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Posted on Techdirt - 31 July 2015 @ 7:39pm

Ridiculous 'Terrorist Reporting' Provision In Intelligence Authorization Would Undermine The First Amendment

from the don't-let-it-pass dept

A few weeks ago, we wrote about a troubling provision that the Senate Intelligence Committee had inserted into this year's intelligence authorization bill, which would require social networks to report to the government any "terrorist activity" they see on their systems. As we noted, this has all sorts of problems, and seems more designed to (1) generate headlines and (2) chill free speech than do anything useful. Thankfully, Senator Ron Wyden has put a hold on the bill specifically over this provision.

“There is no question that tracking terrorist activity and preventing online terrorist recruitment should be top priorities for law enforcement and intelligence agencies,” Wyden said, in a statement for the record today. “But I haven’t yet heard any law enforcement or intelligence agencies suggest that this provision will actually help catch terrorists, and I take the concerns that have been raised about its breadth and vagueness seriously.”

“Internet companies should not be subject to broad requirements to police the speech of their users,”Wyden continued.
But the issue goes even deeper than that. As Markham Erickson has written, there are significant free speech concerns raised by this provision, in large part because "terrorist activity" is not defined at all. Anywhere. It's just this vague term -- and given that companies may face liability for not reporting "terrorist activity" to the government, you can bet an awful lot of perfectly fine and protected speech is going to get reported. And that's worrisome.
A key problem with Section 603, however, is that the trigger for the reporting mandate is based on the vague and undefined term “terrorist activity.” This term is not a term of art in the US criminal code and arguably goes well beyond criminal activity to speech that is protected under the First Amendment.
Erickson also points out that the comparison that supporters have made of this bill to one that requires companies to report child porn, is that child porn is "per se unlawful and never protected speech" under the US Constitution. But "terrorist activity" is just vague.
The NCMEC reporting obligations, however, relate to images that are per se unlawful and are never protected speech under the US Constitution. A government mandate that an Internet company report facts and circumstances connected to the vague and overbroad term “terrorist activity” certainly would result in overbroad reporting to the government of speech that is protected under the First Amendment.
And, on top of that, this move would give other countries a blueprint for how to demand tech companies hand over information on users:
More troubling, if adopted, the provision would serve as a global template for other countries to impose reporting requirements for activities those jurisdictions deem unlawful. This would be particularly problematic with countries that regulate speech, including political speech, and with authoritarian regimes that would demand that Internet companies police their citizens’ activities.
And, finally, as noted, with such a vague term, and the threat of serious liability, companies are going to be pressured into serious over-reporting:
Section 603 also creates a practical compliance problem. Because no one knows the definition of “terrorist activity,” how does one counsel a client to establish a compliance protocol under the proposal?

Any company would be at risk that if it did not report “terrorist activity,” it could be liable if there were a subsequent event that resulted in loss of life, limb, or property. Likely, this would result in designing a protocol to over-report anything that could be considered “terrorist activity.” Given the massive scale of content shared and created on the Internet daily, this would result in reporting of items that are not likely to be of material concern to public safety and would create a “needle in the haystack” problem for law enforcement. This serves no one’s purposes and adds privacy concerns to the First Amendment concerns noted above.

This creates a perverse incentive for a company to avoid obtaining knowledge of any activity that would trigger the reporting requirement—the exact opposite of what the proponents of the legislation want. Yet, designing such an avoidance protocol is nearly impossible. If even one low-level employee received an over-the-transom email about a “terrorist activity,” knowledge of the activity can be imputed to the entire company – exacerbating the potential liability faced by an Internet company.
Of course, these days, it seems like most in the Senate go by headlines rather than actual understanding of the issues. Hopefully, at least this one time, they'll actually listen to Senator Wyden.

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Posted on Techdirt - 31 July 2015 @ 3:44pm

Freedom Of The Press Foundation Sues DOJ Over Its Secret Rules For Spying On Journalists

from the a-little-transparency-please dept

The wonderful Freedom of the Press Foundation is now suing the US Justice Department for refusing to reveal its rules and procedures for spying on journalists. You can read the complaint here. The key issue: what rules and oversight exist for the DOJ when it comes to spying on journalists. As you may recall, a few years ago, it came out that the DOJ had been using some fairly sneaky tricks to spy on journalists, including falsely telling a court that reporter James Rosen was a "co-conspirator" in order to get access to his emails and phone records. In response to a lot of criticism, the DOJ agreed to "revise" its rules for when it snoops on journalists.

However, there was an important limitation on the "new" rules, as the NY Times noted at the time:

There is no change to how the F.B.I. may obtain reporters’ calling records via “national security letters,” which are exempt from the regular guidelines. A Justice spokesman said the device is 'subject to an extensive oversight regime.'
Extensive oversight regime, eh? The Freedom of the Press Foundation sought to find out just what kind of extensive oversight there really was -- and came up against a brick wall in the form of black redaction ink:
That's from the DOJ's Inspector General report, concerning a situation where the FBI had used an NSL to access a journalist's communications inappropriately. As the Freedom of the Press Foundation notes, elsewhere in that same report, it appears that the FBI is actually ignoring recommendations of the Inspector General concerning these situations, despite the "First Amendment interests implicated."
As the Foundation notes, the redactions here make the details entirely opaque, and the Inspector General's Office has made it clear that it disagreed with the redactions, saying that revealing the information behind that black ink "is important to the public's understanding of the FBI's compliance with NSL requirements." Given that the Foundation is now suing to find out those details. The lawsuit specifically requests that the DOJ reveal those documents in their entirety, which includes the "extensive regime, rules, guidelines, or infrastructure that oversees the issuance of NSLs or exigent letters to obtain records regarding a member of the media" as well as "the current procedures that FBI agents must undertake in advance of issuing a NSL or exigent letter to obtain records regarding any member of the media."

I'm going to go out on a limb here and say that the DOJ will reply, hysterically, that revealing this kind of information will put national security at risk and could reveal important law enforcement gathering techniques that will aid those out to harm us or some such crap. Perhaps they'll even toss in a request to dump the entire case for reasons of "national security." Just recognize that this is all busllshit. The request here is not for any details that are going to help any criminals get away with anything. All it is asking for is what process the FBI uses to make sure that it's not violating the First Amendment in spying on journalists. If that's something that needs to be kept secret, there can be only one reason: because the FBI is embarrassed by what it's doing in spying on journalists.

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Posted on Techdirt - 31 July 2015 @ 2:30pm

Judge Curious If Malibu Media Is Seeding Its Own Files And Engaged In Copyright Misuse

from the questions-to-ponder dept

It appears that a judge has begun to get a little more curious about copyright troll giant Malibu Media and how it goes about finding "infringers" to shakedown with settlement agreements. In the past, evidence showed that other similar copyright trolls like Prenda, were engaged in seeding their own content, which would make the file authorized, and thus the shakedown letters a form of "copyright misuse." There have long been rumors that Malibu Media, perhaps in association with the infamous "international men of mystery" running the behind-the-scenes operation out of Germany, may be seeding their own files as well.

Now, as Raul points out, it appears that at least one judge is willing to allow discovery on this point in one of the cases, involving Malibu Media against Matt Guastaferro in a Virginia court, and to examine if Malibu Media has "unclean hands" as a result of this:

In this case, Defendant has alleged that Plaintiff's claims are barred by the [unclean hands] doctrine "as Plaintiff's use of its copyrights violates public policy." ... Such an allegation does not appear to trigger the doctrine because it says nothing of how Malibu Media "encouraged, invited, aided, compounded, or fraudulently induced" Defendant's allegedly wrongful conduct.... Defendant's response to this motion, however, sets forth factual averments that do appear to support his invocation of the doctrine. For instance, he assets that "IPP or another agent of Malibu Media is responsible for initially seeding some of Malibu's content onto BitTorrent in the first place and for facilitating infringing downloads by BitTorrent users" in an attempt "to extract exorbitant sums from individuals for alleged copyright infringement."...

Malibu Media has moved to strike this defense on the basis that he has "not sufficiently alleged copyright misuse." ... In support thereof, he relies upon a recent decision of this Court, in which it granted Malibu Media's motion to strike "because Plaintiff cannot have unclean hands if Defendant did not sufficiently plead copyright misuse." .... The Court respectfully disagrees with this conclusion and considers the defense one that is better suited for resolution following discovery. Indeed, the Fourth Circuit did not premise its decision barring the copyright infringement claim pursuant to the doctrine of unclean hands on an associated defense of copyright misuse.... Thus, the pleading requirement that Plaintiff urges here does not appear to exist.

Accordingly, because Plaintiff is on notice of Defendant's allegations that it "seeded" some of its content onto BitTorrent for the purpose of extracting settlements in the numerous copyright infringement suits that it has filed, the Court will decline to strike this defense as well.
This may not lead to anything, but it's fairly amazing that courts haven't been digging that deeply into Malibu Media's practices in similar cases.

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Posted on Techdirt - 31 July 2015 @ 10:16am

James Woods Sues Random Trollish Twitter User For $10 Million Over Clearly Hyperbolic Tweet

from the slappity-slapp-slapp dept

Eriq Gardner, over at the Hollywood Reporter, was the first of a few sites to post the story of how actor James Woods is ridiculously suing a trollish Twitter user for $10 million, arguing that a single tweet from this guy, Abe List, who had all of 2,000-ish followers, somehow hurt Woods' reputation. This is not just hard to believe, but it seems to be dipping into flat out SLAPP territory. The full filing is worth reading, and suggests that maybe, just maybe, Woods needs a hobby (and slightly thicker skin). At issue is the Twitter user who goes by the name "Abe List." Whoever that is appears to be a slightly annoying/trollish Twitter user, who has particularly delighted in annoying conservatives on Twitter. A few weeks ago, Woods made a bizarre and slightly nonsensical tweet involving Caitlyn Jenner and Planned Parenthood (don't ask), and Abe List shot back with:

"@RealJamesWoods @benshapiro cocaine addict James Woods still sniffing and spouting."

-- Abe List (@abelist) July 15, 2015
There are a few other historical tweets from Abe List mocking Woods, including one from December calling him a "clown-boy." Clown-boy is clearly not defamatory. The question here is if "cocaine addict" is defamatory. It is a statement of fact, and if it's not actually true, it could potentially be defamatory, but that's hardly the end of the story. As a very public person, Woods would have to show that whoever is behind "Abe List" published the claim "with actual malice." And "hey, I don't like James Woods and think he's a clown boy with stupid views" is hardly "actual malice." It would mean that Abe List either knew it was false and tweeted it anyway, or had "reckless disregard for the truth." That seems unlikely to hold up.

Furthermore, it's fairly clear that, given the context -- both Twitter and Abe List's usual tweets -- that the tweet that so concerns Woods is, at best, hyperbolic mocking on the internet, which wouldn't be defamation either.

And here's the real kicker in all of this: this was a random @reply tweet from a user with around 2000 followers (2,276 when I took a screenshot of his account, right before he took it down entirely). If you're not familiar with how @replies work, if you start a tweet with @username, the only people who will see it directly in their timelines are those who follow both users. That is, the only people who would have seen that tweet show up are people who happen to follow both @RealJamesWoods and @abelist. That venn diagram is likely to be tiny and well less than the 2,276 followers of @abelist. It's possible that if someone opened Woods' original tweet to see how others responded then some of them might have also seen the @abelist tweet -- but the likely number is tiny. And, of course, the only people who would have taken it seriously are idiots. It's pretty clearly just someone spouting off, as people are known to do on the internet.

And, yet, rather than letting this tweet fade into obscurity, as it normally would, Woods has decided to sue for $10 million, apparently based on the idea that lots of people actually saw this tweet (they didn't), and that they were likely to believe such a throwaway claim (which they wouldn't). And the end result is that many, many, many, many more people are not only seeing this tweet and (perhaps for the first time) wondering about whether or not Woods has a cocaine habit, but are also learning that Woods appears to have a ridiculously thin skin -- such that he's upset by the fact that some nobody on the internet called him "clown-boy."
Woods' claims arise out of and are for damages with respect to a false and defamatory statement which was initially published on or about July 15, 2015 by an unidentified anonymous person who created and who operates a Twitter account under the name "Abe List" (the "AL Twitter Account"). The owner of the AL Twitter Account has thousands of followers and, since at least December 2014, has undertaken to engage his followers with a campaign of childish name-calling targeted at Woods. In the past, AL has referred to Woods with such derogatory terms as "prick," "joke," "ridiculous," "scum" and "clown-boy."
These are, in fact, mostly childish. But, that's not illegal. We can all say that James Woods is a ridiculous, prick, clown-boy for suing people on Twitter, and it's not defamatory. In fact, as Ken "Popehat" White points out, the above section actually undermines any case Woods might have, by adding in more context about how Abe List is a trollish Twitter user looking to provoke people he doesn't like. And again, the "thousands" of followers is only true in the "very barely" sense, and the idea that more than a few of those saw the tweet in question is unlikely (again, they need to be followers of both individuals and actually read all their tweets.

But Woods and his lawyer don't seem to have the first clue about how Twitter works. To make the case that more people saw this, Woods is arguing that if you did a Google search on "Abe List James Woods" that tweet would show up along with the one calling Woods "a ridiculous scum clown-boy."

Of course, these days, I'm sure lots of other stuff comes up.

Woods presents zero evidence that anyone, other than James Woods himself (and his lawyers) was busily googling "Abe List James Woods" and yet, he somehow claims that this is evidence that "hundreds of thousands" of people may have seen the tweet.
AL published, and/or caused to be published or authorized to be published, the False Statement on the AL Twitter Account and in current (as of the date of this Complaint) Google.com search engine results, causing the False Statement to be viewed thousands of times and possibly even hundreds of thousands of times
And that's based on what appears to be a near total cluelessness about how Twitter, Google and the internet work. What a clown-boy.

So, not only does this ridiculous lawsuit drive much more attention to the various insults, and even the possibly false statement, it also could open up Woods to a pretty significant anti-SLAPP ruling. We've covered many times how California has a strong anti-SLAPP law that lets people quickly respond when it's clear that the only reason they're being sued is to shut them up. Under California's anti-SLAPP law, whoever is behind Abe List may be able to not just get the case tossed out quickly, but get Woods to pay for his lawyers. What a ridiculous clown-boy move by Woods and his lawyers.

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Posted on Techdirt - 31 July 2015 @ 7:16am

4th Amendment Lives: Court Tells US Government Get A Warrant If It Wants Mobile Phone Location Info

from the look-at-that dept

A potentially big ruling came out of the courtroom of Judge Lucy Koh yesterday, in which she affirmed a magistrate judge's decision to tell the government to get a warrant if it wants to obtain historical location info about certain "target" mobile phones (officially known as "Cell Site Location Info" -- or CSLI). The government sought to use a provision of the Stored Communications Act (a part of ECPA, the Electronic Communications Privacy Act) to demand this info without a warrant -- using a much lower standard: "specific and articulable facts" rather than the all important "probable cause." Judge Koh says that's doesn't pass 4th Amendment muster, relying heavily on the important Supreme Court rulings in the Jones case, involving attaching a GPS device to a car, and the Riley case about searching mobile phones.

Based on the preceding U.S. Supreme Court cases, the following principles are manifest: (1) an individual’s expectation of privacy is at its pinnacle when government surveillance intrudes on the home; (2) long-term electronic surveillance by the government implicates an individual’s expectation of privacy; and (3) location data generated by cell phones, which are ubiquitous in this day and age, can reveal a wealth of private information about an individual. Applying those principles to the information sought here by the government, the Court finds that individuals have an expectation of privacy in the historical CSLI associated with their cell phones, and that such an expectation is one that society is willing to recognize as reasonable.
This is big. Obviously, the government is likely to appeal, and so as a first pass, this might seem meaningless. We've still got an appeals court (and possibly a rehearing) and a Supreme Court to get to, but as a first ruling, it's a good one. Koh's analysis is pretty thorough. It notes the similarities to both the Jones and Riley cases:
Here, as in Jones, the government seeks permission to track the movement of individuals—without a warrant—over an extended period of time and by electronic means. CSLI, like GPS, can provide the government with a “comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Riley, 134 S. Ct. at 2490 (quoting Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring)). With the proliferation of smaller and smaller base stations such as microcells, picocells, and femtocells—which cover a very specific area, such as one floor of a building, the waiting room of an office, or a single home, ...—the government is able to use historical CSLI to track an individual’s past whereabouts with ever increasing precision. See Riley, 134 S. Ct. at 2490 (explaining that a cell phone’s “[h]istoric location information . . . can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building”). At oral argument, the government agreed that in some instances CSLI could locate an individual within her home, ... and did not dispute that CSLI will become more precise as the number of cell towers continues to multiply.... This admission is of constitutional significance because rules adopted under the Fourth Amendment “must take account of more sophisticated systems that are already in use or in development.”...

In fact, the information the government seeks here is arguably more invasive of an individual’s expectation of privacy than the GPS device attached to the defendant’s car in Jones. This is so for two reasons. First, as the government conceded at the hearing, over the course of sixty days an individual will invariably enter constitutionally protected areas, such as private residences.... Tracking a person’s movements inside the home matters for Fourth Amendment purposes because “private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable.” Karo, 468 U.S. at 714; see also Kyllo, 533 U.S. at 31 (“At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” (internal quotation marks omitted)). As one court put it, “Because cellular telephone users tend to keep their phone on their person or very close by, placing a particular cellular telephone within a home is essentially the corollary of locating the user within the home.” ....

Second, the government conceded at oral argument that, compared to GPS tracking of a car, the government will “get more information, more data points, on the cell phone” via historical CSLI... (“But, yes, of course the person has the phone more than they have their car, most people at least do, so it gives [the government] more data.”). Cell phones generate far more location data because, unlike the vehicle in Jones, cell phones typically accompany the user wherever she goes.... Indeed, according to a survey cited by the U.S. Supreme Court in Riley, “nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.”....
Judge Koh points to some survey data from Pew (sent in by EFF) noting that many, many people consider their location information to be "sensitive information" and, on top of that, the fact that CSLI is generated even if someone turns off the GPS or "location data" features on their phone -- meaning they can't even opt out of generating such information to try to keep it private.

More importantly, Judge Koh takes on the issue of the infamous third party doctrine and the awful Smith v. Maryland precedent, which says you have no expectation of privacy in data held by third parties. To date, the Supreme Court has punted on this issue in the Jones and Riley cases. However, Koh addresses the issue head on, and says the third party doctrine should not apply to phone location data like this. The key issue: in the Smith case, the "information" that was given to the third party was the phone number being dialed. This was information that the caller voluntarily conveyed to the phone company in order to make the call. Judge Koh points out that this information is quite different:
Cell phone users, by contrast, do not “voluntarily convey” their location to the cellular service provider in the manner contemplated by Miller and Smith. This is especially true when historical CSLI is generated just because the cell phone is on, such as when cell phone apps are sending and receiving data in the background or when the cell phone is “pinging” a nearby cell tower. As the government’s FBI special agent explained, “CSLI for a cellular telephone may still be generated in the absence of user interaction with a cellular telephone.” .... “For example,” the special agent continued, CSLI may be generated by “applications that continually run in the background that send and receive data (e.g. email applications).” ... At oral argument, the government confirmed that its § 2703(d) application authorizes the government to obtain historical CSLI generated by such activities.

[....] In so doing, a cell phone periodically identifies itself to the closest cell tower—not necessarily the closest cell tower geographically, but the one with the strongest radio signal—as it moves through its network’s coverage area.... This process, known as “registration” or “pinging,” facilitates the making and receiving of calls, the sending and receiving of text messages, and the sending and receiving of cell phone data.... Pinging nearby cell towers is automatic and occurs whenever the phone is on, without the user’s input or control.... This sort of pinging happens every seven to nine minutes....

In Miller and Smith, the individual knew with certainty the information that was being conveyed and the third party to which the conveyance was made. Cell phone users, on the other hand, enjoy far less certainty with respect to CSLI. CSLI, in contrast to deposit slips or digits on a telephone, is neither tangible nor visible to a cell phone user. When the telephone user in Smith received his monthly bill from the phone company, the numbers he dialed would appear.... The CSLI generated by a user’s cell phone makes no such appearance.... Rather, because CSLI is generated automatically whenever a cell tower detects radio waves from a cell phone, a cell phone user typically does not know that her phone is communicating with a cell tower, much less the specific cell tower with which her phone is communicating.... It may be, as the government explained, that a cell phone connects to “many towers” during the length of a call,... and the tower to which a cell phone connects is not necessarily the closest one geographically.... Moreover, when an app on the user’s phone is continually running in the background, ... she may not be aware that the cell phone in her pocket is generating CSLI in the first place.
And thus, even with the third party doctrine, this information is quite different than that discussed in the Smith v. Maryland case, which involved phone numbers dialed:
In light of the foregoing, the Court concludes that historical CSLI generated via continuously operating apps or automatic pinging does not amount to a voluntary conveyance of the user’s location twenty-four hours a day for sixty days. Such data, it is clear, may be generated with far less intent, awareness, or affirmative conduct on the part of the user than what was at issue in Miller and Smith. Unlike the depositor in Miller who affirmatively conveyed checks and deposit slips to the bank, or the telephone user in Smith who affirmatively dialed the numbers recorded by the pen register, a cell phone user may generate historical CSLI simply because her phone is on and without committing any affirmative act or knowledge that CSLI is being generated. Smith, for example, never contemplated the disclosure of information while the landline telephone was not even in use.

This sort of passive generation of CSLI does not amount to a voluntary conveyance under the third-party doctrine.
Judge Koh notes that this ruling isn't rejecting the ruling in Smith -- rightly noting that only the Supreme Court can determine that it's no longer good law -- but notes that the ruling there is different enough from this one that it does not apply. Ideally, the Supreme Court will get around to rejecting the ridiculous third party doctrine altogether, but if it must stand, a ruling like this is helpful in returning just a bit of 4th Amendment protected privacy to the American public.

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Posted on Techdirt - 31 July 2015 @ 5:05am

Yes, German Authorities Are Pushing Treason Charges Against Netzpolitik For Publishing Surveillance Plans

from the this-is-ridiculous dept

A few weeks ago, we reported that it appeared German investigators were investigating the excellent German news site Netzpolitik, which covers a lot of the same issues that we do at Techdirt, with a similar sensibility. Netzpolitik had just published stories concerning plans to expand German bulk surveillance efforts to internet users, as well as plans by the German Secret Service to expand its internet surveillance capabilities. As part of this, the site (like we do) published source documents concerning those plans. The site's editor-in-chief Markus Beckedahl, noted:

Naturally, we uploaded the original documents relating to our article because there was still enough disk space and because it is part of our philosophy to enable our readers to inform themselves using the original source. Thus, they can scrutinise us and our reporting.
This resulted in claims of an investigation for "treason," though some later clarified that it appeared that the investigation was into who leaked the info to Nezpolitik, and the site's staff were seen as witnesses, rather than potential defendants. Except... nope. It looks like the original fears were accurate.

Netzpolitik has received a letter from the German government telling it that Netzpolitik staffers are being investigated for treason:
If it were up to the Federal Attorney General and the President of the German Domestic Security Agency, two of our reporters would soon be in prison for at least two years. Today, we were officially informed about investigations against our Markus Beckedahl, Andre Meister and an "unknown" party. The accusation: Treason.

Today, we received a letter from the Federal Attorney General of Germany confirming ongoing investigations against our reporters Markus Beckedahl, Andre Meister and an "unknown" source, suspecting us of treason according to the German Penal Code:
Whosoever […] allows a state secret to come to the attention of an unauthorised person or to become known to the public in order to prejudice the Federal Republic of Germany or benefit a foreign power and thereby creates a danger of serious prejudice to the external security of the Federal Republic of Germany, shall be liable to imprisonment of not less than one year.
Until now, we were reported merely as witnesses in the case, but now we shall be held responsible (for treason) like our unknown source(s) – as joint principals.
As Netzpolitik itself notes, this is an incredible attack on the freedom of the press, and the site says it's geared up to fight. Either way, this should really call into question the priorities of the German government, looking to intimidate reporters, rather than hold an open debate about surveillance practices. Makes you wonder what else they're afraid is going to come out....

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Posted on Techdirt - 31 July 2015 @ 3:05am

Contrary To What You've Heard, TPP Will Undermine US Law -- Including Supreme Court Decisions

from the isn't-this-a-problem? dept

One of the key lines of pure unadulterated bullshit spread by the USTR concerning the Trans Pacific Partnership (TPP) agreement is that it won't lead to significant changes in US law. That's just wrong. As KEI points out, it's pretty clear that the current text would completely undermine key Supreme Court rulings concerning state sovereign immunity from intellectual property disputes. Zack Struver and Tazio De Tomassi created a short video explaining why:

The specific issue is that, under the 11th Amendment to the Constitution, state governments are given "sovereign immunity" from most legal issues in federal court. And, when it comes to things like patents, the Supreme Court decided that Congress could not pass a law that takes away such sovereign immunity from the states.

In practice, this means state governments -- including things like research universities -- are able to infringe on patents in the public interest, claiming sovereign immunity in state courts against such claims. We've pointed out in the past how hypocritical it is that state universities frequently use such sovereign immunity claims to avoid lawsuits, while at the same time being some of the most aggressive patent trolls in going after others (with the University of California being a prime example). However, it is the law of the land and in the Constitution that sovereign immunity on things like patents cannot be abridged.

Yet, as the video above notes, the TPP appears to get rid of that, and would open up states, at the very least, to these international corporate sovereignty tribunals (also known as Investor State Dispute Settlement, or ISDS, tribunals).

In other words, the USTR may single-handedly undermine the Constitution's 11th Amendment, overturning Supreme Court precedent on the subject in a deal negotiated entirely in secret, with patent holders (who hate the sovereign immunity protections) as the key advisors. That's not how our government is supposed to work.

The threat here isn't just theoretical. Beyond the various patent cases that universities and state governments have been able to toss out via sovereign immunity, the video mentions the infamous lawsuit against Georgia State University over its e-reserves program. While that case has focused on the fair use questions involved, it's entirely possible that Georgia State could also claim sovereign immunity. And since the plaintiffs suing Georgia State are "foreign" publishers (including Oxford University Press and Cambridge Press), under the ISDS system, rather than going to a US court that would recognize sovereign immunity, they could just go to an ISDS tribunal which wouldn't care about sovereign immunity.

Do we really want the USTR completely wiping out part of our Constitution (which has helped enable university research) via a secretive trade agreement with no public accountability?

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Posted on Techdirt - 30 July 2015 @ 1:55pm

Judge Bars Anti-Abortion Group From Releasing Video... Raising Serious First Amendment Questions

from the have-you-heard-of-prior-restraint dept

What is it with judges and prior restraint lately? A judge in a Los Angeles Superior Court has issued a temporary restraining order blocking an anti-abortion group from releasing a video. And, yes, obviously, anything involving abortion is going to be controversial, no matter what your stance on the issue is -- and this also involves the same group that made plenty of headlines recently over some other videos involving Planned Parenthood. I'm hoping that folks here will pay attention to the First Amendment issue, rather than get into any sort of ideological argument over the parties involved or their campaigns because you're not going to convince anyone, no matter what side you're on, and you're likely to just piss everyone else off -- so leave those debates for other sites please.

Instead, the real question here is whether or not a court can actually do this. As per usual, Popehat has a good post detailing why this is most likely unconstitutional prior restraint, but might not be. Kinda. Sorta. Barely.

You can read the filing for the restraining order (h/t to Adam Steinbaugh who dug out the complaint), which comes from a life sciences company named StemExpress, and makes all sorts of claims, which can basically be summed up as "we thought our conversations were private!" And you can read the actual temporary restraining order, which is much more limited than what StemExpress requests.

It appears the crux of the argument is (1) that California is a two party consent state for recordings (which is stupid, but that's another issue for another day) and (2) the representatives for the faux company who were actually a part of this group that set up the meeting signed a non-disclosure agreement. The first part probably doesn't much matter for the question of the restraining order (it absolutely could lead to other legal issues and problems for the group that made the recording), as it's still a form of prior restraint. The second issue, however, is at least a bit more compelling because one could make an argument that the group that made the recording proactively waived their First Amendment rights in signing that agreement -- and thus the court was effectively enforcing the agreement that the parties had agreed to themselves.

Still, as Popehat notes, there is woefully little discussion of the First Amendment/prior restraint questions:

Remarkably, StemExpress' TRO application contains no prior restraint analysis whatsoever. Its sole concession to the First Amendment is an argument that (1) this isn't a First Amendment violation because it's an illegal recording, and (2) it's not a First Amendment violation because the defendants are free to speak or write about what happened at the meeting, they just can't release the recording. We don't have a transcript of the hearing, and we don't know what other arguments the court may have considered, but this is troubling.

In my opinion, StemExpress could have made a decent argument if it had focused on the apparent fact that CMP signed nondisclosure agreements and then violated them. First Amendment rights are broad, but can be deliberately waived. That's why confidentiality and nondisclosure agreements are often enforceable. While the state of the law isn't perfectly clear, there's a colorable argument that threatened breach of a nondisclosure agreement may be a basis for prior restraint if the underlying confidentiality interest is strong enough. It's not a bulletproof argument, but it's much better than ignoring the prior restraint issue entirely.

In sum: if the court based the prior restraint on a violation of California's secret-recording law, I think it probably violates the First Amendment. But the order might be sustainable because CMP engaged in the dubious practice of signing a pledge of confidentiality with the intent of breaking it.

Of course, Popehat also notes that if the group already gave the video to someone else -- such as a journalist -- the court can't block that group from releasing it, as that is definitely prior restraint.

In short, chances are that this video is going to get out no matter what eventually -- and to some extent, this lawsuit and request for a restraining order is only likely to draw more attention to the whole thing in the first place (and the fact that StemExpress doesn't want it to come out).

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Posted on Techdirt - 30 July 2015 @ 12:33pm

New Zealand Prime Minister Admits Drug Prices Will Rise Under TPP -- Leaves Out The Part About More People Dying

from the gotta-help-out-those-corporate-interests dept

As we're in the middle of crunch time for the final TPP negotiations, New Zealand's Prime Minister John Key has finally admitted what many experts have been saying for years -- that under the TPP, drug prices will undoubtedly rise, because it extends monopoly protections on important medicines. Key tries to play this off as no big deal, because it's the government paying for the medicine so the public won't notice (leaving aside the fact that it's their tax dollars). However, folks who actually understand basic economics note that, when the price goes up, access to drugs gets more difficult even in New Zealand, where it's noted that some key life saving drugs have not been made available because they're too expensive. One doctor in New Zealand talked about how other expensive drugs are not available:

He said 300 people died of malignant melanoma each year. Patients would benefit from using the new drug but it cost $100,000 to $200,000 annually for each person. In total that would cost the drug-buying agency Pharmac $30 million to $60 million a year.

Dr Fitzharris said that under TPP it was likely getting access to these new, more effective drugs would be delayed even further.

Medicines New Zealand says the most recent OECD report shows New Zealand comes last out of 20 countries when it comes to access to new medicines.
Back in the US, even a bunch of Congresscritters who voted in favor of giving the USTR fast track authority appear to be having a bit of buyer's remorse as they've asked the USTR to explain why it appears the current draft of the TPP will make drugs more expensive rather than less.
We are concerned that the TPP would fail this scrutiny if it does not meet or exceed the standards set under the May 10th Agreement, reached by House Democrats and the Bush White House in 2007, with respect to timely access to affordable medicines in developing countries.
And even the AARP has stepped in to point out that it appears the TPP is going to make it more difficult for the US elderly to afford drugs:
Specifically, AARP objects to intellectual property provisions in the draft TPP agreement that unduly restrict competition by delaying consumers’ access to lower-cost generic drugs. These anticompetitive provisions include extending brand drug patent protections through “evergreening” drug products that provide little to no new value and prolong high prescription drug costs for consumers, linking approval to market generic or biosimilar drugs to existing patents in a way that protects only brand drugs, and increasing data exclusivity periods for biologics that further delays access by other companies to develop generic versions of these extremely high-cost drugs. These provisions are all designed to ensure monopoly control by brand-name drug companies.
How can the USTR and the Obama administration continue to insist that the TPP is in the public interest when it's abundantly clear that it's in the pharmaceutical companies' interests instead?

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Posted on Techdirt - 30 July 2015 @ 11:22am

Google To French Regulators Looking To Expand 'Right To Be Forgotten' Globally: Forget About It

from the forget-you dept

Earlier this summer we wrote about some ridiculous demands coming out of France, asking that Google expand the "right to be forgotten" globally. As you hopefully already know, last year, a European court came out with a troubling ruling that required Google into a sort of "right to be forgotten" situation, where links associated with someone's name that were magically deemed no longer relevant, needed to be "de-linked." Google reluctantly complied, and has since been busy de-linking many individuals from totally factual news stories about them. But, given that this was the law in Europe, it only did so in Europe.

That resulted in the complaint from France -- to which Google has now responded by saying it will not comply with a global right to be forgotten, because the results would be catastrophic for free speech and the open internet:

This is a troubling development that risks serious chilling effects on the web.

While the right to be forgotten may now be the law in Europe, it is not the law globally. Moreover, there are innumerable examples around the world where content that is declared illegal under the laws of one country, would be deemed legal in others: Thailand criminalizes some speech that is critical of its King, Turkey criminalizes some speech that is critical of Ataturk, and Russia outlaws some speech that is deemed to be “gay propaganda."

If the [French regulator's] proposed approach were to be embraced as the standard for Internet regulation, we would find ourselves in a race to the bottom. In the end, the Internet would only be as free as the world’s least free place.

We believe that no one country should have the authority to to control what content someone in a second country can access. We also believe this order is disproportionate and unnecessary, given that the overwhelming majority of French internet users—currently around 97%—access a European version of Google’s search engine like google.fr, rather than Google.com or any other version of Google.
I can't see into the future, but I'll take a wild guess and suggest that the French regulators aren't going to just back down following this response, no matter how reasonable and rational it is. European regulators continue to seem to think the internet can be twisted, censored and molded in their own interest, and don't seem to understand just how badly that will backfire. It's likely that this simple explanation will fall on deaf ears and there will soon be a big fight over this. Stay tuned.

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Posted on Techdirt - 30 July 2015 @ 10:16am

DA Claims He'll Charge Drone Operators Near Wildfires For Murder

from the really-now? dept

Should someone who flies a drone near a wildfire be charged with murder if someone dies in that fire? At least one California District Attorney is insisting he's going to bring such charges should that situation occur.

It's wildfire season out here in California, and the story of the summer seems to be about drones and wildfires. There have been a whole bunch of stories about private drones somehow interfering with firefighting aircraft. The stories are almost always extremely vague with very few details. It's entirely possible that these stories are completely accurate -- and I certainly don't deny that it's possible that a drone could interfere with firefighting aircraft in some manner. However, something about these stories really has the feel of your typical local news exaggeration/moral panic. The coverage is always by local TV news reporters. The details are slim, but the moral panic aspect is ratcheted up quite high.

And... soon after, politicians and grandstanding law enforcement get involved. I have no problem with something like an education campaign about the potential dangers of flying drones near wildfires and how they could hinder firefighting efforts. That seems perfectly reasonable. But politicians are not just looking to educate, they're offering a $75,000 bounty for identifying such drone operators and proposing a new law that would make flying a drone over a forest fire a federal offense with fines and up to five years in prison.

And... that's not all. In the press release from San Bernadino County that offers up that $75,000 bounty, the local District Attorney Mike Ramos says that he'll go after drone operators with murder charges if people die in a fire "due to" the drone operations:

District Attorney Mike Ramos warned drone operators that they could and would be prosecuted for murder if their drones led to the death of a fire-fighting flight crew or anyone on the ground.
Of course, determining that a drone "led to the death" of anyone seems like a pretty big stretch -- and as far as I can tell, in all of the hysteria of drones and wildfires in the last month or so, there have been no deaths at all. But it seems like a huge stretch to argue that flying a drone over a fire can lead to murder charges. In the past, murder charges related to fires have been focused on things like arsonists who deliberately set the fire, rather than those who were just looking to observe or film the fire, and through their own ignorance got in the way of firefighting efforts.

Again, this isn't to diminish the possibility of real risks and potential damages from drones interfering with firefighters, but so much of this reads like a typical local news moral panic, and tossing in the threat of murder charges for flying a personal drone to observe a wild fire seems to go beyond any sense of reason. It feels like law enforcement issuing a bogus threat to try to sound serious.

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Posted on Techdirt - 30 July 2015 @ 7:42am

Now That USTR Has Fast Track, Hollywood Ramps Up Demands While USTR Brushes Off Public Interest Group Concerns

from the because-of-course dept

You had to know this was going to happen. Now that the US Trade Rep (USTR) has fast track authority after Congress caved in and passed the Trade Promotion Authority bill, efforts have ramped up to complete the Trans Pacific Partnership Agreement with meetings in Hawaii this week. Of course, with fast track in hand, the USTR doesn't need to concern itself at all with things like the "public interest" anymore and can focus on the real agenda: big corporate interests. Reports from the negotiations include one from the legal policy adviser from Doctors Without Borders, noting that the USTR organized a briefing for "US stakeholders," but only invited industry representatives. Oh, and the US Chamber of Commerce (the main lobbyists for SOPA) was allowed to book a room next to the negotiating room and got a private briefing from the USTR. Meanwhile, James Love from KEI notes that in a USTR briefing, USTR staffers are deliberately ignoring anyone representing the public interest.

You know who they are listening to, however? You guessed it: Hollywood. Politico notes that now that fast track is in hand and the USTR has more or less free rein in completing the negotiations, Hollywood has jumped in with a bunch of demands to expand copyright laws via TPP:

We've seen the Hollywood versus tech copyright fight play out over everything from SOPA to the Library of Congress. Now the major movie studios are pushing for key items on their wish list as negotiators hammer out the final details of an Asia-Pacific trade agreement. The studios hope the 12 countries working on the pact will agree to copyright protections that, in many cases, last longer than what’s currently in place, Pro Trade’s Doug Palmer reports.

The movie studios also want stricter penalties on piracy, especially as Internet access expands throughout the region.
And, because the USTR almost always gives in to Hollywood (it helps that the MPAA hired the top USTR negotiator on IP last year, so the current negotiators recognize that their next jobs are on the line with this agreement), it appears that the US has convinced a bunch of other countries -- who should know better -- to agree to lock in a life + 70-year copyright term, even as the US Copyright Office has suggested that current copyright terms are too long and should be scaled back.

There is no way to explain this as anything but selling out the public interest to appease corporate interests of Hollywood. It's a fairly disgusting display of the kind of "dealmaking" that the USTR has been pushing for more quietly for years, but now that it has fast track, it knows it can play hardball to help its friends in Hollywood. Fuck the public domain, Hollywood wants to keep getting paid for works from decades ago.

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Posted on Techdirt - 29 July 2015 @ 11:19pm

MoMA Releases Data On 125,000 Art Works To The Public

from the good-for-them dept

The Museum of Modern Art (MoMA) in New York is not just one of the most famous museums in the world, is also trying to give back to the public somewhat as well. Not only has it proudly embraced Creative Commons by displaying CC's own logo as a part of its collection, it has decided to release data on over 125,000 works into the public domain by posting them to Github using a cc0 public domain dedication.

Unfortunately, the data included does not include images of the artwork, which would have been a much more impressive move. Also, on the Github page, there is a list of "usage guidelines" which includes lines such as saying if you modify the dataset "you must make it clear that the resulting dataset has been modified by you." Of course, that's not actually required. Most of the other "guidelines" are more in the form of a request -- which is fine -- rather than a command. Of course, it's not even clear if the data in the dataset even could be covered by copyright, as most of it appears to be factual data (names of projects, dates, sizes, etc.) which would be akin to a phone book -- whose data are decidedly not covered by copyright.

So, yes, it's always great to see more people embracing the public domain, and it's unquestionably great that MoMA is releasing all this data in an easily accessible format without restrictions. But it could still go even further. Hopefully we'll soon reach an age when this kind of thing is just standard operating procedure, rather than it being considered a big thing to release some datasets to the public to use.

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Posted on Techdirt - 29 July 2015 @ 12:46pm

Warner Music's Response To Evidence Of Happy Birthday In The Public Domain: Who Really Knows Anything, Really?

from the classic-misdirection-fud dept

Earlier this week, we wrote about fairly damning new evidence that almost certainly shows that the song "Happy Birthday" is in the public domain, and not, as Warner Music's Warner/Chappell claims, still covered by a copyright that it holds (and ruthlessly enforces). The evidence was in the form of a 1922 songbook that published the music and lyrics to Happy Birthday, noting that it was via "special permission through courtesy of the Clayton F Summy Co." The Summy company is who registered the copyright in 1935, and which Warner eventually bought. Warner has long argued that there was no pre-1935 publication. As the lawyers for the plaintiffs ("Good Morning To You Productions" -- who are making a documentary film about the song) pointed out, the publishing of the song and lyrics in 1922 without a copyright notice pretty clearly establishes the song is in the public domain. Even if there were a copyright on the original songbook, it would have expired.

It seemed pretty damning, but Warner/Chappell has quickly responded by basically trying to muddy the waters with a "well, who really knows what 'special permission' really meant" line, along with lots of other FUD about how Summy wouldn't have even owned the copyright at that point in the first place. Basically, Warner is just going to claim that none of this matters for as long as it possibly can. Watch the tap dancing:

Plaintiffs instead assert that it was Summy that authorized the 1922 and 1927 publications. Plaintiffs base this on the one-line statement that The Cable Company included in The Everyday Song Book. But that statement does not say what the “Special permission” was for—was it for Good Morning to All only? Was it for that work in combination with the Happy Birthday lyrics? The statement also does not say when such permission purportedly was provided or any other facts about that would show authorization divesting the Hill Sisters’ copyright.
Let's see just how much we can confuse everyone by twisting this into knots. The longer we keep up the illusion, the longer people have to pay... so it's worth it...
Plaintiffs’ evidence does not show the consent of the copyright owner. Plaintiffs argue that, because The Cable Company’s 1922 publication contained the statement, “Special permission through courtesy of The Clayton F. Summy Co.,” the 1922 publication must have had the necessary authorization from the copyright owner to divest the common law copyright.

In 1922, however, the Clayton F. Summy Co. (“Summy”) did not own the copyright to Happy Birthday to You! Summy likewise did not own the copyright to Good Morning to All. In 1922, the copyrighted work Song Stories for the Kindergarten, which contained Good Morning to All, was in its renewal copyright term.... Jessica Hill, who had inherited part of Mildred Hill’s interest in the renewal copyright term of Song Stories for the Kindergarten, timely filed a registration for the renewal term on September 3, 1921.... There is no evidence that the Hill Sisters (Jessica or Patty) granted anyone the right to publish the Happy Birthday to You! lyrics until 1935. The evidence instead shows that Summy sought and obtained a license to publish the Happy Birthday to You! lyrics from Jessica Hill in 1935.... Summy would not have had to secure a license from Jessica Hill if it already had the rights to Happy Birthday to You! or if the work had fallen into the public domain.
This seems like a lot of complexity for the sake of complexity -- just to come up with some sort of argument for why a clearly public domain work might not be in the public domain. Now we wait for the judge's ruling on all of this...

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Posted on Techdirt - 29 July 2015 @ 10:41am

Washington Post Publishes... And Then Unpublishes... Opinion Piece By Ex-Intelligence Industry Brass, In Favor Of Strong Encryption

from the what-happened? dept

Update: And... the article has been republished at the Washington Post's site with a note claiming that it was accidentally published without fully going through its editing process. Extra points if anyone can spot anything that's changed...

Earlier this week, we noted with some surprise that both former DHS boss Michael Chertoff and former NSA/CIA boss Michael Hayden had come out against backdooring encryption, with both noting (rightly) that it would lead to more harm than good, no matter what FBI boss Jim Comey had to say. Chertoff's spoken argument was particularly good, detailing all of the reasons why backdooring encryption is just a really bad idea. Last night, Chertoff, along with former NSA boss Mike McConnell and former deputy Defense Secretary William Lynn, published an opinion piece at the Washington Post, doubling down on why more encryption is a good thing and backdooring encryption is a bad thing.

Yes, the very same Washington Post that has flat out ignored all of the technical expertise on the subject and called for a "golden key" that would let the intelligence community into our communications. Not only that, but after being mocked all around for its original editorial on this piece, it came back and did it again.

Of course, you may note that I have not linked to this piece by Chertoff, McConnell and Lynn at the Washington Post... and that's because it's gone. If you go there now you get oddly forwarded to a 2013 story (as per the rerouted URL), with a 2010 dateline, claiming that "this file was inadvertently published."

Of course, this is the internet, and the internet never forgets. A cached version of the story can be found online. The title really says it all: Why the fear over ubiquitous data encryption is overblown. Of course, technical experts have been saying that for decades, but it's nice to see the intelligence community finally coming around to this. And here's a snippet of what was said in the article before it disappeared.
We recognize the importance our officials attach to being able to decrypt a coded communication under a warrant or similar legal authority. But the issue that has not been addressed is the competing priorities that support the companies’ resistance to building in a back door or duplicated key for decryption. We believe that the greater public good is a secure communications infrastructure protected by ubiquitous encryption at the device, server and enterprise level without building in means for government monitoring.

First, such an encryption system would protect individual privacy and business information from exploitation at a much higher level than exists today. As a recent MIT paper explains, requiring duplicate keys introduces vulnerabilities in encryption that raise the risk of compromise and theft by bad actors. If third-party key holders have less than perfect security, they may be hacked and the duplicate key exposed. This is no theoretical possibility, as evidenced by major cyberintrusions into supposedly secure government databases and the successful compromise of security tokens held by the security firm RSA. Furthermore, requiring a duplicate key rules out security techniques, such as one-time-only private keys.
The op-ed also points out that "smart bad guys" will still figure out plenty of ways to use encryption anyway and all we're really doing is weakening security for everyone else. And, of course, it raises the fact that if the US demands such access, so will China and other companies.
Strategically, the interests of U.S. businesses are essential to protecting U.S. national security interests. After all, political power and military power are derived from economic strength. If the United States is to maintain its global role and influence, protecting business interests from massive economic espionage is essential. And that imperative may outweigh the tactical benefit of making encrypted communications more easily accessible to Western authorities.
These are the same basic arguments that experts have been making for quite some time now. What's also interesting is that the three former government officials also point out that the "threat" of "going dark" is totally overblown anyway. It raises the original crypto wars and the fight over the Clipper Chip, and notes that when that effort failed, "the sky did not fall, and we did not go dark and deaf."
But the sky did not fall, and we did not go dark and deaf. Law enforcement and intelligence officials simply had to face a new future. As witnesses to that new future, we can attest that our security agencies were able to protect national security interests to an even greater extent in the ’90s and into the new century.
This is an important bit of input into this debate, and one hopes that the Washington Post only "unpublished" it because it forgot to correct some grammar or something along those lines. Hopefully it is republished soon -- but even if it was published briefly, this kind of statement could be a necessary turning point, so that hopefully we can avoid having to waste any further effort on the wasteful idiocy of a second crypto war.

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Posted on Techdirt - 29 July 2015 @ 9:32am

Reminder: When Ron Wyden Says There's A Secret Interpretation Of A Law, Everyone Should Pay Attention

from the how-many-times-do-we-need-to-do-this dept

Years before Ed Snowden revealed how the NSA and DOJ had reinterpreted the PATRIOT Act and the FISA Amendments Act to allow the intelligence community to spy on Americans, Senator Ron Wyden tried to warn the public that this had happened:

We're getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says.
For a couple of years after he said that, privacy and civil liberties advocates were forced into something of a guessing game to figure out what that secret law actually said. Eventually, the details were spilled by Ed Snowden who is, of course, now being threatened with a lifetime in prison for blowing the whistle.

This is not the only time that Wyden has made these kinds of warnings, and he's doing it again right now -- this time over CISA, the faux-"cybersecurity" bill that Wyden has made clear is really about surveillance. Recently released papers from the Snowden archives have made it clear why he's saying this, because it showed that, contrary to what's been said in the past, the NSA is using "cyber signatures" to sniff through upstream collections (their taps into the fiber backbone) under Section 702 of the FISA Amendments Act. And this opens up the information collected to so-called "back door" or "incidental" searches by the NSA. The whole point of CISA is to actually encourage companies to give the government more such "cyber signatures" which they can use to monitor the internet.

However, there's likely more going on as well, and in particular, Senator Wyden has been strongly hinting about an important Justice Department memo that remains classified, but which he implies would change the debate.
Wyden... claims that a classified Justice Department legal opinion written during the early years of the George W. Bush administration is pertinent to the upper chamber's consideration of cyberlegislation—a warning that reminds close observers of his allusions to the National Security Agency's surveillance powers years before they were exposed publicly by Edward Snowden.

[....] "I remain very concerned that a secret Justice Department opinion that is of clear relevance to this debate continues to be withheld from the public," Wyden said in his written dissent against CISA, which cleared the Senate Intelligence Committee 14-1 in March. "This opinion, which interprets common commercial service agreements, is inconsistent with the public's understanding of the law, and I believe it will be difficult for Congress to have a fully informed debate on cybersecurity legislation if it does not understand how these agreements have been interpreted by the Executive Branch."
Last year, based on some breadcrumbs that Wyden dropped during the confirmation hearings for Caroline Krass as the CIA's new top lawyer, Marcey Wheeler dug into some more details about this document, and notes that it comes from the same period of time when the Bush administration was twisting itself into knots to justify warrantless wiretapping and torture. In other words, this document seems ridiculously relevant to the debate.

And while it appears that the vote on CISA has likely been delayed yet again, it seems like this is a fairly important detail.

In short, haven't we, as a country, learned enough to note that, when Senator Wyden points out that there's a secret interpretation of the law that is at odds with a plain reading of it, we should all be demanding answers?

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Posted on Techdirt - 29 July 2015 @ 8:26am

Study Of Spain's 'Google Tax' On News Shows How Much Damage It Has Done

from the ancillary-copyright-is-a-bad-idea dept

As you may recall, governments across Europe, generally at the behest of traditional newspaper publishers, have been pushing for what they call an "ancillary copyright," but which is much better referred to as a "snippet tax" or a "link tax." Or, if people are being honest: a Google News tax. The idea is that any aggregator site that is linking out to other sources with little snippets telling people what's at the link, has to pay the original publication to link to them. If you think this goes against the entire concept of the internet, you're not wrong. Belgium was the first country to try it, and Google responded by removing complaining publications from Google News. In response, the publications then complained that Google News was being mean to them, even though they were the ones complaining. In Germany, a similar thing happened, whereby Google left the complaining publications in Google News, but without snippets since that was a key aspect of the law. Again, the publishers screamed "unfair" even though they were the ones who had pushed for the law in the first place.

When it came time for Spain to try to appease its misguided and angry publishers, the government sought to avoid the tactics that Google had done in the past and thus made it mandatory to pay, saying that sites themselves couldn't even opt-out of getting payments, even if they didn't want them. In response to this, Google broke out the somewhat surprising "nuclear option" and shut down Google News in Spain entirely. It seemed quite obvious that this move would create huge problems for media properties that wanted to be open and wanted people to link to them.

After the law went into effect, the Spanish Association of Publishers of Periodical Publications (AEEPP) commissioned an economic study about the impact of the new Spanish ancillary copyright law -- and found (not surprisingly) that the legal change (and the shuttering of Google News and other aggregators) was absolutely harmful to the Spanish news media and innovation in general. It also found strong evidence that, contrary to what those fighting against Google News have claimed, aggregators expand the market for the original sources, rather than shrink it by acting as a substitute. The latter is based on a "study of studies" basically, looking at all of the academic literature in terms of the impact of aggregators -- all of which shows that it increases the overall size of the market, rather than shrinks it.

However, the really telling part of the report is that this law that was passed in the name of helping news publications, ended up doing tremendous harm to many online publications -- especially smaller sites that frequently (and happily) relied on Google News and other aggregators for a significant amount of traffic. The report points out that it wasn't just Google News that shut down because of this law: a whole bunch of local Spanish aggregators shut down themselves, switched business models entirely, or similarly left the Spanish market entirely. The report notes that sites like Planeta Ludico, NiagaRank, InfoAliment and Multifriki shut down entirely, as they were scared of the economic and legal liability from the new law. The report notes the case of NiagaRank is particularly troubling as it has a wider impact on innovation in Spain:

NiagaRank: ignoring the extent, quantity and methods followed to determine whether they should pay the fee, they preferred to close down. This case is remarkable because NiagaRank was not a “traditional” aggregator, but it analysed social networks to draw up lists with the most relevant news (“active listening”, as they used to call it). However, it is an example of the legal uncertainty that the lack of definition of key aspects of the act has caused.

[....]

For example, and as already pointed out, currently there are several services focused on the aggregation of content for mobile phones, such as the mobile applications Zite and Flipboard. The amendment to the act will discourage the introduction of this sort of services in Spain, as well as the potential development of new models. A clear example of this situation is the portal NiagaRank, an innovative aggregator based on the analysis of the content published on social networks (similar to News360 or Prismatic) which, as mentioned before, also closed down as a direct result of the law amendment.
And all of this has had a tremendous negative impact on the press, rather than a positive one as those behind the law insisted.
The negative impact on the online press sector is also very clear, since a very important channel to attract readers disappears, resulting in lower revenues from advertising. In addition, the new fee is also a barrier to the expansion of small publications with little-known brands, and an entry barrier for new competitors, since they will be unable to count on these platforms to increase their readers’ base.

The evidence available so far shows that the impact on traffic has been negative and that less consolidated publishing titles, such as digital native newspapers, have been the worst affected. This is not only because the total number of publication readers has been reduced but, in the case of online readers that would be attracted anyway (that is, who would visit the publications web sites in some other way), they will surely end up visiting known publications with established brands, to the detriment of small and new publications, in line with the evidence in the literature analysed above
Of course, for the major newspaper publishers, maybe that's what they really wanted all along: less competition. But it's difficult to see how that's a legitimate public policy strategy.

And, not surprisingly, looking at multiple different ways of measuring these things, traffic to all Spanish news sites dropped after the law went into effect:
A simple traffic analysis of Spanish digital newspapers in the first three months of 2015 based on data from ComScore also suggests results in line with the aforementioned. The impact of the closing down of Google News and some other aggregators has generated a decline of visitors to the 84 major Spanish online newspapers...
The report notes that this is even more stunning given that overall internet traffic and usage in Spain has been increasing, so even the percentage drop in traffic undercounts the real impact, as it likely would have been growing.

The data, not surprisingly, shows that the impact on smaller news publishers has been the worst -- again consistent with the idea that all this law really does is lock out competition for the larger players:
A more detailed analysis, breaking down traffic depending on the newspaper size, also confirms that the effect has been uneven. Thus, for the sample of online newspapers in Spain, it appears that smaller newspapers have been the worst affected ones.
All of this should really raise serious questions about just what is the intent of the Spanish government in passing this law. It does not appear to serve any legitimate public policy. At best, it appears to have damaged small news publications, making it more difficult for them to compete against larger publications, though it has also served to damage those larger publications' traffic as well.

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Posted on Techdirt - 28 July 2015 @ 1:08pm

Donald Trump's Clueless Lawyer Threatens Press, Says It's Ok To Rape Your Spouse

from the a-graduate-of-thomas-cooley-law-school dept

A few weeks ago, we wrote about the absolute ridiculousness of Donald Trump's "lawsuit" against Univision, which made some bizarre claims about the First Amendment and defamation that clearly did not apply. While there may be a legitimate contractual dispute hidden somewhere in all that mess, there was so much fluff that it made you wonder who is actually advising the entertainer (pretending to be a politician) on legal issues. Apparently, it's some guy named Michael Cohen, who isn't just out of his depth on stuff, but he appears to be actively making things worse. In an astounding article over at The Daily Beast, which was initially over claims of "rape" by Donald Trump's ex-wife Ivana during their divorce proceedings, Cohen not only claimed that you can't rape a spouse, but also threatened to ruin The Daily Beast if they published an article. Lawyering by bullshit threats, apparently.

Michael Cohen, special counsel at The Trump Organization, defended his boss, saying, “You’re talking about the frontrunner for the GOP, presidential candidate, as well as a private individual who never raped anybody. And, of course, understand that by the very definition, you can’t rape your spouse.”

“It is true,” Cohen added. “You cannot rape your spouse. And there’s very clear case law.”
This is, of course, wrong -- both legally and morally. In NY State, the law got rid of the "marital exemption" to rape laws in 1984 and federal law made it clear that spousal rape is a real crime not long after that. Even if that wasn't the case, is that really a defense? "Oh it's not rape because they're married?" Who thinks that's an okay excuse: "Well, technically, it's not rape." Yikes.

Cohen has now sort of, but not really, "apologized" for what he claims was an "inarticulate comment."
"As an attorney, husband and father there are many injustices that offend me but nothing more than charges of rape or racism. They hit me at my core. Rarely am I surprised by the press, but the gall of this particular reporter to make such a reprehensible and false allegation against Mr. Trump truly stunned me. In my moment of shock and anger, I made an inarticulate comment - which I do not believe -- and which I apologize for entirely," Cohen said in a statement to CNN.
Except that it wasn't inarticulate. It was wrong and, many would argue, morally reprehensible.

And notice that he's still blaming the reporter for asking the question. And that brings us to the second crazy bit here: the threats against the reporters. The reporters -- Tim Mak and Brandy Zadrozny -- didn't back down. In fact, they not only published the story but included the rather unhinged threats from Cohen:
“I will make sure that you and I meet one day while we’re in the courthouse. And I will take you for every penny you still don’t have. And I will come after your Daily Beast and everybody else that you possibly know,” Cohen said. “So I’m warning you, tread very fucking lightly, because what I’m going to do to you is going to be fucking disgusting. You understand me?”

“You write a story that has Mr. Trump’s name in it, with the word ‘rape,’ and I’m going to mess your life up… for as long as you’re on this frickin’ planet… you’re going to have judgments against you, so much money, you’ll never know how to get out from underneath it,” he added.
Cohen appears to come from a very different generation of legal advice -- one in which bogus threats designed to shut people up would actually work, rather than today, when they just provide a great story. Once again, though, this should serve as a reminder for why we need a federal anti-SLAPP law. Cohen has made it abundantly clear that he has no qualms in using bogus lawsuits to try to stifle public discussion of important matters concerning someone who is clearly a public persona and who is even (technically) running for President.

The fact that Cohen's "apology" for the spouse raping comment still pins the blame on the reporters suggests someone who still doesn't understand what he's talking about. A recent "profile" of Cohen includes him describing his own style as being a "pit bull.":
A 2011 ABC News profile reported that within The Trump Organization he’s called the boss’s “pit bull.”

“If you do something wrong, I’m going to come at you, grab you by the neck and I’m not going to let you go until I’m finished,” Cohen, now 48, told the TV network.
That story also notes that while he may file lawsuits, his threats aren't entirely accurate:
To wit: When New York State Attorney General Eric Schneiderman filed a fraud suit against Trump’s for-profit college in 2013, Cohen threatened Trump’s vengeance: “The damage to the attorney general is going to be very significant,” Cohen told The New Yorker. “So significant that he will possibly have to resign.” (Schneiderman has not resigned. The case is ongoing.)
It might make you wonder where Cohen actually got a law degree. And... it turns out that it's from the infamous Thomas M. Cooley law school. We've written about Cooley a bunch of times. It's a bottom tier law school, considered so bad that US News used to list it as "unranked" because it wouldn't provide the necessary info. It now lists the school as "Rank Not Published" which US News notes is "for the schools that are in the bottom 25 percent of the rankings."

In response to this, Cooley came up with its own ranking system, saying it disagreed with US News' methodology. Magically, Cooley came in second in its own ranking system, second only behind Harvard Law. So what kind of methodology did Cooley's own ranking system include? Well, they took out anything having to do with "quality" since they deemed those to be too subjective, and then used a bunch of stuff about how big the library is, including "total library square footage" and "library seating capacity." Apparently, the Thomas Cooley law school has a huge library.

The school has also become infamous for suing critics, so Cohen seems to have taken those lessons to heart. A few years ago it sort of "merged" with Western Michigan University, and used that as an opportunity to change its name to avoid some of the bagggage of the Thomas M. Cooley brand. It now promotes itself as the "Western Michigan University -- Cooley Law School" and who does it promote as a distinguished graduate on its own site? You guessed it. One Michael Cohen of the Trump organization:
Thomas Cooley law school continues its traditions, apparently.

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Posted on Techdirt - 28 July 2015 @ 5:27am

Happy Birthday Copyright Bombshell: New Evidence Warner Music Previously Hid Shows Song Is Public Domain

from the well,-look-at-that dept

Last minute evidence that completely turns a legal case on its head doesn't come about all that often -- despite what you see in Hollywood movies and TV shows. The discovery process in a lawsuit generally reveals most of the evidence revealed to everyone pretty early on. And yet... in the high profile lawsuit over the copyright status of the song "Happy Birthday," the plaintiffs "Good Morning to You Productions" (who are making a documentary about the song and are arguing that the song is in the public domain) have popped up with a last minute filing, saying they have just come across evidence that the song is absolutely in the public domain.

And, here's the real kicker: they discovered this bit of evidence after two questionable things happened. (1) Warner/Chappell Music (who claims to hold the copyright for the publishing, if it exists) suddenly "found" a bunch of relevant documents that it was supposed to hand over in discovery last year, but didn't until just a few weeks ago, and (2) a rather important bit of information in one of those new documents was somewhat bizarrely "blurred out." This led the plaintiffs go searching for the original, and discover that it undermines Warner Music's arguments, to the point of showing that the company was almost certainly misleading the court. Furthermore, it definitively shows that the work was and is in the public domain.

If you haven't been following the issue closely, there is actually a lot of evidence, much of it put together by Robert Brauneis, that the song really should be in the public domain. There are all sorts of questions raised about how it became covered by copyright in the first place. Everyone agrees the song was originally written as "Good Morning to All" in the late 1800s, but from there, there's lots of confusion and speculation as to how it eventually was given a copyright in 1935, granted to the Clayton F. Summy company. People have argued that the 1935 copyright was really just on a particular piano arrangement, but not the melody or lyrics to Happy Birthday To You -- which had both been around long before 1935.

Warner/Chappell has long argued that Summy Co never published or allowed anyone else to publish the lyrics to Happy Birthday, but that seems undone by this new evidence. And, again, it seems a bit odd that magically Warner/Chappell suddenly "found" a bunch of new evidence. As Good Morning to You Productions notes:

On July 13, 2015, Defendants gave Plaintiffs access to a database of approximately 500 pages of documents, including approximately 200 pages of documents they claim were “mistakenly” not produced during discovery, which ended on July 11, 2014, more than one year earlier.
So over a year later, and just weeks before the court was likely to rule on the matter, suddenly Warner finds stuff that was missing before? Okay. But it gets even stranger. Because one of the things in this very late data dump is a 1927 publication of the song Happy Birthday in "The Everyday Song Book." And, as the plaintiffs in the case note, there's a line right under the title song that "is blurred almost beyond legibility -- curiously it is the only line in the entire PDF that is blurred in that manner." Hmmm. Here's the image:
Here's a closeup of the title and the "blurred line" right beneath the title:
The plaintiffs found this odd and went on a search for the original copy of the Everyday Song Book, finding the edition that was shown in the documents (the 15th edition) as well as a few earlier editions, and a much clearer version:
From there, you can see that the "blurred" line says that the song is published via:
Special permission through courtesy of The Clayton F Summy Co.
As the plaintiff notes, this is evidence that there is no copyright on the song. They also went back and found that this particular edition was not the first one in which the song appeared. Instead, it first appeared in the 4th edition, published in 1922, well before 1935. The key issue: the lack of a copyright notice. Today that wouldn't matter. But under the 1909 Copyright Act it matters quite a bit.
Under Section 9 of the 1909 Copyright Act, “any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act” affixed to all copies of the work.... At a minimum, Section 18 of the 1909 Copyright Act required the notice to include the word “Copyright,” the abbreviation “Copr., ” or the “©” symbol as well as the year of first publication and the name of the author of the copyrighted work.... If the strict notice requirements of the 1909 Copyright Act were not met, the “published work was interjected irrevocably into the public domain.” Twin Books Corp. v. Walt Disney Co., 83 F.3d 1162, 1165 (9th Cir. 1996) (emphasis added). None of these notice requirements was met for the Good Morning and Birthday Song included in the fourth edition of The Everyday Song Book published in 1922.
In other words, it appears that the song was put into the public domain by 1922 at the latest. The plaintiffs argue that the lack of a copyright notice on the work shows that Patty Hill (who wrote the song) likely put the work into the public domain years earlier:
Publication of the Good Morning and Birthday Song in The Everyday Song Book in 1922 and thereafter, with Summy’s authorization but without a copyright notice, is fully consistent with Plaintiffs’ position that the Happy Birthday lyrics had been dedicated to the public many years before then. Because the lyrics were in the public domain, there was no reason for a copyright notice to be set forth in the song book. Moreover, the authorized publication of the Good Morning and Birthday Song in 1922 without a copyright notice also is fully consistent with Plaintiffs’ position that the 1935 copyrights (E51988 and E51990) covered only the specific piano arrangements written by Summy’s employees Orem and Forman (as well as the second verse written by Forman). Since the lyrics were already in the public domain long before 1935, there was nothing else to be copyrighted other than the new work that Summy’s employees contributed when those copyrights were registered.
The filing also notes that while the copyright on the compilation for the 1922 and 1927 publications could only cover the overall compilation, rather than the individual works, even so both copyrights have long since expired, so Warner/Chappell can't even claim that the copyrights for either compilation now lead to the copyright today.

In other words, there's pretty damning conclusive evidence that "Happy Birthday" is in the public domain and the Clayton Summy company knew it. Even worse, this shows that Warner/Chappel has long had in its possession evidence that the song was at least published in 1927 contrary to the company's own claims in court and elsewhere that the song was first published in 1935. We'll even leave aside the odd "blurring" of the songbook, which could just be a weird visual artifact. This latest finding at least calls into question how honest Warner/Chappel has been for decades in arguing that everyone needs to pay the company to license "Happy Birthday" even as the song was almost certainly in the public domain.

It's been reported for years that the company brings in somewhere around $2 million per year off of the song -- and it's looking like none of that money should have been paid.

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Posted on Techdirt - 27 July 2015 @ 3:21pm

Police Shut Down Hologram Concert Of Rapper Because They Don't Like His Lyrics; Pretty Clear First Amendment Problem

from the that's-not-how-this-works dept

The Chicago Tribune has a disturbing story about how the police in Hammond Indiana shut down an entire music festival because they didn't like a particular rapper, Chief Keef, who appeared via hologram (supposedly to avoid arrest for some outstanding warrants in the mid-west). The police don't even try to come up with some other bogus reason. They flat out admit that they didn't want Keef to perform and thus they shut it down:

Hammond police Cmdr. Pat Vicari said the promoters were warned the concert would be shut down if Chief Keef performed.

"We spoke to the promoter several times, and they assured us (Chief Keef) would not be performing," Vicari said. "Later, an officer working the show realized it was being streamed on one of the hip-hop sites, and promoters were warned again they would be shut down.”
Why? Because apparently politicians don't like his lyrics:
Thomas M. McDermott Jr., the mayor of Hammond, said in an interview that his office became aware of the surprise performance, which was also streamed live online, through social media. All of the Craze Fest acts — which included Riff Raff, Lil Bibby and Tink — had been previously vetted because the event was held at a public park, he said.

“I know nothing about Chief Keef,” Mayor McDermott, 46, said. “All I’d heard was he has a lot of songs about gangs and shooting people — a history that’s anti-cop, pro-gang and pro-drug use. He’s been basically outlawed in Chicago, and we’re not going to let you circumvent Mayor Emanuel by going next door.”
The reference to Mayor Emanuel was to Chicago mayor Rahm Emanuel blocking a similar concert in Chicago a week earlier, when Emanuel's office declared Keef "an unacceptable role model." Because, apparently, in Chicago, you're only allowed to be a role model if the mayor's office gives its stamp of approval:
Last weekend, a Chicago theater called off a similar show after representatives for Mayor Rahm Emanuel’s office deemed Chief Keef “an unacceptable role model,” whose music “promotes violence” and whose presence via hologram “posed a significant public safety risk.”
Here's the really crazy part, though. The concert itself was to protest violence, and was called a "Stop the Killing" benefit concert, in an effort to raise money for the families of two people that Keef knew who were recently killed in a shooting.

As Eugene Volokh notes, it's difficult to see how this is anything but a First Amendment violation.
The government may impose reasonable content-neutral restrictions on speech in such venues, such as sound level restrictions, and may charge money for the use of the venues. But the government may not restrict speech because of its viewpoint, or the viewpoint that the speakers had expressed elsewhere, which seems to have happened here
He further points out that the "public safety" risk claims are not an acceptable reason to shut down the event either, pointing to Terminiello v. Chicago. Even beyond that, there were no reports of any actual threats or public safety issues at the event itself. And yes, Keef may have outstanding warrants, which would make it perfectly reasonable to have him arrested if he did show up, it still doesn't explain why the concert was shut down.
Unless I’m missing something here, then, this is a pretty clear First Amendment violation on the part of the City of Hammond. And it seems to me that, in America, performances by controversial singers can’t be “basically outlawed,” even “in Chicago.
It will be interesting to see if Keef does anything about this. The hologram appearance was coordinated by Hologram USA, the company owned by wacky publicity hound billionaire Alki David, whose antics we've discussed in relation to his Aereo-clone streaming TV service FilmOn (not surprisingly, the concert was also being streamed live via... FilmOn). David immediately lashed out at the shutting down of the concert and rightly called out the First Amendment violation:
"Shame on the mayor and police chief of Hammond for shutting down a voice that can create positive change in a community in desperate need. And for taking away money that could have gone to help the victims' families," David said in a statement. "This was a legal event and there was no justification to shut it down besides your glaring disregard for the first amendment right to free speech.
Some have argued that Keef intentionally uses conflicts like this to get more publicity to market himself -- and even if it's true that doesn't matter. Even if Keef is truly a horrible person in every way, the First Amendment isn't supposed to only protect the speech of "good people." It's supposed to protect everyone. And yet it's amazing how quickly some in power forget this.

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