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

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

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

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

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

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

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

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

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Posted on Techdirt - 27 July 2015 @ 1:44pm

Even If The State Of Georgia Can Copyright Legal Annotations, Should It?

from the rethinking dept

Last week, we wrote about the fact that the State of Georgia is suing Carl Malamud for posting PDFs of the Official Code of Georgia Annotated, and sending them around. I've been discussing this with a number of lawyers and other experts over the weekend and have to say that I made a significant error in the original post, which I apologize for. I said that courts frequently rely on the annotations of the law, thus effectively making them a part of the law. This was wrong and it was poor reporting on my part based on incomplete understanding of the situation. Having discussed this with multiple people and checked into it further myself, I really regret the error and will be adding a link to this story as soon as it is published. I was told otherwise originally, but that's no excuse. I should have checked it out and I did not.

The situation is, admittedly, more complicated. I still believe that the State of Georgia is incorrect both legally and morally in deciding to go down this path, but it is at least slightly more nuanced than the original article suggested, so let's dig in and explore the thinking. The state of Georgia hired LexisNexis to create these annotations, and LexisNexis then assigns the copyright that it receives on those annotations over to the state of Georgia. Part of the deal between Georgia and LexisNexis is that LexisNexis does the work and the state gets the copyright, but then LexisNexis gets to host the "official" copies of the laws of the state, while selling that annotated version (in both digital and paper versions). The state argues that this arrangement is actually more beneficial to consumers, because rather than relying on taxpayer funds to do this, LexisNexis gets to recoup the costs in the form of customer fees.

The annotations include things such as the names and a brief paragraph summary of relevant caselaw concerning the specific law being annotated. So, the first question is can this be covered by copyright? Most likely the answer is yes, if a limited kind of copyright. There is some creative choice in selecting what to cover and how to cover it, though significant parts of it are factual (names of cases and whatnot). As some pointed out, LexisNexis competitor WestLaw also offers its own annotated code of the state and sells it itself, and pretty much everyone is comfortable with the copyright there.

So, what's different here? Well, for one, part of the deal with LexisNexis is that after writing the work, the company transfers the copyright to the state itself. Some have pointed to the fact that under federal copyright law the federal government cannot get copyright on works of its own creation, but that does not really apply here in two separate ways. First, there's some dispute over whether or not those same rules apply to state governments as well -- with many arguing that without it being explicit, states can copyright their own creative works. The second issue, though, is that even under federal copyright law, if a third party/contractor creates the work and then assigns the copyright to the government, then even the federal government can keep and use that copyright. And, that's clearly the situation here.

So, yes, it's reasonable to argue that the original annotations should and did receive copyright protection. And it's also reasonable to argue that the state technically still has control over that copyright upon assignment by LexisNexis. From there, however, the legal issues get a bit more cloudy. The state of Georgia still does call the resulting publication the "Official Code of Georgia Annotated." And at the very least, at that point, you have to wonder why any aspect of the "official" laws of Georgia should be covered by copyright. Indeed, as LexisNexis points out on its own site, this "copyright" covered version of the law is "essential" to understanding the law and includes "guidance from the Georgia Code Commission."

The Official Code of Georgia Annotated (OCGA) provides users with the official Georgia statutes, fully annotated and including guidance from the Georgia Code Commission. If you live or work in Georgia, the OCGA is the essential reference you need to guide you quickly and efficiently in understanding the Georgia statutory scheme
Furthermore, multiple parts of the Georgia government refer to the OCGA as the law of Georgia, rather than the unannotated version. Just as two quick examples, the Georgia Department of Community Affairs cites the OGCA to explain Georgia's construction codes, rather than the unannotated law. And the Department of Banking and Finance insists that:
Laws governing entities regulated by the Department are primarily found in the Official Code of Georgia Annotated (O.C.G.A.) Title 7.
In other words, basically everyone in the Georgia government is saying that if you want to know the laws of Georgia, the OCGA is the only way to do so. And that raises serious questions about whether or not it should be allowed to lock up such text under copyright. The big question is if the OCGA is an "edict of government," as the US Copyright Office has declared such to be not copyrightable "for reasons of public policy."
Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.
Given how the state of Georiga touts the OCGA as being "essential" and various government agencies directly cite it as where to find out about the laws that may apply to you, it seems reasonable to argue that the "Official Code of Georgia Annotated" is an "edict of government" and thus "not copyrightable for reasons of public policy."

Even if the courts somehow disagree with that, it would seem that Malamud also has a reasonably strong argument for fair use (though it's not a slam dunk -- but fair use is almost never a complete slam dunk). The "purpose and character" of the use and "the nature of the copyrighted work" would likely lean strongly towards fair use, and I would argue that while the last two factors may lean against fair use, the overwhelming nature of the first two should outweigh that when looked at as a whole. If you recognize that the purpose and character is to "let Georgians understand their own law," then the fact that Malamud released all of it should be seen as appropriate and reasonable, rather than excessive.

Finally, let's take this a step further and say that even if the copyright is legit and that this somehow isn't fair use... there remains a pretty essential question: is this appropriate for Georgia to act this way? The only "public benefit" argument that Georgia has on its side is that this current arrangement with LexisNexis saves taxpayer money, because the state doesn't need to pay to create annotated state codes. But that assumes that the state needs to pay to create annotated code. It's not clear that it does. WestLaw creates its own, and it seems likely that LexisNexis would continue to create its own as well should the state end this particular arrangement. If it's arguing that those wouldn't be the "official" ones, then there's a point there, but a minor one. First, this actually undermines the state's argument somewhat, in making it clear that it thinks the annotated code is really important in understanding the law. If that's true, then it's totally reasonable to spend taxpayer money on it -- just as they spend taxpayer money in paying the legislators who write the code, because that's exactly what taxpayer money is for.

And then there's this simple point: if the state of Georgia really believes this annotated code is so important, then it has a moral imperative to make it freely and widely available, rather than lock it up with copyright, such that only big law firms have a copy. It is essentially setting up a system by which only the lawyers are allowed to fully understand the law, and that's no way to run a government "for the people." That it has decided to not only lock up this code, but then to attack Carl Malamud by falsely claiming he's looking to "control access" to these annotations and to quote him totally out of context in claiming that he's doing a form of "terrorism," is just sickening. If the State of Georgia believes in having an informed public, this whole lawsuit is ridiculous, both from a legal and moral standpoint.

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Posted on Techdirt - 27 July 2015 @ 11:36am

Both Michael Hayden And Michael Chertoff Surprise Everyone By Saying FBI Is Wrong To Try To Backdoor Encryption

from the going-dark? dept

Well, here's one we did not see coming at all. Both former Homeland Security boss Michael Chertoff and former NSA and CIA director Michael Hayden have said that they actually disagree with current FBI director Jim Comey about his continued demands to backdoor encryption. Given everything we've seen in the past from both Chertoff and Hayden, it would have been a lot more expected to see them both toe the standard authoritarian surveillance state line and ask for more powers to spy on people. At the Aspen Security Forum, however, both surprised people by going the other way. Marcey Wheeler was the first to highlight Chertoff's surprising take:

I think that it’s a mistake to require companies that are making hardware and software to build a duplicate key or a back door even if you hedge it with the notion that there’s going to be a court order. And I say that for a number of reasons and I’ve given it quite a bit of thought and I’m working with some companies in this area too.

First of all, there is, when you do require a duplicate key or some other form of back door, there is an increased risk and increased vulnerability. You can manage that to some extent. But it does prevent you from certain kinds of encryption. So you’re basically making things less secure for ordinary people.

The second thing is that the really bad people are going to find apps and tools that are going to allow them to encrypt everything without a back door. These apps are multiplying all the time. The idea that you’re going to be able to stop this, particularly given the global environment, I think is a pipe dream. So what would wind up happening is people who are legitimate actors will be taking somewhat less secure communications and the bad guys will still not be able to be decrypted.

The third thing is that what are we going to tell other countries? When other countries say great, we want to have a duplicate key too, with Beijing or in Moscow or someplace else? The companies are not going to have a principled basis to refuse to do that. So that’s going to be a strategic problem for us.
He's right on all accounts, and does an astoundingly good job summarizing all of the reasons that many experts have been screaming about ever since Comey first started whining about this bogus "going dark" claim. But then he goes even further and makes an even more important point that bears repeating: it's not supposed to be easy for law enforcement to spy on people, because that has serious risks:
Finally, I guess I have a couple of overarching comments. One is we do not historically organize our society to make it maximally easy for law enforcement, even with court orders, to get information. We often make trade-offs and we make it more difficult. If that were not the case then why wouldn’t the government simply say all of these [takes out phone] have to be configured so they’re constantly recording everything that we say and do and then when you get a court order it gets turned over and we wind up convicting ourselves. So I don’t think socially we do that.
On top of that, he points out, as we and many others have, that even if you can't figure out what's in an encrypted message it does not mean you've really "gone dark." There are other ways to figure out the necessary information, and people always leave some other clues:
And I also think that experience shows we’re not quite as dark, sometimes, as we fear we are. In the 90s there was a deb — when encryption first became a big deal — debate about a Clipper Chip that would be embedded in devices or whatever your communications equipment was to allow court ordered interception. Congress ultimately and the President did not agree to that. And, from talking to people in the community afterwards, you know what? We collected more than ever. We found ways to deal with that issue.
Soon after that, at the same conference, Hayden spoke to the Daily Beast and more or less agreed (it is worth noting that Hayden works for Chertoff at the Chertoff Group these days). Hayden's denunciation of Comey's plan is not so detailed or thought out, and he admits he hopes that there is a magic golden key that's possible, but recognizing it's probably not, he thinks the damage may be too much:
“I hope Comey’s right, and there’s a deus ex machina that comes on stage in the fifth act and makes the problem go away,” retired Gen. Michael Hayden, the former head of the CIA and the NSA, told The Daily Beast. “If there isn’t, I think I come down on the side of industry. The downsides of a front or back door outweigh the very real public safety concerns.”
As the Daily Beast notes, this is -- to some extent -- a roll reversal between Hayden and Comey who famously clashed over Hayden's original warrantless wiretapping program after 9/11, with Comey actually arguing against some of the program (though what he argued against wasn't as complete as some believe). Still, it's quite amazing to see both Chertoff and Hayden point out what the tech sector has been telling Comey for months (decades if you go back to the original "crypto wars.") This isn't a question about "not wanting to do the work" but about the fact that any solution is inherently much more dangerous for the public.

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Posted on Techdirt - 27 July 2015 @ 9:27am

Topsite Operator, Who Admitted To Operating Servers With Tons Of Pirated Movies, Gets Off With Just Probation

from the compare-that-to-the-pirate-bay dept

TorrentFreak reports on a somewhat unexpected end to a criminal case against an (oddly unnamed) 50-year-old Swedish man who was accused of and admitted to running the servers for the topsite known as Devil. As anti-piracy folks always like to remind us, topsites "sit at the top of the piracy pyramid" in the warez scene, as that's where pirated content is usually first leaked, before making its way out to the wider internet. In this case, investigators seized the actual servers with 250 terabytes of content and arrested the guy who ran all the servers out of his home. Slam dunk case, right? So that's the odd part: He ended up receiving just probation and some community service.

Given the scale of the case it was expected that punishments would be equally harsh but things did not play out that way.

Despite admitting that he operated servers at his home and in central Stockholm and the court acknowledging that rightsholders had suffered great damage, the man has just been sentenced to probation and 160 hours of community service.

The article admits that the guy may still face civil trials which could come with huge damages, but it's instructive to look at the results of the criminal case here and compare it to another case.

Remember, this is the same country that sued four guys who were no longer associated with The Pirate Bay -- which hosted no infringing content and was more of a search engine -- and not only found them guilty, but gave them jail sentences and millions of dollars in fines.

That seems... weird. The case against this topsite operator seems like exactly the kind of case that's actually a slam dunk. It's not going against a third party or intermediary. It's going against the people actually doing the infringing. One can question whether it's a worthwhile business strategy, but the legal strategy against this guy seems to make perfect sense -- as compared to the weird nonsensical legal strategy against The Pirate Bay -- which, again, hosted no infringing content and only acted as a search engine.

So why the different results?

If you've ever watched the documentary about the trial, TPB AFK, it quickly becomes clear that a big part of the trial against the four people loosely associated with the site was more about the fact that they didn't "respect the system." The situation with Peter Sunde is particularly striking. He had really, really strong legal arguments for why he was innocent. Beyond the fact that the site didn't host any infringing content, his role was as a spokesperson for the site, and he had little to do with the site's actual operations. But -- and this is the important part -- he recognized the whole trial was a joke and treated it as such, making fun of the proceedings and of the lawyers and judges for not understanding very basic things about how the internet worked.

To some extent, you could argue that he and the others were convicted for being smartasses in responding to the "very serious" lawsuit from a bunch of lawyers who clearly didn't understand the technological issues at play.

However, in this case -- involving an actual infringer where it was quite clear that he was, in fact, breaking the law -- things were different. This guy cooperated and treated "the system" with the deference it thinks it deserves:
According to Mitti.se, two key elements appear to have kept the man’s punishment down. Firstly, he cooperated with police in the investigation. Secondly – and this is a feature in many file-sharing prosecutions – the case simply dragged on for too long
The Pirate Bay case dragged on for quite a long time as well. Yet it still ended with huge fines and jail time. It's hard to look at the results of the two cases as anything other than the tax one pays for actually calling out a ridiculous system for being ridiculous, rather than sucking up to the system whose own credibility is called into question.

I'm a big supporter in the idea of an impartial judicial system with due process, and especially the idea that the judicial system is "blind" to all but the facts before it. But we all know that's an ideal that is too frequently not met. The widely different results in these two cases further highlights that divide. Play along with the system and get a slap on the wrist -- even if your actual activities clearly violate the law. Don't play along and mock the system, get a huge sentence -- even if your actions don't actually violate the law. In the end, all that seems to matter is the "proper respect" for a system whose own actions shows it deserves none.

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Posted on Techdirt - 27 July 2015 @ 8:04am

Judge Slams Meddling Sheriff Thomas Dart For Likely First Amendment Attack On Backpage

from the who-didn't-see-that-coming? dept

A few weeks ago, we wrote about the highly questionable move by Cook County Sheriff Thomas Dart to first strongarm credit card companies into no longer working with Backpage.com, and then host a press conference patting himself on the back for interfering in a legal business relationship between private entities who were not breaking the law. In fact, Sheriff Dart knew damn well that no one was breaking the law, because in 2009 he ridiculously sued Craigslist, incorrectly trying to hold the site liable for the actions of users who engaged in prostitution. As we pointed out, this was not just firing at the wrong target, but doing so in a counterproductive way as well, since Craigslist happily worked with law enforcement to help them identify users who were engaged in prostitution. Not surprisingly, Sheriff Dart's grandstanding lawsuit was tossed out with the judge explaining in detail how Sheriff Dart didn't seem to understand the law.

So it seemed really strange to us that Dart was still focusing on the same thing, but with Backpage, and pressuring Visa and Mastercard not to do business with the site, based on his own mistaken notion of the law. Last week, Backpage struck back and sued Sheriff Dart claiming that the Sheriff's actions violated the First and Fourteenth Amendments, concerning both prior restraint and violations of due process:

Sheriff Dart’s actions are an unconstitutional prior restraint of speech without legal authority or due process. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). The First Amendment precludes a government official from banning a forum of speech simply because he dislikes it. Prior restraints are presumptively unconstitutional and can be imposed only in the most exigent of circumstances, requiring the least restrictive means to further a compelling state interest and requisite procedural safeguards. Sheriff Dart’s actions do not come close to passing constitutional muster.

Sheriff Dart’s actions to cripple Backpage.com and all speech through the site are an especially pernicious form of prior restraint. He has achieved his purpose through false accusations, innuendo, and coercion, whereas, if he had brought suit directly or Cook County had attempted to pass a law to shut down the website, Backpage.com would have had a fair opportunity to respond and defeat such efforts, given well-established law. Backpage.com received no notice or opportunity to be heard before card services were terminated. Moreover, Sheriff Dart’s actions have not only infringed Backpage.com’s rights to publish and distribute speech, but the rights of millions of the website’s users to post and receive protected speech.
The lawsuit notes that not being able to accept credit cards has cut off nearly all revenue to Backpage, and so the company sought a temporary restraining order against Dart in his efforts to kill off their business.

The judge in the case, Judge John Tharp, wasted no time, granting the temporary restraining order in just two days and slamming Sheriff Dart in the process. The court, citing the same famous Bantam Books v. Sullivan case that Backpage mentions, notes that it appears Dart was out of line. The Bantam Books case matches up pretty closely to this case: it involved "informal pressure" from a government body to try to stomp out the circulation of "objectionable" publications, including obscene material. Even though there was no formal legal process and obscene content is not protected by the First Amendment, the Supreme Court still found the effort unconstitutional as prior restraint, saying it would go overboard and suppress speech.

Basically all of Dart's attempts to avoid this failed. He first argued that Backpage had no standing for the First Amendment claim because it's not Backpage's speech that's at stake. The court rejects that, noting that it has standing as the key enabler of that speech.
Backpage may stand in the shoes of its users in seeking relief from the burden placed on their freedom of speech as a result of not being able to use credit cards to access Backpage’s forum. Here, Backpage meets the “relaxed” third-party standing requirements because its Backpage’s commercial injury gives it “sufficient injury-in-fact to satisfy the Article III case-or-controversy requirement” and it can “reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal.” ... In addition, Backpage’s own status as, in essence, a publisher (it does not create any content) gives it a direct First Amendment injury.
And, of course, Dart's claims that there is no protected speech in prostitution ads also falls completely flat, because there's plenty of other content on Backpage:
Nor does the Court accept Dart’s argument that standing is lacking because there is no protected First Amendment interest at stake here at all. Clearly First Amendment protection does not extend to exhortations to illegal conduct— Dart’s stated concern. E.g., United States v. Williams, 553 U.S. 285, 297 (2008) (“Offers to engage in illegal transactions are categorically excluded from First Amendment protection.”). But here, there is no dispute that all of the advertisements on Backpage.com are affected; Backpage cannot collect its normal fees for even the most benign advertisements, and therefore will be unable to host any when the money runs out. Given that Dart sought to “defund” Backpage, not just shut down its adult sections, based wholly on the content of some ads, Dart cannot maintain that the First Amendment is not implicated by his actions, even if he were correct that none of Backpage’s “escort ads” themselves are protected.
Separately, the court notes that even if Dart is correct that those ads are not protected by the First Amendment, that's up to a court to decide, not Dart on his own. That's called due process.

Given that Backpage has standing, is it likely to succeed on the merits? The court finds it likely enough to grant the temporary restraining order:
The only remaining question with respect to the plaintiff’s likelihood of success on the merits is whether Backpage will be able to establish a First Amendment violation—that is, whether Dart’s actions are the type of informal prior restraint that the Bantam Books line of cases prohibits. And, as the parties’ oral arguments made clear, that involves two main questions: (1) whether Dart’s letter constitutes a threat, and (2) whether the credit card companies involuntarily withdrew business from Backpage. The plaintiff has a better than negligible—but not certain— chance of proving that both answers are “yes.”

The threat at issue in Bantam Books came from Rhode Island’s Commission to Encourage Morality in Youth, which had no direct authority to prosecute or impose sanctions on the distributors it entreated to stop circulating certain books. Despite simply requesting “cooperation” from book distributors, the Commission’s actions effectively suppressed the circulation of the objectionable books entirely because of the Commission’s official status, its coercive language, and its practice of sending police to follow up with the distributors. As the Supreme Court explained, “though the Commission is limited to informal sanctions—the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation—the record amply demonstrates that the Commission deliberately set about to achieve the suppression of publications deemed ‘objectionable’ and succeeded in its aim.”...

The same principle applies in this case. Dart did not directly threaten the companies with an investigation or prosecution. But by writing in his official capacity on Sheriff’s Department letterhead, requesting a “cease and desist,” invoking the legal obligations of “financial institutions” to cooperate with law enforcement, and requiring ongoing contact with the companies, among other things, it could reasonably be inferred that Dart brought the weight of his office to bear on his “request” that the companies stop their association with Backpage altogether. And even if it is true that Dart has no jurisdiction over the credit card companies, he could certainly refer an investigation to the appropriate authority.... Moreover, the credit card companies were not privy to Dart’s candid admission when they read the letters and acted accordingly.
The court also slaps away Dart's argument that there's no problem here since the credit card companies' decision was "voluntary":
Another potential distinguishing feature of Bantam Books is the clear finding in that case that the book distributed had not cooperated voluntarily with the Commission’s request to stop circulating certain titles. Here, Dart contends that any action by the credit card companies was wholly voluntary. But for purposes of a TRO, enough signs point in the other direction. These companies had worked with Backpage for more than a decade, and they terminated their relationships because of Dart’s letters. The Court cannot state as a matter of law that the letters were not a threat..... Whether Dart coerced the companies or simply educated them has not yet been definitively established, but given the timing of the withdrawals and the companies’ public statements, at the very least it is clear on this record that the companies did not act spontaneously.
The court also notes -- as we've pointed out for years -- that there's no evidence (and certainly none presented by Dart) that shutting down Backpage would actually lead to a decline in prostitution and trafficking. It also makes the same point we've been making for years that Backpage appears to be a great tool for law enforcement to use to track down such lawbreaking:
The hardships clearly weigh more heavily on the plaintiff and its users. Backpage’s business is imperiled, and the users are in imminent jeopardy of losing a forum for protected (as well as unprotected) speech. Sheriff Dart has made no argument, and has provided no evidence, that prostitution, trafficking, and sexual exploitation of minors will be reduced significantly reduced by Backpage’s demise; indeed, it appears that an oft-used tool for identifying lawbreakers (by Dart and other law enforcement agencies) will be lost if Backpage were to fold.
The judge also completely smacks down Dart's weird and nonsensical claim that the public is "better served" this way because Backpage has since made all of its ads free. But, the court notes -- how does that make sense, when in the same breath Dart has been arguing that he wants less access to Backpage?
As for the public interest, Dart contends that public interest is best served right now because “the public is able to use Backpage.com for free.” Curious as it is for Dart to equate the public interest with more access to Backpage.com, the argument is specious, for the record suggests that Backpage is in jeopardy of going under as a result of Dart’s tactics.
So in the end, a temporary injunction is issued, and there will be a hearing later this week on a longer preliminary injunction. Of course, that alone won't necessarily mean that the credit card companies go back to working with Backpage, so the company may end up having to shut down even if it wins.

All this should raise serious questions about just what Sheriff Dart is up to here, other than trying to drum up bogus grandstanding headlines to get attention by claiming that he's "cleaning up the internet" or something similarly ridiculous. If Sheriff Dart really wanted to go after prostitution online, he'd be working closely with Backpage to go after those actually responsible, rather than conspiring to drive it somewhere else while giving himself misleading headlines.

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Posted on Techdirt - 24 July 2015 @ 7:39pm

Smoking Gun: MPAA Emails Reveal Plan To Run Anti-Google Smear Campaign Via Today Show And WSJ

from the editorial-independence? dept

If you talk to the reporters who work for various big media companies, they insist that they have true editorial independence from the business side of their companies. They insist that the news coverage isn't designed to reflect the business interests of their owners. Of course, most people have always suspected this was bullshit -- and you could see evidence of this in things like the fact that the big TV networks refused to cover the SOPA protests. But -- until now -- there's never necessarily been a smoking gun with evidence of how such business interests influences the editorial side.

Earlier this month, we noted that the Hollywood studios were all resisting subpoenas from Google concerning their super cozy relationship with Mississippi Attorney General Jim Hood, whose highly questionable "investigation" of Google appeared to actually be run by the MPAA and the studios themselves. The entire "investigation" seemed to clearly be an attempt to mislead the public into believing that it was somehow illegal for Google's search engine to find stuff that people didn't like online. A court has already ruled that Hood pretty clearly acted in bad faith to deprive Google of its First Amendment rights. As the case has continued, Google has sought much more detail on just how much of the investigation was run by the MPAA and the studios -- and Hollywood has vigorously resisted, claiming that they really had nothing to do with all of this, which was a laughable assertion.

However, in a filing on Thursday, Google revealed one of the few emails that they have been able to get access to so far, and it's stunning. It's an email between the MPAA and two of Jim Hood's top lawyers in the Mississippi AG's office, discussing the big plan to "hurt" Google. Beyond influencing other Attorneys General (using misleading fake "setups" of searches for "bad" material) and paying for fake anti-Google research, the lawyers from Hood's office flat out admit that they're expecting the MPAA and the major studios to have its media arms run a coordinated propaganda campaign of bogus anti-Google stories:

Media: We want to make sure that the media is at the NAAG meeting. We propose working with MPAA (Vans), Comcast, and NewsCorp (Bill Guidera) to see about working with a PR firm to create an attack on Google (and others who are resisting AG efforts to address online piracy). This PR firm can be funded through a nonprofit dedicated to IP issues. The "live buys" should be available for the media to see, followed by a segment the next day on the Today Show (David green can help with this). After the Today Show segment, you want to have a large investor of Google (George can help us determine that) come forward and say that Google needs to change its behavior/demand reform. Next, you want NewsCorp to develop and place an editorial in the WSJ emphasizing that Google's stock will lose value in the face of a sustained attack by AGs and noting some of the possible causes of action we have developed.
In other words, Jim Hood and the MPAA were out and out planning a coordinated media attack on Google using the editorial properties that supposedly claim to have editorial independence from the business side. Notice that with the WSJ piece, they flat out admit that the editorial will be based on the ideas that "we" have developed. If you work for the WSJ, your editorial independence just got shot down. Remember when CBS stepped in and interfered editorially with CNET for giving an award to Dish at the same time that CBS was in a legal fight over that same device? That resulted in reporters quitting.

This is worse.

This is an out and out case where the MPAA is admitting to a plan whereby it will use mainstream media properties to run bogus and misleading stories to "attack" Google, to further the MPAA's (believed, but misleadingly so) business interests. Is this really how the Today Show and the WSJ pick their editorial topics?

The "plan" goes even further after that, getting the MPAA to find (and almost certainly pay for) a lawyer to work with the "shareholder" previously identified to file legal filings against Google.
Following the media blitz, you want Bill Guidera and Rick Smotkin to work with the PR firm to identify a lawyer specializing in SEC matters to work with a stockholder. This lawyer should be able to the [sic] identify the appropriate regulatory filing to be made against Google.
As Google notes in its legal filing about this email, the "plan" states that if this effort fails, then the next step will be to file the subpoena (technically a CID or "civil investigatory demand") on Google, written by the MPAA but signed by Hood. As Google points out, this makes it pretty clear (1) that the MPAA, studios and Hood were working hand in hand in all of this and (2) that the subpoena had no legitimate purpose behind it, but rather was the final step in a coordinated media campaign to pressure Google to change the way its search engine works. It's pretty damning:
The document thus shows that the CID was not the foundation of a legitimate investigation—rather, it was a “final step” that would be issued only “if necessary” to further pressure Google to capitulate to the demands of AG Hood and his supporters.
The court has yet to rule on what else Hollywood needs to turn over, but just from what's coming out already, serious questions are being raised (1) about Jim Hood and his office and what they were up to as well as (2) the editorial independence of the media arms of the MPAA studios, including both NBCUniversal ("the Today Show") and NewsCorp. (the Wall Street Journal).

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Posted on Techdirt - 24 July 2015 @ 2:49pm

Toronto Cab Drivers Sue Uber For Interference With Their Super Profitable Business Model

from the that's-how-it-works,-of-course dept

I was last in Toronto a few years back, pre-Uber, and I remember clearly having a long conversation with the cabbie who drove me from the airport to my hotel, about just how ridiculously corrupt the taxicab business is in Toronto. He was telling me how supply was artificially limited, and even things like being allowed to pick up passengers at the airport required under-the-table kickbacks to certain officials. The driver was pissed off about the whole thing. I'm reminded of that now, as the news comes out that some cabbies in Toronto are suing Uber itself, claiming illegal competition. This is interesting on a few levels. While we know that many cabbies are upset about the competition from Uber drivers, in most cases the direct attacks on Uber have come from the cities and politicians, rather than directly from the cabbies. Yes, there have been riots by cabbies in France, and protests other places, but actual lawsuits have mostly been limited. There are a few exception, such as when Chicago cabbies sued Uber with some nonsensical claims about false advertising.

Here the claims seem equally questionable:

Law firm Sutts, Strosberg LLP, which is representing the taxi drivers, said in a statement on Thursday that the named plaintiff, cab driver Dominik Konjevic, alleges that "Uber X and Uber XL have created an enormous marketplace for illegal transportation in Toronto".
There doesn't seem to be much of a claim here other than "we don't like competing." Or, as we've described it in the past, felony interference with a business model. It's not even clear how the Toronto cabbies have standing here, as you'd think anyone who would have a right to complain would be the passengers, but of course, that's not going to happen, because most of them actually like services like Uber.

There's also the fact that an Ontario court just rejected an attempt by Toronto itself to block Uber in the city, saying that the service was legal. The cabbies here are filing this under different "provincial" law though it seems likely to have the same overall outcome.

Yes, I'm sure if you're a cabbie in a cushy industry where there is tremendous corruption and artificially limited supply it must really suck to have to face real competition from players who are more innovative and provide a better overall service. But that doesn't mean it's illegal.

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Posted on Techdirt - 24 July 2015 @ 12:43pm

Chilling Effects: UK Police Admit To Investigating Journalists For Covering Snowden Leaks

from the freedom-of-the-press? dept

Remember back when UK law enforcement detained David Miranda while he passing through Heathrow airport for nine hours, under an anti-terrorism law, claiming that journalism could be terrorism? Apparently, UK law enforcement is really doubling down on that claim, with the new admission that there is an ongoing and open criminal investigation into the reporters who have published Snowden documents.

As you recall, the first such documents were obtained and published by Glenn Greenwald, an American living in Brazil but working for the UK's Guardian newspaper. There had been a number of bizarre reports about just how far UK law enforcement wanted to go to intimidate journalists from reporting on such leaks in the future -- even forcing the Guardian to physically destroy a laptop that had the Snowden documents for no good reason other than security theater.

But that kind of intimidation has been taken up a notch. Greenwald's new publication, the Intercept, has been engaged in an ongoing Freedom of Information battle with the Metropolitan Police Service in the UK to find out if that organization is investigating journalists, and the police have finally confirmed that they are, in fact, investigating journalists, though it only does so obliquely, but "confirming" that "it continues to conduct an investigation into the events as described above" (with the "above" being the details laid out in the Freedom of Information request).

Of course, it doesn't appear that the reporters actually did anything wrong, and thus it seems fairly clear that the entire reason for the investigation is to create chilling effects for journalists who might publish such stories in the future and to harass those who published them in the past. The current UK government's continued move to use Orwell's 1984 as a guidebook, rather than a warning sign, is really reaching ridiculous levels.

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Posted on Techdirt - 24 July 2015 @ 9:25am

You Have No Expectation Of Privacy In Your Butt Dials

from the be-forewarned dept

The Sixth Circuit court of appeals has now made it clear: you have no expectation of privacy in your butt dials. The full ruling makes for some fascinating reading. Apparently a guy named James Huff made what must be one of the most expensive butt dials in history. Huff, who was chairman of the Kenton County Airport Board (in Kenton, Kentucky) which oversees the Cincinnati/Northern Kentucky Airport (CVG), was in Europe on a business trip. At one point, he tried to call Carol Spaw, the executive assistant of the airport's CEO, Candace McGraw, to see if Spaw could schedule a dinner reservation for him and another board member. His call failed, but after another board member with Huff successfully reached Spaw, it appears that Huff's phone, in his pocket, called again and he was -- unknowingly -- successfully connected with Spaw.

At this point, though, Huff was already talking with the other board member, Larry Savage, about possibly replacing Spaw's boss, McGraw. Spaw proceeded to then continue to listen and transcribe notes of what was being said, including recording parts of the call, which lasted for approximately an hour and a half (yes, from Italy to Kentucky, so... the price of the call alone was probably quite a lot, not counting the eventual legal costs). As for why she did this:

Spaw claims that she believed that she heard James Huff and Savage engaged in a discussion to discriminate unlawfully against McGraw and felt that it was her responsibility to record the conversation and report it through appropriate channels.
Eventually Spaw typed up the notes she had taken, hired a company to enhance the audio of the recording she made and shared both with other board members. Huff was... not happy. He (and his wife) sued Spaw, claiming illegal wiretapping under 18 USC 2511. The lower court tossed out this claim, and the Huffs appealed.

Here, the court examines whether or not Huff had a reasonable expectation of privacy in his conversation, and notes that he knew there was such a risk and had, in fact, made such errant calls in the past. Thus, he had no reasonable expectation of privacy, since it was his own negligence that resulted in the butt dial:
At his deposition, James Huff admitted that he was aware of the risk of making inadvertent pocket-dial calls and had previously made such calls on his cellphone. A number of simple and well-known measures can prevent pocket-dials from occurring. These include locking the phone, setting up a passcode, and using one of many downloadable applications that prevent pocket-dials calls.... James Huff did not employ any of these measures. He is no different from the person who exposes in-home activities by leaving drapes open or a webcam on and therefore has not exhibited an expectation of privacy.
The court rejects the claim, made by the Huffs, that such a ruling would mean no one had any expectation of privacy in their phone calls:
The Huffs warn that, if we do not recognize James Huff’s reasonable expectation of privacy in this case, we would deprive all cellphone-carrying Americans of their reasonable expectations of privacy in their conversations.... We disagree. Not recognizing James Huff’s expectation would do no more injury to cellphone users’ privacy interests than the injury that the plain-view doctrine inflicts upon homeowners with windows or webcams. A homeowner with an uncovered window or a broadcasting webcam lacks a reasonable expectation of privacy with respect only to viewers looking through the window that he neglected to cover or receiving signals from the webcam he left on. He would retain a reasonable expectation of privacy in his home with respect to other means of observation, for example thermal-imagery devices.... Similarly, James Huff retained an expectation of privacy from interception by non-pocket-dial means, such as by a hidden recording device or by someone covertly causing his cellphone to transmit his statements to an eavesdropper..... James Huff lacked a reasonable expectation of privacy in his statements only to the extent that a third-party gained access to those statements through a pocket-dial call that he placed. In sum, a person who knowingly operates a device that is capable of inadvertently exposing his conversations to third-party listeners and fails to take simple precautions to prevent such exposure does not have a reasonable expectation of privacy with respect to statements that are exposed to an outsider by the inadvertent operation of that device.
So, the failed lawsuit would then be the second part of why this was likely the most expensive butt dial in history.

Of course, it's not a total loss for the Huffs. As noted earlier, it wasn't just James Huff who sued, but also his wife, Bertha. Apparently part of the overheard conversation was between James and Bertha, and the court is much more receptive to Bertha's "reasonable expectation of privacy" claim. The lower court had said she didn't have a reasonable expectation of privacy, since she knew that her husband's phone might butt dial someone. The appeals court finds that to be a bit more ridiculous.
If Bertha waived her reasonable expectation of privacy from pocketdials by speaking to a person who she knew to carry a pocket-dial-capable device, she would also waive her reasonable expectation of privacy from recordings and transmissions by speaking with anyone carrying a recording-capable or transmission-capable device, i.e., any modern cellphone. The district court’s holding would logically result in the loss of a reasonable expectation of privacy in face-to-face conversations where one party is aware that a participant in the conversation may have a modern cellphone. As nearly every participant in a conversation is a potential cellphone carrier, such a conclusion would dramatically undermine the protection that Title III grants to oral communication.
And thus, the court sends it back down to the lower court to determine if Spaw's answering of the phone, listening to the call she received and taking such notes (and recording part of the call) constituted "intentional use of a device" to intercept Bertha Huff's oral communications. Most of that seems like a stretch -- though the fact that, at one point, she did have someone go get another phone with which to record the call at least raises some questions that make it not so cut and dried.

Either way, the moral of the story: don't butt dial. And, if you do: don't then discuss figuring out a way to fire the boss of the person you butt dialed.

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Posted on Techdirt - 24 July 2015 @ 6:10am

State Of Georgia Sues Carl Malamud For Copyright Infringement For Publishing The State's Own Laws

from the that-seems...-unwise dept

Update: We've written a new post about this case, which notes an important error we made in the analysis below. We claimed that the annotations were relied upon by the courts, which turns out not to be true. We apologize for the error, and we should have done more research initially. It is true, however, that multiple parts of the Georgia government do point to the annotated code as "the law" of the state and reference parts of that same annotated code. In our updated post, we do a more thorough analysis of the legal arguments -- yet we still regret and apologize for the initial error in this post.

Two years ago, we wrote about the state of Georgia ridiculously threatening to sue Carl Malamud and his site Public.Resource.org for copyright infringement... for publishing an official annotated copy of the state's laws. This followed on a similar threat from the state of Oregon, which wisely backed down. Malamud has spent the last few years of his life doing wonderful and important work trying to make sure that the laws that we live by are actually available to the public. The specific issue here is that while the basic Georgia legal code is available to the public, the state charges a lot of money for the "Official Code of Georgia Annotated." The distinction here is fairly important -- but it's worth noting that the courts will regularly rely on the annotations in the official code, which more or less makes them a part of the law itself the state points directly to the annotated version as the official laws of the state. Furthermore, the annotations are very important in understanding and applying the relevant interpretations and case law (case law is a part of the law, after all). And then, the question is whether or not the law itself should be subject to copyright restrictions. Malamud has long argued no, while the state has obviously argued yes, probably blinded by the revenue from selling its official copy of the annotated code. Update: In the original post, I overstated the claim that the courts would directly rely on the annotations. While the annotations are often used to better understand the relevant case law, it does not appear that the courts directly refer to the annotations themselves.

It took two years, but the state has now done the absolutely ridiculous thing of suing Malamud. It is about as ridiculous as you would expect again focusing on the highly questionable claim that the Official Code of Georgia Annotated is covered by federal copyright law -- and that not only was Malamud (*gasp*) distributing it, but also... creating derivative works! Oh no! And, he's such an evil person that he was encouraging others to do so as well!

This action for injunctive relief arises from Defendant’s systematic, widespread and unauthorized copying and distribution of the copyrighted annotations in the Official Code of Georgia Annotated (“O.C.G.A.”) through the distribution of thumb drives containing copies of the O.C.G.A. and the posting of the O.C.G.A. on various websites. Defendant has facilitated, enabled, encouraged and induced others to view, download, print, copy, and distribute the O.C.G.A copyrighted annotations without limitation, authorization, or appropriate compensation. On information and belief, Defendant has also created unauthorized derivative works containing the O.C.G.A. annotations by re-keying the O.C.G.A. in order to make it possible for members of the public to copy and manipulate the O.C.G.A., thereby also encouraging the creation of further unauthorized derivative works.
Believe it or not, the State of Georgia is actually claiming that it needs the copyright protections here to incentivize it to create these annotated copies of the law. Apparently, without copyright, Georgia's law would remain sadly unannotated.
Each of these annotations is an original and creative work of authorship that is protected by copyrights owned by the State of Georgia. Without providing the publisher with the ability to recoup its costs for the development of these copyrighted annotations, the State of Georgia will be required to either stop publishing the annotations altogether or pay for development of the annotations using state tax dollars. Unless Defendant’s infringing activities are enjoined, Plaintiff and citizens of the State of Georgia, will face losing valuable analysis and guidance regarding their state laws.
This is ridiculous. In what world does making the law require copyright protection?

The State is particularly upset that Malamud ran some crowdfunding and donation campaigns seeking to raise money to keep his operations running, saying that he raised this money "to assist the Defendant in infringing the State of Georgia's copyrights." The State also complains that he uploaded the code to the Internet Archive under a CC 0 public domain dedication, saying (incorrectly) that this implies that he claimed that he was the owner of the annotations. That's not true at all. He's claiming that everyone owns them, because they're the law.

Later, the lawsuit makes Malamud out to be some sort of horrible person on a "crusade" to make the laws free, and to "control the accessibility of U.S. government documents."
On information and belief, Carl Malamud has engaged in an 18 yearlong crusade to control the accessibility of U.S. government documents by becoming the United States’ Public Printer – an individual nominated by the U.S. President and who is in control of the U.S. Government Printing Office. Carl Malamud has not been so nominated.
It takes a special kind of ridiculousness to argue that someone seeking to make the laws of the land more accessible to the public is somehow looking to "control the accessibility" of those laws. But, welcome to the State of Georgia, apparently home to just that kind of special ridiculousness.

The complaint further submits as an exhibit this Columbia Journalism Review article about Malamud from 2009 in order to support Georgia's ridiculous claim that Malamud sees what he's doing as a form of "terrorism." The lawsuit says the following:
Carl Malamud, has indicated that this type of strategy has been a successful form of “terrorism” that he has employed in the past to force government entities to publish documents on Malamud’s terms
Of course, all that's likely to really do is further educate the court about what Malamud is really looking to do: make the laws of the land more publicly accessible.

Either way, this seems like a ridiculous move for Georgia. Going after Carl Malamud for copyright infringement for helping to make the public more aware of the law in the state of Georgia just seems ridiculous. And for all of the state's repeated claims in the lawsuit that it's doing this to protect taxpayers, one has to ask why it's spending taxpayer revenue on filing such a ridiculous lawsuit?

Back when the state of Georgia first threatened Malamud two years ago, he responded as such:
It is a long-held tenet of American law that there is no copyright in the law. This is because the law belongs to the people and in our system of democracy we have the right to read, know, and speak the laws by which we choose to govern ourselves. Requiring a license before allowing citizens to read or speak the law would be a violation of deeply-held principles in our system that the laws apply equally to all.

This principle was strongly set out by the U.S. Supreme Court under Chief Justice John Marshall when they stated “the Court is unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this Court, and that the judges thereof cannot confer on any reporter any such right.” Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834). The Supreme Court specifically extended that principle to state law, such as the Ofcial Code of Georgia Annotated, in Banks v. Manchester (128 U.S. 244, 1888) , where it stated that “the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute.”
This still applies, and it seems that the State of Georgia might want to re-evaluate its choice of targets here.

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Posted on Techdirt - 24 July 2015 @ 4:10am

Turns Out Hillary Clinton Had Hundreds Of Potentially Classified Emails On Private Server; Officials Ask For Criminal Investigation [Update]

from the well,-look-at-that dept

Update: In addition to the update already added at the bottom of this story, later on Friday it came out that the initial report was wrong and the call for an investigation was not for a criminal investigation. Original post follows:

Earlier this year there was a bit of a scandal over the fact that Hillary Clinton had used a private server for her emails, something she knew was inappropriate and which clearly exposed her emails to foreign spies. When she finally agreed to address the issue, one of the key points she made in her defense was that she never had classified material on the server:

CLINTON: I did not email any classified material to anyone on my email. There is no classified material.

So I'm certainly well-aware of the classification requirements and did not send classified material.
Many -- including State Department officials -- found this nearly impossible to believe, especially given just how much stuff the State Department classifies (whether or not that information should be classified is another discussion for another day).
A former senior State Department official who served before the Obama administration said that although it was hard to be certain, it seemed unlikely that classified information could be kept out of the more than 30,000 emails that Mrs. Clinton’s staff identified as involving government business.

“I would assume that more than 50 percent of what the secretary of state dealt with was classified,” said the former official, who would speak only on the condition of anonymity because he did not want to seem ungracious to Mrs. Clinton. “Was every single email of the secretary of state completely unclassified? Maybe, but it’s hard to imagine.”
Back in May, with the first release of a bunch of her emails, some noted that, indeed, they couldn't find any evidence of classified information, though some were later retroactively classified.

But, of course, that was just one batch of the emails. A few weeks ago, reports started leaking from inside the State Department that, in fact, there was classified information on that server, and late last night the other shoe dropped, with a report in the NY Times that two separate Inspectors General have requested the Justice Department open a criminal investigation into Clinton's mishandling of sensitive information -- in particular the inclusion of "hundreds" of potentially classified emails on her private server.
Two inspectors general have asked the Justice Department to open a criminal investigation into whether Hillary Rodham Clinton mishandled sensitive government information on a private email account she used as secretary of state, senior government officials said Thursday.

The request follows an assessment in a June 29 memo by the inspectors general for the State Department and the intelligence agencies that Mrs. Clinton’s private account contained “hundreds of potentially classified emails.” The memo was written to Patrick F. Kennedy, the under secretary of state for management.
The report also notes that these same Inspectors General were particularly annoyed with how the State Department has been handling this, saying that one of the emails that was revealed publicly last month contained classified information that should not have been released (though they obviously did not identify which email).
In a second memo to Mr. Kennedy, sent on July 17, the inspectors general said that at least one email made public by the State Department contained classified information. The inspectors general did not identify the email or reveal its substance.


The inspectors general also criticized the State Department for its handling of sensitive information, particularly its reliance on retired senior Foreign Service officers to decide if information should be classified, and for not consulting with the intelligence agencies about its determinations.
Back in March, when the whole email scandal broke, it was pretty clear that Clinton hoped to address it quickly and then hope that the whole thing would blow over. And, for the most part, it actually did. However, a criminal investigation and potential charges would obviously put it back on the front page again. Either way, it still raises serious questions as to what the hell she was thinking and more importantly, what the hell her staff was thinking. There is no way they could not have known how dangerous this was. Clinton's bizarre defense that the system was secure because the server was physically guarded never made much sense, but it still boggles the mind that everyone allowed this to happen in the first place. At this point, it has to be considered all but confirmed that foreign intelligence agencies had full access to all of her emails, including those that had classified information.

Update: Well, this is interesting. Some have noticed that after it was published, the NY Times quietly "softened" its original story... An hour after publishing it, the report changed so that it no longer said that the question was if "Hillary Clinton mishandled" her emails, but rather if "sensitive government information was mishandled in connection with the personal email account Hillary Rodham Clinton."

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Posted on Techdirt - 23 July 2015 @ 9:12pm

Google Giving Away Some Of Its Patents To Startups To Help Protect Startups From Trolls

from the good-move dept

A year ago, we wrote about the launch of a new program from a bunch of bigger tech companies who were sick of patent trolls: the "License On Transfer" network (LOT). The program, set up by Google, NewEgg, Dropbox, SAP, Asana and Canon was pretty simple in concept. It's a royalty-free patent cross-licensing program. If any patent held by a member of LOT is transferred to another company, a license is automatically granted to every member of LOT. This serves to avoid patents eventually falling into the hands of trolls and being used against members. A bunch of other companies have joined since it launched, including Redhat, GitHub, Ford, JPMorganChase, Mazda, Khan Academy, Pandora and more. It certainly doesn't solve all the patent trolling problems, but it is a nice way to make sure that patents from these organizations are less likely to be used for trolling and has a really nice incentive structure in that to protect yourself from patent trolling you basically have to make sure your patents are less likely to be used by trolls as well.

LOT is still trying to expand, and it appears that Google is taking a step to make it even more attractive, especially for startups: the company is going to start giving away some of its patents to startups, for free, if they meet a few conditions -- including joining LOT (though the membership fees for the first two years will be waived). The program is only available to the first 50 eligible participants who sign up -- and to be eligible, you need to have 2014 revenue between $500k and $20 million. Then Google will offer specific "patent families" from which the startups can choose to take. These patents will not be ones developed by Google itself, but rather ones that it has bought from others. And, of course, the startups agree to issue a license back to Google. And, most importantly, they must agree to only use the patents defensively. If used offensively, the patents go back to Google.

In other words, it's another win-win setup. Startups can get some decent patents for free that they can use for defensive purposes, and LOT gets more members from the startup community. The only ones who "lose" are the trolls and their lawyers, but I can't fathom any reason to be upset about that.

Of course, if we just fixed the damn patent system so that low quality patents and patent trolling were stopped, none of this would be needed. So, in some sense, it's a bit depressing that all of this is really an economic dead weight loss on society created by a broken patent system. But, at the very least, it's nice to see companies proactively looking for non-regulatory/non-legislative ways to minimize the damage created by a broken system.

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Posted on Techdirt - 22 July 2015 @ 9:04pm

NYC Mayor De Blasio Realizes His Plan To Kneecap Uber Was A Disaster, Backs Down

from the so-much-for-that dept

Earlier this week, we noted that NY City mayor Bill de Blasio appeared to pick a fight with Uber that he couldn't possibly win. The plan was to create a taxi medallion-like system for car hailing apps like Uber and Lyft, but which would cap the number of such cars that could be on the road. The PR campaign against this effort was tremendous (obviously, some of it pushed by Uber and Lyft -- but much of it by the happy users and drivers on those platforms). De Blasio and his staff apparently believed that there really wasn't popular support for these platforms, which was just wrong. As the negative publicity continued to mount, including having various celebrities weigh in on how stupid the plan was, it appears that de Blasio has backed down and agreed to drop the plan, at least for the time being.

The agreement brings a temporary end to a fractious struggle that had consumed City Hall for several days, and inundated parts of the city with mailers, phone calls, advertisements and even celebrity endorsements.

Under the agreement, according to three people familiar with the agreement, the city will conduct a four-month study on the effect of Uber and other for-hire vehicle operators on the city’s traffic and environment.
To save face, the mayor's office is also claiming that this is a "victory" because Uber agreed to share some data with the mayor's office about usage of the platform. However, this is pretty clearly a victory for Uber, its drivers and the people who use the service. There are some legitimate questions about how these companies operate and what they mean for the cities and residents where they exist, but this move, from the beginning, was clearly about paying back taxi cab companies who had supported de Blasio's election, rather than any legitimate concern for the city.

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Posted on Techdirt - 22 July 2015 @ 1:51pm

Car Hack Demonstrates Why Security Researchers Shouldn't Have To Worry About Copyright In Exposing Weaknesses

from the copyright-where-it-doesn't-belong dept

So, by now you've heard the story of how Wired reporter Andy Greenberg allowed two car hackers to hack into a car that he was driving, remotely, while he was on a highway. The story is getting plenty of well-deserved attention, with some people raising a variety of concerns. The most obvious concern is the "holy hell, that seems scary, we should improve car security." And that's true. A second level of concern is over whether or not that experiment on a real highway was appropriate, given the very real potential of danger (including the truck that almost hit Greenberg). A third concern is over the reality of the threat, given that Greenberg was driving a car owned by the hackers, that they had the ability to touch previously (i.e. the "remote" part of the hack sounds scary, but it's less scary if hackers have to get into your car first).

However, the part that I wanted to focus on is related to a discussion we were just having a few weeks ago, in which General Motors (which was not the target of this particular hack) claimed that any sort of tinkering with their software, such as to discover these kinds of security holes, should be considered copyright infringement, thanks to Section 1201 of the DMCA. Section 1201, also known as the anti-circumvention provision, says circumventing "technological protection measures" (TPMs) -- even for reasons that have nothing to do with copyright -- should be deemed copyright infringement and subject to all the statutory damages (up to $150k per violation!) that copyright allows. Some have been pushing for an exemption for things like security researchers tinkering with new connected car systems to make sure they're safe. And GM and other automakers have said "no way." GM's argument is, more or less, that the company would prefer to put its head in the sand, and not have security researchers help it discover security flaws in its systems -- leaving only malicious attackers to find those.

While proponents such as Electronic Frontier Foundation characterize the exemption as merely allowing the vehicle owners to “tinker” with their vehicles “in a decades-old tradition of mechanical curiosity and self-reliance,” if granted, the proposed exemption could introduce safety and security issues as well as facilitate violation of various laws designed specifically to regulate the modern car, including emissions, fuel economy, and vehicle safety regulations.
Of course, copyright is not the right law to be relying on if you think that tinkering with your software could lead to safety problems. Instead, it seems to be the law that automakers are relying on to try to hide some of the security vulnerabilities in their cars.

The Association of Global Automakers goes even further with its argument, basically saying that since they already let security researchers of their own choosing do research, no one else should be able to do that research also:
Automobile manufacturers are not adverse to external input and have a long and symbiotic history with aftermarket businesses and others, but are justifiably unwilling to risk public safety, security, and environmental wellness by compromising quality controls and oversight. Moreover, the exemption is unnecessary given that automobile manufacturers already provide access to their valuable copyrighted materials for the precise purposes proposed. By allowing every automobile owner to access and copy automotive software in the name of research, the proposed exemption undermines existing research efforts and, ultimately, wrests control of such research from those in the best position to actually improve the security and safety of our automobiles: the automobile manufacturers and their suppliers, who have the utmost responsibility to ensure that vehicles are safe and secure. The very real risk that ostensibly legitimate research unwittingly undermines vehicle security by serving as a guidebook to software vulnerabilities that enables or even accelerates illicit hacking and malicious modifications to automotive software weighs heavily against the proposed exemption. The balance of benefit versus detriment, in view of all factors involved, simply dictates against the proposed exemption.
In short, since security researchers might find a really serious hole in our software that might put lives in danger, we're much better off using copyright law to make sure no one's even looking for such a hole. Are they serious? Wouldn't it be much better to give people incentives to find these kinds of security flaws so the automakers can fix them rather than relying on security-by-head-in-the-sand?

Finally, the Alliance of Automobile Manufacturers also opposed the exemption for some fairly bizarre reasons, claiming that it would magically free up researchers to disclose how a vulnerability works without first informing the manufacturer:
By arguing that the current legal landscape is too treacherous for independent researchers, proponents are in effect seeking to be freed from existing statutory constraints that are biased in favor of prudent and responsible practices – such as managing disclosure of security vulnerabilities to minimize the risk of legal violations and exploitation of those vulnerabilities by bad actors – to protect the safety and security of members of the public. For instance, under the proposed exemption, researchers who publish detailed analyses of vulnerabilities before sharing their findings with manufacturers would nonetheless benefit from a blanket exemption to circumvention liability, even though such premature publication could dramatically increase the risk of such harmful exploitations.
This is bullshit. There is nothing in removing the liability for circumvention that changes industry best practices of first alerting the manufacturer. That would still be standard practice. What it would do, however, is stop those manufacturers from responding by threatening a ridiculous copyright infringement lawsuit instead of realizing they need to fix a real problem in their systems. And if the automakers don't think such threats happen, we've got plenty of examples to send their way.

If the automakers are serious about wanting to make sure their cars on the road are safe, they should be encouraging this kind of research (though perhaps not on actual highways... ). But the fact that copyright law is blocking some of this kind of research is a real travesty.

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Posted on Techdirt - 22 July 2015 @ 11:34am

Police Cameras Are Valuable... But Not If They Can Alter The Videos

from the trust-goes-out-the-window dept

We've talked plenty about the value of body cameras and dashcams for police -- in acting as a deterrent to bad behavior by police while supposedly acting as public servants. Of course, that only works if people trust the video not to be edited and doctored. This week there are all sorts of questions being raised about the arrest and hanging death of activist Sandra Bland in Texas. There are plenty of questions about why she was even arrested in the first place, and then plenty more about why she died (the police called it a suicide, which many who knew Bland find highly questionable).

In response to some of these concerns, the police released a 52 minute version of the dashcam video of her arrest -- though for some reason, the YouTube version has since been taken down. Perhaps it's because people watching the whole thing noticed a bunch of really sketchy problems with it that suggested the video had been edited, while the audio remained in tact. Ben Norton first posted the details of these, highlighting a bunch of weird artifacts like disappearing cars that magically reappear seconds later:

Or the tow truck driver who gets out of his truck, walks behind the car and out of frame... and then suddenly gets out of the truck again:
You can skip your "glitch in the Matrix" jokes. They've already been made. Plus, this is about someone who died.

The Texas Dept. of Public Safety said it would look into the video problems, and officials have denied any edits and have said that they will re-upload the video (which likely explains why the original has now gone missing). It also seems worth noting that the timing of the edits doesn't make it look like anything important was edited out (it all happens after the arrest itself).

It's possible that there was just some sort of weird glitch with this footage, but it's a reminder that anything that calls into question the credibility and accuracy of these kinds of videos will only undermine the purpose of these videos. We've heard too many stories about how some of these cameras can be "turned off" or that police would have access to the coverage before it's released to the public. If officials want these systems to actually work, they have to be trustworthy on their own. While this is likely just going to turn out to be some sort of technical problem that will be fixed, with nothing nefarious at all, it still acts as a strong reminder for the need to make sure that this kind of footage is stored and released in a way that doesn't raise such questions.

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Posted on Techdirt - 22 July 2015 @ 9:33am

United Airlines Requires You To Install Special Brand Of DRM To Watch Movies On Flights

from the yeah,-that's-not-happening dept

On Twitter yesterday, Brian Fitzpatrick, a tech entrepreneur, noted that while trying to enjoy the in-flight entertainment on the United Airlines flight he was taking, the in-flight Wi-Fi system told him he need to install its special brand of DRM. They didn't even try to sugarcoat it with some fancy confusing name. It's literally called the DRM plugin:

In case you can't see the image, it says:
Click 'Okay' to download the latest DRM Plugin.
After installation playback should resume immediately,
if it doesn't then you may need to restart your browser.
Fitzpatrick kindly sent me a bunch more screenshots and details. That little error message pops up -- along with other error messages -- when you go to watch a movie:
This is part of United's "beta test" of its "Personal Device Entertainment" option, that allows you to apparently fuck up your computer, just to get access to the short list of films and TV shows that United has contracted to allow you to watch while in flight. The "requirements" on United's website only shows "the latest version" of various browsers (oddly, Chrome is excluded -- which we'll get to) and Flash Player 15 or higher.
Notice that it doesn't say anything about "our own personal malware." The only indication something may be up is in this infographic that says "you may be prompted to download a plug-in." No biggie.

Fitzpatrick also realized that if you don't have Flash (which is actually a good security practice) United will helpfully offer to install it for you as well:
Because what's flying the friendly skies without the opportunity to push multiple pieces of software that might put your computer at risk!

At this point, United will provide lots of detailed instructions on how to install the DRM-you-never-wanted on your machine:
Notice the more detailed instructions to get it to work in Chrome (and the earlier note about how this system doesn't support Chrome)? That's because the plugin is using NPAPI, which is a security nightmare and is no longer supported in Chrome for security reasons. As the Chrome team has noted: "NPAPI is a really big hammer that should only be used when no other approach will work."

So, not only is United trying to install unnecessary and annoying DRM on your computer, it's also doing so in a way that it is recognized as being a security nightmare. That's encouraging.

In the interest of science, Fitzpatrick dug a little deeper and discovered that the "DRM plugin" in question is actually Panasonic's Marlin DRM -- something we actually wrote about years ago, as an attempt to create an "open source" DRM. Though, amusingly, Fitzpatrick notes that the DRM comes with strong copyright warnings itself:
This Software Product is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. Panasonic Avionics Corporation or its subsidiaries, affiliates, ad suppliers (collectively "PAC") own intellectual property rights in the Software Product. The Licensee's ("you" or "your") license to download, use, copy, or change the Software Product is subject to these rights and to all the terms and conditions of this End User License Agreement ("Agreement").
How sweet. You need to abide by Panasonic's rules when you install its security nightmare of a DRM you didn't want, just to watch an in-flight movie.

And, really, after all this, people should be asking but why? What "threat" model requires United to force dangerous malware onto your computer? And the answer is likely that Hollywood requires it, because to Hollywood everything is a threat, and the idea that someone might be paying hundreds of dollars for flights and they might also then make a copy of a movie... well, that's just too much to handle, and they have to first ask you to break your computer and put all your data at risk. Isn't that sweet of Hollywood? Oh wait, no I didn't mean sweet. I meant insane.

I'm sure that United Airlines didn't think through much of this and the details when it agreed to these ridiculous terms. It just thought it was adding an option that sounded nice. Letting people have access to more entertainment options, including on their own devices sure sounds like a nice option for some passengers. But if it comes with forcing people to put their computers and information at risk, it gets problematic fast.

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Posted on Techdirt - 22 July 2015 @ 8:32am

Even If You Think Kim Dotcom Is Guilty As Sin, The US Government Stealing His Assets Should Concern You

from the it's-called-due-process dept

Earlier this year, we covered a very troubling situation involving Kim Dotcom and the US government. As you almost certainly already know, Dotcom is fighting extradition from New Zealand to the US to face a bunch of charges concerning criminal copyright infringement. We've written about those charges as well as the extradition fight many times. However, while all of this was going on, the Justice Department filed a separate lawsuit, not against Dotcom himself, but against all of his stuff. We've talked for years about the problems of the "asset forfeiture" program in the US, and Dotcom's case drives all of those points home. And, even if you think that Kim Dotcom is absolutely guilty, a horrible person, responsible for billions of dollars in losses to the film and music industries, you should still be concerned about the asset forfeiture aspects here.

Again, this lawsuit is technically entirely separate from the ongoing case against Dotcom himself. Instead, it's USA v. All Assets Listed In Attachment A, And All Interest, Benefits, And Assets Traceable Thereto -- which is a catchy name if you're trying to hide what you're really doing, which is stealing all the assets of someone in a foreign country. The Attachment A in the title of that lawsuit is basically a listing of all of Kim Dotcom's assets. In asset forfeiture cases, since the government is technically filing the lawsuit against the stuff, arguing that the stuff itself is guilty, it leaves only limited ability of the original owner of that stuff to try to block the government from taking it all. And, that was made much more difficult by Dotcom (who has never even been to the US) fighting extradition in the (entirely separate) lawsuit against him. The DOJ, somewhat perversely, used the extradition fight to argue that Dotcom is a "fugitive," to basically say that he can't try to block the forfeiture, and the judge agreed.

The end result? The court gave the DOJ a huge green light to legally steal millions of dollars worth of assets from Kim Dotcom despite the lack of any court ruling or admission of guilt. That seems like a rather big due process concern. While a New Zealand court has put a temporary stop to the US government taking the New Zealand portion of the assets, back in the US, there is an appeal going on over the initial ruling.

As part of that, three organizations that you wouldn't normally think of as associating themselves with the likes of Dotcom, have stepped up to argue that the whole civil asset forfeiture effort against Dotcom's stuff is a complete farce. The Cato Institute, the Institute for Justice and the National Association of Criminal Defense Lawyers have filed an amicus brief in the appeal arguing forcefully about how ridiculous this whole case is (not the case against Dotcom, but the case against all his stuff). As the Cato Institute notes in its blog post about this:

The Fifth Amendment’s Due Process Clause requires an opportunity to be heard and an opportunity to defend against government-initiated actions against your property. Unlike an escaped criminal appellant who is scorning the court’s jurisdiction, in civil forfeiture, it’s the government that has dragged Dotcom and the others into court. Moreover, given the amount of abuse in civil-asset forfeiture, the government shouldn’t be allowed both to profit from the forfeiture and suppress defenses by calling residents of other countries “fugitives.” Finally, the reasons for fugitive disentitlement in criminal appeals simply can’t be transferred to civil-asset forfeiture. When an individual is “on the run” from criminal prosecution, courts can’t enforce judgements against them, but a valid forfeiture order would be fully enforceable against Dotcom if the court has jurisdiction over the property. Fugitive disentitlement is also used to deter felons from escaping justice, but there’s no similar concern here, where the property can’t run away and the claimants are merely residing in their home countries. The Fourth Circuit should not only allow the Megaupload defendants to challenge the seizure, it should also consider striking down as unconstitutional all uses of fugitive disentitlement in civil-forfeiture cases.
Frankly, if Dotcom is eventually found guilty of that which he is charged with (which is a separate issue altogether), then it could be perfectly reasonable to argue for asset forfeiture of the proceeds from such illegal acts. But to argue for civil asset forfeiture entirely separately from that process and to abuse the process by arguing he's a "fugitive" in order to get those assets is particularly ridiculous:
Under civil forfeiture laws, the government can take property without an underlying criminal conviction based only on the allegation of a crime. Those whose property has been seized can get it back by proving that their property is “innocent.” The government, however, is preventing the defendants from even making that argument. Using the “fugitive disentitlement” doctrine, the government is blocking the defendants from challenging the forfeiture.

Fugitive disentitlement has historically been applied only to criminals who escaped custody while appealing a conviction, the idea being that a court could decide to dismiss the appeal because any judgment would be unenforceable against an absent defendant. Here, the government has decided that, because the Megaupload defendants aren’t coming to the United States to defend their property, they are “fugitives” who have lost the ability to defend against that seizure — and the district court agreed.
As the filing itself notes:
Stripping the claimants of their due process rights isn’t just unconstitutional, it’s dangerous. There’s a growing literature on the abuse of civil forfeiture—and those abuses are directly tied to the protections given to the claimants here, as well as the ability of government officials to directly benefit from forfeitures. This court should not ratify a doctrine that would make abuses even easier.

Moreover, the reasons for invoking the fugitive disentitlement doctrine in criminal appeals are inapplicable to civil forfeiture actions. First, unlike an order against an absent criminal defendant, a valid forfeiture order where the court has rightful jurisdiction will be fully enforceable. Second, the claimants here haven’t scorned the district court’s authority as a fleeing criminal defendant would. Third, by appearing before the court via counsel, the claimants haven’t disrupted the court’s processes or offended its dignity. Finally, unlike with criminal appellants—who may need to be deterred from flight by the threat of disentitlement—the claimants are merely continuing to lawfully reside in their home countries.
Once again, even if you think Dotcom is the root of all evil in the world, even then you should be concerned about this particular aspect of the case(s) against him. It seems telling to me that, in the comment sections on our previous posts, those who have argued that Dotcom is clearly guilty, seem to have no problem with the asset forfeiture. They don't see it as any sort of due process violation because they've already decided he's guilty in their minds, just as the US government has. But that's not how due process works. You're supposed to be found guilty first. If these people are so sure that Dotcom is guilty, why not wait until that's shown in a court of law, rather than having to go through this separate process to take all of his stuff?

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Posted on Techdirt - 21 July 2015 @ 1:53pm

IRS Encrypts An Entire CD Of Redacted Documents In Response To FOIA Request

from the how-nice-of-them dept

Muckrock has a story of Alex Richardson, seeking information on the IRS's Whistleblower Office, which has been receiving some scrutiny lately. Richardson filed a bunch of FOIA requests and discovered that the IRS apparently would like to make his life as difficult as possible. First he got an infamous GLOMAR "neither confirm nor deny" response -- which was supposed to be limited to national security issues. However, with at least one request, a package with a CD just arrived... and Richardson was dismayed to find the contents of the CD encrypted.

That seems a bit strange for a response to a FOIA request, since whatever is being delivered is supposed to be public, but whatever. The letter accompanying the CD explains, for reasons unknown, that while the IRS was only returning 6 of the 23 pages that had been located, it was doing so with encryption, and it would send the key separately.
Again, this seems like weird operational security for public documents. Now, also, in the response letter, it noted that the reason only 6 pages are included is because the rest were withheld under FOIA exemptions:
So you had to imagine that in those 6 pages, there should at least be some relevant information. Nope. It appears that the IRS went through all that to give a final middle finger to Richardson, because when he finally decrypted the documents... they're all redacted too. Six pages, entirely blacked out. Which makes you wonder why the other 17 were "withheld" in the first place. What difference could it have made?

As Muckrock notes at the end of its piece:
Just GLOMAR us next time, IRS. Save us both a lot of grief, and it's a lot less cruel.

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Posted on Techdirt - 21 July 2015 @ 9:31am

NY Times Falsely Claims ISIS Is Using Encryption & Couriers Because Snowden

from the like-they-never-thought-of-that-before dept

For quite some time now, the Snowden haters out there keep wanting to prove that Ed Snowden somehow caused damage with his leaks. It's been over two years now and they keep coming up empty. Former Senator and staunch surveillance state supporter Saxby Chambliss was out making claims yesterday about how when the US government "gets our hands on" Snowden, it should "hang him on the courthouse square." Because nothing says "freedom" like convicting someone without a trial and then killing them barbarically, right? But, Chambliss also claimed that "lives have been lost" because of Snowden, ridiculously comparing his leaks to the OPM leaks:

"Just like with Snowden, we’re going to lose American lives as result of this breach."
Going to? It's been two years and no one can point to a single life lost -- so this bit of fearmongering is stretching pretty thin at this point.

But, still, the Snowden fearmongering continues... with an assist from the NY Times. An article by Eric Schmitt and Ben Hubbard, about the latest on ISIS and how it's structured, contains a random nonsensical dig at Snowden:
The Islamic State has also studied revelations from Edward J. Snowden, the former National Security Agency contractor, about how the United States gathers information on militants. A main result is that group’s top leaders now use couriers or encrypted channels that Western analysts cannot crack to communicate, intelligence and military officials said.
Except that a year ago, an actual study of how these groups communicate showed that they were already using such methods long before Snowden and nothing had changed in the aftermath. That research, by Flashpoint Partners, pointed out among other things:
  • Well prior to Edward Snowden, online jihadists were already aware that law enforcement and intelligence agencies were attempting to monitor them. As a result, the Snowden revelations likely merely confirmed the suspicions of many of these actors, the more advanced of which were already making use of – and developing –secure communications software.
  • The underlying public encryption methods employed by online jihadists do not appear to have significantly changed since the emergence of Edward Snowden.
And, of course, it's been well-known for years that Al Qaeda used couriers and encryption to avoid communications channels that could be easily monitored by the NSA, so it's not like ISIS needed Snowden to reveal what was already known. Here's an article from two months before anyone knew Ed Snowden's name, talking about Al Qaeda adapting to the NSA:
Suddenly al-Qaida in the Arabian Peninsula was up against the National Security Agency and the Predator drones that can hover out of sight and intercept phone calls.

So it adapted.

It went underground, enduring a monthslong U.S. led bombing campaign. It emerged as a more disciplined and professional organization. It ditched cell phones in favor of walkie-talkies and coded names. Information was passed through intermediaries. If someone needed to send an email, it was shielded by highly sophisticated encryption software.
Anyone who thinks that ISIS suddenly discovered the need for this kind of thing after Snowden is either lying or ignorant. The two NY Times reporters who should know better should never have included that bogus tidbit. It seems to serve no purpose other than to let anonymous government officials spread a lie about Snowden.

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Posted on Techdirt - 21 July 2015 @ 4:07am

If The UK Wants People To 'Respect' Copyright, Outlawing Ripping CDs Is Probably Not Helping

from the you-earn-respect dept

We had two separate stories late last week about copyright issues in the UK, and it occurred to me that a followup relating one to the other might be in order. The first one, from Thursday, was about the UK's plan to try, once again, to push a new "education campaign" to teach people that "copyright is good." We've seen these campaigns pop up over and over again for decades now, and they tend to lead to complete ridicule and outright mockery. And yet, if you talk to film studio and record label execs, they continually claim that one of the most important things they need to do is to teach people to "respect" copyright through education campaigns.

My guess is they say this because an education campaign is something they can actually do, so they can make it look like they're "doing something" no matter how ineffective it will be. And, you can go back centuries and find that no education campaign has ever worked in magically making people respect anti-copying laws.

That brings us to story number two: on Friday, the UK's High Court confirmed that ripping your legally purchased CDs and DVDs to make a digital copy for personal use is no longer legal (something that the government had only "made" officially legal a few months ago). The court even left open the possibility that anyone who relied on the official change in regulations to rip their own CDs might now face punishment for doing so.

This court ruling came about after an organization run by the record labels, UK Music, challenged the legal change.

Combine these two stories, and you have to wonder what the recording industry is thinking. As Matt Schruers noted on Twitter, this latest court ruling can only serve to destroy any credibility that copyright might have held for people:

And this is the part that legacy copyright industry extremists still don't get. You don't get respect for copyright through propaganda education campaigns. You get respect through earning it. And that means responding reasonably to things that people do. People want to rip music to make it more convenient to listen to. You should support that. You shouldn't try to make it illegal. You shouldn't sue your biggest fans. You shouldn't go after people for obviously non-commercial use of works. You shouldn't put ridiculous statutory damages on works. You shouldn't tax blank media. You shouldn't pull works down from the internet because a few seconds in the background contain some copyright-covered music. You shouldn't try to pass laws that limit free expression.

And yet, the recording industry does all of that, and then they think that a lousy (and misleading) education campaign will make people "respect" copyright? What are they thinking?

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