unable to access data from nearly 7,800 devices in the fiscal year that ended Sept. 30 with technical tools despite possessing proper legal authority to pry them open, a growing figure that impacts every area of the agency's work, Wray said during a speech at a cyber security conference in New York.

The FBI has been unable to access data in more than half of the devices that it tried to unlock due to encryption, Wray added.

"This is an urgent public safety issue," Wray added, while saying that a solution is "not so clear cut."

The solution is clear cut, even if it's not workable. What Wray wants is breakable encryption. And he wants companies to do the work and shoulder the blame. Wray wants to be able to show up at Apple's door with a warrant and walk away with the contents of someone's phone. How that's accomplished isn't really his problem. And he's not intellectually honest enough to own the collateral damage backdoored encryption would cause. But that's how Wray operates. He disparages companies, claiming encryption is all about profit and the government is all about caring deeply for public safety. Both statements are dishonest.

But Wray isn't the only FBI employee taking the move to default encryption personally. And the others commenting are taking the rhetoric even further, moving towards personal attacks.

On Wednesday, at the the International Conference on Cyber Security in Manhattan, FBI forensic expert Stephen Flatley lashed out at Apple, calling the company “jerks,” and “evil geniuses” for making his and his colleagues' investigative work harder. For example, Flatley complained that Apple recently made password guesses slower, changing the hash iterations from 10,000 to 10,000,000.

That means, he explained, that “password attempts speed went from 45 passwords a second to one every 18 seconds,” referring to the difficulty of cracking a password using a “brute force” method in which every possible permutation is tried.


“At what point is it just trying to one up things and at what point is it to thwart law enforcement?" he added. "Apple is pretty good at evil genius stuff."

This is great. Apple is now an "evil genius" because it made stolen iPhones pretty much useless to thieves. Sure, the device can be sold but no one's going to be able to drain a bank account or harvest a wealth of personal information. This was arguably in response to law enforcement (like the FBI!) complaining cellphone makers like Apple were assholes because they did so little to protect users from device theft. And why should they, these greedy bastards? Someone's phone gets stolen and the phone manufacturer now has a repeat customer.

Encryption gets better and better, limiting the usefulness of stolen devices and now Apple is an "evil genius" engaged in little more than playing keepaway with device contents. Go figure.

The FBI's phone hacker did have some praise for at least one tech company: Cellebrite. The Israeli hackers were rumored to have helped the FBI get into San Bernardino shooter Syed Farook's phone after a failed courtroom showdown with Apple. The FBI ended up with nothing -- no evidence on the phone and no court precedent forcing companies to hack away at their own devices anytime the government cites the 1789 All Writs Act.

Now we're supposed to believe device makers are the villains and the nation's top law enforcement agency is filled with unsung heroes just trying to protect the public from greedy phone profiteers. I don't think anyone believes that narrative, possibly not even those trying to push it.

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Posted on Techdirt - 11 January 2018 @ 3:31pm

Appeals Court OKs F-Bombs For Federal Trademark Protection

from the at-long-last,-adults-being-treated-like-adults dept

The Supreme Court's decision in The Slants' trademark case is already beginning to pay off for trademark seekers whose applications were determined to be a bit too racy for the Trademark Office's (subjective) taste. Section 1052(a) of the US Code used to forbid the registration of trademarks that "disparaged" other persons or groups or anything the USPTO found to be "immoral or scandalous."

That's all gone now, thanks to the Supreme Court, which found this restriction to registrations unconstitutional. The Supreme Court struck down the language limiting "disparaging" trademark registrations. The Federal Circuit Court of Appeals has just struck down the remaining limiting language ("immoral or scandalous"), allowing clothing brand FUCT to finally secure federal trademark protection.

Marc Randazza breaks down the entire ruling at Popehat. Here are some of the highlights of the decision [PDF]:

The Brunetti court [rejected] the government’s argument that the “immoral or scandalous” prohibition of Section 2(a) was aimed at commercial speech. The primary test for determining whether a mark is “immoral or scandalous” is if the general public would find the mark “shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable; . . . giving offense to the conscience or moral feelings; . . . or calling out for condemnation.” In re Fox, 702 F.3d 633, 635 (Fed. Cir. 2012). The court noted that this restriction is aimed solely at the expressive content of trademarks, rather than their commercial source-identifying function, and necessarily involves moral value judgments. (Decision at 27.) The court could have stopped after this determination, since the government agreed that the “immoral or scandalous” portion of Section 2(a) could not survive strict scrutiny, but it went on to find that the restriction could not survive even intermediate scrutiny.

The decision takes even more pointed shots are the government's unavailing arguments later in the ruling.

The government’s interest in protecting the public from profane and scandalous marks is not akin to the government’s interest in protecting children and other unsuspecting listeners from a barrage of swear words over the radio in Pacifica. A trademark is not foisted upon listeners by virtue of its being registered. Nor does registration make a scandalous mark more accessible to children. Absent any concerns that trademark registration invades a substantial privacy interest in an intolerable manner, the government’s interest amounts to protecting everyone, including adults, from scandalous content. But even when “many adults themselves would find the material highly offensive,” adults have a First Amendment right to view and hear speech that is profane and scandalous.


Even if we were to hold that the government has a substantial interest in protecting the public from scandalous or immoral marks, the government could not meet the third prong of Central Hudson, which requires the regulation directly advance the government’s asserted interest. 447 U.S. at 566. As the government has repeatedly exhorted, § 2(a) does not directly prevent applicants from using their marks. Regardless of whether a trademark is federally registered, an applicant can still brand clothing with his mark, advertise with it on the television or radio, or place it on billboards along the highway. In this electronic/Internet age, to the extent that the government seeks to protect the general population from scandalous material, with all due respect, it has completely failed.

This doesn't end the battle. The government may decided to appeal this decision, lining up this portion of Section 2(a) for a review by the Supreme Court. Or, as Randazza points out, legislators could decide to ruin the registration of bad words for everyone with "for the children" legislation altering the contours of language eligible for trademark protection.

But, for the moment, the First Amendment triumphs over USPTO prudery. Let the F-bomb gold rush begin!

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Posted on Techdirt - 11 January 2018 @ 11:57am

FTC Takes Down Another Revenge Porn Site

from the an-apparent-impossibility-given-the-lack-of-a-federal-revenge-porn-law dept

There ought to be a law, say many people opposed to revenge porn. And so they craft laws with an eye on prosecution but not so much on the First Amendment, tending to treat collateral damage as acceptable so long as revenge porn site operators are criminally charged. But the proposed laws are more than bad, they're extraneous. Existing laws are still taking down revenge porn purveyors, as we've covered previously at this site.

The FTC has taken down another revenge porn site and secured a judgment against one of its operations, all without having to having to hack away at protected speech or undermine Section 230 immunity. -- a site "dedicated solely to revenge porn" -- has been targeted in an FTC complaint.

According to the complaint, visitors to can rate the videos and pictures they see and post comments about the victims. At various times, the site included victims’ full date of birth, personal email address, telephone number, and links to social media profiles, along with the intimate images.

The FTC alleges that the defendants were aware that many of the individuals did not agree to having their intimate images and personal information posted to As of December 2017, there were approximately 12,620 entries on the site, according to the complaint.

The complaint [PDF] contains extensive documentation of the site runners' activities, including charging people anywhere from $499 up to $2,800 for removal of pictures and information, as well as the site's operator creating a wholly (and admittedly) fictitious business entity to hide behind.

Defendant Applegate registered the domain through domain name registrar GoDaddy from November 2011 through at least June 2013. He provided GoDaddy the email address as his contact address.

In May of 2013, GoDaddy informed Defendant Applegate of reports of child exploitation and underage content on GoDaddy also informed Defendant Applegate that an investigator from an internet-crimes-against-children taskforce and a police detective were attempting to get in touch with the website operators.

Also in May 2013, Defendant Applegate changed the contact name provided to GoDaddy for the website to “Eun Kim” and changed the contact address to Singel 540, 1017 AZ Amsterdam, Netherlands, while leaving the contact email address as for a period of time. After GoDaddy inquired about this change, Defendant Applegate told GoDaddy in a message, “its [sic] not a company it’s a made up name for the address & [sic]; phone number in the Netherlands. The [expletive] domain is in my godaddy [sic] account.” Defendant Applegate then moved to a different registrar, Eurodns. He provided Eurodns the contact name “Eun Kim” and changed to be associated with the fictional business entity, Web Solutions B.V. He provided a contact address of Singel 540, 1017 AZ Amsterdam, Netherlands, which was the same address he told GoDaddy that he made up.

This fictitious address was also used to ignore DMCA complaints and other requests for removal of content.

Under the “Contact Us” page, the site stated, “ has no removals [sic] policy. If you are an adult who has been submitted to this site tough luck [sic].” The page went on to state, “If you have the need to send mail please address it to c/o Web Solutions B.V. Attn Legal Department DMCA Complaints. Websolutions Netherlands, Singel 540 1017 Amsterdam The Netherlands Attn: Legal Department.”

Paid removals were handled in a similarly shady fashion. The site's operators made those seeking content removal wire money to someone named "Shelly Mae Garcia" who supposedly lived in the Philippines. Those who refused to pay the extortion were invited to send snail mail to the fake address in the Netherlands.

The FTC finds the site owners to be in violation of the FTC Act, which prohibits unfair or deceptive acts or practices by business entities. As is detailed in the complaint, there's no shortage of evident harm created by the site's posting of intimate photos without the consent of those depicted, along with as much personal info (names, addresses, social media accounts) as the site could harvest.

The settlement [PDF] with one of the site's owners, Neil Infante, prohibits him from posting intimate photos without the explicit, written consent of the photo's subject. It also subjects Infante to 20 years of FTC monitoring and a $205,000 fine. (It appears the FTC will only be able to collect $15,000 of this fine. The FTC's press release states the rest of the fine will be suspended as Infante has shown "an inability to pay more.") Infante is also prohibited from charging takedown fees for any content whose removal is requested. The FTC is still seeking to obtain judgments against the other participants in the revenge porn operation and is ordering Infante to turn over as much info as he has on his revenge porn colleagues.

This revenge porn operation is effectively dead. The nonconsensual part of the operation is blocked by the FTC judgment and the inability to charge removal fees pretty eliminates the most profitable revenue stream. It's unclear what the future holds for Neil Infante, but it appears the Republican Senate race in Ohio (Infante's home state) is suddenly in need of a new frontrunner. Perhaps FTC judgment recipient and former revenge porn site operator Craig Brittain could send his colleague a few ideas on to how to MAGA the hell out of the nation as a Senate race bottom-feeder.

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Posted on Techdirt - 11 January 2018 @ 3:17am

Intelligence Oversight Tries Again With Zero-Reform Section 702 Bill, Criticizes Reform Efforts As Threats To Security

from the tireless-in-their-unquestioning-defense-of-the-agencies-they-'oversee' dept

The Congressional showdown on Section 702 reforms/renewal continues to generate little actual debate or reform -- but plenty of bad proposals. Both the House and Senate Intelligence Committees have decided there should be a renewal -- preferably an extended one -- with zero actual reform.

Members of the House offered up some tepid reforms in the USA Liberty Act, only to find this offering blocked by the House Permanent Select Committee on Intelligence (HPSCI), which offered a zero-reform package at the last minute. Fortunately, no one was able to tack a lousy non-reform bill to the tailend of the annual budget bill, thereby dodging reform discussions and giving the NSA a surveillance blank check for the next 5-10 years.

Having been stiff-armed for a few weeks, the HPSCI has put together another Section 702 "reform" bill that does nothing to change the status quo and actually has the possibility of making things worse.

Sharon Franklin discusses the many, many problems with the House Committee bill at Just Security. What the committee offers up as reforms is language that can (and will) be read as allowing the NSA (and other agencies) to conduct themselves as they have for years -- this time with the explicit statutory authority granted to them by their supposed oversight.

Proponents of the Intelligence Committee’s bill contend that it presents a compromise approach to addressing both of these privacy risks, and that recent modifications to the bill address the concerns of privacy advocates. In reality, the bill includes no meaningful reform on either issue – or any other real reforms to Section 702. Instead, the Intelligence Committee’s bill would codify these two practices and risk expanding the government’s surveillance authority.

Codification would include the NSA's abandoned "about" email collection. The NSA voluntarily ditched this program because it couldn't stop collecting US persons' communications with this untargeted collection. This bill would allow the NSA to turn the collection back on, provided no introduced legislation specifically demanding the permanent shutdown of this collection method within 30 days of the NSA's notice. Worse, it would possibly allow the NSA to expand the scope of an already vaguely-targeted collection.

First, it could be interpreted by the government to permit unintentional “about” collection, such as where the Intelligence Community knows a certain technique results in “about” collection, but since that technique is not specifically intended to collect “about” communications, it engages in that collection nonetheless. Second, because the bill defines an “abouts communication” as “a communication that contains a reference to, but is not to or from, a target,” there is a risk that the bill could be interpreted to allow the government to collect communications that merely reference a target, such as mentioning a target’s name. Currently, the government may only collect communications that include a target’s “selector,” such as a target’s email or phone number.

The bill would also leave the backdoor search loophole wide open. The FBI (and other agencies) query NSA collections for information not necessarily related to national security investigations through this backdoor search, allowing them to use ostensibly foreign-facing collections for domestic policework. The bill does add a warrant requirement for these sorts of non-national-security-related searches, but this would only apply to "predicated investigations." This would allow the FBI to make use of NSA databases in other forms of investigations, including preliminary investigations -- all of which are based on less probable cause than "predicated" investigations. In other words, the FBI would be required to get a warrant during the final stages of a criminal investigation but need nothing to engage in fishing expeditions using NSA collections.

The HPSCI is also on the attack, trying to prevent other reform legislation from gaining supporters. It has gone so far as to portray support for competing bills containing actual reforms as threats to national security. Ron Wyden's office has issued a debunking of the HPSCI's outlandish claims.

HPSCI Majority allegation: USA RIGHTS will recreate a pre-9/11 “wall” preventing the Intelligence Community and law enforcement from sharing terrorism information.

Fact: Nothing in the USA RIGHTS Act prevents sharing of terrorism information.

HPSCI Majority allegation: USA RIGHTS prevents the IC from “uncovering plots against the United States and saving potential hostages via limitations on the ability to conduct U.S. person queries…”

Fact: USA RIGHTS, which requires a warrant for U.S. person searches of 702 data, includes an exception to rescue hostages, as well as an emergency provision that allows the government to search first and seek a warrant later. In addition, the government has other FISA tools, such as Section 215, that would allow it to swiftly “connect the dots” between suspects and terrorists without a probable cause warrant.

HPSCI Majority allegation: USA RIGHTS limits the government’s ability to obtain terrorism information by “unnecessarily restricting when the Government may ask for technical assistance from electronic communication service providers.”

Fact: Recent statements from the government indicate that it interprets Section 702 to allow it to direct electronic communication service providers to alter encryption. Even supporters of government-mandated weakening of strong encryption have argued for court orders. USA RIGHTS merely requires that the FISA Court oversee any such directives and ensures that those directives are tailored to the surveillance at issue.

HPSCI Majority allegation: USA RIGHTS would prevent NSA from “understanding foreign threat networks by permanently ending NSA’s ‘abouts’ collection.”

Fact: The “abouts” collection, which could include communications to and from innocent Americans on whom there is no suspicion, was suspended by the government due to significant compliance problems. If the government wishes to resume the “abouts” collection, it can always seek those authorities from Congress.

HPSCI Majority allegation: USA RIGHTS allows terrorists and spies to sue the U.S. government.

Fact: It is a basic tenet of the rule of law that surveillance authorities can be challenged in court. USA RIGHTS merely ensures that the government cannot abuse the secrecy of Section 702 to keep it from ever being challenged by anyone.

This is only a small part of the many claims the HPSCI has made in hopes of heading off any real challenge to its zero-reform Section 702 legislation. It's pretty sickening this is coming from legislators charged with subjecting surveillance efforts to intense scrutiny. The HPSCI has never held up any of the NSA's dubious claims as examples of untrustworthy behavior or as a threat to Americans' privacy. Instead, it focuses its attention on those who won't grant the NSA a pass it hasn't earned.

Either way, this issue is coming to a head today. House leadership tried to "appease" those who actually support the 4th Amendment by allowing just one amendment to be voted on -- good amendment by Reps. Justin Amash and Zoe Lofgren. House leadership apparently expects the amendment to fail, and then their awful bill to squeak across the finish line. In response, there's been a pretty frantic effort on both sides to garner support -- leading to the HSPCI's misleading attacks on the amendment.

If enough Reps in the House actually grasp what's at stake, and vote for the Amash/Lofgren amendment, it would be a pretty big game changer, and perhaps push the Senate away from its own bad proposals. If not, it will mean that a majority of our elected officials think that the 4th Amendment and the privacy of Americans is not particularly important. So right about now might be a good time to contact your representative to see where they stand on this.

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Posted on Free Speech - 10 January 2018 @ 3:31pm

Appeals Court Drives Another Stake Into The Heart Of Idaho's 'Ag-Gag' Law

from the not-even-a-close-call-on-the-First-Amendment-side dept

The Ninth Circuit Court of Appeals has upheld a 2015 decision finding Idaho's "ag-gag" law unconstitutional. Despite the protestations of legislators and the state itself, the court finds the law prohibiting people from obtaining access to farms and other agricultural entities under false pretenses a violation of protected speech.

As the lower court pointed out, the law would have made Upton Sinclair's expose of the meatpacking industry illegal. The upshot of Sinclair's book was significant changes to food and employee safety laws. Without the efforts of whistleblowers this law clearly targeted, the safety of the public -- both consumers and employees -- would be negatively impacted.

The Appeals Court finds little to like about the state's arguments the law is meant to protect the privacy of agricultural entities. Instead, it points out statements made by legislators -- as well as the law's wording -- indicates the state intended to block speech critical of these entities. The decision [PDF] highlights comments made by legislators during the passage of the law which show the true impetus for the law's creation.

Lawmakers also discussed damage caused by investigative reporting: “One of the things that bothers me a lot about the undercover investigation [at the dairy], and the fact that there’s videos, well, we’re being tried and persecuted and prosecuted in the press.” Other legislators used similar language demonstrating hostility toward the release of these videos, and one supporter of the legislation dubbed animal rights groups as “terrorists” who “use media and sensationalism to attempt to steal the integrity of the producer and their reputation.” One legislator stated that the dairy industry’s reason behind the legislation was “[t]hey could not allow fellow members of the industry to be persecuted in the court of public opinion.” Another described these videos as used to “publicly crucify a company” and “as a blackmail tool.” Finally, one legislator indicated that if the video had not been published, she did not “think this bill would ever have surfaced.”

The video mentioned here was released in 2012 by a group called Mercy for Animals. An activist involved with the group obtained a job at a dairy farm and secretly filmed employees abusing livestock. As a result of the video's release, the dairy fired the abusive employees and instituted animal welfare protocols. Legislators -- pushed and prodded by dairy lobbyists -- went a completely different route, deciding the exposure of animal abuse should result in punishment of those documenting the abuse, rather than the abusers themselves.

As the Appeals Court points out, the law was narrowly crafted to prevent whistleblowing and criticism of activities performed by employees of a certain industry. As such, there's no way the law can even be considered a close call in terms of the Constitution.

Guided by Alvarez, we conclude that subsection (a)’s misrepresentation provision regulates speech protected by the First Amendment. The targeted speech—a false statement made in order to access an agricultural production facility—cannot on its face be characterized as “made to effect a fraud or secure moneys or other valuable considerations.” Alvarez, 567 U.S. at 723 (plurality opinion). Nor can the misrepresentation provision be characterized as simply proscribing conduct. Like the statute in Alvarez, subsection (a) “seeks to control and suppress all false statements [related to access] in almost limitless times and settings. And it does so entirely without regard to whether the lie was made for the purpose of material gain.” Id. at 722–23 (plurality opinion). Unlike lying to obtain records or gain employment—which are associated with a material benefit to the speaker—lying to gain entry merely allows the speaker to cross the threshold of another’s property, including property that is generally open to the public. The hazard of this subsection is that it criminalizes innocent behavior, that the overbreadth of this subsection’s coverage is staggering, and that the purpose of the statute was, in large part, targeted at speech and investigative journalists.

Idaho’s argument that “the material gain to the person telling the lie is the entry to the property,” is not supported by any authority and does not establish how entry onto the property and material gain are coextensive. Under the statute, any misrepresentation to gain entry could net a criminal prosecution. Take, for example, a teenager who wants to impress his friends by obtaining a highly sought after reservation at an exclusive pop-up restaurant that is open to the public. If he were to call the restaurant and finagle a reservation in the name of his mother, a well-known journalist, that would be a misrepresentation. If the restaurant offers up a reservation on the basis of the mother’s notoriety, granting a “license” to enter the premises and sit at a table, the teenager would be subject to punishment of up to one year in prison, a fine not to exceed $5,000, or both.

The court then goes on to point out the fallacy of the state's argumentative logic: if the state desired only to protect private business owners from unwanted intrusion, it already has a law on the books to handle this.

Even assuming Idaho has a compelling interest in regulating property rights and protecting its farm industry, criminalizing access to property by misrepresentation is not “actually necessary” to protect those rights. If, as Idaho argues, its real concern is trespass, then Idaho already has a prohibition against trespass that does not implicate speech in any way. If instead, as a number of the legislators made clear and the dairy lobby underscored, the statute was intended to quash investigative reporting on agricultural production facilities, then the speech aspect of the statute prohibiting misrepresentations is even more problematic. The focus of the statute to avoid the “court of public opinion” and treatment of investigative videos as “blackmail” cannot be squared with a content-neutral trespass law.

Allowing the law to stay on the books would encourage selective prosecution. Whistleblowers capturing evidence of abusive behavior by farm employees would be targeted for fines and jail time while the proverbial teenager described in the court's analogy would be left unperturbed. The state hardly even pretends the restriction is content-neutral -- an argument that might have been more successfully raised if legislators hadn't undercut it so severely while debating the bill.

The court also notes the law is broadly-written, which could lead to even more criminalization of First Amendment-protected activity.

We are also unsettled by the sheer breadth of this subsection given the definitions of “agricultural production facility” and “agricultural production.” Id. § 18-7042(2)(a), (b). Applying these definitions, the subsection reaches misrepresentations not only in the context of a large-scale dairy facility or cattle feedlot, but also grocery stores, garden nurseries, restaurants that have an herb garden or grow their own produce, llama farms that produce wool for weaving, beekeepers, a chicken coop in the backyard, a field producing crops for ethanol, and hardware stores, to name a few.


The reach of subsection (a) is so broad that it gives rise to suspicion that it may have been enacted with an impermissible purposeOur suspicion is not eased after reading the legislative history. The record reflects that the statute was partly motivated to protect members of the agricultural industry from “persecut[ion] in the court of public opinion,” and journalists who use exposés to “publicly crucify a company.” Although, for Equal Protection Clause purposes, we need not decide whether animus motivated this subsection, we do not ignore that a vocal number of supporters were less concerned with the protection of property than they were about protecting a target group from critical speech, which adds to our skepticism that the provision survives the “exacting scrutiny” required under Alvarez.

The court then dismantles the state's argument that creating recordings is not First Amendment-protected activity because it is (somehow) "not speech."

We easily dispose of Idaho’s claim that the act of creating an audiovisual recording is not speech protected by the First Amendment. This argument is akin to saying that even though a book is protected by the First Amendment, the process of writing the book is not. Audiovisual recordings are protected by the First Amendment as recognized “organ[s] of public opinion” and as a “significant medium for the communication of ideas.”


As with the Misrepresentation Clauses, Idaho asserts that the Recordings Clause protects both property and privacy interests. Even assuming a compelling government interest, Idaho has not satisfied the narrow tailoring requirement because the statute is both under-inclusive and overinclusive.

This is what happens when you craft a bill specifically designed to target one type of speech legislators (and their favored industries) don't like: you create a law soaked in cognitive dissonance. The court digs further into the law's inconsistencies:

Prohibiting only “audio or video recordings,” but saying nothing about photographs, is suspiciously under-inclusive. City of Ladue v. Gilleo, 512 U.S. 43, 51 (“[T]hat a regulation of speech may be impermissibly underinclusive is firmly grounded in basic First Amendment principles.”). Why the making of audio and video recordings of operations would implicate property or privacy harms, but photographs of the same content would not, is a mystery. This distinction defies the old adage that “a picture is worth a thousand words.”

Nor has Idaho explained how limiting the filming of operations, but nothing else, effectuates its interests better than eliminating all audio and video recordings at agricultural production facilities. Presumably, for example, an unauthorized recording of the agricultural production facility’s buildings would still implicate Idaho’s concerns about property, and the unauthorized filming of an employee birthday party would implicate concerns about privacy. Without some legitimate explanation, we are left to conclude that Idaho is singling out for suppression one mode of speech—audio and video recordings of agricultural operations—to keep controversy and suspect practices out of the public eye. Reed, 135 S. Ct. at 2229 (content-based laws lend themselves to use for “invidious, thought-control purposes”). The district court aptly noted that “[t]he recording prohibition gives agricultural facility owners veto power, allowing owners to decide what can and cannot be recorded, effectively turning them into state-backed censors able to silence unfavorable speech about their facilities.”

The entire law isn't overturned, however. The Appeals Court finds two aspects of it are still acceptable. It is still illegal to gain access to company records under false pretenses as well as to gain employment through misrepresentation. The court doesn't find these to be violations of rights, but rather a sensible way to allow companies to protect proprietary information that might benefit competitors if released to the public.

Whistleblowers already employed by agricultural companies are still protected under the Constitution. Investigative reporters who film agricultural operations while undercover are still protected as well, although they won't be able to seek employment under false pretenses to obtain recordings. This may make it more difficult to perform investigative journalism, but it won't make it impossible. The law as written did nothing more than give one industry an easy way to prevent criticism of its actions, policies, and employee behavior. Too bad the legislators it prodded into action undercut the state's arguments before it even had a chance to make them. Unfortunately, the only lesson the ag industry may have learned from this courtroom debacle is to buy a better brand of politician -- one that won't immediately out the law's intent during legislative discussions.

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Posted on Techdirt - 10 January 2018 @ 11:42am

Psychiatrist Sues A Bunch Of Redditors For Criticizing His Therapy Services

from the a-move-sure-to-silence-future-criticism dept

Update: Redditors are crowdfunding their legal defense via GoFundMe. They are now being represented by Marc Randazza.

For reasons only known to the plaintiff, an American psychiatrist offering unlicensed services in Japan is suing a whole bunch of Redditors for defamation. The underlying reason for this lawsuit is obvious: searches for Dr. Douglas Berger or psychiatrists in Japan tend to return lots of links presumably owned by Dr. Berger, but more prominently, a bunch of warnings from Redditors at Japan-focused subreddits to steer clear of his psychiatric services.

So much is Dr. Berger hated by denizens of Japanese-oriented subreddits that one subreddit has even made an annual tradition of warning Americans in Japan (or looking to relocate there) away from Berger. This post also notes Berger himself has tried to make negative posts disappear from Reddit, sometimes with the assistance of reputation management firms.

It appears none of this has worked. Dr. Berger -- living and working in Japan -- has filed a defamation suit in Florida. This doesn't make much sense, but I assume the court will sort out jurisdiction once the case gets underway. So far, there's nothing more on the docket than Berger's first and second complaint, the latter stripping out Microsoft and Google as defendants to focus solely on Reddit and Redditors. Berger at least focuses his lawsuit on the Doe Redditors, naming Reddit as a party solely for the purpose of obtaining identifying info. As his filing [PDF] states, he makes no assertions of liability as to Reddit.

That being said, there's a lot not to like about this lawsuit. There seems to be plenty of critical opinions listed but very little actual defamation. Some statements could be construed to have crossed that line, but for the most part, we're dealing with statements of opinion which cannot be treated as defamatory, no matter how negative they are.

Here are some of the many, many statements Dr. Berger would like to see sued into nonexistence [with my commentary in brackets]:

[t]he false and defamatory statements about Plaintiff Berger include but are not limited to the following:

that he is a 'fucking maniac' [opinion]
he is a 'piece of shit' [opinion]
'gives patients the creeps' [opinion]
that 'he is not a medical professional' [Depends on the definition. He is not licensed in Japan but is licensed in the States.]
'he was disinterested in patients' [opinion]
'incompetent in actually giving therapy' [opinion -- and a layman's opinion at that]
that he overprescribes drugs [questionable, but still looks like an uninformed opinion, not an assertion of fact]
that he 'was always distracted on the computer while with a patient' [even if an assertion of fact, still not defamatory]
that he said sexist comments to a patient' that he told a female patient she will 'be basically worthless after [she] lost her looks' [this is borderline, but truth is an absolute defense, so if it can be shown that it happened…]
he misdiagnoses patients [borderline]
harasses patients online [this can be likely be proven one way or another if true]
takes advantage of patients [opinion]
scams patients [borderline]
that he is a 'scam artist with a doctorate' [borderline, but closer to opinion than the previous one]
that he is 'incompetent or negligent in both' (referring to [Dr. Douglas Berger's] mental health services) [possibly defamatory]
that he is unstable [opinion]
he bilks clients out of their money for services that do not meet even the most basic professional standards [borderline]
he uses Paypal to avoid paying taxes [leans towards defamatory]
he is 'deeply unprofessional, insulting and derogatory' [opinion]
he is a 'cast-iron racist' [borderline, likely can't be proven or disproven]
that he is a charlatan [opinion]
that another mental health service provider gets a lot of his angry ex-clients [possibly defamatory if false, but would possibly have to prove person knew this wasn't true when it was posted]
that he is pushy [opinion]
that he is manipulative [opinion]
and that he disrespects clients and makes them feel like it is their fault they are depressed or stressed [opinion].

For the most part, we're dealing with opinion. The borderline cases might make the lawsuit a worthwhile pursuit for Berger, but a large number of these statements are going to be tossed as they don't clear the bar for defamation.

And some of this will hinge on whether or not the court decides Berger is a limited-purpose public figure for the purposes of this suit. If so, the bar goes even higher and is likely to give Berger very little return on investment. Berger's contributions to several major publications on the subject of providing psychiatric services in Japan are likely to make him a public figure of sorts, even if only in the small arena of ex-pats providing unlicensed services in a foreign country.

Another problematic aspect of this lawsuit is the amount of information Berger wants Reddit to hand over so he can proceed with his suit.

  • Join Date
  • Last login
  • First Name
  • Last Name
  • Email Address
  • Phone Number
  • Email notification address for follow up comments
  • Zip Code
  • Date of Birth
  • Gender
  • Location
  • Originating IP address for each and every connection by each user to your service, including the initial account establishment
  • Remote port number for each user connection
  • The date & time for each session
  • The time zone used by your log file system
  • User agent detail of the user's computing devices for each session
  • Any other such information available that includes basic subscriber information and non-content records about the user.

Hopefully Reddit will fight this demand for info, pushing back on the request until the judge narrows the list down to those who have made arguably defamatory statements (and limits the scope of what can be compelled from Reddit). The court should also be hesitant to grant unmasking requests like these prior to weighing the suit's validity. Online anonymity -- especially that related to public commentary on issues of public interest -- should be given as much protection as possible, no matter how badly a plaintiff might want to clean up his search results.

Then there's the question of jurisdiction. The only connection to Florida is the existence of property owned by Dr. Berger. He has no residence there, nor does he provide services in Florida. Reddit -- a non-party for all intents and purposes -- is headquartered in San Francisco. It's not like Berger is dodging an anti-SLAPP law by filing in Florida as opposed to California -- something his legal representation should be aware of. It may be Berger simply had no idea where to file it and picked a place nominally linked to him, rather than for some legal advantage not present in California.

While there may be some actionable statements in the Reddit-Berger dogpile, a majority of the comments are critical opinions. The problem is the suit targets everything Berger doesn't like, rather than just the edge cases where defamation may have occurred. Given his past attempts to silence critical Redditors, this looks like an escalation meant to deter future negative comments, rather than seek retribution for the few times he may have been legally wronged. The problem with this tactic is it so very rarely works. If Berger doesn't like the current state of Reddit, he's going to find it much more unbearable once the backlash begins. Reputation management begins at home -- or rather, at the office. Unless all of these Redditors are lying, Berger's psychiatric offerings seem to have been consistently subpar. Seems like the smarter move would have been providing better service rather than seeking to silence unhappy patients after the fact.

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Posted on Techdirt - 10 January 2018 @ 9:27am

CBP Warrantless Device Searches Continue To Increase And New DHS Guidance Isn't Going To Bring That Number Down

from the visit-a-country-with-zero-rights-without-even-leaving-the-country! dept

The DHS made two significant announcements late last week, both dealing with the CBP's warrantless searches of electronic devices at the border. The first was a bit of info, showing the exponential increase in device searches in 2016 (jumping from 5,000 in 2015 to 20,000 in 2016) is part of a trend, rather than an anomaly. Searches increased another 59% in 2017, rising to 30,200 total.

The DHS and CBP also released statements justifying the ongoing increase in warrantless searches.

"In this digital age, border searches of electronic devices are essential to enforcing the law at the US border and to protecting the American people," John Wagner, a deputy executive assistant commissioner at Customs and Border Patrol, said in a statement.


CBP's authority for the border search of electronic devices is and will continue to be exercised judiciously, responsibly, and consistent with the public trust," he added.

These statements are empty and useless. We had just as much of a "digital age" in 2015 and yet searches occurred far less frequently. There seemed to be no less law enforcement happening and no less "secure" as a nation than we are now. In fact, we may have been more secure with fewer searches as we hadn't yet shifted towards a more antagonistic relationship with the rest of the world, starting with our southern bordering neighbor.

It's also difficult to square claims of "judicious, responsible" use of device search authority with the exponential leap in number of devices searched and the DHS's open admission it lacks legal authority for some of the searches its agencies perform.

Accompanying the release of 2017's search numbers, the DHS released updated guidelines on border device searches. The guidelines roughly align with answers delivered by the DHS to Sen. Ron Wyden in response to questions about its warrantless device searches.

The CBP still has carte blanche access to devices of foreigners entering or leaving the country. Its ability to access devices carried by Americans is only slightly more limited. Anything residing on a device can be accessed by CBP officials without a warrant or even reasonable suspicion. From the CBP's search guidelines [PDF]:

Border searches of electronic devices may include searches of the information stored on the device when it is presented for inspection or during its detention by CBP for an inbound or outbound border inspection. The border search will include an examination of only the information that is resident upon the device and accessible through the device's operating system or through other software, tools, or applications. Officers may not intentionally use the device to access information that is solely stored remotely. To avoid retrieving or accessing information stored remotely and not otherwise present on the device, Officers will either request that the traveler disable connectivity to any network by placing the device in airplane mode), or, where warranted by national security, law enforcement, officer safety, or other operational considerations, Officers will themselves disable network connectivity. Officers should also take care to ensure, throughout the course of a border search, that they do not take actions that would make any changes to the contents of the device.

CBP officers can also perform "advanced searches." These involve imaging device contents and possible access of remote storage. Again, the CBP claims it needs no warrant to perform these searches, only reasonable suspicion. The guidance makes no mention of the Supreme Court's Riley decision, likely interpreting the decision to apply only to searches incident to arrest, rather than border inspections of "containers" and their "contents" under multiple court-granted warrant exceptions.

Yes, the CBP still equates phones and laptops to suitcases and personal effects. One of the statutes listed in its defense of warrantless access to electronic device contents refers to the CBP's right to search "persons, baggage, and merchandise" entering or leaving the country.

On top of that, the CBP continues to insist all travelers must unlock or decrypt devices/accounts so contents can be inspected. The CBP says it can use external hardware to crack devices and/or detain locked devices indefinitely if travelers aren't compliant. None of this requires a warrant. Nor does it even require reasonable suspicion. All the CBP needs to justify these seizures and searches is a traveler's refusal to hand over passwords or PINs.

Unbelievably, this new guidance is an improvement. Prior to this, the DHS and CBP weren't even limiting their searches to the low bar of reasonable suspicion. So, while the new guidance is earning limited praise from privacy and rights activists, it's also gathering plenty of criticism. Ron Wyden, who was instrumental in getting the DHS to concede its social media account searches had no legal basis, offered up a golf clap for the DHS's new guidance, along with a warning he would continue seeking a legislative end to the "Constitution-free" zone in which the CBP does all of its intrusive work.

“I’ve said it before and I’ll say it again: Americans’ Constitutional rights shouldn’t disappear at the border. By requiring ‘reasonable suspicion’ before conducting forensic searches of Americans’ devices at the border, Customs and Border Protection is beginning to recognize what the Supreme Court has already clearly stated that ‘digital is different.’ It is my view that Americans will be safer when time and resources are spent on searching people with an actual cause...”

“However, there’s more work to do here. Manually examining an individual’s private photos, messages and browsing history is still extremely invasive, and should require a warrant. I continue to believe Americans are entitled to their full Constitutional rights, no matter where they are in the United States. That’s why Senator Paul and I last year introduced the Protecting Data at the Border Act, which would end the legal Bermuda Triangle at the border and require warrants for law enforcement officials to search Americans’ phones and laptops at the border.”

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Posted on Techdirt - 10 January 2018 @ 3:22am

Jury Awards Couple No Damages For Bungled Marijuana Raid Predicated On Wet Tea Leaves

from the sheriff's-office-free-to-abuse-citizens-again dept

A jury has shrugged its shoulders in response to a farcical effort by local publicity hounds/drug warriors to score a 4/20 marijuana bust, only to end up with a handful of garden supplies and violated rights. The lead-up to the bungled raid of Robert and Addie Harte's house included a law enforcement agency hoping to bury the previous year's 4/20 raid failure (in which tomatoes were seized), a state trooper compiling a freelance database of garden store visitors, two field drug tests that identified tea leaves as marijuana, and a whole lot of might-makes-right drug warrioring.

By the time it was over, the Hartes had been held at gunpoint for two hours while the sheriff's department desperately tried to find something illegal in their home. Nothing was found and the Hartes sued the law enforcement agency. The district court said this was fine: officers should be able to rely on the results of field drug tests, even when said field drug tests are notoriously fallible.

The Appeals Court, however, disagreed entirely with the lower court's "ignorance = immunity" theory.

The defendants in this case caused an unjustified governmental intrusion into the Harte's’ home based on nothing more than junk science, an incompetent investigation, and a publicity stunt. The Fourth Amendment does not condone this conduct, and neither can I.

It's of little comfort to the Hartes, however. While the Appeals Court may have stripped the immunity, it was still up to a jury to decide how much this debacle was going to cost taxpayers footing the bill for law enforcement malfeasance. I guess taxpayers can breathe a little easier, even if it means the sheriff's office no longer faces much of a deterrent effect. Jacob Sullum at Reason has the disappointing details.

This week a federal jury declined to award any damages to Adlynn and Robert Harte, the Leawood, Kansas, couple whose home was raided in 2012 based on a field tests that supposedly identified wet tea leaves in their trash as marijuana. The verdict is not very surprising, since the only claim the Hartes were allowed to pursue required them to show that Johnson County sheriff's deputies lied about the results of the tests.

Limited to that one claim, it's unlikely the Hartes will ever see monetary damages awarded, even on appeal. As for the sheriff's office, its claims of infallible field drug tests will continue to be held up as another example of just how ignorant courts allow law enforcement officers to be.

[D]eputy Mark Burns confessed that he had never seen loose tea before but thought, based on his training and experience, that it looked like marijuana leaves. A lab technician consulted after the raid disagreed, saying the leaves didn't "appear to be marijuana" to the unaided eye and didn't "look anything like marijuana leaves or stems" under a microscope. Burns himself did not deem the leaves suspicious the first time he pulled them out of the Hartes' garbage. But he thought they were worth testing when he returned a week later, 10 days before the raids demanded by Operation Constant Gardener. Sheriff Frank Denning, who authorized the search of the Hartes' home without laboratory confirmation of the field test results, claimed he had never heard such tests could generate false positives, despite four decades in law enforcement and despite the warning on the label. Maybe Burns and Denning were both lying, but it is at least as easy to believe they were simply uninformed, incompetent, and careless.

The Appeals Court tore this useful ignorance apart, allowing the Hartes' case to proceed. The lack of awarded damages -- and the reduction of the case to a single assertion almost impossible to prove -- reinstates the shield of willful ignorance. The less cops know about the tools they use, the better. You can't perjure yourself if you don't read the warning label or educate yourself about field test failure rates. Not knowing stuff makes the job so much easier. In law enforcement, ignorance is better than bliss. It's a Get Out Of Litigation Free card.

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Posted on Techdirt - 9 January 2018 @ 11:51am

Former NSA Contractor Pleads Guilty To Taking His National Defense Work Home With Him

from the unauthorized-document-removal-service-shuts-down-after-20-years dept

Not sure how leaky our nation is, but it would appear those guarding it from outside attacks seldom gaze inward to see how their internal security is holding up. Harold Martin III, a government contractor, spent 20 years exfiltrating top secret documents before the NSA caught on. Given that some of this happened after the NSA's "oh shit" moment -- Snowden walking away from the NSA and towards journalists with an untold number of documents -- one has to wonder how seriously the NSA takes its own security.

Martin has now pled guilty to one charge of "willful retention of national defense documents." He's still facing twenty charges in total, including the belated addition of an espionage count. Fifty terabytes of documents were lifted by Martin -- not just from the NSA, but from the CIA, US Cyber Command, National Reconnaissance Office, and the Defense Department.

That one count could net Martin 10 years in prison. But he could be facing more time than that, thanks to this being only a plea, rather than a plea deal.

Martin pleaded guilty to one count of willful retention of national defense information, which carries a maximum of 10 years in prison, followed by three years of supervised release and fines up to $250,000.

However, since the guilty plea did not include a deal of any kind and there are other extenuating circumstances—such as the abuse of a position of public trust and another 19 counts charged in the original indictment—the judge will have additional leeway during sentencing.

The other 19 charges are still in play, Martin's plea notwithstanding. The DOJ may try to make an example of Martin as a deterrent for future contractors who can't seem to stop taking their work home with them. Unfortunately, the internal controls on contractor access don't appear to be receiving the same amount of attention. As the White House continues to loosen restrictions on federal agency access to NSA collections and tools, the likelihood of sensitive information that can be accessed or taken by contractors increases. The expanded surveillance apparatus is too big to be handled in-house and will likely never be scaled back to the point where controlled access is anything more than a theory.

This is the end of one contractor's twenty-year run on supposedly ultra-secure systems. Martin cannot possibly be the only contractor whose work has made its way out of the office. The Intelligence Community's oversight has pointed out the half-assed job being done to secure things post-Snowden. Martin is just an embodiment of the IC's ideals: more focused on collecting data than making sure the collected info remains secure.

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Posted on Techdirt - 9 January 2018 @ 3:23am

NSA Denies Prior Knowledge Of Meltdown, Spectre Exploits; Claims It Would 'Never' Harm Companies By Withholding Vulns

from the lol-ok-then dept

News surfaced late last week indicating everything about computing is fucked. Two critical flaws with zero perfect fixes -- affecting millions of processors -- were exposed by security researchers. Patches have been deployed and more are on their way, but even the best fixes seem to guarantee a noticeable slowdown in processing speed.

The government has stepped up to say that, for once, it's not involved in making computing less safe.

Current and former U.S. officials... said the NSA did not know about or use Meltdown or Spectre to enable electronic surveillance on targets overseas. The agency often uses computer flaws to break into targeted machines, but it also has a mandate to warn companies about particularly dangerous or widespread flaws so that they can be fixed.

Rob Joyce, White House cybersecurity coordinator, said, “NSA did not know about the flaw, has not exploited it and certainly the U.S. government would never put a major company like Intel in a position of risk like this to try to hold open a vulnerability.”

The veracity of this statement is largely dependent on the credibility attributed to the person making it. While it is conceivable the NSA did not know about the flaw (leading to it being unable to exploit it), it's laughable to assert the NSA wouldn't "put a major company in a position of risk" by withholding details on an exploit. We only have the entire history of the NSA's use of exploits/vulnerabilities and its hesitant compliance with the Vulnerability Equities Process to serve as a counterargument.

The NSA has left major companies in vulnerable positions, often for years -- something exposed in the very recent past when an employee/contractor left the NSA in a vulnerable position by leaving TAO tools out in the open. The Shadow Brokers have been flogging NSA exploits for months and recent worldwide malware/ransomware attacks are tied to exploits the agency never informed major players like Microsoft about until the code was already out in the open.

These recently-discovered exploits may be the ones that got away -- ones the NSA never uncovered and never used. But this statement portrays the NSA as an honest broker, which it isn't. If the NSA had access to these exploits, it most certainly would have used them before informing affected companies. That's just how this works. As long as exploits are returning intel otherwise inaccessible, the NSA will use the exploits for as long as possible before disclosing this info to US companies. The agency has historically shown little concern about collateral damage and I don't believe putting someone new in charge of the VEP is going to make that much of a difference in the future.

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Posted on Techdirt - 8 January 2018 @ 1:31pm

MalwareTech Prosecution Appears To Be Falling Apart As Gov't Plays Keep Away With Documents Requested By Defense

from the piling-up-fatal-errors? dept

Marcus Hutchins, a.k.a. MalwareTech, went from internet hero (following his inadvertent shutdown of the WannaCry ransomware) to federal government detainee in a surprisingly short amount of time. Three months after saving the world from rampaging malware built on NSA exploits, Hutchins was arrested at the Las Vegas airport as he waited for his flight home to the UK.

When the indictment was published, many people noted the charges didn't seem to be backed by much evidence. The government accused Hutchins of creating and selling the Kronos malware, but the offered very little to support this claim. While it's true much of the evidence against Hutchins will be produced in court, the indictment appeared to be stretching legal definitions of certain computer crimes to their limits.

The government's case appears to be weak and reliant on dubious legal theories. It's not even 100% clear that creating and selling malware is an illegal act in and of itself. The charges the government brought rely heavily on proving Hutchins constructed malware with the intent to cause damage to computers. This isn't so easily proven, especially when the government itself is buying malware to deploy for its own purposes and has yet to bring charges against any of the vendors it buys from. Anyone selling exploits to governments could be said to be creating malware with intent to cause harm. That it's a government, rather than an individual, causing the harm shouldn't make any difference -- at least not if the government wants to claim selling of malware alone is a federal offense.

The case appears to be even weaker now that more paperwork has been filed by both parties. If the government has a lot of evidence to use against Hutchins, it has yet to present it to Hutchins' lawyers. What's detailed in the motion to compel recently filed by Hutchins' defense team shows the government is either playing keep-away with crucial information or simply does not have much evidence on hand.

Marcy Wheeler digs into the motion to compel [PDF] and notes it appears to show the government's case is incredibly weak. And if sketchy, minimal evidence doesn't undo the government's case, the actions of the FBI agents involved might.

First, there are some questions about the circumstances surrounding Hutchins' detainment at the Las Vegas airport. As the motion points out, there's a good chance Hutchins was in no condition to consent to an interrogation, having been up late the night before drinking and celebrating the wrap-up of the conferences he had attended.

The defense needs all communications and materials related to the surveillance and arrest of Mr. Hutchins to help establish that his post-arrest statements were involuntary and in violation of Miranda. The defense intends to argue that the government coerced Mr. Hutchins, who was sleep-deprived and intoxicated, to talk. As such, his decision to speak with the agents was not knowing, intelligent, and made in full awareness of the nature of the right given up and the consequences of giving up that right, as the law requires. Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir. 2012).

The Seventh Circuit recognizes that intoxication is relevant to the voluntariness—legally, in terms of a statement’s admissibility, and factually, in terms of the weight to be given to an admissible statement—of post-arrest statements. See, e.g., United States v. Carson, 582 F.3d 827, 833 (7th Cir. 2009). The defense believes the requested discovery will show the government was aware of Mr. Hutchins’ activities while he was in Las Vegas, including the fact that he had been up very late the night before his arrest, and the high likelihood that the government knew he was exhausted and intoxicated at the time of his arrest.

Note the mention of the Miranda warning. This poses its own problems for a couple of reasons. As the motion points out, it's unclear how (or when) [or if] Hutchins was Mirandized. The FBI could have given Hutchins the actual Miranda warning, which makes it clear arrestees have both the right to remain silent and the right to an attorney. Or the agents could have decided the UK version was more applicable for the British citizen. This version does not guarantee the right to an attorney and notes remaining silent can be used against you in court.

Given the fact Hutchins is being prosecuted in the US, it's likely agents would have given him the American version. But there's no way to tell which version Hutchins received because the FBI's recording of the interrogation doesn't contain any recording of a Miranda warning being delivered.

After Mr. Hutchins was taken into custody, two law enforcement agents interviewed him at the airport. The memorandum of that interview generically states: “After being advised of the identity of the interviewing Agents, the nature of the interview and being advised of his rights, HUTCHINS provided the following information . . .” A lengthy portion of Mr. Hutchins’ interview with the agents was audio recorded. Importantly, however, the agents did not record the part of the interview in which they purportedly advised of him of his Miranda rights, answered any questions he might have had, and had him sign a Miranda waiver form.

If the government plans to introduce the interrogation recording as evidence, the lack of a recorded Miranda warning or signed Miranda waiver should weigh against the admissibility of any incriminating statements Hutchins might have made. Combine that with Hutchins' alleged mental state (exhausted, intoxicated) at the time of the questioning and the FBI may have proactively destroyed a substantial amount of first-hand testimony.

The motion to compel goes on to point out there's plenty of information the government has yet to turn over to the defense. Hutchins' defense still hasn't seen anything related to his alleged co-conspirator (who still remains at large) -- not even the information the government apparently received as the result of an MLAT (Mutual Legal Assistance Treaty) request sent to the co-conspirator's home country.

The defense also wants more info on the FBI's witness known only as "Randy." The government is trying to have it both ways here. "Randy" appears to be a witness, but the government has downgraded "Randy" to a mere "tipster" to avoid turning any info over on "Randy" to the defense. Informant confidentiality can be maintained under some circumstances, but not if the government is hoping to use this informant as a witness.

Here, the government’s refusal to disclose even the identity of “Randy’s” attorney is apparently the result of miscategorizing an important witness as a mere tipster. “Randy” is a cooperating witness, one whose provision of information to law enforcement was facilitated by consideration—proffer immunity, at the least—from the government. This circumstance alone weighs against continuing confidentiality because “Randy” surely knows his cooperation will be revealed…

The defense expects “Randy” to testify at trial because he is alleged to have had extensive online chats with Mr. Hutchins around the time of the purported crimes in which Mr. Hutchins discussed his purported criminal activity. Any communications and materials relating to “Randy” are therefore material to defense preparations.

Wheeler speculates the hide-and-seek nature of the government's handling of "Randy"-related material has something to do with "Randy's" possible lack of usefulness. Hence the last-minute downgrade of "Randy's" stature and the ongoing refusal to produce documents.

I’m guessing if the government were required to put “Randy” on the stand they’d contemplate dismissing the charges against Hutchins immediately. I’m guessing the government now realizes “Randy” took them for a ride — perhaps an enormous one. And given how easy it is to reconstitute chat logs — but here, it’s not even clear “Randy” has the chat logs, but just claimed to have been a part of them, in an effort to incriminate him — I’m guessing this part of the case against Hutchins won’t hold up.

The defense is also seeking discovery of the grand jury instructions. As noted earlier in this post, the government set a high bar for itself, offering up charges that require it to prove intent to harm, rather than simply the creation and distribution of malware. As the government appears to have only limited evidence related to proof of intent, it may have secured the indictment by glossing over the "intent" part of the charges. If the instructions were insufficiently clear, the indictment itself might be in trouble.

Wheeler suggests now might be the time for government to cut its losses and give Hutchins back his freedom. But, as she notes, the government prefers to double-down when on hole-digging in these situations. If the government is realizing its case against Hutchins is bullshit, it may dig in and impede discovery efforts just to make the accused pay for daring to fight back.

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Posted on Free Speech - 8 January 2018 @ 3:25am

It Took Only Three Days For Germany's New Hate Speech Law To Cause Collateral Damage

from the carpet-bombing,-but-for-speech dept

Germany's new hate speech law just went into effect at the beginning of the year and it's already paying off. But not in the way German government officials expected, nor in the way anyone who isn't in the German government wanted it to.

The law is a bad one: it criminalizes certain speech, which is already problematic. The problems go much deeper than that, though. Instead of targeting German citizens who post illegal speech, the government targets American social media platforms, demanding the removal of illegal posts in less than 24 hours on the pain of up to €50m fines. On top of that, employees of service providers tasked with removals can also be fined €5m personally for not reacting fast enough to government demands.

So, it's bad. And determining what is or isn't illegal is in the eyes of government beholders. Faced with the prospect of expensive fines, Twitter, Facebook, etc. are probably not going to be second-guessing many government requests for content deletion. Worse, it's going to encourage service providers to be proactive, amplifying the underlying vagueness of the German "hate speech" law. False positives are a given. We just didn't expect the collateral damage to occur so quickly.

A German satirical magazine’s Twitter account was blocked after it parodied anti-Muslim comments, the publication said on Wednesday, in what the national journalists association said showed the downside of a new law against online hate speech.

Titanic magazine was mocking Beatrix von Storch, a member of the right-wing Alternative for Germany (AfD) party, who accused police of trying “to appease the barbaric, Muslim, rapist hordes of men” by putting out a tweet in Arabic.

Twitter briefly suspended her account and prosecutors are examining if her comments amount to incitement to hatred.

Titanic magazine published its send-up late on Tuesday, in a tweet purporting to be from von Storch to the police, saying: “The last thing that I want is mollified barbarian, Muslim, gang-raping hordes of men.”

This was exactly what journalists (and satirists) were warning against as the hate speech law was being pushed through the legislature: collateral damage. Not only could the law potentially do harm to journalism, it was perfectly capable of damaging other forms of speech, like satire.

The magazine's writers are shocked at this turn of events. They likely didn't expect an American social media company to be making judgment calls on speech ahead of German censors. Prosecutors are "examining" the politician's comments for possible illegality, but no one seems too eager to explain why Twitter nuked a satirical account as well. The Titanic's publishers say Chancellor Merkel herself promised writers the law wouldn't have this effect. But here we are, observing this exact effect in motion -- one completely expected by everyone asking their representatives for a better, more narrowly-crafted law.

Laws regulating speech need light touches and deft craftsmanship. They rarely, if ever, get them. Germany's new speech law didn't even make it a week before it started taking out innocent bystanders. And the law's just getting started.

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Posted on Techdirt - 5 January 2018 @ 7:39pm

New York State Appellate Court Says Cell Site Location Records Have No Expectation Of Privacy

from the may-our-children-look-back-at-these-decisions-and-laugh-over-their-avocado-toast dept

The Supreme Court will deliver its ruling on the issue of cell site location info later this year, possibly changing the contours of the Third Party Doctrine for the first time since its erection out of thin air more than four decades ago. Until then, a patchwork of decisions has been handed down by state courts, some finding state law provides more protection for cell phone users than the US Constitution. At the federal level, however, years of precedent has resulted in a mostly-unified front by appellate courts. According to their decisions, cell site location info is a third-party record, undeserving of Fourth Amendment protections.

One of New York State's appellate courts has sided with the federal level. According to its recent decision, there are no privacy expectations in CSLI collected and stored by cell phone providers.

[W]e conclude that the acquisition of that information was not a search requiring a warrant under either the federal or state constitution. As the People point out, this case involves only historical cell site location information, contained in the business records of defendant's service provider, which placed his phone within a certain cell site "sector" at the time he used the phone to make calls, send text messages, or receive calls or messages.

Under these circumstances, we conclude that the acquisition of the cell site location information was not a search under the Fourth Amendment to the federal constitution because defendant's use of the phone constituted a voluntary disclosure of his general location to his service provider, and a person does not have a reasonable expectation of privacy in information voluntarily disclosed to third parties…

The court goes on to declare that even if it had felt like suppressing the evidence and extending privacy protections to CSLI, it wouldn't have helped the defendant.

As a final matter, we agree with the People that any error in the court's refusal to suppress defendant's cell site location information is harmless. The evidence of defendant's identity as a participant in the crime is overwhelming, and there is no reasonable possibility that the verdict would have been different if the location information had been suppressed…

This decision will stand even if the Supreme Court upends 40+ years of Third Party Doctrine rulings. Decisions like these are rarely retroactively applied. Even if Carpenter wins his Supreme Court case, it's likely the lower court will allow the evidence to remain in play, pointing out officers were reasonable to rely on precedential decisions finding no Fourth Amendment protections for third party records. The same goes for the defendant here. Post-decision alterations to the contours of the Constitution rarely help those whose rights have been determined to be violated after the fact.

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