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Mike is the founder and CEO of Floor64 and editor of the Techdirt blog.

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Posted on Techdirt - 9 December 2016 @ 11:58am

Media Organizations (Correctly) Worry That Rolling Stone Verdict Will Make Saying Sory Actionable

from the that's-a-problem dept

We didn't cover anything about the whole bogus story that Rolling Stone published last year about campus rape at UVA, which it later had to retract and take down. The whole thing was something of a clusterfuck, but not directly relevant to what we write about here. Eventually, it led to a defamation case filed by UVA's former associate dean, Nicole Eramo, against Rolling Stone, which was pretty interesting and resulted in a somewhat surprising loss for Rolling Stone. As we've discussed plenty of times, winning a defamation lawsuit -- especially against a public figure -- is particularly difficult (and that's a good thing). The actions need to be particularly egregious. And, in this case, the jury decided that they were. I'm certainly not going to defend Rolling Stone and its ridiculously shoddy reporting, which seemed to be confirmation bias piled upon confirmation bias.

But as some quickly pointed out, the verdict could have some serious chilling effects on media organizations -- in part because the jury found that the originally updated version of the story -- as the details reported began to crumble -- and which included an editor's note apologizing for problems with the original reporting, was viewed by the jury as a republication, and, even worse, it was that "republication" that met the "actual malice" standpoint needed to get over the defamation bar.

This is problematic.

It was the original reporting that was bad. The apology was good. Yet, the way the jury ruled, Rolling Stone would have been better off not apologizing for the error and not adding the editor's note to the story. That seems crazy. And thus, the Reporters Committee for Freedom of the Press (RCFP) and eight big media organizations (including the Washington Post, who was the publication that first exposed many of the problems in the Rolling Stone article) have filed an amicus brief with the court raising this issue (found via Eriq Gardner's excellent reporting at THREsq).

The argument is pretty straightforward. Creating a chilling effect on correcting stories and apologizing for errors is really, really bad.

Journalists have always had a commitment to ethical standards by assuming responsibility for their errors and setting the record straight. Being accountable to the public by updating stories as needed is one way to reassure readers that the news media are dedicated to accuracy in their reporting. As proof of the power of corrections and their contribution to reputable journalism, a 1998 study conducted by the American Society of Newspaper Editors found that 63 percent of newspaper readers “‘feel better’ about the quality of the news coverage” when there are corrections....

[....]

In the case of news published on the Internet, the news media can more quickly and meaningfully provide more in-depth modifications and updates than in the traditional print context. An explanation of a mistake can be made at any time in the same place as the original article, where the same audience is more likely to see it. In addition, “[d]igital publishing has made it possible for editors not only to scrub or enhance stories as they develop but also to pull back the curtain – to make sure readers see and understand what they’ve done.”...

[....]

Numerous high-profile examples show that the tradition that has developed in online journalism is to leave a controversial story on the website while noting the problems with it. Adding an explanation by no means indicates that the publishers are supporting, reaffirming, or republishing the facts of the original story. On the contrary, they are preserving the record of what was previously written while adding greater context
Indeed, this is the same policy we take at Techdirt. In the cases that we've made serious mistakes in our reporting, we leave up the original, but with a prominent correction and apology. That shouldn't be seen as a "republication" and an admission that the republication was malicious. That's clearly a bogus interpretation and very problematic. It's much, much worse to simply disappear an article with errors or problematic reporting, because that's hiding things, rather than being more open and transparent. We make fun of the publications that simply disappear such stories.
Because correcting false statements in an article, even short of retracting the entire article, will often be considered a mitigation of damages or evidence of lack of malice, responding to new information and posting updates are clearly encouraged by courts and seen as a positive act. Allowing the attachment of an editor’s note to the original article, which backs away from claims in that publication, to constitute a “republication” is thus inconsistent with clear public policy interests in encouraging greater explanation as stories develop.
Hopefully the court reconsiders this issue -- otherwise, one hopes that an appeals court, or even the Supreme Court will take up this issue on appeal down the road. Publications shouldn't be punished for admitting to mistakes. That would seem to go against all common sense.

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Posted on Techdirt - 9 December 2016 @ 6:33am

Rep. Marsha Blackburn Says Internet Service Providers Have 'An Obligation' To Censor 'Fake News'

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

Tennessee Rep. Marsha Blackburn doesn't have a very good history demonstrating any knowledge of how the internet works. She's generally in favor of two very stupid policies related to the internet. First, getting rid of net neutrality. Second, forcing tech companies to censor the internet to stop "piracy." The fact that her rationales for these two things are completely in conflict with each other doesn't seem to enter her thought process. That is, she claims that there shouldn't be any net neutrality because it's important to keep the internet free from all regulations. Here's Blackburn explaining this point in a nice, quick and utterly idiotic whiteboard video:

If you can't see that, she starts out by talking up how wonderful the internet is just as it is today, and notes that it's necessary for creating jobs. Then she says this:
Some people fear that without government intervention, that entrepreneurs and innovators are going to hijack the internet that you enjoy. The World Wide Web! This hasn't happened. And there has never been a time when a consumer needed a federal bureaucrat to intervene.
Then she talks about passing her legislation to block the FCC "from ever regulating the internet" because "we want to keep it open free and prosperous."

Of course, she's quite willing to sing a different tune when it comes to her other pet projects. She was a major backer of SOPA, of course, which was a bill to regulate the internet and open it up to Chinese-style site-blocking. A few months ago, she also made the nutty claim that the script kiddie botnet hack that took down large parts of the internet would have been stopped if only SOPA had been passed which made no sense at all.

And she's back again now to deal with the highly exaggerated scourge of "fake news." Her solution? Have ISPs censor and delete "fake" news. Really:
If you can't see that, it's part of a clip of Blackburn on CNN talking about "fake news," where she says:
If anyone is putting fake news out there, the ISPs have the obligation to, in some way, get that off the web. And maybe it's time for these information systems to look to have some type of news editor doing some vetting on that. Whether it's the Russians, the Chinese, the Iranians or whomever. You do not want that out there because it's... because it's fake news! It is not something that is going to be correct. It's going to end up being refuted. But it takes time, effort and energy to do that, and trying to sway or misinform is completely inappropriate, and in my opinion unethical.
So she isn't directly calling for legislation, but any time you have a sitting legislator (not to mention a Trump transition team member...) talking about how internet companies need to censor the internet to do away with "fake news" your ears should perk up. First off, note that she says that refuting fake stories takes "time, effort and energy" but doesn't note that finding "some type of news editor" who can review the news postings of billions of internet users is, um, physically impossible. Does she really not understand the scale of what she's talking about?

Second, I get the feeling that Marsha Blackburn's definiton of "fake news" differs from many other people's -- which is why we've noted that the whole "fake news freakout" is so misguided. The term can mean just about anything -- and all too frequently means "news I disagree with." I'm going to imagine that Rep. Blackburn doesn't much like this article for instance. Does she believe that her friends, the internet service providers, have "an obligation" to get this article "off the web"?

Because that's a pretty serious issue: you have a sitting legislator effectively calling for internet censorship based on a vague standard of news being "fake." Somewhat ironically, Blackburn has been one of the most vocal opponents of the bogeyman of the Fairness Doctrine -- which was an attempt to beat back biased news in the past by requiring "equal time" to opposing views. But Blackburn is constantly freaking out about a non-existent "fairness doctrine" for the internet that she insists was part of the FCC's net neutrality rules (it wasn't, and never was suggested). But her suggestion for having internet companies censor "fake news" seems even worse than a fairness doctrine. Rather than encouraging more speech, Blackburn is flat out supporting having internet companies censor content they deem to be "fake." That's bad.

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Posted on Techdirt - 9 December 2016 @ 3:35am

Pirates Trying To Form New Icelandic Government

from the this-could-get-interesting dept

All year long, there have been reports talking about how the Pirate Party in Iceland were poised to take control over the Icelandic government in the elections. Many publications acted like it was a foregone conclusion. However, if anything should be obvious this year, what the polls and the press are telling you about likely outcomes of elections should be taken with a large grain of salt. So we didn't report on it -- even after the election when the Pirate Party did well, but still came in third place. However, with the top two parties failing to build a coalition to form a new government, the Iceland Pirates have been given a shot and they're hard at work trying to build a coalition that will form the government.

Of course, this still isn't a guarantee -- and there's already talk of having to hold another election, but hopefully the Pirates can put together something. While it does feel like many people involved in Pirate Parties have underestimated what it actually takes to govern, it would certainly be interesting -- especially in Iceland -- to see what they could do.

The party appears to be taking a measured approached to a task viewed by many as exceeding urgent and pressing. Members of the parliamentary party spent all weekend discussing the issues between themselves, with no representatives of any other parties involved.

“We don’t want this this to be a rushed or botched job. We want to do things properly,” says Pirate MP Einar Aðalsteinn Brynjólfsson.

“Of course, it is time for a new government to be formed – otherwise we could be heading for a constitutional crisis. The current government is a caretaker government with a limited mandate.”
Hopefully the parties can work out their differences and create a coalition government led by the Pirates. Icleand has swung back and forth on the pendulum of supporting true internet freedom in the past, but having the Pirates in charge could lead to some interesting and worthwhile experiments. And, in an age where too much reasonable anger at old line politicians is being directed towards ultra-nationalistic campaigners who tend to look backwards rather than forward, it will be worthwhile to see what a party with a truly forward looking agenda could accomplish.

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Posted on Techdirt - 8 December 2016 @ 5:18pm

Lawsuit Against Courts Massively Overcharging For Documents Moves Forward

from the some-good-news dept

Back in April, we wrote about an interesting lawsuit filed over excessive fees for PACER, the federal court system's electronic records system. If you're not a lawyer or journalist, and have never used PACER, it is difficult to put into words what a ridiculous and outdated system it is. Not only does it look like it was designed and built in 1998, the court system leverages ridiculous fees for everything you do in it. It's officially 10 cents per page (with a limit of $3 max per document), but that's not just per page you download of court documents, but everything. Do a search? That'll be at least 10 cents and possibly more if the magic PACER system decides the results are long enough. Look at a docket of a court case? Better hope it's not one with hundreds of filings, because just opening the docket can cost you $3 -- and that's before downloading any documents. As we pointed out years ago, the fees charged for PACER appear to be illegal. The law, 28 USC 123, that allows the court system to charge for PACER limits the fees to being "reasonable" -- and that means, among other things, that the fees are only used for the upkeep of PACER, and not for other stuff.

But that's not true. PACER brings in a ton of money and most of it is used for other things within the court system (and very little of it seems to be earmarked for actually upgrading PACER). This is a huge problem if you believe in the rule of law, and the idea that people should be able to read the law. Because the law is much more than the official regulations -- it also includes case law. And PACER has made it so that the relevant caselaw can often be inaccessible and expensive. That's crazy.

So the lawsuit that was filed earlier this year was interesting -- and of course the federal government tried to get it tossed out. Thankfully, the judge in the case, Ellen Segal Huevelle, has rejected that request and allowed the case to move forward. The government objected on two grounds: first, that a similar, but slightly different case, had also been filed by someone else -- and (more importantly) that the lawsuit failed to state a claim, because they didn't first complain to the PACER operators. Judge Huevelle doesn't buy either argument. About the two separate cases, the judge notes that the two cases are about two different things. This case is about how PACER charges too much per page under the law. The other case -- Fisher v. the United States -- (which, yes, we also wrote about) is about how PACER overcharges people when they just look at a docket. That is, the claim is that because PACER just considers every 4,320 bytes to be "a page" it is overcharging people, since dockets that are many fewer pages are being charged at higher rates. As Huevelle notes, these are different issues:

According to the class action complaint in Fisher, “PACER claims to charge users $0.10 for each page in a docket report” and calculates pages by equating 4,320 extracted bytes to one page, thus “purporting to charge users $0.10 per 4,320 bytes. But the PACER system actually miscalculates the number of extracted bytes in a docket report, resulting in an overcharge to users.”... In other words, Fisher claims an error in the application of the PACER fee schedule to a particular type of request. In contrast, plaintiffs here challenge the legality of the fee schedule. These are separate issues, and a finding of liability in one case would have no impact on liability in the other case. Therefore, the Court will not dismiss the suit based on the first-to-file rule.
Personally, I think both cases have merit, but they are definitely on different issues.

As for the failure to state a claim, again, the court doesn't buy it. Here, the government argued that because when you sign up for a PACER account, you agree to all the fine print in the user agreement, and part of that says that if there are billing "errors" you "must alert the PACER Service Center." Thus, our government lawyers argue, it means that because the plaintiffs here didn't claim "errors" in their bill to the PACER Service Center, there is no legal argument here. This is a ridiculous argument. And the court recognizes that. First it notes that in the other case mentioned above (the Fisher case), the courts have already said that clause does not require you to go to PACER before suing, but more importantly, notes that this case isn't about billing errors at all. It's about whether or not the bills are legal at all:
This Court need not reach those legal issues because, unlike Fisher, plaintiffs here do not claim a billing error. Therefore, even if the notification requirement constituted a contractual condition, it would not apply to the plaintiffs’ challenges to the legality of the fee schedule. Likewise, even if users were required to exhaust their claims for billing errors, that requirement would not apply to the claim in this case. In sum, the PACER policy statement provides no basis for dismissing this suit.
At this point, there's still plenty to go on this case -- and this is just a procedural step along the way. But it's nice to see that the court recognizes the government's ridiculous arguments for what they are.

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Posted on Techdirt - 8 December 2016 @ 11:44am

It Begins: Congress Proposes First Stages Of Copyright Reform, And It's Not Good

from the of-course-it's-not-good dept

The House Judiciary Committee has been "exploring" various copyright reform proposals for a few years now, asking for feedback, holding a "listening tour" and more. Through it all, it seemed pretty clear that the Judiciary Committee is (reasonably) fearful of getting SOPA'd again, and thus was trying to figure out some less controversial proposals it could push forward first to see how they worked. Two, in particular, have been brought up multiple times: moving the Copyright Office out of the Library of Congress... and creating a "small claims court" for copyright infringement. And it appears that's what the Judiciary Committee is now moving forward on, even though both are pretty bad ideas.

Of course, showing how fearful they are of a SOPAlanche, Reps. Bob Goodlatte and John Conyers are kicking this off with a bland and detail-free one pager tossing out both suggestions, along with a similarly weird and bland YouTube video explaining the proposal, with unnecessary background music (what is that about?):

Note the very careful "these policy proposals are not meant to be the final word on reform in these areas." That's code for "okay, okay, we're testing the waters here, are people going to freak out about this...."

Anyway, the proposals in question are not horrible, but they're certainly not good either. Most of the attention will be focused on the Copyright Office stuff, but it's the small claims court proposal that is potentially much more nefarious and a much bigger deal. There are almost no details here, but this is what the proposal says:
The Copyright Office should host a small claims system consistent with the report on the issue released by the Copyright Office. The small claims system should handle low value infringement cases as well as bad faith Section 512 notices. The Register should be given the authority to promulgate regulations to ensure that the system works efficiently.
As we've seen, already copyright is often used as a way to stifle free expression. Mere threats of lawsuits, along with DMCA takedown letters, have become a very effective way to create chilling effects against content someone doesn't like. Adding in the ability to more easily sue and take people to court -- even if the eventual judgment may be for lower dollar amounts -- is tremendously problematic. If anything, it will just become an incredible tool for copyright trolls. It will legitimize their business model, which is to get a large volume of settlements that are in the hundreds or low thousands of dollars anyway. Obviously, the fact that this court might also handle "bad faith Section 512 notices" (i.e., DMCA takedowns) is designed to appease people who are concerned about the chilling effects here, but it's not clear that will help very much.

Also, somewhat bizarre is that earlier in the document (which we'll get to), they say that the Copyright Office should remain in the legislative branch. Which would then make this small claims court a part of the legislative branch. And that just seems... weird. I guess that's why they refer to it as a small claims "system" rather than a small claims "court."

The issue that's going to get more attention, however, is the attempt to pull the Copyright Office away from the Librarian of Congress' control. This has been something that the Copyright Office itself (and Hollywood and its friends) have been agitating for for some time. The proposal here looks like (again) the Judiciary Committee wants to thread the needle of not technically moving it out of the Library of Congress (the proposal doesn't say one way or the other), but basically giving the Copyright Office full autonomy from the Library, and making the head of the Copyright Office subject to Congressional appointment, rather than at the will of the Librarian of Congress:
The Register of Copyrights and Copyright Office Structure

The Copyright Office should remain part of the Legislative Branch where it can provide independent and timely advice to Congress on copyright law and policy. Furthermore, the Copyright Office should have autonomy over its budget and technology needs.

Currently, the Register is not subject to the same nomination and consent process as other senior government officials. To ensure that the American people have an opportunity to provide input into the selection of future Registers of Copyright through their elected officials, the next Register and all that follow should be subject to a nomination and consent process with a 10-year term limit, subject to potential re-nomination. The Copyright Office should also add several positions to advise the Register including a Chief Economist, Chief Technologist, and a Deputy Register.

Copyright Office Advisory Committees

As copyright creation and distribution rapidly changes due to technological advances, the Copyright Office needs to have quicker information regarding marketplace changes as it develops policies and provides guidance to federal agencies. Other federal agencies have standing advisory committees that enable a more efficient knowledge transfer from the private sector to federal agencies. This model should be duplicated at the Copyright Office.

The Copyright Office of the future should have a combination of permanent and ad-hoc advisory committees to advise the Register on critical issues. Members of these committees should reflect a wide range of views and interests. Permanent advisory committees should be created that focus on issues that include but are not limited to the registration and recordation system, public outreach efforts, access for the visually impaired, and issues related to libraries, museums, and archives. To ensure that a diverse set of voices is represented, committee membership should be term limited and the ability of individuals to serve on more than one committee should be limited.
The advisory committee plan again seems like it's trying to appease all sides, but one wonders how it will work in practice. As we've seen with the USTR, the advisory committees have become basically captured by industry lobbyists (despite rules against lobbyists being on those committees), and the end result is that the USTR tends to take instruction from a small group of large, entrenched interests, rather than the public. It seems likely that the same thing would happen here. A Chief Economist is also a loaded position. There are plenty of economists who would look at the actual public benefit to different copyright proposals, but too many economists are likely to just focus on the topline monetary impact on legacy industries, painting a skewed portrait and continuing the false notion that the point of the Copyright Office is to create more and more copyrights, rather than create a plan that actually "promotes the progress of science" as the Constitution requires.

Since the Judiciary Committee insists that this is just them putting out some ideas for comment, it's going to be important that we let them know the many, many pitfalls of these suggestions -- and let them recognize that if these plans are, as seems likely, weighted just to benefit a legacy industry that has a history of fighting innovation -- that will not be acceptable to the public.

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Posted on Techdirt - 8 December 2016 @ 9:36am

Short Sighted Newspaper Association Asks Trump To Whittle Down Fair Use, Because It Hates Google

from the this-is-really-dumb dept

Sometimes you wonder just how ridiculous some legacy industries can be. The latest is the News Media Alliance, which is apparently the new name of what was the Newspaper Association of America. Just a few months ago, we were mocking that organization's ridiculous proposal that readers of newspaper websites should be forced to allow invasive ad trackers, and that adblockers shouldn't be allowed. And believe it or not, now the group has even worse suggestions. It has sent a "white paper" to Donald Trump with the types of things it's looking for from a Trump administration. The white paper is really just a 3 page memo dressed up slightly with the term "white paper" at the top -- as opposed to a carefully developed plan.

But the really ridiculous bit is that these media publications -- who regularly rely on fair use, are asking Trump to dump fair use:

Strong copyright protection is needed. Newspaper content makes up approximately two-thirds of the content on news aggregation platforms such as Google News, but many of these relatively new players in the digital ecosystem build audiences and generate revenue from newspaper content with little if any revenue coming back to those who have invested in creating the original content. Today, the news media industry invests roughly $5 billion each year in long-form investigative journalism. Our nation’s copyright laws must be structured and implemented in a way that allows for a return on this massive investment. Today, outdated interpretations of copyright laws mean that the industry is currently forced to give away much of its product for free. The government needs to put in place copyright protections that allow news organizations and other content creators to fairly benefit from their critical efforts and investments.

“Fair use” should be reoriented toward its original meaning. Under current copyright law, a person that does not own a copyright may still use a copyrighted work if it is consistent with the “fair use” factors, which assess: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect upon the potential market. The courts, unfortunately, have dramatically weakened this test by finding a fair use any time a new use could be seen as “transformative.” This test has undermined the integrity of the long-established fair use factors. As part of any Copyright Act rewrite, we support refocusing the fair-use test on its original purpose to prevent courts from undermining the Constitution’s encouragement of compensation to entities that generate creativity and productivity.
This is dumb on so many levels. First, the claim that newspapers don't get any revenue from the likes of Google is ridiculous, when you consider how much they whine and freak out if Google removes them from search. They get revenue in the form of traffic from aggregators. If they're bad at monetizing it, that's one thing, but that's not the aggregators' fault.

Second, copyright laws should never be designed with the idea of making sure it enables recouping an investment. Because copyright is not the business model. Copyright is a mechanism that creates a business model, and that business model may or may not be successful. Just saying you invest $5 billion and therefore copyright needs to cover that nut makes no sense. I could just as easily claim that I'm going to invest $5 billion in improving Techdirt -- and therefore Trump needs to make sure that there's a business model to allow me to recoup that? No, that's crazy. It's not the government's job to make sure your own bad business decisions still pay off.

Third: the media attacking fair use is insane. Newspapers regularly rely on fair use in their reporting, and the group is shooting itself in the foot in asking Trump to take away that tool. This is especially true given that Trump himself has insisted he wants to "open up our libel laws" with the specific aim of harming newspapers. Remember, this is the context in which he said he was going to open up such laws:
If I become President, oh, are they going to have problems. They're going to have such problems.

... One of the things I'm going to do if I win, and I hope we do and we're certainly leading. I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We're going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected.

.... So we're going to open up those libel laws, folks, and we're going to have people sue you like you've never got sued before...
While he was specifically talking about libel laws, as we've seen over and over again, copyright is an amazing tool for censorship as well. In fact, the Supreme Court itself has noted that fair use is the necessary "safety valve" on copyright's free speech stifling powers. So for newspapers to basically gift wrap to Trump a way in which he can pull back a tool that protects their free speech -- just as he's been promising to attack their free speech -- is ludicrous.

About the only saving grace in all of this is that Trump acts as if he hates the big newspapers so much, that perhaps he'll have no desire to make them happy by following through on this idiotic suggestion.

In the meantime, if you work for a news organization that is a member of the News Media Alliance, maybe ask them why they're undermining a core principle of free speech in asking for fair use to be limited?

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Posted on Techdirt - 7 December 2016 @ 9:39am

FBI Investigates Journalist For An Obvious Joke Tweet, Because What The Hell Is Wrong With The FBI?

from the and-they-want-access-to-our-secrets? dept

Here's today's insane story of FBI ridiculousness: the FBI has been investigating an editor at Huffington Post, Nick Baumann, for an obvious joke tweet mocking fake news. Really. To understand what happened, it requires a bit of background, especially if you're not steeped in Twitter culture -- but it's the kind of background that (1) you can pick up quickly and (2) shouldn't confuse an FBI agent... but apparently it did. Still, it requires knowledge of two separate jokes, then a third attempt at a joke... and general knowledge that the FBI doesn't seem to get jokes. Especially Twitter jokes.

First, you have to understand that there's a thing called Weird Twitter, which is... basically what it sounds like. It's more or less a group of Twitter users who post a variety of absurd or silly things, often (though not always) from accounts not naming the actual user. There's a sort of silly, but dry, sense of humor in these tweets, and unless you follow it closely, you might not always get the humor of it. Even if you are aware of it, you might not get the humor of it. But it's generally people coming up with silly tweets, some of which kick off more viral memes. Back in October, Weird Twitter person "raandy" or "@randygdub" kicked off quite a storm by tweeting a joke tweet pretending to work at a Post Office in Ohio, and claiming that he was ripping up absentee ballots of people voting for Trump.

Of course, this was back in the day when Trump and his surrogates were insisting that the election was being rigged against him and that there was going to be voter fraud. So, after it made the rounds of Weird Twitter, it left those cozy, joking confines and some Trump supporters picked up on it, believing the tweet was real. Eventually it got onto sites like Gateway Pundit and Drudge Report. Rush Limbaugh mentioned it. It was pretty clearly a joke to people who get Weird Twitter, but once foolish people started taking it seriously, suddenly Ohio's Secretary of State said he was investigating things, and the Postal Service was forced to make a statement:
Once people started mocking those who fell for it, lots of people on Twitter started making similar joking tweets, using the phrasing "I love working at [x] in [y] and [doing terrible thing z]"

So, that's joke number one. The second joke involved people passing around totally ridiculous and obviously faked Wikileaks releases claiming extremely silly things related to the conspiracy theories around Hillary Clinton. Perhaps the most well known one -- which also fooled some Trump supporters who retweeted it, was a hilariously obvious fake "Clinton Foundation accounts payable invoice" listing all sorts of groups that conspiracy theorists wanted to tie to the Clinton campaign:
Another one was the following one pretending to be from someone associated with Smartmatic voting machines telling Clinton campaign team members that things were all set to program voting machines with some special code with the help of George Soros.
This one is playing on another anti-Clinton conspiracy theory (which some people in our comments insisted was true, though it's not), that billionaire George Soros owned a company that was making voting machines that were used in the Presidential election (Soros was a big Clinton backer). The story isn't true. Soros doesn't own the company, and the machines in question weren't used in the election anyway, but... details.

Anyway, that's joke number two.

That finally gets us around to joke number three, which, amazingly, got the FBI's attention. Baumann saw an acquaintance tweet that fake "voting machine" leak (rightly noting that it was fake) and Bauman creatively decided to effectively mix the two jokes into a third joke. A mashup joke, if you will:
Get it? Got it. Baumann even explained the joke a little while later in a reply tweet, linking to one of the stories about the silly @RandyGDub tweet after some (notice a trend?) people started believing the joke was real and claiming it was evidence of voting machine tampering.

But apparently, the FBI didn't get the joke. At all. I'll let Baumann explain the next part:
One Twitter user warned that she had reported me to the FBI and to Project Veritas — a right-wing organization led by James O’Keefe that stages elaborate stings of reporters, liberals and others; heavily edits its gotcha videos; and then tries to get those people fired.

Project Veritas did not contact me.

But the FBI decided a journalist’s joke was worth its time.

On Nov. 4, I received a call from someone who said he was an FBI agent and wanted to speak to me. I figured it was a prank. I get a lot of hate emails and angry voicemails, and I dismissed the insane possibility that the FBI would investigate an obvious joke on Twitter. I would’ve called back anyway, just to be sure. But it was right before the election, and I forgot about it.

Then, on Monday, a month later, I received a followup message. It was the same person. It turns out he really is a special agent in the Washington Field Office of the FBI.

“Sorry to bother you,” he said. “The reason I’m calling is — I can’t give you too many details over the phone — we recently received some complaints regarding some online postings that were made. I don’t know if you know what that’s in reference to, but would you be willing to sit down with us for a couple minutes tomorrow morning by chance?”

I couldn’t believe it and started to say so. But he continued, “I know this may sound ridiculous, but when we receive complaints we have to follow them up no matter what.”
As Baumann notes, this isn't actually true. The FBI has every right to ignore totally ridiculous and obviously bogus reports. And, it should. Otherwise it would be way too busy chasing down conspiracy theories. The FBI agent asked to have Baumann come and talk to him, but Baumann rightly notes that when the FBI wants to talk to you, you should shut up and get a lawyer. Baumann went to his employers and got company lawyers involved (given that HuffPo is owned by AOL which is owned by Verizon, you can imagine these are pretty good lawyers).

Baumann notes some further problematic aspects to this investigation -- including that the FBI and DOJ have pretty strict rules about contacting a journalist as part of an investigation (that whole Freedom of the Press thing that the FBI has had some problems with in the past...), and it's pretty clear those rules weren't followed. And, yes, Baumann identifies himself as a journalist in his Twitter bio. And the investigation is not officially over yet, though one hopes the publication of this article gets it closed pretty quickly:
The investigation is ongoing. I hope it goes no further. As Matthew Miller, a former Justice Department spokesman, said, “When you have to guess whether it’s incompetence or something nefarious, it’s usually best to guess incompetence.” But getting a call from an FBI agent investigating you is a big deal.
And, of course, the article ends with this lovely kicker:
On Tuesday, I called @randygdub and asked him whether he had heard from the FBI about his original joke. He laughed and said he hadn’t.
Baumann also notes that he sometimes reports on the FBI, but doesn't think that this is anything nefarious in response to his reporting -- and that's probably true. But it also shows how somewhat random and arbitrary such investigations are -- and what a total waste of time and resources they can be. Is this really the best use of the FBI's time? And if they really "had" to investigate it, that investigation should have started and ended with someone doing at least a tiny bit of online researcher about the jokes in question. It's not that difficult. One would hope that the FBI employs agents who can do a fairly basic Google search before having to call for a meeting over a tweet...

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Posted on Techdirt - 6 December 2016 @ 11:46am

Supreme Court Adds Yet Another Smackdown To Patent Court, Says It Misinterpreted Patent Law In Apple/Samsung Case

from the not-how-patent-law-works dept

It's becoming a fairly standard thing at this point: patent cases make their way up to the Supreme Court (after traveling through the patent appeals court at the Federal Circuit, better known as CAFC), then the Supreme Court smacks down the CAFC ruling and reminds the court that CAFC doesn't seem to understand patent law at all. It's happened many times, and now we've got another one with a short and sweet ruling that puts Apple's famous big patent win against Samsung at risk. As you recall, Apple sued Samsung over copying iPhone/iPad designs, and after a long jury trial, Apple prevailed and was awarded $399 million. CAFC had upheld the award, despite Samsung noting (correctly) that since the design patents only covered a small part of the device, it was ridiculous to give Apple all the profits from the entire device.

The Supreme Court, in a unanimous smackdown of CAFC written by Justice Sotomayor, points out that patent law does not require the profits to be on the entire device, but could be on separate components.

This case involves the infringement of designs for smartphones. The United States Court of Appeals for the Federal Circuit identified the entire smartphone as the only permissible "article of manufacture" for the purpose of calculating §289 damages because consumers could not separately purchase components of the smartphones. The question before us is whether that reading is consistent with §289. We hold that it is not.
In short: just because one small piece of a larger product infringes, it doesn't mean the patent holder should get all the profits.

The more weedy issue here was the definition of an "article of manufacture" which is how damages are calculated under patent law. Apple argued (and the lower courts agreed) that the single "article of manufacture" here was the total device (phone or tablet). Samsung, on the other hand, argued that there are lots of different components, each of which could be an "article of manufacture" and since it only infringed on a few distinct components, not all of the profit should be lost. As the ruling notes, it's pretty clear that "article of manufacture" can refer to just components as well as to the full product.
"Article of manufacture" has a broad meaning. An "article" is just "a particular thing." J. Stormonth, A Dictionary of the English Language 53 (1885) (Stormonth); see also American Heritage Dictionary, at 101 ("[a]n individual thing or element of a class; a particular object or item"). And "manufacture" means "the conversion of raw materials by the hand, or by machinery, into articles suitable for the use of man" and "the articles so made." Stormonth 589; see also American Heritage Dictionary, at 1070 ("[t]he act, craft, or process of manufacturing products, especially on a large scale" or "[a] product that is manufactured"). An article of manufacture, then, is simply a thing made by hand or machine.

So understood, the term "article of manufacture" is broad enough to encompass both a product sold to a consumer as well as a component of that product. A component of a product, no less than the product itself, is a thing made by hand or machine. That a component may be integrated into a larger product, in other words, does not put it outside the category of articles of manufacture.
And, of course, there's the slap directed at CAFC's wacky and wrong interpretation of patent law:
The Federal Circuit’s narrower reading of "article of manufacture" cannot be squared with the text of §289.
Of course, in unfortunately typical fashion, the Supreme Court punts on some of the bigger questions -- including what is the proper "article of manufacture" here in this case. Instead, it just says that the lower courts used the wrong standard and kicks it back to them to try again. This means that this case, that has been going on for roughly half a decade, is going to go on even longer. Apple may still get its giant reward, but for now Samsung gets another chance to convince the courts to lower it to just the components, rather than the profit on the overall devices.

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Posted on Techdirt - 6 December 2016 @ 10:45am

This Is A Really Bad Idea: Facebook, Twitter, YouTube & Microsoft Agree To Block 'Terrorist' Content

from the how's-that-going-to-work dept

Under increasing pressure from overreacting and fearful bureaucrats, it seems that the big social media companies -- Facebook, Twitter, YouTube and Microsoft -- have all agreed to block "terrorist" content and will agree to share hashed versions of it among the other companies so something blocked on one site can easily be blocked across them all.

Facebook, Microsoft, Twitter and YouTube are coming together to help curb the spread of terrorist content online. There is no place for content that promotes terrorism on our hosted consumer services. When alerted, we take swift action against this kind of content in accordance with our respective policies.

Starting today, we commit to the creation of a shared industry database of “hashes” — unique digital “fingerprints” — for violent terrorist imagery or terrorist recruitment videos or images that we have removed from our services. By sharing this information with each other, we may use the shared hashes to help identify potential terrorist content on our respective hosted consumer platforms. We hope this collaboration will lead to greater efficiency as we continue to enforce our policies to help curb the pressing global issue of terrorist content online.

Our companies will begin sharing hashes of the most extreme and egregious terrorist images and videos we have removed from our services — content most likely to violate all of our respective companies’ content policies. Participating companies can add hashes of terrorist images or videos that are identified on one of our platforms to the database. Other participating companies can then use those hashes to identify such content on their services, review against their respective policies and definitions, and remove matching content as appropriate.
This sounds as though it's modeled on similar arrangements around child pornography. Except that there are some major differences between child pornography and "terrorist content." The first is that child porn is de facto illegal. "Terrorist content" is quite frequently perfectly legal. It's also much more of a judgment call. And based on this setup, allowing one platform partner to designate certain content as "bad" will almost certainly result in false positive designations that will flow across multiple platforms. That's dangerous.

As we've discussed in the past, when you tell platforms to block "terrorist" content, it will frequently lead to mistakes, like blocking humanitarians documenting war atrocities. That kind of information is not just valuable, but necessary in understanding what's happening.

Also, all of this presumes, that the best way to deal with so-called "terrorist content" online is to hide it and pretend it doesn't exist. That's not always the case. As we've noted, counterspeech -- including mocking silly terrorist claims -- is often much more effective than outright blocking. Blocking the content not only leads to a slippery slope -- and open questions on choosing what content stays and what content goes -- but also presumes that the block is the most effective way to stop the bad behavior associated with terrorists. But it leaves out that blocking such content often only makes those posting it feel like they're on the right path, and that they're saying something "so true" that it needs to be blocked. It's not a path towards stopping terrorism or the spread of terrorist ideology -- it just gets those engaged to dig in deeper on their views.

On top of that, terrorist information posted to social media is often a great source of intelligence for law enforcement. Even the FBI director has said it's silly to chase terrorists off of social media, because it makes them harder to track. So what good is this really doing?

Yes, platforms have every right to decide how they want to handle the content submitted to them. And, yes, this almost certainly comes about as a result of increasing pressure (especially out of the EU) to "do something" about "terrorist content" on these platforms, but as we've seen in the past, appeasing such whining bureaucrats almost never settles them down. As we recently noted, after these same four companies signed an agreement earlier this year to "curb hate speech" on their platforms, it still didn't stop government officials in Europe from threatening further legal consequences, including criminal charges, when the agreed upon blocks failed to magically make all "hate speech" disappear.

So, yes, the platforms may have felt backed into a corner, but they're only going to get their backs pushed further and further into that corner -- and the collateral damage it creates may be even more massive.

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Posted on Techdirt - 6 December 2016 @ 9:34am

Fake News About Fake News Leads To (Fake?) Defamation Threat

from the fake-can-mean-anything-now dept

So, it seems like "fake news" is all the rage these days. As we've discussed, the sudden focus on fake news is a silly distraction. It's not likely to be changing many minds -- and the talk about fake news seems mostly to be leading to calls for censorship. And a big part of the problem is that "fake news" is such a broad and vague label. It's been applied to outright propaganda, to satire, to serious reporting, to serious reporting people don't like... and to serious, but mistaken, reporting. The problem is that when you lump all those things together, things get pretty damn messy.

Take, for example, this "fake news" story that got a lot of attention when it came out right around Thanksgiving: the Washington Post claimed that some "experts" had shown that Russian propagandists were behind the fake news explosion during the election. Which experts? The story doesn't say. What evidence? The story doesn't say. The article is focused on a brand new organization called "PropOrNot" that claimed to be run by experts, but won't identify who's involved, and the Washington Post didn't seem to care. But still it made incredibly broad claims about "fake news" and Russian propaganda.

Almost as soon as the story came out, it was being torn to shreds as being ridiculous. Mathew Ingram, at Fortune, was quick to poke holes in the story, pointing out (among other things) that various organizations that PropOrNot listed as "allies" had never heard of the organization and certainly were not working with it.

Glenn Greenwald did a thorough debunking of the Washington Post story, noting that "PropOrNot" listed all sorts of ideologically-attached websites as "fake news" just because many of the websites were not fans of Hillary Clinton. Greenwald noted how McCarthyite the whole thing was:

In casting the group behind this website as “experts,” the Post described PropOrNot simply as “a nonpartisan collection of researchers with foreign policy, military and technology backgrounds.” Not one individual at the organization is named. The executive director is quoted, but only on the condition of anonymity, which the Post said it was providing the group “to avoid being targeted by Russia’s legions of skilled hackers.”

In other words, the individuals behind this newly created group are publicly branding journalists and news outlets as tools of Russian propaganda — even calling on the FBI to investigate them for espionage — while cowardly hiding their own identities. The group promoted by the Post thus embodies the toxic essence of Joseph McCarthy, but without the courage to attach individual names to the blacklist. Echoing the Wisconsin senator, the group refers to its lengthy collection of sites spouting Russian propaganda as “The List.”

The credentials of this supposed group of experts are impossible to verify, as none is provided either by the Post or by the group itself. The Intercept contacted PropOrNot and asked numerous questions about its team, but received only this reply: “We’re getting a lot of requests for comment and can get back to you today =) [smiley face emoticon].” The group added: “We’re over 30 people, organized into teams, and we cannot confirm or deny anyone’s involvement.”
Over at Rolling Stone, Matt Taibbi called the whole thing shameful and disgusting.

Forget that the Post offered no information about the "PropOrNot" group beyond that they were "a collection of researchers with foreign policy, military and technology backgrounds."

Forget also that the group offered zero concrete evidence of coordination with Russian intelligence agencies, even offering this remarkable disclaimer about its analytic methods:

"Please note that our criteria are behavioral. ... For purposes of this definition it does not matter ... whether they even knew they were echoing Russian propaganda at any particular point: If they meet these criteria, they are at the very least acting as bona-fide 'useful idiots' of the Russian intelligence services, and are worthy of further scrutiny."

What this apparently means is that if you published material that meets their definition of being "useful" to the Russian state, you could be put on the "list," and "warrant further scrutiny."

Forget even that in its Twitter responses to criticism of its report, PropOrNot sounded not like a group of sophisticated military analysts, but like one teenager:

"Awww, wook at all the angwy Putinists, trying to change the subject - they're so vewwy angwy!!" it wrote on Saturday.

"Fascists. Straight up muthafuckin' fascists. That's what we're up against," it wrote last Tuesday, two days before Timberg's report.

Any halfway decent editor would have been scared to death by any of these factors. Moreover the vast majority of reporters would have needed to see something a lot more concrete than a half-assed theoretical paper from such a dicey source before denouncing 200 news organizations as traitors.

Even The Nation started mocking the Washington Post for publishing such trash. And then Adrian Chen, at the New Yorker, did a near total shredding of the WaPo story, noting that he and many others had received the pitch from PropOrNot, but passed on it as obviously ridiculous.
The most striking issue is the overly broad criteria used to identify which outlets spread propaganda. According to PropOrNot’s recounting of its methodology, the third step it uses is to check if a site has a history of “generally echoing the Russian propaganda ‘line’,” which includes praise for Putin, Trump, Bashar al-Assad, Syria, Iran, China, and “radical political parties in the US and Europe.” When not praising, Russian propaganda includes criticism of the United States, Barack Obama, Clinton, the European Union, Angela Merkel, NATO, Ukraine, “Jewish people,” U.S. allies, the mainstream media, Democrats, and “the center-right or center-left, and moderates of all stripes.”

These criteria, of course, could include not only Russian state-controlled media organizations, such as Russia Today, but nearly every news outlet in the world, including the Post itself. Yet PropOrNot claims to be uninterested in differentiating between organizations that are explicit tools of the Russian state and so-called “useful idiots,” which echo Russian propaganda out of sincerely held beliefs. “We focus on behavior, not motivation,” they write.

To PropOrNot, simply exhibiting a pattern of beliefs outside the political mainstream is enough to risk being labelled a Russian propagandist. Indeed, the list of “propaganda outlets” has included respected left-leaning publications like CounterPunch and Truthdig, as well as the right-wing behemoth Drudge Report. The list is so broad that it can reveal absolutely nothing about the structure or pervasiveness of Russian propaganda. “It’s so incredibly scattershot,” Higgins told me. “If you’ve ever posted a pro-Russian post on your site, ever, you’re Russian propaganda.”
The most incredible thing in all this mess is that the Washington Post and its Editor in Chief have refused to comment on the article or answer the criticism at all. They've just ignored it entirely.

With such broad criteria ensnaring all sorts of websites, some of them have decided to push back. The website NakedCapitalism has sent a letter demanding a retraction and threatening a defamation lawsuit. The site Truthdig claims that it, too, has The letter argues that calling a website "fake news" is defamation:
I write on behalf of my client, Aurora Advisors Incorporated (“Aurora”), which publishes the finance and economics website Naked Capitalism (www.nakedcapitalism .com) to request that the article by Craig Timberg, “Russian propaganda effort helped spread ‘fake news’ during election, experts say” (“Fake News”) [https://www.washingtonpost.com/business/economy/russianpropaganda-effort-helped-spread-fake-news-during-election-expertssay/2016/11/24/793903b6-8a40-4ca9-b712-716af66098fe_story.html] published by the Post on Thursday, November 25, be immediately removed from your website and all web-accessible archives. Fake News contains extremely damaging false allegations constituting defamation. Furthermore, Aurora asks for a prominent public apology for the false and defamatory accusations made in Fake News and for an equally prominent (i.e. not in a “Comments” section) opportunity to respond.

You began Fake News with the sensational claim: “The flood of ‘fake news’ this election season got support from a sophisticated Russian propaganda campaign that created and spread misleading articles online with the goal of punishing Democrat Hillary Clinton, helping Republican Donald Trump and undermining faith in American democracy,” and attributed this claim to “independent researchers who tracked the operation.” Naked Capitalism is one of the accused organizations in PropOrNot’s report, which, contrary to Fake News’ claim that the report had not been published, was available on the Internet well before Fake News ran. [http://www.propornot.com/p/the-list.html] This error should be corrected.

You identified and thus denigrated Naked Capitalism, one of the sites targeted in the “study” as one of the “right-wing sites across the Internet as they portrayed Clinton as a criminal hiding potentially fatal health problems and preparing to hand control of the nation to a shadowy cabal of global financiers. The effort also sought to heighten the appearance of international tensions and promote fear of looming hostilities with nuclear-armed Russia.” You called upon Facebook and Google to “crack down on ‘fake news,’” apparently by censoring Naked Capitalism, because it is supposedly “attack[ing] American democracy.”

Your identification of Naked Capitalism as a “fake news site” and as an agent for Russian propaganda designed to undermine American democracy is defamatory per se. You accuse Naked Capitalism of spreading “Russian-backed phony news to outcompete traditional news organizations for audience.” These serious allegations have caused and will continue to cause great harm to Naked Capitalism, including but not limited to damage to policy impact and reputation, diversion of scarce reporting and managerial resources to respond to concerned inquires and debunk this smear, loss of readers, and damage to the site’s profitability. Moreover, writers and editors associated with Naked Capitalism face ridicule, emotional distress, loss of reputation, and risk to future career advancement, including for example, difficulty passing background and security checks
The letter goes on (and on and on) from there, but I don't see how any of what the Washington Post did was actually defamatory. Stupid, wrong and misleading? Yup. Absolutely. But to reach the level of defamation would take a lot more. Also, the Washington Post didn't actually name the sites NakedCapitalism or Truthdig. Both of those were just on the separate (ridiculous) list that PropOrNot published. So writing about PropOrNot (even, stupidly repeating its bogus and silly claims) doesn't automatically make you liable for PropOrNot putting sites on a list. On top of that, it's unlikely that even PropOrNot directly is liable for defamation for putting sites on a "Fake News" list. While there have been some cases here and there about whether putting companies on a "spammer" list is defamatory, in the US, merely putting people on such a list is likely to be protected speech -- especially when the list is for something as vague as "propaganda."

So, no one comes out of this looking very good. The Washington Post looks completely ridiculous. PropOrNot and whoever is behind it look like a joke. But even NakedCapitalism comes off looking a little silly by pulling out the defamation threat. Calling for a retraction is fine and sensible. Mocking the Washington Post, its reporter, and PropOrNot is totally fair game. But what the Washington Post did was just really ridiculously bad reporting. Not defamation.

And, thus, we're back where we started. In some circles, what the Washington Post did was "fake news." And, no, the Washington Post shouldn't claim it's defamatory for us to say that either. In fact, this only serves to highlight what a useless term "fake news" is to describe some very, very different situations. Bad reporting is bad reporting and should be called out as such. Propaganda should be called out as such. Made up stories for clicks should be called out as such. "Fake news" is too broad and a useless categorization. But, really, the Washington Post should have known better -- and should have taken down that article by now and apologized for it.

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Posted on Techdirt - 5 December 2016 @ 1:06pm

Appeals Court Reminds Everyone: Patent Infringement Is Good For Competition

from the so-why-isn't-it-encouraged-more? dept

A legal dispute that goes back in some form or another to at least 2001 has resulted in the 5th Circuit Appeals court thankfully reminding people that patent infringement is actually good for competition. To say that the details and background of this case are confusing and convoluted would be... quite an understatement. If you want to read the background in the full ruling, go ahead, but I'd recommend bringing along a white board, a compass and a large Thermos of coffee. Let's just say that two companies that make different versions of retractable syringes, RTI and BD, have been less than happy with each other for many years, and there have been some lawsuits covering a variety of different theories for why RTI doesn't want BD selling safety syringes (or, if not stopping the company from doing that, compelling it to fork over lots of money to RTI). There have been patent claims, antitrust claims, unfair competition, false advertising and some more. It's... convoluted. While the court's background explanation is convoluted as anything, where things came down recently was that RTI argued that BD's patent infringement (which had already been ruled on by the court earlier in this neverending saga) was also a form of an antitrust violation. Even this part is confusing, because RTI has a few different reasons for why it argues BD is violating antitrust law, with only one of them being its infringement of RTI patents.

Of course, if you're playing along with the home game, you should already be scratching your head. After all, patents themselves are monopolies. So, if anything, you'd think that any antitrust argument would be focused on the patent holder rather than the patent infringer. But, here, RTI is arguing that the patent infringement itself is a form of an antitrust violation, as it's part of BD's effort to foreclose competition. But... again, that makes no sense, and the appeals court rightly calls this out and notes that patent infringement doesn't block competition -- it actually increases competition:

Patent laws are designed to secure for patent holders a time-limited exclusive right to exploit their discoveries, but this is “not the kind of public purpose protected by the antitrust laws,” which seek to “protect the free flow of interstate commerce.”... That a patentee may anticompetitively extend its market power to products other than those covered by a patent, and thus violate the antitrust laws, is well settled... RTI, however, cites no case holding the converse: that antitrust liability may be founded in whole or in part upon patent infringement. By definition, patent infringement invades the patentee’s monopoly rights, causes competing products to enter the market, and thereby increases competition. RTI, in fact, persuaded another jury of exactly this procompetitive result when it proved patent infringement by BD’s 1mL Integra safety syringe. The judgment against BD, which was then forced to remove the competing product from the market, diminished competition but enforced RTI’s patent rights.
Of course, this doesn't mean that patent infringement is legal -- it's not. But at the very least, the court is shutting down the positively nutty argument that patent infringement might also be an antitrust issue, even though it increases competition rather than decreases it.

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Posted on Techdirt - 5 December 2016 @ 10:47am

Turkey Using US Border Agents' Harassment Of Canadian Journalist To Defend Jailing Over 100 Journalists

from the the-high-ground-is-sinking dept

Last week, we wrote about the atrocious treatment of famed Canadian reporter Ed Ou by the US's Customs & Border Patrol agents. Ou was on his way to document the protests over the Dakota Access Pipeline and he was detained, had his devices confiscated and searched, and then was denied entry into the US. And, of course, as we've seen before in similar stories, Homeland Security's response to these sorts of stories is to shrug and basically say "we don't have to tell you anything."

But, already, those actions are being used by authoritarian regimes to justify cracking down on journalists elsewhere. As you may have heard, Turkey's notoriously thin skinned President, Recep Tayyip Erdogan, has been cracking down against basically anyone who doesn't like him these days -- with a particular focus on journalists. He's been throwing them in jail by the dozens. Literally. There were the 42 journalists jailed in July and the 13 journalists in October and another 9 in November. As of a few weeks ago, the total was calculated at around 120 journalists thrown in jail by Erdogan.

Not surprisingly, this has resulted in various journalism organizations condemning Turkey's jailing of journalists. Governments, including the European Parliament have condemned it as well.

But Turkey is basically calling everyone hypocrites. As pointed out by Trevor Timm, Turkey's state news agency has attacked the hypocrisy of "Western media" and its claims to press freedoms.

Turkey’s General Directorate of Press and Information (BYEGM) on Friday accused countries critical of Turkey’s media environment of turning a blind eye to press freedoms in their own jurisdictions.

Research compiled by the body questioned Western states’ claims that freedom of the press was unlimited in their countries.

Recalling that among the countries frequently criticizing Turkey were France, Germany, the U.K., Sweden, Spain, the Netherlands and the U.S., the BYEGM research questioned whether journalists and other media workers were able to work freely in these nations.

The research presented examples of constraints and censorship faced by media workers in those countries.
And, of course, one of the examples used, is what US Homeland Security did to Ou, among other examples, including the arrests of journalists covering the protests in Ferguson, Missouri, two years ago.
Friday’s BYEGM statement recalled an incident in October involving a Canadian journalist called Edward Ou who wanted to shoot video of Native Americans protesting against a pipeline planned for Dakota state in the U.S.

"He [Ou] was not allowed to enter the U.S.," the BYEGM said, adding: "Edward Ou was held at the border for six hours and during this time his telephone and cameras were confiscated.”

In the U.S. “14 journalists, including Anadolu Agency, Die Welt and Bild correspondents” were arrested amid unrest in Ferguson, Missouri, following the fatal police shooting of a black man in 2014.

The BYEGM went on to state: "In Baltimore incidents, City Paper's photo editor JM Giardano was beaten by the police and photographer Sait Serkan Gurbuz, who was working for Reuters, was taken into custody.”

In July 2016 the Middle East correspondent of the Wall Street Journal, Maria Abi-Habib, “was taken into custody by the U.S. Department of Homeland Security on the grounds that she was a journalist 'traveling dangerous locations'".
Of course, there's a massive difference in the (yes, wrongful) arrests and detainment of journalists in the US over reporting with the purposeful jailing of journalists, including charging some with horrific crimes, in Turkey. But by not stopping this ridiculous bad behavior, such as what happened to Ou with border agents, we're handing Turkey and other authoritarian regimes an easy excuse to continue their efforts to completely eradicate a free and open press.

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Posted on Techdirt - 5 December 2016 @ 9:38am

UK's Health Secretary Has The Solution To Cyberbullying & Sexting: Nerds Should Nerd Harder

from the how-are-these-people-in-power? dept

It appears that the "nerd harder" disease has spread across the Atlantic, and none other than the UK's Health Secretary, Jeremy Hunt, has caught it. In discussing the (frequently overhyped, but still real) issues of cyberbullying and sexting, Hunt has decided that it's no problem at all, because the nerds can put their minds to it and magically block it:

“I think social media companies need to step up to the plate and show us how they can be the solution to the issue of mental ill health amongst teenagers, and not the cause of the problem,” he said. “There is a lot of evidence that the technology industry, if they put their mind to it, can do really smart things.

“For example, I just ask myself the simple question as to why it is that you can’t prevent the texting of sexually explicit images by people under the age of 18, if that’s a lock that parents choose to put on a mobile phone contract. Because there is technology that can identify sexually explicit pictures and prevent it being transmitted.

“I ask myself why we can’t identify cyberbullying when it happens on social media platforms by word pattern recognition, and then prevent it happening. I think there are a lot of things where social media companies could put options in their software that could reduce the risks associated with social media, and I do think that is something which they should actively pursue in a way that hasn’t happened to date.”
And I ask myself, how the hell do modern countries allow people so clueless and ignorant into positions of power? How can it possibly be that someone with this much power and authority can't understand that context matters and that calling for outright censorship without context would be a disaster? It's the very epitome of the "nerd harder, nerds" plan that comes up so often. "If they put their minds to it, they can do really smart things."

It feels like all of these powerful people have internalized the flipside of the famed Arthur C. Clarke quote about how "any sufficiently advanced technology is indistinguishable from magic," and interpreted it to mean "tech can do magical things." But as cryptographer Matt Blaze famously noted, ignorant officials saying "surely if we can put a man on the moon we can do this" is like saying "surely if we can put a man on the moon, we can put a man on the sun." Some things are not doable, no matter how many nerds you throw at it.

You'd think that people in charge of, say, the healthcare of a nation, might at least recognize when they're too ignorant to understand the difference between the possible but difficult, and the impossible. Apparently not.

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Posted on Techdirt - 2 December 2016 @ 4:47pm

Court Rubber Stamps IRS's Demand To Get All Coinbase User Data

from the um... dept

A couple weeks back, we wrote about a ridiculous and massively overbroad demand from the IRS that virtual currency exchange/online wallet host Coinbase turn over basically all info on basically all Coinbase users. They did this because they saw evidence of a single person using Bitcoin to avoid paying taxes. Coinbase expressed concern over this, but Judge Jacqueline Scott Corley didn't seem too concerned, and has granted the IRS's request by literally rubber stamping the DOJ's request. I know it's not all that uncommon for judges to accept "proposed orders" but it's still a bit disturbing to see it happen on something with potentially massive consequences.

Coinbase has indicated that they're going to push back on this legally, but it's still quite unfortunate that the judge didn't seem all that concerned about this. While Coinbase says it expected the court to grant this order, and that "we look forward to opposing the DOJ's request in court," it's unfortunate how quick judges are to agree to these kinds of orders. Either way, this is going to be a case to follow.

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Posted on Techdirt - 2 December 2016 @ 10:42am

Every Website Needs To Re-register With The Copyright Office, Who Can't Build A Functioning System

from the are-you-serious? dept

As we mentioned last month, the Copyright Office -- despite being warned this was a bad idea -- has decided to implement a brand new system for websites to register DMCA agents, and has done so in a way that will undoubtedly fuck over many websites. It's already ridiculous enough that in order to be fully protected under the DMCA's safe harbor rules (that say you're not liable if someone posts infringing material to your website), you need to register a designated "DMCA agent" with the Copyright Office. The idea behind this is that by registering an agent, copyright holders will be able to look up who to send a takedown notice to. And, sure, that makes sense, but remember that this is the same Copyright Office that supports not requiring copyright holders to register their works, meaning that there may not be any legitimate way to contact copyright holders back.

The reason for the new system is that the old system was just ridiculous -- on that everyone can agree. You had to fill out a paper form, sign it, and send it in. The Copyright Office has been way behind on digitizing everything, so moving to a web based system is a good thing. Also, the old system required payment of over $100, while the new one is just $6. That's all good. The problem is twofold: first, the Copyright Office has said that it is throwing out all the old registrations, and if you want to retain your safe harbors, you need to re-register. There's a grace period through the end of next year, but plenty of sites who don't follow the Copyright Office's every move are going to miss this, and will no longer have an officially registered agent with the Copyright Office (it's possible that, should this issue go to court, a platform could reasonably argue that it still did meet the statutory requirements in the original registration, but why force site owners through that hoop in the first place). The second problem, is that this new system will toss out records every three years, so if you forget to renew, you once again can lose your legal safe harbors. This puts tons of websites at serious risk, removing key protections and opening them up to lawsuits from copyright trolls.

Either way, the Copyright Office opened the doors on the new system yesterday, and so I went ahead and re-registered Techdirt. And, let's just say, the Copyright Office has a reputation for being technically clueless, and boy, does it live up to that reputation with its new system -- though, to be fair, as the Copyright Office's General Counsel reminded me on Twitter, it's actually the Library of Congress that built the system. First off, to register a new agent, you need to first register with the Copyright Office's system. As Eric Goldman points out, the system is not designed for individuals or sole proprietorships, even though those people should be able to get DMCA safe harbor protections as well. Specifically, to register, it requires an organization name and a "second contact" name and information. I'm not sure what individuals should do, other than maybe make something up -- though, before you even get started, the system pops up a warning suggesting that you may face criminal charges under the CFAA if you do anything wrong (while it means if you try to hack the system, the wording may confuse many people not familiar with the law). Nice touch.

Oh, and then there's the password system. Like many people, I use a password manager, which also will generate strong passwords for you. I went through the process of filling out my info, and generated a strong password... and I got back an error message. It seems that the Copyright Office has taken what used to be considered best practices, and then took it to an insane extreme:

First of all, the US government, in the form of NIST, recently released new guidelines for password policies for any US government websites. And the Copyright Office ignores them, because whoever designed the new DMCA system seems to not give a shit and not be even remotely aware of good security practices these days. Here's what the new rules say:
No composition rules. What this means is, no more rules that force you to use particular characters or combinations, like those daunting conditions on some password reset pages that say, “Your password must contain one lowercase letter, one uppercase letter, one number, four symbols but not &%#@_, and the surname of at least one astronaut.”

Let people choose freely, and encourage longer phrases instead of hard-to-remember passwords or illusory complexity such as pA55w+rd.
So, yeah, nice job Copyright Office for ignoring what you're supposed to do. Second, even if those rules did make sense, by lumping together all of them, and then adding the absolutely ridiculous and bad security practice of saying "must not have any repeated letters, numbers, or special characters," you actually reduce randomness and make passwords less secure. This is just bad security.

To deal with this rule, I generated a much longer password, and then manually went through and removed any repeated letters, numbers or special characters, and made sure that all of the other rules were met. They were. I hit submit. The system rejected it, and gave me the exact same error message. I tried again. Same problem. I kept trying things for about 20 minutes until I figured out what the problem was. You see above, where it says "and special character "!@#$%^&*()""? Well, in my first attempt at a password I had two special characters: ? and >. I incorrectly assumed that when they say "special character" they mean any special character on the keyboard, and not just those limited to the ones above the number line on your keyboard. Once I realized that might be the issue, I still had a problem. And that's because my new password had " as a special character. I incorrectly assumed that was okay because it's in that list above, right? Except, no, it's not. It's just put around those symbols for no reason at all except to fool people. It would be nice if the error message actually told you that you could only use those characters and that the " wasn't included. Would have saved me a lot of time.

Once I finally finished that, the system sent me a confirmation/validation email (good), which I used to confirm my email and log into the system... only to discover that everything I had just done... was not actually registering a DMCA agent. It was just to register your account to use the Copyright Office's DMCA system. So I had to then go and fill out another form to register our DMCA agent (and I won't even get into the fact that once you've activated your account, the message telling you to "click here" to login to designate an agent makes it so that it's not at all where to actually click -- great design guys!).

Finally, once I'm all registered, and despite the fact that I'm very clearly registered in the United States, the system says I'm in Canada. Because, apparently, the genius IT staff thinks that the "CA", which everywhere else means California, means Canada in their own system. Because whatever, nothing matters.
So, yes, I eventually paid my $6 and got registered, but lots of people won't and lots of sites are now going to expose themselves to bogus lawsuits. And for those who do get through this process, you may end up in Canada. So anyway, off we go to this new era, in which websites are much more at risk of losing their safe harbor protections, and to make it more fun, the system you need to use to register yourself is buggy as hell with a bunch of bad design practices. It's almost as if they want websites to lose their safe harbors. Considering that the key role of the Copyright Office is to register stuff (the boss of the office is literally called "The Register"), it seems fairly ridiculous that they make it so difficult to register DMCA agents, and then force renewal every three years (while at the same time insisting that any renewal requirement for copyright holders would go against the natural order of things and bring famine and pestilence upon the land).

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Posted on Techdirt - 2 December 2016 @ 8:31am

Intelligence Committee Senators Call On Obama To Declassify Evidence Of Russian Election Interference

from the that-would-be-interesting dept

We've been a lot more skeptical than most about all the claims of "Russian interference" with the US Presidential election this year. While I don't doubt there was some effort to do something, Russia is such an easy scapegoat. Still, plenty of people insist that it's true, including those who at least should have a fair bit of insight into what actually happened. To me, the bigger issue is that attribution in many of these things is a lot more difficult than most people make it out to be.

Either way, it's quite noteworthy that seven Senators on the Senate Intelligence Committee have asked President Obama to declassify the evidence pointing to Russia and detailing what Russia actually did to attempt to interfere with the election. The Senators sent a very simple letter, which was released publicly, noting that a classified letter with a lot more details was also sent. Here's the entire text of the publicly released letter:

Dear Mr. President:

We believe there is additional information concerning the Russian Government and the U.S. election that should be declassified and released to the public. We are conveying specifics through classified channels.

Thank you for your attention to this important matter.
Of course, it needs to be noted that this will clearly be seen as a partisan effort. Of the seven Senators who signed on to the letter, six are Democrats, and the other, Senator Angus King, is an Independent who caucuses with the Democrats. Basically it's all of the Democrats on the Senate Intelligence Committee except for Dianne Feinstein and Harry Reid. So, it's easy for some to spin this as a case of sour grapes about the Democrats not winning the election, and that they're now clinging to stories of Russian interference to explain what happened.

But... that spin holds somewhat less weight when you look at the details. First off, the letter itself was put together by Senator Ron Wyden. And, yes, his name comes up a lot around here, but that's because he has a pretty long history of being right on lots and lots of stuff. And that's been especially true when Wyden says that there's some secret info that the public deserves to know about. He's been right on that every single time he's said it. So the track record is there. When Wyden says the public deserves to know something, pay attention.

The second thing that provides more confidence here is that this isn't just random conspiracy theories about "rigged" voting or whatever that some have been spewing. This is a specific request for more transparency by asking for specific information to be released to the public -- specific information that the Senate Intelligence Committee members have seen.

Given that, it seems worth paying attention to -- and at least asking why the President won't declassify such information? If there really is such strong evidence, why not reveal it? So far, all of the evidence pointing to Russia has been fairly weak, and it feels a bit like groupthink that everyone just insists it's true. But it's entirely possible (and perhaps now, probable) that the intelligence community has some more serious evidence. And, if that's the case, it seems worth sharing with the public even if you were happy with the outcome of the election. If Russia really did "interfere" somehow in the election, the public deserves to know the details of it.

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Posted on Techdirt - 2 December 2016 @ 6:31am

Senator Feinstein Asks President Obama To Declassify Senate's CIA Torture Report

from the last-chance dept

Could President Obama actually declassify and release the full 6,800 page report on the massive failures of the CIA's torture program from a decade ago? While it seems unlikely, Senator Dianne Feinstein is urging the President to release the document, fearing that the massive report may disappear into the memory hole soon.

Some background: While Feinstein has been historically awful on basically anything having to do with reining in the US intelligence community, the one area that really seemed to get her attention and raise concerns was the CIA's torture regime. She assigned Senate Intelligence Committee staffers to work on a massive and detailed report on the CIA's torture program after it came out that a key official involved in the program had deliberately deleted videotape evidence about the program. The research and writing of the report went on for years and cost millions of dollars, and then resulted in another big fight over releasing a heavily redacted version of just the executive summary of the report (not to mention that the CIA also broke into the staffers' computers after it realized it had accidentally given the staffers a really damning document). The fight over releasing the paper was really, really ridiculous.

There were fights over what ridiculous things to redact, and then the White House put on a full court press against releasing the document, insisting that publicly releasing even a heavily redacted executive summary would inspire terrorist attacks. Even after an agreement was reached on the redactions, John Kerry still tried to block the release, again warning of potential attacks in response.

Eventually the heavily redacted executive summary was released, revealing what many had suspected: the CIA's torture program was a complete waste, providing nothing in terms of valuable intelligence, and also involved the CIA lying to Congress. Since then, though, there have been ongoing battles over the report. Also revealed: what a bunch of bullshit the claims were that the release of the report would inspire new attacks. It's been two years and there's no evidence the report inspired any hatred beyond what was already present.

While Feinstein made sure copies of the full report were delivered to various parts of the executive branch, insisting that the report should be read so that we don't repeat the mistakes of the past, most of them claim they never read it and also that there was nothing to learn from it. Then, after Senator Richard Burr took over the Senate Intelligence Committee he began to demand that the various copies of the report all be returned so they could be completely destroyed, erasing all of that evidence and reporting on the CIA's torture program. The CIA claims it "accidentally" deleted one of its own copies.

The ACLU tried to FOIA the full document but was rejected... and the courts refused to force the government to release the document.

There's every indication that a President Trump would have zero interest in releasing such a report, and probably would support the destruction of the remaining copies. And, because of that, it appears that Senator Feinstein is calling on the President to declassify the whole thing.

I think people need to see the full facts of the report. I believe they stand on their own. And I think it's very important, particularly since there is discussion or talk or allegations about - well, we're going to resume waterboarding, and, yes, we can torture people.
As the report at NPR notes, during the campaign, Trump eagerly endorsed bringing back the torture program, specifically calling out waterboarding and suggesting going even further than that.

Once again, here's an opportunity for President Obama to actually do something that would make a powerful statement before handing over the White House. Not only would it help provide tremendous transparency into a shameful episode in our very recent history -- a shameful episode that is at great risk of being repeated -- it would also prevent the report from being totally destroyed. As the NPR piece notes, Senator Burr is still fighting to get back the document to destroy it. That means there's a very good chance that if President Obama doesn't get the full torture report declassified, it will disappear forever. Of course, given the White House's (ridiculous) attempts to block the release of the exec summary, combined with Obama's terrible track record in letting the intelligence community get away with all sorts of stuff, I wouldn't hold my breath.

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Posted on Techdirt Podcast - 30 November 2016 @ 9:40am

Please Support Our Patreon Campaign... And Listen To Our Conversation With Patreon's Founder Jack Conte

from the techdirt-podcast-episode-100 dept

For this week's podcast -- our 100th episode -- we have both a special guest and an announcement. On the podcast, we have Jack Conte, the founder and CEO of Patreon, a fascinating company that we've written about a few times, for providing a really compelling platform for connecting content creators and fans, and giving those fans a way to support the creators. And with that conversation, we're also launching a Techdirt Patreon page and asking for folks to support our continued efforts to make great content. The Patreon campaign is focused on the podcast, but you can use it to support Techdirt as a whole if you'd like. If you don't actually listen to the podcast, there's still a good reason to support it: if we get enough support via Patreon, we'll use it to fund transcripts of the podcasts, so those of you who would prefer to read it can do so.

As we've discussed a few times recently, the online advertising market has seen the bottom fall out of it. And that means we need to rely on other forms of support much more regularly -- including affiliate sales and direct crowdfunding. Frankly, direct crowdfunding is certainly the most pure of these options. It builds a stronger connection between us and our community and removes any whiff of third party interference in that relationship. In the past, we've done time-limited campaigns, and we may do that again as well, but I've been writing about Patreon since it launched (and Jack Conte since long before that), and have been impressed with how the platform has grown and changed over time -- and am also impressed with Jack's vision for where the company can continue to go (some of which you can hear in the podcast discussion).

Anyway, I hope many of you will agree to support us via Patreon. We have a variety of perks we're offering -- some of which we've offered directly in our Insider Shop for years, but some of which are new and unique to the podcast -- including a special backers' only episode that we'll be releasing in January. We have lots of stuff we'd love to do, with both the podcast and the website, and plenty of great stories to tell, but we need your help to do it. Please support our efforts.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

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Posted on Techdirt - 30 November 2016 @ 8:27am

Key Congressional Staffers Who Helped Rein In Surveillance Overreach In The 1970s Ask Obama To Pardon Snowden

from the make-it-so dept

While it seems pretty darn clear that President Obama has no interest in issuing a pardon for Ed Snowden -- despite the well-organized campaign in support of such a pardon -- more and more people are stepping up to argue why Obama should change his mind on this. The latest is a big one: fifteen members of the Church Committee have sent President Obama and Attorney General Loretta Lynch a memo outlining the reasons why Snowden deserves a pardon.

The Church Committee, of course, was the Senate Committee that investigated excessive surveillance efforts by the CIA, NSA and FBI in the 1970s, and eventually led to a series of sweeping reforms that helped to rein in many of the worst abuses. Of course, after 2001, many of the restrictions were watered down, which gets us to where we are today. It's also notable, of course, that the Church Committee eventually morphed into the Senate Select Committee on Intelligence, better known today as the Senate Intelligence Committee. Yes, if you're a bit confused, the committee that was created to stop intelligence community surveillance abuses changed over the years into becoming the intelligence community's biggest defenders, rather than overseers. Today's Intelligence Committee (minus a few members) seems 100% focused on whining about Snowden. So it's fairly telling that the members who made up some of the key staff positions on the original committee are now speaking out.

The letter was put together by Frederick Schwartz, who was the Chief Counsel of the Church Committee and William Miller, who was its Staff Director (i.e., these weren't lowly staffers -- these were the guys who ran the show). And they're pretty damn concerned. The full letter is worth reading, but here's just a small excerpt:

Without Snowden, it would have been decades, if ever, until Americans learned what intelligence agencies acting in our name had been up to. We know first hand that lack of disclosure can cause just as many, if not more, harms to the nation than disclosure. When intelligence agencies operate in the dark, they often have gone too far in trampling on the legitimate rights of law-abiding Americans and damaging our reputation internationally. We saw this repeated time and time again when serving as staff members for the U.S. Senate Select Committee, known as the Church Committee, that in 1975-76 conducted the most extensive bipartisan investigation of a government’s secret activities ever, in this country or elsewhere.
They also point out the hypocrisy of Obama and his administration ignoring or granting leniency towards others who abused positions of power in the surveillance state, and who did so not to benefit the public, as Snowden did:
Some oppose leniency for Snowden because he violated the law. But many in the national security establishment who committed serious crimes have received little or no punishment. President Obama’s decision to “look forward, not backward” absolved from liability the officials who designed and implemented the torture and extraordinary rendition programs at the CIA and Defense Department during the George W. Bush Administration. It also meant that those who destroyed evidence of these crimes and misled Congress about illegal torture and surveillance would never face charges.

In addition, the government has also been lenient to high-level officials who made illegal disclosures or destroyed classified information. Examples are cases involving National Security Advisor Sandy Berger and CIA Directors David Petraeus and John Deutch.

CIA Director David Petraeus, who also had been a top general, violated the law and his obligation to protect national security information when he provided his biographer, who was also his close friend, with voluminous notebooks documenting Top Secret military and intelligence operations, as well as sharing classified information with reporters. He also made false statements to the FBI to avoid accountability for his actions. Yet he was allowed to plead guilty to just one misdemeanor for which he received no jail time. Former National Security Advisor Sandy Berger broke the law when he removed several highly classified documents sought by the 9/11 Commission from the National Archives and then destroyed them. He too was allowed to plead guilty to a misdemeanor and received a fine and probation. President Bill Clinton pardoned former CIA Director John Deutch before the Justice Department filed a misdemeanor charge against him for improperly taking hundreds of files containing highly classified information and storing them on an unprotected home computer. In all these cases, recognition of the public service the individuals had provided weighed against strict enforcement of the law, to come to a fair and just result.

There are, of course, differences between these cases and Snowden’s. But the crucial point is that only in Snowden’s case was the motivation behind his illegal activity to benefit America. The three others involved efforts to gain glory or avoid criticism, or simple convenience and simple disregard for the law that put our security at risk. Yet the perpetrators were treated leniently.
The memo goes on to explain why people claiming Snowden should have gone through "the proper channels" don't know what they're talking about, by pointing to the examples of those who did follow those channels, only to have their lives ruined with bogus Espionage Act cases. Of course, I'm not sure how that will appeal to Obama, since he supported those cases.

Still, it's good to see these individuals, who know perhaps better than anyone what happens when you have a surveillance state run amok, explaining to the President why what Snowden did was so important, and why he deserves a pardon.

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Posted on Techdirt - 30 November 2016 @ 6:26am

In His Final Days, Obama Quietly Expands War Powers Before Handing Them Off To Trump

from the hey-that's-a-big-deal dept

While we knew it was impossible for President Obama to truly rein in the massive executive powers that he helped expand (following on the massive expansions from previous administrations) concerning national surveillance and war -- we had still hoped that maybe his concern about a President Trump would let him do a few small things to limit some of the most egregious powers. Instead, it appears that President Obama is doing the opposite, and expanding his war powers, just as he's about to hand them to someone that he, himself, has loudly criticized as being unfit for the Presidency.

For years now, we've written about how the Obama administration has regularly rewritten the dictionary in order to pretend that the Authorization to Use Military Force (AUMF) hastily granted by Congress in the wake of 9/11 enabled him to go to war with basically anyone. If you don't recall, the AUMF granted the President the power to use "all necessary and appropriate force" to go after those who "planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001." That's already fairly broad, but over the years basically our entire government has pretended that (1) the AUMF included the ability to also target "associated forces" (even though it does not) and (2) it allowed the President to simply lump in anyone he wanted as an "associated force" allowing him to bomb them without any Congressional authorization. This is how you get a war without end, in which the explicit authorization to go after Al Qaeda is now being used on a surprisingly long list of groups that didn't even exist in 2001.

And, just a few days ago, President Obama expanded the list yet again, allowing himself to go after yet another group: Shabab. Now, no one is trying to claim that Shabab, or ISIS or any other group that has been added to the list aren't out to do serious harm to the US. But, this seems to go way beyond the basic functions of the office of the President and the simple Constitutional requirement for Congress to declare war. As Trevor Timm notes at the Guardian, this is a big deal:

Council on Foreign Relations senior fellow Micah Zenko didn’t mince words in the Times when describing what the Obama administration is doing: “It’s crazy,” he said of the administration’s redefining the law out of existence. “This administration leaves the Trump administration with tremendously expanded capabilities and authorities.”

Make no mistake: Trump will have a free hand to use the law meant for the perpetrators of 9/11 to wage war around the world, fashioning it to different enemies at his command, and he will be able to point to precedent set by the Obama administration as he does it.

Per usual, all the White House’s decisions are being made under the veil of official secrecy. The only reason we know about it is not because the administration announced it, but because the New York Times reported it after unnamed officials leaked it to them.

And that's not all. The Obama administration has also given more powers to the Joint Special Operations Command (JSOC) -- the organization that helped find and kill Osama bin Laden. And, again, people are raising concerns about how this power will be used by the next President. As Timm notes:
Trump is now coming into office with ever expanding war powers, and they’re being served to him on a silver platter by the same people who told the American public two months ago that Trump was so unstable and thin-skinned that he couldn’t be trusted with the nuclear codes.
This isn't about which President or which party you support. It seems like we should all be concerned with the ever growing power of the executive branch in general, and especially its willingness to grant itself more powers to go around and kill people.

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