Well, well. Here's a quick (rare) Saturday post just to get folks up to speed on what happened late last night. After going back and forth for a while, the Senate voted on... and failed to approve both a version of the USA Freedom Act and a short "clean extension" of the clauses of the PATRIOT Act that were set to expire -- mainly Section 215 which some (falsely) believe enables the NSA to collect bulk metadata from telcos (and potentially others). What this means is that it is much more likely that Section 215 expires entirely. The Senate has since left town, though it plans to come back next Sunday, May 31st to see if it can hammer out some sort of agreement. Though, beware of false compromises, such as those being pushed by Senate Intelligence Committee (and big time NSA supporter), Richard Burr. His "hastily introduced" bill pretends to try to "bridge the gap" but in actuality is much worse than basically anything else on the table.
Oftentimes when things like this happen, it's all political theater -- with Senators appearing to "take stands" on key issues to please constituents. This time, however, there does seem to be genuine confusion as to where this is all going to end up. Next week ought to be fairly interesting...
As was widely expected after last week's vote, the Senate has now voted in favor of fast track for trade agreements (officially "Trade Promotion Authority") after Republican Senators convinced enough of their Democratic counterparts to give up their Constitutional authority in regulating international commerce (yes, you read that right: Republicans who keep complaining about the President taking too much power and not obeying the Constitution, just voted explicitly to give up Constitutional authority to the President of the other party, while most Democrats declined to do so).
Also as expected, all attempts to add amendments to the TPP -- including Elizabeth Warrens' plan to strip corporate sovereignty ISDS provisions -- failed. Any of the amendments almost certainly would have sunk the fast track bill in the House, so they were all basically poison pills designed to kill fast track. Still, it's disappointing that Congress is favoring corporate sovereignty, when it's pretty clear that it's a provision that is going to come back and bite us badly.
Either way, the fight will now move on to the House, where it's not yet clear if there are enough votes. But, don't be surprised to see a full court press to convince another dozen or so Democrats to join with Republicans in coughing up Congress' Constitutional authority over international trade.
On Thursday, Governor Rick Scott of Florida signed 44 bills into law, but two of them are particularly interesting to us. The first we wrote about back in March, SB 604, is a very problematic bill that undermines some basic free speech rights. It's the latest in a new push by Hollywood to undermine anonymity online as a backdoor attack on copyright infringement. Basically, it says that if you're distributing any sort of audiovisual work, you need to reveal who you are.
The implications here are massive. There are lots of cases where someone may wish to post certain audiovisual works without having to post their full name, address, phone number and email address -- as the law now requires. And the First Amendment has long protected the right to be anonymous. And yet, the Florida legislature and Governor Scott signed it without much serious concern about how it's stripping away the First Amendment anonymity rights of their citizens.
Oddly, however, in that very same batch of signed bills... is another bill that protects free speech rights: SB 1312, which expands Florida's (very, very weak) anti-SLAPP law. Like too many states, Florida's anti-SLAPP law originally only protected people in cases where they were sued over speech concerning government actions. The new bill expands that to "public issues" which is similar to many other anti-SLAPP bills. Considering the number of crazy defamation threats and lawsuits that seem to come out of Florida, this bill could be very, very useful in protecting free speech.
Getting the anti-SLAPP bill is really important, but losing anonymity seems really dangerous. These aren't just the sort of things that "balance out" either. Either you support the First Amendment or you don't. I'm glad that Florida has a better anti-SLAPP bill, but Governor Scott shouldn't have taken away basic First Amendment protections with the same stroke of his pen in signing the "true origin" bill at the same time.
Earlier this week, we noted that a huge list of companies, non-profits and cybersecurity experts had signed a letter to the White House about the stupidity and danger of trying to order backdoors into encryption (disclaimer: we signed the letter as well). While many in the press focused on the companies that had signed onto the letter (including Google, Apple, Cisco, Microsoft, Twitter and Facebook), as we noted, what was much more interesting was the long list of cybersecurity/encryption experts who signed onto the letter. Just in case you don't feel like searching it out, I'll post the entire list of those experts after this post.
It's a who's who of the brightest minds in encryption and cryptography. Whitfield Diffie invented public key cryptography. Phil Zimmermann created PGP. Ron Rivest is the "R" in "RSA." Peter Neumann has been working on these issues for decades before I was even born. And many more on the list are just as impressive.
So how do you think FBI director James Comey -- who has been leading the charge on backdooring encryption -- responded to these experts?
A group of tech companies and some prominent folks wrote a letter to the President yesterday that I frankly found depressing. Because their letter contains no acknowledgment that there are societal costs to universal encryption. Look, I recognize the challenges facing our tech companies. Competitive challenges, regulatory challenges overseas, all kinds of challenges. I recognize the benefits of encryption, but I think fair-minded people also have to recognize the costs associated with that. And I read this letter and I think, “Either these folks don’t see what I see or they’re not fair-minded.” And either one of those things is depressing to me. So I’ve just got to continue to have the conversation.
First of all, it's kind of hilarious for the FBI director to be arguing that the people who signed that letter haven't done a cost-benefit analysis, since we've noted that the intelligence and law enforcement communities almost never do such an analysis. They always insist "more surveillance" must be better, without considering the costs involved.
And then there's this, showing that Comey still doesn't understand the letter at all:
We’ve got to have a conversation long before the logic of strong encryption takes us to that place. And smart people, reasonable people will disagree mightily. Technical people will say it’s too hard. My reaction to that is: Really? Too hard? Too hard for the people we have in this country to figure something out? I’m not that pessimistic. I think we ought to have a conversation.
Hey, Comey! No one is saying it's "too hard." They're saying it's IMPOSSIBLE to do this without weakening everyone's security. Impossible. It's not a "hard" problem, it's an impossible problem. Because if you weaken security to let the FBI in, by definition you are weakening the security to let others in as well. That's the point that was being made.
And this is important. For all of the ridiculous claims by Comey and others that we need to "have a conversation" on this, we do not. A conversation is counterproductive. All of these people can and should be working on systems to make us all more safe and secure. But if they have to keep explaining to ignorant folks like Comey why this is a bad idea, then they are taken away from making us safer. You can have a discussion over things that are hard. But there is no point in having a discussion over things that are impossible.
We already posted about the new DOJ Inspector General report analyzing the FBI's use of the PATRIOT Act's Section 215 "business records" collection. Among the various things in the unredacted sections of the report is yet another claim (following on many similar statements) that the Section 215 program has never been shown to actually be that useful:
That wasn't all that interesting on its own, given how many times others (including many with the security clearance and access to know) have made the same point. But what's incredibly troubling is that the very same day that this report came out, Attorney General Loretta Lynch was making the rounds claiming the exact opposite.
Meanwhile, today Attorney General Loretta Lynch weighed in on the debate in Congress, claiming the exact opposite. She was quoted by CBS News as saying that if Patriot Act Section 215 expires: “[W]e lose important tools. I think that we lose the ability to intercept these communications, which have proven very important in cases that we have built in the past.” (emphasis mine)
So to sum up: the Justice Department’s own Inspector General said information collected under Section 215 did not lead to "any major case developments,” but the Attorney General said that Section 215 has “proven very important in cases that we have built.” Both statements cannot be true.
And, remember, the Attorney General is the head of the Justice Department. It certainly sounds like she's either woefully uninformed or outright lying. She is new at the job, but not so new that she wouldn't know these basic facts.
And, in some ways it gets even worse. As Patrick Eddington points out, Lynch appears to be directly calling for the continuation of a program that the 2nd Circuit appeals court just declared illegal. Doesn't that raise some fairly important questions, when you have the Attorney General -- the person officially in charge of enforcing our laws insisting that we need to continue an illegal program?
Well, well. A few days ago, the Verge got a huge scoop in the form of Sony's original US contract with Spotify, leading to a ton of discussion (mostly focused around the huge "advances" that Spotify guaranteed Sony, and the related question of whether or not Sony actually passes those advances on to musicians). The debate raged on for a couple days, and late last night, Paul Resnikoff over at Digital Music News noticed something interesting: the original contract was now missing, and The Verge's own website claims it's due to a copyright threat from Sony:
On Twitter, the Verge's editor-in-chief Nilay Patel admits that a threat from Sony forced the site to take down the contract.
In fact, he claims that Sony actually sentfour cease and desist letters claiming copyright infringement:
Earlier this week, Resnikoff reported that Spotify was apparently putting pressure on publications not to report on the contract, including "dangling threats" to scare them off. However, Spotify would have no copyright argument here. As the Verge report (still) notes, the contract was "written by Sony Music," meaning that if there's any copyright claim (we'll get to that shortly), it's held by Sony Music.
And we all know damn well that Sony loves to throw around bogus copyright threats. Even we have received one concerning reporting on Sony Pictures' leaked emails. Sony has threatened lots of other publications as well, and even Twitter over such leaks. And, Resnikoff notes that Sony Music threatened his site for an April Fool's joke, pretending to reveal internal emails concerning Sony's equity stake in Spotify.
So here's the question: why did Vox (the owner of the Verge) cave? For a modern media operation, it must have lawyers that know the threat is bullshit.
Yes, it is possible to get a copyright over the contract, but it's likely to be a pretty thin copyright, because the amount of "creative" work in the contract is minimal. Much of the contract is likely boilerplate. But, more importantly, the Verge has a slam dunk fair use case here. They're providing commentary on the contract. It's a matter of public interest. They're not "selling" the contract and they're certainly not harming the "market" for the contract itself, of which there is none.
We actually dealt with this issue once before -- two years ago when Apple pulled the same bullshit move to pull down a contract that Resnikoff himself had posted on Digital Music News. Somewhat ironically, the first party to report on that... was the Verge! And in their report, they quoted law professor Eric Goldman noting the ridiculousness of it:
"It's just kind of a jerk move. We all know what's happening here. Apple doesn't care about protecting the copyright of contracts. It's using copyright to try and suppress information that it doesn't want made public."
Sounds about right when applied to Sony in this case. Besides, all this is really doing is drawing much more attention (yet again) to the contract, on a story that had already started to die down.
Last year, we wrote about two key "corruption indicators" in city and state governments: they ban direct sales models to block Tesla from competing with traditional car companies and they ban Uber/Lyft style car hailing services to protect local taxi incumbents.
It appears that Texas is really trying to wave its anti-innovation flag as strongly as possible as the legislature down there failed to move forward on two key bills that would have made it possible for Tesla to do direct sales in Texas... and to stop local cities from blocking Uber & Lyft to favor taxi incumbents.
A Texas House deadline has come and gone, killing many top-priority bills for both parties — among them one that would allow Tesla-backed direct car sales and another to regulate ride-hailing companies. Midnight Thursday was the last chance for House bills to win initial, full-chamber approval. Since any proposal can be tacked onto other bills as amendments, no measure is completely dead until the legislative session ends June 1. But even with such resurrections, actually becoming state law now gets far tougher.
And, of course, this comes just after the FTC warned Michigan for its blocking of direct sales of cars like Tesla.
The failure to allow direct sales is a much bigger deal than the car hailing stuff, but both are bad. And the response from Texas politicians is really quite disgusting:
Rep. Senfronia Thompson — one of the House's most senior members currently serving her 20th term — said it was the company's own fault that the bill didn't pass.
"I can appreciate Tesla wanting to sell cars, but I think it would have been wiser if Mr. Tesla had sat down with the car dealers first," she said.
Really? In what world is it considered appropriate to force an innovative company that wants to go direct to consumers to first "sit down" with the gatekeepers that are trying to block them? "I can appreciate Amazon wanting to sell books to people, but I think it would have been wiser if Mr. Amazon had sat down with retail store builders first." "I can appreciate YouTube wanting to let anyone upload videos, but I think it would have been wiser if Mr. YouTube had sat down with TV producers first."
That's not how innovation works. At all. And thus, we can cross Texas off the list of innovative states.
The law around car hailing is not quite as big of a deal, but without the new Texas law, various cities within Texas can still create their own rules that would effectively make it impossible for such services to operate there. There are states that create spaces for innovation -- and then there are those that protect incumbents. Texas appears to be making it clear that it's the latter. If I were a startup in Austin, I might consider finding somewhere else to operate.
As the Senate does its little song and dance today over surveillance reform, kudos to the Wall Street Journal's editorial board for producing what has to be one of the most ridiculous opinion pieces on this debate to date. It's called The Anti-Surveillance Rush, and its main argument is that the Senate shouldn't be "rushing" through this debate, and that it should instead simply do a clean extension of section 215 of the PATRIOT Act to allow for further debate. This is wrong and it's clueless. The WSJ editorial board can be nutty at times, but the level of cluelenssness displayed here really takes it to another level. Let's dig in.
The Senate is supposed to be the cooling saucer for political passions, but surveillance opponents want it to be a slip ’n slide instead: They want the Senate to accept wholesale revisions to counterterrorism programs with little if any debate before Congress skips town for vacation at the end of the week. We hope Senators show more respect for their institutional dignity.
Little if any debate? Are they serious? This round of debate started almost exactly two years ago when Ed Snowden revealed the extent of the phone metadata collection program under Section 215. There have been numerous hearings, tons of public debate, articles, books, movies and more discussing this very topic. To pretend that this is a last minute debate is simply ridiculous. As for the claim that these are "wholesale revisions," most everyone admits that the changes are really not that major, but rather a small step towards actually respecting the 4th Amendment, but without any real changes to overall capabilities.
The House jammed the Senate last week with a bill that passed 338-88 and remakes intelligence collection of metadata phone records. House leaders of both parties know that floor time is limited and that the legal authorities for metadata, roving wiretaps for people who move across the U.S. border, and several other programs lapse in June. So their ultimatum is either to wave through their bill or undermine national security.
Almost none of that is true. After all, there was a similar debate last year on a nearly identical bill, and there has been widespread discussion about this for months. The fact that Section 215 sunsets next week has been known since the last renewal, and all of Congress has had years to work on a new solution.
In fact, let's compare this to another piece from the WSJ editorial board two years ago, in which it celebrated Congress's decision to renew the FISA Amendments Act (which houses a similar surveillance program) with little to no debate at all. There, the WSJ was excited:
With scarcely any notice, much less controversy, they did at least preserve one of the country's most important post-9/11 antiterror tools.
In September the House passed the "clean" five-year extension that the White House desired, 301 to 118. The Senate reserved all of a single day of debate on the floor to coincide with the post-Christmas fiscal cliff chaos, and a broad bipartisan majority defeated multiple amendments from the civil liberties absolutists on the left and right such as Kentucky's Rand Paul.
The bill was then whistled through 73-23 and Mr. Obama signed it Sunday night with no public comment other than a one-sentence statement from the White House press secretary indicating that the bill had been signed. Meanwhile, the press corps was wigging out about Facebook's privacy settings.
So, as long as it's granting more power to spy on us, the WSJ is against public debate. When it's about limiting such spying, the WSJ whines about how there's not enough debate. Fascinating.
Back in 2012, the editorial board was so positive that the spying was overblown that it mocked those who had worried about these programs (this was just months before the Snowden revelations:
That would be wiretapping, which you may recall liberals portrayed during the George W. Bush era as an illegal and unconstitutional license for co-President Dick Cheney and his spymasters to bug the bedrooms of all U.S. citizens. But now Washington has renewed the 2008 amendments to the Foreign Intelligence Surveillance Act that were due to expire at the end of 2012, with no substantive changes and none of the pseudo-apoplexy that prevailed during the Bush Presidency.
Funny how it's tough to have "apoplexy" when all the details are kept secret. Of course, now we know how much spying was being done, Congress actually wants to fix it, and the WSJ can't have that.
Back to the present article. The House did not "jam" this to the Senate. This issue has been known about and discussed for months. And, basically no one -- not even within the intelligence community -- is arguing that this "undermines national security."
The better outcome would be a clean, temporary extension that allows the Senate sufficient time to consider the details and understand what it is doing.
Bullshit. This has been debated for two years. Everyone -- especially the Senate -- has known about the June 1st sunset since it was put in place during the last renewal. And they still waited until the last minute to do this song and dance. A temporary extension will mean that they'll wait until the last minute of that extension for a similar song and dance and the WSJ can publish another clueless editorial saying we need more time for debate again.
Who do they think they're fooling?
The USA Freedom Act, which the House Intelligence and Judiciary Committees negotiated with the White House, is a panicky political response to the Edward Snowden-inspired frenzy over surveillance
The Snowden leak on this program happened almost exactly two years ago. The USA Freedom Act has been discussed and debated for well over a year in various formats. How is this a "panicky political response"?
Supposedly government spooks are bugging your bedroom and reading your emails—though they aren’t—and politicians want to be able to say they did something about it.
Strawman alert. No one is actually claiming that. They're claiming -- truthfully -- that the NSA is engaged in bulk collection of phone records, a program that two separate review boards by the President found illegal and unconstitutional and the important Second Circuit appeals court found illegal last week as well. Does the WSJ editorial board believe its readers are too stupid to know this?
Yet bulk call log searches are an important analytic tool that aid terror investigations and prevent attacks.
This is simply not true. As has been pointed out multiple times, the intelligence community could not provide a single example where that was the case. The only example presented was how it was used to track down a cab driver in American who sent some money to a questionable group in Somalia. That's it. There is no evidence that it was important in any terror investigations or in preventing a single attack.
From there, the WSJ whines that since the USA Freedom Act leaves data collection to the telcos, all hell is going to break loose:
In the best scenario, this untested leap to replace a framework that has been useful in the 14 years since 9/11 will make intelligence more time-consuming and less efficient. Speed and agility matter in uncovering plots or safe houses. And how multiple databases that are likely to be less secure than the NSA’s will protect privacy is anyone’s guess.
The "less secure" line is a bullshit red herring -- because the telcos already keep this data, so nothing changes there. It's just that the data is not also being held by the NSA. Second, the idea that this new process is somehow more time-consuming and less efficient doesn't have any actual support. Telcos have already shown to be all too willing to work closely with intelligence agencies to give them near real-time access when necessary. That's not suddenly going to go away.
But the House bill also declines to define how long telecoms must retain metadata. A year, a month? Who knows? If Washington’s relationship with Silicon Valley grows more adversarial, service providers may conclude it is in their commercial interests to erase these records more or less in real time. In that case the NSA won’t be able to look for a needle because there won’t be a haystack.
First, this seems to confuse "telcos" with "Silicon Valley" when they're very different things. Second, this conflates a bunch of different issues and suggests near total ignorance on the part of whoever wrote this editorial. Many of the records that the NSA wants are the kinds of business records that these companies need to hold onto for some period of time, so the fear of "no logs" is kind of meaningless. But, even if it was true that companies started to flush their logs, so what? There is no requirement that all of our activities be tracked. Law enforcement made due in the past when not everyone was automatically tracked all the time. They can do so again.
Among the GOP presidential field, Marco Rubio has come out in favor of metadata, while Chris Christie gave a thoughtful speech Monday on intelligence and foreign affairs in Portsmouth, New Hampshire.
Thoughtful? The one where he says all civil liberties fears were "baloney" coming from "extremists"? Yeah, that wasn't thoughtful. That was bombastic bullshit from a surveillance state apologist. Remember, this program was just declared illegal (with a strong hint of not being Constitutional) by the 2nd Circuit appeals court. And the WSJ is defending it.
A rush to the exits is no way to conduct U.S. intelligence, or the affairs of Congress. If a majority of Senators really do want to disarm in the terror war, then they should defend their positions, listen to the other side, and be accountable for the results. Cramming such a major policy into law before a holiday weekend is a failure to treat national security with the seriousness it deserves.
No one is disarming anyone. They're just making sure that the NSA can't unconstitutionally scoop up every bit of metadata under what is an illegal general warrant. And there is no rush. Again, this debate has been two years in the making (or longer if people had actually listened to Senator Wyden). And if this debate deserves seriousness, it should at least start with the WSJ not totally misrepresenting the whole thing.
Every so often there are lawsuits where we note that both parties have a long history of doing the sort of thing that gets them written about on Techdirt in less-than-positive ways. Here's another one of those situations. Voltage Pictures is a well known copyright trolling firm, which is its side business along with producing some highly acclaimed movies. Voltage has gone on quite a rampage trying to shake down people all around the globe. The company's boss, Nicolas Chartier, tends to take a rather black and white view of the situation. Back when he first started shaking people down, someone sent him a friendly email noting (accurately) that going the copyright trolling route might hurt Voltage's reputation. Rather than considering the message, Chartier turned around and called the helpful emailer a "moron" and a "thief." This is someone who has quite a strong view on what he believes is his "property."
In the movie — described as Transformers versus Adaptation and Godzilla meets Being John Malkovich; Hathaway will play Gloria, an ordinary woman who, after losing her job and her fiancé, decides to leave her life in New York to move back to her hometown.
But when news reports surface that a giant lizard is destroying the city of Tokyo, Gloria gradually comes to realize that she is strangely connected to these far-off events via the power of her mind. In order to prevent further destruction, Gloria needs to determine why her seemingly insignificant existence has such a colossal effect on the fate of the world.
Right. So, you can see why Toho might be mad, but Toho also has a long and storied history of suing basically anyone they think might be doing anything even loosely connected to Godzilla. It once went after Comcast for having a godzilla-like monster in a marketing campaign and a small mobile app firm for creating a silly game called Fingerzilla.
So... yeah. Two big firms with long histories of legal bullying/threatening/suing people that they feel are unfairly "stealing" their property, when both take a very ridiculous black and white view of what kind of "property" is being "stolen." Toho even makes note of Voltage's copyright troll history in the very opening of the lawsuit:
Godzilla is one of the most iconic fictional characters in the history of motion pictures. Toho Co., Ltd., the copyright owner of the Godzilla character and franchise of films, brings this lawsuit because defendants are brazenly producing, advertising, and selling an unauthorized Godzilla film of their own. There is nothing subtle about defendants’ conduct. They are expressly informing the entertainment community that they are making a Godzilla film and are using the Godzilla trademark and images of Toho’s protected character to generate interest in and to obtain financing for their project. That anyone would engage in such blatant infringement of another’s intellectual property is wrong enough. That defendants, who are known for zealously protecting their own copyrights, would do so is outrageous in the extreme
At the very least, Toho has a point that Voltage pictures is clearly making use of Godzilla in its description and promotion for the movie. From the lawsuit, here is the promotional email that Voltage itself sent out, which includes an image of Godzilla (Toho claims it's taken directly from a publicity photo of last year's Godzilla movie) and mentions Godzilla.
Toho further notes that the email sent around "director's notes" for the project which include a bunch of historical images of different representations of Godzilla.
The Director’s Notes also make clear that Defendants have not only taken the Godzilla Character as their own, but that they also intend to use the Godzilla Character in precisely the same way that Toho used the character in its initial film – attacking Tokyo. As stated therein, “[W]e need scenes with the monsters crushing Tokyo. .
Not only that, but Toho notes that, last year, the director in question, Nacho Vigalondo, stated that he's absolutely planning to make a "cheap" Godzilla film:
The script I finished and want to get financing for is a twist on the kaiju eiga genre, the Godzilla genre. It’s going to be the cheapest Godzilla movie ever, I promise. It’s going to be a serious Godzilla movie but I’ve got an idea that’s going to make it so cheap that you will feel betrayed. You’re going to be so frustrated by it, it’s not even possible.
The way I wrote the movie – and I don’t want to explain too much – I found a way that is honest and logical to make Godzilla in a costume, destroying cities, models all the time. I wrote the movie in a way that the story has a twist so it makes sense to do Godzilla this way and I’m going to try to be the guy inside the costume because I love filmmaking to the core and I’m a film lover, one of dreams is not to direct a Godzilla movie but to be inside the costume and destroy the cities. I want to be the guy in the costume.
When I first saw the headlines about this, I thought it might be another case of Toho stretching its claims of infringement, as it has done in the past -- and was prepared to argue that, even in all its copyright trolling insanity, that Voltage Pictures should have the right to make its own type of monster movie. In fact, we've defended Voltage against ridiculous legal attacks in the past.
And, further, I think that it's ridiculous that courts have decided that using similar characters in totally different settings is copyright infringement, as it seems to go against the idea/expression dichotomy that is supposed to be a core tenet of copyright law. But, it's still kind of jarring just how blatant Voltage appears to be in just making use of Godzilla in the pitch for this movie without a license. And for a company whose boss argues that merely saying that his copyright trolling plan could be bad for business makes you a "thief," I think it's at least fair to argue that Nicolas Chartier is one hell of a hypocrite.
from the can-beings-of-light-cure-a-streisand? dept
A couple weeks ago, we wrote about faith healer Adam Miller's monumentally stupid and ridiculous SLAPP lawsuit against Stephanie Guttormson because she posted a video that was critical of a video Miller put together promoting his faith healing nonsense. We dissected how weak and laughable the lawsuit was -- and it's possible that Miller and his lawyer have now realized this, as they've dismissed the lawsuit, but without prejudice, meaning he could potentially file it again in the future. Given that (and the fact that Guttormson has raised a bunch of money in a crowdfunding campaign), I wonder if she'll now file for a declaratory judgment of non-infringement... Update: Guttormson notes that while she could go after him, she's going to let the matter drop.
Either way, Miller said he filed the lawsuit because he felt it was unfair that people were seeing this video that Guttormson put together:
When he filed the original lawsuit, it noted that the video had been viewed approximately 1,500 times since it first was posted back in December of last year. So, 1,500 views in a bit over four months. In the two weeks since the lawsuit was filed, it's now up to about 50,000 views. Nice work, Adam.
Separately, if you do a Google search on "adam miller healer" (as he likes to be known), it's full of stories about how he's suing Guttmorson and mocking his faith healing nonsense. One of these days people are going to understand the nature of the Streisand Effect, but apparently that day is not today.
Secretary of State John Kerry gave a speech in South Korea this week about the importance of an "open and secure internet." Of course, that sounds a little hypocritical coming from the very same government that is actively working to undermine encryption, so it seems worth contrasting it with comments made from Secretary of Homeland Security Jeh Johnson, in which he whines about a secure internet making things better for terrorists. Kerry's speech is mostly good (with some caveats that we'll get to), in talking about the importance of not freaking out over moral panics and FUD:
Freedom. The United States believes strongly in freedom – in freedom of expression, freedom of association, freedom of choice. But particularly, this is important with respect to freedom of expression, and you believe in that freedom of expression here in Korea. We want that right for ourselves and we want that right for others even if we don’t agree always with the views that others express. We understand that freedom of expression is not a license to incite imminent violence. It’s not a license to commit fraud. It’s not a license to indulge in libel, or sexually exploit children. No. But we do know that some governments will use any excuse that they can find to silence their critics and that those governments have responded to the rise of the internet by stepping up their own efforts to control what people read, see, write, and say.
This is truly a point of separation in our era – now, in the 21st century. It’s a point of separation between governments that want the internet to serve their citizens and those who seek to use or restrict access to the internet in order to control their citizens.
That sounds good... until you compare it to Kerry's cabinet partner Johnson, who was doing exactly what Kerry said governments should not do:
“We are concerned that with deeper and deeper encryption, the demands of the marketplace for greater cybersecurity, deeper encryption in basic communications,” Johnson said on MSNBC’s “Morning Joe” on Friday. “It is making it harder for the FBI and state and local law enforcement to track crime, to track potential terrorist activity.”
Let's not even bother with the question of just what is "deeper and deeper encryption" or why we should have someone who clearly doesn't understand encryption in charge of Homeland Security. But it seems clear that Kerry and Johnson's views here are quite different. Kerry is saying that "governments will use any excuse they can" including bogus claims about "terrorism" and "criminals" -- and yet that's exactly what Johnson is doing.
Of course, later in his speech, Kerry starts enumerating a similar list for any country to use, should they want to control speech as well:
First, no country should conduct or knowingly support online activity that intentionally damages or impedes the use of another country’s critical infrastructure. Second, no country should seek either to prevent emergency teams from responding to a cybersecurity incident, or allow its own teams to cause harm. Third, no country should conduct or support cyber-enabled theft of intellectual property, trade secrets, or other confidential business information for commercial gain. Fourth, every country should mitigate malicious cyber activity emanating from its soil, and they should do so in a transparent, accountable and cooperative way. And fifth, every country should do what it can to help states that are victimized by a cyberattack.
In other words, here are the guidelines for any other countries to attack freedom of expression and openness online. Just claim it violates one of the list above and the US can't complain. We've certainly seen it happen before. DDoS attacks launched based on claims that it's in "response" to a hacking attempt. Or Russia cracking down on dissidents by arguing that they must be infringing on copyright law.
Kerry's statement is the kind of thing that very few people would argue against. It seems obvious: of course we don't want attacks on critical infrastructure (though, the government likes to define "critical infrastructure" in a manner that best serves its own needs), or corporate espionage. But Kerry defines things in such a broad manner (including the bogus use of "theft" for "intellectual property") that it leaves the US wide open to abuse. Kerry was right at the beginning in arguing that governments will use any means necessary, so why give them this kind of opening? As we've seen for years, when the US beat up on China for not respecting our patents, China eventually "turned things around" by focusing on figuring out ways to use patents to block American companies from beating local Chinese firms in its market.
This isn't arguing that cyberattacks or infringement of intellectual property are good things -- just that giving foreign nations a "open internet, but..." allows them to make use of the "but..." portion to do all sorts of horrible things that suppress dissent and free expression, and then argue that they had to do it, because the US told them to do so. And, of course, it's not just foreign governments, but as Johnson's comments make clear, those at home as well. None of this means to encourage bad or illegal behavior online -- but to recognize that pushing for internet freedom means actually pushing for internet freedom, which is difficult to do when you immediately encumber it with your own set of conditions, and your colleagues are undermining the very foundation of a secure internet.
Last fall, we wrote about a troubling decision in a district court that ruled that the NAACP could use trademark law to censor a vocal critic who had written a mocking online article calling the NAACP the "National Association for the Abortion of Colored People" as part of an anti-abortion campaign. The NAACP sent the organization that posted the story, the Radiance Foundation (and the author/owner of Radiance, Ryan Bomberger), a legal threat letter. In response, Radiance filed for declaratory judgment that it did not infringe on the NAACP's trademarks, and the NAACP countersued arguing trademark infringement. The lower court sided with the NAACP, and barred Bomberger/Radiance from using the fake NAACP name to mock the group.
No matter how you feel about the NAACP or abortion, the idea that it would use trademark law to silence a critic is highly questionable. Remember, the purpose of trademark law is to protect consumers from confusion in commercial settings. But, as with copyright, many seek to use it as a crude censorship tool -- and here, it worked. At first. Thankfully, the Fourth Circuit has overturned that ruling noting the total lack of actual trademark infringing, and hinting at (though leaving aside) the serious First Amendment concerns. The court here notes that to interpret trademark law the way the NAACP requests would lead to plenty of suppressed speech that has nothing to do with the true purpose of trademark law:
The NAACP urges us to give this
requirement a “broad construction,” Appellee’s Br. at 18, but
that construction would expose to liability a wide array of
noncommercial expressive and charitable activities. Such an
interpretation would push the Lanham Act close against a First
Amendment wall, which is incompatible with the statute’s purpose
and stretches the text beyond its breaking point. We decline to
reach so far.
From there, the court rightly worries about what would happen if it accepted the NAACP's interpretation of trademark law:
The danger of allowing the “in connection with” element to
suck in speech on political and social issues through some
strained or tangential association with a commercial or
transactional activity should thus be evident. Courts have
uniformly understood that imposing liability under the Lanham
Act for such speech is rife with the First Amendment problems.
The court then details where the lower court went wrong. The lower court claimed that because Radiance sought donations in its sidebar, that made the article "use in commerce." But the appeals court points out that this is ridiculous and would "neuter the First Amendment."
That ruling, however, neuters the First
Suffice it to say that the specific use of the
marks at issue here was too attenuated from the donation solicitation and the billboard campaign to support Lanham Act
liability. Although present on the article page, the Donate
button was off to the side and did not itself use the NAACP’s
marks in any way. The billboard campaign was displayed on a
different page altogether. A visitor likely would not perceive
the use of the NAACP’s marks in the article as being in
connection with those transactional components of the website.
It is important not to lose perspective. The article was just
one piece of each Radiance website’s content, which was
comprised of articles, videos, and multimedia advocacy
materials. That the protected marks appear somewhere in the
content of a website that includes transactional components is
not alone enough to satisfy the “in connection with” element. To
say it was would come too close to an absolute rule that any
social issues commentary with any transactional component in the
neighborhood enhanced the commentator’s risk of Lanham Act
And thus, the court notes that merely writing an article that mocks the NAACP is not really "use in commerce" for the sake of trademark law. From there, the court also takes on the "likelihood of confusion" question, and finds no such likelihood exists. And, again, the court notes (correctly) that getting this test wrong could have First Amendment implications:
Indeed, criticism or parody of
a mark holder would be difficult indeed without using the mark.... Trademark protections exist neither to allow companies to
protect themselves from criticism nor to permit them to “control
language.” .... Even some amount of “actual confusion”
must still be weighed against the interest in a less fettered
marketplace of social issues speech.
And, in this case, the lower court was itself quite confused... over the basics of trademark law. First, it notes, it doesn't matter if Radiance's usage confused people into thinking that the NAACP supported abortion -- as that's not what trademark law is about:
Likewise, trademark infringement is not designed to protect
mark holders from consumer confusion about their positions on
political or social issues. The evidence of “actual confusion”
relied on by the district court consisted of phone calls to the
NAACP by people who took issue with the NAACP supporting
abortion. Radiance Found....
“[I]ndignation is not confusion,” ... at least not as pertains to trademark infringement, and
at best the calls demonstrated confusion as to the NAACP’s
policy positions rather than any good or service. Policy stances
are neither goods nor services, though the means of conveying
them may be.
And from there we get to the key point. If the NAACP's position here were accepted, it would create serious problems that would come back around to likely haunt the NAACP itself:
Political discourse is the grist of the mill in the
marketplace of ideas. It may be that the only -- but also the
best -- remedy available to a trademark holder is to engage in
responsive speech. For even where a speaker lies, “more accurate
information will normally counteract the lie.”... The NAACP is a renowned civil rights organization
with numerous mechanisms for connecting with its membership and
the public. Organizations of its size and stature possess
megaphones all their own. “Actual confusion” as to a nonprofit’s
mission, tenets, and beliefs is commonplace, but that
does not transform the Lanham Act into an instrument for
chilling or silencing the speech of those who disagree with or
misunderstand a mark holder’s positions or views.
On top of that, the court is perplexed as to how the lower court could possibly find a likelihood of confusion as to the source of the mocking article, considering that it was clearly mocking the NAACP, rather than coming from it:
It is not immediately apparent how someone would confuse an
article which is strongly critical of an organization with the
organization itself. The mark in this case was used primarily to
identify the NAACP as the object of Radiance’s criticism,
resembling a descriptive or nominative fair use albeit by
employing a modified version of the name. Admittedly, the
attention span on the Internet may not be long, but the briefest
familiarity with the article would quickly create the impression
the author was no friend of the NAACP. Indeed, in just the first
two lines, the piece refers to the NAACP as an “out-of-touch
liberal organization” and accuses its Image Awards of honoring
“black imagery churned out by often racist, anti-Christian,
perpetually sexist, violent and pornographic Hollywood.”
In short, being mean doesn't mean a likelihood of confusion:
Intemperate and worse as the commentary is, holding it
actionable risks creating the paradox that criticism equals
confusion, thereby permitting companies to shield themselves
from adverse assessments.
It's disappointing that an organization that so relies on free speech decided to attack it in this case. While the court avoids having to take a First Amendment position, it's clear that the First Amendment is lingering behind the entire ruling:
Trademark law in general and dilution in particular are not
proper vehicles for combatting speech with which one does not
agree. Trademarks do not give their holders under the rubric of
dilution the rights to stymie criticism. Criticism of large and
powerful entities in particular is vital to the democratic
function. Under appellee’s view, many social commentators and
websites would find themselves victims of litigation aimed at
silencing or altering their message, because, as noted, “it is
often virtually impossible to refer to a particular product for
purposes of comparison, criticism, point of reference or any
other such purpose without using the mark.” ...The article in this case was harsh. But that did not
forfeit its author’s First Amendment liberties. The most
scathing speech and the most disputable commentary are also the
ones most likely to draw their intended targets’ ire and thereby
attract Lanham Act litigation. It is for this reason that law
does not leave such speech without protection.
It's only unfortunate that the case even had to go this far, and that the district court got it so wrong the first time around.
A few years ago, Ken "Popehat" White put together a very important and useful post that completely dismantled the old trope that "free speech doesn't mean you can shout fire in a crowded theater." That line, of course, is so frequently used by those who seek to eliminate freedom of expression, and it's problematic beyond just for that reason: it's also wrong. The Popehat post is a really useful way to respond to anyone who makes that argument. A few months ago, the free speech group FIRE (yes the name is important in this context) put up a similarly useful post. And, as we mentioned last week, just recently Andy Sellars put together a great list of all the many times you actually can shout fire in a crowded theater (it's a long list).
Either way, while the "fire in a crowded theater" may be the most overused anti-free speech trope, it is hardly the only one. Thus, Ken White is back with another important post detailing that and many other such tropes, especially as they're used in the media. And, importantly, he presents examples of them each being used, explains why they're wrong, and suggests how to counter the arguments. You should read the whole thing, but here are just a couple of the tropes listed:
Trope One: "Hate Speech"
Example: "hate speech is excluded from protection. dont [sic] just say you love the constitution . . . read it." CNN Anchor Chris Cuomo, on Twitter, February 6, 2015. Example: "I do not know if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know—hope?—that most Americans would." Edward Schumacher-Matos, NPR, February 6, 2015.
In the United States, "hate speech" is an argumentative rhetorical category, not a legal one.
"Hate speech" means many things to many Americans. There's no widely accepted legal definition in American law. More importantly, as Professor Eugene Volokh explains conclusively, there is no "hate speech" exception to the First Amendment. Americans are free to impose social consequences on ugly speech, but the government is not free to impose official sanctions upon it. In other words, even if the phrase "hate speech" had a recognized legal definition, it would still not carry legal consequences.
This is not a close or ambiguous question of law.
When the media frames a free speech story as an inquiry into whether something is "hate speech," it's asking a question of morals or taste poorly disguised as a question of law. It's the equivalent of asking "is this speech rude?"
Trope Five: "Balancing free speech and [social value]"
Example: "The incident raised heated questions about race relations — and how to balance free speech with protection from discrimination and harassment." Washington Post, March 3, 2015.
The media's love of "balancing" stories is a variation on its love of "line between" stories, only more misleading.
The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document "prescribing limits, and declaring that those limits may be passed at pleasure." Marbury v. Madison, 1 Cranch 137, 178 (1803).
Courts occasionally engage in something that faintly resembles "balancing" when they apply different levels of scrutiny to speech restrictions. For instance, the Supreme Court said that Congress could prohibit the burning of draft cards because the government had a substantial interest in the draft system and the law was narrowly addressed to that legitimate interest, and aimed only at the non-communicative element of the conduct (destroying the card) and not the communicative aspect (doing so to protest the draft). But that analysis doesn't purport to assign a value to the speech. It considers only whether the government has a sufficiently compelling interest in its goal. Moreover, there's very good reason to doubt that the Supreme Court would ever approve a speech restriction that is content-based — that is, premised on dislike of the speech — no matter how strong the government's interest. The Court has repeatedly rejected calls to do just that, and a focus on the content of disfavored speech (when it's not within an established exception) is almost certainly fatal to the proposed restriction.
White tells me he hopes to keep this post updated with new tropes, new examples and new explanations, so help out by heading over to his site and submitting more examples of tropes, and let's help Popehat create the definitive list of such tropes that can then be used to shame the media away from continuing to use these tropes every time they feel like chopping away at the First Amendment.
We've had a bunch of stories lately about the increase in militarized police and what a ridiculous and dangerous idea it is. As we've discussed in the past, much of this came from the Defense Department and its 1033 program, which takes decommissioned military equipment and gives it to police. This results in bizarre situations like the LA School District police having a bunch of grenade launchers. The program is somewhat infamous for its lack of rules, transparency and oversight.
So it was great to see President Obama this week issue an executive order that greatly scales back the program. You'll be happy to know that no future LA School Districts will get grenade launchers (though, to be fair, after bad publicity, the school district did give the ones it had received back):
Grenade launchers, bayonets, tracked armored vehicles, weaponized aircraft and vehicles, firearms and ammunition of .50-caliber or higher will no longer be provided to state and local police agencies by the federal government under Obama's order.
In addition to the prohibitions in his order, Obama also is placing a longer list of military equipment under tighter control, including wheeled armored vehicles like Humvees, manned aircraft, drones, specialized firearms, explosives, battering rams and riot batons, helmets and shields. Starting in October, police will have to get approval from their city council, mayor or some other local governing body to obtain such equipment, provide a persuasive explanation of why it is needed and have more training and data collection on its use.
For police departments that already have the now "banned" items, they will have to be returned. You'll notice that one of the biggest symbols that people point to of overly-militarized police -- the MRAP -- is not included in the banned list. There are some other limitations here as well. And a big one, as the guy who literally wrote the book on militarized police, Radley Balko, notes: the 1033 program is no longer the biggest supplier of such things to police:
Since 2003, for example, the Department of Homeland Security has been giving grants to police departments around the country to purchase new military-grade gear. That program now dwarfs the 1033 Program. It has also given rise to a cottage industry of companies that build gear in exchange for those DHS checks. Those companies now have a significant lobbying presence in Washington. I suspect that presence will now only grow stronger. So if the Obama administration really wants to roll back police militarization, this program needs reform, too.
Still, as Balko also notes, there is still a lot of importance in the symbolism of the move made this week:
From what has been reported, this new initiative addresses these concerns as well and seems to indicate that the Obama administration understands and appreciates that the symbolic component of police militarization is just as important as the practical component. I’m uncomfortable with any military vehicles going to local police. Free societies tend to draw a clear line between cops and soldiers. Blurring that line indicates a failure to appreciate its importance. But this initiative is moving toward reestablishing that line, not moving it or further blurring it. Federal programs are pretty difficult to disband, so a blanket ban was probably never in the cards. Conditioning the acceptance of this gear on increased transparency, accountability and a move toward community policing seems like a good compromise. We’ll either get less use of this military-issued equipment, or we’ll get more and better information about how it’s used. Either outcome is progress.
Balko gives some additional (fantastic) background on why President Obama made the announcement in Camden, New Jersey -- a city that had serious problems between the local police and the community, and basically figured out a way to restart from scratch (closing down the local police force and letting the county take over) while creating a much stronger community tie between police and the community, rather than the all-too-common adversarial relationship that has grown up in many places (which is often made worse by the militarization).
Not surprisingly... there are already loud complaints from police representatives, who complain (misleadingly) about how this move puts them all in danger:
The nation’s largest police union is fighting back against a White House plan to restrict local police forces’ ability to acquire military-style gear, accusing President Barack Obama’s task force of politicizing officers’ safety.
Other police are hilariously arguing that this move will actually increase military presence, because police without this equipment will no longer be able to contain crowds, and thus the National Guard will have to be called in more frequently. Of course, all of that seems to assume that violent protests are the norm, rather than a semi-rare occurrence -- and, it also ignores how militarized police often seem to exacerbate such situations, rather than calm them down.
This move doesn't end the militarization of police, but it does take a step in the right direction. As Balko notes, if we believe in a free society, we shouldn't have militarized police. This move is an important step up.
The whole saga over Hillary Clinton's emails is getting more and more bizarre. Last night, FOIA ninja (it beats the "FOIA terrorist" label some have given him), Jason Leopold revealed that in his FOIA lawsuit over the release of the emails, the State Department was claiming that it would take at least until January of 2016 to release the piles and piles of emails that Clinton gave them... in printed form. (In case you were living under a rock, Clinton used her own personal email server while Secretary of State, and only just recently handed over copies of the emails to the State Department -- after her own staff vetted them -- and then nuked the entire server).
The State Department went into great detail [pdf] explaining why it's going to take so damn long. In large part, it's because Clinton handed them all over in printed form, rather than digital form, and the State Department had to staff up just to go through all the emails.
As noted above, the Department received the 55,000 pages in paper form. The
documents were provided in twelve bankers’ boxes (approximately 24” x 15” x 10 ¼” in size)
with labels placed on the outside of the boxes that corresponded approximately to the timeframe
of the documents within a given box. The Department initially performed tasks necessary to
organize the records. This included foldering, boxing, and creating a box level inventory of the
records. In consultation with the National Archives and Records Administration, the Department
also conducted a page-by-page review of the documents to identify, designate, mark, and
inventory entirely personal correspondence, i.e., those documents that are not federal records,
included within the 55,000 pages.
Given the breadth and importance of the many foreign policy issues on which the
Secretary of State and the Department work, the review of these materials will likely require
consultation with a broad range of subject matter experts within the Department and other
agencies, as well as potentially with foreign governments. These records are comprised of
communications to or from the former Secretary of State, who was responsible for the overall
direction and supervision of the full range of activities of the Department, which operates in
approximately 285 locations around the globe. The Department is committed to processing the
55,000 pages as expeditiously as possible, while taking into consideration the Department’s other
The Department has taken multiple steps to facilitate its review of the 55,000
pages. It has developed an approach for addressing the review, upgraded the capabilities of the
Department’s processing software, and dedicated staff. Currently, this project is staffed fulltime
by a project manager and two case analysts, as well as nine FOIA reviewers who devote the
entirety of their time at the State Department to this effort, plus other analysts and information
technology specialists who provide collateral assistance to this review in addition to their regular
duties. The team managing this project has met daily since early April to implement and oversee
this large undertaking.
Each page of the 55,000 must be individually hand-processed in order to ensure
that all information is being captured in the scanning process. The scanning process itself
involves five steps that are time-consuming and labor-intensive. These are: (1) scanning
(inserting barcode separator sheets between each document and its associated attachments and
then scanning the documents, which includes converting them for optical character recognition
[“OCR”], and then inputting the resulting OCR-ed files into the system in batches based on
search segments); (2) scanning quality control (the scanned material is checked to ensure that
each document is scanned properly and to flag documents that need to be re-scanned); (3)
indexing (indexers review each scanned document to manually input bibliographic coding, such
as the “To,” “From,” “CC,” “BCC,” “Date Sent,” and “Subject” fields associated with that
document into the system); (4) indexing quality control (a senior indexer reviews the indexed
documents to ensure that the bibliographic coding has been properly input into the system); and,
(5) duplicate detection resolution (the computer analyzes the indexed documents to identify
possible duplicates between the document being ingested and those documents that already exist
in the system). Any possible duplicates that cannot be resolved (identified as an exact duplicate,
near duplicate, not a duplicate) by automated means are pushed forward for individual review for
manual adjudication. This process was made even more complicated by the fact that some, but
not all, of the paper records that the Department received were double-sided. It took the
Department five weeks to perform the scanning process, which was completed recently in May.
There will be further work required to load these into a searchable database, which will be
completed by mid-June.
When asked about it by reporters this morning, Clinton gave a really ridiculous answer, urging the State Department to speed up the work of releasing the emails, saying that she wanted them released:
“I have said repeatedly: I want those emails out. Nobody has a bigger interest in getting them released than I do,” she told reporters at a campaign stop in Iowa in a rare question-and-answer session. “...[A]nything that [the State Department] might do to expedite that process, I heartily support.”
You know what would have expedited the release? First, using the State Department's own email system while you were Secretary of State, so this wouldn't have even been an issue. And, second, when all of this became an issue handing over the emails in electronic form, rather than in printed form in a bunch of boxes.
Meanwhile, the judge in the case, Judge Rudolph Contreras, is not impressed. This morning he issued a minute order telling the State Department that waiting until January of next year was unacceptable, and ordering the State Department to set a renewed schedule with rolling releases every 60 days:
As stated on the record at today's status conference, Defendant shall file a notice to the Court on or before May 26, 2015, that includes the following: (1) a new production schedule for the Secretary Clinton e-mails that accounts for rolling production and updates from counsel every 60 days, (2) a proposed deadline for production of the Secretary Clinton e-mails relating to Benghazi, and (3) a proposed order that encapsulates the parties' agreement on the narrowing of Plaintiff's request concerning searches for records beyond the Secretary Clinton e-mails. SO ORDERED. Signed by Judge Rudolph Contreras
In the end, there may turn out to be nothing much of interest in all of those emails (though, of course, the fact that Clinton's own staff went through them and got rid of a bunch first will keep conspiracy theorists in business for ages), but the way that Clinton has handled this whole thing is really ridiculous. Who the hell thinks it's a good idea to print out 55,000 pages of records that were original electronic unless you're trying to hide stuff and make life difficult for those going through it?
For well over a decade, we've written about the rise of diploma mills online. These are generally unaccredited operations that effectively sell you a degree so you can pretend to be more qualified than you really are. Every few years or so, there are big stories about some semi-famous/high-level person whose degree actually came from a diploma mill. Over the weekend, the NY Times exposed a large Pakistani "software" company, Axact, for not only being behind a bunch of diploma mill websites, but also for engaging in heavy handed boiler-room-style tactics to pressure people into paying ridiculous sums of money. The NY Times report is pretty damning, highlighting how Axact has become a big name in Pakistan, but very few people actually understand how or why it's become so successful. The company has done a lot to try to hide the nature of its large diploma mill business. As the NY Times shows, a bunch of the biggest bogus diploma mill sites are really run by Axact, and feature stock imagery, videos of students/administrators who are really actors (some of whom appear in videos for multiple such universities) and websites and names that make them appear kinda sorta like well-known universities. For example, some of the fake sites named are "Columbiana" and "Barkley University."
The whole NY Times article is absolutely worth reading, but here's a snippet demonstrating what's going on here:
Many sites link to the same fictitious accreditation bodies and have identical graphics, such as a floating green window with an image of a headset-wearing woman who invites customers to chat.
There are technical commonalities, too: identical blocks of customized coding, and the fact that a vast majority route their traffic through two computer servers run by companies registered in Cyprus and Latvia.
Five former employees confirmed many of these sites as in-house creations of Axact, where executives treat the online schools as lucrative brands to be meticulously created and forcefully marketed, frequently through deception.
The sources described how employees would plant fictitious reports about Axact universities on iReport, a section of the CNN website for citizen journalism. Although CNN stresses that it has not verified the reports, Axact uses the CNN logo as a publicity tool on many of its sites.
Social media adds a further patina of legitimacy. LinkedIn contains profiles for purported faculty members of Axact universities, like Christina Gardener, described as a senior consultant at Hillford University and a former vice president at Southwestern Energy, a publicly listed company in Houston. In an email, a Southwestern spokeswoman said the company had no record of an employee with that name.
The heart of Axact’s business, however, is the sales team — young and well-educated Pakistanis, fluent in English or Arabic, who work the phones with customers who have been drawn in by the websites. They offer everything from high school diplomas for about $350, to doctoral degrees for $4,000 and above.
Elsewhere in the article, it notes that there have been scandals about some of the diploma mills in question, but Axact has been quite careful to keep its own name out of such conversations, often with legal threats:
Axact has brandished legal threats to dissuade reporters, rivals and critics. Under pressure from Axact, a major British paper, The Mail on Sunday, withdrew an article from the Internet in 2006. Later, using an apparently fictitious law firm, the company faced down a consumer rights group in Botswana that had criticized Axact-run Headway University.
It has also petitioned a court in the United States, bringing a lawsuit in 2007 against an American company that is a competitor in the essay-writing business, Student Network Resources, and that had called Axact a “foreign scam site.” The American company countersued and was awarded $700,000, but no damages have been paid, the company’s lawyer said.
The article also notes that when a class action lawsuit was filed a few years ago against two Axact diploma mills (Belford High School and Belford University), some guy in Pakistan named "Salem Kureshi" claimed that he was running the websites:
But instead of Axact, the defendant who stepped forward was Salem Kureshi, a Pakistani who claimed to be running the websites from his apartment. Over three years of hearings, his only appearance was in a video deposition from a dimly lit room in Karachi, during which he was barely identifiable. An associate who also testified by video, under the name “John Smith,” wore sunglasses.
Mr. Kureshi’s legal fees of over $400,000 were paid to his American lawyers through cash transfers from different currency exchange stores in Dubai, court documents show. Recently a reporter was unable to find his given address in Karachi.
“We were dealing with an elusive and illusory defendant,” said Mr. Howlett, the lawyer for the plaintiffs.
In his testimony, Mr. Kureshi denied any links to Axact, even though mailboxes operated by the Belford schools listed the company’s headquarters as their forwarding address.
The lawsuit ended in 2012 when a federal judge ordered Mr. Kureshi and Belford to pay $22.7 million in damages. None of the damages have been paid, Mr. Howlett said.
True to form, the company has gone ballistic in response to the NY Times article, posting an angry threatening rant on its website, claiming that the story is "defamatory" and promising a legal response. The response is... an interesting read as well. It basically tries to smear everyone associated with the article, arguing that it's all some anti-Pakistan plot. It focuses on the claim that the NY Times is partnered with a company that is a competitor to Axact's new plans to create a new media giant named Bol.
The story is authored by some reporter Declan Walsh of NYT who was expelled from Pakistan as Persona non-grata by Pakistan Interior Ministry allegedly due to his involvement in damaging Pakistan’s national interests. Even the media group he is affiliated with, the Express Tribune, published a story against him (click here to read more). Several other organizations have also written about him as well as failure of NYT to deliver credible news (click here to read more). This reporter has worked and devised a one-sided story without taking any input from the company. A last-minute, haphazard elusive email was sent to the company demanding an immediate response by the next day to which the attorney for Axact responded. Click here to view the response.
Moreover, this reporter has not mentioned the conflict of interest which the NYT has due to its association with Express Media as its revenue source in Pakistan. This necessary disclosure regarding the criminal cases on NYT Partner in Pakistan was deliberately omitted and is an injustice to the reader not expected of a publication like NYT.
But it's not just the NY Times that Axact has been apparently threatening. Axact proudly trumpets on its website that "truth prevails" as Forbes was pressured into removing a story about the NY Times story. Indeed, a Google search suggests that Forbes had such a story yesterday, but if you click on the link to a story by James Marshall Crotty, it now takes you nowhere.
Separately, a new NY Times report notes that Axact has threatened a Pakistani blog for merely collecting a bunch of tweets that were mocking Axact. You can see the post on Pak Tea House here, as well as its post about the threat letter from Axact. The blog does not appear interested in giving in, noting that "this is against the principles of free speech." As it further points out, "if the company is aggrieved it should present counter-facts and prove that NYT story is wrong," rather than bullying the blog for merely posting tweets of people responding to the NY Times story.
Lashing out with claims of defamation, rather than actually responding to the details in the story, is only going to increase the attention on Axact. One gets the feeling this story is far from over...
Update: Oh, and the Pakistani government has now raided the offices of Axact and arrested a bunch of employees, in response to the NY Times' story.
We already wrote about the 9th Circuit's en banc ruling that effectively "dissolved" the 9th Circuit's earlier, horrible, ruling in support of Cindy Garcia, ordering Google/YouTube to block any and all copies of the "Innocence of Muslims" videos that she appeared in (for just a few seconds). However, right before that ruling came out, a rather interesting amended dissent to an earlier ruling in the case came out. Written by Judge Stephen Reinhardt, he takes issue with the fact that a year ago, the 9th Circuit refused to do an "emergency rehearing" of the case. While it did eventually rehear the case, Judge Reinhardt notes that the end result was rather insane: because the court refused to move on the matter quickly, a perfectly legal video was censored from the internet for over a year. And that has tremendous First Amendment concerns:
This is a case in which our court not only tolerated the
infringement of fundamental First Amendment rights but was
the architect of that infringement. First we issued an order
that prohibited the public from seeing a highly controversial
film that pertained to an ongoing global news story of
immense public interest. Then we ordered that the public
could see it only if edited to exclude a particular scene,
thereby conditioning freedom of expression on a judicially
sanctioned change in the message expressed. We did this
primarily because persons or groups offended by the film’s
message made a threat—in the form of a fatwa—against
everyone connected with the film. By suppressing protected
speech in response to such a threat, we imposed a prior
restraint on speech in violation of the First Amendment and
undermined the free exchange of ideas that is central to our
democracy and that separates us from those who condone
violence in response to offensive speech.
Preach it, Judge Reinhardt. The Judge wants to send a message to his colleagues on the court about the ridiculousness of this situation:
Although I agree with the en banc opinion that is being
issued in the normal course well over a year after the
unconstitutional order, I dissent from this court’s earlier
refusal to go en banc immediately on an emergency basis.
Only by doing so could we have prevented the irreparable
damage to free speech rights in the lengthy intervening period
until we could take the case en banc under our regular
procedure. The unconscionable result is that our court
allowed an infringement of First Amendment rights to remain
in effect for fifteen months before we finally issued our
opinion dissolving the unconstitutional injunction issued by
a divided three-judge panel.
And, as he points out, the court basically sanctioned blatant censorship because some people were offended by a video:
By leaving in place the panel’s
unprecedented gag order for well over a year, we surrendered
to the threats of religious extremists who were offended by
the film. For a United States court to do so was anathema to
the principles underlying the First Amendment. It is
remarkable that this late in our history we have still not
learned that the First Amendment prohibits us from banning
free speech in order to appease terrorists, religious or
otherwise, even in response to their threats of violence.
By refusing to immediately rehear this case en banc, we
condoned censorship of political speech of the highest First
Amendment magnitude. Although amateurish, offensive, and
banned in many undemocratic countries, Innocence of
Muslims is a film of enormous political, social, and religious
By censoring Innocence of Muslims and
limiting the public’s access to the film, we allowed fear of
those opposed to the film’s message to trump our
commitment to a robust First Amendment. In that
circumstance, it was contrary to the fundamental obligation
of our judiciary and a violation of this court’s constitutional
duty for us to fail to go en banc in response to the emergency
It is of no comfort that the panel shortly amended its
original gag order to allow Google to show versions of the
film with Garcia’s five-second appearance deleted. “Any
system of prior restraints of expression comes to this Court
bearing a heavy presumption against its constitutional
validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70
(1963) (emphasis added). A prior restraint is no less offensive
to the First Amendment simply because it enjoins only a
certain quantity of words or a small portion of a film. To the
contrary, “it is wholly inconsistent with the philosophy of the
First Amendment” for a court to pick and choose which
speech and how much of it may be permitted as opposed to
being enjoined. See Stanley v. Georgia, 394 U.S. 557, 566
(1969). Indeed, it exacerbates the First Amendment injury for
a court to condition the right to speak on a change in the
message being expressed.....
Nor does the fact that the suppression of speech ended
with the en banc opinion lessen the violence done to the First
Amendment. “The loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes
irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
For over a year we violated the First Amendment by
censoring a film that had become part of a global news story
of utmost importance. “[E]very restraint issued in this case,
whatever its form, has violated the First Amendment—and
not less so because that restraint was justified as necessary to
afford the courts an opportunity to examine the claim more
thoroughly.” New York Times Co., 403 U.S. at 727 (Brennan,
J., concurring). Restoring First Amendment freedoms after a
lengthy period of unconstitutional judicial censorship does
not cure the problem. Those freedoms should never have been
denied, and the exercise of freedom that was lost pending en
banc proceedings cannot be recovered.
Further, Judge Reinhardt puts this censorship in context:
In the fifteen months since the court refused to rehear the
case on an emergency basis, there have been numerous
developments regarding threats by religious extremists who
reject pluralist values—the rise of the Islamic State of Iraq
and Syria (ISIS), the murderous attack on Charlie Hebdo, the
barbarous beheadings of innocent civilians, the kidnappings
of young girls and their enslavement because of their
religious membership, the bitter warfare between Shiites and
Sunnis and among their terrorist allies, the emergence of
groups such as Boko Haram, the failures of nascent
democracies to take hold in the wake of the Arab Spring, and
the spread of increasingly virulent anti-Semitism throughout
Europe, if not the world. Setting aside the fact that Innocence
of Muslims is an offensive film of poor quality, it was part of
the ongoing debate pertaining to such events and its voice
was silenced while the continuing debate was at a peak.
Although the inability to view this particular film may have
been no great loss, the suppression of speech was, as a matter
of principle, intolerable under the First Amendment: a court
ordered a political video removed from the public sphere
because of threats of violence, thereby changing the content
and context of ongoing global discourse. The constitutional
violation is not cured by restoring access to the video well
over a year later, long after the time when it was most
relevant to the debate and of greatest interest to the public.
Thank you, Judge Reinhardt, for saying what many people have been thinking about this ruling since it first came out. It's amazing how quickly some will jump to supporting prior restraint when it is speech they don't like. It is good to be reminded that this is not acceptable -- especially by a court.
Last we had checked in on the ongoing legal wrangling between Google and Mississippi Attorney General Jim Hood, a court had ruled pretty strongly against Hood, accusing him of acting in "bad faith," for "the purpose of harassing" Google in violation of its First Amendment rights. Checking back in on the case to see what's been going on, it appears that things have continued to get more and more heated. A little while after that ruling slamming Hood, Wingate ordered Hood to provide a bunch of information to Google as part of the discovery process for the case -- including, bizarrely, responses to Techdirt's FOIA request, which we had declined to continue after Hood's office demanded over $2,000 and made it clear that they still likely wouldn't give us anything. However, Judge Wingate thought that Hood's office should turn that info over to Google:
Any documents already gathered in connection with the Techdirt
Mississippi Public Records Act request that are responsive to Google’s
But, more importantly, Judge Wingate ordered Hood to turn over the documents that the MPAA/movie studios and their lawyers at Jenner & Block had written for Hood, as well as emails with the MPAA's government affairs boss, Vans Stevenson:
Any draft subpoenas provided to the Attorney General by the third parties
identified in Google’s request.
Attorney General Hood’s November 13, 2013 email to Vans Stevenson,
and any replies or responses thereto;
Attorney General Hood’s August 28, 2014 letter to the Attorneys General
in all 50 states regarding setting up a working group;
The Attorney General has withheld most of the
documents called for by the Court’s order. But there is no valid basis to assert privilege. Most
of the documents in question were prepared by third parties lobbying the Attorney General to
take action against Google. Neither the attorney-client privilege nor the work product doctrine
permits public officials to shield such interactions from scrutiny. The privilege log provided by
the Attorney General confirms that there is no basis to withhold the documents.
According to Google's filing:
On April 15, the Attorney General served his responses and objections for the five
priority document categories, along with a privilege log and 65 pages of heavily redacted
documents.... He produced no documents at all within the fifth category
specified by the Court, later explaining that while documents had been “identified” in relation to
the Techdirt Mississippi Public Records Act request, none had been “gathered.” He also refused
to produce much of the responsive material in his possession, claiming that the documents are
protected by the attorney-client privilege, the work product doctrine, the common interest
doctrine, or some combination thereof.
And, Google points out that the idea that Hood has attorney-client privilege over this material makes no sense, as he does not have such a relationship with the people in question:
It also concedes that the
Attorney General does not know who drafted many of the withheld documents and instead states,
“on information and belief,” that they “were prepared by or at the direction of” one of two or
three named lawyers in private practice, at the law firms Jenner & Block LLP (“Jenner”), Orrick,
Herrington & Sutcliffe LLP (“Orrick”), and SNR Denton US LLP (“Denton”).... The Attorney
General confirmed that he had no attorney-client relationship with these firms. Published
accounts indicate that, in connection with lobbying activities, Orrick represents Microsoft and
Jenner represents the MPAA.
There's a lot more in that filing that absolutely destroys the arguments that Hood is making as to how these documents, prepared by the MPAA's lawyers, could possibly be privileged material, blocked from discovery.
A week later, Hood responded to Google's filing seemingly spending about half of the space simply reiterating one of his misguided rants about how evil Google must be -- none of which seems even remotely relevant to the question at hand, concerning whether or not Hood needs to produce these documents, including the emails from the MPAA and its lawyers, as they plotted to use Hood in their plan to take down Google, a company they don't like. After that, it basically just repeats "attorney-client privilege" and "work product" as frequently as possible, insisting that revealing any of this to Google would completely undermine all that is good and holy by revealing to Google what Hood and his staff were thinking. That, of course, leaves out the fact that it wasn't what Hood was thinking, but rather what the MPAA -- an organization that has made it clear it wants to harm Google -- was thinking in terms of how it could use Hood's office to that end.
Allowing Google access to these documents and communications would reveal the nature of the Attorney General’s mental impressions and strategy regarding future litigation against Google.
Or, you know, the MPAA's "mental impressions and strategy" which apparently include funding/hiring one of Hood's closest friends (who Hood himself then hired to help with the subpoenas to Google), Mike Moore (the previous Attorney General who helped get Hood elected). The whole reason why the judge ordered Hood to turn this over was to find out about those "impressions and strategy," as Judge Wingate believed that those "impressions and strategy" show a "bad faith" plan to attack Google in violation of the First Amendment. Hiding behind a bogus attorney-client privilege claim (when Hood has no such relationship here) is incredibly weak.
Finally, earlier this month, Google responded again and laid out the situation in a fairly straightforward manner:
The Attorney General served the 79-page subpoena at the heart of this case after sustained lobbying from the MPAA. The Court has found that Google is likely to succeed on the merits of its claims, including its claim that the Attorney General conducted his investigation in bad faith. The Attorney General is now trying to throw a veil of secrecy over his interactions with the MPAA and other lobbyists during his investigation, refusing to produce the draft subpoenas the lobbyists wrote, and the multiple policy memos (with titles like “Google must change its behavior”) that the lobbyists sent him. He asserts, for example, that documents created by the MPAA’s lawyers are somehow his work product, and thus beyond the scope of discovery absent a showing of substantial need, simply because he read them. That is flatly wrong. The work product doctrine exists to shield from discovery an attorney’s thoughts and impressions developed in preparation for litigation. It does not protect a trade association’s communications with a government official, aimed at inducing the official to pressure a business rival.
It further explains how all those chants of "attorney-client privilege" and "work product" make no sense at all:
The draft subpoenas, CIDs, and white papers do not constitute the work product of the Attorney General because they were not created by his counsel or agent, but instead by private third-parties seeking to influence his official conduct.
The same documents do not constitute the work product of private counsel because their clients (the MPAA, Microsoft, and others) were not anticipating litigation as a party. And any protection was waived when the documents were provided to the Attorney General to encourage an attack.
The letter to attorneys general is not work product because the unredacted portion of the document makes clear its primary purpose was to form a working group to induce Google to change its policies, not to prepare for litigation. And the common interest doctrine does not include unsolicited invitations to join such an effort.
Oh, and the Google filing also highlights the fact that both the MPAA and Hood appeared to employ Mike Moore separately to work on this same project, and this also further undermines the attempts to keep these communications a secret:
The record also suggests that any privilege was waived by the Mike Moore Law Firm’s parallel representation of the Attorney General and a private lobbying group, as well as Mr. Moore’s repeated disclosures of confidential information to outside interests.
This back and forth is kind of fascinating. The Judge has already made it quite clear that he's not buying Hood's story, and it seems pretty obvious from the Sony leaks and deeper reporting from the NY Times last year, that Hood's fishing expedition was based almost entirely on the MPAA's big plan to hamstring Google just because the MPAA really, really doesn't like Google. That Hood would use his office as a state Attorney General to assist in such an action does not speak very well of Hood. That he's now scrambling to hide the details of his relationship with the MPAA only serves to call more attention to that relationship.
Nearly 150 tech companies (including us via the Copia Institute), non-profits and computer security experts have all teamed up to send a letter to President Obama telling him to stop these stupid ideas about backdooring encryption that keeping coming out of his administration. The press headlines will note that big companies -- like Google, Apple, Cisco, Microsoft, Twitter and Facebook -- are signing the letter. But significantly more interesting is the signatures from a huge list of computer security experts, all putting their names down on paper to make it clear what a ridiculously bad idea it is to even think about backdooring encryption. Among those signing on are Phil Zimmermann (who lived through this sort of thing before), Whitfield Diffie (guy who invented public key cryptography), Brian Behlendorf, Ron Rivest, Peter Neumann, Gene Spafford, Bruce Schneier, Matt Blaze, Richard Clarke (long-time counterterrorism guy in the White House), Hal Abelson and many, many more. Basically a who's who of people who actually know what they're talking about.
We urge you to reject any proposal that U.S. companies deliberately weaken the
security of their products. We request that the White House instead focus on
developing policies that will promote rather than undermine the wide adoption of
strong encryption technology. Such policies will in turn help to promote and protect
cybersecurity, economic growth, and human rights, both here and abroad.
Strong encryption is the cornerstone of the modern information economy’s security.
Encryption protects billions of people every day against countless threats—be they street
criminals trying to steal our phones and laptops, computer criminals trying to defraud us,
corporate spies trying to obtain our companies’ most valuable trade secrets, repressive
governments trying to stifle dissent, or foreign intelligence agencies trying to
compromise our and our allies’ most sensitive national security secrets.
Encryption thereby protects us from innumerable criminal and national security threats.
This protection would be undermined by the mandatory insertion of any new
vulnerabilities into encrypted devices and services. Whether you call them “front doors”
or “back doors”, introducing intentional vulnerabilities into secure products for the
government’s use will make those products less secure against other attackers. Every
computer security expert that has spoken publicly on this issue agrees on this point,
including the government’s own experts.
There's much more in the full letter which I highly recommend reading. It very nicely summarizes why this is a completely insane idea, and highlights why anyone raising it should be immediately told to move on to some other project instead:
The Administration faces a critical choice: will it adopt policies that foster a global digital
ecosystem that is more secure, or less? That choice may well define the future of the
Internet in the 21st century. When faced with a similar choice at the end of the last
century, during the so-called “Crypto Wars”, U.S. policymakers weighed many of the
same concerns and arguments that have been raised in the current debate, and correctly
concluded that the serious costs of undermining encryption technology outweighed the
purported benefits. So too did the President’s Review Group on Intelligence and
Communications Technologies, who unanimously recommended in their December 2013
report that the US Government should “(1) fully support and not undermine efforts to
create encryption standards; (2) not in any way subvert, undermine, weaken, or make
vulnerable generally available commercial software; and (3) increase the use of
encryption and urge US companies to do so, in order to better protect data in transit, at
rest, in the cloud, and in other storage.”
The Washington Post quotes another surprising signatory: Paul Rosenzweig, the former Deputy Assistant Secretary for Policy at Homeland Security. If that name sounds familiar, it's because we've quoted his defense of the NSA, once arguing that "too much transparency defeats the very purpose of democracy." If even he is arguing against backdooring encryption, you know it's an idea that should be killed off. In his case, it's because he recognizes the simple reality that seems to have eluded the FBI director:
The signatories include policy experts who normally side with national-security hawks. Paul Rosenzweig, a former Bush administration senior policy official at the Department of Homeland Security, said: “If I actually thought there was a way to build a U.S.-government-only backdoor, then I might be persuaded. But that’s just not reality.”
And the world would be much better off if all of these security experts and companies could focus on better protecting us from harm, rather than having to join in ridiculous debates about what a bunch of clueless bureaucrats think might be some sort of mythical magic unicorn encryption breaker.
from the you'd-have-a-little-something-like-this... dept
The cable and internet worlds are not exactly known for being all that innovative, but that's misleading. Those giant conglomerates can be really innovative in figuring out ways to totally screw you over with their billing and customer service practices. For over a decade, we've pointed out how ridiculous it is to see telcos sneak all sorts of crap below the line by adding additional fees that sometimes can make up more than half of the total actual bill. Even all the way back then, we wondered what other businesses would be like if they used the same "hidden fee" system. What about a pizza, for example? You could announce an advertised price of $3, but then toss in a "Heating element recovery fee" of $1.50, a "crust browning surcharge" of $2, a "service fee" of $4, a "universal pizza fund" charge for $1.20, and a $2.18 "cleanup fee." Plus tax.
And, let's not even get started with the whole "bundling" business by cable. Or, rather, let's. That's what Funny or Die did with this amusing new video starring Dave Koechner imagining a world where everything was priced the way cable bundles are priced:
You know, considering how many such videos there are, you might think that the giant cable/telco companies might finally realize that it's time to act differently, right? But, I guess, as all the videos here show, they really just don't give a fuck because they don't have to.
Lowery tries to spin this like it's all Google's fault:
Wow. He gets more and more wrong by the day. Also, weird and wrong attack on FFTF.
Just right now FFTF is actively opposed to USA Freedom and TPA -- and Google is in favor both. While Lowery insists that the two are always aligned "on every single issue." Except not the two big ones they're fighting today.
And when you're on the receiving end of it (and as a white male Boomer I rarely am), hate speech is a lot more obvious than this site seems to think. I'm not talking nuances, I'm talking Ms. Wu's death threats sitting on an FBI desk gathering dust. Hate speech/gamergate/Pam Geller — there are a lot of people working to necessitate a clarification of the 1st Amendment.
I'm not even sure what your last sentence means. Can you clarify?
As for death threats, those are already not protected speech, as discussed. The FBI sitting on such a threat has nothing to do with the First Amendment at all, and nothing to do with "hate speech." You are confusing things greatly.
As for the issue of "hate speech" and "harassment" it's important to understand that you are conflating speech and actions. And that's where it gets dangerous. Most of us can agree that harassment is incredibly troublesome, but that DOES NOT MEAN you throw out the First Amendment when there is speech you don't like. That slope is way way way way too slippery.
All you've done is quote something that can arguably be interpreted in a way other than CNN how interpreted it. But you have not provided anything that goes the additional step of backing up what you claim is "pretty clear."
Holy shit. If you are honestly arguing that the rules require State Department officials to all print out all of their emails, that are already electronically stored, JUST SO the State Department can then scan them back into their electronic system, you are so far gone that I cannot help you.
You are wrong. The State Department can and does make use of electronic records all the time. It will then print out a copy for preservation IN ADDITION to the electronic copies.
Nowhere does it require only paper copies nor does it say it will not accept electronic copies. You are wrong.
Ok i think that the author should maybe do a little research before posting a story, maybe then he will not be as confused as he seems to be here.
I did lots of research.
The republicans have been hounding Clinton for years trying to pin anything on her and even going so far as to ignore any investigation by their own people that say she did absolutely nothing wrong when it comes to the Benghazi debacle, where the republicans are screaming she did wrong but to unable to say what she is supposed to have done wrong.
I recognize that and I agree that the hounding over Benghazi is nothing but political charades. But that is unrelated to the issue at hand. If there is nothing in the email, then it would have been better to do what she was supposed to do and used the State Dept's system so that that could be revealed quickly and easily and we could all move on with our lives.
This is a blatant attack on her and nothing more , one of many requesting her to provide details of her every action.
And the easy way to deal with that is to follow the proper protocols showing she did nothing wrong and moving forward. Prolonging it, this way, actually GIVES MORE AMMO to those making political hay out of this.
So as can be understood by any idiot she is making the republicans job as hard as she can, and using a little sarcasm at the same time by saying she wants them to release the documents asap.
I don't see how that's accurate at all. Instead, she's making it easier for them to dream up conspiracy theories about what happened by hiding the evidence.
What would you do if you had a bunch of idiots requesting information from you every other day and demanding you appear before commissions for questioning but then not asking any relevant questions or asking questions that just don't have an answer.
I would not hide information, not use the official system, and then delete my entire server before handing over 55,000 sheets of paper.
One of the most important facts missing from this post/story is that the law requires paper submission and they will not accept electronic copies.
This is incorrect. The actual rules (http://www.state.gov/documents/organization/85696.pdf) say that:
Until technology allowing archival capabilities for long-term electronic storage and retrieval of E-mail messages is available and installed, those messages warranting preservation as records (for periods longer than current E-mail systems routinely maintain them) must be printed out and filed with related records.
In other words, it is saying that the State Department has the responsibility to print out those it wishes to preserve. Nowhere does it come close to saying that electronic records cannot be submitted. In fact, it's pretty clear that electronic records can and should be submitted, and in the process of review, the State Department can then print out those records it wishes to preserve.
Your statement is flat out wrong, and the original point in the article stands. They absolutely will accept digital records -- that is how MOST email records are initially preserved. They may later be printed out for long term preservation, but the idea that they could not be delivered digitally is completely incorrect. It's just that, in most cases, the State Department already has the digital records, because the people in question USED THE STATE DEPT'S EMAIL SYSTEM.
Mike's brief argued that the court should analyze it under the CDA. That's exactly what the court did. It was a brilliant insight. None of the parties even made that argument. But Mike's brilliant legal analysis pointed the court in the right direction. Kudos.
The brief was not by me, but by Cathy Gellis, and you're correct that none of the parties made that argument, which is why we felt it was reasonable to raise as an amicus (that's generally where amici *should* step in). We did not expect in anyway that the ruling would turn on that argument, but felt that it was important to get the point made concerning Congress' view on intermediary liability.
We fully expected that the court would rule the way it eventually did on the copyright/First Amendment questions, but wanted to make sure that it was aware of additional issues should it not get that far.
You disagree. And thus, you mock us. Your choice. Seems like a huge waste of energy, but... fair enough.
Mike's brief argued that the court should analyze it under the CDA. That's exactly what the court did. It was a brilliant insight. None of the parties even made that argument. But Mike's brilliant legal analysis pointed the court in the right direction. Kudos.
The brief was not by me, but by Cathy Gellis, and you're correct that none of the parties made that argument, which is why we felt it was reasonable to raise as an amicus (that's generally where amici *should* step in). We did not expect in anyway that the ruling would turn on that argument, but felt that it was important to get the point made concerning Congress' view on intermediary liability.
We fully expected that the court would rule the way it eventually did on the copyright/First Amendment questions, but wanted to make sure that it was aware of additional issues should it not get that far.
You disagree. And thus, you mock us. Your choice. Seems like a huge waste of energy, but... fair enough.
Exactly. So if I, as a member of the audience, film it on my own, with my own cameras, there is no use of a copyrighted broadcast. Certainly there might be some issue if I can hear the announcer on my recording, but if I delete the sound, there shouldn't be any copyright interest. And yet, if you bring your own camera to a sporting event and stream it or upload it, you will be successfully sued for copyright infringement (among other things). For no reason that anyone has ever discovered.
I don't think that's true. Can you cite a case?
The owner of the stadium has the right to ban you and or to not let you back in, but I don't see how they could possibly sue you for copyright infringement.
Did he say those things or did the FBI say he said those things? This is the last place I expected to be so trusting of the government. Other articles are saying he hacked into a flight simulator. That he built himself.
We expressed skepticism for the FBI's story in the piece -- but note that it's important to know more before deciding what really happened here. I think, frankly, that we expressed a lot more skepticism of this story that most of the media reporting elsewhere did.