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

He can be found on Twitter at http://www.twitter.com/mmasnick

Posted on Techdirt - 26 October 2016 @ 4:08pm

Off We Go: Oracle Officially Appeals Google's Fair Use Win

from the off-to-the-races dept

It was only a matter of time until this happened, but Oracle has officially appealed its fair use Java API loss to the Federal Circuit (CAFC). As you recall, after a years-long process, including the (correct) ruling that APIs are not covered by copyright being ridiculously overturned by CAFC, a new trial found that even if APIs are copyright-eligible, Google's use was covered by fair use. Oracle then tried multiple times to get Judge William Alsup to throw out the jury's ruling, but failed. In fact, on Oracle's second attempt to get Alsup to throw out the jury's ruling, citing "game changing" evidence that Google failed to hand over important information on discovery, it actually turned out that Oracle's lawyers had simply failed to read what Google had, in fact, handed over.

And now the case will finally move up a level, as it was always going to do. There should be lots of fireworks here. CAFC is notoriously bad on a variety of issues, but it would take a pretty impressive level of confusion here to mess this up. Going against a jury's findings on fair use is a big ask, and Oracle is likely to try some silly games whining about jury instructions and such. Hopefully CAFC doesn't fall for it. If it does, hopefully, it doesn't muck stuff up as badly as it did with its first ruling in this case, that simply got confused over the nature of what an API actually is.

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Posted on Techdirt - 26 October 2016 @ 12:58pm

Google's Quiet, Confusing Privacy Policy Change Is Why We Need More Transparency & Control

from the don't-hide-this-shit dept

Last week, I wrote about how privacy is about tradeoffs, and despite what some people claim, there's no such thing as "absolute privacy," nor would you actually want something approximating what people think they mean by it. The real issue is the tradeoff. People are quite willing to trade certain information in exchange for value. But, the trade has to be clear and worth it. That's where the real problems come in. When we don't know what's happening with our data, or it's used in a sneaky way, that's when people feel abused. Give people a clear understanding of what they're giving and what they're getting and you eliminate most of the problem. Then give end users greater control over all of this and you eliminate even more of the problem.

This was our thinking in designing a Privacy Bill of Rights for companies to abide by in designing their services (along with EFF and Namecheap).

It appears that Google would fail to meet the standards of that bill of rights. Last week, ProPublica wrote about how Google quietly changed the privacy policy related to how it connects DoubleClick advertising to other data that it has about you, allowing the company to actually link your name and other identifying information to you as you surf around the web. And, on top of that, it apparently includes tying what you type in Gmail to the ads you might see.

The practical result of the change is that the DoubleClick ads that follow people around on the web may now be customized to them based on the keywords they used in their Gmail. It also means that Google could now, if it wished to, build a complete portrait of a user by name, based on everything they write in email, every website they visit and the searches they conduct.

The move is a sea change for Google and a further blow to the online ad industry’s longstanding contention that web tracking is mostly anonymous. In recent years, Facebook, offline data brokers and others have increasingly sought to combine their troves of web tracking data with people’s real names. But until this summer, Google held the line.
Here's the thing: a lot of privacy advocates I know will likely say that this move is de facto "bad." And that any linkage between identity and ads is bad. But I'd argue that the real problem here is Google's unwillingness to be clear and transparent. It slipped this change in and then made up some PR-speak about why it was doing it, in a way that wasn't at all clear to basically anyone:

Google spokeswoman Andrea Faville emailed a statement describing Google’s change in privacy policy as an update to adjust to the “smartphone revolution”

“We updated our ads system, and the associated user controls, to match the way people use Google today: across many different devices,” Faville wrote. She added that the change “is 100% optional–if users do not opt-in to these changes, their Google experience will remain unchanged.” (Read Google’s entire statement.)

Existing Google users were prompted to opt-into the new tracking this summer through a request with titles such as “Some new features for your Google account.”

The “new features” received little scrutiny at the time. Wired wrote that it “gives you more granular control over how ads work across devices.” In a personal tech column, the New York Times also described the change as “new controls for the types of advertisements you see around the web.”

Blech. If this is really actually important, and provides more value, don't give the bullshit explanation and confuse reporters. Tell people what's happening and why. If Google is afraid to be upfront and honest about it (things that the company used to do) then it feels like the company recognizes that it's not providing enough value to consumers with these moves. To paraphrase the old saying about it not being the crime but the coverup that gets people, in this case, it's not the privacy policy change that's the clear problem here, but the fact that Google tried to hide it and mislead people about it.

Thankfully, Google does provide the other prong of our test: giving users control.
To opt-out of Google’s identified tracking, visit the Activity controls on Google’s My Account page, and uncheck the box next to “Include Chrome browsing history and activity from websites and apps that use Google services." You can also delete past activity from your account.
But it would have been a lot better if the company could have just been upfront and honest about it. This is why transparency and clarity about intentions are so important. If companies don't do that, then people will (rightly) assume that the moves are designed in a manner to be anti-consumer. If Google truly believes it's providing a better product with such changes, explain why and how and let users decide for themselves.

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Posted on Techdirt - 26 October 2016 @ 11:45am

Pissed Consumer Sues Reputation Management Firms Over Their Bogus Lawsuit/Fake Defendant/Takedown Scams

from the well,-here-we-go... dept

In the last few weeks, we've written a few posts about Richart Ruddie's company, Profile Defenders, which appears to be "improving reputations" online by filing bogus defamation lawsuits, finding a bogus made-up "defendant" to "admit" to posting defamatory information, reaching a "settlement" and getting a court order. The whole scheme is about getting that court order, which is then sent on to Google and others (mainly Google). The whole point: if Google sees a court order saying that some content is defamatory, it will de-index that page. That the whole process to get that court order is a total sham is basically ignored. That may be changing. We were just noting that some of Profile Defenders' cases are in trouble, and at least one has had the court order vacated.

Of course, it appears that Ruddie and Profile Defenders are not the only ones playing this game of judicial fraud. We wrote about a bunch of similar cases back in March that were targeting the online review site Pissed Consumer and some other review sites. At the time, Pissed Consumer had found 11 such lawsuits. In that article, we noted some of the lawyers and firms that appeared to be either involved or benefiting from these cases. And it appears that Pissed Consumer has had enough -- and has sued (represented by Marc Randazaa).

You can read the full complaint, which is an interesting read. It goes into great detail on each of the different cases that it's suing over, but the introduction to the complaint lays out the basics. I'm reposting it in full (minus some citations) here because it's a good summary:

This case involves a creative solution to a common frustration for many businesses, who do not like negative reviews that are published about them on the Internet. However, removing consumer reviews from the Internet is a difficult process given that they are protected by the First Amendment.

Nevada Corporate Headquarters, has gone to great lengths to attempt to suppress consumer reviews in the past. It has filed at least one SLAPP suit in Nevada seeking injunctive relief to censor those negative reviews. In that case, Nevada Corporate Headquarters suffered a resounding loss when they were hit with an anti-SLAPP order.... They also lost at summary judgment in a SLAPP-back suit. That action resulted in a significant judgment for attorney fees and costs....

Undaunted by these set-backs, Nevada Corporate Headquarters has now conspired with other companies and individuals to create a scam whereby they suppress negative reviews from the Internet, while evading any First Amendment or due process considerations. This scam also allows them to avoid the risk of another anti-SLAPP attorney fee award.

Several other businesses and professionals who have been the subject of negative reviews online have also employed the same fraudulent machinery as Nevada Corporate Headquarters, as a means of removing this content while evading detection and liability.

The scam is not all that complicated. Google will remove search engine results from its well-known search engine if it is provided with a court order determining that the information is indeed defamatory.

However, when Nevada Corporate Headquarters sued consumer review websites in the past, it was severely disappointed. (See Exhibits 1 & 2.) Therefore, they needed to concoct a new censorship scam. So they used a stooge plaintiff, ZCS Inc. ("ZCS"), to sue a stooge defendant, Collins Mattos ("Mattos").

Defendant Doe Corporations, so called “reputation management companies,” conceived and organized the scam as an alternative way to remove negative posts in lieu of undergoing an adversarial proceeding. Several other businesses and professionals have contacted these “reputation management companies,” which have used similar schemes to remove negative consumer reviews about them.

The other conspirators engaged attorneys Mark W. Lapham ("Lapham") and Owen T. Mascott (“Mascott”) to file sham lawsuits either by the subjects of the negative reviews or by corporations that had no interest in the allegedly defamatory statements, against a defendant who most certainly was not the party that published the allegedly defamatory statements, and the parties immediately stipulated to a judgment of injunctive relief, so the conspirators could provide the order to Google and other search engines, thus achieving the goal of deindexing all pages containing negative reviews.

At first blush, Defendants’ scam appears rather brilliant but incredibly unethical. Now that Plaintiff has uncovered and exposed Defendants’ unlawful deeds, Consumer Opinion LLC respectfully requests that this Court discipline them for those misdeeds.
The rest of the filing goes into a lot more details about these court orders, obtained under false pretenses.

The actual claims in the case are for unlawful, unfair and fraudulent business practices, abuse of process and civil conspiracy. As we've seen in other cases, actually getting lawyers disciplined for such bad behavior is actually fairly rare. But Randazza has a history of being a bulldog about these kinds of things (remember Righthaven?). This should be an interesting case to follow.

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Posted on Techdirt - 26 October 2016 @ 9:39am

The Reason The Copyright Office Misrepresented Copyright Law To The FCC: Hollywood Told It To

from the so-now-we-know dept

There was some oddity over the summer, when the Copyright Office flat out misrepresented copyright law to Congress and the FCC with regard to the impact on copyright of the FCC's (now dead) proposal to create competition among set top box providers. As we've explained over and over again, there were no copyright implications with the FCC's proposal. All it said was that if an authorized user wanted to access authorized content via a third party device, that authorized user should be able to do so. And yet, the Copyright Office, incorrectly, seemed to make up an entirely new exclusivity in copyright law (one that would outlaw DVRs) that basically said not only could a content provider license content to a cable TV provider, but it could also limit the devices on which end users could view that content.

Simply put: that's wrong. That's not how copyright law works, and we've known that since the Supreme Court's ruling in the Betamax case decades ago.

But why would the Copyright Office so misrepresent copyright law? That was the perplexing part. Even with a bunch of copyright professors explaining how wrong the Copyright Office was, the Office still went ahead with its letter. Of course, as with so many policy issues, it really seemed like the Copyright Office was just acting like a lobbying arm of Hollywood.

And that's because it was.

The EFF filed a FOIA request on the Copyright Office's emails and meetings concerning the set top box issue, and -- surprise surprise -- they basically coordinated directly with the MPAA and related lobbyists. The most stunning part? When both the MPAA and the FCC asked to meet with the Copyright Office about this, the Copyright Office quickly scheduled a meeting with... the MPAA. And pushed off the FCC meeting. And they lied to the FCC in the process. Then Copyright Office General Counsel Jacqueline Charlesworth's assistant told the FCC that she was not available to meet... on the very same week that she met with the MPAA over this issue. As EFF notes:

After the FCC announced its intention to break up the set-top box monopoly in February of this year, MPAA quickly called on the Copyright Office to meet on the matter. The documents indicate that the first meeting the Copyright Office held on the set-top box issue was not with the FCC but rather the MPAA. Although both the FCC and MPAA reached out to the Copyright Office in late March, Copyright Office officials met with MPAA on April 11 while postponing and meeting with the FCC a week later. Throughout the spring and summer of this year, the Copyright Office alternated between meetings with the FCC, MPAA, and other major content companies such as Comcast and Viacom. On May 31, just hours after holding a conference call with MPAA, the general counsel of Copyright Office emailed her counterpart at the FCC saying “the proposed rule may in fact implicate some rather serious copyright concerns.”
There was also a bizarre situation, in which a copyright maximalist Congressional Rep reached out to the Copyright Office, claiming that he'd heard from (recently fired) Copyright Office boss, Maria Pallante, basically asking him to officially request the Copyright Office's opinion on the FCC's plans. Others at the Copyright Office -- including Charlesworth -- note that they had been working under the impressiong that the Copyright Office was not seeking an official request from Congress to weigh in. The whole thing is quite bizarre.

But the really telling thing is that the Copyright Office basically spent all its time hearing from one side -- the MPAA and assorted studios, who disliked this idea not for any copyright reasons, but because they just wanted more control -- and totally ignored any other viewpoint (and certainly did not seek it out).
It seems that despite holding itself out as a neutral expert agency on copyright matters, the Copyright Office regularly engaged in discussions with only one set of parties as it formed its opinion. Not once did the agency reach out to the copyright scholars who explained to the FCC that no copyright interests were harmed by the set-top box proposal. Nor did the agency rethink its position when these same parties made clear that what they want is for the FCC to create new legal rights for them that have nothing to do with copyright law. The Copyright Office did eventually meet with a group of companies who are seeking to build competitive set-top boxes that consumers can buy, but that meeting happened on August 2, just one day before the Office issued its public statement. And that statement gives short shrift to the technology companies’ concerns.

When the U.S. Copyright Office waded into the debate, it could have brought an end to the misleading hand-wringing over copyright. Instead, it did the opposite by echoing the MPAA and cable companies, claiming that if cable operators were required to allow customers to use the devices of their choice to view the programs they pay for, the studios’ copyrights would somehow be violated. They even went so far as to say the current copyright law landscape is insufficient and therefore the FCC must do more to protect rightsholders.

An agency that listens only to the views of some industry groups without seeking out additional opinions cannot be a reliably neutral expert for Congress or the FCC. We hope that the FCC will weigh the Copyright Office’s comments appropriately, and resist efforts to derail the agency's work to end the set-top box monopoly.

If you read through the document the differences here are quite stark. There are many, many meetings with Hollywood, and many of the emails are jokey and informal (my favorite is when long term NBC Universal lobbyist Alec French tries to joke around with Jacqueline Charlesworth by calling her Jacqui, and then realizes he may have insulted her). The emails for the small group of set top box companies are much more detailed and formal. This is yet another example of how the Copyright Office is captured by Hollywood.

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Posted on Techdirt - 26 October 2016 @ 3:23am

With Interest In Profile Defenders' Questionable Lawsuits Rising, The Lawsuits Start Falling

from the reputation-management dept

Earlier this year, we were among the first to write about the highly questionable practice of "reputation management" companies filing clearly bogus lawsuits against unknown defendants, only to magically have those "defendants" show up a day or two later with an agreement that they had posted defamatory content. The goal of these lawsuits was obvious: get a court order. That's because many platform websites, including Google, won't take down or delink content based on a claim of defamation, but will do so if there's a court order. Of course, filing a real lawsuit has all sorts of problems, including money and actually needing to have a real case. These reputation management lawsuits got around all of that by basically faking defendants, having them "agree" to a settlement admitting to defamation, and getting a court order saying that the content is defamatory. Neat and clean. And total abuse of legal process.

Last month, Public Citizen's Paul Levy (who has helped defend Techdirt against some legal bullies) picked up on this thread and found evidence of more bogus lawsuits. A few weeks ago, he and famed law professor Eugene Volokh teamed up to reveal more details on a series of such lawsuits, which all seemed to be connected back to a guy named Richart Ruddie and an operation that goes by a bunch of names, but mainly Profile Defenders. It appears that Ruddie/Profile Defenders is not the only one filing these kinds of lawsuits, but he's been prolific. So far, Ruddie's only response is a bizarre press release touting his "anti-cyberbullying skills."

He may want to find a real lawyer though.

Volokh reports that one of the courts that had granted one of Profile Defenders' orders has now vacated that order. Of course, that might not matter since Ruddie has likely already used it to have content taken down. But, more importantly, the judge in that case is considering another case that looks like it's another Profile Defenders case. And suddenly, the judge seems a lot more interested in the details.

I’m delighted to report that late last week, the Philadelphia Court of Common Pleas vacated the order in one of these cases, Callagy v. Roffman (No. 160603108). The plaintiff’s lawyer told us that the company they used for that case was Profile Defenders, but they had no idea that the defendant in that case was apparently nonexistent (and it’s certainly possible that they indeed had no idea of this).

Also late last week, the same judge scheduled a hearing in Murtagh v. Reynolds (No. 160901262), in which no order had yet been issued; the order scheduling the hearing notes that the plaintiff must present “strict proof of service” for the case to go forward. I haven’t been able to reach the plaintiff in that case — or the ostensible plaintiff, as in some cases the plaintiffs have said that they hadn’t authorized a lawsuit, and in some cases the plaintiffs may have been as fake as the defendants, since the only important thing to the filers was to block access to particular websites mentioned in the order, regardless of who the named plaintiffs or defendants had been. I therefore can’t speak with confidence about whether Murtagh was a Profile Defenders case; but the procedural structure of the case is similar to the others I’ve seen, as is some of the legal boilerplate.
That's not all. A day later, Volokh wrote about another such case that was voluntarily dismissed. In this case, Volokh notes that the reputation management scheme may have been even more nefarious than previously thought. Most of the examples we've seen involve trying to remove articles or reviews by claiming those articles are defamatory and then "faking" a "defendant" willing to "settle" and admit guilt in order to get a court order. But in this latest case (and in another one Volokh has seen) it appears that the reputation management operation would try to get a news article to disappear from Google by first submitting a defamatory comment by themselves, and then suing for "defamation" based on that comment (and, then, of course, producing a "defendant" who settles). End result: Google is told to delist an entire article because of a defamatory comment... put there by the "reputation management" firm in the first place:
The article went up in January 2014, but then in July 2016 a comment was posted to the article. (The comment has been deleted in the past few weeks, but the people at the Post & Courier assure me that it wasn’t deleted by them.) And then just a few weeks later, the lawsuit was filed, claiming that the comment was defamatory and that the comment’s author agreed to an injunction ordering the removal of the comment. The plan, I suspect, was to take any such injunction and submit it to Google as a basis for deindexing the whole article (because Google can’t separately deindex the comment). Sometimes this sort of plan has worked.

The comment plays a peculiar role in such cases, I think. In one similarly structured case, for which I have been told what day the contract with the reputation management company (there, Profile Defenders) was signed, the comment was posted immediately after that signing, so I assume that comment was ginned up for the purposes of that lawsuit.
Hopefully, as more judges learn about this scam, it won't be so easy to pull off.

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Posted on Techdirt - 25 October 2016 @ 1:35pm

Free Open Shared: A Conversation With Me About Copyright At Wikimedia

from the come-join-us dept

For folks in the San Francisco area, on Thursday night, I'll be at the Wikimedia Foundation for Wikimedia's brand new, awesome event series: Free Open Shared. I'll be giving a talk on copyright, why it matters, and how the fight over copyright reform impacts all sorts of important stuff, including many things that people don't think of as being related to copyright. I'll be giving a talk and then there will be a Q&A session as well. For those not in the area, they're planning on live streaming the event, and there should be a recording that we can post here as well, but it's always nice to see folks in person (and also, it's much easier to take part in the Q&A that way...). RSVP is required and space is limited, so if you can make it, join us for a fun conversation on copyright.

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Posted on Techdirt - 25 October 2016 @ 10:46am

Shameful: Perfectly Reasonable Academic Book On Gene Kelly Killed By Bogus Copyright Claims

from the copyright-as-censorship dept

Remember when a copyright maximalist think tank guy insisted that copyright would never, ever be used for censorship? Well, about that...

Earlier this year, we wrote about a crazy lawsuit filed by Gene Kelly's widow, after finding out that a college professor named Kelli Marshall was working on a book collecting interviews with Gene Kelly. Marshall and her publisher reached out to a number of people associated with those interviews to clear any legitimate copyright claims (interview collection books are pretty common, and the copyright issue rarely gets in the way). Kelly's widow, Patricia Ward Kelly, claimed that she held the copyright on all of Gene Kelly's interviews, and sued Marshall for infringement. This was crazy for a variety of reasons, starting with the fact that the person being interviewed very rarely holds a copyright in the words they said (and Kelly's widow made a mad dash to the copyright office to try to register these interviews right before suing). There's also the whole fair use thing.

A couple months back, the court tossed out the lawsuit -- but not over the issues mentioned above. Instead, the court noted (correctly) that the issue wasn't "ripe" for court, because Marshall hadn't even written the book yet, so it's crazy to claim that it's infringing when we don't even know what's in it. So that's a victory, but not a great one for Marshall, since it likely means she's still facing a lawsuit once the book is done. And based on that Marshall has announced that she will no longer write the book.

Despite the judge’s ruling in our favor, I have decided not to move forward with the book. After much frustration and deliberation, I realize I have neither the time nor the resources to endure another potential lawsuit. I regret this for my research. I regret this for academia and the university press. But mostly, I regret this for the fans of Gene Kelly.
I can totally understand why she would do this. Yes, you could argue that she could file a lawsuit for declaratory judgment of non-infringement -- and probably win, but what a hassle that would be (not to mention an expensive hassle). Instead, we get yet another example of a completely bullshit copyright claim being used to censor -- and in this case, an academic book.

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Posted on Techdirt - 25 October 2016 @ 9:37am

The Clinton Campaign Should Stop Denying That The Wikileaks Emails Are Valid; They Are And They're Real

from the and-they-are dept

Look, it's getting ridiculous that Hillary Clinton defenders keep insisting that the John Podesta emails released by Wikileaks are full of fakes and doctored content. With most other leaks, including the one of Colin Powell's emails, the victims (and, yes, they are victims) eventually admit that the leaked content is legit. Not so with the Podesta emails. But that's dumb. As Robert Graham points out, it's totally possible to validate many of the emails. And they do validate.

Whether you like or dislike Wikileaks, whether you think Julian Assange is a wonderful or horrible person, whether you think Wikileaks is just a propaganda tool of Russia or a powerful force for transparency -- one thing you cannot say is that the organization has been caught releasing fake or doctored information. It (and Assange) do have a history of overhyping releases, or misrepresenting their significance. And Assange does seem to be pretty quick to jump on conspiracy theories that don't hold up under much basic scrutiny. But, to date, pretty much everything that Wikileaks has actually leaked has checked out as legit.

So it's been a bit bizarre watching people try to insist that the troves of John Podesta emails that Wikileaks has been releasing are somehow fake, doctored or manipulated. We recently wrote about Newsweek reporter Kurt Eichenwald going crazy insisting that he had proved that Wikileaks and the Russians teamed up to "manipulate" an email. Of course, the reality turned out to be that a young American part-time reporter for a Russian-owned news site, had simply misread a tweet and turned it into an article. No big conspiracy. No manipulation. And, certainly, none of that has anything to do with Wikileaks (amusingly, Eichenwald then deleted all his tweets claiming proof that Wikileaks was a part of this conspiracy, and apparently tried to silence the young reporter by telling him he'd try to get him a job elsewhere).

Perhaps even more ridiculous is DNC chair Donna Brazile trying to deny any information from any email released by Wikileaks, including one specific one that she sent, apparently revealing a CNN primary debate question to the Clinton campaign prior to the debate (Brazile worked as a commentator on CNN at the time). This video is absolutely cringeworthy, starting at about five and a half minutes into this video. Brazile tries to avoid answering the question about sending debate questions to the Clinton campaign, first barely feigning ignorance of the issue, and then insisting multiple times that the emails are fake/doctored/not verified, and insisting that she did not send the email in question.

Being interviewed by Megyn Kelly, here's how Brazile tries to claim that the emails are not real, but basically comes out with a word salad of nothing, rather than simply admitting that the email is legit.
MEGYN KELLY: You're accused of receiving a debate question whether a CNN town hall where they partnered with TV One that you had this question on March 12th, that verbatim, verbatim was provided by Roland Martin to CNN the next day. How did you get that question, Donna?

DONNA BRAZILE: Well, Kelly, as I play straight up and with you, I did not receive any questions from CNN.

KELLY: Where did you get it?

BRAZILE: First of all, what information are you providing to me that will allow me to see what you're talking about? Everybody's....

KELLY: You've got the Wikileaks showing you messaging the Clinton campaign with the exact wording of a question asked at the March 13th CNN TV One Townhall debate.

BRAZILE: Kelly, Kelly, Kelly. You know, as a Christian woman, I understand persecution, but I will not sit here and be persecuted. Because your information is totally false.

KELLY: I'm getting it from Podesta's email.

BRAZILE: What you're -- well, Podesta's e-mails were stolen. You're so interested and talking about stolen material, you're like a thief that wants to bring into the night the things that you found that was in the gutter. I'm not...

KELLY: Donna. CNN's Jake Tapper came out and said this was unethical. "Someone was unethically helping the Clinton campaign." He said "I love Donna Brazile, but this is very, very upsetting. My understanding is that the email..."


KELLY: This is Jake Tapper: 'My understanding is that the e-mails came from Roland Martin or someone around Roland Martin." He said "this is very upsetting and troubling." That's your own colleague at CNN. It's not Megyn Kelly. Who gave you that question?

BRAZILE: Megyn, once again, I said it and I said it on the record and I'll say it on the record and I'll keep saying it on the record. I am not going to try to validate falsified information. I have my documents. I have my files. Thank God I have not had my personal e-mails ripped off from me and stolen and given to some criminals to come back altered. I have my records and files. And as i said repeatedly, CNN, in the 14 years I was associated with CNN, I've never received anything. If I had a blank piece of paper, that would basically be the end of this conversation. I never get documents from CNN. Period.

KELLY (eye roll): Your email to the Clinton campaign said 'sometimes I get the questions in advance.'

BRAZILE: Uh, ma'am. Y'know. You know what...

KELLY: And CNN is saying Roland Martin gave them to you. Or someone at TV One. And they were provided to Hillary before that town hall.

BRAZILE: Well anybody who knows me... and... and... and there are a number of your colleagues as well. They know me very well. I know how I play it. I know what I do before every debate. I know what I do before every show -- even this show. I do my homework. I communicate. I talk.

KELLY: I understand.

BRAZILE: But I just, once again, let you know that... as far as I know that... that... that CNN has never provided me with questions. Absolutely. Ever. Nada. Sorry.

KELLY: Well, when you said "from time to time I get the questions in advance," what were you referring to? Because in that email you offered the exact question that one of the moderators, Roland Martin, then proposed the next day.

BRAZILE: So. So. My, my, my reference back to you, ma'am, with all respect -- and I respect you greatly --

KELLY: And I respect you too.

BRAZILE: The... the... the validity of those emails -- if I can only tell you one things, because you know, this whole episode is under criminal investigation -- but I can just tell you one thing: a lot of those emails, I would not give them the time of the day. I've seen so many doctored emails. I've seen things that come from me at two in the morning, that I don't even send. There are several email addresses that I once used, and I'm so sorry that we... these have not been verified. This is... nobody will. This is...

KELLY: I got it.

BRAZILE: This is under investigation. And let me just tell you something. If there's anything that I have, I will share. I don't have an agenda to smear anybody...

KELLY: Alright. I've got to run because we have another guest waiting...
Okay, so, here's the problem. She did send the email. And it's verified. Graham proves it in his post. The trick is DKIM (DomainKeys Identified Mail) signatures. DKIM was a system set up a while back to try to fight spam by cryptographically proving that the account that says it sent the mail actually sent the email in question. Not all email systems use DKIM, but hillaryclinton.com does use it, which is great for transparency, but bad for Donna Brazile.

Graham looked up that email in particular and found that it validates, using a Thunderbird add-on to check these things:
Downloading the raw email from WikiLeaks and opening in Thunderbird, with the addon, I get the following verification that the email is valid. Specifically, it validates that the HillaryClinton.com sent precisely this content, with this subject, on that date.
Let's see what happens when somebody tries to doctor the email. In the following, I added "MAKE AMERICA GREAT AGAIN" to the top of the email.
As you can see, we've proven that DKIM will indeed detect if anybody has "doctored" or "falsified" this email.
Graham also offered one whole bitcoin to anyone who can forge an email that still validates correctly under this method to show his confidence that the emails are verified as actually sent as is, despite Brazile's wacky performance.

Of course, the Clinton campaign keeps insisting that the emails are doctored, but fails to show any proof. Here's the campaign's Chief Strategist, Joel Benenson, saying many are not authentic:
Here's what he says:
BENENSON: Well, first of all, I'll tell you something, I haven't spent a lot of time reading through WikiLeaks e-mails.

But I will tell you this, what we know is that many are not authentic. We know that this is a hack, 17 of Russians -- no, because these e-mails, we have no idea whether they are authentic or not or whether they've been tampered with once the Russians, which 17 American intelligence agencies say are responsible for these hackings, have been manipulated. I have seen things -- I'm not going to go into details --


STEPHANOPOULOS: But you're not suggesting that those are --

BENENSON: They may well be. I don't know. I know I've seen things that aren't authentic, that we know aren't authentic. And it's not surprising. What's ridiculous about this whole conversation is that 17 intelligence agencies have said the Russians are responsible for this. Donald Trump refuses to accept it, refuses to condemn them.
Benenson is full of shit. Again, whether or not you like or dislike Wikileaks, or question Assange's motives, there's a simple fact here: the documents it's released have not been shown to be false, faked, doctored or inauthentic at all. And it's possible to verify many of them, and some have even written scripts to verify them in bulk.

The Clinton campaign, as it so often does, is making things worse for itself by being stupid. It's trying to cover up legitimate information, and the coverup always comes across worse than the original actions. Just admit that these emails are legit and move on. Lying about it is not a good look, even if that's just the way things go these days in politics.

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Posted on Techdirt - 25 October 2016 @ 8:27am

Shake Up At The Copyright Office A Possible Preview To Fight Over Copyright Reform

from the well,-this-should-be-interesting dept

As you may have heard, last Friday, the brand new Librarian of Congress, Carla Hayden, removed the head of the Copyright Office, Maria Pallante, from her job. The press release from the Library of Congress tries to spin this as a "new appointment" for Pallante, to advise Hayden on digitization projects at the Library, but pretty much everyone sees this as Pallante being fired rather abruptly (Update: And Eriq Gardner at the Hollywood Reporter has Pallante's resignation letter, saying she will not accept the new job). From the Billboard article linked above:

U.S. Register of Copyrights Maria Pallante was removed from her job Friday morning (Oct. 21) by the Librarian of Congress, Carla Hayden, who has authority over the Copyright Office. Officially, Pallante has been appointed as a senior adviser for digital strategy for the Library of Congress, although it’s clear she was asked to step down. Karyn Temple Claggett, currently associate register of copyrights, has been appointed the acting register.

Pallante was locked out of the Library of Congress computer system this morning, according to two sources who spoke with Library employees. Earlier, Hayden had called several members of Congress to tell them about her decision. Later, she called the heads of several media business trade organizations to give them the news, according to one who received such a call.
There are all sorts of rumors flying about this. Pallante has, apparently, been advocating strongly for moving the Copyright Office out of the Library of Congress, and either making it an independent agency or linking it up with the Patent & Trademark Office under the Commerce Department. That would be a big mistake, frankly, because copyright is not supposed to be about "commerce" and "industry" but about benefiting the public. That's why it makes sense to leave it as part of the Library of Congress.

Still, when Hayden was first announced, basically all of the copyright maximalist front groups put out statements vaguely suggesting that they'd support Hayden if she promises to leave the Copyright Office alone. It would appear that Hayden has decided not to take that advice. Of course, there are some concerns about what Pallante will do in advising on digitization at the Library of Congress (see update above, noting she is not accepting the position), but it does seem odd that at basically the same time this news leaked, I received notice that the the Library of Congress was going to start archiving Techdirt (yes, this is 100% a coincidence, but a funny one):
That said, the Copyright Office really could use new leadership. As we've been discussing, the Copyright Office has a pretty long history basically acting as a lobbying arm for Hollywood, which seems highly questionable. Pallante's legacy is definitely marred by the fact that she came out as a strong supporter of SOPA early on. And this year, the Copyright Office seems focused on pushing a bunch of bad ideas on copyright reform, including a nefarious plan to strip many websites of their DMCA safe harbors. We're also still completely perplexed as to why the Copyright Office flat out misrepresented copyright law to the FCC concerning its set-top box plan. The Copyright Office simply lied about how fair use works. That's scary.

That said, I should admit that I don't think Pallante herself was as bad as some critics made her out to be (though she did surround herself with a lot of people with really bad ideas). She at least seemed marginally better than some of the previous heads of the Copyright Office, and was actually at least slightly open to some good ideas on copyright reform (and plenty of bad ones). But it does seem like today's Copyright Office needs someone who isn't just representing Hollywood's viewpoint and recognizes that copyright itself is supposed to benefit the public first and foremost -- something Pallante denies.

Pallante's temporary replacement, Karyn Temple Claggett, is unlikely to change very much. Beyond it just being an interim position, Claggett came to the Copyright Office after working for many years at the RIAA, where she helped in the litigation against Grokster, Limewire, XM and Usenet.com. This is not exactly someone who recognizes the changing nature of the internet and says "let's embrace it."

So now the big question is really what happens next. Lots of people are gearing up for a fight over who will take over the Copyright Office on a permanent basis. Is it going to be someone who comes from that world where copyright is supposed to only benefit the big copyright gatekeepers? Or will it be someone with a more nuanced view on how copyright works, how it's supposed to benefit the public by providing tools for creators. Either way, it seems like the fight over this is going to get messy. You already have lobbyists whispering to the press about how awful all of this is:
That executive, and others who represent creators and media businesses in Washington, D.C., expressed surprise and dismay that Pallante, who had the job since 2011, had been removed. “The people in the creative community are furious about the fact that this was done,” says a lawyer who works for organizations that support strong copyright laws, “but especially about the way it was done.”
Wait just a second here. How the hell can the RIAA/MPAA's of the world claim that they represent "the creative community"? That's bullshit. They represent a few large gatekeepers, who have a long history of screwing over the actual creative community any chance they get. More and more of the actual creative community these days have found that the internet is a wonderful tool for creating, promoting, distributing and monetizing their works -- and they recognize that the legacy industries and overly oppressive copyright laws get in the way of that, rather than helping. But, no matter what, you can bet that when a new Copyright Register is announced, we'll see more of this kind of misleading language and attacks -- and it will be something of a preview for the eventual fight over actual copyright reform bills that are expected to show up in the relatively near future.

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Posted on Techdirt - 25 October 2016 @ 6:24am

Chickenshit American Bar Association Scared Out Of Publishing Report Calling Trump A Libel Bully

from the chilling-effects dept

We've talked a lot about Donald Trump and his ridiculous views on defamation and the First Amendment -- including his penchant for threatening defamation lawsuits against basically everyone who says something he dislikes. He rarely follows through, though he certainly does sue sometimes.

In fact, someone has set up Trump-clock.com which lists out every known legal threat against the press or critics since his Presidential campaign began (ignoring the long list that predates the campaign). It also has a clock showing how long it's been since Trump's last threat.

So it shouldn't be much of a surprise that a group of media lawyers at the American Bar Association commissioned a report on Trump's litigation history, and the report (correctly) concluded that Donald Trump is a "libel bully" making a bunch of bogus threats and with a history of filing bogus defamation lawsuits in court (something he's outright bragged about). This shouldn't be controversial. Trump is, clearly, a libel bully, and even he has more or less admitted that with his comments on why he sued author Tim O'Brien.

But, apparently, the American Bar Association was too chickenshit and refused to publish the report, out of a fear that (wait for it...) Trump would sue them.

Alarmed by Donald J. Trump’s record of filing lawsuits to punish and silence his critics, a committee of media lawyers at the American Bar Association commissioned a report on Mr. Trump’s litigation history. The report concluded that Mr. Trump was a “libel bully” who had filed many meritless suits attacking his opponents and had never won in court.

But the bar association refused to publish the report, citing “the risk of the A.B.A. being sued by Mr. Trump.”

David J. Bodney, a former chairman of the media-law committee, said he was baffled by the bar association’s interference in the committee’s journal.

“It is more than a little ironic,” he said, “that a publication dedicated to the exploration of First Amendment issues is subjected to censorship when it seeks to publish an article about threats to free speech.”
With the ABA chilled into suppressing a report about Donald Trump chilling free speech, the Media Law Resource Center picked up the fumbled ball and released the report on its own. The opening executive summary is pretty clear:
Donald J. Trump is a libel bully. Like most bullies, he's also a loser, to borrow from Trump's vocabulary.

Trump and his companies have been involved in a mind-boggling 4,000 lawsuits over the last 30 years and sent countless threatening cease-and-desist letters to journalists and critics.

But the GOP presidential nominee and his companies have never won a single speech-related case filed in a public court.
The full article then goes on to examine in more detail seven speech-related cases, and uses the paper to argue in favor of stronger anti-SLAPP laws to prevent such speech chilling.
... this examination of Trump's libel losses also provides a powerful illustration of why more states need to enact anti-SLAPP laws to discourage libel bullies like Trump from filing frivolous lawsuits to chill speech about matters of public concern and run up legal tabs for journalists and critics.
The ABA's refusal to publish the report is really ridiculous, but only serves to highlight the issue here. When an organization that absolutely must know better is still too afraid to publish a report like this, it highlights just how successful Trump can be in stifling speech with just his threats. And, yes, this report eventually was released, thanks to some First Amendment lawyers who knew how ridiculous this was, but we don't know how many others have been scared away into silence.

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Posted on Techdirt - 24 October 2016 @ 9:43am

Dumb & Dumber Claims About Last Week's Internet Attack (SOPA?!? Really?)

from the take-your-pick dept

As you know, last week, large chunks of the internet spent hours writhing on the ground and totally inaccessible thanks to a giant DDoS attack that appears to have been launched via a botnet involving insecure DVR hardware (which can't be patched -- but that's another post for later). Of course, whenever this kind of thing happens, you know that some people on the politics side of things are going to come up with dumb responses, but there were some real whoppers on Friday. I'm going to focus on just two, because I honestly can't decide which one of these is dumber. I'll discuss each of them, and then you guys can vote and let us know: which of these is dumber.

First up, we've got Marsha Blackburn, who is not just a member of Congress, but (incredibly) on the House Subcommittee on Communications and Technology, which is often considered to the subcommittee that handles internet related issues. We've written about her quite a few times before, highlighting her efforts to block broadband competition and gut net neutrality. She's also argued that fair use is just a buzzword and we need stronger copyright laws. Not surprisingly, she was one of the most vocal supporters of SOPA who only finally agreed to dump the bill days after the giant online protest.

And apparently she's still upset about all that.

On Friday she went on CNN to discuss a variety of things, and the first question from Wolf Blitzer was about the DDoS attacks, and her answer is the sort of nonsense word salad that is becoming all too common in politics these days, but where she appears to suggest that if we'd passed SOPA this kind of attack wouldn't have happened. She's not just wrong, she's incredibly clueless.

Here's what she said:
Wolf, you don't know who is behind this, you do not know if it's foreign or domestic. What I do know is over the years we have tried to pass a data security legislation. There's been bipartisan agreement in the House. It has not moved forward in the Senate. We also know that a few years ago we tried to do a bill called SOPA in the House which would require the ISPs to do some governance on these networks and to block some of the bad actors.

And of course, there were all of the cyberbots that took out after us that were trying to say 'no you can't do that you're going to impede our free speech.' We said 'no we're trying to keep the roadway clear and to keep some of these bad actors out of the system.'

So, what you have now, whether it is foreign or domestic, no one knows. No one knows who has released some ransomware, spyware, malware into the system that is cau... and bear in mind also this malware can live on your system for a year or much longer before it is detected.

And that is how you've had some of these extensive data breaches because the malware gets into the system, it rests there, it is pulling information and at some point, it activates. And as I tell my constituents, be careful what websites you go to, be careful what emails you open because you may be unintendedly inviting that malware or spyware into your system.
Okay, so. Almost nothing that is said above has anything to do with the DDoS attack. Not at all. Not the "data protection" bill, which is basically about requiring companies to reveal breaches to those impacted. But most certainly not SOPA, which had nothing whatsoever to do with anything having to do with cybersecurity or online attacks or DDoS. And "cyberbots"? Is she implying that the millions of people who spoke out against SOPA were some sort of fake bots? SOPA wouldn't have done anything to stop this kind of attack at all. It had nothing to do with this issue in any way shape or form. Not that Wolf Blitzer seems to know or care about any of that as he just accepts that answer and moves on.

So that's the first dumb response. Now the second: the IANA transition. We've been discussing this for years, and as we've explained, the transition is a good thing in taking an argument away from countries like Russia and China who have been trying to get more control over internet governance, by dropping an almost entirely superficial connection between the fairly minor IANA function and the US Commerce Dept. The transition happened a few weeks ago and nothing on the internet has changed, nor will it, because of this transition. It's a non-story. But, Ted Cruz tried to make it a story and now it's become a partisan thing for no good reason at all. And thus, given an opportunity, partisan sites are blaming the IANA transition for the DDoS:
Today there was a major attack on a part of the Internet that few people pay any attention to. It’s critically important though, and any disruption threatens both our prosperity as Americans, but also our freedom to communicate with each other.

This is a great reminder of why President Obama’s Internet handover plans are so threatening to our way of life.

Probable foreign attackers effectively took thousands of companies off of the Internet today by attacking a major Domain Name Service (DNS) provider: Dyn. This two-hour outage surely cost many people, very much money.

What is DNS, and why is it so important? Put simply, DNS is the system that tells people how to find you online. It converts the names of servers and sites, into numbers that the Internet Protocol can find. It’s an essential service of the commercial Internet.

And yet Barack Obama is trying to hand control of DNS over to the Chinese and the Russians. Ted Cruz has been warning people about this, and so have I. People tend to tune it out, because it sounds like a very technical, obscure issue that isn’t very important.
Well, first of all, newsflash: the transition happened three weeks ago, and Neil Stevens at Red State is so concerned about this he didn't even notice. Damn. Sneaky Obama. Second, the hand over of the IANA functions has absolutely nothing to do with a DDoS attack or what it would take to prevent it. Yes, there are some ridiculous aspects to the DNS system, some of which are managed by ICANN. But (1) the IANA transition has nothing to do with "handing control" over to the Chinese or Russians (in fact, it's the opposite -- it takes a big argument away from the Russians and Chinese that they had been using to try to seize more control, and actually makes it much more difficult for them to take control by making sure nationstates actually have very little say in internet governance). And (2) the IANA transition has fuck all to do with DDoS attacks.

Both of these examples seem to be completely clueless, technically illiterate people using real problems (the fragility of DNS systems, the massive unsecured bot-infested systems out there, the ease of taking down important systems, overly centralized critical systems), and using them to pitch some entirely separate personal pet complaint or project. But both are completely ignorant. The only question is which one is worse:
Which excuse for DDoS attack is more ridiculous?
IANA transition
They're equally ridiculous
Poll Maker

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Posted on Techdirt - 21 October 2016 @ 1:00pm

How Could NSA Contractor Harold Martin Have Been Taking Home Classified Info For 20 Years Without NSA Noticing?

from the seems-like-an-important-question dept

A few weeks back, we wrote about the arrest of Harold Martin, an NSA contractor working at Booz Allen, for apparently taking "highly classified information" from the NSA and storing it electronically and physically in his home. There were a lot of questions about whether or not Martin was connected to the Shadow Brokers release of NSA hacking tools, though as more info comes out, it sounds like perhaps Martin was just found because of an investigation into Shadow Brokers, but not because he was connected to them. Soon after the arrest was made public (after being kept sealed for a little over a month), reports came out suggesting that Martin was basically a digital hoarder, but not a leaker (or a whistleblower).

The latest filing by the government in the case gives you a sense of just how much hoarding was done. Basically, it sounds like Martin has been taking a variety of digital and paper files home for two decades or so. There's a lot of stuff.

The Defendant stole from the government and hid at his residence and in his vehicle a vast amount of irreplaceable classified information. His thefts involved classified government materials that were dated from 1996 through 2016, spanning two decades’ worth of extremely sensitive information.
Now, it may be that he did the taking more recently and just took old documents, but that 1996 date coincides with when he first got access to such material:
The Defendant had access to classified information, including Top Secret information, beginning in 1996. His access to classified information began during his service in the U.S. Naval Reserves, and continued as he worked for seven different private government contracting companies. Access to classified information was critical to the Defendant’s employment in his field. He worked on highly classified, specialized projects and was entrusted with access to government computer systems, programs and information.
The government estimates 50 terabytes of data, but admits it's still going through all of it to figure out what is in there.
During execution of the search warrants, investigators seized thousands of pages of documents and dozens of computers and other digital storage devices and media containing, conservatively, fifty terabytes of information....


A conservative estimate of the volume of the digital information seized from the Defendant is approximately 50,000 gigabytes. This information must be fully reviewed by appropriate authorities to determine its source and classification level, as well as the extent to which it constitutes “national defense information.” The investigation into the Defendant’s unlawful activities is ongoing, including review of the stolen materials by appropriate authorities. The government anticipates that much of this material will be determined to be national defense information that the government goes to great expense to protect.
Of course, some in the press are claiming, incorrectly, that this means Martin took 500 million pages of records and secrets, but we don't know that yet. The DOJ admits it's still going through everything, and has no idea how much of it is secret (or even how much of it is from the government).

Martin, at the very least, does appear to have been... kind of careless with some of this stuff:
For example, the search of the Defendant’s car revealed a printed email chain marked as “Top Secret” and containing highly sensitive information. The document appears to have been printed by the Defendant from an official government account. On the back of the document are handwritten notes describing the NSA’s classified computer infrastructure and detailed descriptions of classified technical operations. The handwritten notes also include descriptions of the most basic concepts associated with classified operations, as if the notes were intended for an audience outside of the Intelligence Community unfamiliar with the details of its operations.

Among the many other classified documents found in the Defendant’s possession was a document marked as “Top Secret/Sensitive Compartmented Information” (“TS/SCI”) regarding specific operational plans against a known enemy of the United States and its allies. In addition to the classification markings, the top of the document reads “THIS CONOP CONTAINS INFORMATION CONCERNING EXTREMELY SENSITIVE U.S. PLANNING AND OPERATIONS THAT WILL BE DISCUSSED AND DISSEMINATED ONLY ON AN ABSOLUTE NEED TO KNOW BASIS. EXTREME OPSEC PRECAUTIONS MUST BE TAKEN.” The Defendant was not directly involved in this operation and had no need to know about its specifics or to possess this document.
Of course, the usual caveat does apply: this is the DOJ's side of the story, and history tells us they have a habit of massively inflating things or misrepresenting things in these kinds of cases. That includes over-classification or other exaggerations about how serious, important, or secret certain information truly is. So, take the DOJ's claims with at least some grain of salt here. It will certainly be interesting to see how Martin responds to all of this.

The other interesting, and potentially troubling part, is that it appears the DOJ is moving to charge Martin under the Espionage Act. When the initial charge sheet came out, some people noticed that it didn't include Espionage Act charges, which even Ed Snowden pointed out was a "noteworthy absence." At the very least, it implied no distribution by Martin.

However, the latest filing makes it clear the lack of Espionage Act charges was a temporary thing that the DOJ is planning to correct soon. But here's the really crazy bit: the government is arguing that merely collecting this info is an Espionage Act violation, even without distributing it.
The improper retention and transmission of national defense information is prohibited under the Espionage Act. See, e.g., 18 U.S.C. § 793 (Gathering, Transmitting or Losing Defense Information). Information about sources and methods of the Intelligence Community, such as the information in the documents described above, and in the criminal complaint, is classic national defense information. See Gorin v. United States, 312 U.S. 19, 28 (1941) (information relating to the national defense is “a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.”). In this case, when an indictment or information is filed, the government anticipates that the charges will include violations of the Espionage Act, an offense that carries significantly higher statutory penalties and advisory guideline ranges than the charges listed in the complaint.
You can check out 18 USC 793 yourself. It's noteworthy that most of it requires intent or belief that the information is being used to harm the US, or distribution, but it's likely that the DOJ is leaning hard on section (f):
Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer
Still... this once again seems like a stretch under the Espionage Act. If it's true that Martin was just hoarding the information (even carelessly), it's overkill to bust out the Espionage Act. If true, it would be stupid, but it's clearly not spying for the purpose of helping a foreign nation or anything.

One final thing, though. Fifty terabytes is a shitload of information. How the hell did the NSA not notice this over the past two decades? Even assuming (which is a pretty bad assumption) that the NSA was not as good at protecting its secrets prior to the Snowden leaks, once Snowden's leak was public, how the hell did the NSA still not notice what Martin had done (or, potentially, was continuing to do)? If anything, this raises a hell of a lot more questions about the NSA's own security practices than anything about Martin himself.

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Posted on Techdirt - 21 October 2016 @ 11:44am

Team Prenda Loses Big Again: Told To Pay Over $650k For Bogus Defamation Lawsuit

from the another-shoe-drops dept

Welp, it looks like another bad day for Team Prenda. The law firm that went around uploading its own porn films and then shaking down people on the internet has had a bad few years in terms of courts blasting them for abusing the court system and ordering them to pay up for all sorts of awful things. Every few weeks it seems like we read about another loss for John Steele and Paul Hansmeier (the third "partner" in this mess, Paul Duffy, passed away). The latest is not only a pretty big hit, it's also a complete "own goal" by Team Prenda. This one wasn't in one of their crappy shakedown lawsuits where a defendant hit back. No, this was in the case where Prenda tried to sue all of its critics for defamation in both Illinois and Florida. The Florida case, filed by John Steele, was quickly dismissed once Steele realized it broke all kinds of rules. But the Illinois cases moved forward. There was some bouncing around between state and federal court, before the case was dismissed and some sanctions were added.

There's been some back and forth since then, but after the defendants, Alan Cooper and Paul Godfread, filed an anti-SLAPP against Prenda, and asked for sanctions, the court has now said that Prenda needs to pay up big time. You may recall that Cooper was a guy that Steele had take care of his vacation home in Minnesota, but whose signature Steele then forged on copyright transfer documents. Godfread was Cooper's lawyer, who brought all this out. The lawsuit against them (and a bunch of John Does) was a complete joke from the beginning. And despite Duffy insisting it had nothing whatsoever to do with Cooper saying that Prenda had forged his signature, that's what it was obviously about. Anyway, like so many Prenda things, this one backfired in a big, big way. To the tune of $674,206.94.

There are the original sanctions of $11,758.20 we mentioned above. Then there are attorneys' costs and fees for $162,448.74. And, finally, for good measure, Judge John Darrah tacked on $500,000 in punitive damages. Of course, whether or not Cooper and Goodfread will actually get paid is an open question. Duffy, as you may recall, is dead. And the other major members of Team Prenda, John Steele and Paul Hansmeier have been hit left and right with other judgments. Hansmeier declared bankruptcy and recently lost his law license. Steele's facing disciplinary action in Illinois, last we checked, and of course, lots of people are still waiting for the FBI. So, it's unclear how much they'll actually collect, but it's another case where Team Prenda's own hubris backfired amazingly. As Paul Hansmeier liked to say, "welcome to the big leagues."

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Posted on Techdirt - 21 October 2016 @ 10:46am

'Nice Internet You've Got There... You Wouldn't Want Something To Happen To It...'

from the this-is-no-longer-theoretical dept

Last month, we wrote about Bruce Schneier's warning that certain unknown parties were carefully testing ways to take down the internet. They were doing carefully configured DDoS attacks, testing core internet infrastructure, focusing on key DNS servers. And, of course, we've also been talking about the rise of truly massive DDoS attacks, thanks to poorly secured Internet of Things (IoT) devices, and ancient, unpatched bugs.

That all came to a head this morning when large chunks of the internet went down for about two hours, thanks to a massive DDoS attack targeting managed DNS provider Dyn. Most of the down sites are back (I'm still having trouble reaching Twitter), but it was pretty widespread, and lots of big name sites all went down. Just check out this screenshot from Downdetector showing the outages on a bunch of sites:

You'll see not all of them have downtime (and the big ISPs, as always, show lots of complaints about downtimes), but a ton of those sites show a giant spike in downtime for a few hours.

So, once again, we'd like to point out that this is as problem that the internet community needs to start solving now. There's been a theoretical threat for a while, but it's no longer so theoretical. Yes, some people point out that this is a difficult thing to deal with. If you're pointing people to websites, even if we were to move to a more distributed system, there are almost always some kinds of chokepoints, and those with malicious intent will always, eventually, target those chokepoints. But there has to be a better way -- because if there isn't, this kind of thing is going to become a lot worse.

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Posted on Techdirt - 21 October 2016 @ 9:31am

Actor James Woods Gloats Over Death Of Random Twitter Troll He Sued To Unmask [Updated]

from the stay-classy dept

See the update at the end...

Actor James Woods is an asshole. Let's just put that front and center. As you may recall, a little over a year ago, Woods sued a random Twitter user who went by the pseudonym "Abe List." "List" frequently mocked Woods, including calling him "clown-boy" and a "cocaine addict." Woods then sued for defamation, demanding $10 million, and tried to unmask List. This was ridiculous for any number of reasons, not the least of which is calling much more attention to what a thin-skinned jackass Woods is from anonymous Twitter users. But, more importantly, such hyperbolic statements in an internet forum are not defamation -- rhetorical hyperbole certainly doesn't meet the standard for defamation of a public figure. On top of that, trying to unmask an anonymous speaker is really, really sketchy, and there's a very high bar.

Oh, and did we mention that Woods himself has a long history of similar rhetorical hyperbole on Twitter, including making statements about others smoking crack?

California, of course, has a strong anti-SLAPP law, and Abe List, with the help of lawyers Lisa Bloom and Ken "Popehat" White, sought to use it to get the case kicked out. While the judge initially agreed that Woods' lawsuit was a SLAPP suit, he eventually changed his mind, and said that Woods could find out who Abe List really is. List appealed to California's 2nd District Court of Appeal soon after that ruling earlier this year. Since then the case had moved forward with both sides filing opening briefs.

However, apparently "List" just died. There are no details, but List passed away -- and with it, the case is over. The court docket shows that on Thursday, his lawyers filed for the case to be dismissed based on List's death and the court quickly dismissed the case and closed it. No matter what you think of anything, this is not a great situation. Someone died.

And total asshole James Woods decided to not just gloat about it, but to rub everyone's face in it. First, he pretended that the dismissal was because he was going to win the case:
That's so obnoxious that you might even overlook the fact that Woods here flat out admits he filed a SLAPP lawsuit.

Bloom, quite reasonably offended, pointed out that her pseudononymous client had died and it's pretty obnoxious to gloat over a default victory like that.
Just to put an exclamation point on what a total and complete jackass he is, Woods responded to others pointing out that the client died by gleefully celebrating his death and hoping it was "in agony."
He doubled down on that with another person, talking about how he'll follow people "to the bowels of hell."
That's sickening. Like, literally. I feel ill. What kind of person would celebrate anyone's death? Even someone they dislike? I have no idea if James Woods is a "cocaine addict" but he sure is an extreme asshole.

Oh, and kinda creepy too.
I asked Ken White if he had anything to say about this and he replied:
It was a privilege to represent Abe Doe. He was passionate about many issues and a fierce and incisive debater, not afraid to mix it up with his own attorney. He challenged me just as easily as he challenged others. I was proud to help him fight a contemptible censorious lawsuit, and am very sad about his passing.
Update: And, of course, James Woods has now deleted many of those tweets I have above, but added a new one, attacking the lawyer, Lisa Bloom, for mentioning Abe's death. You know, the one he was gloating over.
Another update: According to Eriq Gardner at THResq, despite Abe's death, Woods and his lawyers are going to continue the case to try to unmask who Abe really was.

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Posted on Techdirt - 21 October 2016 @ 8:27am

Geofeedia, In Damage Control Mode, Issues Bogus DMCA Over Brochure Posted By Reporter

from the copyright-as-censorship dept

And it's time for yet another story of copyright being used for out and out censorship. Remember Geofeedia? That's the creepy company that was selling its services to law enforcement agencies and school districts promising to spy on social media feeds to let law enforcement/schools know when people are planning bad stuff. After a big ACLU investigative report, basically all the major social media companies cut ties with Geofeedia, claiming that it was violating their terms of service. I'd imagine that the various law enforcement agencies and school districts who paid tens of thousands of dollars for this data may be asking for their money back.

So what does Geofeedia do? Well, for starters, it abuses the DMCA to try to take down information. The Daily Dot's Dell Cameron had actually written about how the Denver police spent $30k on Geofeedia back in September, a few weeks before the ACLU report dropped (nice scoop and great timing). Cameron then followed up with a detailed story following the ACLU report as well, noting that there were still plenty of other Geofeedia competitors on the market. At the end of that post, Cameron included a brochure that Geofeedia had apparently sent to a police department last year. But you can't see it now, because (yup) Geofeedia issued a DMCA takedown to Scribd, the company that was hosting it.

Cameron tweeted about this as well, (correctly!) wondering why Scribd would fold over such a bogus copyright takedown.
Now, sure, Geofeedia likely has a copyright on its brochure. But this is clearly a case of fair use. It's posted for reporting purposes, not competitive ones, on a topic of interest. It's not harming the market for the copyright in the brochure (which has no market). This is just ridiculous, both on the part of Geofeedia, and on Scribd for caving.

And it's pointless too, because it just calls more attention to how ridiculous Geofeedia is. Of all the things it should be focusing on right now, trying to take down a sales brochure in an article should be pretty low on its priority list. And if the idea was to get Daily Dot and Cameron to stop reporting on the company, well, that's failed too. Cameron has a new article out about how Geofeedia's stalking system was marketed to public schools as well.

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Posted on Techdirt - 20 October 2016 @ 3:55pm

This Is Huge: New Project Releases All Current (Non-Confidential) Congressional Research Service Reports

from the big-big-news dept

Going back nearly a decade, we've been talking about the ridiculousness of Congress refusing to publicly release reports from the Congressional Research Service (CRS). As we've discussed many times, CRS is an in-house think tank for Congress that is both famously non-partisan and actually really good at what they do. CRS reports tend to be really useful and highly credible (which is part of the reason why Congress isn't a fan of letting them out into the public). Of course, as works of the federal government, CRS reports are in the public domain, but the way it's always worked is that the reports are released only to members of Congress. These include both general reports on topics that are released to every member of Congress, or specific research tasked by a member for the CRS to investigate and create a new report. The members who receive the reports are able to release them to the public, and some do, but the vast majority of CRS work remains hidden from public view. For the most part, both CRS and Congress have resisted any attempt to change this. Going back decades, they've put together a mostly ridiculous list of reasons opposing plans to more widely distribute CRS reports.

Some members of Congress keep introducing bills to make these public domain CRS reports actually available to the public. We've written about such attempts in 2011, 2012, 2015 and earlier this year. And each time they get shot down, often for completely ridiculous reasons, including the belief that making these reports public will somehow hurt CRS's ability to continue to do good, non-partisan research.

At times, different organizations and groups have taken up the cause themselves. Back in 2009, Wikileaks hit the jackpot and released nearly 7,000 such CRS reports. Steve Aftergood at the Federation of American Scientists has been posting CRS reports to a public archive for quite some time. There's also Antoine McGrath's CRSReports.com and some other sites that all create archives of CRS reports that they've been able to collect from various sources.

But earlier this week, there was a new entrant: EveryCRSReport.com. Unlike basically all of the other aggregators of CRS reports that collect released reports and aggregate them, it appears that EveryCRSReport basically has teamed up with members of Congress who have access to a massive stash of CRS reports loaded onto the Congressional intranet, all of which have been released via the site -- and it appears that the site is automatically updated, suggesting that the still nameless Congressional partners have set up a way to continually feed in new reports. To avoid public pressure or harassment (one of the core reasons used by Congress and CRS to reject proposals to open up the content), the site removes the names and contact info of the CRS staffers who create the reports. The reports that are available are not just in unsearchable PDFs, but they're fully HTML and fully searchable.

Here are a few reports that folks around here might find interesting: an analysis of ACTA and a recent deep dive into the net neutrality debate. Here's an interesting one on promoting internet freedom globally. Since the peaceful transition of presidential administrations has suddenly become a hot topic (not for good reasons), here's a CRS report on that from just last month. It's also good to see that they have a recently updated list of cybersecurity reports and research for Congressional staffers to dig into (though it's unclear how many actually do so).

And, yes, of course, there's one on the "going dark" encryption debate, in which the CRS report rightly notes that backdoors are a bad idea, according to basically all experts:

In considering future legislation on or regulation of encrypted systems and communications, the issue of exceptional access has been raised: is it possible to create a system with sufficiently narrow and protected access points that these points can only be entered by authorized entities and not exploited by others? Experts have generally responded, no. For instance, one group of computer scientists and security experts contends that requiring exceptional access "will open doors through which criminals and malicious nation-states can attack the very individuals law enforcement seeks to defend." As was the case during the crypto wars of the 1990s, new technology (the Clipper Chip) was introduced that was intended to only allow access to certain communications under specified conditions. Researchers were soon able to expose vulnerabilities in the proposed system, thus halting the implementation of the Clipper Chip.
This is a really awesome resource -- it's a goldmine of useful information, and very thorough, careful research. I've only just started digging in.

The whole thing was put together by Demand Progress* and the Congressional Data Coalition, which is a project created by Demand Progress and R Street (which our think tank, the Copia Institute, is a member of). It will be interesting to see how (if?) Congress and the CRS react to this. Hopefully, they don't freak out, and seek to shut down the various sources of this material. This really is a fantastic resource of carefully done, thorough research on a variety of topics, all technically in the public domain. Check it out.

Hopefully it will help both the rest of Congress and CRS to recognize that actually making publicly funded research public is not such a bad thing. The site itself was put together by Dan Schuman, who used to work for CRS, and he's actually written up a fascinating blog post about why he did it and why the internal culture at CRS, against such public releases, is wrong, but endemic to the organization (he didn't begin questioning it himself until after he left):
Over time, I came to realize that the policy concerning public access to CRS reports was counterproductive. Members of Congress could get the reports. Lobbyists and special interests could get the reports from Congress or from private vendors for a fee. Former congressional staff could ask their friends on the hill for a copy. But the general public, unless they knew a report existed, really did not have access.

And that’s too bad. CRS reports are written for intelligent people who are not necessarily policy experts. In a world that’s awash with 5 second YouTube ads, horse race political coverage, and the endless screaming and preening of political figures, these reports are a good way to start to understand an issue.
But he also notes that there are problems with CRS -- some of which CRS blames on the fact that reports are being released to the public -- including the fact that the reports have become "even-handed to a fault" to avoid pissing off Congress itself in talking down a bad idea. While some of this may also be attributed to worries about reports going public, this seems kind of silly. This is good and credible taxpayer funded research that's in the public domain. If Congress can learn from it, so can the public:
CRS used to be a very different agency. It used to provide unvarnished advice for members of Congress on the crucial issues of the day. But over time, and especially during the 1990s, the mode of analysis changed to a description of issues, moving away from an evaluation of the strengths and weaknesses of various courses of action. I don’t mean to overstate this, and there are many examples still of prescient analysis, but there was a real change in the way CRS did its work, in large part because of existential concerns. In short, CRS was concerned about irritating its congressional masters by attacking a pet project or cherished belief. The old-timers still had great latitude, but the agency became sclerotic.

Part of this calcification included a fear of public access to the reports. At one time, CRS had published a newsletter about its latest research. And now, while its employees still testify before Congress, they were discouraged and then generally prohibited from sharing their work even with their academic peers. Agency staff grew more insulated and isolated.
But on top of that, recognizing that there are benefits to this research being public, hopefully means that CRS can get beyond just giving out "even handed to a fault" research, and can actually get back to making real recommendations. Over the years, we've discussed the ridiculous move by Newt Gingrich a couple decades ago to kill off the Office of Technology Assessment, which actually helped Congress understand complex technological issues in a non-partisan way. A functioning CRS could do the same thing and help put an end to stupid technology debates that often feature clueless arguments on all sides. CRS shouldn't fear this role, nor should it fear its research being public. It's a great resource and having it public is great for everyone.

* I'm on the board of Demand Progress, but had no idea about this particular project from them, and, in fact, heard about it from someone else entirely...

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Posted on Techdirt - 20 October 2016 @ 1:02pm

Privacy Is About Tradeoffs... And Things Go Wrong When Those Tradeoffs Are Not Clear

from the privacy-week dept

Post sponsored by


We've teamed up with Namecheap and the EFF to promote Internet Privacy Week and continue the fight to protect your privacy online. Show your support by signing and sharing the new Internet Privacy Bill of Rights.

I've talked before about how privacy is not a "thing," it's a tradeoff. The idea of "perfect" privacy makes no sense, because people reveal all sorts of stuff about themselves all the time because the tradeoff is worth it. For example, just walking out of your house to go to the grocery store is a tradeoff. You give up some amount of privacy (someone can see you leaving your house, others can see what you're buying), because we think it's worth that minimal loss of privacy to get food. But it's an individual tradeoff based on our own individual decision making -- people who are famous celebrities or hiding from someone who wants to kill them may view the tradeoffs differently. That's why it always bothers me a little when people focus on privacy as if it's a thing, rather than looking at the cost-benefit tradeoffs that each individual needs to make.

But a big reason why privacy debates concerning internet services today are such a big problem is that the tradeoffs aren't as clear or as explicit as they should be. The reason people get upset about privacy issues on internet services isn't so much that they don't like giving up information to get a useful service -- people seem quite happy to do that. It's that they're not quite clear on what they're giving up and what they're getting back and how to weigh those two things. And that (quite reasonably!) makes people nervous and worried about their "privacy." That's why, in helping Namecheap put together a Privacy Bill of Rights for internet companies, we focused on things that really do make the tradeoffs more explicit and put the user in control. Concepts like better transparency and control are the keys here. Trading information for services can be a great deal -- it's what powers a large part of the internet we all find so valuable. But it needs to be done in a manner that doesn't make people nervous or afraid. It needs to be done in a manner where they understand the tradeoffs and truly do have some control.

In such a world, where companies aren't focusing on tricking people or doing bad things with their data, then we can have a truly powerful internet that provides lots of services, but without people and users feeling like they're being abused or sucked dry of their information for little benefit. We're hopeful that in framing the discussion this way, companies will recognize the value of actually being more upfront and transparent, and users will be much more in control over their information and what they get in exchange for sharing it. If you agree with these principles too, please share the document and sign on to the bill of rights. Namecheap has promised to donate $5000 to EFF for every 500 signatures.

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Posted on Techdirt - 20 October 2016 @ 10:44am

Come On Elon! Tesla Stupidly Bans Owners From Using Self-Driving Teslas For Uber

from the you-don't-own-what-you-bought dept

We've talked a lot about the end of ownership society, in which companies are increasingly using copyright and other laws to effectively end ownership -- where they put in place restrictions on the things you thought you bought. This is bad for a whole variety of reasons, and now it's especially disappointing to see that Tesla appears to be jumping on the bandwagon as well. The company is releasing its latest, much more high powered, version of autonomous self-driving car technology -- but has put in place a clause that bars Tesla owners from using the self-driving car for any competing car hailing service, like Uber or Lyft. This is not for safety/liability reasons, but because Tesla is also trying to build an Uber competitor.

We wrote about this a few months ago, and actually think it's a pretty cool idea. Part of the point is that it effectively will make Tesla ownership cheaper for those who want it, because they can lease it out for use at times when they're not using it. So your car can make money for you while you work or sleep or whatever. That's a cool idea.

But it's flat out dumb to block car owners from using the car however they want.

If Tesla wants to compete with Uber, that's great, but it should compete and offer a better deal for car owners, rather than artificially limiting what they can do. And the thing is, Elon Musk knows this. Remember, a few years ago when he famously freed up all Tesla patents into the public domain, recognizing that it was better to compete on execution rather than artificial legal limitations? So why not take that same approach with competing in car hailing services as well? Don't limit what owners can do with their cars. That's now ownership. ow they're just leasing.

Tesla's plan for a competing ride hailing service is a good idea, and I'm excited to see what the company does with it, but if it starts off by artificially blocking Tesla owners from using their cars on competing services, it makes me think that Tesla doesn't think it's own service will be very good, and therefor it needs to artificially lock Tesla owners into its own platform, rather than competing on the merits. That seems antithetical to the message that Tesla and Elon Musk have given off in the past. Hopefully Musk reconsiders this anti-consumer move and recognizes that Tesla can build such a service that can stand on its own merits without artificially restricting Tesla owners.

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Posted on Techdirt - 20 October 2016 @ 9:33am

Arrested Backpage Execs Ask Kamala Harris To Drop Bogus Case She Herself Has Admitted She Has No Authority To Bring

from the grandstanding dept

A few weeks ago, we wrote about the absolutely ridiculous and unconstitutional charges brought by California Attorney General Kamala Harris and Texas Attorney General Ken Paxton against the online classified site Backpage.com. We focused on the fact that Section 230 clearly protects Backpage from such a lawsuit, and went into detail on the ridiculousness of Harris' "investigator" using the fact that Backpage itself actually worked with him to track down, remove, and block ads for prostitution as some sort of evidence of wrongdoing.

The execs are now hitting back -- as they should. They've asked the court to dump the case with a detailed and thorough filing. It highlights that the charges violate the First Amendment, Section 230 of the CDA and, at an even more basic level, the complaint doesn't even satisfy the requirements for "pimping," which is what they're charged with.

The AG’s Complaint and theory of prosecution are frankly outrageous. The AG seeks to impose criminal liability on a website simply because it published and received fees for third-party ads. The AG’s chrages directly contravene the First Amendment and the immunity afforded to websites under Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230. Escort ads on Backpage.com are protected speech under the First Amendment, as several courts have held. The AG cannot arrest, imprison and refuse to release individuals associated with the website simply based on an investigator’s opinions about what he believes is “obvious” about escort ads. Courts upholding the First Amendment rights of Backpage.com and its users have rejected the same tack time and again. The First Amendment also expressly precludes state authorities from imposing criminal liability on parties that publish or distribute speech absent proof of scienter, i.e., that the publisher knew the specific information published was unlawful. The Supreme Court so held over fifty years ago, Smith v. California, 361 U.S. 147 (1959), recognizing the First Amendment prohibits states from imposing criminal liability that would require publishers to review all materials they distribute, because such a requirement would severely chill speech. More specifically, the AG’s theory expressly violates Section 230, which Congress enacted twenty years ago to preserve and promote free speech on the Internet by immunizing website operators from liability for publishing content provided by third-party users. Section 230 preempts all contrary state laws—including state criminal laws. Indeed, Attorney General Harris has acknowledged that Section 230 precludes her from prosecuting Backpage.com, but she has now commenced a prosecution to do precisely what she admits Section 230 prohibits.
That point about Harris "acknowledging" that Section 230 bars this lawsuit is a big one. It's based on the letter that Harris signed onto, from a bunch of Attorneys General to Congress, asking it to change Section 230 to grant state AGs the ability to go after Backpage. We had written about this letter three years ago when it was sent, but I had forgotten that it explicitly called out Backpage.com, and noted that the reason they wanted Section 230 modified was because they knew it was immune from prosecution by those state AGs. The letter (again, that Harris herself signed), says:
In instance after instance, State and local authorities discover that the vehicles for advertising the victims of the child sex trade to the world are online classified ad services, such as Backpage.com. The involvement of these advertising companies is not incidental—these companies have constructed their business models around income gained from participants in the sex trade. But, as it has most recently been interpreted, the Communications Decency Act of 1996 (“CDA”) prevents State and local law enforcement agencies from prosecuting these companies. This must change. The undersigned Attorneys General respectfully request that the U.S. Congress amend the CDA....
Yet now, despite no change being made to the law, Harris thinks she can bring a case against them?

Separately, the lawyers have sent a letter to Harris directly reminding her of this and asking her to drop the case:
Ads posted on Backpage.com are protected by the First Amendment, as several courts have held. As the Seventh Circuit recently said in enjoining the Sheriff of Cook County, Illinois and rejecting much the same theories that the State asserts here: “[A] public official who tries to shut down an avenue of expression of ideas and opinions through actual or threatened imposition of government power or sanction is violating the First Amendment.” ... The State cannot prosecute a publisher for publishing speech with absolutely no showing that the speech was unlawful, much less any allegation that defendants ever even saw the specific ads that are the basis for its charges. As the Supreme Court has long recognized, states cannot punish parties that publish or distribute speech without proving they had knowledge of illegality, as any other rule would severely chill speech.

More specifically, Section 230 precludes the charges the State seeks to assert. As you know, Section 230 bars state-law claims against websites and other interactive computer services based on the publication of third-party content. A website cannot be held liable for publishing content submitted by users or for failing to block or remove such content, notwithstanding any allegations that it knew or should have known the content concerned unlawful conduct. Section 230 expressly preempts all inconsistent civil and criminal state laws. Literally hundreds of cases have applied and underscored the broad immunity that Section 230 provides and that Congress intended so as to avoid government interference— especially by state authorities—that would chill free speech on the Internet.

Indeed, in July 2013, you and other state attorneys general signed a letter to various members of Congress urging that Section 230 be amended to exempt state criminal laws from CDA immunity so that you could pursue Backpage.com. See July 23, 2013 letter from National Association of Attorneys General.... It is troubling that the State is now pursuing a prosecution you admitted you have no authority to bring.

Accordingly, the State should dismiss the complaint and all charges against Messrs. Ferrer, Lacey and Larkin. We write now to urge that this happen immediately.
Finally, Michael Lacey and Jim Larkin released a statement about this mess, in which they directly suggest that this whole thing was about Harris trying to seal her election to the Senate, and highlighting how infamous Sheriff Joe Arpaio tried to arrest them a decade ago, and they ended up winning $4 million for civil rights violations. But, they note, Harris probably doesn't care, because she got the headlines and the press coverage and the TV cameras covering them doing the perp walk in orange jumpsuits.
Of course, knowing the law was of modest comfort as we were being booked into the Sacramento County jail and paraded in front of the press in orange jump suits last week on a charge Ms. Harris knew she had no legal authority to bring when she brought it. We never set out when we published our first newspaper over 40 years ago to become the first American journalists to claim the rueful distinction of having been jailed both for editorials we wrote and advertising we published.

In 2007 we were arrested in Phoenix by agents of Sheriff Joe Arpaio for having published a story in the Phoenix New Times criticizing Arpaio for misusing a Grand Jury to harass New Times and its readers. We sued Arpaio in federal court under the Civil Rights Act and settled the case against the Sheriff and his handpicked Special Prosecutor for nearly $4 million.


Make no mistake; Kamala Harris has won all that she was looking to win when she had us arrested. Like Sherriff Arpaio, she issued her sanctimonious public statement, controlled her media cycle and got her “perp walk” on the evening news. Arpaio didn’t pay a dime of the civil damages we won against him. The taxpayers of Maricopa County did. And if the polls are any indication, Harris will be warmly ensconced in the United States Senate by the time her blatant violations of the First Amendment and federal law are finally adjudicated. She won’t pay. The taxpayers of California will.

And, as Kamala Harris knows, it probably won’t even make the evening news.
Indeed. This kind of bullshit seems like a massive abuse of power by Kamala Harris for the sake of grandstanding for her election campaign. She's yelled about Backpage for years, despite acknowledging she has no legal authority to go after them. And then, just a month before the election on her big campaign to become Senator, she magically decides to arrest them on charges she herself knows can't stick? That's a really fucked up abuse of power, stomping on the civil rights and Constitutional rights of these guys, and knowing damn well that once the case is lost, it's the taxpayers of California who will have to pay the bill. What shameful behavior by an elected official.

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