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Public Outcry In Taiwan Kills Their Version Of SOPA

Mike Masnick — Wed, 19 Jun 2013 06:01:00 GMT

At the end of May, we wrote about the Taiwanese government's bizarre proposal to create a copyright bill that was like SOPA, but even worse. Apparently, the folks at the Taiwan Intellectual Property Office (IPO) had slept through the whole SOPA thing. Thankfully, the Taiwanese quickly did their own version of the SOPA blackout, with Wikipedia Taiwan and Mozilla Taiwan set to participate. However, seeing the writing on the wall (and, perhaps, someone showed the IPO folks what happened in the US), and the proposal was abandoned before the protest was even needed.

Of course, it's not completely over:

In the face of these criticisms and the planned blackout, the Taiwan Intellectual Property Office abandoned this severe copyright law. In its announcement, the office stated that this plan would be “adjusted.” It’s clear that the government intends to introduce another copyright enforcement initiative in the future. Still, it’s enormously encouraging to see how users in Taiwan have organized to defend their rights and successfully stopped this draconian blacklist law.

The unfortunate reality is that many government authorities around the world still buy into the belief that the health of the Internet is acceptable collateral damage in this manufactured war on copyright infringement. Lawmakers need to understand that creativity and innovation can only thrive when our platforms remain open, where users are free to share and experiment with content. While it’s clear that the Taiwan Intellectual Property Office did not learn from the mistakes of SOPA and PIPA in the U.S., let’s hope others see the defeat of this latest copyright blacklist law and recognize that users will not put up with efforts to censor the Internet.

Still, it is good to see that whenever something SOPA-like pops up, the public quickly jumps up to protest it.

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WIPO: Informal Economy Innovates In The Absence Of Intellectual Monopolies

Glyn Moody — Wed, 19 Jun 2013 03:02:00 GMT

One of the problems with the debates around copyright and patents is that they too often assume that intellectual monopolies are necessary in order to promote innovation or even basic economic activity. But that overlooks all kinds of domains where that's not true. In the field of technology, free software and the other open movements based on sharing are familiar examples of this kind of thing. Less well known so are the so-called "informal economies" found in many parts of the world.

To its credit, WIPO has commissioned a report on this whole area, entitled "Conceptual study on innovation, intellectual property and the Informal economy" (pdf). Here's how it defines the informal economy (IE):

The most appropriate conceptualization of the IE is as a continuum from formal to informal, where different activities and actors occupy different points along this continuum. The transition from informal to formal status is gradual; single firms, households, and workers may carry out some activities informally and others formally at the same time.

Despite that vagueness, the informal economy is important for many countries: Estimates suggest that over the past two decades, informal employment or employment in the IE made up more than half of non-agricultural employment in most middle- and low-income countries. Sub-Saharan Africa is the region with the largest estimates for the contribution of the informal sector to gross domestic product (GDP): the IE makes for nearly two-thirds of GDP including agriculture and half of non-agricultural gross value-added (GVA). It is followed by India, with around 50% of total GDP. Then come countries from the Middle East, North Africa and Latin America.
For Techdirt readers, the most interesting part of the report will probably the chapter that concerns the use of what it calls "Mechanisms to appropriate returns from innovation in the informal economy", including "formal appropriation" through intellectual monopolies -- or, rather, their absence: On the one hand, it can be argued that the absence of formal appropriation and the work in clusters make up the strengths of the IE's innovation system. In this view, the innovation system in the IE largely rests on "collective learning experiences" based on low entry barriers and free flows of knowledge. The dynamics among similar enterprises in collective geospatial clusters determine rates of innovation, economic successes and the value of the cluster. Individual firms or economic units are not the key determinants of innovation and efficiency.

Appropriation efforts must also be considered in light of the social systems -- specifically family structures, community networks and commercial clusters -- within which the IE operates. Knowledge flows are characterized by trust, reputation, reliability, social and cultural signaling, and the willingness to pool resources and collaborate. This facilitates access to information, and critically reduces transaction costs.

Clearly, in this context, the notion of formal appropriation of ideas can be considered alien and inadequate in this IE context. As one study suggests, actors believe that formal IP based on exclusions and proprietary knowledge is not compatible with the knowledge diffusion and learning processes of the IE which are based on communities, clusters and the exchange of information.
Naturally, as a report commissioned by WIPO, the opposing viewpoint is also considered: On the other hand, and in contradiction to the above view, it has been argued that the presence of perpetual copying and absence of appropriation mechanisms is seen as a barrier to scaling up innovative activity in the IE. Entrepreneurs are unable to develop their businesses beyond a certain stage as they lack exclusive rights to or control over their innovations. Therefore, they have fewer incentives to invest in machines or human capital (e.g., training new apprentices), and are unable to reach certain economies of scale.

Firms may also forgo the possibility to specialize in different styles and techniques, as copying is the norm. The absence of branding or certificates/labels, leading to anonymity of the sector's products in the eyes of consumers, is said to prevent producers of good quality products from being rewarded.

Due to this systematic effect, only small incremental improvements in processes and some incremental improvements or adaptation of products are likely to be achieved. Economic growth and productivity gains in the informal sector are hence below par. The IE might also have a negative influence on the formal sector. The reasoning behind this is that informal firms that fail to comply with various economic regulations or to meet their tax obligations are able to expand and take market share away from formal firms, even when they are less efficient overall. At worst, economists are concerned that informal firms may also undermine the incentives of formal sector firms to innovate, adopt new technologies, develop their IPRs or develop brands.
There seem to be a lot of assumptions in there -- for example, that those operating in the informal economy don't pay their taxes fully. That's conflating the black economy, where taxes are certainly dodged, with the informal economy, which is about how work is organized, not its compliance with the law. Similarly, the assertion that companies will give up innovating just because others don't try to patent everything they produce is contradicted by the experience of open source, which eschews patents, but has driven an accelerated pace of innovation in the world of proprietary software.

Despite these biases, the report is a valuable contribution to an area that has been largely overlooked until now. The more that WIPO and its world become cognizant of the very different nature of the informal economy, the better it will be for them -- and for future debates about patents and copyright.

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DailyDirt: Augmented Vision

Joyce Hung — Wed, 19 Jun 2013 00:00:00 GMT

Augmented reality glasses are all the rage these days, because it's just not good enough to see the world through only our human eyes. We want enhanced vision, web connectivity, and complete access to our mobile lives with a blink of an eye. It's therefore no surprise that there are plenty of efforts out there to develop all kinds of AR glasses. Here are just a few examples.

Have you been wondering what's inside Google Glass? A teardown of Google's AR glasses revealed: a proximity sensor, an ambient light sensor, a touchpad module, a TI OMAP4430 processor chip, 16GB of SanDisk flash, an Elpida mobile DRAM chip, a 2.1-Wh single-cell lithium polymer battery, a bone conduction speaker, a display with a native resolution of 640x360, a camera, an inertial sensor, a prism and other optical components. [url]
Japanese researchers are developing AR glasses that can restore depth perception to people who are "binocularly challenged." They modified a pair of Vuzix Wrap 920AR 3-D glasses so that it would generate the impression of depth in the wearer's "good" eye via special software. [url]
Korean researchers have created an electronic contact lens by mounting a light-emitting diode onto an off-the-shelf soft contact lens. Their ultimate goal is to develop contact lenses that have all the functions of a wearable computer like Google Glass, but still remain transparent and flexible. [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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States Attorneys General Want Special Exception To Blame Sites For Actions Of Users

Mike Masnick — Tue, 18 Jun 2013 22:50:31 GMT

One of the most important laws that has enabled innovation on the internet to thrive is Section 230 of the CDA. We've written about it many times. What it says is fairly basic: a website cannot be held liable for actions by its users. There are a few exceptions and caveats, but that's the basic premise. And it makes perfect common sense -- so much so that it's almost amazing that you need a law to say it. But, we do, because when grandstanding and moral panics come around, politicians and people with pitchforks love to blame third parties and intermediaries as if they're the problem. And, having intermediaries be liable for how users are using their services creates all sorts of problems. It makes it that much more difficult for companies to innovate, because they're taking on tremendous potential liability if anyone misuses their service. So, they then either don't develop an open service, or they have to invest heavily in services to filter/monitor/block any potential misdeeds (which also will lead to blocking legitimate uses as well).

Of course, the grandstanding politicians who jump on moral panics absolutely hate Section 230. They always have. As we've discussed in detail over the years, the type of politician that focuses on grandstanding on moral panics the most is always a state attorney general. They make grand public pronouncements against companies they don't like, often with absolutely no legal basis, and then browbeat them into a "settlement" just so the companies can stop having to deal with the AGs lying about them in public all the time. Chris Tolles, the CEO of Topix, gave a great detailed explanation of how various AGs ganged up on him, basically issuing a press release accusing him of doing horrible things, totally misrepresenting what the company did, but without naming a single law they violated (because they hadn't). In response, Tolles did what most people would think you should do in that case: explain to the AGs what Topix actually did, and why it was perfectly reasonable. In response, the AGs (more of them this time) issued another press release, taking direct statements that Tolles had told them further out of context, and making the company sound even worse. Eventually he "settled" because fighting them was costly.

We've seen this over and over and over again. AGs have attacked Twitter and Craigslist and Facebook and Comcast and Google and over and over again.

Of course, the lack of a legal basis often stymies these attempts, and a big thing that gets in the way: Section 230. So it should come as little surprise, as noted by Eric Goldman today, that the states Attorneys General are planning to ask Congress for an exemption to Section 230 when (you guessed it) states AGs bring a case. He heard it today while on a panel at the annual meeting of the National Association of Attorneys General, where he was on a panel about Section 230. During the discussion, Goldman says that an unnamed Attorney General (he didn't catch which one) made a comment about the plan.

Section 230 has been under attack for some time, but going to Congress to try to make that kind of exception would be a huge disaster. It would allow these AGs to continue with bogus grandstanding campaigns, but actually with the ability to create massive problems for companies actually trying to offer usable, open platforms for users. Nearly every company would need to proactively filter any kind of user generated content, and would be at risk of tremendous legal liability if "bad stuff" got through. This would be a huge attack on internet innovation, all so some ambitious politicians can try to make more headlines by attacking tech companies. The state Attorney General position is considered the classic "stepping stone" position, which many politicians use to run for Governor or Senator in their state, and one way to help with the campaign is to get lots of headlines around "protecting the children" and whatnot. So, basically, these politicians would be breaking one of the key elements that has allowed internet innovation to thrive, to help them get a few more headlines in their quest for higher office.

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Google, Without Admitting It Gets FISA Orders, Files Lawsuit To Challenge FISA Gag Orders

Mike Masnick — Tue, 18 Jun 2013 22:02:31 GMT

Google appears to be stepping it up a notch in trying to fight back against the claims that it is somehow opening up its system to the NSA or other law enforcement folks. As you now know well, one of the leaks from Ed Snowden a few weeks ago was about a system called PRISM, which is associated with how tech companies provide information to the federal government in response to FISA court orders. The initial reports, claiming that the NSA had full direct access to servers and could see what people were doing in real time, appear to have been extremely overblown, as it now seems clear that this was much more narrow. But there's still a big question of how narrow. Google sent an open letter to the DOJ, asking for permission to reveal basic numbers on how many FISA requests they receive and how many people have had information passed along to the government under the program. The government then gave "permission" in a way that actually further obfuscated things, only allowing the release of numbers when combined with all sorts of other government requests.

Now, Google has filed a lawsuit against the government, arguing that gag orders on FISA requests violate the First Amendment. The filing itself is an interesting read, in part for its first footnote:

Nothing in this Motion is intended to confirm or deny that Google has received any order or orders issued by this Court.

Of course, that might lead some to suggest that Google can't actually have standing, but there's an interesting legal argument here. Basically, Google is arguing that the perception that it's opened up its network to the NSA, as suggested in various reports, and which it cannot refute fully without revealing some details of FISA orders it has received, has caused it harm.

Google's reputation and business has been harmed by the false or misleading reports in the media, and Google's users are concerned by the allegations. Google must respond to such claims with more than generalities. Moreover, these are matters of significant weight and importance, and transparency is critical to advancing public debate in a thoughtful and democratic manner.

Given that, Google is seeking a declaratory judgment from the court that it has a First Amendment right to publish the total number of FISA requests it receives and the total number of users associated with those requests, though obviously not anything more. I'm sure the government will come back with all sorts of excuses as to why this is horrible, but it certainly presents an interesting legal challenge to the FISA court's gag orders.

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NYPD Commissioner Blasts NSA Secret Monitoring For Being Secret

Timothy Geigner — Tue, 18 Jun 2013 21:29:00 GMT

In the wake of the NSA scandal leaks, there have been several examples of government officials and law enforcement coming out to state both that the program is necessary and that its existence ought never have been revealed. Those who espouse the latter often indicate that, as a result, Edward Snowden is some measure of a traitor, and in some cases so are members of the press that reported on the revelations. Not all former and current government folks are in that camp, of course, but those that are not typically argue the polar opposite: that the NSA program is either unconstitutional or unnecessary. Those are sentiments I happen to agree with, but there is a refreshingly original third course of thought.

That comes from NYPD police commissioner Ray Kelly, who has managed to blast the secret NSA program...but only for being secret.

“I don’t think it ever should have been made secret,” Kelly said yesterday, breaking ranks with other US law-enforcement officials. “I think the American public can accept the fact if you tell them that every time you pick up the phone, it’s going to be recorded and it goes to the government. I think the public can understand that. I see no reason why that program was placed in the secret category. Secondly, I think if you listen to Snowden, he indicates that there’s some sort of malfeasance, people . . . sitting around and watching the data. So I think the question is: What sort of oversight is there inside the [National Security Agency] to prevent that abuse, if it’s taking place?”

Now, the easy reaction to this is to write off Kelly's opinion that the majority of Americans would be okay with data surveillance as long as we were well informed about it. After all, stop and frisk is fairly above board, and people still hate it. But the point is an important one with real implications on how democracy is supposed to work versus how it actually does work in America today.

By that I mean whether secretive programs run by the government that impact the majority or all of Americans can be undertaken without the consent of the governed. Step back a moment from Kelly's assertion that the public would be on board with the program if we had known about it all along. Isn't the better point to be taken from his statement that we should at least have been given the opportunity to find out? As a member of a representative democracy, if my fellow Americans were indeed informed and signed off on this program, I have to accept it, whatever my dissenting views. If the government was above board on the checks and balances in the program, they might have a good PR case. But that process was never given a chance to incubate. Instead, broadly worded, vague legislation birthed secretive policies, subject to secretive committees and secretive courts, and it was only by the providence of a humanitarian leaker that the public had any inkling of what was going on. That isn't how the American concept is supposed to function.

And now we'll never know whether Kelly is right or not, because the experiment that could have occurred has been foiled. Any complacency by the public now can be written off as apathy born of anger and mistrust. Any dissent is tainted by the same as a result of the secrecy of the program. The method by which the NSA spy program was both initiated, continued, and finally revealed is almost a perfect counter example to the democratic process. I fear that our founding fathers, those men of the enlightenment so often referenced by the career politicians of the day, would be calling for revolution once more.

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It's Come To This: Commentators Arguing That The Press Commits A Crime In Exposing NSA Surveillance

Mike Masnick — Tue, 18 Jun 2013 20:43:00 GMT

Marc Thiessen, a former speechwriter for President Bush, apparently really hates it when government overreach is exposed. We last mentioned him when he attacked Wikileaks in the aftermath of its publishing of various State Department cables. Now, with the new NSA surveillance scandal, he's back (of course) and taking the lovely position that it's perfectly fine to charge journalists who publish information about NSA surveillance with crimes.

Greenwald’s crime is violating 18 USC § 798, which makes it a criminal act to publish classified information revealing government cryptography or communications intelligence.

The law is absolutely clear. It states: “Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes , or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information— (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or (3) concerning the communication intelligence activities of the United States or any foreign government; or (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes— Shall be fined under this title or imprisoned not more than ten years, or both.”

Of course, there's also that fancy First Amendment, which Thiessen would prefer to ignore:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

It would appear that 18 USC 798 is exactly what is forbidden by the First Amendment. It is a law abridging the freedom of the press and freedom of speech. Defenders of Thiessen and the NSA will point out that there are lots of times the courts have said this is okay, but I'm not sure what kind of defense that is, other than nitpicking why the First Amendment is something to ignore. Personally, I think that the First Amendment is fairly important, and worry about any laws that appear to push back on the basic concept of it.

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US Chamber Of Commerce: Bollywood Is So Successful Without Strong Copyrights That It Will Fail Unless India Strengthens Its Copyrights

Mike Masnick — Tue, 18 Jun 2013 20:00:00 GMT

The US Chamber of Commerce, the giant lobbying organization who led the fight for SOPA/PIPA, is apparently so invested in "must have stronger copyright laws" that it doesn't even bother making sense any more. It's released a bizarre statement claiming that India needs stronger copyright laws, because Bollywood is so successful. Right upfront, it notes how successful things have been:

Boasting the largest film industry in the world, the creative sector lies at the heart of the Indian culture and economy. As one of India’s largest employment sectors, an endless array of local professionals from technical, theatrical, and creative backgrounds are helping churn out 1,000 films in more than 20 languages annually.

You'd think those are signs that copyright law was working (largest film industry in the world, largest employment sectors, over 1,000 films produced annually -- about double Hollywood) and that this would imply that whatever level of copyright there is in India -- which is supposed to be an incentive to creativity -- was doing a decent job. But, no, apparently it's all broken.

The government, however, must improve national intellectual property (IP) laws and enforcement if it is going to seize on this opportunity and gain recognition in the global market and further empower local creators.

Hmm. Wait, you just said that it's the world's largest film industry and an unqualified success. So, why does it need to improve those laws and enforcement?

Specifically, Indian copyright law is unclear with the 2012 Copyright Act amendments further complicating and contradicting previous rule of law. Furthermore, the 2012 Act provides for broad exceptions that are incompatible with international norms. Also measuring relatively loware enforcement efforts, which are weak in application and don’t provide widely available civil and procedural remedies for copyright infringement.

And, yet, this laxity incentivized the creation of nearly double the films that Hollywood produces. Perhaps -- and I'm just suggesting things here -- the "international norms" and the higher levels of enforcement are holding back the industries elsewhere. If anything, this report seems to suggest that other countries should move towards broad exceptions, since it appears to have been quite successful in India.

Furthermore, much of the paper seems to suggest that India needs to fix its copyright laws to embrace the international opportunity for its films -- but that (again) makes no sense. India's IP laws don't apply outside of India, so they have no impact on the international opportunities, which are governed by other IP laws. And, again, if the industry is doing great in India (with little enforcement and greater exceptions), doesn't this indicate that India should push for the same elsewhere to better embrace that international opportunity?

It's quite a world in which the US Chamber of Commerce seems to be arguing that an example of a success story should lead to that successful model emulating less successful markets. I don't know how much money the MPAA pays the US Chamber of Commerce for these kinds of pieces, but it's not getting its money's worth.

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Senator Lindsey Graham Defends NSA Surveillance By Arguing About Something Entirely Different

Mike Masnick — Tue, 18 Jun 2013 18:58:00 GMT

We recently mentioned that Senator Lindsey Graham said he was happy that the NSA was collecting the data on his calls, because he doesn't speak to terrorists. Of course, that's an incredibly ignorant statement in many, many ways. However, Senator Graham is continuing to make very silly statements about the NSA surveillance program. During an appearance on Meet the Press, Graham defended the program because, he explained, we should be tracking terrorists:

"I believe we should be listening to terrorists, known terrorist emails, following their emails and following their phone calls. And if they're emailing somebody and the United States or calling a number in the United States, I would like to get a judge's position to monitor that phone call," Graham said on "Meet the Press" on NBC. "If we don't do that, another attack on our homeland is very likely."

That's nice and all... but the things he discussed -- listening to terrorists, and getting info on their emails -- have nothing to do with the new programs that have been revealed. That kind of stuff was possible well before all of these new things came along. The NSA has long been able to do surveillance on such things. And, law enforcement has been able to go to a judge and get a wiretap order on phone calls. But that's not what has everyone concerned: it's the fact that this program collects data on everyone. It's not just collecting data on terrorists, and much of it doesn't require having to go to a judge to monitor specific information. Rather, broad collections of data are being pulled, so that the NSA can later go through them.

It's shameful that Senator Graham would so misrepresent what this debate is about. Either he doesn't understand it (which is horrifying) or he's deliberately misleading the public about it (which is worse).

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NSA Claims Surveillance Programs Aided The Stopping Of 50 Attacks; Details Lacking

Mike Masnick — Tue, 18 Jun 2013 18:15:44 GMT

In a hearing before the House Intelligence Committee today, NSA boss Keith Alexander once again claimed that the big NSA surveillance programs had stopped terrorist attacks. Rather than the "dozens" he stated last week, today it became "more than 50 potential terrorist events." Of course, as is typical, both the questions (asked by NSA supporters) and the answers were pretty carefully choreographed. Digging in, you find out that Alexander was specifically referring to PRISM, and not the (much more worrisome) dragnet of all phone records. On that program, there doesn't appear to be any actual data on what it was used for. On top of that, when asked about whether or not these programs were essential or necessary to stopping those attacks, as compared to other programs, no one would say that they were necessary or essential.

The other careful choice of words was people would ask about whether or not phone calls had been recorded under these particular programs, but not other programs. When Deputy Attorney General James Cole was specifically asked about other programs, he responded that that was classified information. Make of that what you will. Cole also claimed that the program to collect all phone numbers "is not a program that's off the books, that's been hidden away." Of course, if that were true, why are so many people -- including politicians who supposedly have oversight over the program -- so surprised about it? How come there has been no reporting on it? How come, when asked about it, Director of National Intelligence, James Clapper said "no" to whether or not information was collected on millions of Americans? It certainly sounds "hidden away."

Meanwhile, the really shameful performance came from Rep. Mike Rogers, who led the hearing, who again claimed that Ed Snowden both was lying and that his revelations weakened American security by revealing secrets to enemies. And then he pulled out this whopper:

"It is at times like these when our enemies within become almost as damaging as the enemies on the outside. It is critically important to protect sources and methods so we aren't giving the enemy our playbook."

So, again, no one understands the programs revealed, because Snowden's leaked info is wrong... and now our enemies know what we're doing... and Snowden is "almost as damaging" as those who wish to attack us. None of that makes any sense at all.

In the end, though, it's more of the same. Even if we could say that these programs were useful in stopping a potential attack, what we don't know is if the program was necessary to do so. We don't know what sort of collateral damage was caused. We don't know if traditional methods of investigation would have worked just as well, with no violations of privacy for Americans. We're just being told on faith to "trust the NSA."

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The NSA's Lockbox Has No Lock

Mike Masnick — Tue, 18 Jun 2013 17:31:14 GMT

One of the key points that officials have been making in defense of the NSA surveillance is this idea that even if they're collecting all this data on your communications, they can't actually do anything with it, because they keep it safely locked up in a lockbox, and only check it if they have some bit of data they want to find out about later. That was the crux of the claims made by former NSA/CIA boss Michael Hayden who seemed to think that "data mining" and "asking the database questions" were two different things. However, as William Saletan is pointing out at Slate, the lockbox is a lie. There is no lockbox. He quotes officials including NSA boss Keith Alexander and Congress's number one NSA apologist, Rep. Mike Rogers, both suggesting strongly that even if the NSA is collecting all your data, it's safe because it can't be explored without a "very specific court-ordered approval process."

Except... what they conveniently left out, is that the court doesn't review any of this. It appears that it probably set some very basic rules up front when it gave the okay on collecting the data, which no one else gets to know about, and no one carefully checks up on the NSA later to see if they really follow any of those rules. What the claims most certainly do not mean, is that the NSA needs to get a court order to search the database. Senator Dianne Feinstein admitted as much directly:

Q: Is a court order necessary to query the metadata database?
Feinstein: Is a court order necessary to query—
Q: The metadata database under 215. An individual court order for each query.
Feinstein: A court order—well, I don't know what you mean by a query. A court order—
Q: To search the database.
Feinstein: To search the database, you have to have reasonable, articulable cause—
Q: Certified by a judge?
Feinstein: —to believe that that individual is connected to a terrorist group. You cannot—
Q: But does that have to be determined by a judge?
Feinstein: Could I answer? You may not like it, but I'll answer. Then you can query the numbers. The only numbers you have—there's no content. You have the name and the number called, whether it's one number or two numbers. That's all you have. Then you can get the numbers. If you want to collect content, then you get a court order.
Q: So you don't need a court order for the query itself.
Feinstein: That's my understanding.

And yet, as the article notes, most of the defenders of the program strongly imply otherwise, highlighting the "court-approved" process that people need to go through to query the database. But if there's no real oversight, and no court reviewing each query, then, as Saletan points out, there is no lockbox.

There's no lock on the lockbox.

That hasn't stopped current and former government officials from repeating the lockbox line. Yesterday Rogers used it again on Face the Nation. Dick Cheney, appearing on Fox News Sunday, backed him up. On Meet the Press, Michael Hayden, the guy who ran the NSA when it began collecting phone records, assured Rep. Bobby Scott, (D-Va.,) "The only way you can access the metadata is through a terrorist predicate." When Scott asked, "Where is that written?" Hayden replied: "It's in the court order." Really? Where's the court order? When is it applied, and how?

If the court isn't screening data requests, that leaves two possibilities. One is that nobody's screening them. The other is that some other, unknown entity is doing it in a way that nobody has explained. Either way, the answers we're getting are unacceptable. They betray privacy, public trust, and national security.

If there's no public standard, and no official oversight or review process, then the probability that the database is being abused approaches one very, very quickly.

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Knowing The Government Is Spying On You Changes How You Act

Mike Masnick — Tue, 18 Jun 2013 16:44:46 GMT

We've already had a few posts discussing why the whole "if you've done nothing wrong, you've got nothing to hide" argument is bogus, but this weekend's edition of the radio show This American Life had a fantastic short section in which the host, Ira Glass, spoke to lawyers for detainees at Guantanamo Bay, who are all pretty certain that every one of their phone calls is being recorded and listened to. What's amazing is the emotional response you hear from most of these lawyers, who recognize that they can no longer comfortably speak freely to anyone on the phone ever again. The stories of them not being able to be emotional with their children when speaking to them on the phone, or in which their friends accuse them of being especially curt and officious whenever they call are somewhat heartbreaking.

These are the things that many people simply don't recognize about the psychological impact of a surveillance state. When you have no real downtime -- no time when you can be free from prying eyes, it messes with your brain in a really profound way. This short segment (just 8 minutes long) really highlights how much a little thing like the inability to ever speak to someone privately changes your entire way of speaking and communicating. As we seem to be drifting rapidly towards such a surveillance state, these are the issues that we should be thinking about and understanding. There may be certain benefits to being able to do widespread surveillance, but we should not and cannot ignore the costs.

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MPAA's Chris Dodd Will Be The Chair Of 'Free Speech Week'

Mike Masnick — Tue, 18 Jun 2013 15:44:46 GMT

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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Steve Wozniak Speaks Out Against NSA Spying: This Is Not My America

Mike Masnick — Tue, 18 Jun 2013 14:46:46 GMT

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: Used Games Must Be Killed So Unsustainable Development Can Live

Tim Cushing — Tue, 18 Jun 2013 12:41:46 GMT

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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Discovering Names Of Secret NSA Surveillance Programs Via LinkedIn

Mike Masnick — Tue, 18 Jun 2013 10:40:46 GMT

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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Is Encryption Effective Against Snooping? German Government Says No, Snowden Says Yes

Glyn Moody — Tue, 18 Jun 2013 08:38:46 GMT

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's Prime Minister Mocks TPP Protestors On Facebook

Mike Masnick — Tue, 18 Jun 2013 05:13:00 GMT

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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British Intelligence Spied On G20 Officials' Phone Calls And Emails During 2009 Summit

Mike Masnick — Tue, 18 Jun 2013 02:07:00 GMT

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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DailyDirt: Inspired By Nature

Michael Ho — Tue, 18 Jun 2013 00:00:00 GMT

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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Philippine Record Labels Get Government To Play Whac-A-Mole With Kickass Torrents

Timothy Geigner — Mon, 17 Jun 2013 23:32:48 GMT

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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Copyright Troll Lawsuit Ends Badly Because Very Dumb Defendant Lied To Court, Destroyed Evidence

Mike Masnick — Mon, 17 Jun 2013 22:32:08 GMT

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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NSA Boss Asks Congress For Blanket Immunity For Companies That Help NSA Spy On Everyone

Mike Masnick — Mon, 17 Jun 2013 21:40:00 GMT

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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Al Gore Says NSA Surveillance Is Unconstitutional And 'Not The American Way'

Mike Masnick — Mon, 17 Jun 2013 21:03:47 GMT

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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CISPA's Sponsors Can't Keep Their Story Straight: If Snowden's Leaks Are False, How Do They Harm America?

Mike Masnick — Mon, 17 Jun 2013 20:13:00 GMT

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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