Facebook, China, Fake News And The Slippery Slope Of Censorship

from the be-careful-what-you-wish-for dept

Well, I guess it's time to complete the circle. Last week, we were warning that the rush to demonize Facebook for allowing "fake news" to be distributed and shared via its platform would lead to calls to suppress and censor certain view points. And then, this week came the news that China is strategically and opportunistically using the hubbub over "fake news" to push for greater censorship of the internet -- claiming it's necessary to stop fake news and keep people "better" informed (rather than the opposite).

And to top all of that off, comes a story from the NY Times about how Facebook has been working on a tool to allow the Chinese government to censor stories on Facebook as a condition of entering the market. It's no secret that Facebook has been trying for a really long time to figure out a way to get into China. There are over a billion potential users there that Facebook really wants on its platform. And that's not a bad thing. But, of course, China has a heavily censored internet. And while Facebook has been mostly blocked in China, there have already been reports from last year of stories being suppressed to appease the Chinese government.

And now comes "the tool."

The social network has quietly developed software to suppress posts from appearing in people’s news feeds in specific geographic areas, according to three current and former Facebook employees, who asked for anonymity because the tool is confidential. The feature was created to help Facebook get into China, a market where the social network has been blocked, these people said. Mr. Zuckerberg has supported and defended the effort, the people added.

Facebook has restricted content in other countries before, such as Pakistan, Russia and Turkey, in keeping with the typical practice of American internet companies that generally comply with government requests to block certain content after it is posted. Facebook blocked roughly 55,000 pieces of content in about 20 countries between July 2015 and December 2015, for example. But the new feature takes that a step further by preventing content from appearing in feeds in China in the first place.

Facebook does not intend to suppress the posts itself. Instead, it would offer the software to enable a third party — in this case, most likely a partner Chinese company — to monitor popular stories and topics that bubble up as users share them across the social network, the people said. Facebook’s partner would then have full control to decide whether those posts should show up in users’ feeds.

To be clear, the story notes that while this software has been developed, it's not yet in use, and may never be in use. It's there as a sort of "break glass, in case it's needed" offering. And, not surprisingly, it's also quite controversial within the company:

Over the summer, several Facebook employees who were working on the suppression tool left the company, the current and former employees said. Internally, so many employees asked about the project and its ambitions on an internal forum that, in July, it became a topic at one of Facebook’s weekly Friday afternoon question-and-answer sessions.

Mr. Zuckerberg was at the event and answered a question from the audience about the tool. He told the gathering that Facebook’s China plans were nascent. But he also struck a pragmatic tone about the future, according to employees who attended the session.

“It’s better for Facebook to be a part of enabling conversation, even if it’s not yet the full conversation,” Mr. Zuckerberg said, according to employees.

In many ways, this is similar to the struggle that Google faced with China as well, concerning whether or not to locate operations there, and how to deal with demands for both censorship and surveillance from the Chinese government. And, in both cases, there is a reasonable argument for providing some tools to connect the Chinese to the rest of the world. But there's also a quite reasonable fear of what a slippery slope this is and where it's likely to end up.

But the timing of this story coming out seems particularly ridiculous. Just as Facebook has quite reasonably pushed back on the calls from people in the US to censor the newsfeed over "fake news," for it to come out that it has a working tool to censor "real news" seems... kind of ridiculous. And, I've seen some people now pointing to this NY Times article as evidence that Facebook could block fake news if it wanted to. But that's silly and misguided. It's also implicitly arguing that Chinese-style censorship is the proper approach for the US. That's not a good idea.

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Alex Halderman Clarifies: Not Sure If Election Was Hacked, But, Uh, Shouldn't Someone Be Checking To Make Sure?

from the that's-a-good-point dept

So lots of people have been discussing the story claiming that some e-voting experts believe the Clinton campaign should be asking for a recount in certain battleground states, where it's possible there were some e-voting irregularities. As we noted in our post, the story would barely be worth mentioning if one of the people involved wasn't Alex Halderman, a computer science professor we've been talking about for nearly a decade and a half, going back to when he was a student. Halderman is basically the expert on e-voting security -- so when he says something, it's worth paying attention.

Halderman has now posted something of a follow-up to the NY Magazine article clarifying his views and what he's suggesting. He's not saying there's evidence of a hack, but basically saying that no one knows if there was a hack or not, and because of that, there should be a recount as a way to audit the results to see if there were any irregularities.

After the election, human beings can examine the paper to make sure the results from the voting machines accurately determined who won. Just as you want the brakes in your car to keep working even if the car’s computer goes haywire, accurate vote counts must remain available even if the machines are malfunctioning or attacked. In both cases, common sense tells us we need some kind of physical backup system. I and other election security experts have been advocating for paper ballots for years, and today, about 70% of American voters live in jurisdictions that keep a paper record of every vote.

There’s just one problem, and it might come as a surprise even to many security experts: no state is planning to actually check the paper in a way that would reliably detect that the computer-based outcome was wrong. About half the states have no laws that require a manual examination of paper ballots, and most other states perform only superficial spot checks. If nobody looks at the paper, it might as well not be there. A clever attacker would exploit this.

There’s still one way that some of this year’s paper ballots could be examined. In many states, candidates can petition for a recount.

So, in effect, Halderman isn't saying that he's got evidence of e-voting fraud, but is simply arguing that if no one checks, no one will ever know. So we should check in order to be sure that there wasn't hacking. That's... pretty sensible.

Examining the physical evidence in these states — even if it finds nothing amiss — will help allay doubt and give voters justified confidence that the results are accurate. It will also set a precedent for routinely examining paper ballots, which will provide an important deterrent against cyberattacks on future elections. Recounting the ballots now can only lead to strengthened electoral integrity, but the window for candidates to act is closing fast.

Basically, the only way we can actually get an effective audit to see if there were any voting irregularities is to ask for a recount. The problem, of course, is a political one. If the Clinton campaign does call for a recount, it will immediately be seen as a political play, and lead to a ton of negative publicity. My guess is that the campaign won't want to go there. If we lived in a time where people were intellectually honest, the campaign could present it exactly the way Halderman has framed it -- not as a claim that they believe fraud happened, but rather as a way to ensure that the e-voting machines were accurate and not manipulated -- but does anyone think that the press (either those that supported or those that opposed Clinton) would treat it that way? It would become a complete mess in about two-and-a-half seconds.

And, that's unfortunate. Because as Halderman points out (and, like us, has been pointing out for over a decade), it absolutely is possible to hack most e-voting machines. Especially if the attacker is determined enough to do so:

Here’s one possible scenario. First, the attackers would probe election offices well in advance in order to find ways to break into their computers. Closer to the election, when it was clear from polling data which states would have close electoral margins, the attackers might spread malware into voting machines in some of these states, rigging the machines to shift a few percent of the vote to favor their desired candidate. This malware would likely be designed to remain inactive during pre-election tests, do its dirty business during the election, then erase itself when the polls close. A skilled attacker’s work might leave no visible signs — though the country might be surprised when results in several close states were off from pre-election polls.

Could anyone be brazen enough to try such an attack? A few years ago, I might have said that sounds like science fiction, but 2016 has seen unprecedented cyberattacks aimed at interfering with the election. This summer, attackers broke into the email system of the Democratic National Committee and, separately, into the email account of John Podesta, Hillary Clinton’s campaign chairman, and leaked private messages. Attackers infiltrated the voter registration systems of two states, Illinois and Arizona, and stole voter data. And there’s evidence that hackers attempted to breach election offices in several other states.

In all these cases, Federal agencies publicly asserted that senior officials in the Russian government commissioned these attacks. Russia has sophisticated cyber-offensive capabilities, and has shown a willingness to use them to hack elections. In 2014, during the presidential election in Ukraine, attackers linked to Russia sabotaged the country’s vote-counting infrastructure and, according to published reports, Ukrainian officials succeeded only at the last minute in defusing vote-stealing malware that was primed to cause the wrong winner to be announced. Russia is not the only country with the ability to pull off such an attack on American systems — most of the world’s military powers now have sophisticated cyberwarfare capabilities.

So, yes, it would be good if the votes here were reviewed, if only as an opportunity to explore the potential problems of e-voting machines, rather than as a political ploy. The only problem is that everyone would see it as a political ploy and with political ploys comes general dumpster fires of idiocy.

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After All That, E-Voting Experts Suggest Voting Machines May Have Been Hacked For Trump

from the just...-no dept

In this topsy-turvy world where nothing makes any sense at all any more, Donald Trump spent months and months spinning stories about how the election was "rigged" and e-voting machines were going to be hacked in favor of Hillary Clinton. While we've spent nearly two decades pointing out problems with e-voting machines, and urged governments to do away with them, it still seemed unlikely that a hack would be sustainable on a large scale -- in part because our election system is such a mess and is handled differently from state to state. And, as Ed Snowden himself pointed out, hiding such a hack would be quite difficult. But with Trump refusing to say if he would concede, and talking up how the vote would be rigged, combined with false stories that made the rounds incorrectly claiming that George Soros owned a company that was making millions of e-voting machines, it seemed like a recipe for disaster if Trump lost and his supporters started insisting that the voting machines were hacked.

But, of course, everything is upside down this year. Trump won... and now suddenly some Clinton supporters are arguing that e-voting machines may have been hacked. Now, to be clear, I wouldn't even bring up this story at all under most circumstances. Even as I don't trust e-voting machines, stories of actual hacked elections tend to be the kind of thing that conspiracy theory kooks pass around, rather than anything substantiated in any real way. What's giving some people pause this time around, is that one of the people claiming that the votes in some states may have been hacked is J. Alex Halderman.

Halderman is legit. He's basically the guy who studies how hackable e-voting machines are. We've been writing about Halderman since he was just a Princeton student, and hacking DRM systems. But he's been hacking e-voting machines for almost as long. And he's really, really good at it. Remember the story of the e-voting machine that was reprogrammed to play Pac-Man? That was Alex Halderman.

That said... this story still seems unlikely. The NY Mag story on it is woefully lacking in detail:

The academics presented findings showing that in Wisconsin, Clinton received 7 percent fewer votes in counties that relied on electronic-voting machines compared with counties that used optical scanners and paper ballots. Based on this statistical analysis, Clinton may have been denied as many as 30,000 votes; she lost Wisconsin by 27,000. While it’s important to note the group has not found proof of hacking or manipulation, they are arguing to the campaign that the suspicious pattern merits an independent review — especially in light of the fact that the Obama White House has accused the Russian government of hacking the Democratic National Committee.

But... it's not clear this holds up under much scrutiny. Perhaps Halderman and voting rights expert John Bonifaz have more details on what they found, but as Nate Silver noted, a more rigorous statistical look at the data -- controlling for education and race -- seems to make the statistical anomaly disappear. A big claim of actual vote rigging via e-voting machines would need a tremendous amount of evidence to be believable, no matter who won. So far, it doesn't seem like there's enough proof here, even if someone as respected as Halderman is involved in making these claims. But the fact that he is involved at least makes it worthy of further scrutiny.

But... either way, can we please finally get people to realize that e-voting machines without a verifiable paper trail are a disaster and should have no place in any election system? We'd all be better off if there wasn't even a question of hacked voter machines.

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Ridiculous Hot News And Copyright Battles As World Chess Seeks To Block Others From Broadcasting Moves

from the that's-ridiculous dept

A few years back, we had a few stories about ridiculous situations in which the Bulgarian Chess Federation was trying to claim copyright on chess moves and had even sued a website for copyright infringement for broadcasting the moves. Of course, chess moves are not just factual information, but they're historically written down and shared widely, because that's part of how people learn to play chess (and get better at it). Studying the moves in various games is part of how people practice chess, and no one is expected to claim "ownership" over the chess moves, because they can't.

And yet... we've just come across two separate cases, involving one particular organizer of chess tournaments, trying to abuse the law to block reporting on chess moves -- in both Russia and the US. Both cases are ridiculous, and thankfully, both have failed so far. The Moscow case actually kicked off back in the spring, when the organization Agon, which runs World Chess Championships and the website WorldChess.com, sued some websites, including Chess24, for posting the chess moves of live events. Thankfully, the Commercial Court of the City of Moscow rejected the lawsuit a few weeks ago, though Agon has said it will appeal. There are a number of reasons why Agon lost the case, but the key one:

Art. 14.7 of the Competition Act does not apply in particular since the Plaintiff did not establish a regime of commercial secrecy for the information about the chess moves. On the contrary, this information was in the public domain (as the Plaintiff himself admits on page 6 of the statement of claim). Consequently, information about the chess moves is not a trade secret and is not protected by law. Accordingly, the Defendant did not receive, use or disclose information that was a trade or other secret protected by law i.e. he did not violate Art. 14.7 of the Competition Act.

Then, just days after that ruling in Moscow, a very similar case was filed in the US by World Chess -- which is owned by Agon. And, it also targeted Chess24, one of the same companies it had sued in Moscow. In the US, it's clear that there's no copyright claim to be made in chess moves -- too many cases clearly preclude trying to claim a copyright in factual data, especially factual data about sports/competitions. Instead, World Chess focused on the pretty much dead and discredited "hot news" claims against a few other chess sites. The entire complaint can basically be summarized as "but... wah... it's not fair!"

Defendants have made a pattern and practice of copying and redistributing in real time the chess moves from tournaments covered byWorld Chess shortly after the moves appear on World Chess’s website, and unless restrained by this Court will do the same with respect the November 2016 Championship.

World Chess not only asked for an injunction against Chess24 -- but also demanded that the court order the domains of the defendants be transferred over to World Chess. The defendants hit back with a detailed explanation of how ridiculous World Chess's lawsuit was:

By its Application for a Temporary Restraining Order and Preliminary Injunction, Plaintiffs World Chess US, Inc. and World Chess Events Ltd. (collectively, “Plaintiffs”) seek to prevent legitimate chess-oriented websites from reporting on, discussing, and analyzing one of the major chess matches of the year – even though the information Chess24 seeks to report on will already be readily available to the public. Plaintiffs attempt to do so by claiming that because they are the organizers and promoters of the chess match they have an intangible, enforceable property right in the facts surrounding that match, and therefore have the exclusive right to publish and report on what the players are doing. The claims made by Plaintiffs run contrary to the well-established law of this Circuit and public policy.

Chess24 points out that World Chess is clearly just trying to do an endrun around well-established copyright law, and that's a big no-no.

Plaintiffs know that the moves made by professional chess players are precisely the type of factual material that is not protectable by copyright law. But it also cannot be protected under theories of common law misappropriation. The law is absolutely clear in this Circuit that state law claims for misappropriation of unprotectable facts – including live sports plays – are preempted by Section 301 of the Copyright Act. In an effort to avoid preemption, Plaintiffs have relied on an extremely narrow exception for so-called “hot news misappropriation.” That exception plainly does not apply here. In fact, Plaintiffs almost completely ignore the dispositive case in this area -- NBA v. Motorola, 105 F.3d 841, 846 (2d Cir. 1996). In Motorola, the Second Circuit expressly rejected the exact same claim that Plaintiffs attempt to argue here, involving almost the exact same factual circumstances. Specifically, that case held that the NBA could not prevent Motorola from attending and watching basketball games and selling play-by-play accounts of the game to its mobile customers. In contrast to this dispositive case law, Plaintiffs are unable to cite even a single case upholding an injunction like the one sought by Plaintiffs in even remotely similar circumstances.

Oh, and also, Chess24 points out to the court that (1) Agon/World Chess just lost a nearly identical case in Moscow and (2) it waited until just days before the tournament in question started to try to force a quick injunction:

Even more telling is the fact that although Plaintiffs have been in litigation with Chess24 in Moscow since March (Plaintiffs recently lost that case), they waited until just four days before the start of the WCC to bring this motion. Plaintiffs’ decision to file their lengthy motion at the eleventh hour is not just sharp tactics; it confirms that there is no actual irreparable injury in need of remediation.

There was a hearing in court, and the judge, Victor Marrero, rejected World Chess/Agon's request for an injunction. As of writing this, the court has only posted the short order without the full explanation, which is expected to be published later. But, given the facts here, it seems fairly obvious why the court rejected the case -- and it's all of the many reasons that Chess24 laid out in its brief.

Hopefully, these companies can finally get it through their heads that you can't copyright chess.

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Theranos's Insane Campaign To Punish Whistleblower, Who Happened To Be Famous Boardmember's Grandson

from the holy-crap dept

We haven't really written much about the insane Theranos scandal, though we discussed it on our podcast. The whole story is pretty crazy -- involving a heavily hyped up company that appeared to basically be flat out lying to everyone about what it could do. The company still exists, but barely. The company's founder and CEO, who was plastered across magazine covers and compared frequently to Steve Jobs, has been banned from running a lab for two years, and the company is now facing a $140 million lawsuit from its biggest partner, Walgreens, who claims that Theranos repeatedly lied to Walgreens.

All the while, Walgreens alleges that Theranos: actively misled the company; didn’t live up to the quality and regulatory promises; kept Walgreens in the dark about problems; refused to answer questions as media reports came out about those problems; accused Walgreens of leaking information to the press; and asserted that Walgreens was the one that had breached their agreement.

One thing that became clear as the whole scandal broke, was that the company continued to aggressively deny wrongdoing, even as it became more and more obvious that almost everything that Theranos was saying publicly, allowing the company to be valued around $9 billion, was completely bogus. One of the most striking stories that came out a few months ago, was a report on the almost cult-like response from Theranos after the very first of a series of articles exposing the fraud came to light. The reporter who did an amazing job in exposing Theranos was the Wall Street Journal's John Carreyrou. And according to a thorough recounting in Vanity Fair, after Carreyou's first article, rather than honestly addressing the allegations, this happened:

By the time she returned to Palo Alto, the consensus was that it was time, at last, for Holmes to address her hundreds of employees. A company-wide e-mail instructed technicians in lab coats, programmers in T-shirts and jeans, and a slew of support staff to meet in the cafeteria. There, Holmes, with Balwani at her side, began an eloquent speech in her typical baritone, explaining to her loyal colleagues that they were changing the world. As she continued, Holmes grew more impassioned. The Journal, she said, had gotten the story wrong. Carreyrou, she insisted, with a tinge of fury, was simply picking a fight. She handed the stage to Balwani, who echoed her sentiments.

After he wrapped up, the leaders of Theranos stood before their employees and surveyed the room. Then a chant erupted. “Fuck you . . .,” employees began yelling in unison, “Carreyrou.” It began to grow louder still. “Fuck you, Carreyrou!” Soon men and women in lab coats, and programmers in T-shirts and jeans, joined in. They were chanting with fervor: “Fuck you, Carreyrou!,” they cried out. “Fuck you, Carreyrou! Fuck. You. Carrey-rou!”

That same Vanity Fair article notes that the company's lawyer, David Boies, threatened employees for talking to journalists. Boies, you may recall, made a name for himself for taking on Microsoft in the 1990s, but since then has been involved in a series of... well... bad decisions. You may recall him sending out bullshit letters threatening media companies for reporting on the leaked Sony emails a couple years ago. Boies also represented Oracle against Google in the fight over copyrighting APIs, and also represented SCO, back during that company's ridiculous legal fight against IBM over Linux. In this case, Boies wasn't just a lawyer for Theranos, but on their board as well:

Meanwhile, Theranos had its lawyers send a letter to Rochelle Gibbons’s attorney, threatening legal action for talking to a reporter. “It has been the Company’s desire not to pursue legal action against Mrs. Gibbons,” a lawyer for Boies, Schiller & Flexner wrote. “Unless she immediately ceases these actions, she will leave the Company no other option but to pursue litigation to definitively put an end [to] these actions once and for all.”

It turns out that's not the only people Theranos went after. The same reporter who exposed the fraud and was the subject of those chants recently had another story detailing the ridiculous lengths that Theranos has gone to in an effort to silence one of the whistleblowers who revealed the problems at the company. The story is quite incredible (though, possibly blocked by the WSJ's paywall). The whistleblower was a guy named Tyler Schultz -- who just happened to be the grandson of well known former Reagan Secretary of State George Schultz... who also was on Theranos' board (the board was stocked with famous political people, and few with any actual experience in Theranos' field). The younger Schultz apparently had emailed Elizabeth Holmes pointing out how the company was doctoring research and received a lecture instead:

After working at Theranos Inc. for eight months, Tyler Shultz decided he had seen enough. On April 11, 2014, he emailed company founder Elizabeth Holmes to complain that Theranos had doctored research and ignored failed quality-control checks.

The reply was withering. Ms. Holmes forwarded the email to Theranos President Sunny Balwani, who belittled Mr. Shultz’s grasp of basic mathematics and his knowledge of laboratory science, and then took a swipe at his relationship with George Shultz, the former secretary of state and a Theranos director.

“The only reason I have taken so much time away from work to address this personally is because you are Mr. Shultz’s grandson,” wrote Mr. Balwani to his employee in an email, a copy of which was reviewed by The Wall Street Journal.

The rest of the story is pretty incredible. Schultz, smartly, quit that same day, and then reached out to regulators in NY to blow the whistle on misrepresentations by Theranos, helping lead to the eventual unraveling of the company. And, again, rather than deal with the actual problems, the company just targeted the younger Schultz (and, incredibly, the grandfather sided with the company).

In the past year and a half, the grandson and grandfather have rarely spoken or seen one another, communicating mainly through lawyers, says Tyler Shultz. He and his parents have spent more than $400,000 on legal fees, he says. He didn’t attend his grandfather’s 95th birthday celebration in December. Ms. Holmes did.

“Fraud is not a trade secret,” says Mr. Shultz, who hoped his grandfather would cut ties with Theranos once the company’s practices became known. “I refuse to allow bullying, intimidation and threat of legal action to take away my First Amendment right to speak out against wrongdoing.”

First of all, kudos to Tyler Schultz for standing up to this bullying. And, second, what the hell is wrong with Theranos that they seemed so focused on attacking anyone who questions them, rather than focusing on actually fixing the problem. I get that there's this view of Silicon Valley companies where there's something of a "fake it, until you make it" attitude, but there are limits.

There's much more in the WSJ story that is really quite incredible. It suggests a level of closing ranks to protect the reputation of Theranos, rather than actually dealing with the fact that their stuff didn't work the way they said it would.

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Woman Sues Google Because SEO Guy Wrote A Mean Blog About Her Company

from the that's-not-how-this-works dept

I'm still baffled about how there are lawyers out there who seem oblivious to Section 230 of the CDA and how you can't just sue a platform because of something a user did. Apparently lawyer Harry J. Jordan from Washington DC is either unaware of the law, or simply decided to ignore it, in filing a silly lawsuit against Google asking for $8 million on behalf of Dawn Bennett and the "sports apparel" firm she runs called DJ Bennett. The story is a fairly familiar one. A guy named Scott Pierson claimed to be a Search Engine Optimization (SEO) expert, and convinced Bennett to pay a large sum of money to improve the performance of DJ Bennett's website. Things didn't work out, there was an exchange of words, some threats to negatively harm the website and an agreement on final payment (and also something about a lost check that was eventually rectified). Bennett claims that after all of this Pierson set up a blog on Google's blogging platform that made a bunch of negative remarks about DJ Bennett, some of which may very well be defamatory.

But, do me a favor, and look at the caption on the lawsuit, and tell me where Scott Pierson is as a party to the lawsuit?

Hmm. No Scott Pierson? Instead, there's just a giant corporation that didn't do anything here? Yup. This has all the hallmarks of a Steve Dallas lawsuit where a marginally connected big company is sued because "Hey, they've got the money." The rationale for Google being the defendant is just as ridiculous as you'd expect:

Google continued to carry Pierson’s blog after plaintiffs’ counsel repeatedly alerted it of the factual distortions and malicious intent of Pierson’s blog and his abuse of the internet process to distort public interest in his blog. Google therefore shares in the responsibility with Pierson in plaintiffs’ financial damages.

Plaintiffs will show at trial that they have lost more than $3 million in actual and potential business revenue because of Google’s publication of Pierson’s blog, and separately, Dawn Bennett has suffered several times that amount in damages to her business and professional reputation.

Right, see, that's not how this works. Just because Google hosts a blog, it doesn't make it liable for anything posted on it. And that's true even if you alert Google to not liking content. Hell, it's even true if the content has been proven defamatory in court (though Google tends to take things down upon receipt of such a ruling).

I can understand why Bennett is upset. But if the content is truly defamatory, then sue Pierson, who is responsible for it. And the lawyer -- Harry Jordan -- should let her know that Pierson is the only one she can sue over this, and should know that any attempt to sue Google will get tossed out of court super fast. But instead, he pushes forward with this lawsuit -- and doesn't even make the slightest attempt to get around Section 230, suggesting he may not even be aware of it.

Hell, it's not even clear that Jordan understands defamation law. Unlike most lawsuits of this nature, it doesn't cite the law in question. Instead, it makes claims about what is defamatory that are simply not accurate. Here's what the lawsuit says:

A defamatory statement is one which tends to expose a person to public scorn, hatred, contempt or ridicule, thereby encouraging others in the community from having a good opinion of, or from associating or dealing with that person. To determine whether Pierson’s blog meets this standard, consideration must be given to what was stated, what was intended by the statement, and how it was likely to have been understood by those to whom it was communicated.

That's uh... not what defamation is. Notice that critically missing here is any question of whether the statements are false. A mere statement that exposes someone to public scorn, hatred, contempt or ridicule (assuming it doesn't reach the actual tests for defamation) is clearly protected speech. Just for reference, Washington DC's actual defamation law requires a very different standard, including (as it must) that the statements be false and defamatory. Furthermore, corporations are considered public figures, meaning that the test also must include the "actual malice" standard (which, for all we know, could be shown), but it would still need to be shown against the right defendant. And that's not Google.

The lawsuit makes similar and equally problematic claims about "tortious interference" and "intentional infliction of emotional distress." Those are also clearly inappropriate under Section 230. And again, the link to Google is exceptionally tenuous.

As Google was aware of plaintiffs’ complaints that Pierson’s blog was factually false and a malicious vendetta against them and meant to cause crippling financial damages, it is therefore equally responsible and liable for the damages plaintiffs’ have suffered.

Nah, that's not how it works.

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Burlington Police Insist Someone Is Pretending To Abuse Copyright Law To Censor News Stories About Arrests

from the copyright-as-censorship dept

Last week, we wrote about some bizarre DMCA claims made by a guy named "Mike Ferrell" who claimed to represent the Burlington, Massachusetts Police Department, demanding that Google remove a bunch of stories because it violated the copyright the police department held on certain mugshots. We pointed out how crazy this was -- and also questioned whether or not "Ferrell" really represented the police department, because the language used in the takedown was a word salad of nothingness. In case you didn't remember:

Good afternoon My name is Mike Ferrell. I am the agent legal from the Burlington Police Department (Intellectual Property, Piracy, Copyright/DMCA) located in Massachusetts. I inform you that the infringing content in question awarded or issued previously are infringing our Copyright since these photographs/images are our property, is fully belonging to us. We are the properties, authors or creators of the content that previously indicated content and request of immediate actions appropriate or respective. We need it more soon as possible relevant/correct actions/measures are taken as more before possible, or otherwise we proceed to take action on our own. Thanks circumvention content: http://www.burlingtonpolice.org/Arrest-of-two-men-in-death-of-woman.html http://www.burlingtonpolice.org/Three-man-arrested-in-connection-with-string-of-store-jewelry-robberies.html http://www.burlingtonpolice.org/Nine-arrested-in-sting-operation.html http://www.burlingtonpolice.org/Teens-arrested-in-mosque-vandalism-incident.html http://www.burlingtonpolice.org/Eight-arrested-in-prostitution-sweep.html http://www.burlingtonpolice.org/Seven-johns-charged-in-reverse-prostitution-sting.html circumvention mechanism: Providing photographies/images protected for us.

Mike Kent, the Chief of Police in Burlington reached out to us over the weekend to let us know that whoever sent the notices, it was not his department. He says they have no one working for them by the name of Mike Ferrell, and that the Burlington PD "has no issues whatsoever with these mugshots being used."

So... that leaves open the question of just who is impersonating the Burlington Police Department, and filing completely bogus DMCA notices in an attempt to censor news stories. It would seem that the most obvious options are those who were featured in those stories about arrests in Burlington. The very first notice that Ferrell sent, focused on stories about a particular prostitution sting, and named the nine men who were arrested, along with mugshots. It would seem that perhaps one (or more!) of those nine men would have pretty strong incentives to seek to have those stories deleted from Google.

Either way, we've been pointing out for years that copyright is an easy tool for censorship -- and here's yet another example. If you want something censored, just try to work out a copyright conneciton of some sort. In this case, it appears to have failed, but mostly because whoever filed it wasn't very good at pretending to work for the police.

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NSA Leaked More Hacking Tools, Leading To Calls To Fire Its Director... Who Ran To Trump For Support

from the wait,-what? dept

Since Admiral Michael Rogers took over for previous NSA boss, General Keith Alexander, a couple of years ago, he's mostly stayed out of the public eye. While Alexander became the face of excessive NSA surveillance exposed by Ed Snowden, Rogers seemed to want to present himself as the face of a cleaned up NSA. On Friday, it was even reported that Rogers was the "top candidate" to take over as Director of National Intelligence from retiring James Clapper. That is, he was in line for a big promotion (though, oddly, another report released at the same time noted that Trump was considering getting rid of the role of "Director of National Intelligence" and moving back to a pre-9/11 setup where the various intelligence agencies have no one coordinating their actions.

But, over the weekend, a bizarre story broke in the Washington Post, detailing how both Clapper and Defense Department boss Ash Carter had been strongly recommending that President Obama fire Rogers for a variety of problematic actions. The most shocking -- though buried in the article -- is that the NSA has had multiple breaches revealing its most powerful hacking tools. We already know about the whole Shadow Brokers thing, revealing some powerful hacking tools, and that an NSA contractor named Harold Martin was arrested a few months ago for apparently hoarding all sorts of classified info. As we noted at the time, the fact that Martin was doing so years after Snowden, raised serious questions about how well the NSA could really keep its secrets.

And the Washington Post revealed that it's even worse:

But there was a second, previously undisclosed breach of cybertools, discovered in the summer of 2015, which was also carried out by a TAO employee, one official said. That individual also has been arrested, but his case has not been made public. The individual is not believed to have shared the material with another country, the official said.

Rogers was put on notice by his two bosses — Clapper and Carter — that he had to get control of internal security and improve his leadership style. There have been persistent complaints from NSA personnel that Rogers is aloof, frequently absent and does not listen to staff input. The NSA is an intelligence agency but part of the Defense Department, hence the two overseers.

FBI agents investigating the Martin breach were appalled at how lax security was at the TAO, officials said. “[Rogers] is a guy who has been at the helm of the NSA at the time of some of the most egregious security breaches, most recently Hal Martin,” a senior administration official said. “Clearly it’s a sprawling bureaucracy . . . but I think there’s a compelling case that can be made that some of the safeguards that should have been put in place were either not fully put in place or not implemented properly.”

The WaPo story also notes that there may be some turf battle issues going on here as well. We've long highlighted the serious problems of the NSA also running the US Cyber Command, noting that this creates a tremendous conflict of interest, since it makes the NSA more willing to not reveal vulnerabilities it discovers, since they may be more useful offensively as well. Apparently many in the administration agree, and the plan was to split the NSA and US Cyber Command, and get rid of Rogers at the same time. But, Senator John McCain apparently freaked out and insisted that the NSA and Cyber Command had to remain stuck together, or he would block any new nominees to head the NSA. At the same time, the reason Carter is upset with Rogers is that he feels he's done a poor job in mounting cyberattacks against ISIS (for what it's worth, in his own weird way, this was also a point that Trump would make during the campaign when asked about cybersecurity -- meaning that it's a bit odd he'd now consider promoting the guy who was responsible for what he'd been making fun of during the campaign...).

There's another oddity in the story: Rogers meeting with Trump was done without telling his superiors -- a massive breach of protocol for a military official:

In a move apparently unprecedented for a military officer, Rogers, without notifying superiors, traveled to New York to meet with Trump on Thursday at Trump Tower. That caused consternation at senior levels of the administration, according to the officials, who spoke on the condition of anonymity to discuss internal personnel matters

This made some wonder if Rogers did this as a last gasp effort to save his job. For what it's worth, when asked about the story, Rogers said he's "accountable" for his actions:

"I'm not going to go down that road," Rogers said, interrupting a journalist who asked about The Washington Post story during a forum where the admiral was speaking.

He added, "I'm accountable for my actions."

No matter what, at the very least, we're left (once again!) wondering what the hell is going on with the NSA. This is yet another example of how the organization is a mess that can't seem to keep track of its most powerful secrets and hacking tools. And they want us to "trust" them not to abuse those tools? They can't even keep track of them. And, the guy who's been in charge for the last two and a half years may now be getting a promotion (with a brief "being fired" thrown in between).

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IRS Demands All Info On All Coinbase Customers

from the slow-down,-skippy dept

There have always been questions about the tax implications of cryptocurrencies like Bitcoin. A few years ago, the IRS came out with some guidelines, declaring cryptocurrencies to be property, rather than currency, and then taxed more like equity. But late last week, the IRS went to court to basically demand Coinbase turn over all info it has on everyone. Coinbase is one of, if not the, leading online cryptocurrency exchanges and places where many people store their cryptocurrency in an online wallet. It's a company that has bent over backwards to comply with the laws. But, no matter, the IRS basically thinks everyone who uses it is a tax cheat. Here's what the IRS demanded:

All records of account/wallet/vault activity including transaction logs or other records identifying the date, amount, and type of transaction (purchase/sale/exchange), the post transaction balance, the names or other identifiers of counterparties to the transaction; requests or instructions to send or receive bitcoin; and, where counterparties transact through their own Coinbase accounts/wallets/vaults, all available information identifying the users of such accounts and their contact information.

Uh, yeah, that's not very limited. It's not limited at all. The IRS literally wants everything. Why? Because, according to the IRS, it's investigating one single tax cheat. In a declaration, IRS agent David Utzke, talks about a single tax cheat, and says this gives him a basis for requesting all info.

After using a traditional abusive offshore arrangement for approximately 5 years, Taxpayer 1 became fatigued with the effort required to manage his offshore accounts, attorneys, and applicable regulations, and discovered virtual currency while conducting internet research on the topic. Taxpayer 1 began testing the use of virtual currency and eventually abandoned the use of his offshore structure. Taxpayer 1 was able to use virtual currency to repatriate his assets without governmental detection.

For example, Taxpayer 1 originally worked with a foreign promoter who set up a controlled foreign shell company which diverted his income to a foreign brokerage account, then to a foreign bank account, and lastly back to Taxpayer 1 through the use of an automated teller machine (ATM). Once Taxpayer 1 abandoned the use of his offshore structure in favor of using virtual currency, the steps described above were the same until his income reached his foreign bank account. Once there, instead of repatriating his income from an ATM in the form of cash, Taxpayer 1 diverted his income to a bank which works with a virtual currency exchanger to convert his income to virtual currency. Once converted to virtual currency, Taxpayer 1’s income was placed into a virtual currency account until Taxpayer 1 used it to purchase goods and services. Taxpayer 1 failed to report this income to the IRS.

Utzke also mentions two other taxpayers, which were companies, not individuals, but which used Coinbase. He notes that others are laundering money and thus likely to be using cryptocurrencies. That may be true, but it seems like a pretty big stretch to argue that means Coinbase should cough up all details on all transactions.

In the IRS's memorandum of support, it insists that it's just trying to find all the tax cheats, so it should get to look at all the records.

Since 2009, the use of virtual currency has increased exponentially. Some users value the relatively high degree of anonymity associated with virtual currency transactions because only a transaction in virtual currency, such as buying goods or services, is public and not the identities of the parties to the transaction. Because of that, virtual currency transactions are subject to fewer third-party reporting requirements than transactions in conventional forms of payment. However, due to this anonymity and lack of third-party reporting, the IRS is concerned that U.S. taxpayers are underreporting taxable income from transactions in virtual currencies. Further, because the IRS considers virtual currencies to be property, United States taxpayers can realize a taxable gain from buying, selling, or trading in virtual currencies. There is a likelihood that United States taxpayers are failing to properly determine and report any taxable gain from such transactions.

.... The issuance of the summons is warranted here because (i) the summons relates to an ascertainable group or class of persons; (ii) there is a reasonable basis for believing these U.S. taxpayers failed to comply with internal revenue laws; and (iii) information sufficient to establish these U.S. taxpayers’ identities is not readily available to the IRS from other sources.

Coinbase posted a short blog post Friday evening expressing concern over this while exploring the issues:

Our customers may be aware that the U.S. government filed a civil petition yesterday in federal court seeking disclosure of all Coinbase U.S. customers' records over a three year period. The government has not alleged any wrongdoing on the part of Coinbase and its petition is predicated on sweeping statements that taxpayers may use virtual currency to evade taxes.

Although Coinbase's general practice is to cooperate with properly targeted law enforcement inquiries, we are extremely concerned with the indiscriminate breadth of the government's request. Our customers’ privacy rights are important to us and our legal team is in the process of examining the government's petition. In its current form, we will oppose the government’s petition in court. We will continue to keep our customers informed on developments in this matter.

What happens here is going to be a big, big deal in the cryptocurrency world. The IRS had to know that this was going to get attention, and perhaps that's the intent. But this seems like a massive overreach.

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President Obama Claims He Cannot Pardon Snowden; He's Wrong

from the yes-you-can dept

In a big interview with the German media outlet Der Spiegel, President Obama was asked about his interest in pardoning Ed Snowden in response to the big campaign to get him pardoned. Obama's response was that he could not, since Snowden has not been convicted yet:

ARD/SPIEGEL: Are you going to pardon Edward Snowden?

Obama: I can't pardon somebody who hasn't gone before a court and presented themselves, so that's not something that I would comment on at this point. I think that Mr. Snowden raised some legitimate concerns. How he did it was something that did not follow the procedures and practices of our intelligence community. If everybody took the approach that I make my own decisions about these issues, then it would be very hard to have an organized government or any kind of national security system.

At the point at which Mr. Snowden wants to present himself before the legal authorities and make his arguments or have his lawyers make his arguments, then I think those issues come into play. Until that time, what I've tried to suggest -- both to the American people, but also to the world -- is that we do have to balance this issue of privacy and security. Those who pretend that there's no balance that has to be struck and think we can take a 100-percent absolutist approach to protecting privacy don't recognize that governments are going to be under an enormous burden to prevent the kinds of terrorist acts that not only harm individuals, but also can distort our society and our politics in very dangerous ways.

And those who think that security is the only thing and don't care about privacy also have it wrong.

This is simply incorrect -- as is known to anyone who remembers the fact that Gerald Ford pardoned Richard Nixon before he had been indicted.

And it appears that the President knows this. Because, as the Pardon Snowden campaign points out, Obama pardoned three Iranian Americans who had not yet stood trial. That happened this year. So for him to say it's impossible to pardon someone who hasn't gone before the court is simply, factually, historically wrong.

And there's a Supreme Court ruling that makes this abundantly clear. 150 years ago, in the ruling on Ex Parte Garland, the Supreme Court stated:

The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control.

A pardon reaches the punishment prescribed for an offence and the guilt of the offender. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights. It gives him a new credit and capacity. There is only this limitation to its operation: it does not restore offices forfeited, or property of interests vested in others in consequence of the conviction and judgment.

Separately, the argument that if Snowden goes to court he can "make his arguments" is also wrong. And President Obama also knows this. The Espionage Act, under which Snowden is charged, does not allow any sort of whistleblower or public interest defense at all.

As Snowden’s lawyer, the ACLU’s Ben Wizner has explained, this isn’t hypothetical. When Daniel Ellsberg stood trial under the Espionage Act, his attorney asked him why he decided to leak the Pentagon Papers to journalists. The prosecution objected to the mere question, and the judge sustained the objection. No matter the egregiousness of the government’s actions, a whistleblower’s motivation has no place in an Espionage Act trial.

That means that Snowden wouldn’t be able to explain why he felt the public should know what the NSA was doing, he wouldn’t be able to point to the federal courts that ruled against the NSA in the aftermath of the disclosures, and he wouldn’t be able to cite subsequent advances to cybersecurity. His conviction and severe punishment would be a foregone conclusion.

There may be reasons why the President doesn't wish to grant a pardon to Snowden, but his stated reasons are completely bogus.

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Trump's Picks For AG & CIA Happy To Undermine Civil Liberties, Increase Surveillance

from the this-is-a-bad-start dept

This is (unfortunately) not a huge surprise, but it appears that a Trump administration is going to be much worse for civil liberties and surveillance. Earlier today, Donald Trump named his choices to head the CIA -- Rep. Mike Pompeo -- and to be the next Attorney General -- Senator Jeff Sessions -- and both have terrible records on surveillance, civil liberties and whistleblowing. They also are problematic in other areas, but in the areas where we cover, it's not looking good.

Let's start with Pompeo. In an op-ed piece for the Wall Street Journal back in January of this year, Pompeo called for expanding surveillance powers rather than limiting them. He criticized the USA Freedom Act and any other attempt to even moderately cut back on surveillance and said we had to go the other direction, claiming "What’s needed is a fundamental upgrade to America’s surveillance capabilities."

Congress should pass a law re-establishing collection of all metadata, and combining it with publicly available financial and lifestyle information into a comprehensive, searchable database. Legal and bureaucratic impediments to surveillance should be removed. That includes Presidential Policy Directive-28, which bestows privacy rights on foreigners and imposes burdensome requirements to justify data collection.

While (at least) that same editorial did say that a backdoor on encrypted products "would do little good," he's no fan of encryption. He just thinks that if you use it, it should be considered a "red flag" that you're up to no good:

There has been much debate about whether providers of communications hardware and software in the U.S. should be obliged to give the government backdoor access. Such a mandate would do little good, since terrorists would simply switch to foreign or home-built encryption. New technologies can cloak messages in background noise, rendering them difficult to detect.

Forcing terrorists into encrypted channels, however, impedes their operational effectiveness by constraining the amount of data they can send and complicating transmission protocols, a phenomenon known in military parlance as virtual attrition. Moreover, the use of strong encryption in personal communications may itself be a red flag.

In another opinion piece for the National Review, he attacks reformers and those who support Ed Snowden while announcing his own bill to give the NSA greater surveillance powers:

Those who today suggest that the USA FREEDOM Act, which gutted the National Security Agency’s (NSA) metadata program, enables the intelligence community to better prevent and investigate threats against the U.S. are lying. I use that word intentionally, because these candidates know better. Less intelligence capacity equals less safety. To share Edward Snowden’s vision of America as the problem is to come down on the side of President Obama’s diminishing willingness to collect intelligence on jihadis. No Republican candidate who does that is worthy of our vote.

I have just introduced the Liberty through Strength Act II in the House of Representatives to restore the NSA’s tools. We cannot expect our intelligence professionals to prevent terrorist attacks while handcuffing them at the same time.

Just to be extra clear: Pompeo doesn't just dislike Ed Snowden, he has declared him a traitor who should be "given a death sentence."

It's absolutely the case that we have not been able to secure all the American information that we needed to, and that we've had the traitor Edward Snowden steal that information. He should be brought back from Russia and given due process, and I think the proper outcome would be that he would be given a death sentence for having put friends of mine, friends of yours, who served in the military today, at enormous risk, because of the information he stole and then released to foreign powers.

Pompeo has also defended the CIA's torture program against critics:

“These men and women are not torturers, they are patriots,” and, “The programs being used were within the law, within the constitution.”

There's also the fact that Pompeo has basically no experience in the intelligence community. He was an Army officer and a businessman, only entering Congress a few years ago. In that link, Motherboard quotes someone from the intelligence community questioning how Pompeo is qualified to run the CIA:

“None of us believe that a couple of years in the Army followed by sitting on a committee in Congress qualifies anyone for any position in the CIA, much less as the Director,” a former military officer who also worked in the intelligence community told Motherboard on condition of anonymity. “We believe that the ongoing nepotism used to select unqualified and in some cases, dangerous people for leadership in these key positions may well lead to a catastrophic failure for the United States.”

So, yes, here's someone with little actual experience in intelligence, but who is absolutely sure the answer is greater surveillance of Americans, and who supports programs that have been declared to be torture. And they're putting him in charge of the CIA.

On to Sessions. He's also a huge supporter of increased surveillance, and not a fan of civil liberties. Going back a decade ago, Sessions very publicly supported President George W. Bush's surveillance programs that included warrantless wiretapping of Americans.

“This is a reasonable assertion of executive power, and it’s more than an academic discussion,” Sessions said. “There are 3,000 Americans who have no civil rights today because they were killed as a result of communications from foreign terrorist organizations who called in to sleeper cells who then carried out the catastrophic 9/11 attacks. President Bush’s surveillance program authorizes only an intercept of an international call or email in which one of the parties is connected to al Qaeda. I think the terrorist surveillance program is a reasonable response.”

For what it's worth, Sessions is wrong here. The surveillance program -- as we later learned -- enabled much, much, much more than that, and included mass surveillance on the communications data of millions of Americans. And the "connection to Al Qaeda" was expanded to include many hops away, and much more than Al Qaeda. But as far as I can tell, Sessions never admitted that his statement was wrong or changed his views on Presidential surveillance powers. Just this year, Sessions spoke out against encryption on mobile phones in discussing the legal fights between Apple and the FBI:

Senator Jeff Sessions of Alabama questioned Cook’s position. "Coming from a law enforcement background, I believe this is a more serious issue than Tim Cook understands," Sessions said. He said accessing phones is critical to law enforcement.

"In a criminal case, or could be a life and death terrorist case, accessing a phone means the case is over. Time and time again, that kind of information results in an immediate guilty plea, case over," Sessions said. He added that the ability for government to access a phone should not be abused.

He's also spoken out vehemently against NSA reform that limits surveillance, complaining about the very modest changes in the USA Freedom Act.

In 2006, the National Security Agency transitioned the bulk telephone-metadata acquisition program authorized under the president’s Terrorist Surveillance Program to the business-records court-order authority of Section 215. Since shortly after 9/11, this program has been helping to keep Americans safe by acquiring non-content call records, i.e., telephone numbers and the date, time, and duration of a call. This program has yielded invaluable intelligence that has helped prevent attacks and uncovered terrorist plots. Nevertheless, the Obama administration has built up unnecessary barriers that sacrifice the fragile operational efficiency of the program without actually accomplishing anything in terms of data security.

He claimed this despite the fact that this article was published years after it had been revealed that the government had never relied on the Section 215 data to save lives, and even where it was used, other means were used to stop any kind of attack.

On top of that, just recently, Sessions tried to massively expand the surveillance powers of the Justice Department, in an amendment he tried to attach to ECPA (Electronic Communications Privacy Act) Reform. We've been calling for ECPA Reform for many, many years, but to stop warrantless surveillance and data collection. But Sessions' plan was to make it even easier for law enforcement to get data, so long as they "declared it was an emergency."

A provider of electronic communication service or remote computing service shall disclose to a governmental entity a wire or electronic communication (including the contents of the communication) and a record or other information pertaining to a subscriber or customer if a representative of the governmental entity reasonably certifies under penalty of perjury that an emergency involving the danger of death or serious physical injury requires disclosure without delay.

And, the thing is, many companies will help out law enforcement voluntarily in such situations. But Sessions was trying to make it mandatory, which would be massively abused.

And that doesn't even touch on Session's horrific history concerning civil rights, which generally doesn't bode well for his views on related civil liberties.

I know that we'd heard from some Trump supporters telling us that they believed he wouldn't be as bad on surveillance as Obama or Bush. But, so far, it certainly looks like he's worse, given who he is planning to appoint.

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Trump's Constant Whining About The NY Times Isn't Just Bad For The First Amendment

from the business-threats dept

We've already made it clear that we're quite concerned about how freedom of expression will fare under President Trump. He has a long history of threatening and/or suing those who cover him factually, but in a manner he dislikes. And while he hasn't (as far as I can tell) threatened to sue anyone since the election, he appears to have become somewhat obsessed with the NY Times. Since winning the election he's tweeted at least six times about the NY Times, insisting (incorrectly) that it was losing subscribers and (incorrectly) that it had "apologized" to readers for its Trump coverage. He also claimed (incorrectly) that it had said he hadn't spoken to foreign leaders -- when the actual article just said that his conversations with foreign leaders happened without State Department briefings (which is fairly stunning). Here's what the NY Times said:

One week after Mr. Trump scored an upset victory that took him by surprise, his team was improvising the most basic traditions of assuming power. That included working without official State Department briefing materials in his first conversations with foreign leaders.

But Trump claimed something entirely different: And, yes, I know that there are some folks who just flat out hate the NY Times and think that it lies and such. And I've certainly complained my fair share about weak or misleading coverage by the NY Times over the years, but it's still problematic when a President or President-elect is directly attacking any publication. It creates serious chilling effects on reporters. And, it can be even worse than that. As Yashar Ali noted in a Twitter thread, attacking a company as "failing" has real consequences, especially one that is traded on the public markets, potentially harming all sorts of everyday investors. I'm guessing that many who just hate the NY Times won't care about this, but it is serious. There's a reason why Presidents don't go around attacking companies or saying that they're "failing" or that their business is in trouble. Because that has real consequences. I still don't think that journalists should be suing Trump for defamation, as some have suggested, but it would be nice if our President-elect recognized that going around and attacking the press -- even if he disagrees with its coverage -- is entirely inappropriate.

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Germany Wants To Hold Facebook Criminally Liable If It Doesn't Find & Delete 'Hate' Speech

from the this-is-a-bad-idea dept

We've been pointing out that in the rush to claim that Facebook is a media company that must take responsibility for the content that is posted and shared on the site, there's really an implicit call for blocking content that is somehow deemed "bad." People keep acting like Facebook, rather than its users, has the responsibility to edit what is on the site. That's dangerous -- and for yet another example of how, we've now got a German official saying that Facebook has to be classified as a media property and be held criminally liable if it doesn't magically delete "hate speech."

This is really, really dangerous. Yes, we know that Germany has much stricter hate speech laws, but if you have to have them, at least hold the proper party responsible: those doing the speaking (and, yes, as we've pointed out repeatedly, hate speech laws are almost always abused by governments to silence and punish people they don't like). Facebook, to some extent, has brought this on itself. In the past, it's made promises, to Germany in particular about how it will help curb "hate speech" on the site. And, eventually, the government is going to get upset and say "you're not doing enough." Earlier this year, Facebook (along with Google, Microsoft, and Twitter) tried to appease European bureaucrats by signing an agreement to respond to complaints of hate speech within 24 hours. But now officials want more. Because once you give governments the power to censor speech, they're always going to want more.

None of this is to say that Facebook needs to leave any particular speech up on its site. It's a private company and gets to make those decisions. But when governments get involved, things get scary quickly -- especially as the EU does still have safe harbors in the Ecommerce Directive that are supposed to limit liability for platforms. The statement made here, by German Justice Minister Heiko Maas, is a deliberate attempt to get around that Directive by declaring Facebook no different than a newspaper, which is responsible for what it prints. That's ridiculous on any number of levels, starting with the fact that newspapers literally pick everything that they print, whereas a platform like Facebook doesn't. It's all on the users.

The really ridiculous thing here is that statements like this make things worse. It makes it clear to these platform companies that no matter how much they try to appease government officials on things like this, they're always going to push for more and more censorship power.

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Updated! Massachusetts Police Dept. Files DMCA Takedowns On News Stories Using Mugshots Taken By Police

from the copyright-as-censorship dept

Update: We've written up a followup to this post, noting that the Chief of Police in Burlington insists that this was not done by them, and they have no problem with the press using these images. It would appear that someone else is abusing copyright law to try to block these stories -- and since the stories are about people being arrested, it's not hard to put together a list of people with motives to abuse copyright law in this manner. Please read the follow up post, before reading this original post below.

Here we are with yet another example of copyright as censorship. This one comes from the Shooting the Messenger blog, which dug up a fascinating story of how the Burlington, Massachusetts Police Department appears to be abusing copyright law to try to censor articles written about people they've arrested. Specifically, a representative from the police department has filed a bunch of DMCA notices with Google, targeting around 30 news stories, claiming the Police Department holds the copyright on the mugshots used in those stories. You can see one of the notices over at the Lumen Database, and you'll quickly notice that it's not like they're targeting fly-by-night websites, but all sorts of big name press outfits, including CBS, the Boston Herald and the Denver Post.

The explanation given is pretty silly too in that it's barely comprehensible:

Good afternoon My name is Mike Ferrell. I am the agent legal from the Burlington Police Department (Intellectual Property, Piracy, Copyright/DMCA) located in Massachusetts. I inform you that the infringing content in question awarded or issued previously are infringing our Copyright since these photographs/images are our property, is fully belonging to us. We are the properties, authors or creators of the content that previously indicated content and request of immediate actions appropriate or respective. We need it more soon as possible relevant/correct actions/measures are taken as more before possible, or otherwise we proceed to take action on our own. Thanks circumvention content: http://www.burlingtonpolice.org/Arrest-of-two-men-in-death-of-woman.html http://www.burlingtonpolice.org/Three-man-arrested-in-connection-with-string-of-store-jewelry-robberies.html http://www.burlingtonpolice.org/Nine-arrested-in-sting-operation.html http://www.burlingtonpolice.org/Teens-arrested-in-mosque-vandalism-incident.html http://www.burlingtonpolice.org/Eight-arrested-in-prostitution-sweep.html http://www.burlingtonpolice.org/Seven-johns-charged-in-reverse-prostitution-sting.html circumvention mechanism: Providing photographies/images protected for us.

Now, as we've discussed in the past, works of the federal government are simply not subject to copyright law. When it moves down to the states, it's either not entirely clear or subject to specific state laws. And in Massachusetts, the rule is that "records created by governments are not copyrighted and are available for public use." Separately, in Massachusetts, it's been determined that mugshots are public records, meaning that the police department has even less control here. And of course, even if these images were subject to copyright protections, their use in reporting would clearly be fair use.

Assuming that Mike Ferrell actually represents the Burlington Police Department, it appears that he and the police department are flagrantly violating the law in an attempt to censor news stories in the public interest. If he doesn't represent the Burlington Police Department, he's also misrepresenting himself, and potentially committing perjury, as an official DMCA notice requires stating, under the penalty of perjury, that you're authorized on behalf of the copyright holder.

No matter what... something not good is happening here, and it's yet another in an increasingly long list of examples of censorship by copyright.

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Stopping Turnkey Tyranny: What The Obama Administration Can Do About The NSA On The Way Out

from the not-much,-but-something dept

Last week, I was a little unfair to our friends over at Fight for the Future in noting that it was too late for President Obama to "dismantle the NSA" as was suggested in a Time article written by FftF's awesome campaign director Evan Greer. I was focusing on why the President should have limited the NSA much more seriously earlier on (like way earlier...), but some interpreted it to mean that I was suggesting that FftF had only just jumped on the bandwagon to stop mass surveillance. That's clearly not true -- as it's been one of the leading voices in the fight to get the President to scale back mass surveillance since the group took on that issue many years ago.

My point was really just that waiting until now really limited Obama's options greatly. Even if he wanted to limit what a President Trump could do with the NSA, there's not much he can do that President Trump couldn't immediately roll back. That might be different if Obama had done a full scale surveillance reform program years ago, including much more comprehensive legislation than the USA Freedom Act.

But just because there isn't much he can do, that doesn't mean there's nothing he can do. Timothy Edgar, who served in both the Obama and George W. Bush administrations handing civil liberties/privacy issues related to the intelligence community (he was Obama's director of privacy and civil liberties for the White House's national security staff), has written a very interesting article laying out a number of things that the President can do on his way out the door that certainly won't stop the possibility (or even likelihood) of abuse of surveillance powers, but could at least make it somewhat more difficult.

Edgar picks up on a point that Ed Snowden made early on, that we've built a system that will enable "turnkey tyranny" in the wrong hands:

we delude ourselves if we think they have made the NSA tyrant-proof. In Snowden’s first interview from Hong Kong, warned against “turnkey tyranny.” One day, he said, “a new leader will be elected” and “they’ll find the switch.” With Donald Trump’s election, it is important that this warning not be proved prophetic. While the United States has a robust system of intelligence oversight—the strongest in the world—it still largely depends on the good faith of Executive Branch officials.

Edgar then goes through the things that Obama can do, but notes that they "require immediate action" if they're to have any impact at all. Some of them may seem like they're unlikely to have much of an impact -- such as reaffirming to the intelligence community their oath to the Constitution, and that what they do is supposed to be above politics, or even appointing new staff (which Trump could replace, but might not given the rumored staffing troubles he's been having) -- but could actually set a tone that at least acts as a minor buffer. Some of the other suggestions, though, could be more effective: committing to real transparency including declassifying a lot more information about surveillance programs, helping the Privacy and Civil Liberties Oversight Board finally get out its long awaited report on Executive Order 12333 and dropping the various attempts to use bogus "states secrets" defenses to various legal challenges to surveillance programs. All of those could be really useful.

Edgar also recommends pardoning Snowden, commuting Chelsea Manning's sentence and dropping or wrapping up whatever other leak investigation and excessive Espionage Act cases the DOJ has going. They won't necessarily stop a President Trump from using the same tools against other people, but it will take away gift wrapped cases that could set awful precedents in using the Espionage Act go go after public interest whistleblowers and reporters.

Edgar concludes by pointing out that if Obama believes in his own oaths to "preserve, protect and defend" the Constitution -- which are obviously still in effect -- he should do whatever possible to make sure that the next administration cannot completely ignore the Constitution, as many fear (and as Trump has suggested he'd like to do concerning the 4th Amendment and surveillance).

Obama has twice sworn an oath to “preserve, protect and defend” the Constitution. Normally, this means making it possible for the new president to fulfill his promises, even if you disagree with them. Given Trump’s autocratic tendencies, Obama’s oath entails a countervailing obligation. Obama’s last challenge is to do everything in his power to thwart Trump’s promises to abuse our constitutional liberties.

Again, these are all fairly limited moves, but they're what's left that can be done. Given how little Obama did in the almost eight years he's had, I won't hold my breath that he'll do any of these things, but lots of us will be watching closely, hoping that we're wrong about what we expect to happen.

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Yes, There's Lots Of Fake News On Facebook, But Is It Really Changing Anyone's Mind?

from the probbly-not dept

We've already written about how silly and dangerous it is that some people (especially journalists) rushed to blame Facebook for their disappointment that Donald Trump won the election. I've explained why I think the whole "fake news" problem is completely overblown -- but the issue has gotten a new blast of energy from an interesting analysis done by Craig Silverman at BuzzFeed, saying that in the weeks leading up to the election there was more engagement with fake news on Facebook than real news. Here's the key chart that everyone's passing around.

That's a pretty scary looking chart. But it's not clear it really supports the argument that fake news was actually an influencing factor. First of all, there are some questions about the methodology here and whether or not BuzzFeed is actually overselling the true story based on the headline (and, yes, there's irony in the idea that a story claiming that fake news is shared more than real news may have a misleading or "fake" title...). Beyond just questions of how you track Facebook "engagement," it's also not always clear if all engagement is the same. Hell, what if many of the comments on a fake news story are versions of "this is fake." That counts as engagement, but undermines the idea that people are interacting with fake news only because they believe it. Even the author of the piece, Silverman, weighed in on Twitter with a bunch of caveats about what the story doesn't actually show (even as many reading it are assuming it does).

But, also there's still the much larger question of whether or not fake news actually has an impact, or if it's just being shared. In another interesting article, the folks over at the Guardian got a group of people who identified as either strongly "left" or strongly "right" and tried to get them to use a Facebook feed designed for someone at the other end of that spectrum. And guess what? It didn't change people's minds. In most cases, it just caused people to dig in deeper with their positions, getting angrier at the other side for the stuff that was published on "that side." It would be funny how "tribal" people get if it wasn't resulting in a huge and ridiculous division in our society. In that article, people on both sides used the "opposing" side's feed as some sort of evidence of just how dishonest/angry/evil the other side was. The only person who changed his mind only did so to decide not to vote for President at all.

The problem here doesn't seem to be "fake news." The problem (and we see this in our own comments as well) is that people have decided that there are these monolithic groups -- "the left" or "the right" -- and they ascribe all sorts of evil motivations and intentions to them. I can't tell you the number of times we've seen comments about "the left blah blah blah" or "the right blah blah blah" and they're always extreme and ridiculous stereotypes that have very little basis in reality. People are rooting for their "team" rather than good ideas or good policy. That's dangerous. And, yes, fake news that people can share that enforces their viewpoints is a reflection of that attitude, but it's not the cause of it. If people want to fix the "problem" of fake news getting shared, maybe work on ways to get people to stop playing "red team / blue team" and to start recognizing that what matters is the actual policy decisions and actions. That's likely wishful thinking, but it would be nice if people were at least working towards a path to avoid politics as team sports.

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Companies Keep Asking Us To Track You; We'd Rather You Be Protected From Tracking

from the the-ads-biz dept

We've talked in the past about the ridiculousness of the online advertising business. Over the last few years, the dollar value of most online ad revenue has declined drastically. Remember how musicians whined that their revenue dropped precipitously due to changes on the internet? I know how they feel -- though rather than lash out and blame the internet or demand legal changes, I'm hoping that we can find a better way -- and part of that is by reaching out publicly for support. Here's the thing, though: while the dollar value on ads has continued to decline, there's still been an explosion in companies filling up the online ad space. We're contacted by between one and five internet ad companies every single day, asking us to put their ads on our site. They often make bold promises, which few can actually live up to. We ignore most of these requests. Many are obviously scammy or fly-by-night. Others use language that immediately turns us off. For example, there's one company that emails basically every week promising to help us "fix" our "ad blocking problem" by forcing people using ad blockers to see ads. I don't even want to bother letting them know that we let users turn off ads themselves if they want.

We recently received a pitch from a company offering to give us a lot of money if we'd let them track our users in a very specific way. They were, more or less, promising revenue rates that are approximately 3x to 5x what we currently get. After speaking to them, we recognized that they were serious and actually had put a lot of thought into making sure that they were taking users' privacy into account. But, it still felt... sketchy. On top of that, to implement it, it would have required us to change our privacy policy, which just set off alarm bells for us. If we need to change our privacy policy to do something like that, it's probably not worth it, just because we recognize how much many of you value your privacy, and even if they're offering much higher rates, what good is that if we lose the trust of our readership?

In the meantime, we are always looking for ways to help keep Techdirt funded that are good for everyone, rather than ones that undermine trust or treat our community poorly. That's why we have this ongoing partnership with Private Internet Access, the popular and excellent VPN service that helps stop companies from tracking you so carefully. And that's why we'll do things like make money off of affiliate fees from helping protect your privacy, instead of selling out any good will and trust by treating you "as the product" (as the slightly ridiculous saying goes). So we've told the tracking company no thanks and to take a hike. I doubt most other websites would do the same, but we thought it was the appropriate move and, in the interest of transparency, wanted to share our decision with you.

Obviously, I'm also not just writing this to pat ourselves on the back -- but to give you some transparency into the fact that to keep Techdirt strong, we need support from you guys who make up our community. And, again, picking up your Private Internet Access VPN from us is one great way to support Techdirt (and help you protect your privacy). You can also buy stuff from our Deals Store or support us directly via our Insider Shop. And we'll have some other stuff coming in the future (including, yes, more awesome T-shirts). We try to be overly cautious not to be too aggressive in asking for support, but after our experience with this one tracking company, it seemed appropriate to share that story and remind you of ways you can support us that don't require that we change our privacy policy and compromise our values.

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Rutgers Lecturer Forcibly Sent For Psych Evaluation By NYPD For Some Tweets About The Election

from the reprogramming-in-effect dept

As you may have noticed, a lot of people have opinions on the election that just happened. And, many people are using social media to express those opinions, for good or for bad. Some people are excited, some people are angry. And no matter which side you fall on, you should recognize that expressing opinions on social media is protected (and should be encouraged as part of a healthy political process involving public discussion and debate). Kevin Allred, a lecturer at Rutgers University, is definitely on the side of folks who aren't happy with the results of the election. And, like many, he's been tweeting about his opinions on the matter. Having read through his Twitter feed, it doesn't seem all that out of the ordinary from stuff that I've seen from others. In fact, I'd argue that it actually seems fairly tame.

Either way, last night he Tweeted that the NYPD had come to his house because the police at Rutgers believed he was "a threat" based on some of his tweets. There were two tweets in particular. One was about burning a flag in protest and the other was a rhetorical question about the 2nd Amendment.

To be clear: flag burning is perfectly legal and protected expression, as per the US Supreme Court. But here, Allred wasn't even burning a flag. He was talking about burning a flag, which is, obviously, also protected expression. Ditto on the random rhetorical on the 2nd Amendment. No matter what you think of Allred's position on the election, flag burning OR the 2nd Amendment, you should recognize that the 1st Amendment protects that expression. Update: It also appears that Allred deleted the original tweet on the second point which was certainly noticeably different than the way he describes it above. It wasn't just a question in the nature stated, but rather a more direct question of what would happen when he went out and started to shoot white people. That's still protected speech, but at least there's slightly more of an explanation for why law enforcement wanted to go visit him. But it's still not necessarily a reason to detain him.

The Rutgers police and NYPD apparently disagreed. They forced him to go to a psychiatric hospital to be evaluated. Allred blames Trump for this -- and while we've made it clear that we've got lots of concerns about Trump's views on free speech, Trump isn't exactly directing police to pick up people for various tweets. But the whole situation is extremely disturbing nonetheless. It's frightening how little law enforcement seems to recognize or care about the First Amendment.

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Police Just Found Phone & USB Stick Belonging To Paris Suicide Bomber, After Misplacing It For Almost Two Years

from the but-encryption-is-the-problem dept

Remember how, right after the Paris bombings, people started blaming encryption for the attacks, despite the fact it was later revealed that most of the planning was done in the open and communication occurred via unencrypted SMS messages? As we noted, it seemed pretty clear that the bombings were an intelligence and law enforcement failure rather than an encryption problem.

Now, just to add more evidence to that conclusion in the most ridiculous way possible, apparently Brussels police just found a mobile phone and USB stick that had belonged to one of the suicide bombers in the Paris attacks, Brahim Abdeslam. The police had seized the phone and USB stick during a drug raid back in February of 2015... and promptly misplaced them entirely. They were found under a stack of papers. Really.

A cell phone belonging to Paris attacks suicide bomber Brahim Abdeslam that had been mislaid by Belgian police was found under a pile of documents in a Molenbeek police station, local media reported Tuesday.

Officers seized the phone and a USB stick belonging to Abdeslam during a drugs raid in Brussels in February 2015. Following the November 2015 attacks in Paris, authorities wanted to analyze the phone for details about the terror plot, but it could not be found.

According to local media, the phone was found by chance last week in Molenbeek, the area of Brussels where Abdeslam and others involved in the Paris and Brussels attacks lived.

And yet people want to blame encryption. And, yes, of course police make mistakes and misplace stuff, but perhaps law enforcement should be focused on trying to prevent those kinds of things by being more careful in how they handle evidence before they rush off to blame things like encryption.

This all gets back to a larger point that we've tried to make all along about the whole "going dark" thing: good police detective work will almost always beat out merely breaking into phones. Encryption is useful in protecting messages, but it doesn't hide all activity -- and those who are planning criminal or terrorist attacks quite frequently leave lots of other evidence around. Blaming encryption, rather than law enforcement and intelligence efforts, is a lazy solution. It's a way to cover up for a failure to do their jobs with the already quite powerful tools they have at their disposal.

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Trump Transition Website Has Some Copyright Problems -- Both In Copying Content & In Claiming Copyright

from the make-plagiarism-great-again dept

By now, lots of people within the Donald Trump campaign have admitted that even they didn't really expect to win -- and thus they're scrambling to get things in order to actually, you know, run the damn country. That includes the transition website, GreatAgain.gov, which (to their credit) the Trump team did get up pretty quickly. Of course, some of the reason they were able to do that was, apparently, that they just copied a whole bunch of text from another website, Partnership for Public Service's Center for Presidential Transition. Now, that site is pretty good, and it's certainly topical, seeing as the whole project is designed to do exactly this: help Presidents transition power. But that doesn't mean that a campaign is just supposed to copy the website wholesale.

And, yet, the Trump campaign did exactly that. If the Center were so inclined, it could argue that this is pretty blatant copyright infringement (its website says that the content is covered by copyright, and it doesn't seem to use an open license like Creative Commons, even though it probably should). There is, at least, a strong argument of fair use here, given the nature of what's being done here -- but it's not exactly a slam dunk. Of course, it also leads to some oddities, because, in the rush to copy, the Trump campaign seems to have left in references to the Center itself or charts that weren't copied as well:

One post, titled "Help Wanted: 4,000 Presidential Appointments," refers to a "chart below" — but the version on Trump's site has no chart. On the center's website, those lines are followed by a detailed interactive graphic showing the positions requiring Senate confirmation in the departments of Justice and State.

Another page on Trump's site, titled "The Offices and Agencies Supporting the Transition," is exactly the same as a page on the nonprofit's site — including a reference to "our own Center library." Both versions link to the nonprofit's online resource.

On the nonprofit group's site, the two posts are accompanied by the name of the Partnership for Public Service staffer who wrote them. There is no such attribution on the Trump site.

But that's not the only copyright problem here. There's also the fact that GreatAgain.gov has its own copyright notice, in which it is using a Creative Commons license -- and specifically the Creative Commons Attribution 4.0 license, which is pretty permissive. But, of course, it can't actually claim copyright on the Center's material that it just up and copied.

And then there's the separate question of can the Trump transition team actually claim any copyright at all? After all, as we've discussed many times, works of the federal government are not subject to copyright protection. But... is the transition site a work of the federal government? That seems like a pretty big gray area, though there's a strong argument that it's not. Yes, the website is hosted on .gov, and everyone knows these people will be the federal government in a few months, they're not technically part of the federal government yet. And given that copyright law already allows the federal government to hold the copyright on works created by outside parties and then assigned to the federal government, it seems most likely that the transition team would be seen as outside the federal government for now.

Of course, it's unlikely that any of this will matter. The Center for Presidential Transition doesn't seem that concerned about the copying, and one hopes that there aren't going to be any issues concerning the copyright status of the transition website, but since there has basically been zero discussion at all about the new administration's position on copyright, watching how it handles these kinds of situations is important.

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