This seems a bit wacky. MPAA boss Chris Dodd has been named the chairperson of the "advisory council" for "free speech week" in 2013. Now, I'm assuming that most people have no clue what "Free Speech Week" is, but it's supposed to be a "celebration" promoting the First Amendment. That's why it strikes me as completely ridiculous that Dodd would be put in charge of it. While the MPAA was a major proponent of the First Amendment a few decades ago (back when there were efforts to try to censor movies -- which saw the MPAA stepping in to create a self-censorship regime known as the movie rating system), Chris Dodd's contribution to the MPAA has been to push SOPA, a bill whose main purpose was directly in contrast to the First Amendment and free speech by setting up a system for internet censorship. As Constitutional scholar Laurence Tribe pointed out at the time:

The notice-and-termination procedure of Section 103(a) runs afoul of the “prior restraint” doctrine, because it delegates to a private party the power to suppress speech without prior notice and a judicial hearing. This provision of the bill would give complaining parties the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice accusing the site of being “dedicated to theft of U.S. property” – even if no court has actually found any infringement. The immunity provisions in the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately upon receipt. The Supreme Court has made clear that “only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression [and] only a procedure requiring a judicial determination suffices to impose a valid final restraint.” Freedman v. Maryland, 380 U.S. 51, 58 (1965). “[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976).

It seems rather ironic that someone who was the main person behind a bill designed to take away free speech rights would then be put in charge of "free speech week."

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The latest to speak out against NSA surveillance is "every geek's uncle," Steve Wozniak, who explained that "this is not my America." The video is worth watching: He makes a ton of great points about things that, when we were kids, we learned that the US did not do. And now, we do lots of them: spying on everyone, secret courts, secret prisons, etc.

When I was brought up, my dad taught me, other countries, when they got prisoners in a war, they tortured them. But we Americans didn't torture them.... And I was so proud of my country. And now I find out it's just the opposite. I just wish, all these things that I talk about with the Constitution -- which made us so good as people -- they're nothing. They were all dissolved with the Patriot Act. There are these laws that just sort of say we can secretly call anything terrorism and do anything we want.... And I read the Constitution, and I'm not even sure how all this stuff happened. It's so clear what the Constitution says. It's extremely clear in the Bill of Rights. One thing after another after another that got overturned. That's what a king does. A king just goes out and rounds anyone up, has them killed, put in secret prisons.

When I was brought up, we were told that Communist Russia was the ones that were going to kill us and bomb our country and all this. And Communist Russia was so bad because they followed their people, they snooped on them, they arrested them, they put them in secret prisons, they disappeared them. These kinds of things were part of Russia. We're getting more and more like that....

It's a bit hyperbolic, but more and more people are beginning to recognize how problematic the governments' actions have been of late.

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Gears of War designer Cliff Bleszinski has weighed in on the subject of used games in light of the Xbox One's antipathy towards them. (Of course, much of this has been walked back in recent days -- Microsoft has both taken a step backwards and kicked the can down the road, stating it won't be charging a fee for used games, but third parties are more than welcome to do exactly that. There are still a number of limitations that will make reselling Xbox One games unpalatable, if not close to impossible.)

Bleszinski's argument for killing off the used game market is not unlike Ben Kuchera's (Penny Arcade): AAA production values aren't sustainable unless everyone's paying full price. Bleszinski delivered his views via Twitter, handily gathered here by Gamepolitics.

"You cannot have game and marketing budgets this high while also having used and rental games existing. The numbers do NOT work people," he said.

"The visual fidelity and feature sets we expect from games now come with sky high costs. Assassins Creed games are made by thousands of devs."

"Newsflash. This is why you're seeing free to play and microtransactions everywhere. The disc based day one $60 model is crumbling.

"Those of you telling me 'then just lower game budgets' do understand how silly you sound, right?" said Bleszinski.

To paraphrase Mayor Quimby, I appreciate your passion on behalf of your medium, but I'm afraid you've got this all wrong.

If the current business model is unsustainable, why is that the consumer's fault? More specifically, why are customers being pushed into giving up their "first sale" rights, along with being asked to plug the holes in the leaky business model with wads of hard-earned cash?

On top of this imposition is the assumption the current model is the only model [$200m movie, anyone?] and that mankind greatly benefits from "thousands of developers" crafting AAA titles. This is completely backward. The industry exists because of its customers, not despite them. AAA studios are not benevolent deities. They're companies that exist because there's a market for their products. If this market dies, so do they. If the prices are too high, customers buy elsewhere. Or not at all.

Jim Sterling of Destructoid has crafted a very powerful response to Cliff's insistence that the gaming industry will die unless consumers pick up the monetary slack.

What really infuriates me about the used game debate is that, when people bring up the stratospheric development and marketing costs, it's treated as though they are noble endeavors, too sacred to be compromised. Rather than ask the question, "Do games need to be this expensive to make?" the question instead becomes, "How can we squeeze more money to keep making very expensive games?"

In a good business, the answer to something being too expensive to produce would be to, y'know,make it fucking cheaper to produce. Videogame consoles do this over time -- parts become less costly to manufacture, more efficient to put together. You'll find, with some of the most successful videogames on the market, the same is also very true. It's just that nobody will admit it.

Sterling points out that Call of Duty has been working off the same engine for years, with two studios alternating releases. Every year, a new Call of Duty game, one that grabs huge market share and makes a huge profit, thanks to the developers' willingness to build from its proprietary starting point. Why tear everything down and start from scratch? Why push to be the "visual" leader when it's clear a majority of customers aren't solely interested in purchasing bleeding edge software?

Likewise with the PC market. It's the true graphics leader, often far ahead of current consoles, and yet the biggest selling titles aren't industry showpieces. Sterling points to Minecraft, Terraria and Valve's old-as-hell-but-still-effective Source engine. Smaller studios are taking advantage of available technology to make beautiful games on a budget (The Witcher, Metro: Last Light). [On a personal note, while I do enjoy AAA eye candy now and then, I value the gameplay that much more. CIP: I've put over 192 hours into Just Cause 2, a game released three years ago whose gameplay still holds up to this day. That and Hotline: Miami, no one's idea of AAA beauty.]

But according to Bleszinski, the public doesn't want all of that stuff listed above. It only wants the best of the best, crafted by a team of thousands and sold in various deluxe packages at $60-$100 a pop, possibly with a helping of day one DLC on the side. And because Bleszinski believes this, he feels the public must be made to pay for the excesses of an industry. Back to Sterling for a rebuttal.

If so-called "AAA" games and the used market actually are incompatible, then I say that's a good friggin' thing. Anything to dispossesses publishers of the notion that they need to keep dumping truckloads of cash into games to the point where they need to sell more copies than the laws of reality allow...

It's not our fault games have gotten so expensive, and I resent the implication that it is. The fact this industry seems utterly fucking incapable of taking some damn responsibility for itself continues to disgust me, and I refuse to shoulder the blame for companies that cannot demonstrate one iota of self-reflection. If something you're doing is not working, change what you're doing! Stop trying to bend and break the world around you to try and manufacture an environment where your failed tactics could achieve some perverse form of success.

It's beginning to look like a few members of the industry have been cribbing pages from the disastrous playbook of the recording industry. Raise prices. Blame customers. Bend the world to your business model. Is it only a matter of time before the gaming industry begins lobbying Congress to shut down secondhand sales?

Oh, and if the above twitrant weren't galling enough, Cliff B. throws in a little something for those who find the online requirements of the Crossbone to be dealbreaker.

"If you can afford high speed internet and you can't get it where you live direct your rage at who is responsible for pipe blocking you," he said.

Really? Maybe I'll direct my rage at the entitled jackass who's supporting a company's decision to effectively limit its own market simply because it can't live without some sort of DRM infection. And what if you can't afford high speed internet? Well, you must be one of those people who live in the area marked "Whogivesashitland" in Cliffy's mental map. And trust me, plenty of rage has been directed at the "pipe blockers," but they care even less about their customer base than the area of the gaming industry Bleszinski represents.

Those interested in gutting the resale market to protect their margins are turning potential customers into enemies. If you can't adapt, you can't succeed. These moves being made by Microsoft (and supported by industry mouthpieces) are nothing more than attempts to subsidize an unsustainable business model by forcibly extracting the maximum toll from as many transactions as possible. The industry is not a necessity or a public good. If it's going to make the changes it needs to survive, it needs to give up this delusion.

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So, over the weekend, the Washington Post revealed some of the code names for various NSA surveillance programs, including NUCLEON, MARINA and MAINWAY. Chris Soghoian has pointed out that a quick LinkedIn search for profiles of people in Maryland with codenames like MARINA and NUCLEON happen to turn up profiles like this one which appear to reveal more codenames:

+Skilled in the use of several Intelligence tools and resources: ANCHORY, AMHS, NUCLEON, TRAFFICTHIEF, ARCMAP, SIGNAV, COASTLINE, DISHFIRE, FASTSCOPE, OCTAVE/CONTRAOCTAVE, PINWALE, UTT, WEBCANDID, MICHIGAN, PLUS, ASSOCIATION, MAINWAY, FASCIA, OCTSKYWARD, INTELINK, METRICS, BANYAN, MARINA

TRAFFICTHIEF, eh? WEBCANDID? Hmm... Apparently, NSA employees don't realize that information they post online can be revealed.

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The revelations of Edward Snowden about the NSA's snooping of citizens both inside and outside the US are posing more questions than they answer at the moment. One key area is whether the use of encryption -- for example for email -- is effective against the techniques and raw power available to the NSA (and equivalents in other countries.) That's something that has come up before in the context of the UK's Snooper's Charter. When a top official there was asked whether the proposed surveillance technology would be able to cope with encrypted streams, he replied: "it will." Snowden's claims about massive, global spying makes the issue even more pertinent.

Here's one view, from Germany. Politicians from the Die Linke party posed a number of questions to their government on the subject of the latter's use of surveillance techniques (original PDF in German.) Most of the answers were the kind of thing you might expect -- "we can't possibly go into details" etc. etc. -- but one was surprising. To the question:

Is the technology used also capable of decrypting at least partially, or evaluating, encrypted communications (eg via SSH or PGP)?

Back came the answer:

Yes, the technology used is generally able to do that, depending on the type and quality of the encryption.

But Edward Snowden doesn't agree. When he was asked in an online Q&A session on the Guardian Web site the following question:

Is encrypting my email any good at defeating the NSA survelielance? Id my data protected by standard encryption?

He replied:

Encryption works. Properly implemented strong crypto systems are one of the few things that you can rely on. Unfortunately, endpoint security is so terrifically weak that NSA can frequently find ways around it.

In discussions about the German government's claim that it can crack encryption in certain circumstances, some suggested that maybe it could -- not directly, but using the malware that Techdirt has written about before. So even if the question as to the efficacy of encryption itself is still rather up in the air, there seems to be a consensus that the real weakness lies in letting people gain access to your system.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

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Japan recently agreed to join in the negotiations for the Trans Pacific Partnership (TPP) agreement that has many significant problems, which we've been highlighting for years. Apparently, Japan's Prime Minister, Shinzo Abe, has no interest in listening to those concerns. Some TPP protestors showed up at an Abe event in Tokyo, and his response was to mock and belittle them and their concerns on Facebook.

“I was touched that so many of you came to Shibuya,” wrote the prime minister, whose frequent Facebook posts cover everything from a college reunion to a foreign policy debate. “There were some leftists with microphones and drums in the audience who tried hard, with hatred, to interrupt our speeches. But I must say that gave us fight. Thank You. A child in front laughed them off, saying ‘Quiet!’ Admirable. Please remember that those are representatives of embarrassing adults.”

The Facebook post has since been deleted, but it raises serious concerns about how seriously the Japanese government will listen to the widespread concerns about the excessive nature of the TPP. Making things even more bizarre, when a reporter asked a spokesperson from Abe's office about why the post had been taken down, the person said it hadn't and was still available on his own computer.

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Late Sunday, the Guardian revealed that during the G20 summit in London in 2009, the UK government made sure to intercept phone calls and internet communications of foreign politicians and officials who were attending. As the article notes, many have suspected this kind of activity, but this is the first time that evidence has been presented of it happening and that it was organized by GCHQ (the UK equivalent of the NSA). And, of course, this had nothing to do with "stopping terrorism" but was about "the more mundane purpose of securing an advantage in meetings." The listed activities:

• Setting up internet cafes where they used an email interception programme and key-logging software to spy on delegates' use of computers;
• Penetrating the security on delegates' BlackBerrys to monitor their email messages and phone calls;
• Supplying 45 analysts with a live round-the-clock summary of who was phoning who at the summit;
• Targeting the Turkish finance minister and possibly 15 others in his party;
• Receiving reports from an NSA attempt to eavesdrop on the Russian leader, Dmitry Medvedev, as his phone calls passed through satellite links to Moscow.

Of course, this seems like traditional espionage that has gone on for ages, which by itself is less troubling to me. What's more revealing is some of the methods -- such as the ability to get around the security on the BlackBerry. As for the "internet cafe" -- who in their right mind would use such a thing, knowing that it was almost certainly being monitored?

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Why re-invent the wheel when you can copy from millions of years of evolution? Okay, so there aren't that many animals that use the wheel for locomotion, but there are plenty of other tricks that biology has figured out. By studying how insects fly, we could improve the designs of future flying robots, and there are some biological materials like spider webs and pearls that we still haven't been able to replicate exactly. Here are just a few other examples of how we're learning from biology.

• The internal structure of firefly lanterns contain sharp-edged scales that can increase the brightness of these bioluminescent insects by over 50%. Creating similar structures for LEDs could similarly improve the brightness of human-made lights, and understanding how these structures work could lead to further improvements. [url]
• Mosquitoes can fly during rainstorms even though a single raindrop carries enough force to kill them. Raindrops *can* actually be deadly to mosquitoes if they fly too low to the ground, but if they're hit above an altitude of 10 centimeters or so, they just fall with the raindrop until they can escape from it and continue flying. [url]
• Adding wings and tails to robots can help them stabilize their locomotion and improve their agility -- much like the effects of wings and tails for birds/lizards. The slo-mo videos of lizards and robots re-orienting in a mid-air fall could someday lead to an awesome hovercraft technology. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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Around and around we go, when the futility will stop, nobody knows. I'm referring, of course, to a large swath of government and industry groups around the world that apparently just love to play whac-a-mole with torrent sites, which don't host infringing files. If you're not familiar with the carnival game of the same name, it goes something like this. A mole pops out of a hole and you bludgeon that little bastard with a man-hammer. Then another one pops up from another hole. After bashing that one, another one pops out elsewhere. This goes on for exactly as much time as it takes the person playing to decide it would be much more productive to consume thirty corn dogs and puke all over themselves.

The face that launched a thousand mallets
Image source: CC BY 2.0

The latest challenger in this stupid, stupid game? The Philippines. At the request of the Filipino record industry, with some help from their US counterparts, the government seized infamous torrent tracker site Kickass Torrents. The government notes that they're only following the lead of the United Kingdom, who similarly censored KAT back in February. So, once again, we have private industry managing to get government to act as their knee-cap hit squad. Rather, that would be a decent description if the mole wasn't able to simply pop back up out of another hole, which it did.

Local record labels and the Philippine Association of the Recording Industry said that the torrent site was doing “irreparable damages” to the music industry and following a formal complaint the authorities resorted to seize of the main domain name. The torrent site hasn’t given up and is operating as usual under a new domain name.

In other words, this was a pointless exercise in parlor game futility. Instead of finding new ways to compete, the recording industry would rather whack away at those pesky moles. My advice? Well, I suggest, as always, corn dogs.

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We've pointed out before how stupid it was for people like Jammie Thomas and Joel Tenenbaum to fight the copyright infringement lawsuits launched against them. In Tenenbaum's case it was monumentally stupid, because he flat out lied to the court and then had to admit it in court. You don't do that. Lying to a court is not only stupid in general, but it completely taints any underlying issues that may actually be important, and predisposes the judge against you. There are often good reasons to fight back against copyright lawsuits, but if you actually infringed and then lied about it that's a really bad reason to fight back.

Unfortunately, it looks like there was a similar situation in one of the big copyright trolling cases last week. Last fall, we wrote about how Judge Michael Baylson decided to force a group of Malibu Media copyright trolling cases to trial, after it became apparent that Malibu Media didn't seem particularly interested in going through with a trial (similar to most copyright trolls). Unfortunately, it then came out that one of the "selected" defendants lied, committing perjury, and (on top of that) destroyed the evidence. This is just ridiculously stupid.

In the end, all of the defendants "settled," but the case still had a sort of sham trial. Yes, there was no reason for the trial, since everyone basically settled, but the lawyer for Malibu, Keith Lipscomb, asked the court to enter a "final judgment." That basically allowed the judge to rail against the stupid defendant who lied and destroyed evidence (who deserves to be yelled at by the court for his actions), but it also now allows Lipscomb to use the "judgment" of $112,500 to threaten many others who are not in the same situation as the guy who lost. There's a good summary from lawyer John Whitaker, who found the whole thing baffling.

In sum, all of the defendants stipulated to liability before the trial. Plaintiff had already agreed not to seek damages against two of the three defendants. The third defendant stipulated to liability. Malibu Media and the third defendant asked the judge to enter a finding on damages, even though they had already agreed on what he would pay.

So there was absolutely nothing at issue during the trial. Not liability. Not damages. Nothing.

Then there was the 'trial' itself. The only party to actually put on a witness was Malibu Media. None of the defendants even cross-examined a witness. Really?

What kind of trial is it where the defendant doesn't challenge any of the plaintiff's witnesses or even put on any witnesses of its own? A sham, that's what.

So why was there even a trial? I have no idea.

Well, actually, he points out, everyone knows why:

It was all about Malibu Media trying to get Judge Baylson to write a document that Malibu Media could use in all its demand letters from now on. I'll point out that, to his credit, Judge Baylson had to tell Lipscomb numerous times that he would not be Lipscomb's advertising spokesman. I think what he said was he wasn't interested in writing anything that was "commercially valuable" to Malibu Media.

If the goal wasn't to be "commercially valuable" to Malibu, it looks like it failed. In the aftermath of the ruling, Malibu Media filed dozens of new trolling lawsuits. Yes, the defendant deserved to lose. Infringing by downloading the work, then lying about it to the court and destroying evidence should be punished. But it's a shame that all it's doing in this case is enabling more copyright trolling shakedown behavior.

Bad cases make bad law, and this was clearly a bad case, which was made even worse by the actions of that particular defendant. I'm not saying he should have gotten off free, but the end result here is going to lead many others to feel obligated to pay up when they probably shouldn't.

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This will come as no surprise to anyone, but NSA boss General Keith Alexander is pestering Congress for a new law which would provide blanket immunity for companies helping the NSA collect data on everyone.

Gen. Keith Alexander has petitioned Capitol Hill for months to give Internet service providers and other firms new cover from lawsuits when they rely on government data to thwart emerging cyberthreats.

Basically, he's arguing that if the NSA orders companies to do something illegal, the companies shouldn't be liable for that. There's some logic behind that, because when you get an order from the government, you often feel compelled to obey. But, of course, the reality is that this will give blanket cover for companies voluntarily violating all sorts of privacy laws in giving the NSA data. And, theoretically you could then sue the government over those violations, but we've seen in the past how well that goes over. First, the courts won't give you "standing" if you can't prove absolutely that your data was included. Then, if you get past that hurdle, the government will claim "national security" or sovereign immunity to try to get out of the case. And, even if it gets past all of that, and you win against the government, the feds shrug their shoulders and say "now what are you going to do?"

And, of course, rather than narrowly target this immunity, it appears that Alexander would like it as broad as possible.

One former White House aide told POLITICO that Alexander has been asking members of Congress for some time to adopt bill language on countermeasures that’s “as ill-defined as possible” — with the goal of giving the Pentagon great flexibility in taking action alongside Internet providers. Telecom companies, the former aide said, also have been asking Alexander for those very legal protections.

Given the revelations of the past few weeks, this seems like the exact wrong direction for Congress to be heading. We should want companies to push back against overaggressive demands from the government for information. Giving them blanket immunity would be a huge mistake and only enable greater privacy violations.

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Add Al Gore's voice to those who are speaking out against the NSA's dragnet surveillance practices. The former Vice President not only said the practice was un-American, but also unconstitutional in violation of the 4th Amendment.

"This in my view violates the constitution. The fourth amendment and the first amendment – and the fourth amendment language is crystal clear," he said. "It is not acceptable to have a secret interpretation of a law that goes far beyond any reasonable reading of either the law or the constitution and then classify as top secret what the actual law is."

Gore added: "This is not right."

I keep seeing people trying to defend the program due to a single Supreme Court ruling -- Smith v. Maryland -- a 1979 case that gave rise to the "third party doctrine," which argued that if you give data to a third party, you no longer have any expectation of privacy in that data. Of course, the situation specific to that case was exceptionally different and took place in a very different world. By any plain meaning of the phrase "expectation of privacy" people certainly do not think that they're giving up their expectation of privacy just because they use an online service.

What's amazing is that the 4th Amendment is not that complicated, and certainly does not put up some giant barrier for law enforcement. All they have to do is show probable cause and get a warrant. All of this freaking out is showing that they know that they can't show probable cause to get all this data. And that should ring lots and lots of alarm bells. Thankfully, some principled politicians are seeing this and understanding the massive problems with a surveillance state.

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We already discussed how bizarre it is to see NSA defenders trying to claim both that this story is nothing new and a huge danger to America, but that kind of thing continues. Witness two of Congress' biggest NSA defenders, Rep. Mike Rogers and Rep. Dutch Ruppersberger -- the two sponsors of CISPA -- try to claim that Snowden was both lying and exposing secrets that harm us all.

"He was lying," Rogers said. "He clearly has over-inflated his position, he has over-inflated his access and he's even over-inflated what the actually technology of the programs would allow one to do. It's impossible for him to do what he was saying he could do."

"He's done tremendous damage to the country where he was born and raised and educated," Ruppersberger said.

So, um, if he's lying and the information he leaked is not true, then how is he doing "tremendous damage" to the country? I guess the "damage" could be to our reputation as a freedom loving country that respects the 4th Amendment and basic rights to privacy, but that doesn't seem to be what Ruppersberger is claiming.

"Some people are saying that he's a hero. He's broken the law," Ruppersberger said. "We have laws in the United States for whistle-blowers, for people that think there's an injustice being done. All he had to do was raise his hand. ... Under the whistle-blower law, he is protected. Yet he chose to go to China."

Er... except we've seen exactly what happens to NSA whistleblowers who go that route. They get completely ignored and then charged with trumped up claims of leaking secrets anyway, and threatened with over 30 years in jail. It's pretty clear that just "raising his hand" doesn't work and actually puts you even more at risk. Furthermore, the current "whistle-blower" law is rarely used and even more rarely successful, with whistleblowers almost never winning their cases.

"I hope that we don't decide that our national security interests are going to be determined by a high-school dropout who had a whole series of both academic troubles and employment troubles," Rogers said.

Yup. The best Rogers can do is try to smear the guy, rather than respond to what he actually leaked, which is apparently all lies, but threatens us all. Sorry, Rogers, but the story doesn't hold up.

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Retired federal judge Nancy Gertner, who has appeared in stories here for years (she was the original judge in the Tenenbaum trial, and also spoke out about how US attorney Carmen Ortiz handled the Aaron Swartz case), has now highlighted a very important point about all of the NSA surveillance stories: at the heart of much of it is the secretive FISA court, and that court should not be trusted.

As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced.

Two reasons: One … The Fourth Amendment frameworks have been substantially diluted in the ordinary police case. One can only imagine what the dilution is in a national security setting. Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me. Enough said....

It’s an anointment process. It’s not a selection process. But you know, it’s not boat rockers. So you have a [federal] bench which is way more conservative than before. This is a subset of that. And it’s a subset of that who are operating under privacy, confidentiality, and national security. To suggest that there is meaningful review it seems to me is an illusion.

The "judges" on the FISA Court are appointed by the Chief Justice of the Supreme Court. And that's it. As we were just discussing, they hear only one side of a case, and their rulings are kept secret. When you have a party that only hears one side of things and never, ever has to be subject to public review or criticism of decisions, take a wild guess what happens? You get a court that is judicially captured, and sides very much with the intelligence infrastructure that it spends most of its time dealing with.

On top of that, there's a very big question: why are these rulings secret? Something like an interpretation of the law should never, ever be considered secret. Yes, it makes sense to keep something secret if it exposes direct information on a specific case that is being worked on, but basic rulings about what the law actually says should never be. But they are, because the FISA court can do that sort of thing. And that's a huge problem. Late last year, we had a post linking to a story by another former judge, Andrew Napolitano, explaining why the entire FISA court was almost certainly unconstitutional:

The constitutional standard for all search warrants is probable cause of crime. FISA, however, established a new, different and lesser standard -- thus unconstitutional on its face since Congress is bound by, and cannot change, the Constitution -- of probable cause of status. The status was that of an agent of a foreign power.... Over time, the requirement of status as a foreign agent was modified to status as a foreign person. This, of course, was an even lesser standard and one rarely rejected by the FISA court.

With everything that's been going on, most of the attention has been on the administration -- including both the NSA and the DOJ -- as well as some companies participating in the various surveillance programs. But, increasingly, it seems that perhaps a lot more attention should be paid to the entire concept and structure of the FISA court.

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We already commented on FBI director Robert Mueller arguing that the NSA's mass surveillance techniques would have prevented 9/11, and now it appears that Dick Cheney is agreeing with this fictional scenario in which his crystal ball says what might have happened:

"As everybody who's been associated with the program's said, if we had had this before 9/11, when there were two terrorists in San Diego — two hijackers — had been able to use that program, that capability, against that target, we might well have been able to prevent 9/11," Cheney said on "Fox News Sunday."

That's speculation based on nothing, frankly. As has been widely covered, there were a number of reasons why the government failed to stop 9/11, just as there were plenty of reasons it failed to stop the Boston bombings back in April. The idea that this program would have stopped one (while it clearly missed the other) isn't particularly convincing.

Of course, none of that gets to the bigger question of whether or not it's worth it. In theory, we could stop all sorts of crimes by putting military personnel and equipment in the streets, with the power to invade any home and do a full search. But we don't allow that. Because that's a violation of our privacy. And, yes, the loss of life from a terrorist attack is tragic and horrifying -- but many more people are killed in car accidents, and we don't freak out about that and take away everyone's cars. Giving up our basic principles of freedom on the off chance it might possibly stop a terrorist attack (while still missing other terrorist attacks) doesn't really seem like living up to the basic ideals of this country.

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As we've noted before, Hadopi has been a colossal failure on just about every metric, and now seems on the way out. But French taxpayers' money is still being wasted on the scheme, which continues to send out huge numbers of warnings. Ironically, given its imminent demise, Hadopi seems to have finally claimed its first disconnection victim, as PC Inpact reports (original in French.) The person involved has been sentenced to disconnection for 15 days, and must pay a €600 fine. Strangely, it seems that he or she shared only a couple of works, so even that brief period seems harsh. However, there is still scope for an appeal, so the sentence is not yet definite.

And as PC Inpact explains, even if it is confirmed, it may be unenforceable: although access to the Web can be cut, Hadopi's rules state that the filtering must not affect email, private messaging, telephone or any associated TV services. Since these are typically all provided together, that may be tricky, or even impossible. Hadopi says it only hands out suspensions: it doesn't concern itself about how -- or even if -- they can be implemented.

So after years of operation, all that the three-strikes approach has to show for the millions that have been spent, are a handful of convictions: one where someone was fined but innocent, and another where the person involved probably can't be disconnected anyway. Great work, Hadopi.

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Last week, we thought it was ridiculous enough that the DoD (of which the NSA is a key part) had reminded all staff that they were not allowed to look at any of the leaked NSA documents, even if they came across them in the press. If they spotted any, they had to alert various security officials and delete what they saw "by holding down the SHIFT key while pressing the DELETE key for Windows-based systems and clearing of the internet browser cache." As we noted at the time, pretending these documents aren't public does not make much sense, and suggests a government agency that does not want to live in reality.

Now we can add Congress to that list as well. Senate staffers have now been told not to look at the leaked documents, and similarly that they need to "contact the Office of Senate Security for assistance" if they happened across any of the documents accidentally. Once again, this is insane because it means Congress should deny reality and pretend to live with its collective head in the sand -- which is no way to govern.

However, the much bigger deal is that if this were actually obeyed (and it's not), this would effectively hinder Congress's required duty of oversight of the NSA to prevent abuse. If the very Congress that's supposed to monitor the NSA's practices, and which has already been directly lied to by the intelligence community is now being told that it can't even look at the leaks to understand what's going on, how the hell are they supposed to do their oversight job?

Furthermore, last week, we pointed to some video of Rep. Grayson on the House floor giving an impassioned speech about the leaks... and displaying many of the leaked NSA docs blown up on an easel. If Congress isn't allowed to look at them, but Congress is also presenting them on the floor of the House and broadcasting live on C-SPAN and YouTube for the world to see... was the rest of Congress just supposed to avert its eyes while Grayson spoke? Is that a reasonable world?

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Last week, NSA boss Keith Alexander insisted that the various NSA surveillance programs had stopped "dozens" of terrorist attacks. This apparently confused Senators Ron Wyden and Mark Udall -- both on the Senate Intelligence Committee and privy to any such reports -- who claimed that they'd seen no such evidence. Over the weekend, the NSA released no actual evidence, but rather just reiterated the claim that it had stopped "dozens of potential terror plots" in "more than 20 countries."

Note, by the way, the use of the word "potential." That gives the NSA an awful lot of wiggle room, and we've seen before that when you give the NSA wiggle room around some language choices, they take it.

But, the bigger issue is that without presenting any actual evidence on these situations, it's impossible to know whether or not the NSA really needed this massive data collection to stop those "potential" plots. As we've already seen, in the one case where the NSA has said the programs were useful, it quickly became clear that they were not necessary, and traditional policework actually did the bulk of the effort in identifying the plot.

In the same release, the NSA also said that it had only "checked" 300 phone numbers last year against that giant database of every phone call that it collects. They released this tidbit of info to try to calm people's fears that the program wasn't targeting them. But, it seems like this datapoint completely works in the other direction. If the NSA only needs to check 300 phone numbers, no way should it have every phone call made by everyone in its database. Three hundred is a small enough number that it's clearly not unduly burdensome to walk their lawyers down to court and show why each and every one of those numbers matters, and then go from there.

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The NSA leaks have opened up somewhat of a dialogue in Washington, DC. Sure, there's a lot of yelling (some outraged; some defensive), but it finally seems as though some legislators might finally be on the same page as their constituents.

The Director of National Intelligence (James Clapper) and the head of the FBI (Robert Mueller) have both been questioned about the specifics of their domestic surveillance programs. Though the roots of these programs have been around for years, it's the first time many Americans have seen black-and-white proof of government-approved domestic spying. You kind of get the feeling that it's the first time for many of our lawmakers as well, even though many have claimed the NSA/FBI surveillance was all signed off and routed through proper channels, etc.

So, with all this heat coming down on Washington, how is it possible that less than half of our senators could be bothered to stick around DC long enough to catch a classified briefing on domestic surveillance?

A recent briefing by senior intelligence officials on surveillance programs failed to attract even half of the Senate, showing the lack of enthusiasm in Congress for learning about classified security programs.

Many senators elected to leave Washington early Thursday afternoon instead of attending a briefing with James Clapper, the Director of National Intelligence, Keith Alexander, the head of the National Security Agency (NSA), and other officials.

It's not as if the senators would have even needed to stick around until Friday. The briefing was scheduled for 2-1/2 hours after the Senate's last vote of the week, which took place at noon. Granted, the week for most representatives ends on Thursday and no one would think anything of it if this week had gone like any other. But it didn't, and the American public is still closely watching their representatives.

When all classified hell breaks loose, you would expect your elected officials to stay on point until a critical briefing is finished, at the minimum. It's rather disheartening to see legislators working for the weekend by 10 AM Thursday morning. If they can't be bothered to stick around until the end of the day on Thursday in order to stay current on the biggest issue, we've no reason to believe they're really looking to solve this problem.

Dianne Feinstein, oddly, was in the right this time:

“It’s hard to get this story out. Even now we have this big briefing — we’ve got Alexander, we’ve got the FBI, we’ve got the Justice Department, we have the FISA Court there, we have Clapper there — and people are leaving,” she said.

One small point in the defense of the departing senators: this was a "briefing," not a "hearing." While some lively discussion might have been had (possibly taking the form of shouting or loud coughs of "bullshit!"), it's much more likely this would be a one-way blast from the aggrieved parties. And since most senators presumably received a copy of the talking points roughly around the same time Techdirt did, there's really no reason to hear these delivered live, in-person.

Still, this doesn't excuse their actions. This was a missed opportunity for those who left town before the briefing. Reps from nearly every entity currently under fire had been gathered in one room solely to address interested senate members, many of which claim to be very interested.

Lawmakers have been quick to call for increased congressional oversight of the phone and Internet monitoring programs, but many have been unwilling to skip flights or make other scheduling sacrifices to learn more of the secret details.

Unfortunately, a roll call wasn't provided, so we don't know definitely who needs to be asked to put their plane tickets where their mouths are. But we're used to this -- legislators making concerned noises until the national "Business As Usual" light is flipped on in the cabin of the national plane. (Not only that, but we're used to being handed terrible metaphors, although usually by the legislators themselves, rather than a writer in search of a solid closing paragraph.)

Hopefully, this headcount will be leaked as well, resulting in a bit of shame-based focus from our men and women in Washington, who should return tanned and rested from the extended weekend and ready to start earning their paychecks slashing away at our surveillance overgrowth.

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Last week, we noted that Google had publicly requested from the DOJ that it be allowed to reveal information about the FISA surveillance requests it gets, and put them in its well-respected transparency report. Facebook, Microsoft and Twitter quickly followed with similar requests. Late Friday, the DOJ "gave permission," but in perhaps the most useless way possible. Facebook was the first to post the data that the DOJ allowed it to post, and you might immediately see the problem:

As of today, the government will only authorize us to communicate about these numbers in aggregate, and as a range...

For the six months ending December 31, 2012, the total number of user-data requests Facebook received from any and all government entities in the U.S. (including local, state, and federal, and including criminal and national security-related requests) – was between 9,000 and 10,000. These requests run the gamut – from things like a local sheriff trying to find a missing child, to a federal marshal tracking a fugitive, to a police department investigating an assault, to a national security official investigating a terrorist threat. The total number of Facebook user accounts for which data was requested pursuant to the entirety of those 9-10 thousand requests was between 18,000 and 19,000 accounts.

Right. So you may notice that this tells us absolutely nothing about the FISA requests. Because the only way that it could actually reveal anything was to bury them in with every other possible type of request. Facebook did, properly, point out that this wasn't really all that transparent:

This is progress, but we’re continuing to push for even more transparency, so that our users around the world can understand how infrequently we are asked to provide user data on national security grounds.

Microsoft posted something quite similar. And equally useless.

Here is what the data shows: For the six months ended December 31, 2012, Microsoft received between 6,000 and 7,000 criminal and national security warrants, subpoenas and orders affecting between 31,000 and 32,000 consumer accounts from U.S. governmental entities (including local, state and federal).

Microsoft, too, noted the limitation that the DOJ gave them:

We are permitted to publish data on national security orders received (including, if any, FISA Orders and FISA Directives), but only if aggregated with law enforcement requests from all other U.S. local, state and federal law enforcement agencies; only for the six-month period of July 1, 2012 thru December 31, 2012; only if the totals are presented in bands of 1,000; and all Microsoft consumer services had to be reported together.

There is one interesting tidbit:

We have not received any national security orders of the type that Verizon was reported to have received that required Verizon to provide business records about U.S. customers.

Considering that this surveillance program -- the so-called "business records" search, which comes from Section 215 of the Patriot Act with a still-secret interpretation by the FISA Court that appears to allow blanket requests for pretty much all data -- is the much more serious issue, it's nice to see Microsoft being able to say that it has received no such orders.

Google and Twitter also both received the same "permission," but both quickly realized that this was not transparency at all. Lumping in FISA requests with everything else does absolutely nothing to reveal the extent of those FISA requests. In fact, it obfuscates them:

“We have always believed that it’s important to differentiate between different types of government requests,” a Google spokesperson said in a statement. “We already publish criminal requests separately from National Security Letters. Lumping the two categories together would be a step back for users. Our request to the government is clear: to be able to publish aggregate numbers of national security requests, including FISA disclosures, separately.”

Twitter responded with a simple tweet (you expected more?) from legal director Ben Lee, saying:

We agree with @Google: It's important to be able to publish numbers of national security requests—including FISA disclosures—separately.

So, once again, we have the federal government pretending to be transparent, when it's really not. It's only trying to hide the actual number of FISA requests and the number of users impacted. Frankly, this whole demand for excess secrecy over these things makes no sense at all. What could we possibly be "alerting our enemies" to if there were broad general numbers of the number of FISA requests that were sent to Google, Twitter, Facebook and Microsoft? Sure, the actual information requested should remain secret. But the number of requests? That makes no sense at all.

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