As you know, last week, large chunks of the internet spent hours writhing on the ground and totally inaccessible thanks to a giant DDoS attack that appears to have been launched via a botnet involving insecure DVR hardware (which can't be patched -- but that's another post for later). Of course, whenever this kind of thing happens, you know that some people on the politics side of things are going to come up with dumb responses, but there were some real whoppers on Friday. I'm going to focus on just two, because I honestly can't decide which one of these is dumber. I'll discuss each of them, and then you guys can vote and let us know: which of these is dumber.
On Friday she went on CNN to discuss a variety of things, and the first question from Wolf Blitzer was about the DDoS attacks, and her answer is the sort of nonsense word salad that is becoming all too common in politics these days, but where she appears to suggest that if we'd passed SOPA this kind of attack wouldn't have happened. She's not just wrong, she's incredibly clueless.
Here's what she said:
Wolf, you don't know who is behind this, you do not know if it's foreign or domestic. What I do know is over the years we have tried to pass a data security legislation. There's been bipartisan agreement in the House. It has not moved forward in the Senate. We also know that a few years ago we tried to do a bill called SOPA in the House which would require the ISPs to do some governance on these networks and to block some of the bad actors.
And of course, there were all of the cyberbots that took out after us that were trying to say 'no you can't do that you're going to impede our free speech.' We said 'no we're trying to keep the roadway clear and to keep some of these bad actors out of the system.'
So, what you have now, whether it is foreign or domestic, no one knows. No one knows who has released some ransomware, spyware, malware into the system that is cau... and bear in mind also this malware can live on your system for a year or much longer before it is detected.
And that is how you've had some of these extensive data breaches because the malware gets into the system, it rests there, it is pulling information and at some point, it activates. And as I tell my constituents, be careful what websites you go to, be careful what emails you open because you may be unintendedly inviting that malware or spyware into your system.
Okay, so. Almost nothing that is said above has anything to do with the DDoS attack. Not at all. Not the "data protection" bill, which is basically about requiring companies to reveal breaches to those impacted. But most certainly not SOPA, which had nothing whatsoever to do with anything having to do with cybersecurity or online attacks or DDoS. And "cyberbots"? Is she implying that the millions of people who spoke out against SOPA were some sort of fake bots? SOPA wouldn't have done anything to stop this kind of attack at all. It had nothing to do with this issue in any way shape or form. Not that Wolf Blitzer seems to know or care about any of that as he just accepts that answer and moves on.
So that's the first dumb response. Now the second: the IANA transition. We've been discussing this for years, and as we've explained, the transition is a good thing in taking an argument away from countries like Russia and China who have been trying to get more control over internet governance, by dropping an almost entirely superficial connection between the fairly minor IANA function and the US Commerce Dept. The transition happened a few weeks ago and nothing on the internet has changed, nor will it, because of this transition. It's a non-story. But, Ted Cruz tried to make it a story and now it's become a partisan thing for no good reason at all. And thus, given an opportunity, partisan sites are blaming the IANA transition for the DDoS:
Today there was a major attack on a part of the Internet that few people pay any attention to. It’s critically important though, and any disruption threatens both our prosperity as Americans, but also our freedom to communicate with each other.
This is a great reminder of why President Obama’s Internet handover plans are so threatening to our way of life.
Probable foreign attackers effectively took thousands of companies off of the Internet today by attacking a major Domain Name Service (DNS) provider: Dyn. This two-hour outage surely cost many people, very much money.
What is DNS, and why is it so important? Put simply, DNS is the system that tells people how to find you online. It converts the names of servers and sites, into numbers that the Internet Protocol can find. It’s an essential service of the commercial Internet.
And yet Barack Obama is trying to hand control of DNS over to the Chinese and the Russians. Ted Cruz has been warning people about this, and so have I. People tend to tune it out, because it sounds like a very technical, obscure issue that isn’t very important.
Well, first of all, newsflash: the transition happened three weeks ago, and Neil Stevens at Red State is so concerned about this he didn't even notice. Damn. Sneaky Obama. Second, the hand over of the IANA functions has absolutely nothing to do with a DDoS attack or what it would take to prevent it. Yes, there are some ridiculous aspects to the DNS system, some of which are managed by ICANN. But (1) the IANA transition has nothing to do with "handing control" over to the Chinese or Russians (in fact, it's the opposite -- it takes a big argument away from the Russians and Chinese that they had been using to try to seize more control, and actually makes it much more difficult for them to take control by making sure nationstates actually have very little say in internet governance). And (2) the IANA transition has fuck all to do with DDoS attacks.
Both of these examples seem to be completely clueless, technically illiterate people using real problems (the fragility of DNS systems, the massive unsecured bot-infested systems out there, the ease of taking down important systems, overly centralized critical systems), and using them to pitch some entirely separate personal pet complaint or project. But both are completely ignorant. The only question is which one is worse:
A few weeks back, we wrote about the arrest of Harold Martin, an NSA contractor working at Booz Allen, for apparently taking "highly classified information" from the NSA and storing it electronically and physically in his home. There were a lot of questions about whether or not Martin was connected to the Shadow Brokers release of NSA hacking tools, though as more info comes out, it sounds like perhaps Martin was just found because of an investigation into Shadow Brokers, but not because he was connected to them. Soon after the arrest was made public (after being kept sealed for a little over a month), reports came out suggesting that Martin was basically a digital hoarder, but not a leaker (or a whistleblower).
The latest filing by the government in the case gives you a sense of just how much hoarding was done. Basically, it sounds like Martin has been taking a variety of digital and paper files home for two decades or so. There's a lot of stuff.
The Defendant stole from the government and hid at his residence and in his vehicle a vast amount of irreplaceable classified information. His thefts involved classified government materials that were dated from 1996 through 2016, spanning two decades’ worth of extremely sensitive information.
Now, it may be that he did the taking more recently and just took old documents, but that 1996 date coincides with when he first got access to such material:
The Defendant had access to classified information, including Top Secret information, beginning in 1996. His access to classified information began during his service in the U.S. Naval Reserves, and continued as he worked for seven different private government contracting companies. Access to classified information was critical to the Defendant’s employment in his field. He worked on highly classified, specialized projects and was entrusted with access to government computer systems, programs and information.
The government estimates 50 terabytes of data, but admits it's still going through all of it to figure out what is in there.
During execution of the search warrants, investigators seized thousands of pages of documents and dozens of computers and other digital storage devices and media containing, conservatively, fifty terabytes of information....
A conservative estimate of the volume of the digital information seized from the Defendant is approximately 50,000 gigabytes. This information must be fully reviewed by appropriate authorities to determine its source and classification level, as well as the extent to which it
constitutes “national defense information.” The investigation into the Defendant’s unlawful activities is ongoing, including review of the stolen materials by appropriate authorities. The government anticipates that much of this material will be determined to be national defense information that the government goes to great expense to protect.
Of course, some in the press are claiming, incorrectly, that this means Martin took 500 million pages of records and secrets, but we don't know that yet. The DOJ admits it's still going through everything, and has no idea how much of it is secret (or even how much of it is from the government).
Martin, at the very least, does appear to have been... kind of careless with some of this stuff:
For example, the search of the Defendant’s car revealed a printed email chain marked as “Top Secret” and containing highly sensitive information. The document appears to have been printed by the Defendant from an official government account. On the back of the document are handwritten notes describing the NSA’s classified computer infrastructure and detailed descriptions of classified technical operations. The handwritten notes also include descriptions of the most basic concepts associated with classified operations, as if the notes were intended for an audience outside of the Intelligence Community unfamiliar with the details of its operations.
Among the many other classified documents found in the Defendant’s possession was a document marked as “Top Secret/Sensitive Compartmented Information” (“TS/SCI”) regarding specific operational plans against a known enemy of the United States and its allies. In addition to the classification markings, the top of the document reads “THIS CONOP CONTAINS INFORMATION CONCERNING EXTREMELY SENSITIVE U.S. PLANNING AND OPERATIONS THAT WILL BE DISCUSSED AND DISSEMINATED ONLY ON AN ABSOLUTE NEED TO KNOW BASIS. EXTREME OPSEC PRECAUTIONS MUST BE TAKEN.” The Defendant was not directly involved in this operation and had no need to know about its specifics or to possess this document.
Of course, the usual caveat does apply: this is the DOJ's side of the story, and history tells us they have a habit of massively inflating things or misrepresenting things in these kinds of cases. That includes over-classification or other exaggerations about how serious, important, or secret certain information truly is. So, take the DOJ's claims with at least some grain of salt here. It will certainly be interesting to see how Martin responds to all of this.
The other interesting, and potentially troubling part, is that it appears the DOJ is moving to charge Martin under the Espionage Act. When the initial charge sheet came out, some people noticed that it didn't include Espionage Act charges, which even Ed Snowden pointed out was a "noteworthy absence." At the very least, it implied no distribution by Martin.
However, the latest filing makes it clear the lack of Espionage Act charges was a temporary thing that the DOJ is planning to correct soon. But here's the really crazy bit: the government is arguing that merely collecting this info is an Espionage Act violation, even without distributing it.
The improper retention and transmission of national defense information is prohibited under the Espionage Act. See, e.g., 18 U.S.C. § 793 (Gathering, Transmitting or Losing Defense Information). Information about sources and methods of the Intelligence Community, such as the information in the documents described above, and in the criminal complaint, is classic national defense information. See Gorin v. United States, 312 U.S. 19, 28 (1941) (information relating to the national defense is “a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.”). In this case, when an indictment or information is filed, the government anticipates that the charges will include violations of the Espionage Act, an offense that carries significantly higher statutory penalties and advisory guideline ranges than the charges listed in the complaint.
You can check out 18 USC 793 yourself. It's noteworthy that most of it requires intent or belief that the information is being used to harm the US, or distribution, but it's likely that the DOJ is leaning hard on section (f):
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer
Still... this once again seems like a stretch under the Espionage Act. If it's true that Martin was just hoarding the information (even carelessly), it's overkill to bust out the Espionage Act. If true, it would be stupid, but it's clearly not spying for the purpose of helping a foreign nation or anything.
One final thing, though. Fifty terabytes is a shitload of information. How the hell did the NSA not notice this over the past two decades? Even assuming (which is a pretty bad assumption) that the NSA was not as good at protecting its secrets prior to the Snowden leaks, once Snowden's leak was public, how the hell did the NSA still not notice what Martin had done (or, potentially, was continuing to do)? If anything, this raises a hell of a lot more questions about the NSA's own security practices than anything about Martin himself.
Welp, it looks like another bad day for Team Prenda. The law firm that went around uploading its own porn films and then shaking down people on the internet has had a bad few years in terms of courts blasting them for abusing the court system and ordering them to pay up for all sorts of awful things. Every few weeks it seems like we read about another loss for John Steele and Paul Hansmeier (the third "partner" in this mess, Paul Duffy, passed away). The latest is not only a pretty big hit, it's also a complete "own goal" by Team Prenda. This one wasn't in one of their crappy shakedown lawsuits where a defendant hit back. No, this was in the case where Prenda tried to sue all of its critics for defamation in both Illinois and Florida. The Florida case, filed by John Steele, was quickly dismissed once Steele realized it broke all kinds of rules. But the Illinois cases moved forward. There was some bouncing around between state and federal court, before the case was dismissed and some sanctions were added.
There's been some back and forth since then, but after the defendants, Alan Cooper and Paul Godfread, filed an anti-SLAPP against Prenda, and asked for sanctions, the court has now said that Prenda needs to pay up big time. You may recall that Cooper was a guy that Steele had take care of his vacation home in Minnesota, but whose signature Steele then forged on copyright transfer documents. Godfread was Cooper's lawyer, who brought all this out. The lawsuit against them (and a bunch of John Does) was a complete joke from the beginning. And despite Duffy insisting it had nothing whatsoever to do with Cooper saying that Prenda had forged his signature, that's what it was obviously about. Anyway, like so many Prenda things, this one backfired in a big, big way. To the tune of $674,206.94.
There are the original sanctions of $11,758.20 we mentioned above. Then there are attorneys' costs and fees for $162,448.74. And, finally, for good measure, Judge John Darrah tacked on $500,000 in punitive damages. Of course, whether or not Cooper and Goodfread will actually get paid is an open question. Duffy, as you may recall, is dead. And the other major members of Team Prenda, John Steele and Paul Hansmeier have been hit left and right with other judgments. Hansmeier declared bankruptcy and recently lost his law license. Steele's facing disciplinary action in Illinois, last we checked, and of course, lots of people are still waiting for the FBI. So, it's unclear how much they'll actually collect, but it's another case where Team Prenda's own hubris backfired amazingly. As Paul Hansmeier liked to say, "welcome to the big leagues."
Last month, we wrote about Bruce Schneier's warning that certain unknown parties were carefully testing ways to take down the internet. They were doing carefully configured DDoS attacks, testing core internet infrastructure, focusing on key DNS servers. And, of course, we've also been talking about the rise of truly massive DDoS attacks, thanks to poorly secured Internet of Things (IoT) devices, and ancient, unpatched bugs.
That all came to a head this morning when large chunks of the internet went down for about two hours, thanks to a massive DDoS attack targeting managed DNS provider Dyn. Most of the down sites are back (I'm still having trouble reaching Twitter), but it was pretty widespread, and lots of big name sites all went down. Just check out this screenshot from Downdetector showing the outages on a bunch of sites:
You'll see not all of them have downtime (and the big ISPs, as always, show lots of complaints about downtimes), but a ton of those sites show a giant spike in downtime for a few hours.
So, once again, we'd like to point out that this is as problem that the internet community needs to start solving now. There's been a theoretical threat for a while, but it's no longer so theoretical. Yes, some people point out that this is a difficult thing to deal with. If you're pointing people to websites, even if we were to move to a more distributed system, there are almost always some kinds of chokepoints, and those with malicious intent will always, eventually, target those chokepoints. But there has to be a better way -- because if there isn't, this kind of thing is going to become a lot worse.
Actor James Woods is an asshole. Let's just put that front and center. As you may recall, a little over a year ago, Woods sued a random Twitter user who went by the pseudonym "Abe List." "List" frequently mocked Woods, including calling him "clown-boy" and a "cocaine addict." Woods then sued for defamation, demanding $10 million, and tried to unmask List. This was ridiculous for any number of reasons, not the least of which is calling much more attention to what a thin-skinned jackass Woods is from anonymous Twitter users. But, more importantly, such hyperbolic statements in an internet forum are not defamation -- rhetorical hyperbole certainly doesn't meet the standard for defamation of a public figure. On top of that, trying to unmask an anonymous speaker is really, really sketchy, and there's a very high bar.
Oh, and did we mention that Woods himself has a long history of similar rhetorical hyperbole on Twitter, including making statements about others smoking crack?
California, of course, has a strong anti-SLAPP law, and Abe List, with the help of lawyers Lisa Bloom and Ken "Popehat" White, sought to use it to get the case kicked out. While the judge initially agreed that Woods' lawsuit was a SLAPP suit, he eventually changed his mind, and said that Woods could find out who Abe List really is. List appealed to California's 2nd District Court of Appeal soon after that ruling earlier this year. Since then the case had moved forward with both sides filing opening briefs.
However, apparently "List" just died. There are no details, but List passed away -- and with it, the case is over. The court docket shows that on Thursday, his lawyers filed for the case to be dismissed based on List's death and the court quickly dismissed the case and closed it. No matter what you think of anything, this is not a great situation. Someone died.
And total asshole James Woods decided to not just gloat about it, but to rub everyone's face in it. First, he pretended that the dismissal was because he was going to win the case:
That's so obnoxious that you might even overlook the fact that Woods here flat out admits he filed a SLAPP lawsuit.
Bloom, quite reasonably offended, pointed out that her pseudononymous client had died and it's pretty obnoxious to gloat over a default victory like that.
Just to put an exclamation point on what a total and complete jackass he is, Woods responded to others pointing out that the client died by gleefully celebrating his death and hoping it was "in agony."
He doubled down on that with another person, talking about how he'll follow people "to the bowels of hell."
That's sickening. Like, literally. I feel ill. What kind of person would celebrate anyone's death? Even someone they dislike? I have no idea if James Woods is a "cocaine addict" but he sure is an extreme asshole.
Oh, and kinda creepy too.
I asked Ken White if he had anything to say about this and he replied:
It was a privilege to represent Abe Doe. He was passionate about many issues and a fierce and incisive debater, not afraid to mix it up with his own attorney. He challenged me just as easily as he challenged others. I was proud to help him fight a contemptible censorious lawsuit, and am very sad about his passing.
Update: And, of course, James Woods has now deleted many of those tweets I have above, but added a new one, attacking the lawyer, Lisa Bloom, for mentioning Abe's death. You know, the one he was gloating over.
Another update: According to Eriq Gardner at THResq, despite Abe's death, Woods and his lawyers are going to continue the case to try to unmask who Abe really was.
And it's time for yet another story of copyright being used for out and out censorship. Remember Geofeedia? That's the creepy company that was selling its services to law enforcement agencies and school districts promising to spy on social media feeds to let law enforcement/schools know when people are planning bad stuff. After a big ACLU investigative report, basically all the major social media companies cut ties with Geofeedia, claiming that it was violating their terms of service. I'd imagine that the various law enforcement agencies and school districts who paid tens of thousands of dollars for this data may be asking for their money back.
So what does Geofeedia do? Well, for starters, it abuses the DMCA to try to take down information. The Daily Dot's Dell Cameron had actually written about how the Denver police spent $30k on Geofeedia back in September, a few weeks before the ACLU report dropped (nice scoop and great timing). Cameron then followed up with a detailed story following the ACLU report as well, noting that there were still plenty of other Geofeedia competitors on the market. At the end of that post, Cameron included a brochure that Geofeedia had apparently sent to a police department last year. But you can't see it now, because (yup) Geofeedia issued a DMCA takedown to Scribd, the company that was hosting it.
Now, sure, Geofeedia likely has a copyright on its brochure. But this is clearly a case of fair use. It's posted for reporting purposes, not competitive ones, on a topic of interest. It's not harming the market for the copyright in the brochure (which has no market). This is just ridiculous, both on the part of Geofeedia, and on Scribd for caving.
And it's pointless too, because it just calls more attention to how ridiculous Geofeedia is. Of all the things it should be focusing on right now, trying to take down a sales brochure in an article should be pretty low on its priority list. And if the idea was to get Daily Dot and Cameron to stop reporting on the company, well, that's failed too. Cameron has a new article out about how Geofeedia's stalking system was marketed to public schools as well.
Going back nearly a decade, we've been talking about the ridiculousness of Congress refusing to publicly release reports from the Congressional Research Service (CRS). As we've discussed many times, CRS is an in-house think tank for Congress that is both famously non-partisan and actually really good at what they do. CRS reports tend to be really useful and highly credible (which is part of the reason why Congress isn't a fan of letting them out into the public). Of course, as works of the federal government, CRS reports are in the public domain, but the way it's always worked is that the reports are released only to members of Congress. These include both general reports on topics that are released to every member of Congress, or specific research tasked by a member for the CRS to investigate and create a new report. The members who receive the reports are able to release them to the public, and some do, but the vast majority of CRS work remains hidden from public view. For the most part, both CRS and Congress have resisted any attempt to change this. Going back decades, they've put together a mostly ridiculous list of reasons opposing plans to more widely distribute CRS reports.
Some members of Congress keep introducing bills to make these public domain CRS reports actually available to the public. We've written about such attempts in 2011, 2012, 2015 and earlier this year. And each time they get shot down, often for completely ridiculous reasons, including the belief that making these reports public will somehow hurt CRS's ability to continue to do good, non-partisan research.
At times, different organizations and groups have taken up the cause themselves. Back in 2009, Wikileaks hit the jackpot and released nearly 7,000 such CRS reports. Steve Aftergood at the Federation of American Scientists has been posting CRS reports to a public archive for quite some time. There's also Antoine McGrath's CRSReports.com and some other sites that all create archives of CRS reports that they've been able to collect from various sources.
But earlier this week, there was a new entrant: EveryCRSReport.com. Unlike basically all of the other aggregators of CRS reports that collect released reports and aggregate them, it appears that EveryCRSReport basically has teamed up with members of Congress who have access to a massive stash of CRS reports loaded onto the Congressional intranet, all of which have been released via the site -- and it appears that the site is automatically updated, suggesting that the still nameless Congressional partners have set up a way to continually feed in new reports. To avoid public pressure or harassment (one of the core reasons used by Congress and CRS to reject proposals to open up the content), the site removes the names and contact info of the CRS staffers who create the reports. The reports that are available are not just in unsearchable PDFs, but they're fully HTML and fully searchable.
And, yes, of course, there's one on the "going dark" encryption debate, in which the CRS report rightly notes that backdoors are a bad idea, according to basically all experts:
In considering future legislation on or regulation of encrypted systems and communications, the issue of exceptional access has been raised: is it possible to create a system with sufficiently narrow and protected access points that these points can only be entered by authorized entities and not exploited by others? Experts have generally responded, no. For instance, one group of computer scientists and security experts contends that requiring exceptional access "will open doors through which criminals and malicious nation-states can attack the very individuals law enforcement seeks to defend." As was the case during the crypto wars of the 1990s, new technology (the Clipper Chip) was introduced that was intended to only allow access to certain communications under specified conditions. Researchers were soon able to expose vulnerabilities in the proposed system, thus halting the implementation of the Clipper Chip.
This is a really awesome resource -- it's a goldmine of useful information, and very thorough, careful research. I've only just started digging in.
The whole thing was put together by Demand Progress* and the Congressional Data Coalition, which is a project created by Demand Progress and R Street (which our think tank, the Copia Institute, is a member of). It will be interesting to see how (if?) Congress and the CRS react to this. Hopefully, they don't freak out, and seek to shut down the various sources of this material. This really is a fantastic resource of carefully done, thorough research on a variety of topics, all technically in the public domain. Check it out.
Hopefully it will help both the rest of Congress and CRS to recognize that actually making publicly funded research public is not such a bad thing. The site itself was put together by Dan Schuman, who used to work for CRS, and he's actually written up a fascinating blog post about why he did it and why the internal culture at CRS, against such public releases, is wrong, but endemic to the organization (he didn't begin questioning it himself until after he left):
Over time, I came to realize that the policy concerning public access to CRS reports was counterproductive. Members of Congress could get the reports. Lobbyists and special interests could get the reports from Congress or from private vendors for a fee. Former congressional staff could ask their friends on the hill for a copy. But the general public, unless they knew a report existed, really did not have access.
And that’s too bad. CRS reports are written for intelligent people who are not necessarily policy experts. In a world that’s awash with 5 second YouTube ads, horse race political coverage, and the endless screaming and preening of political figures, these reports are a good way to start to understand an issue.
But he also notes that there are problems with CRS -- some of which CRS blames on the fact that reports are being released to the public -- including the fact that the reports have become "even-handed to a fault" to avoid pissing off Congress itself in talking down a bad idea. While some of this may also be attributed to worries about reports going public, this seems kind of silly. This is good and credible taxpayer funded research that's in the public domain. If Congress can learn from it, so can the public:
CRS used to be a very different agency. It used to provide unvarnished advice for members of Congress on the crucial issues of the day. But over time, and especially during the 1990s, the mode of analysis changed to a description of issues, moving away from an evaluation of the strengths and weaknesses of various courses of action. I don’t mean to overstate this, and there are many examples still of prescient analysis, but there was a real change in the way CRS did its work, in large part because of existential concerns. In short, CRS was concerned about irritating its congressional masters by attacking a pet project or cherished belief. The old-timers still had great latitude, but the agency became sclerotic.
Part of this calcification included a fear of public access to the reports. At one time, CRS had published a newsletter about its latest research. And now, while its employees still testify before Congress, they were discouraged and then generally prohibited from sharing their work even with their academic peers. Agency staff grew more insulated and isolated.
But on top of that, recognizing that there are benefits to this research being public, hopefully means that CRS can get beyond just giving out "even handed to a fault" research, and can actually get back to making real recommendations. Over the years, we've discussed the ridiculous move by Newt Gingrich a couple decades ago to kill off the Office of Technology Assessment, which actually helped Congress understand complex technological issues in a non-partisan way. A functioning CRS could do the same thing and help put an end to stupid technology debates that often feature clueless arguments on all sides. CRS shouldn't fear this role, nor should it fear its research being public. It's a great resource and having it public is great for everyone.
* I'm on the board of Demand Progress, but had no idea about this particular project from them, and, in fact, heard about it from someone else entirely...
I've talked before about how privacy is not a "thing," it's a tradeoff. The idea of "perfect" privacy makes no sense, because people reveal all sorts of stuff about themselves all the time because the tradeoff is worth it. For example, just walking out of your house to go to the grocery store is a tradeoff. You give up some amount of privacy (someone can see you leaving your house, others can see what you're buying), because we think it's worth that minimal loss of privacy to get food. But it's an individual tradeoff based on our own individual decision making -- people who are famous celebrities or hiding from someone who wants to kill them may view the tradeoffs differently. That's why it always bothers me a little when people focus on privacy as if it's a thing, rather than looking at the cost-benefit tradeoffs that each individual needs to make.
But a big reason why privacy debates concerning internet services today are such a big problem is that the tradeoffs aren't as clear or as explicit as they should be. The reason people get upset about privacy issues on internet services isn't so much that they don't like giving up information to get a useful service -- people seem quite happy to do that. It's that they're not quite clear on what they're giving up and what they're getting back and how to weigh those two things. And that (quite reasonably!) makes people nervous and worried about their "privacy." That's why, in helping Namecheap put together a Privacy Bill of Rights for internet companies, we focused on things that really do make the tradeoffs more explicit and put the user in control. Concepts like better transparency and control are the keys here. Trading information for services can be a great deal -- it's what powers a large part of the internet we all find so valuable. But it needs to be done in a manner that doesn't make people nervous or afraid. It needs to be done in a manner where they understand the tradeoffs and truly do have some control.
In such a world, where companies aren't focusing on tricking people or doing bad things with their data, then we can have a truly powerful internet that provides lots of services, but without people and users feeling like they're being abused or sucked dry of their information for little benefit. We're hopeful that in framing the discussion this way, companies will recognize the value of actually being more upfront and transparent, and users will be much more in control over their information and what they get in exchange for sharing it. If you agree with these principles too, please share the document and sign on to the bill of rights. Namecheap has promised to donate $5000 to EFF for every 500 signatures.
We've talked a lot about the end of ownership society, in which companies are increasingly using copyright and other laws to effectively end ownership -- where they put in place restrictions on the things you thought you bought. This is bad for a whole variety of reasons, and now it's especially disappointing to see that Tesla appears to be jumping on the bandwagon as well. The company is releasing its latest, much more high powered, version of autonomous self-driving car technology -- but has put in place a clause that bars Tesla owners from using the self-driving car for any competing car hailing service, like Uber or Lyft. This is not for safety/liability reasons, but because Tesla is also trying to build an Uber competitor.
We wrote about this a few months ago, and actually think it's a pretty cool idea. Part of the point is that it effectively will make Tesla ownership cheaper for those who want it, because they can lease it out for use at times when they're not using it. So your car can make money for you while you work or sleep or whatever. That's a cool idea.
But it's flat out dumb to block car owners from using the car however they want.
If Tesla wants to compete with Uber, that's great, but it should compete and offer a better deal for car owners, rather than artificially limiting what they can do. And the thing is, Elon Musk knows this. Remember, a few years ago when he famously freed up all Tesla patents into the public domain, recognizing that it was better to compete on execution rather than artificial legal limitations? So why not take that same approach with competing in car hailing services as well? Don't limit what owners can do with their cars. That's now ownership. ow they're just leasing.
Tesla's plan for a competing ride hailing service is a good idea, and I'm excited to see what the company does with it, but if it starts off by artificially blocking Tesla owners from using their cars on competing services, it makes me think that Tesla doesn't think it's own service will be very good, and therefor it needs to artificially lock Tesla owners into its own platform, rather than competing on the merits. That seems antithetical to the message that Tesla and Elon Musk have given off in the past. Hopefully Musk reconsiders this anti-consumer move and recognizes that Tesla can build such a service that can stand on its own merits without artificially restricting Tesla owners.
A few weeks ago, we wrote about the absolutely ridiculous and unconstitutional charges brought by California Attorney General Kamala Harris and Texas Attorney General Ken Paxton against the online classified site Backpage.com. We focused on the fact that Section 230 clearly protects Backpage from such a lawsuit, and went into detail on the ridiculousness of Harris' "investigator" using the fact that Backpage itself actually worked with him to track down, remove, and block ads for prostitution as some sort of evidence of wrongdoing.
The execs are now hitting back -- as they should. They've asked the court to dump the case with a detailed and thorough filing. It highlights that the charges violate the First Amendment, Section 230 of the CDA and, at an even more basic level, the complaint doesn't even satisfy the requirements for "pimping," which is what they're charged with.
The AG’s Complaint and theory of prosecution are frankly outrageous. The AG seeks to
impose criminal liability on a website simply because it published and received fees for third-party
ads. The AG’s chrages directly contravene the First Amendment and the immunity afforded to
websites under Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230.
Escort ads on Backpage.com are protected speech under the First Amendment, as several courts
have held. The AG cannot arrest, imprison and refuse to release individuals associated with the
website simply based on an investigator’s opinions about what he believes is “obvious” about
escort ads. Courts upholding the First Amendment rights of Backpage.com and its users have
rejected the same tack time and again. The First Amendment also expressly precludes state
authorities from imposing criminal liability on parties that publish or distribute speech absent
proof of scienter, i.e., that the publisher knew the specific information published was unlawful.
The Supreme Court so held over fifty years ago, Smith v. California, 361 U.S. 147 (1959),
recognizing the First Amendment prohibits states from imposing criminal liability that would
require publishers to review all materials they distribute, because such a requirement would
severely chill speech.
More specifically, the AG’s theory expressly violates Section 230, which Congress enacted
twenty years ago to preserve and promote free speech on the Internet by immunizing website
operators from liability for publishing content provided by third-party users. Section 230
preempts all contrary state laws—including state criminal laws. Indeed, Attorney General Harris
has acknowledged that Section 230 precludes her from prosecuting Backpage.com, but she has
now commenced a prosecution to do precisely what she admits Section 230 prohibits.
That point about Harris "acknowledging" that Section 230 bars this lawsuit is a big one. It's based on the letter that Harris signed onto, from a bunch of Attorneys General to Congress, asking it to change Section 230 to grant state AGs the ability to go after Backpage. We had written about this letter three years ago when it was sent, but I had forgotten that it explicitly called out Backpage.com, and noted that the reason they wanted Section 230 modified was because they knew it was immune from prosecution by those state AGs. The letter (again, that Harris herself signed), says:
after instance, State and local authorities discover that the vehicles for
advertising the victims of the child sex trade to the world are online classified
ad services, such as Backpage.com. The involvement of these advertising
companies is not incidental—these companies have constructed their business
models around income gained from participants in the sex trade. But, as it has
most recently been interpreted, the Communications Decency Act of 1996
(“CDA”) prevents State and local law enforcement agencies from prosecuting
these companies. This must change. The undersigned Attorneys General
respectfully request that the U.S. Congress amend the CDA....
Yet now, despite no change being made to the law, Harris thinks she can bring a case against them?
Ads posted on Backpage.com are protected by the First Amendment, as several courts
have held. As the Seventh Circuit recently said in enjoining the Sheriff of Cook County,
Illinois and rejecting much the same theories that the State asserts here: “[A] public official
who tries to shut down an avenue of expression of ideas and opinions through actual or
threatened imposition of government power or sanction is violating the First Amendment.”
... The State cannot prosecute a publisher
for publishing speech with absolutely no showing that the speech was unlawful, much less
any allegation that defendants ever even saw the specific ads that are the basis for its
charges. As the Supreme Court has long recognized, states cannot punish parties that
publish or distribute speech without proving they had knowledge of illegality, as any other
rule would severely chill speech.
More specifically, Section 230 precludes the charges the State seeks to assert. As you
know, Section 230 bars state-law claims against websites and other interactive computer
services based on the publication of third-party content. A website cannot be held liable for
publishing content submitted by users or for failing to block or remove such content,
notwithstanding any allegations that it knew or should have known the content concerned
unlawful conduct. Section 230 expressly preempts all inconsistent civil and criminal state
laws. Literally hundreds of cases have applied and underscored the broad immunity that
Section 230 provides and that Congress intended so as to avoid government interference—
especially by state authorities—that would chill free speech on the Internet.
Indeed, in July 2013, you and other state attorneys general signed a letter to various
members of Congress urging that Section 230 be amended to exempt state criminal laws
from CDA immunity so that you could pursue Backpage.com. See July 23, 2013 letter from
National Association of Attorneys General.... It is
troubling that the State is now pursuing a prosecution you admitted you have no authority to
Accordingly, the State should dismiss the complaint and all charges against Messrs.
Ferrer, Lacey and Larkin. We write now to urge that this happen immediately.
Finally, Michael Lacey and Jim Larkin released a statement about this mess, in which they directly suggest that this whole thing was about Harris trying to seal her election to the Senate, and highlighting how infamous Sheriff Joe Arpaio tried to arrest them a decade ago, and they ended up winning $4 million for civil rights violations. But, they note, Harris probably doesn't care, because she got the headlines and the press coverage and the TV cameras covering them doing the perp walk in orange jumpsuits.
Of course, knowing the law was of modest comfort as we were being booked into the Sacramento County jail and paraded in front of the press in orange jump suits last week on a charge Ms. Harris knew she had no legal authority to bring when she brought it. We never set out when we published our first newspaper over 40 years ago to become the first American journalists to claim the rueful distinction of having been jailed both for editorials we wrote and advertising we published.
In 2007 we were arrested in Phoenix by agents of Sheriff Joe Arpaio for having published a story in the Phoenix New Times criticizing Arpaio for misusing a Grand Jury to harass New Times and its readers. We sued Arpaio in federal court under the Civil Rights Act and settled the case against the Sheriff and his handpicked Special Prosecutor for nearly $4 million.
Make no mistake; Kamala Harris has won all that she was looking to win when she had us arrested. Like Sherriff Arpaio, she issued her sanctimonious public statement, controlled her media cycle and got her “perp walk” on the evening news. Arpaio didn’t pay a dime of the civil damages we won against him. The taxpayers of Maricopa County did. And if the polls are any indication, Harris will be warmly ensconced in the United States Senate by the time her blatant violations of the First Amendment and federal law are finally adjudicated. She won’t pay. The taxpayers of California will.
And, as Kamala Harris knows, it probably won’t even make the evening news.
Indeed. This kind of bullshit seems like a massive abuse of power by Kamala Harris for the sake of grandstanding for her election campaign. She's yelled about Backpage for years, despite acknowledging she has no legal authority to go after them. And then, just a month before the election on her big campaign to become Senator, she magically decides to arrest them on charges she herself knows can't stick? That's a really fucked up abuse of power, stomping on the civil rights and Constitutional rights of these guys, and knowing damn well that once the case is lost, it's the taxpayers of California who will have to pay the bill. What shameful behavior by an elected official.
A few weeks ago, we wrote about how David Kittos was threatening the Trump campaign with a copyright infringement lawsuit after Donald Trump Jr. tweeted out a really dumb image involving a bowl of Skittles and a ridiculous statement about refugees.
There was some irony there, in that Kittos himself was a refugee from Turkish occupation in Cyprus and escaped to the UK. His photo is still up on Flickr, and does say that it's "all rights reserved." At the time, Kittos only hinted at a lawsuit, but also said "I don't know if I have the patience" to follow through on a lawsuit. We did notice that a week or so later, Twitter had removed the image after receiving a DMCA takedown notice from Kittos.
Some interesting points about the lawsuit. Kittos did register the image... but not until after all this went down. The Copyright Office lists the registration date as October 3rd of this year:
That's why the lawsuit asks for "actual damages" rather than statutory damages (you can only ask for statutory damages if the work was registered prior to infringement). But good luck showing any actual damages.
The bigger issue, though, is that this is almost certainly a bogus copyright infringement case. The Trump campaign has a pretty strong fair use argument, helped along by Kittos himself originally admitting that "I have never put this image up for sale" and "I was just experimenting with something called off-camera flash." There goes prong four of the fair use test, the "effect on the market," when the plaintiff has already admitted there never was a market. Also, the lawsuit itself makes it pretty clear that the lawsuit isn't really about copyright infringement, but about Kittos being upset about the message of the Trump meme.
I get that. I mean, I agree that the tweet is stupid and ignorant. But that's not the role of copyright. And yet, throughout the lawsuit, Kittos' lawyer keeps pointing to the "offensive" nature of the content as the reason that it's infringement. But that does not matter at all for a copyright infringement claim.
The unauthorized use of the Photograph is reprehensibly offensive to
Plaintiff as he is a refugee of the Republic of Cyprus who was forced to flee his home at
the age of six years old.
That's an interesting news hook, but it has nothing to do with copyright.
Also, given that this is someone trying to silence a political campaign, it seems fairly obvious that this is actually a SLAPP lawsuit, rather than a legitimate copyright lawsuit. Of course, that may explain why the lawsuit was brought in Illinois (remember, Kittos is in the UK, and the Trump campaign is certainly not based in Illinois). Illinois has an anti-SLAPP law, but it's been interpreted narrowly, and it's unclear if it would be allowed here -- though it's possible. The key case, Sandholm v. Kuecker, does include a test on "the plaintiff's intent in bringing the lawsuit." If it's to stifle speech or participation in government, then the anti-SLAPP law may apply. So Kittos may actually end up in trouble himself for filing this lawsuit. Notably, if the Trump campaign argues that this is a SLAPP suit and it wins, Kittos himself may be responsible for Trump's legal fees.
In other words, while I can understand why Kittos may have filed this lawsuit, it seems like someone may have given him some bad advice, and it may cost him.
Of course, he may be hoping that the Trump campaign just pays him off to go away. After all, the lawsuit mentions another copyright lawsuit filed against the campaign earlier this year, over a bald eagle photo -- and in that one, the Trump campaign settled the case, though no details were given on how it was settled.
Another day, another weird copyright takedown for censorship rather than legit copyright reasons. Adrian Lopez alerts us to a YouTube video that no longer exists at that link. If you go there (as of right now), you get this:
If you can't quite read the text up top, it says "This video is no longer available due to a copyright claim by Samsung Electronics America, Inc. and its affiliates."
What that video used to be, according to the original description was:
GTA 5 Mod Showcasing the explosive Samsung Galaxy Note 7. You can blow people up with a Samsung Galaxy Note 7 in GTA V.
And there's the little thumbnail that was shown in the Twitter card for the video before it disappeared:
In case you still don't get what's going on here, let's lay it out for you: there's a big story going on these days about how Samsung's Galaxy Note 7 devices are, well, catching fire (some prefer exploding, but it seems that they're mostly just setting themselves on fire). It's causing injuries and Samsung is in full on panic mode. It's now a felony to bring a Galaxy Note 7 on an airplane. This is the kind of stuff that business school case studies are written about years later, describing how Samsung handled this kind of crisis.
GTA 5, of course, is the video game Grand Theft Auto 5. And, like many video games, it's possible to mod (modify) those video games to add in other elements. And so it appears that someone took the "ripped from the headlines" stories of exploding Note 7s and created a GTA 5 mod that made such things into weapons you could use in the game.
It's kind of funny, actually.
What it is not, however, is copyright infringement. I don't care how you slice or dice it. It's not copyright infringement. Samsung may be embarrassed by its exploding devices, and it may not like people making fun of them or turning them into weapons in video games, but that doesn't matter. There's no copyright infringement against Samsung's copyrights in doing that. And it's flat out ridiculous that Samsung appears to have made a copyright claim over such a video. Hopefully whoever put up the video challenges this and YouTube comes to its senses...
Last week it was announced that journalist Amy Goodman would go to North Dakota to face charges over her coverage of North Dakota oil pipeline protests that went viral. The idea that Goodman was charged with doing journalism was really ridiculous. The original charges focused on "trespassing" but once the local state's attorney, Ladd Erickson, realized that those clearly would not stick, he changed them to rioting. When asked to defend the arrest warrant and charges by a local newspaper, Erickson displayed a complete lack of understanding of the First Amendment in saying that because Goodman's coverage was sympathetic to the protesters, it was fine to consider her a protester too.
District Judge John Grinsteiner did not find probable cause to justify the charges filed on Friday October 14 by State’s Attorney Ladd R. Erickson. Those charges were presented after Erickson had withdrawn an earlier charge against Goodman of criminal trespass.
She and her lawyers declared victory on Monday, but Ladd Erickson, a state prosecutor who is assisting the Morton County state’s attorney’s office in the case, said other charges were possible.
“I believe they want to keep the investigation open and see if there is any evidence in the unedited and unpublished videos that we could better detail in an affidavit for the judge,” he said via email. “The Democracy Now video that many people have seen doesn’t have much evidence value in it.”
That alone just seems like more intimidation -- planning to look at "unedited and unpublished videos" to try to find something to charge Goodman over. This is just blatant intimidation of the press, basically trying to get info on sources.
Of course, if the goal was to intimidate Goodman away from reporting on the protests, it appears to have failed. Goodman has pledged to continue to cover the story. The question remaining, though, is if Erickson gets any reprimand for clearly violating the constitutional rights of journalists? It remains deeply problematic that the charges and arrest warrant were ever issued in the first place.
Meanwhile, a documentary filmmaker, Deia Schlosberg, who was also in North Dakota filming protesters was also arrested and has been charged with a series of felony charges including "theft of property, conspiracy to theft of services and conspiracy to tampering with or damaging a public service." So, apparently Goodman isn't the only one targeted for doing First Amendment protected work in covering the stories of protesters.
David Ulevitch, the founder of OpenDNS (now owned by Cisco), apparently discovered that the dirty minds at the California DMV see "lust" in information security. How else to explain that the DMV rejected his request for a vanity plate for the license plate "1NFOS3C":
As you can see, the DMV rejected it because it "has a sexual connotation, or is a term of lust or depravity. Now, that probably has you shaking your head. What possible "sexual connotation" is there in "information security" shortened and with a few numbers instead of letters? One response to David's tweet suggests the DMV read it as "in fo' sex" which brings an entirely new way of thinking about information security... Though as another response shows, the way to get bad words by the California DMV is apparently to use a mirror in designing your vanity plate:
from the that's-at-least-marginally-reassuring dept
Hillary Clinton's position on encryption -- like so much of her tech policy -- has been kind of vague and wishy-washy. Saying things that possibly sound good, but could easily turn out to be bad depending on what is really meant. It's sort of the classical politician's answer on things, trying to appease multiple sides of an issue without getting fully pinned down on something that might come back to bite you later.
It started back in November of 2015, when Clinton gave a speech, which put her firmly into the "but Silicon Valley should nerd harder to figure out a backdoor" camp. A few weeks later, she doubled down on the "nerd harder" response in an interview with George Stephanopoulos:
STEPHANOPOULOS: How about Apple? No more encryption?
CLINTON: This is something I've said for a long time, George. I have to believe that the best minds in the private sector, in the public sector could come together to help us deal with this evolving threat. And you know, I know what the argument is from our friends in the industry. I respect that. Nobody wants to be feeling like their privacy is invaded.
But I also know what the argument is on the other side from law enforcement and security professionals. So, please, let's get together and try to figure out the best way forward.
A few weeks after that, she went even further, calling for a "Manhattan Project" on backdooring encryption. As we noted at the time, that made no sense and suggested a complete cluelessness about encryption and the issues related to it.
Now, with the release of the hacked emails from Clinton campaign manager John Podesta, we get to find out that Clinton's staff basically agreed with us that her statements on encryption were ridiculous, and felt that she should not support any effort to backdoor encryption.
It started with an internal discussion in response to an inbound request from Politico, where some of her staffers sought to avoid answering the question on backdooring encryption, while admitting internally the reality. Here were the "boiled down" talking points, presented by Ben Scott (a former State Dept official who also ran Free Press for a few years):
1-The bad guys could already get crypto -- we helped the good guys get it.
2-The Internet Freedom investments in these technologies were strongly bipartisan (and remain so).
Those are good points. I wish she'd actually said that, rather than what eventually came out.
The second email comes right after that "Manhattan Project" comment at the debate in the middle of December, and there her staffers discuss what a terrible analogy it is and how they should tell the tech industry that Hillary won't support backdoors, but instead supports using hacking/malware to spy on terrorists (which is a better solution all around, though it raises some other issues).
The email thread starts off with lawyer and Clinton (and former Obama) advisor Sara Solow first highlighting the flip-floppy nature of Clinton's comments, and then followed it up by noting that the "flop" side of (supporting backdooring encryption) is "impossible":
She basically said no mandatory back doors last night ("I would not want to go to that point"). In the next paragraph she then said some not-so-great stuff -- about there having to be "some way" to "break into" encrypted content-- but then she again said "a backdoor may be the wrong door."
Please let us know what you hear from your folks. I would think they would be happy -- she's certainly NOT calling for the backdoor now -- although she does then appear to believe there is "some way" to do the impossible.
Teddy Goff, a political strategist and the digital director for Obama for America during the 2012 campaign, responds, calling it "a solid B/B+" and suggests that someone tell Clinton never to use the Manhattan Project line again. He also highlights the point that Ben Scott had raised a month earlier, and that it was clear that Clinton did not understand, that there is open source encryption out there that anyone can use already, and any attempt to backdoor proprietary encryption won't stop anyone from using those other solutions. Finally, he suggests that having "pledged not to mandate backdoors" will be useful going forward.
i think it was fine, a solid B/B+. john tells me that he has actually heard nice things from friends of ours in SV, which is rare! i do think that "i would not want to go to that point" got overshadowed in some circles by the "some way to break in" thing -- which does seem to portend some sort of mandate or other anti-encryption policy, and also reinforces the the ideological gap -- and then, more atmospherically, by the manhattan project analogy (which we truly, truly should not make ever again -- can we work on pressing that point somehow?) and the cringe-y "i don't understand all the technology" line, which i also think does not help and we should avoid saying going forward.
speaking of not understanding the technology, there is a critical technical point which our current language around encryption makes plain she isn't aware of. open-source unencrypted messaging technologies are in the public domain. there is literally no way to put that genie back in the bottle. so we can try to compel a whatsapp to unencrypt, but that may only have the effect of pushing terrorists onto emergent encrypted platforms.
i do think going forward it will be helpful to be able to refer to her having pledged not to mandate a backdoor as president. but we've got to iron out the rest of the message. i actually do believe there is a way to thread the needle here, which i am happy to discuss; it requires us to quickly pivot from encryption to the broader issue of working with tech companies to detect and stop these people, and not getting into the weeds of which app they happen to use and that sort of thing.
Finally, Solow responds to Goff agreeing that the "some way in" line implies undermining encryption, but suggests that they quietly let the tech world know that they don't mean backdoors, but just mean hacking/malware:
That she says no backdoor, which is good, but then says we need a way in, and then the bad line about not understanding technology. The latter two points make the first one seem vulnerable.
But in terms of wanting a way to break in - couldn't we tell tech off the record that she had in mind the malware/key strokes idea (insert malware into a device that you know is a target, to capture keystrokes before they are encrypted). Or that she had in mind really super code breaking by the NSA. But not the backdoor per se?
There are some obvious concerns with the hacking/malware stuff, but it's at a very different level than breaking encryption. While it's still ridiculous that Clinton won't just come out and say that backdooring encryption gives us both less security and less privacy, it does appear that she has people on her team who get the basics here. That's at least moderately encouraging. It would be better if there were some stronger indication that Clinton is actually listening to them.
from the can-we-teach-you-a-little-about-the-first-amendment? dept
On Friday, we wrote about the ridiculous arrest warrant for reporter Amy Goodman for reporting on the protests over the North Dakota oil pipeline. At the time, the charges against Goodman were apparently for trespassing, but late on Friday, the state's attorney alerted Goodman's lawyer that they were now actually trying to charge her with rioting. Say what?
“I came back to North Dakota to fight a trespass charge. They saw that they could never make that charge stick, so now they want to charge me with rioting, " said Goodman. "I wasn’t trespassing, I wasn’t engaging in a riot, I was doing my job as a journalist by covering a violent attack on Native American protesters."
Apparently, the state's attorney, Ladd Erickson, figured out enough about the law to realize that trespassing charges would never stick because there needs to be notice before it's trespassing, and no notice was presented. But Erickson is still really, really confused about how the First Amendment works. He told a local newspaper that Goodman's reporting was illegal because it was sympathetic to the protestors. Really.
“She’s a protester, basically. Everything she reported on was from the position of justifying the protest actions,” said Erickson
That's uh, not how the First Amendment works. And it will be fascinating to see Erickson try to now justify the "riot" claims when the complaint itself admits that Goodman was interviewing protestors. Apparently the judge will decide later today if the riot charges will stand. One hopes that he understands the First Amendment more than the state's attorney.
Two years ago, we wrote about the ridiculousness of police arresting reporters for reporting in Ferguson, Missouri, even though courts had told police to knock it off. Even more ridiculous is that those reporters were eventually charged, leading to a ridiculous settlement earlier this year.
And yet... arresting journalists for doing journalism continues to be a thing. As you probably know, there have been a bunch of protests in North Dakota lately concerning the Dakota Access Pipeline. Back in September, after covering the protests and having some of her videos of an attack on the protestors go viral, famed Democracy Now reporter Amy Goodman found out an arrest warrant had been issued for her. It's pretty clear that this arrest warrant was solely because of the coverage reflecting poorly on officials.
On Thursday, Goodman said that she'll surrender to authorities next week. As Democracy Now points out, the criminal complaint against her is so transparently unconstitutional and so transparently about intimidating reporters, that it actually notes that "Amy Goodman can be seen on the video identifying herself and interviewing protesters about their involvement in the protest." Right. That's called journalism. Goodman was basically arrested for doing journalism that the powers-that-be dislike.
Organizations that fight for free speech for journalists are condemning all of this. The Committee to Protect Journalists notes that this is "a transparent attempt to intimidate reporters from covering protests of significant public interest" while the Freedom of the Press Foundation is demanding that North Dakota drop the charges.
And they may want to seriously consider dropping the charges and walking away. After all, Goodman was also arrested for covering protests back in 2008, and that eventually ended with the police and local governments having to pay her $100,000 for violating her civil rights.
It's no secret that there's been a huge number of totally fake news websites popping up in the past few years. Apparently, it's a fun and profitable venture. While some of the fake news sites come up with generic names, like National Report, Hot Global, The Valley Report and Associated Media Coverage, some of the most successful fake news sites just make use of the big well-known broadcaster websites... and just get a .co domain: using nbc.com.co or abcnews.com.co. Some of the hoax stories are really well done -- and, yes, even we've been fooled, though in our defense, the fake story we fell for... was so believable it became true just months later. But, of course, we're just a bunch of random bloggers, not a Presidential campaign.
The Trump campaign, on the other hand, should know better. Amusingly, of course, this week we've talked about the Trump campaign's willingness to fall for hoaxes, but they seemed to take it up a notch this week. I first noticed it when I saw Trump's campaign manager, Kellyanne Conway tweet an obviously fake story, claiming that an anti-Trump protestor was really paid by the Clinton campaign.
You can even see the URL there, showing that it's "abcnews.com.co" and not the actual ABC news website (even if Conway does tag the real ABC as if they wrote the article). And, as I was writing up this story, I saw that The Hill notes that Donald Trump's son, Eric Trump, tweeted the same fake story:
Here's the thing, though. If you actually look at the story, it's so obviously fake. I mean, first off, just the claim that a protestor got $3500 to protest a Trump rally? I mean, even Donald Trump himself only paid his fake supporters $50 to cheer at his campaign announcement. Yes, the Clinton campaign has raised a lot more money than the Trump campaign, but $3500 a protestor? I mean, that's pretty obviously a ridiculous number.
And the article itself just gets more and more ridiculous the more you read. Whoever wrote this is clearly not even trying to fool people. I mean, just read this paragraph about how the guy knows it's Hillary's campaign that "paid" because the people who contacted him used AOL:
“As for who these people were affiliated with that interviewed me, my guess would be Hillary Clinton’s campaign,” Horner said. “The actual check I received after I was done with the job was from a group called ‘Women Are The Future’. After I was hired, they told me if anyone asked any questions about who I was with or communicated with me in any way, I should start talking about how great Bernie Sanders is.” Horner continued, “It was mostly women in their 60’s at the interview that I went to. Plus, all the people that I communicated with had an AOL email address. No one still has an AOL email address except people that would vote for Hillary Clinton.”
Or, how about the made-up Trump supporter in the article saying it was obviously a fake protestor because they shouted facts, or how "the best we could do was just yell and punch 'em."
“I knew those weren’t real protesters, they were too organized and smart,” said 59-year-old Tom Downey, a Trump supporter who attended the rally in Fountain Hills. “I knew there was something up when they started shouting all these facts and nonsense like that. The best we could do was just yell and punch em’ and stuff.” Downey continued
Yeah, sure. These fit the "stereotypes" but in such an exaggerated way that it's obviously false.
And then the article actually sorta becomes self-aware, with a pretty big wink to anyone who actually read it that it's false:
David Mikkelson, founder of Snopes.com, a website known for its biased opinions and inaccurate information they write about stories on the internet in order to generate advertising revenue, told ABC News that he approves of what a story like this is accomplishing.
“You have to understand that when a story like this goes viral, and we spend a minute or two debunking it, we make lots of money. Stories like this have helped put my children through college, buy a new car, a home and even get the Silverback gorilla my wife Barbara always wanted since she was a child,” Mikkleson said. “We claim ‘to provide evidence for such debunkings and confirmation as well‘, but that’s just ridiculous. Do you know how much time that would take? Instead, we just copy and paste parts of the original article into ours, write a couple sentences, and that’s it. I just want to be clear, our website does zero journalism or anything creative, and I’m only telling you this for legal reasons...."
That one goes on for a while having the fake Snopes person going on and on about fake news sites, totally unrelated to the subject of this "story." So, uh, yeah. It's pretty clear that either Trump's son and campaign manager read the story and are so completely clueless that they still thought it was real, or they were so excited by what the headline claimed that they just glided right past the ridiculous dollar amount and assumed it must be true. Yes, people get fooled by fake news stories all the time. But having an actual Presidential campaign get fooled by one is... well... bad.
from the do-you-even-know-what-defamation-means? dept
Oh Charles Harder. You just keep supplying more and more fodder for Techdirt stories. You may remember Harder as the lawyer thrust into the public realm after Peter Thiel allegedly bankrolled him to start a new law firm with a focus on taking on any lawsuit that might help bring down Gawker. Having succeeded in bringing down Gawker through dubious lawsuits, Harder has moved on (well, not entirely) to bigger fish, including Roger Ailes and Melania Trump.
And while Donald Trump has been focusing his defamation threats mostly on the NY Times, Melania and Harder have decided to focus on People Magazine. As you probably have heard by now, among the fairly long list of articles that came out on Wednesday and Thursday involving women saying that Donald Trump sexually assaulted (or engaged in other sketchy behavior) was a really disturbing story at People Magazine, where People writer Natasha Stoynoff wrote about Trump pushing her against the wall and kissing her, while she was there to interview both Donald and Melania. In fact, Stoynoff claims that the assault happened during a break in the interview with the couple, while a pregnant Melania had gone upstairs to change.
Some people had been asking how Melania had been reacting to this story, which (unlike many of the other accusations) much more closely involved her, in that it took place while she was in the home and happened to a reporter who was writing a story on the couple. Well, now we know. Melania tweeted out a retraction demand to People written by Charles Harder. And it's even more ridiculous that Harder's usual threat letters. The crux of it is that Melania denies a few unimportant side details of the article around Stoynoff's claim that she ran into Melania a year or so later, after she'd left the Trump beat (because of Trump's actions). Harder claims that Melaina never ran into Stoynoff:
The following statements in the Story, among others, are false and completely fictionalized. We therefore demand that you immediately and permanently remove each of these statements from the Story, and print a prominent retraction and apology:
"That winter, I actually bumped into Melania on Fifth Avenue, in front of Trump Tower as she walked into the building, carrying baby Barron."
"'Natasha, why don’t we see you anymore?' she asked, giving me a hug."
"I was quiet and smiled, telling her I’d missed her, and I squeezed little Barron’s foot."
The true facts are these: Mrs. Trump did not encounter Ms. Stoynoff on the street, nor have any conversation with her. The two are not friends and were never friends or even friendly. At the time in question, Mrs. Trump would not have even recognized Ms. Stoynoff if they had encountered one another on the street.
Harder then claims that if People does not remove and retract those statements then it "will require Mrs. Trump to consider her legal options."
Let's put this simply: Mrs. Trump's legal options are... nothing. Nada. Zilch. Note that Harder did not claim that any of these statements are defamatory. Because even he must know that they are not defamatory even if they are false. There is no harm in those statements. There is no nothing. They are just someone remembering what may have happened. Even if it didn't happen, that doesn't create any legal liability or problem, and it's certainly not defamation.
As with Donald, it seems like these weak ass legal "threat" letters seem more designed to scare off others with the knowledge that if you come forward or if you publish a story about someone who comes forward, the Trump team of lawyers will hassle you in some manner or another.
But, really, this particular letter is so weak and so empty of any actual issue, that you have to wonder what the hell is going on. Is it that Melania demanded something be done and this was the best that Harder could muster up given the lack of anything legitimate to whine about? Could it be that Harder thinks he can actually bully People into pulling these minor facts? It's not at all clear, and while I guess maybe (?!?) this helps Harder in that clueless censorious celebrities know they can go to him and he'll send clearly ridiculous threat letters on their behalf, for lots of other people, it just undermines any credibility Harder has on the subject of defamation and free speech. He looks completely foolish and petty.
Just last week, we discussed Donald Trump's ridiculous and almost instinctual reaction to threaten to sue the media any time they write something about him that he dislikes. That's not how defamation law works, and Trump should know since he's sued for defamation a few times in the past, and lost. Of course, Trump has also flat out admitted that he sometimes sues for defamation just to cost opponents money, which is the classic definition of a SLAPP (Strategic Lawsuit Against Public Participation) lawsuit.
This is all quite relevant today, seeing as a whole bunch of stories broke in the past 24 hours or so about Trump, mainly focusing on claims by women of (frankly) horrific things he's accused of doing to them (and, again, we're not a political site, and I'd really, really appreciate it if the comments on this post don't go down a political path, even if I know such a request is unlikely to be respected). Trump and his lawyers immediately started threatening to sue. The main target so far is the NY Times, which published the first major story, focusing on the allegations of two women. But within that story, the article notes that the reporters got Trump on the phone and he immediately threatened a lawsuit:
In a phone interview on Tuesday night, a highly agitated Mr. Trump denied every one of the women’s claims.
“None of this ever took place,” said Mr. Trump, who began shouting at the Times reporter who was questioning him. He said that The Times was making up the allegations to hurt him and that he would sue the news organization if it reported them.
“You are a disgusting human being,” he told the reporter as she questioned him about the women’s claims.
A few hours later, there were reports that Trump's lawyers were preparing a lawsuit against the NY Times and the Palm Beach Post, which had another story of another woman. Instead, however, Trump's lawyers sent a laughably thin cease and desist letter. As we and others have pointed out repeatedly, a defamation threat letter that fails to point out what statements are actually defamation is an empty threat letter designed to scare off the naive and clueless.
The NY Times, of course, is neither weak, nor clueless, especially when it comes to defamation law. The NYT's assistant General Counsel David McCraw's reply is well worth reading. After first (of course) saying that they won't take down the article, McCraw makes the argument that Trump is effectively "defamation proof" as his reputation is so bad on these matters, that any article couldn't make it much worse.
The essence of a libel claim, of course, is the protection of one's reputation. Mr. Trump
has bragged about his non-consensual sexual touching of women. He has bragged about
intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio
host's request to discuss Mr. Trump's own daughter as a "piece of ass." Multiple women
not mentioned in our article have publicly come forward to report on Mr. Trump's
unwanted advances. Nothing in our article has had the slightest effect on the reputation
that Mr. Trump, through his own words and actions, has already created for himself.
That's... pretty incredible. It sure would be interesting in court (though it's unlikely to ever get there, as we'll explain). From there, the NYT notes a second point, which is that they were reporting on a matter of national importance:
But there is a larger and much more important point here. The women quoted in our
story spoke out on an issue of national importance indeed, an issue that Mr. Trump
himself discussed with the whole nation watching during Sunday night's presidential
debate. Our reporters diligently worked to confirm the women's accounts. They
provided readers with Mr. Trump's response, including his forceful denial of the
women's reports. It would have been a disservice not just to our readers but to
democracy itself to silence their voices. We did what the law allows: We published
newsworthy information about a subject of deep public concern. If Mr. Trump disagrees,
if he believes that American citizens had no right to hear what these women had to say
and that the law of this country forces us and those who would dare to criticize him to
stand silent or be punished, we welcome the opportunity to have a court set him straight.
Notably missing from this letter is the usual response to blowhard defamation threats: that truth is an absolute defense to defamation, and in suing, you are opening yourself up to pretty widespread discovery -- and also that Trump has a very, very high bar to cross to win a defamation lawsuit. That is, as we've discussed many times, in the US, for there to be defamation of a public individual, the material printed must not just be false, but must be published with malicious intent. That's going to be virtually impossible for Trump to show if it even gets that far.
Of course, as many have pointed out, it's quite unlikely that any lawsuit (if one is actually filed -- and so far this campaign, Trump has threatened to sue publications many times and never followed through) would be dropped by Trump soon after the election. The only reason to threaten or to file a lawsuit is really just to scare off other women from coming forward and/or to scare off other publications for publishing such a story. And that's the real issue here: the chilling effect of abusing defamation law in this manner.
While Tim O'Brien, a writer that Trump actually did sue for defamation (and where he lost badly -- actually, he's the author that Trump gleefully explained that he sued just to cost him money), is saying that publications shouldn't fear Trump lawsuits because he'll always lose and it's not that easy. A publication like the NY Times has the resources to handle any such lawsuit. But many (perhaps most) other publications do not. And it is both timely and cost-intensive to defend against even a bogus lawsuit. And every publication knows that.
And that's the real problem here. It creates massive chilling effects on reporting on a topic of national importance concerning the Presidential election.
This is why we've been blathering on for years about the need for a federal anti-SLAPP law that would prevent these kinds of lawsuits, allowing for them to be tossed out of court quickly and where those who file such suits will have to pay the expenses of those they sued (of course, it should be noted that a key sponsor of the federal anti-SLAPP law that was introduced last year is also a top Trump supporter).
Right now, unfortunately, anti-SLAPP laws are state-specific, with some states having no such laws, and many having very weak laws. You can bet that if Trump's lawyers do sue, they'll do so in a state that has very weak or non-existent anti-SLAPP laws. But as Eriq Gardner at the Hollywood Reporter points out, these constant bogus threats should be a wake up call for Congress to finally pass a strong federal anti-SLAPP law.
As many have recognized, if Donald Trump does bring a lawsuit against media outlets over their coverage of sexual assault allegations, it will hardly be resolved by Election Day. Many speculate that Trump will quickly drop such claims post-election to avoid a discovery process that would investigate the real truth. No one should fail to recognize, however, that the lawsuit itself is a form of bullying intended to give members of the media and other women pause before reporting about this public figure's fitness for office.
The only way to ensure that members of the media throughout the nation continue to be strong participants in civic affairs is to erect downsides to the filing of lawsuits. The U.S. Congress has such an opportunity and can discourage attacks on the First Amendment with a federal anti-SLAPP act that imposes penalties on frivolous lawsuits that cost money to defend and suck up judicial resources. It's time for lawmakers to act.
Indeed. Of course, expecting Congress to do anything right now is kind of ridiculous. It's not going to happen, even though it should.
Someone and others have one little snapshot each. You would have to combine what they each know to still only reveal a little bit about you. This is hardly comparable to digital surveillance.
Yes, I wasn't making a direct analogy to digital surveillance at all. Just noting that there are always tradeoffs, even in the most basic situations.
Your point about digital surveillance is exactly right. You are giving up a lot more information, which is why we need to know what the full tradeoffs are and have more control. My point about the leaving your house example is to point to an extreme example -- where you give up very little private info, but get tremendous benefit.
So perhaps I was not clear, but I wasn't saying that surfing the internet is like leaving your house to go to the shop. I was just saying that every situation has tradeoffs when it comes to privacy vs. benefit. But other than that, I think we agree.
What if "Abe List" had made similar comments about someone other than Woods...perhaps a teen with depression...that eventually committed suicide as a result of being slandered in public...Would his actions have been okay then? Should the teen's family be entitled to legal recourse?
No one said that Abe was a saint. In fact, lots of people said he was obnoxious. We, in fact, described him as a troll. But what he did was still perfectly legal.
We've discussed multiple times before that if someone commits suicide, you should never blame people who were mean to them. This only gives more power to suicide and creates a way for people who are killing themselves to "get back" at people who were mean by killing themselves. It encourages more suicide and it's wrong. No one knows why any individual actually commits suicide. So bad example.
Internet fights often devolve into name calling. That alone is not libel (also, look up what slander is, because tweets can never be slander). This is basic First Amendment stuff.
Why is it that it is considered "hate" in only one direction?
No one did. Everyone admits that what Abe did was obnoxious. But it's one thing to be an obnoxious troll on the internet, and another to sue the person for $10 million, try to unmask them, and then celebrate their death. If you can't tell the difference, you've got issues.
I doubt Woods sought out some unknown person to start a fight with.
That's the whole point. Abe was an unknown person, with a tweet that almost no one saw, and Woods threw a hissy fit.
If you're just hanging out down in the comments and missed the updates, go check 'em out. Woods deleted his tweets and then mocked the lawyer for mentioning that the client had died. And, even worse, his lawyers have said he's going to push forward on the lawsuit to reveal the name of the dead man.
Since Netflix blocking was the majority of the problem, that's a little thin.
No, it wasn't, actually.
The Netflix issue was interconnection, which is further upstream. The net neutrality issue is last mile. Yes, they have some linkage, mainly in that the deliberate clogging of interconnection was *because* of ISPs trying to avoid net neutrality through sneaky bullshit ways, but even today's net neutrality rules don't actually stop ISPs from clogging interconnection points like they did.
The reason the interconnection clogging went away soon after the net neutrality rules were put in place was because the ISPs realized that the FCC meant business, and it was going to create new interconnection rules next if they didn't shape up. So they did.
So, yeah, again, the report is actually correct not to use the Netflix example.
I predict that the biggest stumbling block to getting autonomous cars on the road will be the price. Based on nothing more than my own intuition, I can easily see the first wave of autonomous cars costing well over $100,000.
The cars need a lot more security features before I would risk my life getting into 1.
Yet you're fine getting into a car driven by a human who has many more problems and is much more likely to put your life at risk? At this point, self-driving cars have driven millions of miles with a much lower accident rate than human drivers. In fact, most of the accidents have been caused by other human drivers. The only accident that Google has announced was its own cars' fault was a minor brush with a bus, the kind that happens many times a day with human drivers.
So I'm always a bit confused by these claims. Do self-driving cars need to get better? Sure. But they're incredibly good today. Almost certainly better and safer than human drivers. So what's the fear?
Now another Hillary Clinton email dumped by WikiLeaks . . . In a newly released email Hillary claims blacks are "professional-never-do-wells". She makes a blatantly racist statements about blacks. She says "everyone else is successful" but blacks "fail irrespective of our circumstances!!!"
Except, of course, that's not even close to true. I note you don't link to the email in question. It's here:
Note that it is not sent to or from Hillary. It's sent by an anonymous emailer *TO* a whole bunch of people -- mainly reporters for Politico and Huffington Post. One of the recipients is Clinton campaign manager John Podesta.
The full email is crazy rantings.
In other words, this is a spam message. It is not Hillary saying it. It's a spam from a nutter who believes stuff off the internet, spamming a bunch of reporters and Podesta conspiracy theories.
It really does not help your cause to not even do basic due diligence.
Driver assist will become popular but totally autonomous? Not likely in our lifetime.
If you've paid any attention to how rapidly innovation has happened in this area over the past decade, you'd realize how ridiculous that sounds. We're practically at fully autonomous vehicles today and there will be more and more on the road basically every day. I'd bet that within 10 years, greater than 20% of the vehicles on the road will be autonomous (and I consider that a conservative guess). That's well within our lifetimes.
can someone actually say why it is that judges are allowed to sit hearing cases they know absolutely nothing about? you wouldn't give a gardener the job of repairing someone's eye, so why give copyright cases to those who, apparently, know less than nothing about the subject and it's multitude of meanings?
Eh, there's value in having judges approach things fresh (though they do need to understand the relevant case law). The problem with specialized judges is that things tend to go in the other direction. Just look at CAFC (for the most part), which is the appeals court that handles all patent cases for the reasons you stated above. Now they "know" about patents, but because of that, they spend nearly 3 decades massively expanding patent law to ridiculous lengths, because they spent all their time hearing from patent lawyers about how awesome patents are.
What most people fail to realize is that they're not voting for Trump because of the policies he's promoting, it's because they're sick of all of the PC bullshit that is destroying the western world and that they don't want to see the US become the rape capital of the world like Sweden has become
Not to mention, they don't want their taxes going towards paying for for racist social justice courses that promote anti-white rhetoric by college professors
You're living in a fantasy world of ignorance. Please, I beg of you, educate yourself.
i really enjoy reading the articles on this site for the most part. Why ruin it by joining in on the trump bashing band wagon? Just keep it neutral, or leave it alone all together. Trump this and Trump that..... PLEASE, get off Hillary's lap. I imagine it's getting real crowded with all the other lapdogs currently there....
I'm really curious who these people are who keep claiming this. They're not actually readers of the site:
1. We didn't jump on the Trump bashing bandwagon. We wrote a story about a key thing that Trump has done repeatedly (issue bogus defamation threats against the 1st Amendment) which is a topic we've covered over and over and over again on this site.
2. We are not Hillary supporters either, and have written many stories commenting on our issues with her actions and policies -- including one on her mocking the First Amdendment as well.
3. It's possible to call out the bad actions of one candidate without being in the tank for the other.
4. "Keep it neutral." This site has always been an *opinion* site. We state our opinion. And, in my opinion, your comment is ridiculous. How's that for neutral?