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Posted on Net Neutrality Special Edition - 30 June 2015 @ 9:31am

EU Moves To Create Internet Fast Lanes, Pretends It's Net Neutrality By Redefining Basic Words

from the if-we-just-call-it-net-neutrality,-maybe-no-one-will-notice dept

In 2014, it really looked like Europe was moving towards strong net neutrality, while the US was going to allow for special fast lanes on the internet. In 2015... everything has gone the other way. The US passed real net neutrality rules, while Europe has not only decided to kill net neutrality, but has done so in a way where they pretend that they're actually supporting net neutrality.

In some way, this isn't a surprise. EU Digital Commissioner Gunther Oettinger recently mocked net neutrality and its supporters, saying they had turned it into a "Taliban-like" issue. Then a month ago, rumors started to fly that the weekly "trialogue" meetings between the EU Commission, the Council of the EU and the EU Parliament was looking to ditch net neutrality altogether. Instead, it appears that the final solution was actually to redefine net neutrality to pretend they were offering it, while really killing it. And, as a consolation prize, they're killing off roaming charges around Europe (which can be pretty extreme). But that is little consolation for the fact that they're actually destroying net neutrality in the process.

The little trick being pulled by politicians who apparently think the public is too stupid to understand this is to redefine net neutrality. First, they claim that the "open internet" is really important and they won't allow paid prioritization. This part all sounds good:

The rules enshrine the principle of net neutrality into EU law: no blocking or throttling of online content, applications and services. It means that there will be truly common EU-wide Internet rules, contributing to a single market and reversing current fragmentation.
  • Every European must be able to have access to the open Internet and all content and service providers must be able to provide their services via a high-quality open Internet.
  • All traffic will be treated equally. This means, for example, that there can be no paid prioritisation of traffic in the Internet access service. At the same time, equal treatment allows reasonable day-to-day traffic management according to justified technical requirements, and which must be independent of the origin or destination of the traffic.
Sounds good, right? But there's a pretty big catch. Those rules and the "open internet" don't cover what most people think of as the internet. Instead, it's been boxed in. Because the deal also creates a made up new categorization known as "specialized services" where such prioritization will be allowed.

What are specialised services (innovative services or services other than Internet access services)?

The new EU net neutrality rules guarantee the open Internet and enable the provision of specialised or innovative services on condition that they do not harm the open Internet access. These are services like IPTV, high-definition videoconferencing or healthcare services like telesurgery. They use the Internet protocol and the same access network but require a significant improvement in quality or the possibility to guarantee some technical requirements to their end-users that cannot be ensured in the best-effort open Internet. The possibility to provide innovative services with enhanced quality of service is crucial for European start-ups and will boost online innovation in Europe. However, such services must not be a sold as substitute for the open Internet access, they come on top of it.

Got it? The "regular" internet has no fast lanes. But... right over here, we have the "specialized services" part of the internet which, you know, kinda looks like a fast lane. Because it is. So, now, basically, in Europe you can buy your way into the fast lane by claiming your services are "specialized" and watching as the regular internet pokes along at slower speeds.

The agreement does a lot of handwaving to pretend this doesn't destroy net neutrality, but the more handwaving they do, the more obvious it is that the politicians here know exactly what they're doing:

By allowing the provision of innovative services, are we not promoting a two-tier Internet?

No. Every European must be able to have access to the open Internet and all content and service providers will be able to provide their services via a high-quality open Internet. But more and more innovative services require a certain transmission quality in order to work properly, such as telemedicine or automated driving. These and other services that can emerge in the future can be developed as long as they do not harm the availability and the quality of the open Internet.

Therefore it is important to have future proof rules which, while fully safeguarding the open Internet, allow market operators to provide services with specific quality requirements in order to provide them in safe manner. It is not a question of fast lanes and slow lanes - as paid prioritisation is not allowed, but of making sure that all needs are served, that all opportunities can be seized and that no one is forced to pay for a service that is not needed.

Oh, and of course, the new rules allow zero rating, which is the sneaky trick by which telcos use data caps to backdoor in preferential treatment to those willing to pay, while pretending this is some sort of benefit to consumers. The EU sees no problem with this, despite the fact that it enables large internet companies to squeeze out startups and smaller players.

What is zero rating?

Zero rating, also called sponsored connectivity, is a commercial practice used by some providers of Internet access, especially mobile operators, not to count the data volume of particular applications or services against the user's limited monthly data volume.

Zero rating does not block competing content and can promote a wider variety of offers for price-sensitive users, give them interesting deals, and encourage them to use digital services. But we have to make sure that commercial practices benefit users and do not in practice lead to situations where end-users' choice is significantly reduced. Regulatory authorities will therefore have to monitor and ensure compliance with the rules.

Of course, Digital Commissioner Oettinger inadvertently appeared to confirm that this is the end of net neutrality with his poorly worded tweet on the subject, in which he notes that this is "the end of roaming and net neutrality."
Obviously, he only meant "the end of" to apply to roaming, but having it cover net neutrality as well would be a lot more accurate. Either way, while Oettinger once compared it to a Taliban-like issue, his response has been more on the Orwellian side of things. So long as they redefine the words, the government hopes no one will notice what they actually did. It's the public officials' way of thinking that they're clever and that the public is stupid. That seems like an unwise assumption.

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Posted on Techdirt - 30 June 2015 @ 4:12am

NSA -- Despite Claiming It Doesn't Engage In Economic Espionage -- Engaged In Economic Espionage

from the oh-look-at-that dept

The NSA has long claimed that it does not engage in "economic espionage." NSA and Defense Department officials have repeatedly insisted that while they do lots of other things, economic espionage is not on the list:

“The Department of Defense does engage” in computer network exploitation, according to an e-mailed statement from an NSA spokesman, whose agency is part of the Defense Department. “The department does ***not*** engage in economic espionage in any domain, including cyber.”
These claims are made in a strange attempt to suggest that the NSA is somehow "better" than those like the Chinese, who absolutely do engage in economic espionage, looking for corporate secrets and the like. Of course, it's not entirely clear why not engaging in economic espionage is such an important moral argument for the NSA -- but, at the very least, the agency claims it has its limits.

Of course, it's already been pretty clear that this was more hot air than reality from the NSA anyway. Soon after the first Snowden leaks came out, it was suggested that there was evidence of economic espionage against Germany. Later revelations showed what appears to be economic espionage in Brazil. And, on top of that, we wondered why the US Trade Rep is listed as a "customer" of NSA intelligence if it wasn't doing economic espionage. Oh, and let's not even mention that former CIA boss and Defense Secretary Robert Gates has admitted to trying to do economic espionage, but stopping because the US wasn't very good at it.

Anyway, with all that it should be obvious that of course the NSA engages in economic espionage -- but as if to highlight this even more strongly, Wikileaks has now released more documents showing pretty clear economic espionage in the form of snooping on French finance ministers, looking to get information on "French export contracts, trade and budget talks."

As with the initial revelation that the NSA was spying on the French government, by itself, I don't find this too concerning. Governments spying on other governments is kind of how it goes. But it is notable that there's more evidence of economic espionage when the NSA is so insistent that it absolutely never engages in such tactics. It seems likely that the "out" the NSA would claim here is that it doesn't do economic espionage in the form of spying on companies to try to get their secrets. But it does other forms of economic espionage by spying on government officials engaged in trade deals and such... That seems like a distinction without much meaning.

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Posted on Techdirt - 29 June 2015 @ 11:38am

France Takes Its War On Uber Up A Notch: Arrests Top Execs

from the because-that'll-stop-innovation dept

Last week, we noted some bizarre happenings in France, as taxi drivers unwilling to compete against Uber decided to stage a "protest" which actually looked a lot more like a riot. They overturned Uber cars, held passengers and drivers hostage and lit fires around the country. You might think that this updated version of Luddites smashing machines would lead to a similar result -- getting laughed at and confined to the dustbins of history. But, this is France we're talking about. Politicians quickly ordered a crackdown on Uber including ordering law enforcement to seize the cars of Uber drivers.

And, that's not all. Now it's being reported that two of Uber's top French execs have been arrested.

The pair are believed to be Thibault Simphal,the director general of Uber France and Pierre-Dimitri Gore-Coty,the directorgeneral of Uber Europe.

According to BFM TV the pair are being investigated for "inciting illegal employment", with the Interior Minister Bernard Cazeneuve having already suggested that the pair's insistence on rolling out UberPop was effectively encouraging individuals to break the law.
We had noted, earlier this year, that French law enforcement had raided Uber's offices in Paris, but still. "Inciting illegal employment?" Are they serious? Has anyone looked at the unemployment rate in France lately?
Maybe they need someone out there "inciting illegal employment" because the government doesn't seem to be doing a particularly good job in helping people get employed now, does it?

Cazeneuve continues his role as the cartoonish villain in all of this, making statements that are absolutely bizarre:
"I have given instructions, considering the grave problems with public order and the development of this illegal activity, to the police prefecture in Paris to ban UberPop activities," said Cazeneuve last Thursday.

Cazeneuve also pointed out that Uber could be guilty of the crime of "illicit transportation of people" under article 40 of the penal code, that could be punished by two years in prison and a €300,000.
First of all, "illicit transportation of people?" These are people who want to go somewhere and are happy about the options they have. Why should that be "illicit"?

Second the "grave problems with the public order" are not because of Uber, but because taxi drivers are flipping cars. Why does Cazeneuve not seem even remotely concerned about that?

42 Comments | Leave a Comment..

Posted on Techdirt - 29 June 2015 @ 10:31am

Supreme Court Won't Hear Oracle v. Google Case, Leaving APIs Copyrightable And Innovation At Risk

from the dangerous-ruling dept

This is unfortunate, even if it was somewhat expected: the Supreme Court has now rejected Google's request to hear its appeal over the appeals court decision that overturned a lower court ruling on the copyrightability of APIs. The lower court decision, by Judge William Alsup (who learned to code Java to understand the issues), noted that APIs were not copyrightable, as they were mere methods, which are not subject to copyright.

The appeals court ruling, by the Court of Appeals for the Federal Circuit (CAFC) (famous for getting patent cases wrong over and over and over again) didn't just get things wrong, it got things laughably wrong, confusing the difference between APIs and software throughout, and quoting people entirely out of context (including taking things so out of context that it often pitted people on the same side against each other, solely because CAFC misread what they were saying). The case was appealed to the Supreme Court, and we were shocked and dismayed to see the Obama administration further reinforce the errors of the CAFC ruling in telling the Supreme Court not to hear the case. The filing by Solicitor General Donald Verrilli repeatedly confused software with APIs and insisted that there was really no difference between the two. That's just wrong. It's not a matter of debate. It's just wrong.

One would have hoped that with a ton of computer science experts explaining to the Supreme Court how CAFC got things wrong, the Supreme Court might recognize that the Obama administration was confused, but for whatever reason, the Supreme Court has declined to hear the case.

This is dangerous. The world of software and innovation relies on the kind of interoperability and the ability to connect via things like APIs. As we've noted, this is like claiming you can copyright an entire language, rather than the creative works written in those languages. Making APIs proprietary and locked up puts a ton of innovation at risk.

As for Google and Oracle directly, this probably doesn't matter much. They're two giant companies, certainly. And now that the case returns to the lower court, they'll either settle or fight it out over fair use (and hopefully win on that front as well). But saying fair use allows this is very, very different than saying there's no copyright on the API. And for smaller companies this will have a tremendous ripple effect, and will undoubtedly lead to a slower pace of innovation. The kinds of touchstones that people build on will no longer happen. Under this ruling, it basically overrules previous rulings that said pull down menus were not copyrightable. But with this ruling in place, it's hard to see how that's still true. Expect to see a bunch of ridiculous lawsuits over minor copying of functions like that.

While this case may eventually be resolved on fair use grounds (or through settlement), there are still two potential areas of hope. First, the "precedential" power of this ruling is actually somewhat limited. CAFC precedents are more or less meaningless in this context. CAFC handles all patent cases, and the only reason it heard this case was because it started as a patent case, even though those issues were resolved much earlier. So, while CAFC has made this particular ruling, it does not mean that the 9th Circuit, where this case was actually heard has to abide by it. The appeals court for the 9th circuit could rule otherwise (though it is somewhat famous for its own nutty copyright rulings).

Perhaps if this issue returns to another appeals court, and that court gets it right, the issue will return to the Supreme Court with a clear circuit split. And by then, we can hope, the people staffing the Solicitor's General office will finally include at least one person who understands the difference between code and APIs.

The really stunning thing in all of this is just how factually wrong many of the arguments were, and that the CAFC and Obama Administration bought them. These weren't questions of interpretation or opinion. They just flat out got the facts wrong, based on an astounding level of ignorance about a rather basic concept of an API not being software. Just because they both look like "code" does not make them both code. It would be nice if the people actually making these decisions weren't so easily fooled by their own ignorance.

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Posted on Techdirt - 29 June 2015 @ 9:27am

Newsday Editor: Carve Hate Speech Out Of First Amendment, Hold Websites Responsible If Users Post Hate Speech

from the this-is-a-newspaper-editor dept

Remember back when newspapers were considered the leading defenders of the First Amendment and free speech? Apparently that's over. Newsday (the newspaper I grew up reading) has an editorial up by Anne Michaud (the publication's "interactive editor") in which she argues for a dismantling of the First Amendment when it comes to "hate speech." These kinds of arguments have become popular again lately (in fact, many in the US seem to think that hate speech is already not protected under the First Amendment). Michaud's piece starts out by highlighting how she, herself, explored the white supremacist world a few years ago:

Years ago, I took a journalistic excursion through the nation's white supremacist scene. I read books and spoke with professors, attended rallies with Aryan Nations members and Keystone Skinheads and interviewed their leaders....

When I heard about Dylann Roof, I suspected that he had trod the same path.
And yet... Michaud did not become a white supremacist. She did not become a racist. She did not post racist, hateful things on websites, nor did she go and kill nine people solely based on the color of their skin. Perhaps, just perhaps, there was more to Dylann Roof's racist hatred than the fact that he could surf some ignorant, hateful websites. But Michaud does not consider that. Instead, she argues not just that we should carve hate speech out of the First Amendment, but that websites should be held responsible if their users post such hate speech:
We should consider whether people who run such websites bear some responsibility for the nine dead at Charleston's Emanuel African Methodist Episcopal Church. It would be difficult, but perhaps we should carve out an exception to our First Amendment protection of free speech to hold people accountable for hate speech.
I can totally understand the emotional appeal of such a "solution." However, it is possible (as I believe) to abhor hate speech itself -- find it horrifying and ignorant -- yet at the same time worry about the implications of trying to carve it out of the First Amendment, and to undermine intermediary liability at the same time.

First, defining hate speech is not nearly as easy as some people like to believe. People think it's easy -- in the "I know when I see it" kind of way, but inevitably it becomes quite the slippery slope and turns into "people saying mean things." In political discourse, for example, it is not uncommon for people opposed to this or that political party to gleefully describe their hatred of members of that party. I find this to be silly and counterproductive, but should it be a crime? Should political websites that encourage comments attacking the opposing political party be held legally liable for such "hate speech?" Once you give an exception to "hate speech," you only open a huge can of worms as people look to use that exception as a way to stifle and censor all kinds of speech they dislike.

Remember that parody of an anti-hate speech rant we wrote about a few months ago (which some still insist was not a parody but the actual beliefs of some people)? Whether it was a parody or the earnest feelings of someone, it shows how quickly things can morph from "hate speech" into really gray areas -- including political speech and just general opinions.

But here's the bigger issue that no one seems to discuss: outlawing "hate speech" doesn't make it go away. It doesn't make people stop feeling hate. Hate speech tends to be the product of ignorance, and making the ignorant feel persecuted and outcast doesn't tend to lead them to suddenly getting educated. It tends to lead them to even greater resentment, and often a belief that they must be on the right track, since people are trying so hard to shut them up. You combat hate speech with more speech, not by censoring speech.

People say horrible things. Things we absolutely disapprove of and disagree with. But they have the right to say those things, and others have the right to speak out against them, to highlight the ignorance, and even to shame and expose the ignorance itself. Shoving it down into the darkness and pretending that you've somehow "dealt with" the problem doesn't help. These people still believe what they believe. Hiding it in the dark doesn't change that. If this country really wants to confront racism and hatred, making it illegal for people to express their beliefs (no matter how ridiculous) doesn't fix anything. It just hides the real problems and lets them fester. You need to expose hatred, ignorance and bias if you're going to confront it. Yet, Michaud and others want to sweep it under the rug.

And, of course, Michaud uses the usual tropes against free speech, including pointing out that there are some existing exceptions to the First Amendment, so there should be no problem adding more:
In the United States, we prize our freedom to speak, but in fact our laws uphold many limits. Sedition, for example, or advocating force as a way to change the government, is illegal. Threats, defamation, false advertising and profanity on public airwaves are illegal. Companies protect trade secrets, and courts enforce gag orders in legal settlements.
At least she didn't trot out "fire in a crowded theater." However, the fact that she leads with "sedition" is an interesting choice, given the history of the US using laws against sedition to crack down on political speech the government disliked.

It's perfectly reasonable to be angered and horrified at ignorant, racist, bigoted hate speech. It's perfectly reasonable to be concerned about those who spew such idiocy. But it's something else entirely to argue that because you dislike it, others should not be allowed to speak their beliefs. That a newspaper editor would advocate for such things seems particularly bizarre and counterproductive.

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Posted on Techdirt - 29 June 2015 @ 8:01am

MPAA Targets New Anti-Piracy Ads... At People Who Already Paid To Go See Movies

from the strategery! dept

There's that old joke that you've probably heard (in part because we've mentioned it in other contexts), about the drunk man searching for his keys under a streetlight, while admitting that he lost them further down the street. When asked why he's looking over by the light instead, he says "because that's where the light is." People even refer to this as the streetlight effect. And you can see it in all sorts of odd places.

Here, for example, is the MPAA, the guardian of Hollywood's old way of doing business, launching a big new "anti-piracy ad campaign" by... advertising to the people who already paid to see movies in the theater:

The “I Make Movies” videos, which will run in 300 AMC theater locations and a handful of regional chains, spotlights the movie workers behind-the-scenes: a costume illustrator, seamstress, picture car coordinator, carpenter, and set designer.
These spots will be showing in theaters across the country, because that's exactly what people who just paid huge sums of money to watch a movie want to see: an extra commercial before the film they paid to see telling them them to stop being dirty pirates, with the usual claptrap about all of the poor workers that piracy impacts (leaving aside that those people aren't paid based on movie revenue...).

It's the streetlight effect all over again. The incompetent and ineffective Chris Dodd-run MPAA feels the need to do something, so they fall back on the same old game plan:
"Hey, let's advertise to try to make people feel guilty!"

"That's never worked before despite us trying for decades."

"This time it will work! It must work! Because they must all feel guilty! And once they see how guilty they should really feel, they'll stop pirating! Because I have no other ideas!"

"Okay, but where will we best place these advertisements to reach the right people?"

"I've got that one all planned out! We'll get them in the best possible spot: in the movie theaters! The theaters will show those ads for free and we've got a real captive audience!"

"But it's a captive audience who has already shown that they're willing to pay. Why should we advertise to them?"

"Didn't you hear me!?!? It's a captive audience and the theaters will let us do it for free! Piracy is solved!"
Good luck, guys. Once again, if you're looking for better ideas, maybe fire the content protection team, and hire some folks who actually get the internet.

88 Comments | Leave a Comment..

Posted on Techdirt - 26 June 2015 @ 7:39pm

Guy Writes New James Bond Book... Only Available Where Bond Is In The Public Domain

from the get-it-now dept

Since I run Techdirt, book publishers frequently push random books on me. Sometimes they just send the books. More frequently they send me announcements about books to see if I might be interested. Most go directly in the recycle bin. But one that came in just recently caught my eye -- and not because of the subject matter. Usually the books are about the tech industry or politics or something. But this was a James Bond story. I almost tossed it out immediately, assuming someone mail merged the wrong press list -- but then I realized why we were on the list. James Bond recently went into the public domain in Canada, raising some interesting questions over what that meant -- since 007 is still protected by copyright in the US and some other countries. So, now it appears that some guy named Curtis Cook has decided to write himself his own Bond book, and the press release touts the fact that it's because Bond is in the public domain in Canada.

At the end of the letter, it notes that review copies are available worldwide, but that "commercial sales [will be] limited to Canada and other countries that are "life plus 50" Berne rule signatories." In other words, don't expect to see the book in the US, unless you snag a review copy.

Of course, the book may be absolutely terrible. But it does seem interesting that this book can only be sold in certain countries -- and not in the US -- thanks to copyright law. Something seems fundamentally wrong about that -- but I guess that people who live in countries outside the US who frequently experience ridiculous geoblocks will note that this is just a physical form of the same thing, but in reverse.

In the meantime, with Bond in the public domain in Canada, it's not just new Bond books we're seeing, but other interesting projects as well -- such as a new unauthorized anthology of Bond stories called License Expired. I imagine plenty more is on the way as well. All this creativity... and none of it can touch the United States. Because of our broken copyright system.

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Posted on Techdirt - 26 June 2015 @ 4:01pm

SiriusXM Finally Wins A Case Over Pre-1972 Music... And Promptly Settles Such Cases With RIAA

from the well-how-about-that... dept

We've written plenty about the mess around pre-1972 sound recordings and online streaming services. Technically, federal copyright law does not apply to sound recordings from before 1972. And while that might make you think they're in the public domain, that's not true at all. First, the compositions are still under copyright and much more importantly, a jumble of state laws did protect some aspects of those sound recordings -- and that's made a huge mess, including locking up some recordings for way, way longer than would be possible under today's federal copyright. On the flip side, however, it meant that certain aspects of federal copyright law that were not covered by state copyright law were fair game -- or so people thought.

This included in music streaming services. It had long been believed that you could publicly perform such pre-1972 songs without a license because, even under the various state and common law copyrights, there was really no concept of a "public performance" right anyway. Thus, services like SiriusXM and Pandora did not need to pay a performance fee to play those songs (for post-1972 recordings, both pay compulsory rates -- which are for different reasons that have to do with lobbying power). This whole mess could be settled by just moving pre-1972 sound recordings under federal copyright law -- which would make them subject to the same compulsory license fees as modern songs, but would also free up those old songs that state copyright law has locked up. It's a tradeoff, but probably the best result. However, the RIAA has fought very hard to block this.

Instead, it wants to have things both ways. It wants to keep those songs locked up for as long as possible, but still wants to get the benefits of federal copyright rights, such as public performance exclusivity. The reason, of course, is that it wants a big weapon -- to force SiriusXM, Pandora and others to pay much larger fees by not allowing them to rely on compulsory rates, but rather to have to come to a negotiated deal.

In order to make this happen there have been a series of lawsuits in different states. In both California and New York, courts ruled against SiriusXM, saying that the state law in California and the common law in NY could be seen to cover performance rights, and thus SiriusXM had to pay up.

However, just a few days ago, a court in Florida went the other way entirely, saying there was no such right in Florida. The state law had nothing and the common law was not established in that area, thus ruling against SiriusXM (and in favor of Flo & Eddie, the organization that brought the suit) would be creating a new right out of thin air (something some copyright experts noted that the other courts had done).

So.... that started to make things interesting. Except... just a few days later, the RIAA and SiriusXM have announced a massive settlement over pre-1972 recordings with SiriusXM agreeing to fork over $210 million. This is going to put enormous pressure on Pandora to come up with a similar settlement. But it's not actually going to answer many of the questions here. First, the settlement only covers the cases brought by the big labels (so not the Flo & Eddie cases...). Second, it only covers through the end of 2017, at which point, it's right back to the negotiating table.

Oh, and in case you're wondering, this line in the Hollywood Reporter story is probably the most important one:

The agreement announced today also doesn't deal with if and how the big record labels will share proceeds with its artists.
Because of course it doesn't.

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Posted on Techdirt - 26 June 2015 @ 2:47pm

Russia Blocks The Internet Archive's Wayback Machine Over A Single Page

from the keep-history-buried dept

Over the last few years, Russia has really been ramping up its efforts to censor the internet to hide content it doesn't like. As is often the case when the government gets the power to censor, that censorship starts spreading farther and farther.

The latest? Apparently in the effort to hide a single archive of a site that the Russian government doesn't like, the entire "Wayback Machine" from the Internet Archive has been blocked:

The Russian government has blocked the Internet Archive, the San-Francisco-based website that provides the popular Wayback Machine, which allows users to view archived webpages. The decision to ban the Internet Archive appears to be the work of Russia's Attorney General, meaning that police determined that the website contains extremist content.

Rublacklist.net says police targeted the Internet Archive because of a saved webpage called “Solitary Jihad in Russia,” a short text that claims to offer information about the “theory and practice of partisan resistance.” At one point, the text states that Islamic sharia law “must be instituted all across the world.”

According to the website Rublacklist.net (a censorship-monitoring project operated by the Russian Pirate Party), the page in questionon the Internet Archive was added to Russia's official registry of banned websites on June 23, 2015. Because the Internet Archive uses https, some Russian ISPs will have to block the entire website in order to comply with the blacklisting, since encrypted traffic won't allow them to differentiate between different pages of the same site. According to TJournal, users of mobile Internet provider Yota were unable to access the page, the Wayback Machine, or the Internet Archive on June 25.

As you hopefully already know, the Wayback Machine is a tremendously useful tool for looking up archived versions of websites. It is a kind of library of our internet history. Of course, as the article at Global Voices notes, part of the reason the entire site is getting blocked is due to the use of HTTPS. While some might argue that this is a reason why sites shouldn't go to default HTTPS, I'd argued the opposite: it shows the value in HTTPS in that it makes censorship much more difficult such that when it occurs, the results are so ridiculous that it hopefully leads to greater pushback on the ridiculous attempts to censor.

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Posted on Techdirt - 26 June 2015 @ 12:32pm

France Gives In To Insanity And Rioting Taxi Drivers: Cracks Down On Uber

from the because-that'll-help dept

Yesterday, we wrote about taxi drivers in France going absolutely insane in protesting the fact that they don't like competition from Uber. They took drivers hostage, set fires and flipped cars over -- basically reminding everyone that "hey, Uber drivers aren't nearly as fucking crazy as taxi drivers." But here's the amazing thing: the French government apparently has decided to appease these modern day luddites:

France ordered a nationwide clampdown on UberPOP on Thursday, siding with taxi drivers who blockaded major transport hubs in angry protests against the popular online ride-sharing service.
Not only that, French Prime Minister Manuel Valls, rather than call out the taxi drivers, pretended that it was the fault of "both sides"
Prime Minister Manuel Valls condemned the violence and incidents "on both sides" as the government sought to take a tough stand on the protests while backing the drivers' case.

"They give a deplorable image to visitors to our country," he said during a visit to Colombia, adding that all available legal measures would be taken to halt the UberPOP activity.
The French bureaucrats are now telling law enforcement to seize cars from Uber drivers. Really.
In a toughening of the French stance, Interior Minister Bernard Cazeneuve ordered Paris police to issue a decree banning UberPOP and said cars defying the order would be seized.

"The government will never accept the law of the jungle," he said in a television declaration on Thursday evening.
Again, as most users of Uber and other such services will tell you, the experience tends to be a lot better than crappy cab experiences.

And European bureaucrats sit and wonder why they can't have more innovative internet companies starting up there. Perhaps they should look at situations like this and how they respond to innovative companies that disrupt legacy, monopoly services by providing something that the public actually wants.

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Posted on Techdirt - 26 June 2015 @ 9:30am

UK Politician Theresa May Tries To Out-Orwell Orwell With Insanely Authoritarian Speech

from the i-am-the-decider-of-good-and-bad-thoughts dept

We've written a few times about Theresa May, the UK's Home Secretary, who seems to have scarily authoritarian, anti-democratic and anti-free speech views. While she insists that the UK isn't a surveillance state, she can't tell you why, because revealing the secrets of the UK surveillance state might put the public at risk. Since late last year, she's been pushing strongly for outlawing thought crimes, which would allow her to prevent people from sharing their views on the internet or at events, if she deems them to be too extreme. After the recent election, the plan to move this forward has gone into effect, with David Cameron gleefully announcing that just obeying the law will no longer stop the UK government from harassing you. Now, if it doesn't like you or what you believe, you will be silenced.

Given all that, it is absolutely terrifying to read Theresa May's recent speech given at the Metropolitan Police's counter-terrorism conference. Given the audience, perhaps it shouldn't be too surprising that May would go off the deep end of Orwellian craziness -- but it's still fairly astounding to see what she actually said. It honestly reads like a bad novel or bad movie script where an editor or producer would scribble on the page "no real person talks like that." Theresa May does, apparently. Here are some of the lowlights.

Time and again we are seeing what we are now up against: the powerful allure of propaganda pumped out by ISIL and others to recruit and brainwash British men and women, the access social media and modern communications give terrorists to vulnerable people, and the desire of those terrorists to poison others against our values and our way of life.
And so we begin with FUD. This popular idea that because ISIS is pretty good at using social media, it's that social media that is the problem. While there are lots of news stories out there claiming that ISIS' social media usage is drawing recruits, actual research into what's going on paints a much more nuanced picture that suggests that while social media is one tool that is used for recruiting, there is almost no evidence to suggest that the social media campaign is successful in "brainwashing" men and women to support ISIS. Rather, the hype about ISIS and social media is overblown. Most of the recruitment actually comes from within existing social circles. It may use the internet, but it's not happening because of the internet.

Lots of studies have certainly found that social media plays a part, but it doesn't suggest that merely silencing social media will help. A RAND study found no evidence "that the internet accelerates radicalisation or replaces the need for individuals to meet in person during their radicalisation process," and it also "didn't find any supporting evidence for the concept of self-radicalisation through the internet." While other studies, such as those from the Soufan Group and the International Centre for the Study of Radicalisation, show more support for radicalization on the internet, and also note that social media is just one component that pushes those who are already marginalized into deciding to take that step. In other words, these are often people on the edge already, and it's not clear that censorship is likely to help, other than making these people feel more marginalized.

May goes on to detail various attacks in the UK and elsewhere in Europe, drumming up more fear. And, it's true, that the world is a dangerous place and many people are trying to cause harm. But to think that the answer to that is more surveillance, silencing free speech and making the marginalized feel more marginalized... well, that seems like an approach destined to fail. But it's the approach May supports wholeheartedly, as she gleefully talks about the approach taken by her government. First, she really enjoys kicking people out of the country if she doesn't like them:
We made it easier to get rid of undesirable foreign nationals, including terrorists and terror suspects.

[....]

Since August 2013 I have deprived 10 people of their British citizenship on the grounds that I do not consider their presence in the UK to be conducive to the public good.
Think about that latter statement for a second. Because a government official decides that she doesn't think your presence in the UK is "conducive to the public good" she can simply strip their British citizenship. I'm sure that doesn't anger those folks and encourage them to join forces with those who hate the UK at all...

And, of course, the censorship:
Our Internet Referral Unit takes down terrorist-related content from the internet, and since February 2010 we have removed more than 90,000 pieces of material – currently removing around 1,000 pieces a week.
Again, because making content that marginalized groups are reading disappear doesn't make them feel more oppressed and more angry at all...

And, of course, she's been actively expanding her powers in these areas:
We introduced a new power to temporarily seize the passports of people suspected of travelling to engage in terrorism overseas, and since it came into force I can confirm that we have used this power and it has proved effective....

We extended the Authority To Carry provisions, and we are refusing airlines authority to carry to the UK people who have been excluded or deported from the UK or who are using invalid, stolen or lost travel documents.
And then, of course, she eagerly draws in all sorts of institutions -- including schools -- to have a responsibility to be trying to sniff out those darn terrorists in their midst:
And from 1 July the new statutory Prevent duty for specified authorities will commence. Once this has been fully implemented it will require local authorities, the police, prisons, probation services, schools, colleges – and yes, universities too – to have due regard to the need to prevent people from being drawn into terrorism.
The end result? The UK is locking up tons of people on charges of terrorism, despite no actual terrorism happening there:
Mark Rowley, the Assistant Commissioner of the Metropolitan Police, summed up that workload earlier this year when he said that terrorists are being arrested at a rate of almost one every day.
You'd think with so many terrorists, at least a few more attacks would get through. Or is this all just a bit of a "rounding up the marginalized people" exercise?

Hilariously, at the end of the speech, she says that the best way to counter this threat is to highlight the "positive vision" of the UK and its "values."
So the Government has announced a new counter-extremism strategy to protect people from extremism in all its forms: non-violent and violent, Islamist and neo-Nazi. At the heart of that strategy sits a positive vision of Britain and our values, and an open offer to work in partnership with all those determined to eradicate extremism.
Considering she just spent most of the speech advocating censorship, kicking undesirable people out of the country and greater and greater surveillance powers, it seems that those "values" are pretty clear. And, as she makes it clear in the very next paragraph, apparently the "value" of letting those marginalized people speak out is not included:
I want this partnership to reclaim that debate…. to defeat their poisonous ideology… and deny them the opportunity to spread messages of hate and division.
None of this, of course, is to defend ISIS or its media propaganda machine, which at the very least has been effective in getting its message out. But the idea that the way to counter this is through censorship, surveillance and threats, rather than direct engagement seems to muddle the message of claiming the UK is about freedom and democracy, doesn't it?

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Posted on Techdirt - 26 June 2015 @ 8:08am

How Chris Christie Used A Manufactured Terrorist Plot To Boost His Political Career

from the own-plots dept

For a few years now, we've been covering the proliferation of the FBI's own plots, in which they basically set up a fake terrorist plot, and use their own undercover agents or (preferably) informants (generally former criminals who get paid and/or favors such as reduced sentences) to go out seeking young and gullible individuals to convince to "join" the plot (a plot that has no connection to reality). Then they stage a big arrest and an even bigger press conference about how they "stopped" a terrorist threat. We've written about examples of this over and over and over and over and over and over and over and over and over and over and over and over and over and over again. Apparently, a huge chunk of the FBI's resources goes toward manufacturing these kinds of fake plots, which help generate scary headlines, but rarely seem to do much other than putting young, gullible folks in jail.

The Intercept has now published a story of one of these cases that is so extreme and so ridiculous that it should make you angry. It is the story of the "Fort Dix Five" -- a case that Chris Christie led the prosecution of while he was a US Attorney before becoming governor. This case was part of his fame and his "tough on terror" bona fides. Now, as Christie prepares his presidential campaign announcement, the case against the Fort Dix Five is a big part of his biography:

In a 2012 speech to the American-Israel Public Affairs Committee (AIPAC), Christie recalled his success in the “uncovering of a plot to kill American servicemen and women,” telling a packed audience at the New York Hilton Hotel that he helped send to prison a group of “Muslim men practicing with semi-automatic weapons and screaming about jihad against the infidels.” Today, both the Republican Governors Association and the New Jersey Republican Party list the Fort Dix case as “one of Christie’s finest moments” under his biography.
Except, as the Intercept writeup details, despite putting three brothers away for life, there was no evidence against them. There was one friend of theirs, who liked to make up stories and brag a lot, who talked about an idea to shoot people at Fort Dix, but no indication at all that the other participants (mainly the three Duka brothers) knew about this plot at all. And then the fifth member of the "Fort Dix Five", upon hearing about the "plot", immediately went to the police to tell them about it. The Intercept has also published a short film about the Duka brothers (narrated by their younger brother) that is worth watching:
The video shows clips of the footage the FBI got on the brothers, none of which ever has them discussing a plot against Fort Dix -- and actually tends to just show them messing around or even pushing back while the two FBI informants pushed them to get more involved in plots, which the brothers mostly ignored. Even the story of how the brothers came to the attention of the FBI is somewhat ridiculous. After a ski vacation in the Poconos, in which the brothers also did some horseback riding and went to a shooting range, they tried to make a DVD of some of the video they shot to give to everyone who went on the trip as a memento. In the video, while at the shooting range, some of the brothers say "allahu akbar" leading the guy making the DVDs at Circuit City to alert the feds.

Despite the two FBI informants pushing to try to get the brothers engaged in a plot for a year -- mainly by pressuring the one show off guy who kept saying he had talked to them about it -- there is no evidence of any actual plot whatsoever. One of the informants and the one show off guy both admit that the brothers had no role in the plot. Eventually, the FBI set up a fake gun buy -- as the brothers were fans of guns, but as non-US citizens couldn't buy guns legally. It's pretty clear in going through with the plan to buy some guns, they broke the law, but it had nothing to do with a terrorist plot at all, and so the charges left them baffled. But in the end it didn't matter:
Delivering Shain’s sentence, the culmination of a terrorism case that had lasted over two years, Judge Kugler said, “It’s not my place or desire at this time to review all the evidence … Suffice to say this defendant was in the middle of this plot. I’m realistic, I remember that they weren’t being taped 24 hours a day seven days a week.”

Brushing off the lack of direct evidence, Kugler added: “That there isn’t more explicit evidence does not concern me and obviously didn’t concern the jury either … I cannot deter this defendant, because of his belief system, from further crimes.”
Equally as disturbing is the way they included the fifth member of the "Fort Dix Five," Serdar Tatar, a friend of the Dukas who the braggart guy, Mohamad Shnewer, dragged into the "plot" to prove to the FBI informant that he could pull together people to pull off an attack. Except Tatar -- who wanted to become a police officer -- went to the police instead. And still got included in the charges.
Omar apparently felt more comfortable approaching Tatar than the Duka brothers and began courting the 23-year-old. He told him of the plot to attack Fort Dix and openly asked for his help: he needed the pizza delivery map.

Tatar, who had since left his father’s pizza shop and moved to Philadelphia, was working at a 7-Eleven when Sgt. Dean Dandridge of the Philadelphia Police Department came by for his daily coffee. On November 15, 2006, Tatar told Dandridge that he believed Omar might be planning a terrorist attack. Neither Tatar, nor Dandridge, had any way of knowing that Omar was an informant.

Dandridge left Tatar’s information with the FBI, expecting the bureau’s agents would be in touch soon. For three weeks, Tatar waited for the FBI to contact him. In the meantime, he recorded at least one conversation with Omar, so that when the authorities did reach out, he would have information to give them.
The full story and the video are infuriating. Yes, the FBI should be looking out for people looking to perform acts of terrorism and such, but in case after case after case we don't see them doing that. We see them setting up elaborate theater productions. In many of those cases, after lots of pressure, at the very least, the gullible and troubled individuals make some sort of statement to agree to participate in the "plot." This case -- as high profile as it is -- is even more exceptional in that 4 of the 5 participants never agreed to take part in any plot at all, with three of them not even knowing there was a plot.

The story is a complete travesty and raises serious questions about what the FBI and Chris Christie were doing, other than padding their resumes.

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Posted on Techdirt - 25 June 2015 @ 2:34pm

The Free Market Case For Patent Reform

from the let's-start-with-it's-not-property dept

A modest attempt at patent reform (mainly targeting egregious patent trolling practices) is making its way through Congress these days at the usual glacial pace. However, even if it does eventually make it through, there is still a tremendous amount left to do on patent reform. Derek Khanna, who famously wrote the wonderful House Republican Study Committee report urging major copyright reform -- which so upset Hollywood that favors were called in to get the entire report retracted and cost Khanna his job, has now tried to write a similar report on patent reform. This one is for Lincoln Labs -- a think tank trying to present more free market/libertarian ideas into the technology policy arena.

As Khanna notes in this new paper, it's unfortunate to see many conservative groups have come out against patent reform, often based on a misuse of the word "property."

Recently, several conservative organizations— many of whom receive funding from industries with vested interests—have tried to preempt any form of patent reform by arguing how patent reform would violate their “property rights.”

Nothing could be further from the truth: janitors do not have “property” in how to clean a building; Apple does not have “property” in rounded rectangles and “slide to unlock”; Amazon does not have “property” in one-click checkout; Priceline does not have “property” in the concept of reverse auctions; Microsoft does not have “property” in squiggly lines when you mistype a word; Smuckers doesn’t have “property” in peanut butter and jelly sandwiches, anymore than a known patent troll has a “property” in the entire practice of podcasting; certainly no one ought to have “property” in the concept of the hyperlink; and we should probably all agree that no one ought to have “property” in the idea of exercising a cat by using a laser pointer.
Instead, as we've noted for years, patents are a form of a monopoly right, and for those who claim to support the free market, you'd think they'd be very concerned about a slew of government granted monopolies (being granted at an ever increasing rate these days -- to the tune of hundreds of thousands a year).

Khanna also points out, rightly, that this massive rise in patent monopolies is a form of crony capitalism, used to keep out competition and to hold back free markets. He compares it to other highly regulated markets where it's quite obvious the regulations have little to do with the stated purpose, but now are designed mainly to protect those who already are in power.

As Khanna points out in the report, "more patents" does not equal "more innovation." If there are too many patents, it will only serve to clog the field and limit a vast amount of innovation. Thus he suggests there'a "curve" of patent optimality, and it's important to consider that in designing a patent system.
While the chart is a bit of a broad generalization (especially since different areas of innovation appear to react differently to different levels of patenting), the point is rather important, because too many people simply assuming that more patents automatically means more innovation.

So how do we reform all of this to make the system work better? He has a bunch of suggestions (some of which are already being considered):
  1. Increase patent quality requirements: There's a lot of detail in the report about how this can be done, and it's incredibly important. The incentive structure of the current patent system today encourages allowing crappy patents, which is why a huge number of patent applications are eventually approved. One important sub-suggestion in this arena is in fixing the "prior art" setup. Right now, patent examiners are not allowed to do crazy things like search the internet for prior art. Instead, they focus on older patents and journal articles. But in lots of areas, such as programming, that misses tons of prior art.
  2. Make patent applications accessible and require them to actually teach: Patent system supporters will often tell you that the true purpose of the patent system is to "disclose" the invention so that others can use it (either by license during the patent term or by anyone after). But, for many (especially in the software field) that's a joke. The patents almost never reveal anything useful at all in those fields. Khanna suggests a higher standard such that the patents actually do need to be useful to others in the field. That would be tremendously helpful.
  3. Reduce or eliminate business method and design patents: A large number of the worst patents are "business method" patents that are often just patenting common sense. There is no reason for this. Design patents are so similar to trademark law that most of the reasons for design patents can and should be covered by trademark law instead.
  4. Create an independent invention defense: This is my own personal favorite and the most important fix in my own list of recommendations. The idea that someone who came up with an idea entirely on their own isn't allowed to make use of their own invention seems like a much bigger "property rights" violation than invalidating bad patents. This would solve many of the worst problems of the patent system today, since so many shakedown efforts have absolutely nothing to do with copying, but just multiple people coming up with similar concepts.
  5. Loser pays: Also known as fee-shifting, this is a key component to patent reform that is currently on the table today to scare off frivolous patent suits that are just designed to shake people down.
  6. Speed up the patent approval and rejection process: Unfortunately, the report doesn't have much in the way of details as to how this would be done -- but I would argue that if most of the other recommendations were put in place, this wouldn't be much of a problem, because there would be a lot fewer bogus patent applications to deal with.
  7. Couple the US patent system with other systems to encourage innovation: The key idea here: look for things like the famous "x prizes" to incentive big bang innovations, rather than patents. This is an idea that's been out there for a while, and has support from a number of Nobel Prize winning economists. The UK just recently endorsed this idea as well. It's also pretty non-partisan, seeing as the biggest supporter of such an idea in Congress is Senator Bernie Sanders.
It's a really good report and well worth reading. It is lacking a couple of my own favorite suggestions, though. I still think we need to go beyond just an "independent inventor's defense" to the point that independent invention is seen as a sign of obviousness. Patents are only supposed to be granted if the invention is considered "non-obvious" to a person who is "skilled in the art." If we're seeing multiple people "skilled in the art" coming along and inventing the same damn thing, that certainly seems to suggest obviousness to me. Thus, if there is widespread independent invention within a short time frame, without any evidence of knowledge or copying, it should stand to reason that any such patents are invalid. This would clear out a ton of the problem patents.

It's unfortunate that some free market supporters have hijacked the story of patents to pretend that they're about the free market, when they're really about the opposite. Papers like Derek's hopefully move things back in the other direction.

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Posted on Techdirt - 25 June 2015 @ 10:41am

European Taxi Drivers Lose Their Collective Mind Over Uber

from the yeah,-like-that's-going-to-help dept

Okay, there are some legitimate gripes one can have about driver-on-demand services like Uber even if I think many are overstated. You can complain that you don't like the way the company runs its business. You can question the company's commitment to privacy. You can question the company's hardball tactics with politicians and journalists. You can even question the impact that the company has had on the market. These are all legitimate areas to explore, though the deeper you go, the more you're likely to realize that most of the complaints are exaggerated. However, the really crazy kneejerk anti-Uber sentiment tends to be ridiculous, and frequently driven by cab companies that just don't like the competition. For those who use Uber, the service is almost always significantly better, more convenient (and these days, often cheaper) than traditional cab service. That's what happens when you're enabling competition in a previously limited market.

But some folks still are going absolutely nuts over Uber, and France appears to be ground zero for the craziest of the crazy anti-Uber folks. We'd already mentioned that French officials had raided Uber's offices not too long ago, but today cab drivers decided to "protest" Uber by... showing that they're a bunch of violent hooligans. At least that seems to be the message cab drivers are sending with today's violent anti-Uber protests.

French taxi drivers blocked the entrances to Paris’s major airports and train stations, while disruptions were also reported in other cities, including Marseille and Aix-en-Provence in the South.

In Grenoble, near the border with Italy, taxi associations burned tires on the highway, while in Paris, police officers in riot gear used tear gas to disrupt the protests.

The anger from French taxi drivers is the latest in a series of challenges confronting Uber, which has been accused by taxi associations and some policy makers of breaking national transportation laws and of creating unfair competition to traditional taxis. The ride-booking service faces regulatory scrutiny in many of the countries in which it operates.
If the fire situation didn't already give you a clue, these protests quickly went beyond mere protests, to true modern Luddism, with taxi drivers starting to flip cars and setting more fires.
Of all people, Courtney Love was in Paris and found herself held hostage because of the violent attacks:
Originally, this morning I was just going to write a post about London's silly move to make Uber drivers pass a special test akin to the infamous "The Knowledge," but then France cabbies went and did this sort of overreaction.

So here's the question: what do these cabbies think they're accomplishing here? If Uber wasn't a service that people wanted to use, then there wouldn't be a problem. But it is something they want to use, and it's a service they like. Getting violent, flipping cars, setting fires and terrorizing passengers is going to do what exactly? Suddenly get everyone to think "why, yes, I'd rather pay extra money and take a ride with these sociopaths?" Yes, Uber can be a bit brash in how it carries itself, but the way to deal with that is to provide a better service. Flipping cars and setting fires does not appear to be doing anything related to that.

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Posted on Techdirt - 24 June 2015 @ 11:34am

The Ridiculous Redactions The DOJ Required To Try To Hide The Details Of Its Google Gag Order

from the come-on dept

We already wrote a long and detailed post about the DOJ gagging Google for over four years, preventing it from telling Jacob Appelbaum about the government's §2703(d) Order for his Gmail info (a §2703(d) order is like a subpoena, but with less privacy protections -- which is why the government is a fan). The gag was finally allowed to be lifted on April 1st of this year, despite most of the key moments happening in the early months of 2011. However, as part of the agreement to finally unseal this document, the DOJ apparently required parts of it to be redacted. Perhaps that's understandable, but some of the redactions are so ridiculous as to be laughable -- starting mainly with trying to make sure that every judge and every DOJ employee in the documents is hidden away. Throughout the document, you see examples like this:

Of course, amusingly, sometimes they redact the phone numbers, and sometimes they don't. So I'm sure that's useful.

And, really, what sort of court system do we have when the judges get to have their names redacted:
And, of course, there are plenty of pages like the following:
But the truly hilarious redactions come elsewhere. For example, despite being mentioned throughout the document without redactions, the name "Wikileaks" is redacted when mentioned in the headlines of stories and URLs.
I mean... really. The redactions of those URLs? What's that about? Does anyone honestly think that people can't find those articles? For what it's worth: Yeah, that really stopped me, DOJ!

And this even extends to the exhibits of publicly available web pages, which the DOJ still needed redacted. This has to be my favorite:
Now watch as I blow your mind and link to: DOJ subpoenas Twitter records of several WikiLeaks volunteers and share the following screenshot I just took:
Even more amazingly, in the released documents, they redacted things in the article:
Now watch as I wave my magic wand... and unredacticus!
And then there's the fact that Appelbaum's own name is redacted repeatedly for no damn reason, since everyone has already admitted that it's him. This includes on public tweets, like this one:
It's like they're not even trying:
And this:
And there's an exhibit with the first of those two "tweets" redacted again:
Yeah, that's Wikileaks' Twitter account, which is kinda obvious from the background and all. But here you go:
The second one -- despite the claim in the document -- does not actually appear to be a tweet at all. However, it was stated by another of the individuals who the DOJ targeted with the Twitter Order, Rop Gonggrijp -- not on his Twitter account, but rather in a blog post about being targeted.

They even want Wikipedia redacted. I wish I were joking.
And that one even tries -- but sometimes fails to redact each mention of Wikileaks even in the references and links at the end. I mean, really:
All of this should raise plenty of questions. Beyond just the ridiculousness of the original gag order, it now appears that the DOJ is abusing the redaction process for no good reason at all. In some cases, it's clearly to avoid having any of the DOJ team or the judges criticized publicly -- because what kind of democracy or due process is there if we have transparency. In other cases, it just seems... to be for no reason whatsoever except "because we can." That's not how the judicial system is supposed to work. We have public courts for a reason.

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Posted on Techdirt - 24 June 2015 @ 10:29am

Google Was Gagged For Four Years From Talking About Fighting The Wikileaks Investigation

from the harassment-all-the-way dept

Reporter, activity and security guy Jacob Appelbaum has been harassed by the government for years for helping with Wikileaks. We've written before about how he gets detained at the border and is ordered to hand over all of his electronic equipment. A few years ago, we wrote about the ridiculous legal fight in which the Justice Department demanded that Twitter hand over Appelbaum's messages without telling anyone, as part of the still ridiculous grand jury investigation into Wikileaks (which still isn't over!).

If you recall, as part of that discussion about the legal fight with Twitter -- in which we gave kudos to Twitter for standing up for its users' privacy -- it also came out that similar demands for information were also sent to Google and Sonic.net in trying to access Appelbaum's details. Sonic.net quickly said that it fought the request -- but Google gave no comment. We found this to be disappointing at the time.

However, late last week, it was finally revealed -- four years later -- that Google not only fought the order, but was gagged from talking about it until just recently. Reading through the full set of released documents (300 pages) is quite incredible -- as are Appelbaum's own comments as he reads through the document himself.

If you don't recall the big legal fight with Twitter, the DOJ refused to get a warrant, but instead got what's known as a 2703(d) order, which has a much lower privacy protection standard. A warrant, as you know, requires probable cause. A 2703(d) order just requires "reasonable grounds to believe that the contents [of the email] are relevant and material to an ongoing criminal investigation."

This whole thing started in late 2010 when the grand jury investigation sent those 2703(d) orders out -- each accompanied by a gag order. Twitter fought the gag order and was able to get a judge to unseal it in early January 2011 for the sake of alerting the users in question, to see if they would protest (which they did, though unsuccessfully). Twitter alerted a few users, including Appelbaum, that the feds had requested information. While many had assumed the feds had used a warrant or a traditional subpoena, it was quickly revealed that it was the 2703(d) process, raising many more concerns. The fact that there were also a number of mistakes in the order raised further concerns. The revelation of this order got a lot of press attention, which the DOJ hated.

In fact, that's what much of the (now revealed) argument between Google and the DOJ is discussing. Google points out that the identical order in the identical investigation was made public concerning Twitter's involvement, and thus, there is no reason not to make it public for Google too. The DOJ responds about just how incredibly harmful the press attention of the Twitter order is... though they fail to explain a single way it is harmful, other than that some online internet commenters were kinda mean to them. First, the DOJ insisted that it was important that Google be gagged, and then said that Twitter's ungagging "seriously jeopardized the investigation."

The Order should remain sealed at this time. The Order satisfies all statutory and constitutional requirements, and the [REDACTED] subscriber would not have a valid basis for challenging it even if Google did provide him with notice. Furthermore, unsealing and permitting disclosure at this time is not in the best interest of the investigation. Unsealing and permitting disclosure of the Twitter Order has already seriously jeopardized the investigation and the government believes that further disclosures at this time will exacerbate this problem.
Of course, the DOJ never actually goes into any detail about how revealing that it was digging for information jeopardized the investigation at all. It just makes these baseless claims. Later, it further argues that unsealing the Twitter order (which it had agreed to allow) was a mistake in hindsight:
Indeed, in light of the events that followed the unsealing and disclosure of the Twitter Order, had the government known then what it does now, it would not have voluntarily filed the motion to authorize it.
Why is that? Well, the only argument the government seems to make is that once the Twitter Order was public, people got mad and said not nice things about the DOJ. First, it points to this Glenn Greenwald article from 2011, in which he revealed more details of the original Twitter Order, including the name of the magistrate judge who signed off on it. The DOJ presents this as if it's harassment, though read the article and see if that's reasonable. And then it further claims that the US Attorneys were "harassed on the internet." But the only evidence it provides is this:
So some kid gets angry and fires off an angry email to the DOJ with the Anonymous tagline at the end, and the DOJ gets all weak-kneed? Really?

Even more bizarre, the DOJ includes a long paragraph talking about how all of the praise that Twitter got after the Twitter Order was revealed explains why the Google Order shouldn't be revealed. That is, the DOJ is explicitly saying "man, it would suck if actually protecting the privacy of users became contagious":

That does not seem like a legitimate reason for a gag order. It sounds like the DOJ is unwilling to support due process and is afraid to actually have to defend its actions.

In response to this, Google quite reasonably points out that the government's argument cancels out its own argument. At one point, for example, the DOJ pointed to one of the people it was seeking information on Tweeting to followers not to send direct messages, and another saying that it's likely that Google and Facebook received similar orders. As Google points out, given that, the targets already suspect what is going on and thus it couldn't possibly make sense to maintain the gag order. As for the "parade of horribles" above, Google rightly points out that none of them show how revealing the Google Order will exacerbate any of the "problems" it outlined.

The fight was put on hold while the individuals in question (including Appelbaum) fought the Twitter Order. And, when that failed, the case picked up again, with the DOJ saying "look, that failed, so this case is over." Google responded, quite reasonably, that whether or not the individuals succeeded in stopping the information disclosure is a wholly separate issue from whether or not the gag order makes sense. Unfortunately, in the end, the court rejected all of Google's arguments. The court relies heavily on the fact that Appelbaum (though, bizarrely, his name is redacted here) tweeted the following: "Do not send me Direct Messages - My twitter account contents have apparently been invited to the (presumably-Grand Jury) in Alexandria."
To the court, this is evidence that any disclosure will lead to a change in behavior.

Furthermore, the court ridiculously buys into the claims by the DOJ that the "public campaign" supporting Twitter for standing up for the rights of its users is a form of witness intimidation. Really:
That concluding line is really incredible:
If the Google Order were unsealed, future service providers may do precisely what Google has done in this instance, namely resist compliance with a lawful §2703(d) order by bringing baseless legal challenges that have the effect of impeding the government's progress in the Wikileaks investigation.
In other words, merely challenging the legitimacy of a gag order with an associated court order to hand over someone's info -- in other words protecting a user's privacy is somehow seen as evidence of impeding an investigation. This is ridiculous.

Finally, as Lauren Weinstein points out in his own analysis of these newly released documents, this does show just how strongly Google fought the government to block the government from getting access to user info. There is this false belief out there that Google, in particular, has given the government free access to its servers (in part because of an incorrect interpretation of a Snowden document early on). Yet, this highlights how Google actually fought quite hard to protect its users' info (and this all happened more than two years before the Snowden leaks). Indeed, in my original post, about the revelation that Google had received a similar order, we were disappointed that unlike Twitter and Sonic, Google refused to comment. We had no way of knowing that the company had been gagged.

Even Appelbaum -- not exactly one to cheer on Google in most settings -- now admits that he's impressed by how strongly Google fought. A few of his tweets explaining this:




Separately, he notes that while we know about Twitter, Sonic and Google... we don't know about Facebook or Yahoo, leading him to wonder what happened there:


No matter what, this seems like yet another example of the DOJ being out of control and trying to cover up its own actions to keep them out of the public debate, rather than for any legitimate purpose.

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Posted on Techdirt - 24 June 2015 @ 9:32am

Legal Giant Dentons Demonstrates Exactly How Not To Respond To Critical Media Coverage

from the throwing-a-temper-tantrum dept

People keep telling me that most lawyers today understand things like the Streisand Effect and how trying to shut people up often draws that much more attention to things. It may not be true for small time lawyers, but the big law firms -- I'm told -- they all recognize this. Enter Dentons. Dentons is a pretty big law firm. American Lawyer magazine recently noted that, after merging with another firm, it was becoming the world's largest law firm. So you would think some of the lawyers there would know better than to throw an astoundingly childish temper tantrum over the way that very same American Lawyer magazine covered them. But, you'd be wrong.

As a few different lawyers have kindly sent in to us, Dentons has ramped up its ongoing spat with ALM, which started a year ago when Dentons stopped disclosing its "global profit per equity partner." Apparently most global law firms are willing to disclose this and ALM uses that data to discuss the state of various law firms. When Dentons stopped doing that, ALM (quite reasonably) argued that perhaps this was because the numbers didn't look that good and perhaps had been dropping:

I’m going to suspend any question of an ulterior motive here—that Dentons didn’t report its latest global PPP figure because, by our estimates, that number would have shown an overall PPP decline year over year of 20 percent, the worst showing in the Am Law 100.
Guess who didn't like that? Dentons! The law firm sent out a surprisingly petulant statement at the time, that included the following:
This lack of understanding of basic math, let alone simple logic, is not only stunning, but proves our point: contemporary law firms that operate in many different places and in many different business cultures can not be compared with those that don’t. It is an apples to oranges comparison.

[....]

Let’s hope that the American Lawyer’s researchers understand math and logic better than their editors, and are willing to engage in meaningful and serious conversations about the changes in our profession and in our business."
This year... same basic thing. Dentons won't publish the info, and ALM takes some guestimates -- suggesting Dentons' profits per equity partner are down again. Because that's a reasonable assumption. In response, Dentons threw another shitfit:
Again, the firm went ballistic. Mike McNamara, US Managing Partner, sent out a "correction demand" on Tuesday saying that AM Lawyer's methodology was "mystefying" and that it had "created" numbers that were "clearly false". Although he refused to provide the correct ones. AM Lawyer said it stood by its figures. The rest of the market is cracking out the popcorn and waiting for another ill-tempered open letter to be sent out. Watch this space.
No need to wait long. That was a month ago. Soon after, Dentons went out and set up an entire website calling attention to the fact that it won't publish its profits per equity partner like so many other firms and is just picking a fight with the largest trade magazine covering the legal fight.

And... that's not all!

Dentons has started taking out advertisements about this spat -- which have only served to draw more attention to Dentons' unwillingness to disclose its numbers. And then, on top of all that, it complains that ALM won't run the ad itself.

Hey, Dentons, if you want to pay some media property to run your silly ads calling more attention to the fact that, even as the largest law firm in the world, you can't resist acting like a child who's told that he can't have another piece of candy, feel free to throw that money our way. We have no problem running your ad.

Even more ridiculous, Dentons (again, the world's largest law firm) is going around claiming that it's being bullied by ALM. As RollOnFriday notes in the link above:
It's hard to see the enterprise as anything other than an expensive and very public embarrassment which has given the matter an unnecessary amount of airtime. Dentons might have, more sensibly, just ignored it. Or published its figures like absolutely everyone else.
But, in the meantime, the world is learning (1) that unlike other firms, Dentons won't publish its numbers and (2) despite being the world's largest law firm, it appears to act like the world's most insecure.

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Posted on Techdirt - 24 June 2015 @ 8:10am

ICANN's War On Whois Privacy

from the don't-let-them-win dept

If you follow internet governance issues at all, you know that ICANN is a total freaking mess. It's a dysfunctional organization that has always been dysfunctional, but remains in charge because of the lack of any reasonable alternatives. ICANN frequently seems to be driven by powerful interests that are just focused on squeezing as much money as possible out of the domain system, and appears to have little appetite for being what it should be: an independent body protecting the core of the internet. As if to put an exclamation point on that, it appears to now be going to war against basic privacy. Here are two separate, but somewhat related, examples.

First up, we have EasyDNS, who last month didn't beat around the bush in explaining just how ridiculous ICANN's new Whois Accuracy Program (WAP) is. The company noted that it regretted renewing its ICANN accreditation, even though it's necessary to register domain names. As EasyDNS notes, the whole WAP program is insane, and is almost designed to force domain owners to lose their domains -- especially if they want to keep a modicum of privacy. Under the program any time you change or renew your domains, you now will get an email requiring you to "verify" your whois data. As EasyDNS notes, since it's an email, it's designed in a way that looks very much like a phishing attempt, meaning many domain holders will ignore it. And if you ignore it... within 15 days, your registrar is supposed to suspend your domain. That program went into effect yesterday, and I imagine it won't be long before we hear the shrieks of pain as it impacts website owners. As EasyDNS notes:

You can thank ICANN for this policy, because if it were up to us, and you tasked us with coming up with the most idiotic, damaging, phish-friendly, disaster prone policy that accomplishes less than nothing and is utterly pointless, I question whether we would have been able to pull it off at this level. We're simply out of our league here.
But, that's not all! The good folks at Namecheap (who have sponsored us in the past here on the blog) have sent out an alarm (along with the EFF and Fight for the Future) over another proposal from ICANN concerning privacy and proxy services that many domain owners use to keep their information private. This is necessary these days, in part, because as anyone who owns a domain knows, that information gets scraped and you get spammed. A lot. And also, sometimes, people say things on the internet that they want to be anonymous in saying. And proxy services help you do that. But ICANN is effectively trying to kill that. Namecheap has put together the site RespectOurPrivacy.com to explain the issue and to ask people to tell ICANN to reject this proposal -- which was put together by MarkMonitor. Yes, MarkMonitor, the company famous for being engaged in all sorts of bogus censorship and takedown requests:
Under new guidelines proposed by MarkMonitor and others who represent the same industries that backed SOPA, domain holders with sites associated to "commercial activity" will no longer be able to protect their private information with WHOIS protection services. "Commercial activity" casts a wide net, which means that a vast number of domain holders will be affected. Your privacy provider could be forced to publish your contact data in WHOIS or even give it out to anyone who complains about your website, without due process. Why should a small business owner have to publicize her home address just to have a website?

We think your privacy should be protected, regardless of whether your website is personal or commercial, and your confidential info should not be revealed without due process. If you agree, it’s time to tell ICANN.
That site has more info and shows you how to contact ICANN to protest this move.

You can also look directly at the proposal itself, which notes that this view is not universal and there is disagreement over where the final rules will end up, but some have argued that:
"domains used for online financial transactions for commercial purpose should be ineligible for privacy and proxy registrations."
If MarkMonitor's involvement didn't tip you off, this is really a proposal of Hollywood who hates the fact that people can be anonymous online. It was presented to Congress last month by Steve Metalitz under the guise of the "Coalition for Online Accountability" -- a "coalition" made up of the MPAA, RIAA, ESA and SIIA (all copyright extremists). If you recognize Metalitz's name, it's because it's come up before. He's one of the entertainment industry's favorite lawyers, who helped push ACTA, SOPA and other bad copyright proposals. And now suddenly he's "concerned" about online accountability? Really? The main goal of the proposal is to destroy anonymity online by only allowing it in cases Hollywood approves of. In his presentation, Metalitz noted that there is only a "legitimate role for proxy registrations in limited circumstances." Have you applied for your special license to be anonymous yet? The MPAA and ICANN need to approve it first...

Hopefully ICANN backs away from these plans and starts to get its act together. ICANN could and should be a powerful force in favor of an open internet with strong privacy protections -- and not encouraging programs that require giving up your privacy just to have a domain name.

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Posted on Techdirt - 23 June 2015 @ 8:56pm

Wikileaks Reveals NSA Spying On French Presidents

from the is-that-really-a-big-deal? dept

Wikileaks has released some new documents showing that the NSA spied on the communications of a bunch of French Presidents.

The top secret documents derive from directly targeted NSA surveillance of the communications of French Presidents Francois Hollande (2012–present), Nicolas Sarkozy (2007–2012), and Jacques Chirac (1995–2007), as well as French cabinet ministers and the French Ambassador to the United States. The documents also contain the "selectors" from the target list, detailing the cell phone numbers of numerous officials in the Elysee up to and including the direct cell phone of the President.

Prominent within the top secret cache of documents are intelligence summaries of conversations between French government officials concerning some of the most pressing issues facing France and the international community, including the global financial crisis, the Greek debt crisis, the leadership and future of the European Union, the relationship between the Hollande administration and the German government of Angela Merkel, French efforts to determine the make-up of the executive staff of the United Nations, French involvement in the conflict in Palestine and a dispute between the French and US governments over US spying on France.

To be honest, as with the spying on leadership of other allies like Germany, I really don't think this is that big of a deal in reality. This is what intelligence services are supposed to be doing: spying on foreign governments. The revelations may make for some awkward diplomatic conversations, but you can bet that pretty much everyone knew this was going on already.

But, where this has the potential to get interesting is in the public perception. If the public gets angry about it, it can create international tensions, or lead to various other issues. But, on the whole, compared to spying on private citizens, it's difficult to get too outraged over spying on other governments -- even those deemed "friendly." You can bet the French are doing everything they can to spy back on the US as well.

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Posted on Techdirt - 23 June 2015 @ 3:55pm

Fast Track Moves Forward And Now The Fight Is On TPP Directly

from the well-that-sucks dept

As noted last week, Congress played some games last week and was able to move forward on fast track authority (Trade Promotion Authority -- or TPA) in the House by decoupling it from Trade Adjustment Assistance (TAA). Before that, everyone had said that TPA couldn't move forward in the Senate without TAA, but it did move forward with exactly 60 votes (the minimum it needed). That means fast track is going to the President's desk, and of course he'll sign it. Previously, the President had promised that he wouldn't sign TPA without TAA, so I'm still at a loss as to how that's happening, since the House hasn't approved TAA yet and theoretically could block Obama from signing TPA by rejecting TAA -- if (and it's a big if) President Obama actually stands by that promise. However, the way everyone's talking about this, it seems pretty clear that Congress is just going to cave, and will pass TAA as well.

And, effectively, that means this is a done deal. As bizarre as it sounds, Republicans in Congress (with the help of a small group of Democrats) have given up their own Constitutional powers to regulate international commerce, and handed it to the President of an opposing party, while the majority of Democrats fought to keep their own President (and the next President...) from having such powers.

In the end, this means that the Trans Pacific Partnership (TPP) agreement is pretty much a done deal. Negotiators have more or less said that it's ready to go, but thanks to having fast track, our own Congress will not be able to call out any of the problems in the agreement -- or ask for any changes. It can only vote thumbs up or thumbs down on the agreement. And that means that the very dangerous corporate giveaways on intellectual property laws -- locking us into extended copyrights, weakening the ability to make and sell cheap drugs -- and corporate sovereignty provisions -- allowing companies to sue for taxpayer funds over "lost profits" due to regulatory changes, is about to expand massively.

At this point, about the only way I can see that the TPP doesn't make it across the finish line is if there's a huge public outcry, making it totally toxic to Congress, but that seems like a very big long shot. So, thanks, Congress, for selling out the American public to a few big corporations today. It's going to do real harm, and you'll pretend you didn't realize that down the road. What a sham.

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