In the news and publishing world, there tends to be pretty strong support for protecting free speech and, in particular, strong anti-SLAPP laws. After all, news publishers, are (unfortunately!) frequently targeted in SLAPP suits that are designed solely to shut up a news organization from reporting on something that someone doesn't like. That's why I'm always surprised when publications themselves seem to go after others for speech. But here we are, with a weird legal battle involving two publishers in nearby Santa Clara, California. The lawsuit was filed by Santa Clara Eagle Publishing and its boss Miles Barber against a guy named Robert Haugh, who just recently started an online-only publication called "Santa Clara News Online." Eagle Publisher/Barber, on the other hand, publish the more established "Santa Clara Weekly."
Haugh's Santa Clara News Online appears to be your typical local blog, with Haugh -- a local reporter for over 15 years -- posting news and opinion blog posts about local happenings in Santa Clara. Some of those blog posts criticized Barber and Santa Clara Weekly. And, thus, the lawsuit. Lawyer Ken White -- better known around these parts as Popehat -- is representing Haugh and has filed a lovely anti-SLAPP motion against Barber and Eagle Publishing, noting that it seems quite clear that the intent of the lawsuit was to try to silence Haugh from criticizing Barber and the SCW:
This case presents a classic story – a minor local luminary, incensed at bad press,
abuses the legal system to lash out at critics, hoping that the ruinous expense of litigation
will crush them even if the claim has no merit. Fortunately, California has a robust remedy:
California Code of Civil Procedure § 425.16, the Anti-SLAPP Statute (“Section 425.16”).
The Court should employ it to strike the complaint in this case, which is utterly meritless.
Rather tellingly, the complaint by Barber doesn't cite a single blog post by Haugh, nor even quote a single statement. It doesn't attach any of the actual posts, which you would kind of expect. Instead, it appears to paraphrase a bunch of things that Haugh's site posted -- mostly as clearly marked opinion -- and takes it out of context in the lawsuit filing:
Now Plaintiffs sue Mr. Haugh, claiming that he’s used the Site to interfere with the
SCW’s relationship with Santa Clara, misappropriated the trade name “Santa Clara News
online, defamed it and Mr. Barber, and put them in a false light. Plaintiffs’ Complaint is
notably and strategically vague. It complaints of false statements, but does not cite or attach
even a single blog post or statement, nor does it quote even one statement on the Site.
Instead, Plaintiffs claim that Mr. Haugh made the following vaguely defined categories of
statements, which Plaintiffs claim are false:
“[T]hat the 49’ers had bought out the weekly and that the weekly serves as nothing
more than a proxy for the 49’ers business interest,”
“[T]hat Miles Barber is a misogynist and the Weekly’s criticism of the women of
the city council were [sic] based on a desire to remove all women from the
“[T]hat the Weekly was not authorized to publish legal notices,”
“[T]hat the Weekly’s advertisers do not see a return on investment,”
“[T]hat Plaintiff has been skipping publication dates,” and
“[T]hat numerous facts published by the weekly were not true.”
It turns out there are some problems with these allegations. Mostly in that they are misleading or inaccurate:
These vague assertions mischaracterize the actual content of the Site:
On the Site, in columns explicitly labeled as opinion, Mr. Haugh identified facts
underlying his questions about whether the SCW was “serving the needs of the
San Francisco 49ers”: that the SCW had run a large 49ers ad nearly every week
since 2010, that an associate editor of SCW promoted the 49ers’ sponsorship of
her non-profit arts event, and that a Political Action Committee called BluPac
associated with the 49ers reprinted stories printed in the SCW.
The Site has never called Mr. Barber a “misogynist.” It has criticized him for a
column in the SCW (Exh. R) in which he derided female City Council members,
saying they could “barely spell their name.”
Mr. Haugh has not asserted that Plaintiffs are unauthorized to print legal notices.
Rather, in a guest letter written by Burt Field, Mr. Field explained that he had
written to the City Clerk and City Auditor asking questions about whether the
SCW met the requirements for legal notices.
The Site’s sole reference to advertiser “return on investment” in the SCW came
from a column – expressly labeled an opinion – in which Mr. Haugh referred to
the fact that most of the candidates who advertised in the SCW in the 2016 local
election were not elected.
Contrary to Plaintiffs’ claim, the Site is not aware of any post asserting that the
SCW has skipped publication dates.
Though the Site has questioned factual claims in the SCW, each time it has done s
so in opinion pieces that have expressly stated the basis for the question.
So, uh, yeah. That certainly makes it pretty clear that this is a SLAPP suit. There's also this fairly sketchy behavior:
[Haugh's] Site was initially located at stantaclaranews.wordpress.com until Mr. Haugh registered
santaclaranews.org on October 27, 2016.... On November 21,
2017, more than a month after Mr. Haugh began publishing the Site under the name “Santa
Clara News Online,” Plaintiffs filed a Fictitious Business Name application purporting to lay
claim to that name, and in January 2017 published the claim.
Got that? In October, Haugh started publishing Santa Clara Online News. Less than a month later, Barber filed a fictitious business name application purporting that his company was using that name. Then, in the lawsuit, Barber argued that Haugh was "misappropriating" the name. That's... bad. Really bad.
Also, some of the complained about statements come from letters to the editor, which means that Haugh is easily protected under Section 230. This case has all the hallmarks of a standard SLAPP suit, and hopefully the court makes quick work of it thanks to California's anti-SLAPP law. But, really, the most ridiculous part of all of this is why would a news pulisher file such a lawsuit itself, in an age where a free press is under attack? It's incredibly short sighted to try to undermine press freedoms yourself, just because someone made fun of you a little bit online.
For many years now, we've been talking about the copyright questions surrounding pre-1972 sound recordings. There are a ton of ongoing cases about this and it may be a bit confusing to keep up with it all. In short, under old copyright law, copyright only applied to the composition itself, but not the recordings. Many states then tried to step in and created state copyright laws (or common law doctrine via the courts) that gave sound recordings some form of copyright protection -- some of it much crazier than ordinary copyright law. Eventually Congress federalized copyright for sound recordings, but it didn't apply to any sound recordings from before 1972 (and a few at the very, very, very beginning of 1972, but it's easier just to say "pre-1972 sound recordings.") And then, even though the 1976 Copyright Act took away state copyright laws having any power, they still applied to certain aspects of pre-1972 sound recordings. This has... made a mess of things. The easiest solution would be to just admit this is dumb and say that pre-1972 works should be covered by federal copyright law, but lots of folks have been against this, starting with the RIAA (more on that in a bit).
And with things being confusing, some copyright holders have been using the weird status on pre-1972 sound recordings to effectively try to shakedown online streaming music sites into giving them better deals. The various cases have been all over the place, with the first few cases coming out saying that because pre-1972 sound recordings aren't covered under federal copyright law, things are different and copyright holders can sue over them. This upended decades of what was considered settled law.
Last summer, in a related case on a slightly different issue, the Second Circuit completely ripped to shreds the argument from the record labels that the DMCA's safe harbors don't apply to pre-1972 sound recordings. The labels were going on a quixotic attack against the video hosting site Vimeo, and because the DMCA's safe harbors protected that site, it argued that pre-1972 sound recordings didn't qualify. The lower court had ruled the other way, opening up a world of problems for any website that hosted audio. Thankfully, the 2nd Circuit reversed it. Of course, the labels asked the Supreme Court to hear the appeal, specifically arguing that the 2nd Circuit's ruling had to be in error because it was "contrary to the considered view of the United States Copyright Office."
The Supreme Court, thankfully, declined to hear the case on Monday. This is a big win for the DMCA's safe harbors. While the 2nd Circuit's ruling only has precedence in that one region, the 2nd Circuit is fairly well respected and influential on the other circuits -- and having the Supreme Court refuse to take up the issue, at the very least, suggests that the Supreme Court doesn't see that reading as particularly egregious.
Meanwhile, there are other things afoot regarding the legal status of pre-1972 sound recordings. Late last year, we noted that the big win for the copyright holders in NY was overturned, and it was decided that, contrary to what some copyright holders have been arguing, there was no "performance" right under NY's state copyright, and thus they can't magically argue that such a right applies to pre-1972 works. Then, earlier this month, out here in California, the 9th Circuit told the California Supreme Court to explore the issue concerning whether or not California's state copyright law provided some proto-performance right to pre-1972 works.
As more and more courts seem to be cutting off this attempted path used by record labels to shake down online services, it appears that maybe even the RIAA is having a change of heart. As you may recall, back at the top of the post, I noted that the RIAA was one of the leading voices insisting that it would be horrible to bring pre-1972 sound recordings under federal copyright law a few years ago. If they hadn't blocked proposals along those lines, none of this mess would have happened. That's why I find it somewhat surprisng, that one of the RIAA's favored front groups, musicFIRST, has been banging the drum this year, suddenly insisting that pre-1972 sound recordings should be treated the same as post-1972 works. Maybe, just maybe, the RIAA should have taken that position originally, rather than hoping to keep the copyrights separate so that it could force internet companies to pay more.
Just last week, we wrote about a fairly insane bill up for consideration in the California Assembly. AB-1104 would effectively make it illegal to post or share any "false or deceptive statement designed to influence" an election. As we noted at the time, this is about as unconstitutional as you could possibly imagine. Again, here's the text, as put forth by Assemblymember Ed Chau:
It is unlawful for a person to knowingly and willingly make, publish or circulate on an Internet Web site, or cause to be made, published, or circulated in any writing posted on an Internet Web site, a false or deceptive statement designed to influence the vote on either of the following:
(a) Any issue submitted to voters at an election.
(b) Any candidate for election to public office.
Yes, merely posting or sharing something that turns out to be wrong or "deceptive" related to anyone or any issue related to an election could violate the law. That's... not how the First Amendment works. And this would be an absolute free speech nightmare.
Chau, somewhat astoundingly, actually is a lawyer who ran his own law practice. I'm now curious if the Southwestern University School of Law doesn't teach its students about the basics of the First Amendment.
Rather than everyone laughing and this bill dying as soon as it was introduced, the California Assembly's Committee on Privacy and Consumer Affairs (which Chau chairs) is set to consider this bill today.
In case you don't understand just how bad this is, here's EFF's description:
American political speech dating back as far as the John Adams-Thomas Jefferson rivalry has involved unfair smears, half and stretched truths, and even outright lies. During the 2016 campaign alone, PolitiFact ranked 202 statements made by President Donald Trump as mostly false or false statements and 63 “Pants on Fire” statements. Hillary Cllinton made 69 statements ranked mostly false or false and seven as “Pants on Fire.”
This bill will fuel a chaotic free-for-all of mudslinging with candidates and others being accused of crimes at the slightest hint of hyberbole, exaggeration, poetic license, or common error. While those accusations may not ultimately hold up, politically motivated prosecutions—or the threat of such—may harm democracy more than if the issue had just been left alone. Furthermore, A.B. 1104 makes no exception for satire and parody, leaving The Onion and Saturday Night Live open to accusations of illegal content. Nor does it exempt news organizations who quote deceptive statements made by politicians in their online reporting—even if their reporting is meant to debunk those claims. And what of everyday citizens who are duped by misleading materials: if 1,000 Californians retweet an incorrect statement by a presidential candidate, have they all broken the law?
At a time when political leaders are promoting “alternative facts” and branding unflattering reporting as “fake news,” we don’t think it’s a good idea to give the government more power to punish speech.
Because the California Assembly is considering this bill today, EFF has also set up an action center making it easy to tweet at California Assemblymembers, to let them know just how bad this censorship law would be. Please check it out, especially if you live in California.
We've written a number of times about Carl Malamud and his organization Public.Resource.org, a nonprofit that focuses on making the world's laws more readily accessible to the people governed by those laws. You'd think that people would be excited about this, but instead, Carl just keeps getting sued. All the way back in 2013, the state of Georgia first threatened Carl for daring to publish online the "Official Code of Georgia Annotated." Two years later the state did, in fact, sue Carl for copyright infringement.
The case is, at least somewhat tricky and nuanced -- even if it shouldn't be. The key issue is the annotations and other additions to the official laws created by the legislature (the state of Georgia claims that "names of titles, chapter, articles, parts and subparts, history lines, editor notes, Code Commission notes, annotations, research references, cross-references, indexes and other such materials" are all covered by copyright). Obviously, it's crazy to think the underlying law itself is covered by copyright and unpublishable, but this has to focus on the annotations -- which are the various notes and links to relevant case law that add important context to the code itself. As people studying the law quickly learn, "the law" is not just the regulations written down by legislators, but also the relevant caselaw that interprets the laws and sets key standards and makes decisions that influence what the written code actually means. I don't think anyone disagrees that a private party who develops useful and creative works as annotations could potentially hold a copyright on the creative elements of that work (merely listing relevant cases, probably not, but a deeper explanation, sure...). And here, these annotations are developed by a private company: LexisNexis. The issue is the "official" part. Under contract with the state, LexisNexis creates the annotations, gets the copyright, and then assigns the copyright to the state of Georgia on those annotations, with Georgia releasing it as "the Official Code of Georgia Annotated."
It's also worth noting that every new bill in the Georgia legislature says that it's "an Act to amend the Official Code of Georgia Annotated" -- not to just amend the code. I just grabbed the first bill I could find, and this is what you see:
Also, as noted above, it's not just the "annotations" here -- but as the state claims, the "Code Commission" notes. That seems like fairly relevant information created by the government. Either way, the state of Georgia views the entire "Official Code of Georgia Annotated" as its one true source of law, and it's not available to the public. While the state has responded that (via LexisNexis) it does offer a website with the unannotated code, that website requires that you agree to LexisNexis' overly broad terms and conditions, which include all sorts of crazy demands, including insisting that if they ask you not to link to them, you have to stop linking. Also, even though this is Georgia's state laws, you agree that any dispute over the website will be in a New York jurisdiction. Oh, and the actual website with the law is basically unusable.
Malamud and his legal team argued that (1) due to the nature of this odd relationship, the work cannot be covered by copyright and (2) that, if it was covered by copyright, republishing this annotated code was fair use. Unfortunately Judge Richard Story, in the federal district court in Atlanta, has rejected both these arguments and found that the posting of the work was infringing.
On the question of whether or not this work could be covered by copyright, the court shows how legal annotations have long been considered copyright-eligible. In response to the argument that this is different, since it's the government itself now claiming these annotations as "official," the judge... just doesn't buy it:
Here, Defendant argues that these annotations to the O.C.G.A. are not copyrightable, but the Court disagrees. The Court acknowledges that this is an unusual case because most official codes are not annotated and most annotated codes are not official. The annotations here are nonetheless entitled to copyright protection. The Court finds that Callaghan v. Mvers. 128 U.S. 617 (1888), in which the Court found annotations in a legal reporter were copyrightable by the publisher, is instructive. Defendant itself has admitted that annotations in an unofficial reporter would be copyrightable, and the Court finds that the Agreement does not transform copyrightable material into non-copyrightable material.
The court further notes that the State of Georgia, while still publishing this as the "official" code, has bent over backwards over the years to remind everyone that the annotations themselves do not carry the force of law. This is probably the right legal conclusion as copyright law currently stands, even if it's an unfortunate legal conclusion. What it means is that, in Georgia, professional practitioners, with access to the expensive official annotated code, are the only ones able to truly understand the law -- and the average everyday Georgian cannot. From a public policy perspective, that just seems like a bad idea.
The fair use argument is a bit more interesting, and seems more viable to me, but the judge doesn't seem to think so. As always, the court runs through the four factors test for fair use, and weighs them... saying that they tip towards the state, rather than Malamud (and the public). For test one, on the nature of the work and whether or not the use is transformative, the court says there's no transformative use here at all, since it's just reposting the work as is.
Defendant does not transform the annotations. It does not add, edit, modify, comment on, criticize, or create any analysis or notes of its own. Defendant's justification in support of its verbatim copying and free distribution without authorization is that it purports to provide wider distribution of the annotations. Courts have routinely rejected arguments that this is transformative use
The fact that Public.Resource.org is a nonprofit and doing this for the benefit of the public still doesn't tilt the scales. In fact, in a rather troubling part of the ruling, Judge Story actually claims that because Carl "profits" from attention, he shouldn't even be considered a nonprofit.
In this case. Defendant's business involves copying and providing what it deems to be "primary legal materials" on the Internet. Defendant is paid in the form of grants and contributions to further its practice of copying and distributing copyrighted materials. Defendant has also published documents that teach others how to take similar actions with respect to government documents. Therefore, the Court finds that Defendant "profits" by the attention, recognition, and contributions it receives in association with its copying and distributing the copyrighted O.C.G.A. annotations, and its use was neither nonprofit nor educational.
That's... insane. I mean, just about any nonprofit doing anything gets "recognition" for the work they do, and most nonprofits survive on grants and contributions. It seems quite troubling to argue that just because a nonprofit gets attention for doing the work it set up to do, that you can ignore that the use of a work was for nonprofit purposes.
The second factor is the nature of the work. Without much analysis, the judge calls this one even, saying that it's "at best, neutral, as between these parties." This was a surprise to me. At the very least, I figured this factor would fall towards Malamud, as it's pretty easy to point out that "the nature" of the work is the official laws of the state of Georgia and the officially "blessed-by-the-state" annotation for what those laws mean. It seems like that should definitely push the ledger to the "fair use" side. But, for unclear and unexplained reasons, the judge says this one is even.
The third factor was almost certainly going to go against Carl: it's for the "amount and substantiality" of the work. While we've covered multiple important fair use cases where it was determined that even using the entire work can be fair use, in this case, that was going to be a hard argument, and the judge gives this one easily to the state of Georgia: "In this case. Defendant has misappropriated every single word of every annotation using a bulk industrial electronic scanner." I'm not sure why the "bulk industrial electronic scanner" needs to be called out here, as that's really kind of unrelated to the fair use question, but the judge went with it.
Finally, there's the fourth factor, about the impact on "the market." And, again, this one goes to Georgia:
Plaintiffs have established the markets for the O.C.G.A. works: printed publications, CD-ROM, and subscription services. When considering Defendant's actions being performed by everyone, it is inevitable that Plaintiffs' markets would be substantially adversely impacted. A judicial decree that Defendant's wholesale copying of the copyrighted annotations constitutes a fair use would hinder the economic viability of creating and maintaining the O.C.G.A. because people would be less likely to pay for annotations when they are available for free online.
The judge goes on to note that poor, poor LexisNexis won't have any economic incentives at all if this sorta thing keeps up. Of course, LexisNexis is part of the RELX Group conglomerate that "only" brought it somewhere around $8.5 billion dollars in revenue last year. How will they ever survive if the one-man shop of Carl Malamud puts the official annotated code of Georgia online? And, of course, this also ignores the fact that the State of Georgia doesn't need to set up a relationship with LexisNexis whereby LexisNexis gets paid based on sales of the code. It could, just as easily, pay LexisNexis for the annotations and then make them freely available to help its own citizens. But, nope, the judge is quite worried about the profits of this mega-conglomerate, which might be hurt by this one man nonprofit who dares to profit from "attention."
Even if you agree that this is an accurate fair use determination, the whole situation seems unfortunate. Georgia suing someone for helping to make its own laws more accessible just feels pretty damn sleazy and against what a government should be doing for its citizens. Either way, in this round, Malamud, Public.Resource.org and the citizens of Georgia have lost big time, while the state of Georgia (and LexisNexis) have won. Over the weekend, Malamud told me that he will be filing a notice of appeal shortly.
So, last week a clearly troubled individual by the name of Khalid Masood killed four people in Westminster and, as happens all too often after something bad happens, politicians went insane. But no one more so than UK Home Secretary Amber Rudd, who really maybe should have taken a moment or two to find out what the hell she was talking about before going on TV spouting off complete and utter nonsense about technology, social media and encryption. Instead, Rudd, who again, I remind you, is in a very powerful position within the British Cabinet (sort of loosely equivalent to the head of Homeland Security in the US) said this while talking about getting various social media companies to be more proactive in censoring content:
“What I’m saying is the best people who understand the technology, who understand the necessary hashtags to stop this stuff even being put up, not just taking it down, are going to be them. That’s why I would like to have an industry-wide board set up where they do it themselves.”
The best people... who understand the necessary hashtags. The. Necessary. Hashtags. Or should that be #NecessaryHashtags. I mean, that's so insane that it distracts from the fact that the UK Home Secretary is literally saying that she wants internet companies to come together in a mass collusion to censor content the UK Home Secretary doesn't like.
Believe it or not, that wasn't even the craziest thing that this person-in-power had to say. Prior to the #NecessaryHashtags, we were given a full throated UK-version of James Comey and his silly, debunked "going dark" nonsense, just with a British accent:
“It is completely unacceptable. There should be no place for terrorists to hide.
“We need to make sure that organisations like WhatsApp, and there are plenty of others like that, don’t provide a secret place for terrorists to communicate with each other.
“It used to be that people would steam open envelopes, or just listen in on phones, when they wanted to find out what people were doing, legally, through warrantry, but in this situation we need to make sure that our intelligences services have the ability to get into situations like encrypted WhatsApp.”
We don't necessarily (hashtag or not!) need to rehash just how wrong this is -- we've covered that plenty of times in the past. The fact is there are always going to be tons of places where "terrorists" can communicate with each other that no one can see. Sometimes it will be in person. Sometimes it will be in public, but using a pre-designated code. And, of course, even more importantly, this crazy decision to blame encrypted communications apps in a case where even Rudd admits the guy was a lone actor, completely ignores just how important encrypted, private communications are to the rest of us. It takes quite a misguided thought process to think "here we have a disturbed lone actor who did an attack, and therefore we need to make absolutely everyone else significantly less safe." It takes an even more misguided process to take that thought and go on TV and announce it as an official plan of the UK government.
Oh, and remember, this is the same UK government that just months ago got massive new powers to spy on the public.
If it's not yet obvious from what was said above that Rudd is just playing tech buzzword bingo and has simply no idea what she's talking about, she also said this:
“We’re not saying open up, we don’t want to go into the cloud, we don’t want to do all sorts of things like that, but we do want them to recognise they have a responsibility to engage with government, to engage with law enforcement agencies when there is a terrorist situation”.
You're not saying open up and you don't want to go into the cloud? But you are saying that encryption shouldn't be allowed to work? What is she even saying? This is all nonsense. The companies do engage with governments all the time. When given a valid and legal warrant, they do what they can. Sometimes that's nothing.
Of course, all of this is coming on the heels of another misguided outrage at other tech companies for sometimes allowing bad people to use their tools. Paul Bernal has an oasis of sanity responding to some of this cesspool of craziness.
Terrorists use the internet to communicate and to plan because we all use the internet to communicate and plan. Terrorists use the internet to access information because we all use the internet to access information. The internet is a communicative tool, so of course they’ll use it – and as it develops and becomes better at all these things, we’ll all be able to use it in this way. And this applies to all the tools on the net. Yes, terrorists will use Google. Yes, they’ll use Facebook too. And Twitter. And WhatsApp. Why? Because they’re useful tools, systems, platforms, whatever you want to call them – and because they’re what we all use. Just as we use hire cars and kitchen knives.
The same is true of privacy itself. We all need it. Undermining it – for example by building in backdoors to services like WhatsApp – undermines us all. Further, calls for mass surveillance damage us all – and attacks like that at Westminster absolutely do not help build the case for more of it. Precisely the opposite. To the surprise of no-one who works in privacy, it turns out that the attacker was already known to the authorities – so did not need to be found by mass surveillance. The same has been true of the perpetrators of all the major terrorist attacks in the West in recent years. The murderers of Lee Rigby. The Boston Bombers. The Charlie Hebdo shooters. The Sydney siege perpetrators. The Bataclan killers. None of these attacks needed identifying through mass surveillance. At a time when resources are short, to spend time, money, effort and expertise on mass surveillance rather than improving targeted intelligence, putting more human intelligence into place – more police, more investigators rather than more millions into the hands of IT contractors – is hard to defend.
Why is it that all the sane thoughts on this seem to be coming from outside the government, and the craziest ideas coming from those in the highest positions of power?
As you may recall, there was a giant fuss last year, when an Australian guy named Craig Wright not only claimed that he was "Satoshi Nakamoto" -- the pseudonymous creator of Bitcoin -- but had convined key Bitcoin developer Gavin Andresen that he was Nakomoto. That was a big deal because Andresen was one of the first developers on Bitcoin and regularly corresponded with Nakamoto (Andresen's own name sometimes popped up in rumors about who Nakamoto might be). Even with Andresen being convinced, plenty of others soon picked apart the claims and found the claims severely lacking in proof.
Then, last summer, Andrew O'Hagan published an absolutely massive profile of Wright that only served to raise a lot more questions about Wright, his businesses, his claims to having created Bitcoin, and a variety of other things. However, as we noted at the time, buried in that massive article was a bizarre tidbit about how Wright was actively trying to patent a ton of Bitcoin related ideas. As we noted, the article stated that Wright's plan was to patent tons of Bitcoin stuff, reveal himself as Nakamoto and then sell his patents for a billion dollars.
Of course, part of that plan fizzled because basically no one believes Wright was Nakamoto. But, apparently the patenting has continued. Earlier this months, Reuters released a big "investigation" showing that Wright is rushing to get as many Bitcoin-related patents as possible, and has partnered with an online gambling mogul who's a fugitive because of his business dealings (add this to the long list of sketchy connections between Wright and other businesses):
Craig Wright, the Australian computer scientist who made the Satoshi claim, has the backing of Calvin Ayre, a wealthy Canadian entrepreneur, according to people close to Wright and documents reviewed by Reuters. Ayre has been indicted in the United States on charges of running online gambling operations that are illegal in many U.S. states – an accusation he rejects.
Wright’s expertise combined with Ayre’s support make a potentially formidable force in shaping the future of bitcoin and blockchain, the ledger technology that underlies digital currencies. Wright and his associates have lodged more than 70 patent applications in Britain and have plans to file many more, according to documents and emails reviewed by Reuters and sources with knowledge of Wright’s business. The patents range from the storage of medical documents to WiFi security, and reflect Wright's deep knowledge of how bitcoin and blockchain work.
Their total compares with 63 blockchain-related patents filed globally last year and 27 so far this year by multinationals from credit card companies to chipmakers, according to Thomson Innovation.
And, because it's patents we're talking about, there's a shell company here, because shell companies are quite popular in the patent trolling world. But Reuters claims that Ayre and Wright are behind this particular shell company and point to lots of close connections between the two. The report further notes that there are plans to file 150 patent applications, and maybe up to 400, and again repeats the claim from last year about the "ONE BILLLLLLLLLION DOLLARS!" sales plan:
The range of patent applications lodged by Wright and colleagues is wide. Five, registered on Dec. 14, were made by EITC Holdings with the bland description “computer-implemented method and system,” public filings show. One, registered on Dec. 28, was described as “Determining a common secret for two blockchain nodes for the secure exchange of information” - apparently a way to use the blockchain to exchange encrypted data. Other applications by Wright and his associates relate to sports betting and a blockchain-based operating system for simple electronic devices.
Emails from Wright to Ayre’s associate Matthews, reviewed by Reuters, set out plans to file 150 patents. A person with direct knowledge of Wright’s businesses said he and associates ultimately aim to file closer to 400. None has been approved so far and it’s not clear whether the patents would be enforceable if granted, but Wright’s associates have been quoted as saying the patents could be sold “for upwards of a billion dollars.”
The Reuters article argues that this "rush to patent applications poses a threat to the original conception of bitcoin as a technology available to all." Of course, that also seems like a pretty big strike against the idea that Wright is Nakamoto.
But it also seems like a misunderstanding about patents themselves. First off, just because you file for a ton of patents, it doesn't mean you're going to get them. And, thankfully, lately the USPTO has actually gotten much, much better at rejecting really bad patents. These things may be worth talking about if he's actually granted these patents -- and, even then, it may only really matter if he (or any later holder of the patents) seeks to enforce them. The really crazy thing, though, is that this once again demonstrates the sheer silliness of our patent system. Rather than actually trying to build a viable business by leveraging the useful features of Bitcoin/blockchain, you have someone trying to lock it up by putting tollbooths wherever possible. Tons of work is being done to advance Bitcoin and blockchain these days, because of all the opportunities it will create... not because of patents. And, once again, it shows the folly of believing that patents are a key incentive for innovation. That's rarely the case. Often, they're a key incentive for putting hurdles in the way of actual innovations, so that you can shake the actual innovators down for cash.
This is a bad and dangerous idea. It's one that's designed to give Hollywood and the recording industry even more power and control over an already deeply captured agency. As it stands now, having the Copyright Office in the Library of Congress provides at least some basic recognition of the actual intent of copyright law, as established by the Constitution to Promote the progress of science. That is, as we've pointed out for a long, long time, the intent of copyright is to benefit the public. The mechanism is to provide temporary monopolies to creators as an incentive, before handing the works over to the public. Yet, the Copyright Office eschews that view, insisting that the role of the Copyright Office is to expand those monopoly rights, and to speak out for the interests of major copyright holders (rarely the creators themselves).
Either way, by making this a Presidential appointment, the MPAA and RIAA know that it will give them significantly greater say over who leads the office. Right now they can (and do!) lobby the Librarian of Congress on who should be chosen, but the Librarian gets to choose. One hopes that the Librarian would take into account the larger view of copyright law, and who it's actually supposed to benefit -- and we're hoping that the current Librarian will do so (if given the chance). But making it a Presidential appointment will mean heavy lobbying by industry, and much less likelihood that the public interest is considered.
The usual think tankers and industry folks will tell you -- incorrectly -- that the Copyright Office is only in the Library due to "an accident of history." But that's not the case. The role of both overlap dramatically -- collecting, organizing and cataloging new creative works. Almost everyone agrees that the Copyright Office needs to be modernized, and that the previous Librarian failed (miserably) to do so. But because we had a bad librarian in the past is no reason to remove the Copyright Office entirely from the Library and disconnect it completely to its constitutional moorings designed around getting more creative works to the public.
Make sure to let your Congressional Representative know not to support this bill -- especially if they're members of the House Judiciary Committee. Rep. Goodlatte has said that he'd only propose copyright reform bills that have widespread consensus. This is not such a bill.
Last summer, we wrote about a potentially important case going to the Supreme Court, technically about the copyright design of cheerleading uniforms. As we've discussed, copyright is supposed to apply to artistic expression, and it's been considered not to apply to functional products or industrial design -- sometimes referred to as "useful articles." Along those lines, things like fashion design, have always been considered not subject to copyright. In this case, Star Athletica v. Varsity Brands, the question was raised about the design of certain stylistic elements on cheerleading uniforms, and whether one copy using similar elements on its cheerleading uniforms infringed on the copyrights of the other. A district court said no, the appeals court said yes. And now the Supreme Court has weighed in saying that the designs can be covered by copyright and creating a new test on such matters (previously, there was something of a mess of different tests that judges would apply, sometimes haphazardly). Having a single test seems better than a mishmash of competing tests, but the situation here is... potentially very dangerous to a variety of innovations.
First up, here's the new test:
We hold that a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature:
(1) can be perceived as a two- or three-dimensional work of art separate from the useful article and
(2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.
In other words, if you can pull the design out of the "useful article" and it's still a design that's subject to copyright, then the copyright lives on. At a first glance this certainly seems to make sense. It has a fairly common sense feel to it -- and the majority argues that the plain text of the law supports this interpretation. But there are some pretty serious potential dangers here. In our article last year, we noted that the implications for this case go way, way beyond cheerleader uniforms and could touch on any variety of products that might include some decorative elements -- especially in the 3D printed world, where so many designs are freely shared and modified.
And the deeper you get into this, the "simple, common sense" ruling starts to get more and more complex. For example, the majority notes that this test stands even if the "removal" of the work of art makes the original no longer useful. That is, even if the "artwork" is part of the utility of the object, it can still get the copyright. That... seems to be pushing the line quite a bit. The dissent -- by Justice Breyer with Justice Kennedy signing on -- highlights why this doesn't make much sense. If the copyright can only be applied to a piece of artwork that is "separable" from the overall object, it needs to actually exist independently and that shouldn't destroy the object itself:
A separable design feature must be “capable of existing independently” of the useful article as a separate artistic work that is not itself the useful article. If the claimed feature could be extracted without replicating the useful article of which it is a part, and the result would be a copyrightable artistic work standing alone, then there is a separable design. But if extracting the claimed features would necessarily bring along the underlying useful article, the design is not separable from the useful article. In many or most cases, to decide whether a design or artistic feature of a useful article is conceptually separate from the article itself, it is enough to imagine the feature on its own and ask, “Have I created a picture of a (useful part of a) useful article?” If so, the design is not separable from the useful article. If not, it is.
Breyer harkens back to one of our favorites, Lord Thomas Macauley, who warned of the dangers of expanding copyright into areas where it doesn't belong:
Years ago Lord Macaulay drew attention to the problem when he described copyright in books as a “tax on readers for the purpose of giving a bounty to writers.” ... He called attention to the main benefit of copyright protection, which is to provide an incentive to produce copyrightable works and thereby “promote the Progress of Science and useful Arts.” ... But Macaulay also made clear that copyright protection imposes costs. Those costs include the higher prices that can accompany the grant of a copyright monopoly. They also can include (for those wishing to display, sell, or perform a design, film, work of art, or piece of music, for example) the costs of discovering whether there are previous copyrights, of contacting copyright holders, and of securing permission to copy.... Sometimes, as Thomas Jefferson wrote to James Madison, costs can outweigh “the benefit even of limited monopolies.” ... And that is particularly true in light of the fact that Congress has extended the “limited Times” of protection..., from the “14 years” of Jefferson’s day to potentially more than a century today....
The Constitution grants Congress primary responsibility for assessing comparative costs and benefits and drawing copyright’s statutory lines. Courts must respect those lines and not grant copyright protection where Congress has decided not to do so. And it is clear that Congress has not extended broad copyright protection to the fashion design industry.
Breyer also makes the analogy of Van Gogh painting old shoes -- in which Van Gogh could certainly copyright the painting itself -- but couldn't also copyright the shoe design in the painting and use that to bar others from selling such shoes. And this dissent notes that this case seems to flip that reasoning upside down:
Consider designs 074, 078, and 0815. They certainly look like cheerleader uniforms. That is to say, they looklike pictures of cheerleader uniforms, just like Van Gogh’s old shoes look like shoes. I do not see how one could see them otherwise.
For visual reference, here are those designs:
As he notes, it's fairly clear here that the submission to the copyright office is the design of the overall uniform. It's not separate from the uniform. They didn't just submit a design of these lines and shapes. It's a uniform:
Were I to accept the majority’s invitation to “imaginatively remov[e]” the chevrons and stripes as they are arranged on the neckline, waistline, sleeves, and skirt of each uniform, and apply them on a “painter’s canvas,” ... that painting would be of a cheerleader’s dress. The esthetic elements on which Varsity seeks protection exists only as part of the uniform design—there is nothing to separate out but for dress-shaped lines that replicate the cut and style of the uniforms. Hence, each design is not physically separate, nor is it conceptually separate, from the useful article it depicts, namely, a cheerleader’s dress. They cannot be copyrighted.
Unforutnately, that's not what the majority decided. And to show how this might impact much more than just cheerleader uniforms, let's go over to 3D printing company Shapeways, and its analysis of this ruling.
The test as established by the Court can be thought of as a copyright-first test. Looking at the cup, it asks a viewer to pull out all of the parts of the cup that could be perceived as a two- or three-dimensional work of art. Viewed some ways, that’s basically the entire cup. The bird and the branches could all exist as an independent artistic work, even though removing them would leave you with no way to hold your egg. And that’s ok. The test does not care that there might be very little left of the functional parts of the object after you remove those artistic elements. It only cares that the artistic elements can be perceived. Each of those artistic elements are protected by copyright.
An alternative test — one not adopted by the court— could have taken a useful-first approach. Instead of starting with the artistic elements, it could have pulled out the parts of the object that are required for the object to achieve its functional goals. Again, that’s basically the entire cup. The branches, however artistically rendered, also serve the functional purpose of holding the egg. The test could then look at what was left — in this case, that’s basically the bird — and protect those with copyright. This approach would keep functional elements outside of copyright protection and greatly reduce the cup’s connection with copyright.
As you can see, the place where you start this test can have a huge impact on the outcome. Start by removing the artistic elements without concern for the underlying utility and you end up with a lot of stuff protected by copyright. Start by removing the useful parts without concern for the artistic elements and you end up with less stuff protected by copyright.
In talking to a few different copyright lawyers about this ruling, there are a variety of levels of concern. Some are still hopeful that the clear test is a good thing, and that the damage done by expanding copyright to cover more of the useful elements of objects won't be that big of a deal. Others, however, are much more worried, as we've all seen how copyright creep and the use of copyright to block, limit and destroy both speech and innovation can happen quite rapidly. I hope that's not the case here, but I fear that we'll now see more efforts to abuse this new test to overclaim copyright on objects, and that will lead to greatly limiting innovation in a variety of areas.
For many years, we've written about the craziness of the so-called "border search exception" to the 4th Amendment, in which the US government has insisted that the 4th Amendment doesn't apply at the border, and thus it's allowed to search people at the border. The initial reasoning was -- more or less -- that at the border, you're not yet in the country, and thus the 4th Amendment doesn't apply yet. But that's expanded over time -- especially in the digital age. Perhaps, back when people just had clothes/books/whatever in their luggage, you could understand the rationale for allowing a search, but today, when people carry laptops and handheld electronic devices that basically store their whole lives, the situation is a lot scarier. Unfortunately, (with just a few small exceptions) the courts have simply taken the historical ability to search luggage at the border and expanded it to cover electronic devices. Then, things got even more ridiculous, when Homeland Security decided that anywhere that's within 100 miles of the border could be "close enough" to count as a "border search," making the "border search exception" apply. That's... messed up.
Law enforcement tried to get around this by claiming that since Kolsuz was at the airport, the search of his phone should count as a border search exception. But that's crazy. Unfortunately, the district court accepted this reasoning -- and now the case is on appeal. We signed onto this amicus brief for a variety of reasons, but a big one is that, as journalists, protecting sources and documents is important. We shouldn't be subject to warrantless searches of our work every time we just happen to be in an airport. As the brief notes:
The District Court erred in denying Mr. Kolsuz's Motion to Suppress and this Court should reverse and remand for a new trial. First, while the border search doctrine constitutes a narrow exception to the otherwise unequivocal Fourth Amendment requirement that the government obtain a warrant to conduct a search, the governmental interests that justify this narrow border search exception were not in play when the Defendant's smartphone was searched incident to his arrest, and this exception therefore cannot be used to justify the search here. The fact that Mr. Kolsuz was arrested and his phone seized at an airport--the equivalent of a border--does not change this case from one that fits squarely within Riley v. California... to one that is suddenly part of a narrow exception of cases justified by the sovereign's customs enforcement rules.
The Court should see this search for what it was: a month-long, detailed, forensic search to gather evidence against Mr. Kolsuz for use in a trial on the very charges for which he was arrested. Since the search here was not actually a border search, the border search exception cannot save it.
Second, the United States essentially seeks a mechanical application of a Fourth Amendment exception even where the interests that justify the exception were not implicated in this case. The dangers of such a mechanical application are readily apparent. People traveling into and out of the United States routinely cross with smartphones or computers that contain the equivalent of "every piece of mail... every picture... [and] every book" a person has.... These individuals include journalists, lawyers, and business travelers with confidential information typically safeguarded under American jurisprudence. Nevertheless, customs agents purport to have unfettered access to the contents of electronic devices carried by such individuals, without any reasonable suspicion or probable cause of a crime, simply by the fact that the individual wishes to leave or enter the United States. This is not the application of the border search exception that the Supreme Court had in mind when it outlined its narrow purview.
Of course, many of us still find the very idea of a "border search exception" to be nonsensical in the first place. But if it's there, the idea that it could be abused in this manner is even more problematic and concerning. Hopefully the 4th Circuit corrects this injustice. We're proud to sign onto this brief, and hope the court listens.
In December, we wrote about how (thanks to EFF's lawyering) mobile phone provider CREDO Mobile was finally (after many years) allowed to reveal the National Security Letter (NSL) it had received from the DOJ back in 2013. As per usual, the NSL had a complete gag order, barring the company from admitting it had received such a letter. Then, just about a month later, Cloudflare was similarly ungagged over an NSL it had received in 2013 as well.
On Wednesday, EFF will be back in the 9th Circuit appeals court arguing that these NSLs are First Amendment violations, but for the first time, it can actually name those two companies as its clients. Even though those NSLs were finally allowed to become public in the last few months, the case itself still did not include their names, until Monday, when the court was told by the DOJ, that since the FBI had concluded the various investigations, and because it had enabled each of the companies to reveal those specific NSLs they had received, that it no longer required the plaintiffs' names in the case to be sealed. Of course, we don't know how many other NSLs are still gagged (possibly even with these two companies). Indeed, the EFF's announcement certainly hints at more:
On Wednesday, EFF Staff Attorney Andrew Crocker will tell the United States Court of Appeals for the Ninth Circuit that these gags are unconstitutional restrictions on CREDO and Cloudflare’s free speech and that the FBI’s belated decision to lift some of the gags only underscores why judicial oversight is needed in every case. The gag orders barred these companies from participating in discussion and debate about government use of NSLs—even as Congress was debating changes to the NSL statute in 2015.
Hopefully, the appeals court recognizes the serious First Amendment issues at play here.
Late last year, we wrote about the crazy case in which journalist Kurt Eichenwald was suing an anonymous Twitter troll, claiming that the troll had sent Eichenwald a flashing gif designed to cause some small percentage of epileptics to have a seizure. Eichenwald claimed that it had worked and he'd had a seizure on the spot. As we noted at the time, we're no fans of Eichenwald. In our opinion, he's an absolutely terrible journalist with a fairly long history of really weird issues, and a strange obsession with massively overselling stories. He has me blocked on Twitter and has indicated that he's no fan of us either.
Still, the lawsuit was interesting. At a first pass, the very idea that a "tweet" could be a weapon seems preposterous, and even troubling. But as we noted in that story, Eichenwald actually could have a legitimate case. We cited a bunch of lawyers and law professors, who each laid out why a tweeted image, deliberately designed to cause real harm to someone, could certainly violate the law. Of course, many people (reasonably!) wondered if the troll would ever be found. It's not too difficult to hide your identity behind a fake Twitter account (in this case, the rather unsubtle "@jew_goldstein"). But, then again, perhaps we didn't expect that the troll would do this:
That, is an image of John Rivello holding up his own driver's license. And it's attached to the very iCloud account that was attached the iPhone that he used, via an "untraceable" Tracfone prepaid account, to set up the @jew_goldstein Twitter account. And we know that because the DOJ arrested Rivello late last week and released the criminal complaint and affidavit that explains how Rivello the troll was tracked down. It's quite fascinating.
The short version is this: when setting up the Twitter account, a real phone number was used. That information was obtained via a search warrant to Twitter -- which also turned up a bunch of direct messages that are kinda useful to prosecutors:
If you can't see those, it's a series of Direct Messages from the "@jew_goldstein" account, saying things like that Eichenwald "deserves to have his liver pecked out by a pack of emus." "I hope this sends him into a seizure." "Spammed this at [Eichenwald] let's see if he dies." "I know he has epilepsy."
Those statements are kinda useful for law enforcement when charging someone under a cyberstalking law -- 18 USC 2261A that includes this:
(2) with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that—
(A) places that person in reasonable fear of the death of or serious bodily injury to a person described in clause (i), (ii), or (iii) of paragraph (1)(A); or
(B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of paragraph (1)(A)
That whole "intent to kill, injure, harass, intimidate" part is helped along with direct tweets saying something like "I hope this sends him into a seizure" and "let's see if he dies."
Anyway, back to the investigation. With that info in hand from Twitter, investigators asked AT&T for info on the phone number associated with the account (it appears this wasn't via a search warrant -- it looks like law enforcement just asked and AT&T responded, which is kind of consistent with the way AT&T seems to handle these sorts of things). AT&T noted that it was a Tracfone prepaid account, so there was no subscriber info... but also noted that it was using a specific model iPhone.
So, from there, the DOJ sent a search warrant to Apple about the iCloud account associated with that phone number, and that's where they hit jackpot. Not only did they get back an Apple ID with the name John Rivello, but they got the photo above. And this:
If you can't see it, that's the flashing gif that @jew_goldstein sent Eichenwald and it says "You Deserve A Seizure For Your Posts." This was the same one that Eichenwald's wife found on Kurt's computer when she found him having a seizure. The affidavit includes a screenshot she took of his computer screen showing that exact gif. Oh, and also stored in Rivello's iCloud? A screenshot of an edited Wikipedia page of Eichenwald, claiming that he'd died the day after the gif was set. And also screen shots of an article about epilepsy seizure triggers, and an article about how the police were trying to track down the troll.
So that's a lot of pretty damning evidence. As lawyer Keith Lee notes, it's something of a miracle he was tracked down. Even though he took some fairly basic precautions to cover his tracks (fake account, Tracfone phone connection), he didn't take that many and didn't seem to realize how many other ways there were to track him down.
I know that some have raised concerns about the idea that anyone could face criminal charges for a tweet -- but as we explained when Eichenwald first filed his (civil) lawsuit, there are legit causes of action here -- and it's a fairly rare fact pattern that would lead to these things. It would have to be a tweet or other message that is likely to cause actual harm -- which is a very, very, very limited set of tweets. And then there has to be the intent to cause that harm. In this case, it actually appears that all of that is legitimately in place.
Of course, I'll let the criminal defense lawyers chime in here with a deeper analysis, but in Keith Lee's post (prior to the actual charges being released) he pointed to that stalking law, and noted a few problems with it, including that it requires that the defendant travels across state lines and tends to require a pattern of such actions rather than a single action. So there may be some issues there, though it wouldn't surprise me to see an updated complaint with other charges that may be tougher to deal with. So, yes, while there are reasonable concerns about anyone being arrested for a tweet, this does seem like a fairly specific case where at least some sort of legal action does make sense. This wasn't just annoying someone with a meme -- it was causing a real physical attack that could have resulted in death. And it was done on purpose. Don't do that.
from the that-is-going-to-piss-off-a-lot-of-people dept
It's been a very long time since I last flew somewhere without my laptop. I actually am more productive than usual on planes, and I tend to use flying time to just focus in and get a ton of stuff done. I can't even begin to explain how ridiculously frustrating it would be to find out that I wouldn't be allowed to bring a laptop onto a plane, and yet it appears that our new Homeland Security overlords have put in place new restrictions on flights to the US from certain countries in the middle east barring tablets and laptops from the cabin (apparently no American carriers are impacted -- just foreign ones). Passengers are being told to check such things (which is odd, since normally you're not supposed to check lithium ion batteries...). Flights from 13 countries are being hit with this, and Homeland Security won't give any further explanation beyond the usual "national security." And, just this morning, the UK announced that it would be doing the same thing.
Homeland Security has been hinting that this is due to some sort of specific threat -- so it sounds like there's intelligence around a planned attack using such a device. Perhaps then the extra precaution is sensible. But, once again, this feels like a form of overkill security theater: inconveniencing basically everyone (to extreme levels) based on the slight possibility of a very small number of bad actors. There has to be a better way. Every time one of these new restrictions is put in place, it not only completely inconveniences people, but it shows people that if they somehow convince the scaredy cats at DHS of some new type of threat, they can inconvenience people even more. It's almost as if each additional inconvenience is impacting things way more than an actual exploding laptop or whatever might.
Of course, it should be no surprise that former TSA boss Kip Hawley, is now running around arguing that this is no big deal and Wired is happy to tell everyone to calm down and just "buy a book." But that's kind of crazy -- especially for people who have important or sensitive information on their laptops and don't want to hand them off to baggage carriers with a history of snooping through bags and stealing expensive electronics.
Also, since this is limited to just a few Middle Eastern airports, it's not hard to think that if there are terrorists planning something, they'll just head to different airports instead. Yes, I'm sure that someone saw something that they thought was a threat, and it's reasonable to put in place plans that try to minimize some of that risk. But it has to take into account the cost side too, and there has to be a better way to deal with it than such a blanket ban impacting so many people.
Over the last few years, we've written a ton about "corporate sovereignty" provisions in trade agreements. Technically, these tend to be called "Investor State Dispute Settlement" or ISDS provisions, but I really believe that a decent part of the reason they're called something so boring is to stop people from paying attention to just how nefarious these provisions truly are. One of the reasons we first started paying attention to these provisions -- as they were showing up in agreements under negotiation, such as the TPP and TTIP -- was following a story involving the pharmaceutical giant Eli Lilly demanding $100 million from Canada for rejecting two of its patents.
The issue was that Canada had rejected these two patents because the company couldn't prove that the patented drugs were actually useful. Eli Lilly claimed that Canada had no right to reject patents on that basis, arguing that it was a "dramatic" shift in how patents were reviewed, and thus it was "expropriating its property" and undermining the company's "expected future profits." Think about that for a second. By the time this case went to an actual tribunal, the amount that the company was demanding had ballooned from $100 million to $500 million. This battle has waged on for many years -- and for Eli Lilly, this was a huge deal. Management at the company basically bet the company on continuing to get new patents, and any hiccup -- even a rejection of patents for not being useful -- could be a disaster for the company. The company even pushed to get Canada slammed during diplomatic proceedings in the infamous Special 301 Report for the USTR for daring to reject its patents -- and the USTR complied.
Well, it looks like all of that may have been for nothing. That's because Eli Lilly has lost entirely, and not only won't it be getting the $500 million it wanted, but it also has to pay Canada's $5 million in legal fees. You can read the final award here or down below. Of course, some may argue that this shows that the ISDS corporate sovereignty provisions work out fine in the end, with tribunals getting things right (even if that's not actually true in many cases), but just the fact that the Canadian government had to go through this massive and expensive process for many years just for rejecting two bad patents should show why ISDS provisions are such a problem.
In the ruling, the tribunal even notes the Special 301 report that Eli Lilly worked so hard to have call out Canada's patenting practices, but more or less dismisses it, by noting that others, such as Mexico didn't complain similarly:
The Tribunal has paid particular attention to the 2014 and 2015 editions of the Special 301
Report of the USTR. In these documents, USTR notes that the United States “has serious
concerns about the lack of clarity and the impact of the heightened utility requirements for
patents that Canadian courts have applied recently”. This comment cannot be dismissed
outright as a lobbying effort by Claimant, as suggested by Respondent. However, the
Special 301 Report stands alone in the record as a complaint regarding Canada’s utility
doctrine from any other State, including Mexico, in the decade since the promise utility
doctrine was allegedly adopted. For the Tribunal, that silence speaks louder than the
single, brief criticism contained in the USTR’s Special 301 Report.
In other words, sure, maybe it wasn't just because Eli Lilly heavily lobbied Congress and the USTR to attack Canada on this point, but the fact that no other country seems concerned with Canada's standards for denying patents, it certainly looks like this wasn't such a big deal.
Also in the ruling, there's a focus on "expectations." Remember, a big part of Eli Lilly's claims was how this impacted its "expected" profits. But here, the tribunal basically notes that just because Eli Lilly expected Canada to ignore its own law, it doesn't mean that it actually enforcing its own laws is some nefarious plot:
The record shows that at the time Claimant made its investments, it was aware that
Canadian patent law required patented inventions to be useful. Eli Lilly executives testified
that they understood the Canadian utility requirement to be a low threshold. In fact, it
appears that the utility of Strattera and Zyprexa in Canada was taken for granted within the
company. Claimant expected its patents would not be invalidated for lack of utility.
However, this perception cannot amount to a legitimate expectation. For the reasons stated
above, the Tribunal has found that each of the three elements of the alleged promise utility
doctrine had a foundation in Canadian law when Claimant’s patents were filed. At that
time, although Claimant may not have been able to predict the precise trajectory of the law
on utility, it should have, and could have, anticipated that the law would change over time
as a function of judicial decision-making.
The idea behind ISDS was to encourage investment in developing nations, where there was a fear that a sketchy government might seize a factory or something. But that's not a problem between Canada and the US, and Eli Lilly should have been able to put on its big boy pants and recognize that maybe, just maybe, Canada can reject some of its patents, and the company doesn't need to throw an international hizzy fit. Next time, rather than betting the company on patents, perhaps the company will start thinking about business models that don't require a complete lottery ticket.
So, let's just say that things probably haven't been looking very good for Prenda's Paul Hansmeier lately. Obviously, there was a long series of legal losses in the Prenda and Prenda-related cases, but those are in the distant past now. Back in September, he lost his law license for some of the Prenda copyright trolling activities (if you haven't been playing along, Prenda set up their own honeypots with their own films --which they pretended were some other company's, filed bogus CFAA charges to try to get IP addresses, demanded cash from people to drop lawsuits, lied in court multiple times and more...). Then, in December, the two main players: John Steele and Hansmeier were finally indicted and arrested. Then, just a couple weeks ago, Steele took a guilty plea, making it clear he's thrown Hansmeier under the bus and will testify against him (given the history of Steele throwing many others under rapidly approaching buses, this is no surprise).
So... that's not a really good position to be in. But it may be getting worse. As you may recall, in July of 2015, after a number of cases went against Prenda, and Steele and Hansmeier were told to pay large sums of money in opposing legal fees and sanctions, Hansmeier declared bankruptcy. Except, as with so much related to Hansmeier, that was a disaster too. It got so bad that Hansmeier's own lawyer admitted to the court that "he's a bad actor." As the bankruptcy process wore on, it became apparently worse. Turns out that he denied a certain trust fund was under his control, but that wasn't actually true. Oh and also more shell companies. Oh, and also $180,000 in cash hidden under his bed. As we noted all the way back in 2015, even before all of this came out, bankruptcy fraud is a bad idea.
Oh, and back in December it was reported that the FBI was alsoinvestigating his ADA trolling efforts. So that makes him indicted for Prenda and under investigation over more potential (serious) issues for doing more Prenda-like activities with the ADA and then also for bankruptcy fraud. As Paul Hansmeier himself once said in an angry threat letter: "welcome to the big leagues." Amusingly, that was in a letter to a critic threatening litigation for daring to suggest that Hansmeier had been involved in criminal activities.
Oh, and that's not all. Also via SJD, we find out that the trustee in the bankruptcy case, noting the indictment, has been asking Hansmeier to "waive his discharge" (effectively forcing Hansmeier to remain in bankruptcy, rather than being able to discharge his debts). The trustee (who is, somewhat amazingly, a former law school classmate of Hansmeier's) sent Hansmeier an email to this effect, noting that assuming Hansmeier would invoke the 5th Amendment in his criminal case, that will "allow the bankruptcty court to draw numerous adverse inferences against you."
Ouch. The document below, in which Hansmeier reveals the bankruptcy fraud investigation, is actually part of his effort to have the bankruptcy court to hold off on these proceedings while all this other stuff gets taken care of. But, even if he weren't facing criminal charges where his partner in crime has already admitted everything and agreed to testify against him, and even if he weren't also facing separate investigations over bankruptcy fraud and ADA trolling, it appears that Hansmeier's bankruptcy case is getting even worse than it was before. This is beyond big leagues. This is beyond the All-Star game. This is truly Hall of Fame material.
Google is constantly under pressure from all sides to change how it ranks just about everything. There's a massive SEO industry, a decent portion of which is dedicated into tricking Google into ranking some stuff higher than others (or downgrading content that someone doesn't like). And, then, of course, there are the "outside" interests. For years, the legacy recording and movie industries would misleadingly blame Google for piracy and demand that it downrank "pirate" links. Google caved in and did so, and the end result has been kind of a mess. Because it's based on DMCA notices in to Google, the company now gets flooded with an ever increasing number of DMCA notices -- many of which are completely bogus (and potentially just designed to mess with search rankings).
On top of that, in cases where it does downrank so-called "pirate" sites, since people are still looking for unauthorized content anyway, they end up going to more dangerous sites, where they're more likely to get malware. And, of course, as we predicted, despite caving in and giving the RIAA/MPAA a tool to shape search results, those industries still aren't satisfied. Because they'll never be satisifed. That's because they fail to understand that the problem isn't Google. Google is just a representation of what's on the internet -- and many people on the internet want access to content that is otherwise difficult to get. That's not Google's fault.
A couple of years ago, Google also announced that it would allow people to remove "revenge porn" results from search. And you can certainly understand why pretty much everyone would want this as an end result. But, still, once you make that tool available, there's reason to fear that it, too, will be abused. And even if a company as large as Google may be able to properly staff up to go through and review each request, this only puts pressure on everyone else -- including much smaller, less well-staffed, less well-resourced players to do something similar.
With the change, content with racial slurs could now get flagged under a new category called "upsetting-offensive." So could content that promotes hate or violence against a specific group of people based on gender, race or other criteria.
While flagging something doesn't directly affect the search results themselves, it's used to tweak the company's software so that better content ranks higher. This approach might, for instance, push down content that is inaccurate or has other questionable attributes, thereby giving prominence to trustworthy sources.
Again, at a first pass, this kind of thing absolutely sounds good. We should want better results, and the idea of letting Google's many millions of users help flag certain sites to be carefully reviewed for "upsetting or offensive" content makes sense. But... again, this definitely seems like the kind of thing that is open to widespread abuse. First off, what is "upsetting or offensive" anyway? That's a completely subjective standard, and one that we've seen people judge very, very differently. Second, what do you do if you really dislike a particular site? You open up a vote-brigade by a bunch of people to label it "upsetting or offensive." Trump haters can go after Breitbart and Trump supporters can go after the NY Times. Hopefully Google resists those kinds of vote brigading, but just the fact that this kind of tool is open to such abuse is concerning. And, again, when Google does something like this, it puts more pressure on other sites, with many fewer resources, to do something similar or get branded as somehow "supporting" offensive content.
Again, none of this is to say that Google must be promoting "offensive" content. It has the right to create its search results however it wants. But the more tools it opens up to the public to potentially downrank sites, the more the risk is that such tools get widely abused.
Over the past few days, Mizbala has written about other cases in which Facebook automatically blocked and/or erased posts. In one case, comedian Guri Alfi complained about the erasure of one of his posts, which he attributed to the fact that he credited photographer Guy Kushi. The Hebrew word “kushi” is a derogative term for blacks.
In another incident, Gili Cohen, a participant in the “Big Brother” reality show, was blocked for 30 days after posting a video clip in which he harshly criticized the fact that he and others had been blocked for using “banned words” in old posts.
This is something that we've been known to post about on quite a few occasions as well. The fact is, Facebook isn't always good with its blocking decisions. Frankly, this isn't a huge surprise, given that it has to use a combination of algorithms and low level human reviewers to cover a fairly large amount of content -- a decision the company made when it decided that it would be the arbiter of what is and what is not allowed on the site. Mistakes are going to happen, and with it comes people mocking Facebook for making bad decisions.
However, with Mizbala, something extra strange happened. Soon after posting a few of these stories mocking Facebook, suddenly Mizbala itself was blocked by Facebook. Entirely. Even worse, previous links to Mizbala disappeared and anyone posting a link to Mizbala was given a fairly scary sounding message suggesting the site was deemed "unsafe" by Facebook.
In some other cases, it told people posting Mizbala links that the links "might be spam."
Yeah, so that certainly feels pretty sketchy. The site is regularly critical of Facebook -- specifically how it blocks people arbitrarily -- and suddenly it too gets blocked by Facebook with a nasty warning that the site itself is "unsafe." Even if this was an accident, it really looks quite bad.
In response, Mizbala has sued Facebook in Israel arguing that the messages associated with the block are defamatory and a "false description" of Mizbala (which appears to be similar to the concept of "false light" in American law).
I'll admit that I'm a bit torn about this whole thing. The arbitrary/hamfisted blocking is pretty ridiculous, and it's made much worse when it comes right after Mizbala was directly criticizing Facebook for arbitrary blocking and when it then is telling people that the site is either unsafe or spam. But, at the same time, it seems like a flat out public shaming is always going to make more sense here than going legal. In the US, at least, this kind of lawsuit would almost certainly fall flat (quickly). Nearly a decade ago, we wrote about a case in which it was found that Section 230 of the CDA protected an antivirus company (Kaspersky) from calling some adware "spyware." CDA 230(c)(2) makes it quite clear that attempts by companies to filter content taken in good faith don't expose the company to liability (of course, if this case were in the US, I'd guess that Mizbala could argue that the block wasn't made "in good faith.")
Given all that, this case could be troublesome. Obviously, Facebook's actions here look sketchy, and I'm all for calling out the company for its bad filtering policies, and the really iffy "unsafe" labelling it gave to the site here. But by putting liability on a company for deciding to block certain sites opens up a pandora's box of mischief. It could enable just about any site that was blocked -- even if for legitimate reasons, to gum up the judicial system with lawsuits and would make it much more difficult for lots of internet companies (including small ones who don't have the litigation budget of Facebook) to have to defend almost any moderation decision they make. This is the kind of thing that Section 230 protects against in the US, letting companies make their own moderation decisions (while the First Amendment then lets anyone mock the companies for making bad decisions).
Many people seem to forget that before Ed Snowden came along, Senator Ron Wyden was beating the drum in Congress about how the NSA was abusing Section 702 of the FISA Amendments Act to spy on Americans. Here's a story we did back in 2011 concerning Wyden raising concerns about the failure of the Director of National Intelligence to say how Section 702 was being used on Americans. Even earlier in 2011, we wrote about then Director of National Intelligence, James Clapper, refusing to answer this question, saying that "it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed."
Wyden kept up a series of similar requests, famously leading to the 2013 hearing in which Wyden directly asked Clapper about whether or not information was being collected on Americans and Clapper flat out lied. Snowden himself has credited that particular exchange as playing a big role in convincing him to leak documents.
Fast forward to now. Last week, Senator Wyden sent a letter to incoming Director of National Intelligence* Dan Coats, once again asking how many Americans are having their communications watched under Section 702 of the FISA Amendments Act (which, again, is supposed to be used for foreign intelligence, but which we now know is regularly used to do surveillance on Americans).
I and other members of Congress have been seeking an answer to this question since 2011. We posed the question again in the context of the reauthorization of Section 702 in 2012. It is now central to the debate this year over the reauthorization of the program, which you have described as your "top legislative priority."
As Wyden notes:
The lack of information on the extent to which Americans' communications have been collected under Section 702 is relevant not just to the question of whether Section 702 should be reauthorized, but to what reforms may be needed. For example, the government is currently authorized to conduct warrentless queries for Americans' communications collected under Section 702. Without data on the number of Americans' communications available to government, it is impossible to know the full extent to which these queries intrude on the privacy and constitutional rights of Americans.
Wyden was hoping to get an answer to this question, prior to Coats' being voted in. That, of course, did not happen. However, Wyden gave one of his big speeches about this issue:
In it, he calls out these issues quite clearly:
But I want it understood that the reason that I’m going through this background is that I believe the American people deserve a fully informed debate about the Foreign Intelligence Surveillance Act reauthorization. You cannot have that debate — you cannot ensure that the American people have security and liberty unless you know the impact of section 702 of that bill on the constitutional rights of law-abiding Americans.
So for six years, Mr. President, in this body Democrats and Republicans — in the other body, Democrats and Republicans — have been asking the same question: How many law-abiding Americans are having their communications swept up in all of this collection?
Without even an estimate of this number, I don’t think it’s possible to judge what section 702 means for the core liberties of law-abiding Americans.
Without this information, the Congress can’t make an informed decision about whether to reauthorize section 702 or what kind of reforms might be necessary to ensure the protection of the individual liberties of innocent Americans.
There's a lot more in the nearly 50-minute speech (the transcript is in the link above). But it's truly incredible that the executive branch refuses to give Congress this information that it needs for oversight:
Mr. President, how many law-abiding Americans — innocent, law-abiding Americans are getting swept up in these searches? It will be an increasingly important issue, as the nature of telecommunications companies continues to change because it is now a field that is globally interconnected. We don’t have telecommunications systems just stopping at national borders.
So getting the number of Americans whose communications have been collected in the first place is the prerequisite to doing real oversight on this law and doing our job at a time when it is being reauthorized and the American people want both security and liberty and understand that the two are not mutually exclusive. So, Director Clapper then suggested reviewing the classified number of targets that were later determined to be located in the United States. But the question has never been about the targets of section 702, although the mistaken targeting of Americans and the people in our country is another serious question.
The question that Democrats and Republicans have been asking is about how many Americans are being swept up by a program that, according to the law, is supposed to only target foreigners overseas. So let me repeat that. That’s what the law says. The Foreign Intelligence Surveillance Act says that the targets are supposed to be foreigners overseas. And Democrats and Republicans want to know how many law-abiding Americans who might reside in Alaska or Oregon or anywhere else are getting swept up in these searches. So this bipartisan coalition has kept asking.
Wyden goes on to explain how many in the intelligence community are misleading the public on how broad the powers and searches under Section 702 really are. He even highlights the claims that some have made that anyone against 702 must be part of a "bad guy caucus." But the issue is that, as currently used, Section 702 can and likely is being used to broadly conduct warrantless surveillance on Americans:
I’ve heard my colleagues on the other side talk frequently. Well, you know, if law-abiding Americans are having their communications swept up, we shouldn’t get all concerned about that because this array of Americans’ communications is being minimized, and somehow that means that it’s not getting out. It’s being hidden. That’s not what necessarily happens.
To begin with, all that collection does not stay at the National Security Agency. All the e-mails collected through the PRISM component of section 702 go to several other agencies, including the C.I.A. and the F.B.I. Then you have those three agencies in particular authorized to conduct searches through all the data for communications that are to, from, or about Americans. Look for an American’s name, telephone number, e-mail address, even a key word or phrase. They can do that without any warrant. There doesn’t have to be even a suspicion, even a suspicion that an American is engaged in any kind of wrongdoing.
The F.B.I.’s authorities are even broader. The F.B.I. can also conduct searches for communications that are to, from, or about an American to seek evidence of a crime. Unlike the National Security Agency and the Central Intelligence Agency, the F.B.I. doesn’t even report how many searches for Americans it’s conducting. Moreover, neither the F.B.I. Nor the C.I.A. Reports on the number of searches for Americans it conducts using metadata collected under section 702.
Now, the authority to conduct searches for Americans’ communications in section 702 data is new. Before 2011, the FISA court prohibited, prohibited queries for U.S. persons. I’m going to repeat that: Under the Bush Administration and the first two years of the Obama Administration, it was not possible to conduct these back-door, warrantless searches of law-abiding Americans. Then the Obama Administration sought to change the rules and obtained authority to conduct them.
In April, 2014, the Director of National Intelligence in response to questions from myself and Senator Mark Udall publicly acknowledged these warrantless searches, and my June, the House voted overwhelmingly to prohibit them. That prohibition didn’t become law, but I can tell you it’s sure going to be considered in the context of this reauthorization, and the House voted overwhelmingly, overwhelmingly to prohibit these warrantless searches.
So the question really is what exactly is the privacy impact of these warrantless searches for Americans?
There's a lot more in the speech as well, but this post is getting to be long enough. Unfortunately, of course, the speech will get little attention. It's not the exciting sort of political football that cable news likes to cover. There's no partisan horse race element to it. It's just the kind of thing that impacts the basic Constitutional rights of all Americans. And, apparently, only a few people actually seem to care about it -- and none of them seem to be in roles where they can stop this kind of 4th Amendment violation from happening again.
* Clapper, astoundingly, was never fired or otherwise punished for lying to Congress, and only left at the beginning of this year with the change in administrations.
Remember James Woods? The Hollywood actor sued a Twitter troll for $10 million, claiming defamation, because that troll had sarcastically referred to Woods as a "cocaine addict." Woods, of course, has a long history of mixing it up on Twitter with lots of people, including saying things almost identical to what he sued over:
Throughout the case, Woods continued to make it abundantly clear to the world that he is a horrible person. Specifically, during the course of the case, the (anonymous) defendant unexpectedly passed away, leading Woods to gloat about the guy's death, after first claiming that the reason the appeal in the case was dropped was because he was winning the case:
Not only that, but even after the defendant passed away and the case was dropped, Woods continued the lawsuit and forced the opposing side to reveal the name of the anonymous Twitter user who so enraged Woods.
Of course, as we've said time and time again, people should be very careful in gleefully taking down the rights of others, because you never quite know when that same sort of thing might boomerang back around. Case in point: the Hollywood Reporter notes that James Woods is being sued for defamation... over some of his tweets. The lawsuit, seeking $3 million, and brought by Portia Boulger, claims that Woods defamed her and then was insincere in his apology:
This all started in March 2016, after the Chicago Tribune posted a campaign rally photo of a woman who was wearing a Trump T-shirt and giving a Nazi salute — the well-known 'Heil Hitler' salute with her right hand raised straight up — and several Twitter users misidentified the woman in the picture as Boulger, according to the complaint. Woods tweeted the photo from his verified account and wrote, “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?”
After Boulger's attorneys contacted the actor, he deleted the tweets and wrote a new series of them that were meant to be a retraction. However, two of the three apology tweets were untrue, according to Boulger.
A March 23 tweet by Woods reads: “Ms. Boulder [sic] has reached out to me and asked me to use my many followers to stop people from harassing her. I am more than happy to do so.”
That was followed by another: “Though she supports @BernieSanders, I am happy to defend her from abuse. I only wish his supporters would do the same for other candidates.”
Now, here's the thing: while there's obviously the emotional appeal of seeing Woods hit with the same kind of lawsuit that he saddled someone else with, this lawsuit appears to be just as misguided, if not worse. I know (first hand...) that some people think that it's okay to cheer on bogus lawsuits against people you dislike, but some of us have principles. Bogus defamation lawsuits are an affront to free speech, whether they're brought against people we like or not. And this certainly looks like a bogus defamation lawsuit. I hate to say it, because I'm sure Woods will continue to gloat and never realize the contradictions if he does, but Woods should win this lawsuit easily.
The original tweet may be borderline, but it would be quite difficult to argue that Woods posted it with actual malice, defined as knowledge that the information was false, or with reckless disregard for the truth -- which is the standard necessary if Boulger is deemed a public figure, which seems likely in this case (Boulger is a political activist and that's a big part of what the dispute is about). Yes, the tweet misidentified her, but hard to argue that it could pass the bar to be defamation. The fact that Woods then deleted the tweet after being informed that he was wrong, and posted the follow up tweets helps his case as well, even if Boulger's lawyers attack those tweets too. Here's what the complaint says about them:
The second and third of these tweets were false, insulting and demeaning as Ms. Boulger never asked Mr. Woods to “reach out to my many followers to stop people from harassing her.” Rather, Ms. Boulger, through counsel, had demanded a retraction and apology.
Yeah... that's such a difference of degree that there's almost no way it will be seen as defamatory. Furthermore, "insulting and demeaning" is not defamation, nor is it against the law. Unfortunately for Woods, Ohio, where the case is filed has no anti-SLAPP law as far as I can tell. So this case becomes yet another example of why a federal anti-SLAPP law is important. Of course, Woods could try to move the venue or push for California's anti-SLAPP law to apply, since he's a resident of California.
In certain ways, this case actually has a fair number of similarities to the Katie Hopkins Twitter defamation lawsuit in the UK that we wrote about earlier this week. We noted in that story how different UK and US defamation law can be, but also noted that Hopkins was widely disliked, and thus many people who otherwise tend to be good on free speech issues were celebrating her "loss." One hopes that on this one people can remain above that sort of thing, and recognize that if you support true freedom of expression, then this case must fail, even if you don't like James Woods, or were furious at him for filing his own wacky defamation case over tweets not too long ago.
We've talked about the astounding hypocrisy of Rep. Devin Nunes a few times in the past. He heads the House Intelligence Committee, which is supposed to be conducting "oversight" of the intelligence community, but has generally been a cheerleader for mass surveillance in recent years. Nunes, in fact, has regularly slammed any attempt to cut back on surveillance, to the point of actively misleading the public in making false claims about how NSA surveillance programs work. The hypocrisy became clear when Nunes flipped out following the firing/resignation of Mike Flynn as National Security Advisor, arguing that it was somehow unprecedented that an American's phone calls with Russian officials were recorded by the intelligence community. Of course, that suggests either near total ignorance of the programs he's supposedly in charge of overseeing, or just blatant political pandering.
And now it's getting worse. Reporter Katie Bo Williams got her hands on an interesting letter that Nunes, along with ranking member Rep. Adam Schiff, just sent to the heads of the CIA, NSA and FBI, continuing to dig in on the whole "recorded Mike Flynn" thing. The target now is Executive Order 12333, which we've spoken about quite a lot. That's the executive order signed by President Reagan, that more or less gives the intelligence community total free rein in conducting surveillance overseas. As an ex-State Department official revealed back in 2014, the vast majority of NSA surveillance actually is done under 12333, and it just uses other programs -- like Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act -- to fill in the gaps of what they can't get via 12333. Executive Order 12333, for example, was used to hack into Yahoo and Google's servers overseas, allowing the NSA to scoop up lots of info without any oversight by US courts.
Anyway, based on the letter that Nunes has sent, he's suddenly quite concerned about 12333. And this demonstrates his massive hypocrisy, because another letter he sent a few years ago has him arguing that there should be less oversight on 12333... but we'll get to that. This new letter suggests that the Flynn recording came under 12333, and so he's demanding all sorts of data on how 12333 is used on US Persons.
Of course, what's interesting here is that the Congressional intelligence committees have long stated that they don't really have much oversight into anything under 12333. Dianne Feinstein (who was a top member of the Senate Intelligence Committee) admitted in the past that the committees get zero insight into 12333 intelligence collection:
“The other programs do not (have the same oversight as FISA). And that’s what we need to take a look at,” she said, adding that her committee has not been able to “sufficiently” oversee the programs run under the executive order. “Twelve-triple-three programs are under the executive branch entirely.”
Feinstein has also said the order has few, if any, privacy protections. “I don’t think privacy protections are built into it,” she said. “It’s an executive policy. The executive controls intelligence in the country.”
Got that? Good. At least when Feinstein was bringing it up, she was bringing it up to argue that the Intel Committees should be getting more insight into what 12333 is used for.
However, Devin Nunes, apparently wanted it to be kept in the dark. And wanted the public kept in the dark. That's because I just received in a surprisingly well-timed FOIA response, a letter that Nunes, along with Senate Intel Committee boss Richard Burr, sent a letter to the Privacy and Civil Liberties Oversight Board (PCLOB) back in 2015, basically telling the PCLOB to stop looking into 12333, because it was outside its purview. As you may recall, after doing detailed reports on Sections 215 and 702, the PCLOB announced that it was going to do a detailed study on 12333 to determine if it was violating the privacy and civil liberties of Americans. While that was announced way back in 2014, nothing final ever came out -- and it's unlikely to ever come out because the PCLOB is effectively dead.
But Nunes and Burr were apparently so concerned that the PCLOB might find actual problems with 12333 and how it violates the rights of Americans, that they made it clear that the PCLOB should knock it off:
As we are sure you are aware, intelligence activities conducted under E.O. 12333
address a broad range of national security issues beyond counterterrorism, including
significant and important foreign intelligence matters that fall well outside of the PCLOB's
limited statutory charter. Many intelligence activities conducted under E.O. 12333 predate
the creation of the PCLOB and were not within the scope that the 9/11 Commission or
Congress envisioned when PCLOB was established. The purpose is clear and
specifically defined by Congress.
We trust you will keep in mind the finite statutory authority as you move
forward and work with the Intelligence Community to limit appropriately your review only
to those matters which Congress has specifically authorized you to review.
In other words, just two years ago, Devin Nunes was telling the one body in the government specifically tasked with reviewing intelligence collection programs to see how they're being used on Americans, that they should stop doing that. And now, today, he's suddenly demanding to know how the intelligence community uses 12333 to spy on Americans -- as if it had never crossed his mind before that the program was used this way.
This is not effective oversight. This is a hypocritical joke by the name of Rep. Devin Nunes.
Last month, we noted that a ton of tech companies -- including us at the Copia Institute -- had signed on to amicus brief opposing the Trump Executive Order on immigration. As you know, the administration came out with a new executive order a few weeks later, trying to get around the multiple courts that had blocked the original order. The new order is just a cosmetic rewriting of the original one with a few small changes that the administration hopes will survive judicial scrutiny. A number of challenges have already been filed to the new order, and in one of them, brought by the state of Hawaii, a bunch of tech companies (again, including the Copia Institute) have now filed an amicus brief opposing the order. In particular, this brief focuses on the harms to the tech industry, including actual examples of harms created by this exec order:
A U.S. resident employed at a cutting-edge software company fears
that he cannot leave the U.S. because he is a national of a Muslim majority
country targeted by President Trump’s travel ban. If he
attempts to travel outside the country, he could be detained and
refused re-entry. After the travel ban went into effect, he canceled
plans to bring his mother to the U.S. to visit him, out of concern
that she might be detained or turned away. He has not been home
for five years. The U.S. company he works for, which employs
over 100 people and has raised hundreds of millions of dollars in
capital, was founded by an immigrant.
A high-tech, U.S.-based software company devoted significant
resources to an event it scheduled in February 2017 where it
planned to host owners of small businesses and tech start-ups
based overseas. Before these entrepreneurs became business and
start-up owners, they were Syrian refugees. After President
Trump’s travel ban went into effect on January 27, 2017, the event
was abruptly postponed, because the guests were unable to travel
to the U.S. on account of their status as Syrian refugees. The U.S.-
based software company plans to reschedule the event at a
location outside the U.S., so the Syrian refugees and entrepreneurs
can safely attend.
A U.S.-based mobile app and website development company with
millions of users worldwide employs U.S. residents who are
nationals of the Muslim-majority countries targeted by President
Trump’s travel ban. In late January and February 2017, some of
these employees had planned to fly outside the U.S. for business or
personal reasons. Since the travel ban was announced, these
employees canceled their flights for fear they would be detained or
not permitted to re-enter the U.S.
A U.S.-based technology company courted promising job
candidates overseas and was prepared to offer them employment
when the prospects suddenly withdrew from consideration because
they were worried about immigration issues in light of President
Trump’s travel ban.
After the implementation of President Trump’s travel ban, foreign born
founders of a U.S.-based technology company began
exploring the possibility of moving their company outside of the
U.S.—and taking the company’s jobs with them.
The filing goes through the history of the initial ban, and then notes that the new version is still just as bad:
President Trump’s new travel ban is no different. It will inflict the same
substantial and irreparable harm upon U.S. companies and their employees. And
in implementing the promise of a “Muslim ban,” the new travel ban suffers from
many of the same defects as the first travel ban. It violates the prohibition against
nationality-based discrimination that Congress established through the Immigration
and Nationality Act. It exceeds the authority granted to the Executive. It is
arbitrary and overbroad in scope. And it impermissibly discriminates on the basis
of religion and deprives individuals of Due Process rights, thus violating the U.S.
Constitution. In sum, President Trump’s new travel ban has not overcome the
constitutional and legal deficiencies that led courts to enjoin his first travel ban.
Accordingly, the new travel ban should meet the same fate as the first travel ban—
it should be enjoined nationwide.
This amicus brief is at the district court level, so it's still quite early in the process -- and there are other legal challenges in other courts. This will still take a while to sort itself out, but we're proud to stand alongside others in the industry in speaking up for why these immigration executive orders are illegal and unconstitutional, not to mention bad for innovation and the economy.
There's a grand total of one whole position, Director of the FBI with a 10 year term.
That's not the only one. The Library of Congress is now also a 10 year appointment. It used to be "until stepped down or fired" but after the last LoC stepped down, it was changed so that it's now 10 year appointments.
I believe that the inclusion here is for the same reasons it was included for the LoC. Just some concerns about effective "lifetime" appointments to head agencies.
Mike's pissed that the copyright office will now not be able to be bought by Google.
What? First off, since when has Google "bought" the Copyright Office? Second, Google FAVORS moving the Copyright Office from what I've seen (they'd like to move it into the PTO, which is also a bad idea). So, uh, no.
Copyright is the only protection artists have. Naturally, he hates copyright.
Everything in those two sentences is wrong. It must be tough angrily yelling at a fake strawman that says stuff I don't actually believe.
What difference will it make? Unless substantial checks are included with the communication, they will just ignore it.
This is bullshit. It's not at all true that it doesn't matter. Constituents reaching out -- actually making phone calls -- makes a MASSIVE difference. That's what won SOPA, and I can assure you that those behind this bill are scared of anything that suggests they're heading for another SOPA situation.
Yes, money works in Congress BUT ONLY WHEN NO ONE'S PAYING ATTENTION. If they get enough calls, the calls will ALWAYS beat out the money. Really. Voters trump everything else. And money only works when the people aren't paying attention.
Your "it won't do any good" attitude LETS THEM WIN. Don't do that. Calls (especially) matter and make a difference. If the office starts receiving calls, and Reps realize this will piss off actual voters, it can and will scare them away.
I'm not sure how that's relevant. Is the intention just to disclose that you've got a history with Eichenwald that readers should know about before they evaluate any statements you make about him? If so, then that's a good call, but it's not entirely clear that that's the purpose of bringing it up.
Yes, perhaps I should have been more clear in why we brought that up. It's mainly because I've seen a variety of reactions online to the news of this arrest. Those who like Eichenwald seem thrilled, while those who hate him are going crazy about how this is a miscarriage of justice.
So I wanted to point out that we're not generally in agreement with Eichenwald before pointing out that we think there's a more reasonable case here, lest people claim we only support him because we support his views. We don't support his views but this case appears to have at least some legs.
mr masnick, do an experiment. find list of decent proxies and while hiding behind try same controversial topics. you will see google feeding you whole different results, depending on you ip. try spice searches with altering your os. google gets really funny when they think nobody is watching.
Um. Yes. For many years now, Google has customized search results based on who's doing the searching. That's not new. It's also not secret. Not sure what you're suggesting with your comment.
Um. Not everyone who reads, comments. We've noted that for years. In fact, I'd argue significantly less than 1% of readers comment on the site. But many do interact with us in lots of other ways -- including Twitter (hence the fact that all of the things above are tweets). Didn't realize there was some rule that the only way to be an ardent supporter was to comment.
I'm an ardent supporter of plenty of sites on which I've never commented.
Personally, I would err on the safe side, and by safe side, making sure Americans are not put at risk.
What if the "safe side" is recognizing that letting in refugees and others who want to come to America (1) prevents more people from joining extremist groups and (2) helps grow our economy and create more opportunities for peace?
It's not as simplistic as you make it out to be. Telling anyone not in the US to fuck off is a pretty damn good way to build even greater resentment towards the US. That doesn't make us safer.
The tech companies would not be fighting so hard to keep their immigrant employees if they were not getting their labor for cheap. Otherwise it would be no harm to them to hire locally.
I can tell you that this is 100% bullshit. 1st of all, there aren't enough skilled workers locally for the tech industry. Second, in many of the companies that participated, it was the workers themselves pushing for this, rather than management. Sticking your head above water is not good for business on these things.
And this has nothing to do with "cheap" foreign labor -- quite the opposite.
The government's responsibility is to it's citizens, not to citizens of foreign nations.
Yeah, and one way to best serve the citizens of this nation is to allow more skilled immigrants who help create jobs and boost the economy. The stats on this are overwhelming. Kill off immigration and you hurt the citizens of this country.
@Mike: The defendant in this case, who's an Imam, is stating that Trumps EO is unconstitutional because it discriminates against travelers on the grounds of nationality and religion.
You're not just uninformed, but ridiculously so. The documents are included IN THIS ARTICLE. The defendant in the case is Donald Trump. It is not an Imam.
As a corollary: If tomorrow the Pope stated to the world all good Christians had to kill Gays, Bisexuals, and transsexuals, and we barred Christians from entering the country temporarily, it'd be unconstitutional. And do note, there's plenty of indication, intelligence, and empirical evidence showing Imam's from those countries intend to kill Americans.
What are you even talking about?
Frankly, these are a people with a very different belief system.
Bullshit. That's what bigots have said about every new wave of immigrants, including Catholics, Irish, Italians, Jews and more.
Lets also say he went full retard and told people "Do it, carry a gun, and the problem will take care of itself". It wouldn't be 10 seconds before every courthouse in every state would be inundated with lawsuits to restrict people's right to free speech so they can practice free religion.
What are you even talking about?
Seriously: get off your conspiracy theory sites and maybe join the real world.
Any ideal with a price tag containing a body count that doesn't either eliminate a real threat (E.G. Declaring war) or produce a empirically demonstrable benefit for society, (E.G. nuclear power vs Coal) is a very hard sale to anyone with functioning brain cells and the capability to do basic arithmetic.
Again, no one from any of these countries has been involved in a terrorist attack against the US. Tons of people have been vetted before they were given visas, and those people are still blocked under this order. You are spouting conspiracy theories that have nothing to do with this case whatsoever.
You're so afraid of Muslim people you apparently can't even be bothered to read the case you're screaming about. Incredible. Ignorant, but incredible.
Hilighting exceptional cases seems designed to ignore the larger issues of overwhelming immigration and non integrating communities. It ignores the thousands overstaying visas.
Um. I'd argue that the administration and those fighting against immigration are the ones guilty of highlighting "exceptional cases" while ignoring the larger issues of all the benefits immigration brings.
I think this kind of thing is super interesting, but I disagree with the "future of online publishing" claim. This is little more than a traditional paywall. It works in this scenario for a few reasons -- one being that WeChat is basically where Chinese users spend nearly all of their "online" time and it's integrated basically everything (payments, services, and more). For folks who think that Facebook is dominant in the US or elsewhere, it's nothing compared to WeChat's dominance and deep integrations.
In short, the only way this kind of thing takes over elsewhere is a scenario in which Facebook (or something new beyond that) becomes much more dominant, and has built in an even stronger level of integration, and there's little else to compete with).
Because otherwise you run into all the usual paywall problems: the mental transaction costs of whether or not the content is worth it, the competition from lots of free content and more...
Anyway, many years ago, I wrote that many of the claims about "paid content" misstate what people are really paying for. They tend to usually actually be paying for something else in the form of content: things like convenience or a service or the ability to make money. I still think that holds. That means some kinds of content can work in a paywall, if it's really accomplishing those other things. But traditional content doesn't usually cut it, without special circumstances.
No, it should have what the people of that country say it should. The UK is a democracy and it should determine for itself what it will and will not accept as acceptable conduct as a society.
Sure. But I will argue, strongly, that they should, as a democracy, choose to have strong support for freedom of expression. I'm not saying it just because it's an "American" value. I'm saying it because of the human rights issues involved. If you do not support free speech, and allow governments to censor, you eventually end up supporting tyranny by that very government. For they will define free speech in a manner that will stifle important voices.
Free speech is also important for innovation and progress.
The idea that someone should be punished for tweeting something stupid creates a massive chilling effect. Yes, the people of Great Britain have a right to decide for themselves, but that does not change that I can advocate and explain why they should support very strongly a free speech regime that does not stamp out a person's rights to speak their mind.
- The toll booths would say $5, but when you got there they'd take $5 for the toll, $3.30 as a "compliance fee," $2.93 as a "road maintenance fee," $1.94 as a "in person billing fee" and $0.35 as a "toll fee."
I do think it's really interesting though! I'll be curious to watch how it works and if other sites adopt it. But I fear that it also adds a level of friction to comments that may frustrate and annoy many otherwise useful and insightful commenters.
USA needs to worry about the USA, Canada needs to worry about Canada, and the EU needs to worry about the EU.
Yes, you know how they do that? By establishing strong trading relationships, and enabling easy travel for people, goods and services back and forth, that helps improve the lives and economies of all of those places.
In other words, that "globalism" you hate IS the USA looking after the USA.
It's astounding that you don't understand that. I mean, it displays a level of basic ignorance that shocks me.