It's a short week, but we've still got plenty of great comments to highlight, so let's dive right in. In first place on the Insightful side we've got Bob with a response to the revelation that Keith Alexander offered to resign, but was refused because the White House didn't want Snowden to "win":
He didn't just win, he continues winning...
Snowden won. Period.
They should accept this, and move into the world with the rest of us where this is an undeniable fact of life.
They were doing something that the majority of people would not support, without justification or oversight.
Snowden exposed them to the world. The world got pissed. That all happened.
Continuing to live in the delusional alternate reality where Snowden is a traitor, and they are going to get to go back to business as usual is only going to drive more people away from the American tech industry.
They need to sack-up, pardon him and bring him home, initiate a national debate on the use and abuse of the programs, and start restoring our credibility as a nation committed to essential, universal, civil liberties.
In second place, we've got an anonymous comment pointing out one of the most plainly absurd flaws in the patent process:
This is what really cheeses me about the patent system. One of the requirements for patent validity is that an invention be non-obvious to one skilled in the art. Yet at no point is anyone actually skilled in the art really involved in the decision making process. Sure, they can make various filings or be expert witnesses. But the final decision still always lies with an examiner, judge, or jury that more often than not has no idea what is sitting before them.
For editor's choice, we start with a comment from Greevar, noting that when cops described a teenager they near-fatally tazed with the vague label of "aggressive" it suggests they had no concrete reason for what they did:
The use of that word makes it quite plain that the police are lying through their teeth. If that student was an actual threat to anyone, they would be able to be much more specific about what he did. "Looked ready for a fight" is a bullshit excuse, the kind of bullshit a kid would try to push on you if they wrecked the car when they didn't even have permission to take it. Are the police so immature that they make up lies as weak as a teenager would?
I think the evidence will show that the officer recklessly endangered, and possibly killed, a young man who's only crime was being brown and getting in the way of a thug with too much power that lacked the brains to use it properly.
I will never trust a cop so long as they continue to cover up the crimes they commit with impunity. No cop that breaks the law deserves to be protected. I don't care how great they are and how much they've done, police should be held to a stricter standard than most because they have been trusted with the authority and safety of their community. Power goes hand-in-hand with accountability and responsibility. If you abuse it, you deserve to be held accountable for it. If you have it, you need to use it to protect the people, not force submission. Leave your ego at home; this isn't an arena to live out your power fantasies.
Next, we've got Javarod, countering the old "if you don't have anything to hide, you have nothing to worry about" statement about privacy concerns with one of the best responses I've heard:
I have nothing to hide...
But its still my nothing, and i want to decide who gets to see it.
Over on the Funny side, we've got a dominant winner this week, with ChurchHatesTucker taking both of the top slots. First place goes to his more-sarcastic take on the news about Keith Alexander's stymied resignation:
Good thing they prevented Snowden's revelations from having any kind of impact on the NSA, AMIRITE?
And for second place, some more well-targeted sarcasm, this time directed at United Airlines for nearly killing a passenger's dog with mistreatment and trying to keep it quiet:
What possible trouble could a large faceless corporation get into by mistreating dogs and/or kittens on the internet?
For editor's choice on the funny side, we start out with a comment from peter, who heard about a patent troll's attempt to discredit NewEgg's all-star roster of cryptography experts, and imagined a conversation that may well have happened:
Lawyer 1. "Hey. I've heard they got an expert witness in cryptography" Lawyer 2. "So what? Get our own expert to confuse the Jury"
Cryptography Expert Witness. " You want me to testify against WHO?"
And finally, when we pointed out that the DOJ was finally beginning to accept that Julian Assange didn't break the law, one commenter asked if anyone in the department lost their jobs for launching such a fruitless crusade against him. Pixelation knew it doesn't work that way:
Fired? This is how you fast track yourself to Senator.
That's all for this week, folks! I hope everyone had a great long weekend — we'll be back to business as usual tomorrow.
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- I know that some people like to listen to music in the shower. Hell, it appears some people would like practically all of their electronics in their shower. A few years ago, I came across this shower for sale, which includes built in (among other things) an LCD TV, an MP3 player, a foot massager, a touch control panel and a variety of other things. Add in a waterproof keyboard and someone could make it their office as well as a shower. That seems like overkill. Frankly, any music in the shower seems like overkill, but someone's set up a Kickstarter project for the S.A.S.S. - Smartphone Acoustic Shower Speaker, which appears to be a plastic case for your mobile phone, so you can take it into the shower to play music while you rinse (and sing) away the dirt. If you really want to listen to music, though, is it that difficult to just leave your phone outside of where the water is?
- Then we've got the Loo Hook. I agree that sometimes it's nice to have a hook in a bathroom stall to hang up a backpack or jacket. But... I've also found that a very large percentage of the time when I need such a thing, there already is a hook there. Even when it's not, I've found that the latch usually does a perfectly fine job as a substitute. Thus, I'm scratching my head over how often you'd need such a random extra hook that you'd want to carry it around all the time with you.
- Finally, we've got the Sleep Easy, a sleep mask that wraps around the back of whatever car/airplane/etc. chair you're sitting in to not just cover your eyes, but also to keep your head upright. Of course, if you're going to wear this on a plane (which seems like the most reasonable place to use it), I imagine the person sitting behind you might not be so appreciative. In the FAQ they claim that they've tried to design it to not be a problem for the person behind you, but it definitely would depend pretty heavily on the plane in question.
Separately, we won't have a "Techdirt favorites of the week" post this week. Since it was a short week with the holiday, we figured we might as well skip the feature this week. We'll still be back tomorrow with the best comments of the week though.
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It's that time of year again — we've got a bunch of treats for readers who want to support Techdirt while getting some new gear and perks for the holidays. Today we're happy to make three big announcements about the Techdirt Insider Shop.
First, the shop is accepting Bitcoins! You can now use the internet's native currency for any purchase — just fill your cart as usual and select the Bitpay option at checkout.
Second, in celebration of that upgrade and as part of the Bitcoin Black Friday event happening today, we've put a bunch of items on sale. There are savings on a bunch of Insider gear, plus big discounts on our offerings for serious fans: Lunch with Mike and an awesome day with Techdirt.
Last but not least, it's time for the return of the Holiday Bundle!
This year's bundle includes a pullover hoodie, your choice of a coffee mug or water bottle, and the classic logo tee in your choice of light or dark gray. On top of that, the bundle includes a Watercooler Special: one full year of access to the Crystal Ball and the Insider Chat, plus a monthly cache of First Word/Last Word credits and an exclusive group video chat with Mike. All together this package would normally cost up to $152, but for a limited time it's available at $99!
If you're ordering gear from the Insider Shop to give as a gift, please do it soon to ensure it ships in time! Unfortunately we are unable to guarantee Christmas shipping, but orders placed by December 14th (in the US) or December 9th (internationally) should arrive on time with all shipping options. Depending on your location, there may be express shipping options available as well.
Happy holidays and happy shopping!
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As the saying goes, there are many ways to skin a Streisand effect. Wait, no, that's not right, but the point is that attempts at silencing speech resulting in an explosion of that speech are quite varied. From railing against parody Twitter accounts, to attempts to silence negative online reviews, to professional sports leagues trying to keep documentaries from going live, it seems we all have something to learn from Senorita Streisand and her icy wrath.
But few such lessons include puppies, such as this one that reader IAsimov alerts us to, in which United Airlines nearly killed an owner's beloved dog and agreed to pay her vet bills, but only if she signed a non-disclosure agreement. Janet Sinclair brought her pets, Sedona the greyhound and Alika the cat, on a cross-country trip using UA's "PetSafe" program, which makes several promises about how the animals will be treated and what type of conditions they'll be exposed to. It would appear, to put it mildly, that the airline failed to keep their promises.
But, according to Sinclair, her pets were not safe. In fact, she says, the comfort stop nearly killed them. As she sat in her window seat looking out onto the tarmac of George Bush Intercontinental Airport in Houston, Sinclair says she saw a cargo employee kick Sedona’s crate six times to shove it under the shade of the plane’s wing instead of gently moving it there.Sedona, fortunately, did not die, and the dog was taken to a vet, who was able to bring the dog back to health. The bill for the vet's work was $2,700, for three days in intensive care to treat heat stroke. Her vet was quite clear in stating that the condition of the dog was not due to any preexisting conditions, despite what United Airlines originally claimed, and was solely the result of the dog's treatment during the flight. The airline offered to pay the bill...but only if Sinclair agreed not to tell anyone what good dog-killers they are. Sinclair declined.
Urged by a fellow passenger, Sinclair began documenting what was happening to her animals. The video she recorded periodically shows her pets left outside, not in a temperature-controlled vehicle. According to the National Weather Service, the high in Houston that day was 94 degrees. When they touched down in Boston, Sinclair said her dog was barely alive.
"Sedona’s entire crate was filled with blood, feces, urine," Sinclair said. "Sedona was in full heat stroke. All of the blankets were filled with blood. She was urinating and defecating blood. She was dying, literally, right in front of me."
"The only reason I’m doing this interview is because I didn’t sign that, and I won’t sign it," she said, referring to the nondisclosure agreement. "I still want to be reimbursed," she said. "But I’m not going to be quiet."And now the story is going viral, because the combination of a massive company behaving this way and the inclusion of a dog suffering horrible conditions is the kind of thing internet outrage was made for. My guess? You will still have turkey leftovers in your fridge when UA agrees to pay the vet bill without an NDA. Too bad the damage will have already been done.
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Obama has been gradually tweaking his vast government surveillance policies. But he is not disclosing those changes to the public. Has he stopped spying on friendly world leaders? He won’t say. Has he stopped eavesdropping on the United Nations, the World Bank and the International Monetary Fund? He won’t say.As is noted in the article, the administration, which likes to pretend it's the most transparent in history, is actually one of the most secretive. Its attempts at transparency have almost exclusively been focused on where it can get the most political bang, not for what areas people expect the government to be transparent about -- such as how it interprets the laws that allow the government to spy on everyone...
Even the report by the group Obama created to review and recommend changes to his surveillance programs has been kept secret.
What's incredible is that it appears that no one high up in the administration seems to recognize how this is a strategy that will almost certainly make things worse, not better. It may be how the administration is used to functioning, but it makes it much more difficult to believe anything that is said about a supposed "vigorous public debate" being held on the surveillance activities. It also means that as more leaks come out revealing more questionable practices, the constant backtracking and excuses will just destroy whatever credibility the administration has left on this issue. If, instead, it were to actually be transparent and simply reveal things like how it interprets the law, and allows for a real public discussion on these matters, that would actually result in some frank discussions that the administration seems terrified of actually having.
Extreme secrecy may seem like the easier short-term strategy, but it's just digging an ever deeper hole that the administration is going to have to try to climb out of in the long-term. Hiding reality from a public that's going to find out eventually is just making the problem worse.
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Another incident that highlights the troubling aspects of placing cops in schools has surfaced. The sheriff's office's (which supplies the deputies to the school) story has changed several times in the space of few days, but the end result is inarguable: a 17-year-old student is in a medically-induced coma as the result of its officer's actions.
At one Texas high school, the use of a Taser by Randy McMillan, a sheriff’s deputy/school resource officer, on 17-year-old Noe Niño de Rivera has resulted in the student being put in a medically induced coma. The family has filed a lawsuit against McMillan, the school district, and the county, and alleges Rivera was tased after trying to break up a fight.According to the court documents, the teen was walking backwards from school officers who were trying to break up a fight when he was tased, falling backwards and suffering a brain hemorrhage. The sheriff's office maintains that the student acted aggressively and refused to back off when ordered to by officer Randy McMillan.
The narrative is cloudy, even when restricted to just the sheriff's office's statements. The original report of the incident on Nov. 20th said this:
A Bastrop County sheriff deputy assigned to Cedar Creek High School as a resource officer used a Taser on a 17-year-old student during a fight on Wednesday, according to officials.The next day, the office's statement added this:
The student and two other boys were involved in a fight in the hallway when the deputy used the stun gun on him, according to the Bastrop school district and Sissy Jones, a spokeswoman for the sheriff’s office.
A 17-year-old Cedar Creek High School student was acting aggressively before a Bastrop County sheriff’s deputy Tased the teen Wednesday, officials said Thursday.Thus making the deployment of the Taser more justifiable. But it also added this:
Sissy Jones, a spokeswoman for the Bastrop County sheriff’s office, said that two deputies who work at the Bastrop school district as resource officers were trying to stop a fight Wednesday between two female students in the high school’s hallway when the 17-year-old male student approached.The original report stated the tased student was involved in a fight with two other boys and the deputy. This new statement shows the student wasn't even involved in the fight and had only "approached" the scene.
The student tried to interfere with the deputies and didn’t listen to their commands, Jones said. “He looked as though he was ready to fight.”"Looked." This still doesn't explain the office's statement that the student was "aggressive" or the implication that he posed a threat to the officers.
The family's lawyer claims to have cell phone footage of the incident that contradicts the statements made by the officers.
"They're completely lying, they're completely lying because they're very worried about this officer being indicted for a criminal charge, which he should be," said attorney Adam Loewy, who is representing the family…Whatever this footage shows likely won't make an appearance until the case goes to trial, but it would seem the school itself should have footage of the incident. According to its parent's handbook, the school has cameras in use (p. 70).
"Noe was being a good Samaritan, a good citizen, he broke up the fight. Then there was some stoppage to everything, and he was standing there. You see these police officers go up to him and tase him," Loewy said.
For safety purposes, video and audio recording equipment is used to monitor student behavior, including on buses and in common areas on campus. Students will not be told when the equipment is being used.A "high school hallway" would presumably be a "common area." If there is footage, no one has made any mention of it. Even stranger, no one has even offered to review the recordings or even deny such footage exists.
The lawsuit would obviously limit the school from talking about the incident (as would the student's age), but the school issued nearly no statements in the days preceding the filing, other than its original joint statement with the sheriff's office (above) and this boilerplate isued on the day of the incident.
“The safety and security of all students is the number one priority at Cedar Creek High School and Bastrop ISD,” the district said in a statement. “When law enforcement officers intervene and take action, they do so based on their training and protocol, as they deem warranted.”The sheriff's office has gone on record as stating the student wasn't involved in the fight, but yet somehow, the uninvolved student is the one who was tased and hospitalized for nothing more than appearing "aggressive." Fights have occurred in schools as long as there have been schools, but only in recent years has it been assumed that only law enforcement officers are capable of handling combative students. When you use law enforcement officers to handle routine disciplinary problems, you greatly increase the odds of severe injuries. Officers have certain training and tools and applying them to situations that don't require severe responses puts LEOs in the awkward place of either doing nothing or approaching students as though they were dangerous, hardened criminals.
If this school had no "resource officers," it's nearly guaranteed that this situation would have ended with nothing more than routine disciplinary action, rather than with a 17-year-old in a coma and the filing of a federal lawsuit.
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- Glass Gem corn is a stunning variety of heirloom corn that's named for its multi-colored, gem-like kernels. You really have to see it to believe it. Glass Gem is the result of many years of selective breeding of corn that exhibited vivid, translucent colors.[url]
- Tartine Bakery in San Francisco has started incorporating heirloom and ancient varieties of grains into the bread they make. Apparently, these older varieties of grains -- rye, barley, einkorn, and emmer -- have a different gluten quality that makes them easier to digest. [url]
- In case of an apocalyptic disaster that destroys the world's crops, the Svalbard Global Seed Vault will make sure we can rebuild the global plant population. Built on the edge of the Arctic Ocean in Svalbard, Norway -- away from civilization -- the seed vault can hold up to 4.5 million different seed varieties and keep them safe from disasters caused by climate change, asteroid strikes, plant diseases, nuclear warfare, and even earthquakes. [url]
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The leaked TPP draft, pried loose from the "open and transparent" grip of the USTR, is generating plenty of commentary all over the web. After getting a good look inside, it's little wonder the USTR felt more comfortable trying to push this through under the cover of darkness.
As the criticism of the push for IP maximalism mounts, the treaty's defenders have leapt into the fray, hoping to assure everyone who wasn't previously aware of the treaty's contents (which is pretty much everyone) that there's nothing to see here and please move along.
Mike recently broke down the ridiculous claims and posturing of the USTR's "talking points." Amanda Wilson Denton, counsel to the IIPA (International Intellectual Property Alliance) has showed up right on cue to "set the record straight" on the leaked TPP draft. Let's see how well she followed the talking points. (Talking points in bold.)
The Draft Is Already OutdatedSure, it's only a "snapshot." But unless everything's changed since then, it's a very representative snapshot of the involved countries' stances on IP issues. Just because the work is "ongoing" doesn't mean its improving.
The only thing that can certainly be said about this draft is that it does not reflect the current state of the negotiations...
If it is what it purports to be, the draft reveals a snapshot in time of the ongoing work of the participating countries to hammer out an agreement in Intellectual Property Rights…
What It Would Not Require: Changes to U.S. IP LawSo, if you love current US IP law (and wish it would be expanded), you'll love the TPP. If you don't, well… get used to it. The US is running your IP show now, foreigners.
While it is impossible to say right now what a TPP IP chapter would do, experience provides an answer for what it would not do -- since the U.S. began negotiating FTAs again in 2000, no FTA has required a change to U.S. intellectual property law.
The U.S. proposals mirror the current duration of copyright in U.S. law. They track the provisions already agreed in previous FTAs regarding the technologies that rights holders use to control access to their works and limitations on liability to benefit ISPs, including the FTA agreed between the United States and Korea that entered into force in 2012…
In sum, the putative U.S. positions revealed in the leaked text would be consistent with U.S. law and prior free trade agreements approved by Congress, and most importantly would help to achieve better copyright protection among our trading partners…
While we understand that there are parties that don't like present U.S. law and policy, this leaked text demonstrates a fealty to existing U.S. law, and not an abandonment thereof.
Denton does admit there is one change to existing US law, something only a maximalist would be happy to see -- a provision that would allow rights holders to pursue criminal charges against those who "aid and abet" copyright infringement. Great news! That means you no longer have to actually infringe to be held criminally accountable. All you have to do is be adjacent to it.
The Only Real “News” – Many Bogus Claims Are Now Verifiably False.Comparisons to SOPA are valid because the leaks show the US is pushing a maximalist hard line, one that goes much further than most other countries are willing to go (Australia being the notable exception).
The only real “news” in the leaked text is that various claims (e.g., TPP endangers Internet freedom, TPP is SOPA) are now provably false.
[T]he issue that generated controversy surrounding SOPA—website blocking through DNS blocking—is entirely absent from the text as recently noted by Ambassador Froman. Froman specifically raised the issue of “blocking rogue Internet sites from accessing the Internet from the United States” in a recent interview published in the November 18, 2013 issue of Washington Trade Daily. He stated unequivocally: “There is nothing in the Trans Pacific Partnership, zero, that has anything to do with that...”
Any comparison to SOPA/PIPA is completely inappropriate and inaccurate.
SOPA was a maximalist's dream. Since a majority of Americans are not maximalists, the bill was tough to sell. The USTR knows this, which is why every aspect of these negotiations has been as secretive as possible. Simply stating the TPP is not SOPA because it isn't exactly the same is a weak dodge. It has the same intent. The TPP will harm internet freedom the same way SOPA would have. Secondary liability will now be a criminal act, as Denton points out in her defense of the agreement.
And as for Ambassador Froman's claim that the TPP doesn't provide for the blocking of "rogue sites," former USTR employee and current analyst for the ITIF (SOPA's "intellectual backer") Michelle Wein actually points out that it does in her op-ed defending the proposal.
In addition, the text does not require ISPs to block access, but instead asks that they take reasonable steps: "Court-ordered relief to compel or restrain certain actions shall be limited to terminating specified accounts, or to taking reasonable steps to block access to a specific, non-domestic online location. [emphasis added]" Essentially, this means that courts cannot make ISPs financially liable for copyright infringement by their users, but can ask them to take steps to block access.When the government starts "asking" ISPs to "take reasonable steps" (what does that even mean?) to block sites, it's not a request. It's a very forceful suggestion with potential legal implications, as most court ORDERS are. ISPs may not be liable for customers' infringement, but they can certainly be held liable for not "taking reasonable steps" to block access. "Reasonable" is in the eye of the beholder, and what that means for ISPs is that courts will be making this call after they've already issued an order "asking" them to block sites.
What's being witnessed here is the US attempting to make the world beholden to its rights holders. The TPP makes a mockery the last word in its title. There's no "partnership" here. Just a country misusing its stature and economic power to rewrite international IP laws in servitude of a few select industries.
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While the revealed documents did not directly point to a similar infiltration of Microsoft, there's reason to believe it was also compromised. Other Snowden documents mentioned in the linked article above note that Microsoft is listed as having data accessible under the same program, referred to as MUSCULAR. Perhaps more interesting is Microsoft making it clear that it believes any such infiltration would be a serious legal violation:
When asked about the NSA documents mentioning surveillance of Microsoft services, Smith issued a sharply worded statement: “These allegations are very disturbing. If they are true these actions amount to hacking and seizure of private data and in our view are a breach of the protection guaranteed by the Fourth Amendment to the Constitution.”Of course, just because something is a Constitutional violation doesn't necessarily mean that there's much of a legal remedy. Any lawsuit would immediately lead to claims of sovereign immunity and national security to try to kill off any such lawsuit. It's the same thing the feds have done every time they've been challenged on this stuff. The only real way to deal with this is to make sure that the companies actually protect user data in a manner that makes it nearly impossible for the government to break in as it has in the past.
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Given this, EasyDNS went even further and filed a "request for enforcement" against Public Domain Registry, for locking the domains from being transferred out (and to EasyDNS). As EasyDNS notes, PDR's decision to lock the domains, despite being asked to do so by the police, violated ICANN's policies. ICANN's policies are pretty straightforward: the only times a registrar can deny a transfer-out request is in a few specific cases. And "asked by random police" isn't one. Instead there's "court order by a court of competent jurisdiction." But, again, there's been no court order.
Given this, the fact that PDR is denying to transfer the domains to EasyDNS it seems like an open and shut case that PDR is violating the rules. Verisign, which oversees all of this, should have made quick work of this in telling PDR to get on with the transfers. Instead... it totally punted, issuing one of the most bizarre statements you can imagine:
Subject: TDRS Case 45337 – Decision Rendered/ No Decision [ ref:_00DA0Zmyt._500A0GS9Pe:ref ]Got that? Verisign reviewed everything and it's issued its decision, which is no decision. How very Abbott and Costello of them. Furthermore, the "reason" is even more bizarre. Basically, PDR -- the registry accused of violating the rules -- did not provide sufficient data. Huh? That's like saying that someone charged with a crime automatically gets off if they don't provide the evidence against themselves, no matter what evidence the police have.
Please be advised that Verisign has completed its review of Request for Enforcement Case # 45337 and has rendered a decision of No Decision.
REASON FOR DECISION: Pursuant to Section 3.3.4 of the Registrar Transfer Dispute Resolution Policy, the data provided by the Respondent is inconclusive as to the issues presented.
From here, it appears the process was:
EasyDNS: Here's our request for enforcement with lots of evidence that PDR folded like a cheap card table when some power hungry police force told them to shut down sites and block transfers despite no court order. This violates ICANN's transfer rules.EasyDNS is going to continue to push the matter, however, because it notes the dangerous consequences of Verisign's ridiculous non-decision.
Verisign: PDR, what happened?
Verisign: Well, EasyDNS, we are issuing a no decision decision, because PDR's answer is inconclusive.
We feel we have an obligation to push this to an appeal now, because otherwise it means that Registrars can arbitrarily slam the doors on outbound transfers, ignore any enforcement requests from the registry and then be granted decisions of "no decisions", thus allowing them to simply keep the domains hostage.
Now there's an easy way to reduce customer churn – to zero.
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Southern District of Illinois Judge Patrick Murphy is having none of that. In a scathing opinion he rips to shreds the arguments of Duffy, Hansmeier and Steele. Beyond noting the basic procedural deficiencies in their own filings (once again, they don't seem to actually understand the law and just fling as much shit at the wall as possible, and the judge clearly recognizes this), he also appears to be well aware of the larger scam Team Prenda has been pulling. There's a long discussion about the claim that Hansmeier and Steele weren't properly served, in which the judge makes it clear this is simply beyond belief. Here's just a snippet of a much longer discussion:
First and foremost, Steele’s claim that he never got notice of Smith’s motion for fees is baseless. A review of CM/ECF records reveals that notice of Smith’s motion for attorney fees (Doc. 61) went to numerous email addresses, including: firstname.lastname@example.org—an email address used by both Steele and Paul Duffy. Therefore, it is irrefutable that Steele had actual notice of Smith’s motion for attorney fees prior to the Court’s order granting the motion.The judge also points out the tremendous evidence that Steele, Hansmeier and Duffy are working quite closely together on all of this anyway.
Aside from being from the same firm, there is other evidence suggesting these three men worked in concert with one another. First, Duffy, Steele, and Hansmeier used each other’s CM/ECF login information, and/or filed documents on behalf of one another. For example, both Steele and Hansmeier used Duffy’s CM/ECF login information to enter their appearances, or Duffy attempted to do so for them (See Doc. 11, 15); Hansmeier also used Steele’s CM/ECF login information to file his motion to continue, or Steele filed it on Hansmeier’s behalf (Doc. 73). Second, the similarities in documents filed by Duffy, Steele, and Hansmeier indicate an ongoing relationship. For example, in the instant motions to vacate/reconsider, the three men use identical formatting from the caption, to the font, and the signature block, and the substance is largely the same...Then, of course, there's the citation to the numerous other cases that have found against Team Prenda, and noted that those three are clearly in control. The judge also notes that even if they didn't have notice, they clearly had notice in time for a later hearing and still their filings did not state any actual grounds for relief. Basically, the judge points out that they absolutely knew about all of this, and he won't overturn the original decision because for all the shit they threw at the wall, none of it actually stuck.
But then the judge goes further. He calls them liars. He doesn't dance around it. He flat out calls them on it.
The Court also finds that Duffy, Hansmeier, and Steele exhibited a “serious and studied disregard for the orderly process of justice.” .... These men have shown a relentless willingness to lie to the Court on paper and in person, despite being on notice that they were facing sanctions in this Court, being sanctioned by other courts, and being referred to state and federal bars, the United States Attorney in at least two districts, one state Attorney General, and the Internal Revenue Service. For example, at the November 13 hearing, Hansmeier skirted the Court’s direct questions, Steele made feigned protestations, and both flat-out lied about their association with Prenda Law, Inc. in the face of documentary evidence on the record in this case, and their sworn declarations in other cases.In the end, the judge grants all the requests for attorneys' fees, adding yet another $261,025.11 to the rapidly increasing total from other cases. I imagine it won't end there, though it's unlikely anyone will see any of that money. Instead, we're all still waiting for the main act, when the criminal charges almost certainly arrive.
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In their obsessive war on piracy, the copyright industries have tried various approaches. For a while, the "three strikes and out" was popular, until it became clear that it was completely ineffectual. At the moment, the preferred method is to try to force ISPs to block access to sites holding material that infringes on copyright. The UK led the way, and has now made the whole process pretty routine, as a recent post on the TechnoLlama blog explains:
The blocking order follow a now familiar pattern established in 20th Century Fox v BT: lawyers for the film and/or music industry go to court against UK ISPs to try and obtain an injunction that will block access on those to a specific website. The subject websites are not included as co-defendants, and their guilt tends to be assumed, or dealt with separately. The websites are then blocked at the ISP level, meaning that any person who enters "www.thepiratebay.sx" into their browser will receive a notice stating that the site is not available. The fact that it is easy to circumvent these blocks doesn't seem to worry the industry much: either the only concern is to make it hard for less tech-savvy users to access a site, or maybe a symbolic victory is all that is required. In any case, the approach is beginning to spread in Europe. For example, Switzerland is currently reviewing the operation of copyright in a digital world, and blocking content is likely to be one of the recommendations from the AGUR12 working group -- following the usual heavy-handed hints by the USTR, as TorrentFreak explains:
According to a report obtained by NZZ am Sontagg, AGUR12 have concluded that Swiss Internet service providers should be forced to delete content if hosted on Swiss-based sites. Most controversially their final report, which is now being sent to the Justice Minister, states that ISPs should display warnings when users attempt to access unauthorized content sources while "obviously illegal sites" should be rendered entirely inaccessible. As usual, that begs the question which sites are "obviously illegal." Meanwhile, in Belgium, the authorities continue their forlorn attempt to shut down The Pirate Bay and its proxies:
The Supreme Court of Belgium has ordered local Internet providers to proactively search for Pirate Bay proxies, and block subscribers' access to these sites. The order is one of the most far-reaching decisions when it comes to website blocking based on copyright infringement grounds. A spokesperson for Belgacom, one of the largest ISP, describes the verdict as disproportionate and unacceptable. But perhaps the most important news on the Web blocking front concerns Europe's highest court, the Court of Justice of the European Union. The Austrian Supreme Court had sought guidance on whether injunctions could be brought against ISPs whose users were accessing sites that infringed on copyright. As is usually the case, before the Court of Justice hands down its opinion, a kind of pre-opinion is given by the Advocate General (pdf), in this case Pedro Cruz Villalón. Here's his view on the situation:
In his Opinion today, Advocate General Pedro Cruz Villalón takes the view that the internet provider of the user of a website which infringes copyright is also to be regarded as an intermediary whose services are used by a third party -- that is the operator of the website -- to infringe copyright and therefore also as a person against whom an injunction can be granted. That is apparent from the wording, context, spirit and purpose of the provision of EU law. This bad news that ISPs can be regarded as intermediaries is tempered slightly by the following:
The Advocate General is also of the view that it is incompatible with the weighing of the fundamental rights of the parties to prohibit an internet service provider generally and without ordering specific measures from allowing its customers to access a particular website that infringes copyright. The Advocate General adds one other qualification:
It is for the national courts, in the particular case, taking into account all relevant circumstances, to weigh the fundamental rights of the parties against each other and thus strike a fair balance between those fundamental rights. This is not the final ruling of the Court of Justice of the European Union itself, which could take a completely different view of things, but that is unlikely. So we can probably expect to see even more Web sites blocked in Europe at the behest of film and music companies. That's a huge pity. It imposes costs on ISPs that have nothing to do with the infringement, and it distracts copyright companies from the real solution: providing better access to legal offerings at fair prices.
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Wall Street Journal columnist L. Gordon Crovitz wrote a misleading and error-filled column on NSA surveillance Monday based on documents obtained by EFF through our Freedom of Information Act lawsuit. Since we’ve been poring over the documents for the last week, we felt it was important we set the record straight about what they actually reveal.
Edward Snowden thought he was exposing the National Security Agency's lawless spying on Americans. But the more information emerges about how the NSA conducts surveillance, the clearer it becomes that this is an agency obsessed with complying with the complex rules limiting its authority.
That’s an interesting interpretation of the recently released documents, given that one of the two main FISA court opinions released says the NSA was engaged in “systemic overcollection” of American Internet data for years, as well as committed “longstanding and pervasive violations of the prior orders in this matter.” The court summarized what it called the government’s “frequent failures to comply with the [surveillance program’s] terms” and their “apparent widespread disregard of [FISA court imposed] restrictions.”
[The documents] portray an agency acting under the watchful eye of hundreds of lawyers and compliance officers.
Again, this is not what the actual FISA court opinions portray. “NSA’s record of compliance with these rules has been poor,” and “those responsible for conducting oversight failed to do so effectively,” FISA court Judge Bates wrote in the key opinion released last week. In another FISA court opinion from 2009, released two months ago, the NSA admitted that not a single person in the entire agency accurately understood or could describe the NSA’s whole surveillance system to the court.
It's true that the number of compliance officers at the NSA has increased in recent years, but as the Washington Post reported, so has the number of privacy violations.
These documents disprove one of Mr. Snowden's central claims: "I, sitting at my desk, certainly had the authority to wiretap anyone, from you or your accountant, to a federal judge, to even the president if I had a personal email," he told the Guardian, a British newspaper.
Here, Crovitz is setting up a strawman. Snowden wasn’t talking about the NSA’s legal authority, but their technical authority to conduct such searches. Snowden was likely referring to XKeyScore, which the Guardian reported allowed NSA analysts to “search with no prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals.”
We actually have a specific example that proves Snowden’s point. As the New York Times reported in 2009, an NSA analyst “improperly accessed” former President Bill Clinton’s personal email. More recently, we’ve learned that the NSA analysts abused the agency vast surveillance powers to spying on ex-spouses or former lovers.
The NSA also released the legal arguments the Justice Department used in 2006 to justify collection of phone metadata-the telephone number of the calling and called parties and the date, time and duration of the call.
Metadata collection is about connecting the dots linking potential terrorist accomplices. The Clinton administration created barriers to the use of metadata, which the 9/11 Commission concluded let the terrorists avoid detection. Since then, metadata has helped stop dozens of plots, including an Islamist plan to blow up the New York Stock Exchange in 2008.
Again, not true. As Intelligence Committee members Sen. Ron Wyden and Sen. Mark Udall have continually emphasized, there is “no evidence” that the phone metadata program is effective at stopping terrorists. Independent analyses have come to the same conclusion. When called out on that number in a Congressional hearing, even NSA Director Keith Alexander admitted the number was exaggerated.
The only “disrupted plot” the NSA can point to that was solely the work of the phone metadata program was a case where a man from San Diego sent a few thousand dollars to the al-Shabaab organization in Africa in 2008. In other words, the metadata did not disrupt an active terrorist plot inside the US at all.
The declassified brief from 2006 made clear that such metadata "would never even be seen by any human being unless a terrorist connection were first established," estimating that "0.000025% or one in four million" of the call records "actually would be seen by a trained analyst."
The major 2009 FISA court opinion released in September, that apparently Mr. Crovitz either didn’t read or conveniently left out of his piece, showed that the NSA had been systematically querying part of this phone records database for years for numbers that the agency did not have a “reasonable articulable suspicion” were involved in terrorism—as they were required to have by the FISA court. Of the more than 17,000 numbers that the NSA was querying everyday, the NSA only had “reasonable articulable suspicion” for 1,800 of them.
The FISA court concluded, five years after the metadata program was brought under a legal framework, that it had been “so frequently and systematically violated that it can fairly be said that this critical element of the overall…regime has never functioned effectively.”
These documents do not paint a picture of an agency with a clean privacy record and a reputation for following court rules, as Mr. Crovitz claims, and in fact, they show why it is vital Congress passes substantive NSA reform immediately. You can go here to take action.
Reposted from EFF
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The ignorance issue is disturbing, but somewhat understandable. As we pointed out just recently, the USTR relies heavily on Industry Trade Advisory Committees (ITACs), which are deeply involved in these things. Members get access to the documents -- much more access than even Congress, and certainly a lot more access than the public which gets none at all. The IP ITAC is almost entirely made up of legacy industry players who come from a different era, and who know little about today's innovation. In fact, they tend to fight against innovation. As Lee notes, the USTR used to work mostly with exporters -- companies who ship stuff to foreign countries, and their general outlook on everything is from that perspective. But that makes no sense when you're talking about information. Rather than crafting export policies, they're creating information infrastructure policy, when the very flow of information is critical to innovation. And they simply don't get that. At all.
Lee also reports (for the first time publicly) how the USTR flat out rejected a recent attempt to put copyright law expert Andrew Bridges on the IP ITAC. Bridges is the person you should thank for having music in your pocket, because he defended the legality of the first MP3 player when the RIAA tried to sue it out of existence. He's also worked closely with a ton of internet companies and knows better than just about anyone I know how innovation works these days. You may also recognize him for fighting the US government's bogus attempt to seize a hip hop blog. Even though his expertise is copyright law, the USTR said he could only join the "Information and Communications Technologies" ITAC, which is not his specialty, so he refused the pointless appointment.
But the really concerning part is the insane revolving door between IP maximalist industry players and the USTR. Lee details a very long list of folks who have gone in both directions, between the USTR and the pharmaceutical industry, as well as between the USTR and various copyright maximalist organizations. Here's just a snippet.
And that's just the basics. Of course, this is the very nature of the USTR. After all, their boss, Michael Froman, was once described by Reuters as "one of the most egregious examples... of the way the revolving door works between business and government generally." So that's the guy who sets the tone there, though Froman's only been at the USTR for a brief time. This culture is pervasive.
The lead American negotiator was Ralph Ives, who was promoted to Assistant USTR for Pharmaceutical Policy soon after the negotiations concluded. He was aided by Claude Burcky, Deputy Assistant USTR for Intellectual Property. Less than three months after the Australia agreement was signed, the Sydney Morning Herald reported that both men would take jobs at pharmaceutical or medical device companies. Their new employers stood to benefit from some of the pro-patent-holder provisions of the treaty. Ives took a job at AdvaMed, a trade group representing medical device manufacturers. Burcky moved to the pharmaceutical and medical device company Abbott Labs.
Since then, Abbott has hired two other USTR veterans, Andrea Durkin and Karen Hauda, according to the women's LinkedIn pages. Another USTR official, Kira Alvarez, has gone through the revolving door twice over the last 15 years. Her LinkedIn profile indicates that she served at USTR from 2000 to 2003, spent four years at the pharmaceutical giant Eli Lilly, and then returned to USTR in 2008 as Deputy Assistant USTR for Intellectual Property Enforcement. She was there for five years before she took a job at AbbVie, a pharmaceutical firm that spun off from Abbott earlier this year.
According to his official biography at the site of the Biotechnology Industry Associaiton, Joseph Damond "was chief negotiator of the historic U.S.-Vietnam Bilateral Trade agreement" during his 12 years at USTR. He then spent five years at the Pharmaceutical Research and Manufacturers of America before moving to BIO. Justin McCarthy went through the revolving door in the other direction. According to a USTR press release, McCarthy was responsible for intellectual property issues at the pharmaceutical company Pfizer from 2003 to 2005 before he was hired at USTR. He now works at a lobbying firm.
And it's a real problem. The USTR doesn't seem to recognize that what's best for a few large industry players who might give the USTR employees jobs a few months down the road, can be disastrous for both the American public and the American economy. I've had USTR people try to defend what they do to me by claiming that "it's our job to support US trade interests." But that's taking an excessively dangerous view of what their role really is. It's a myopically narrow view of what the US's trade interests are, based on a laughably narrowminded group of individuals whose interests may be quite harmful to the wider US public and economy.
The USTR may claim it's trying to help promote American jobs, but it really looks like it's their own jobs that are most important to them.
Either way, this is even more evidence that the USTR simply has no credibility on issues like copyright and patents. There's no reason why this "free trade" agreement should include intellectual property in the first place, since it's the very antithesis of free trade. But now that it's quite clear that the USTR is impossibly biased on this issue, it's even more reason to simply strip out the IP chapter entirely.
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Dear Adam and Mike,A very strong argument can be made that the company should have communicated directly with the Beastie Boys and their lawyers prior to filing for declaratory judgment. But what many people who are commenting on this, who have little to no understanding of copyright law, don't realize, is that filing for a declaratory judgment when threatened is both very standard and quite sensible. As the copyright maximalists are fond of reminding us, you often can't know for sure if something is fair use until a judge says so. Frankly, it shouldn't be this way. Fair use shouldn't require a court to decide, but copyright maximalists have made it so. And, given that, if someone threatens you, the best way to make it clear that it's fair use is to quickly get a judge to weigh in. That's exactly what Goldieblox did, and it's pretty standard in cases where someone is accused of copyright infringement.
We don’t want to fight with you. We love you and we are actually huge fans.
When we made our parody version of your song, ‘Girls’, we did it with the best of intentions. We wanted to take a song we weren’t too proud of, and transform it into a powerful anthem for girls. Over the past week, parents have sent us pictures and videos of their kids singing the new lyrics with pride, building their own Rube Goldberg machines in their living rooms and declaring an interest in engineering. It’s been incredible to watch.
Our hearts sank last week when your lawyers called us with threats that we took very seriously. As a small company, we had no choice but to stand up for ourselves. We did so sincerely hoping we could come to a peaceful settlement with you.
We want you to know that when we posted the video, we were completely unaware that the late, great Adam Yauch had requested in his will that the Beastie Boys songs never be used in advertising. Although we believe our parody video falls under fair use, we would like to respect his wishes and yours.
Since actions speak louder than words, we have already removed the song from our video. In addition, we are ready to stop the lawsuit as long as this means we will no longer be under threat from your legal team.
We don’t want to spend our time fighting legal battles. We want to inspire the next generation. We want to be good role models. And we want to be your friends.
Debbie + Team GoldieBlox
As we've noted in multiple posts, there's also a very strong argument that this is absolutely fair use. However, that doesn't mean that Goldieblox needs to continue the fight. Pulling the video and the lawsuit may remove what would have been a very interesting copyright/fair use case, but as we ourselves have pointed out many times, just because you can go legal, it doesn't always make sense to do so. The question of whether or not the Beastie Boys want their music in ads may be relevant to whether or not the original effort was "respectful," but is not an issue in the fair use equation.
Which brings me to one final point on this. Many people have been arguing that "respect" is all about "permission." This is a very dangerous view. As we've pointed out over and over again, permission-based culture is no culture at all. Creating art is about breaking barriers, building on those who came before and doing it in new and unique ways. The Beastie Boys themselves clearly recognized and did this themselves many, many times. Often, getting permission is impossible, and focusing on needing permission crushes fair use in dangerous ways. A healthy fair use doctrine has resulted in tremendous art, culture and innovation. Demanding permission in all cases would be stifling. It also leads to a thicket problem, that tends to benefit the gatekeepers of culture, rather than the actual creators and artists, many of whom rely strongly on fair use themselves.
As Mathew Ingram notes, fair use is something worth fighting for, and while Goldieblox made the reasonable decision not to continue this fight, we should be extremely wary of attempts to shut down and close off fair use for the sake of both our culture and innovation.
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While I don't disagree that they have their place, the practical application of internet content filtering software and hardware seems to suck when it's applied large-scale. There are several reasons for this. The general category blocking that's done when settings are low flat out doesn't work. Some inappropriate content will be blocked while some won't be, with the same holding true for appropriate content. Yay. And, gosh, wouldn't you know it, but kids are generally really good about getting around the filters we adults put in place. And even when government groups that should know better have the best of intentions, they often end up blocking sites that shouldn't be blocked out of a misplaced sense of prudishness. That's how you end up getting WiFi on the Maryland Amtrak, but don't you go reading about gay topics (non-pornographic) because that's just icky icky.
It gets more interesting in schools, because everyone's sensitivity jumps up a notch when children are involved and because there's entirely too much sensitivity from different groups of parents who instill different values, religious traditions, and morals in their kids. I get that. If you're a strict Christian, you may teach your children the strict dogma about homosexuality. That's absolutely your right. That isn't the argument. Like, at all. But here's the fun question: exactly how verboten is the topic of gay marriage or homosexuality going to be in our schools now that the topic is regularly discussed on the news and amongst our lawmakers? And how is that question going to butt up against the way webfilters work, are programmed, and utilized by schools?
Here's one example of how this is done wrong. Full disclosure: Paul France is both a teacher here in Illinois and a very close friend of mine, but what happened when he wanted to look into teaching tools to discuss the recent marriage equality law passed in our state provides a partial look into why webfilters need to make some changes.
As a teacher of young children, and in light of Illinois’ recent ruling on gay marriage, I decided that I wanted to find out if there were any resources or news articles that would be relatable to and appropriate for children.Now, while I can appreciate that not everyone will agree, I would hope that many/most will think that discussing current events and a major law being passed in our state would be a good topic of discussion amongst school children. After all, they live under this law. More importantly, as France notes later in his post, this was to be an open discussion with no push on telling kids they should "agree" with the law. It was purely a teaching moment. Unfortunately, in his search for appropriate resources, he came across a webfilter message that said sites were blocked as a "forbidden category: gay and lesbian issues."
Same-sex relationships are not inappropriate for children; the physical and explicit nature of sex is, and an article related to same-sex marriage does not always mean there will be sexually explicit content. Having said this, the website that I visited did, in fact, end up having some content that would be inappropriate for children. However, this content should have been more correctly coded as Forbidden Category: Sexual Content.If you happen to view homosexuality as a negative, which is again your right, you might find this to be nit-picky...until you read that second paragraph. Because he's exactly right; gay and lesbian issues are no more a legitimate target for a block than African American issues. Sexual content should of course be blocked on school networks (assuming it isn't gobbling up sex-ed class material as well), but that's not what we're talking about. In what world is blocking "Gay and Lesbian Issues" appropriate? That's sending all the wrong messages about how children in schools (and the rest of us too, by the way) are supposed to be engaging in an educational dialectic. Banning the topic gets nobody anywhere. This isn't about pushing anything, it's about having a discussion in a secular public school system.
In my mind, it would be like filtering an article with explicit photos on slave mistreatment in the 1800s as “African American Issues.” Of course, we would not want children to see disturbing photos depicting violence; however, we would code them as Forbidden Category: Violence.
Let’s try something new. Let’s open up our minds, accept that there are many diverse viewpoints, and come to terms that we don’t all agree. Let’s have a discussion, encourage debate, and promote divergent thinking. I think we’ll all be better off for it in the long run.I'll add to that a couple of things. Parents, give yourselves credit for your parenting. Mere discussion isn't going to change the values you've taught your children. And let's also give our kids some credit. I think they can take on more serious topics than we imagine, no matter which side of this or any other argument you might be on.
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It's pretty much universally accepted that "revenge porn" is a bad thing and that steps should be taken to prevent the posting of someone's private photos (usually along with contact info) at various websites that entertain the small minds that find this cathartic or fascinating or hilarious (and, of course, it's even worse that many of these sites then try to charge people to take down their photos).
Unfortunately, because it's so thoroughly reviled, attempts to curtail revenge porn tend to be poorly thought out. One bad law can do an awful lot of collateral damage -- something those actively pushing legislative solutions tend to forget in their hurry to rid society of unpleasantness.
Mary Anne Franks, a law professor at the University of Miami, has been pushing to get revenge porn criminalized. To that end, she is helping draft a bill with an (unnamed) member of Congress. The problems with her proposed legislation are several. Houston defense attorney Mark Bennett has unpacked the First Amendment implications (mostly negative) of her proposed law in two excellent and thorough posts over at his blog, Defending People.
A overly-simplified reduction of Franks' arguments in favor of the proposed law boils down to this: because it's unpleasant and most people would find it offensive, it isn't protected by the First Amendment. Bennett disassembles each point she makes and they all seem to come back to this.
Franks: "The First Amendment does not serve as a blanket protection for malicious, harmful conduct simply because such conduct may have an expressive dimension. Stalking, harassment, voyeurism, and threats can all take the form of speech or expression, yet the criminalization of such conduct is common and carefully crafted criminal statutes prohibiting this conduct have not been held to violate First Amendment principles. The non-consensual disclosure of sexually intimate images is no different."
There is a world of difference between “The First Amendment does not serve as a blanket protection for malicious, harmful conduct” and “malicious, harmful conduct is unprotected.”As Bennett details, Franks has approached this largely in the "activist" role, rather than a scholarly role. In doing so, she's made arguments current case law just doesn't back up. That itself is problematic considering she's working with a Congress member to draft a law that will address an already-emotionally charged issue.
Franks makes a number of such assertions as “the non-consensual disclosure of sexually intimate images is no different,” but stamping her foot and insisting that it’s so doesn’t make it so. Even if a law professor is incapable, a competent lawyer can always find a difference between two things. One important difference between the disclosure of sexually intimate images on the one hand, and the conduct of harassment, threats, and stalking on the other, is that a statute forbidding the former is necessarily content-based, so it must meet strict scrutiny.
“It’s kinda like harassment” doesn’t overcome the obstacle of strict scrutiny, especially since the Supreme Court has never upheld a criminal harassment statute.
But it gets worse. Scott Greenfield points out a recent interview Franks did with US News and World Report, where she makes this troubling statement.
Websites that specialize in revenge pornography cannot currently be forced by state law to remove content because Section 230 of the federal Communications Decency Act grants Internet companies legal immunity if third-party content doesn't violate federal copyright or criminal law.Having earlier questioned how long it would take Section 230 to fall in the face of anti-revenge porn efforts, Greenfield now has his answer.
"A lot of companies are under the impression they can't be touched by state criminal laws," Franks said, because "Section 230 trumps any state criminal law."
The Communications Decency Act, however, doesn't trump federal criminal law, she said, pointing to child pornography.
"The impact [of a federal law] for victims would be immediate," Franks said. "If it became a federal criminal law that you can't engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations."
"Hopefully," she said, "we would develop a similar take-down notice regime that we see in a copyright context, which means that anytime a victim becomes aware that [their] picture is on one of these websites without their consent, [they] can notify the website, [they] can notify Google, [they] could notify all the people inadvertently helping the image get shown... that this is nonconsensual material and needs to be taken down."
Well, that didn’t take long at all. In their zeal to end revenge porn, which no one disputes is a blight on the internet, Franks and her ilk are more than happy to destroy free speech on the internet. After all, what’s free speech when compared to their feelings?The US News article also contains quotes from Matt Zimmerman, senior staff attorney at the EFF, who logically points out that targeting intermediaries by bypassing (or removing) Section 230 protection is a terrible idea and will inflict collateral damage all over the internet. As he points out, companies will simply remove user content as quickly as possible whenever requested rather than be held legally or criminally accountable for hosting it. Additionally, there's a good chance some platforms and hosting services will simply shut down altogether rather than have to play internet police 24/7.
Franks "rebutted" Zimmerman's assertion, but from an oblique angle.
I do want to point out that neither the EFF nor the ACLU has expressed opposition to any specific law that I have personally drafted. I have sent my draft statutes to members of both organizations and am awaiting their responses.Well, if the EFF and ACLU don't think it's a bad idea… Oh, wait. That's not what she actually said. Greenfield breaks it down.
Notice the attempt to weasel out of reality, “any specific law that I have personally drafted”? Franks neglects to mention that she sent an email to an EFF non-lawyer advocate, who was never an appropriate person to contact and who didn’t respond to her personal email, and has tried to parlay this by claiming these organizations don’t oppose her, in a deliberate effort to mislead.Franks is looking to do some serious damage to free speech with her proposed law. While it could be theorized that courts will buy her arguments about what the First Amendment does and doesn't protect (troubling in its own way), this proposed attack on Section 230 Safe Harbor is bad news no matter how you look at it. The fact that she brings up child pornography is another indication that advocating for this law has very little to do with ensuring standing protections remain as unscathed as possible.
Politicians and special interest groups have often used "for the children" as an excuse for all sorts of legislative havoc. After all, who's going to defend child pornography? It's a disingenuous rhetorical tactic that equates Pet Issue A with The Worst Thing on the Internet in order to paint opponents as child porn sympathizers. But as Greenfield says, what are rights compared to feelings? Revenge porn is bad, and those arguing against legislative measures like Franks' are frequently portrayed as misogynists trying to ensure their abuse of women continues uninterrupted. Here's Franks herself on the subject:
But then there’s a whole category of people who aren’t confused at all – let’s call this the “threatened sexist” category. To explain this, we have to back up a bit and take note of the fact that non-consensual pornography, like rape, domestic violence, and sexual harassment, is overwhelmingly (though of course not exclusively) targeted at women and girls. So you get some people who might cynically invoke the First Amendment or raise disingenuous questions about scope, but who are really just hostile to anything that makes it harder to treat women as second-class citizens, especially when it comes to sex.There's also some indication that Franks, like many others who aggressively advocate for laws that will fundamentally alter the way the internet runs, doesn't have a solid grasp on the very area she's attempting to regulate. She makes the following statement, which follows shortly after her above assertion that opponents will make "cynical arguments" about the First Amendment.
These are people who fully understand that a great number of our personal, social, and legal interactions are premised on the idea of contextual consent. They would never argue that a customer who gives his credit card to a waiter has given the waiter the right to use that credit card to buy himself a motorcycle. They would never argue that the fact that a person voluntarily gave personal information to a cellphone gives that provider the right to hand that information over to, say, the NSA.As commenter Ken Arromdee points out, this statement is beyond obtuse.
You do realize that this is known as the third party doctrine, and is the actual reason used to justify government spying, right?Greenfield asks when other law professors are going to step up and call Franks out for her bullshit. The answer, sadly, may be "never." Franks' own statements show she's more than willing to call any opponent a misogynist, something that can easily spell the end of an academic career. No one in this field is in a hurry to get smeared as a revenge/child porn proponent. Even more discouraging -- if this legislation ever hits the floor for a vote -- very few politicians will be willing to oppose this and end up labeled misogynist or simply "soft" on revenge porn, no matter how damaging the outcome will be for the First Amendment and the Section 230 Safe Harbors.
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The Sandy Hook massacre has been back in the news as of late for a multitude of reasons. The anniversary of the shooting is coming up soon. Someone decided to release a game associated with the tragedy to send a message and everyone lost their damn minds. And, finally, the government is releasing a full report of their findings of the shooting and of Adam Lanza, the disturbed perpetrator, which includes his possessions and specifically details his video game collection.
Now, if you'll recall, the NRA and several conservative and/or gun rights organizations found themselves the reactionary targets of people who don't like them in the wake of the shooting. Much of this was essentially undeserved fervor, which effectively drowned out any reasonable middle-road discussion we might have had about the issues of firearms availability and their effects on shootings such as this. The mass media supercharged the stupid on both sides, which produced equally stupid results from, you know, everyone. Included in that everyone was the National Rifle Association, which proudly defended our 2nd Amendment rights by suggesting maybe we should shit all over everyone's 1st Amendment rights. Their argument was essentially that guns don't kill people, all those violent video games played by the person folks mistakenly misidentified as the perpetrator shot those people. Yippee for American discourse.
Well we now have a list of Adam Lanza's video game collection, and it indeed includes games of violence, such as Splinter Cell, Mercenaries, Call of Duty, and others. Case closed, amirite? Mmmm, no. Here's some other games on the list: Spiderman, Paper Mario, Luigi's Mansion, and Pikmin. Oh, and the game he reportedly was totally obsessed with? Dance Dance Revolution.
So here's the deal: people that want to draw conclusions about Adam Lanza from his gaming habits don't get to cherry-pick their facts. If we're blaming the games that include violence, surely we must include the games that don't, particularly the game with which he was most obsessed. And I sincerely want to hear the proponents of restrictions on the 1st Amendment by way of video games to argue to the world that we must restrict access to DDR, because I know exactly with what kind of reaction such an argument would be met: derision. Which is exactly what it should be met with, because all this low-hanging fruit-picking over video games is stupid.
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And, really, the real issue here is the clear slippery slope. It's reasonable to argue that the US should be spying on terrorists who want to attack us. That's a mission that makes sense. But there's a pretty big gap between spying on terrorists who are trying to kill us, and snooping through the private activities of those with an audience who just don't like us. And, from there, of course, it's not a very far leap over to arguing that activists within the US who are critical of the government should be subject to the same treatment.
While Baker and others support using surveillance to tarnish the reputation of people the NSA considers "radicalizers," U.S. officials have in the past used similar tactics against civil rights leaders, labor movement activists and others.Baker -- the same guy who blamed civil libertarians for 9/11 and blamed privacy advocates for an over-aggressive TSA -- brushes off the idea that the NSA might ever abuse this stated program of spying on people's personal lives and habits to discredit them publicly.
Under J. Edgar Hoover, the FBI harassed activists and compiled secret files on political leaders, most notably Martin Luther King, Jr. The extent of the FBI's surveillance of political figures is still being revealed to this day, as the bureau releases the long dossiers it compiled on certain people in response to Freedom of Information Act requests following their deaths. The information collected by the FBI often centered on sex -- homosexuality was an ongoing obsession on Hoover's watch -- and information about extramarital affairs was reportedly used to blackmail politicians into fulfilling the bureau's needs.
[....] James Bamford, a journalist who has been covering the NSA since the early 1980s, said the use of surveillance to exploit embarrassing private behavior is precisely what led to past U.S. surveillance scandals. "The NSA's operation is eerily similar to the FBI's operations under J. Edgar Hoover in the 1960s where the bureau used wiretapping to discover vulnerabilities, such as sexual activity, to 'neutralize' their targets," he said. "Back then, the idea was developed by the longest serving FBI chief in U.S. history, today it was suggested by the longest serving NSA chief in U.S. history."
Baker said that until there is evidence the tactic is being abused, the NSA should be trusted to use its discretion. "The abuses that involved Martin Luther King occurred before Edward Snowden was born," he said. "I think we can describe them as historical rather than current scandals. Before I say, 'Yeah, we've gotta worry about that,' I'd like to see evidence of that happening, or is even contemplated today, and I don't see it."We're not exactly talking ancient history here. The abuses happened within Baker's own lifetime, even if they didn't happen within Snowden's. But the idea that within a single generation we've suddenly created more virtuous humans who won't abuse power is kind of laughable, and I'm curious as to what Baker's basis for believing that is. For someone who has spent so much of his career trying to help the hunt for bad guys, he sure has an optimistic view of the intentions of human beings. Oh, I forget, he's only talking about people on "our side" who I guess are naturally virtuous -- whereas folks on the other side are naturally morally destitute. Because that makes no sense at all, which seems to be the kind of arguments that Baker gravitates to.
Either way, it's exactly this kind of activity that has so many people concerned about the NSA. They're clearly not just spying on terrorist communications for the sake of preventing an attack. Now they're directly talking about using private information, like the fact that someone surfs porn or is "attracted to fame" to do character assassinations of people they dislike. The ability to abuse such a power is vast, and it's laughable to think that the NSA is so full of perfectly virtuous people that it would never make use of such powers.
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In one such case, of "would-be bomber" Mohamed Osman Mohamud, who was accused of wanting to bomb a Portland Christmas tree lighting ceremony, this news has put his sentencing on hold. The details of Mohamud's case suggest it was yet another case of the FBI stopping a plot of their own making, as the entire "plot" was created with undercover FBI agents. But there are also some questions about how the FBI first targeted Mohamud. Now, it appears that it may have been due to NSA activities. Mohamud had been found guilty earlier this year, and was scheduled to be sentenced in just a few weeks, but the judge -- realizing that the NSA revelations throw a big wrench into all of this -- has agreed to postpone indefinitely the sentencing. I imagine there will be a flurry of legal documents as his lawyers use this to try to dump the original trial results.
Either way, expect a lot more like this to happen as the DOJ finally starts to come clean.
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