Brindle

See Something, Say Something (UK Edition) has arrived! In the wake of terrorist attacks, local law enforcement are urging people to report "suspicious" activities. There's a long list of things to be on the lookout for, but most notable is the call to view certain internet use as suspicious, as Joseph Cox reports.

Police in the capital have reportedly been handing out leaflets listing what authorities deem as suspicious activity, in the hope that vigilant community members can continue to provide helpful information to law enforcement. Perhaps, in a sign of how online communities play an increased role in radicalization, the leaflet specifically points to use of the dark web as a potential link to terrorism.

"Be aware of what is going on around you—of anything that strikes you as different or unusual, or anyone that you feel is acting suspiciously—it could be someone you know or even someone or something you notice when you are out and about that doesn't feel quite right," another version of the leaflet, which is part of a national campaign and not London specific, reads.

Specifically, it asks citizens to report someone "visiting the dark web or purchasing unusual items online." Not exactly the sort of thing one's likely to catch shoulder-surfing. The leaflet also recommends reporting people for engaging in suspicious photography -- something that's worked out oh so well here in the US.

As Cox points out, tying terrorism to dark web use is kind of pointless. While the dark web is no doubt used by some terrorists, it certainly isn't where most of their activity takes place.

[M]uch of the communication between Islamic State supporters takes place on social media, such as Telegram. And the group's and supporters' propaganda videos are often distributed on everyday social network sites.

What an "education" campaign like this has the potential to do is turn any deviation from normal web use into something inherently suspicious. If law enforcement likes chasing down worthless tips, depicting things non-terrorists do as terrorist-centric is a good way to get that ball rolling.

I don't doubt the public can play a part in preventing terrorist attacks, but the leaflet asks citizens to become intrusive extensions of the government. Most citizens aren't going to know whether their friends and neighbors surf the dark web, much less have any idea if they're "carrying out suspicious transactions on their bank account." The upshot will be a generalized heightened level of suspicion that will most likely manifest itself as expressions of citizens' inherent biases and bigotry.

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Here on Techdirt we've written much about the way Western pharma companies fight for their "right" to charge unaffordable prices for medicines in emerging and developing economies. In particular, they routinely take governments and local generic suppliers to court in an attempt to shore up highly-profitable monopolies on life-saving drugs. But to be fair, it's not only poorer people who are dying as a result of Big Pharma's desire to maximize profits: Western drug companies are equally happy to charge even higher prices in richer countries -- notably in the US. That's old news. But there is a pharmaceutical saga unfolding that manages to combine all the worst aspects of this kind of behavior, and to throw in a few new ones.

It concerns something really exciting and important: a vaccine that shows great promise against the devastating Zika virus, which can cause microcephaly, blindness, deafness, and calcification of the brain in children whose mothers were infected during their pregnancy. If effective, such a vaccine could be a tremendous boon not just for developing countries, but for Western ones too, since the Zika virus has already begun to spread in the US, and Europe. The vaccine was developed at the Walter Reed Army Institute for Research, and the Department of the Army funded its development. Great news, you might think: the US public paid for it, so it's only right that it should have low-cost access to it. Moreover, as an act of compassion -- and to burnish its international image -- the US could allow other countries to produce it cheaply too. But an article in The Nation reports that the US Army has other ideas:

the Army is planning to grant exclusive rights to this potentially groundbreaking medicine -- along with as much as $173 million in funding from the Department of Health and Human Services -- to the French pharmaceutical corporation Sanofi Pasteur. Sanofi manufactures a number of vaccines, but it's also faced repeated allegations of overcharges and fraud. Should the vaccine prove effective, Sanofi would be free to charge whatever it wants for it in the United States. Ultimately, the vaccine could end up being unaffordable for those most vulnerable to Zika, and for cash-strapped states.

The Knowledge Ecology Institute (KEI), led by Jamie Love, made a reasonable suggestion to ensure that those most at need would have access to the drug at a reasonable price. KEI asked that, if Sanofi does get an exclusive deal, it should be obliged to make the vaccine available at an affordable price. The Army said it lacked the ability to enforce price controls, but it would ask those nice people at Sanofi to commit to affordable pricing on a voluntary basis. According to The Nation, those nice people at Sanofi refused. Speaking of nice people at Sanofi, the article notes the following:

Sanofi's record also includes a number of controversies related to its pricing practices, from a $190 million fine to settle charges that it defrauded Medicare and other government programs, to a $109 million fine to settle charges that it illegally provided product kickbacks to doctors. In 2014, a whistle-blower alleged the company engaged in another kickback scheme and the destruction of legal evidence. KEI maintains a comprehensive list of Sanofi's fraud fines, including the latest: a $19.9 million settlement, reached this April, for overcharging the Department of Veterans’ Affairs.

When there is an entire Web page dedicated to listing Sanofi's problems going back to 2009, you really have to wonder why the US Army is so keen to give the company a monopoly on this promising new treatment. The usual argument for the sky-high prices of drugs is that firms must be rewarded for taking on the financial risk of drug development, otherwise they won't proceed, and the world would be the poorer. Except, of course, in this case that risk was entirely borne by the US public, which paid for the early stage development of the vaccine with their taxes. So Sanofi risked nothing, but now looks likely to reap the benefits by being allowed to price the vaccine out of the reach of the people who most need it. You might think there ought to be a law against this kind of behavior. It turns out that there is:

KEI's Jamie Love pointed out that under the Bayh-Dole Act of 1980, it is already illegal to grant exclusive rights to a federally owned invention unless the license holder agrees to make it available at reasonable pricing. But that provision has rarely, if ever, been enforced.

Now would be a really great time to start enforcing that law.

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

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Back when Verizon first began expressing interest in pivoting from broadband duopolist to media and advertising, you might recall that it launched a short-lived technology blog named Sugarstring. Sugarstring quickly made headlines for all the wrong reasons however, after it was revealed that Verizon was banning any new hires from writing about hot-button subjects like net neutrality, or the fact that companies like Verizon and AT&T are now bone-grafted to the nation's intelligence and surveillance apparatus.

Sugarstring is long-since dead, replaced in large part by Verizon's acquisitions of Yahoo and AOL, which also brought Huffpo, Engadget, and Techcrunch under the Verizon umbrella. And while Verizon itself has been busy using fake reporters to blatantly lie about the company's ongoing role in killing net neutrality, there's no indication (yet) that the company has pressured any of its own news outlets to quiet down on the subject. In fact, we've noted previously that some of the best reporting on net neutrality in recent months has originated at TechCrunch (this piece in particular is worth a read).

But while Verizon hasn't yet tried to get its own news outlets to quiet down on net neutrality, other now-Verizon-owned companies that used to be very active on the subject have gone dead quiet. Case in point: Tumblr, which was an integral ally in the SOPA/PIPA fight and an outspoken protector of net neutrality, is now utterly radio silent as FCC boss Ajit Pai attempts to kill the popular consumer protections. Insiders at the company this week expressed their concern to the Verge that Verizon is pressuring CEO David Karp to keep his mouth shut on the subject:

"Now, multiple sources tell The Verge that employees are concerned that Karp has been discouraged from speaking publicly on the issue, and one engineer conveyed that Karp told a group of engineers and engineering directors as much in a weekly meeting that took place shortly after SXSW. “Karp has talked about the net neutrality stuff internally, but won’t commit to supporting it externally anymore,” the engineer said. “[He] assures [us] that he is gonna keep trying to fight for the ability to fight for it publicly.” Karp did not respond to four emails asking for comment, and neither Yahoo nor Tumblr would speak about the matter on the record."

Granted Karp may just have toned down the company's rhetoric voluntarily to avoid ruffling feathers during the transition. And obviously any time a smaller company gets acquired by a larger conglomerate (especially from the historically droll and stodgy telecom sector) you'll see a major culture shift that often isn't for the better. Still, Verizon's positions on subjects like net neutrality are so hostile, Tumblr employees have grown increasingly uneasy in recent weeks, which could lead to an exodus of talent at the company:

“Some of our previous stances on issues that are really important to Tumblr employees and its community are being silenced,” said the former employee. “We've been really noisy about things like net neutrality in the past. We asked the new Head, Simon Khalaf, about it in an all-hands a few weeks ago and he said it was ‘not his problem’ and ‘above his pay grade.’” A current employee and another former employee corroborated this account."

It's unfortunate to have lost Tumblr's voice in the net neutrality fight, especially given that other industry giants like Google and Netflix have similarly gone mute on the subject, leaving consumers and small businesses increasingly alone in fighting for something vaguely resembling an open and healthy internet. And while you'd like to think Verizon is above trampling the editorial independence of former AOL and Yahoo news outlets, Verizon's Sugarstring experiment should make it pretty clear that ham-fisted attempts at censorship aren't exactly out of character for the telco.

For now, however, Verizon appears content to try and use entirely fake journalists like "Jeremy" to spread misinformation on net neutrality, as evident by this recent, comically misleading video by the company:

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Prosecutors seeking to justify a lengthy sentence (and the abuses that had already occurred) in the Chelsea Manning case insisted the documents she leaked had caused serious damage to those exposed by them. They said this even as multiple government officials admitted the most the United States had suffered was some embarrassment.

Jason Leopold has obtained an official assessment of the Manning leaks which shows the same thing: no real damage was done.

Regarding the hundreds of thousands of Iraq-related military documents and State Department cables provided by the Army private Chelsea Manning, the report assessed “with high confidence that disclosure of the Iraq data set will have no direct personal impact on current and former U.S. leadership in Iraq.”

This doesn't necessarily mean no damage was done. But the report confirms the United States didn't suffer from the Manning leaks.

The report also determined that a different set of documents that was published the same year, relating to the U.S. war in Afghanistan, would not result in “significant impact” to U.S. operations. It did, however, have the potential to cause “serious damage” to “intelligence sources, informants and the Afghan population” and U.S and NATO intelligence collection efforts.

The report [PDF] also notes investigators located the encrypted Wikileaks "insurance" file -- one Julian Assange says he'll release the key to if he feels his ability to disseminate information is threatened. (Stay tuned!) The assessment concludes it's unlikely this file contains anything damaging either.

Based on public statements by Assange, the IRTF assesses with moderate confidence that the "Insurance File" does not contain any USG data beyond what the IRTF has already reviewed.

The document dates back to 2011. It may have been some use in Manning's defense during the trial (a defense severely limited by the nature of espionage proceedings). As Leopold notes, Manning was not allowed to view this report. Instead, she was forced to fight the charges blind while prosecutors cherry-picked portions of the report to bolster their arguments.

Not that any of this matters at this point. The damage has already been done to Manning's life. And Manning's prosecution likely serves as a low-key chilling effect to dissuade potential leakers and whistleblowers from publicly humiliating the US government. But it does show the government is willing to use evidence that doesn't actually exist to secure a conviction.

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The protections of the Fifth Amendment are running up against technology and often coming out on the losing end. Court rulings have been anything but consistent to this point. So far it appears password protection beats fingerprints, but not by much.

It all comes down to the individual court. Some view passwords as possibly testimonial in and of themselves, and side with defendants. Others view passwords as something standing in the way of compelled evidence production and punish holdouts with contempt of court charges.

That's what's happening to a Florida man suspected of child abuse. He claims he's given law enforcement his phone's password already, but prosecutors claim the password failed to unlock his phone. They believe his phone holds evidence of the physical abuse alleged -- a claim that seems a bit less believable than those made about child porn viewers and drug dealers.

The court, however, has sided with prosecutors.

A Hollywood man must serve 180 days in jail for refusing to give up his iPhone password to police, a Broward judge ruled Tuesday — the latest salvo in intensifying legal battles over law-enforcement access to smart phones.

Christopher Wheeler, 41, was taken into custody in a Broward Circuit Court, insisting he had already provided the pass code to police investigating him for child abuse, although the number did not work.

All that can be said for certain is prosecutors still don't have an unlocked phone. As prosecutors and this judge see it, the only explanation is that Wheeler lied. That earns him six months of jail time. Maybe Wheeler should have said he couldn't remember.

As Wheeler was jailed Tuesday, the same issue was unfolding in Miami-Dade for a man accused of extorting a social-media celebrity over stolen sex videos.

That man, Wesley Victor, and his girlfriend had been ordered by a judge to produce a pass code to phones suspected of containing text messages showing their collusion in the extortion plot.

Victor claimed he didn't remember the number. He prevailed.

This would be the same judge who determined turning over a password had no Fifth Amendment implications. However, the court found it plausible the defendant might not be able to remember the password to a phone he'd last used over ten months ago. But the ruling doesn't necessarily say the defendant is telling the truth. It only goes so far as saying it's almost impossible to prove he's lying. Given the gap between the phone's seizure and the demand for a password, it's a plausible claim.

His co-defendant made no such claim. Like Wheeler above, Victor's girlfriend handed over a password but it didn't work. The court has asked her to explain why. Given the judge's earlier Fifth Amendment determination, it's safe to assume Hencha Voigt will be facing jail time if the explanation isn't to the judge's liking.

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Pennsylvania has some of the worst civil asset forfeiture laws in the country. At the top of list of perverse incentives? 100% of proceeds go to the agency that seized the property. As a result, all sorts of abusive forfeitures occur. In one case, law enforcement seized a couple's house because of a single $40 drug sale by their son.

Legislators in Pennsylvania haven't made much of dent with their reform efforts. Attempts have been made but every bill presented has been gutted by law enforcement lobbyists before passage. Nothing has made its way to the governor's desk yet, which is just as well because the disemboweled bills are reform-in-name-only.

The courts could play a part in curtailing forfeiture abuse but the system is stacked against property owners. In forfeiture cases, they're not even invited to the judicial party. The state files a suit against the property, rather than the owners, and proceeds from there. Far too many courts in this nation have punted on issues like this, kicking them back to legislators to fix the problems. And far too many legislators haven't had the strength to stand up against powerful law enforcement lobbyists.

Fortunately, the Pennsylvania Supreme Court is raising the bar just a bit for local law enforcement. Granted, the bar was already laying on the ground when it grabbed it, but some upward movement of any form is appreciated. C.J. Ciaramella of Reason reports:

Four years after the Philadelphia District Attorney seized her house without ever charging her with a crime, a 72-year-old grandmother has prevailed at the Pennsylvania Supreme Court, where justices strengthened protections for property owners against civil asset forfeiture.

In a unanimous opinion issued last Thursday, the Supreme Court tightened the rules for seizing property, ruling that, although police and prosecutors have the authority to take property used in illegal activities, there must be clear evidence that the property owner knew of and agreed to the crimes.

The opinion [PDF] does an incredibly deep dive into the background of the case, as well as the amount of evidence (hardly any) the state must provide to take property away from people who haven't been charged with crimes. The attenuation in this case was minimal: a few controlled marijuana buys ($140 total) from a 72-year-old grandmother's tenant: her 50-year-old son.

The court's decision relies partly on something only slightly related to the act of civil asset forfeiture: excessive fines. Weighing the value of the house seized against the criminal act, the court finds the punishment does not fit the crime, at least in terms of American dollars.

In Pennsylvania, the gross disproportionality test is applicable to all punitive forfeitures, including civil in rem proceedings. In this regard, the following three, non-exhaustive, factors have been considered: the penalties that the legislature has authorized compared to those to which the defendant was subjected; whether the violation was isolated or part of a pattern of misbehavior; and the nature of the harm caused by the defendant.

Citing Justice Clarence Thomas' recent comments in a forfeiture case in front of the Supreme Court, the court actually calls the idea of "guilty property" a false assertion -- at least not without significant narrowing of that definition.

Based upon the rich history of in rem forfeiture both in England and our country, and the clear demarcation between criminal in personam proceedings and those brought civilly in rem, as well as more recent pronouncements by the United States Supreme Court, it is evident to us that the “guilty property” fiction which serves as the basis for civil in rem forfeiture logically demands that the property sought to be forfeited be an instrumentality of the offense.

[...]

In sum, an analysis of whether a civil in rem forfeiture violates the Eighth Amendment requires a threshold inquiry into whether the specific property sought to be forfeited is an instrumentality of the underlying offense. If the property sought to be forfeited is an instrumentality of the underlying offense, the inquiry continues to an examination of proportionality. If not, the forfeiture cannot withstand Eighth Amendment scrutiny and the inquiry ends.

Then the court gets down to dealing with the problems inherent to civil asset forfeiture, a process that allows law enforcement to enrich itself without having to secure criminal convictions.

The potential harshness of a forfeiture against a property owner with no alleged criminal conduct, or minor culpability, however, must be recognized in any excessiveness inquiry, and we find doing so comfortably fits within the United States Supreme Court’s gross disproportionality test. Therefore, we must be wary of forfeiture imposing greater punishment than appropriate for the underlying crime itself. Indeed, a civil in rem proceeding can be viewed in one way as a “super criminal” proceeding, in which a property owner is punished through the seizure of his or her property, but without all the safeguards associated with criminal proceedings. While Fourth and Fifth Amendment protections are applicable to civil forfeiture proceedings, there is no right to counsel for individuals subjected to forfeiture proceedings.

In balancing personal property rights and the deterrent effect of forfeiture, the court says law enforcement must apply the law with restraint and the judicial system must act more rigorously when handling these cases. The loss of a home is a life-changing event for those on the end of a forfeiture claim.

In Pennsylvania, as elsewhere, the home is an especially significant type of property. The loss of one’s home, regardless of its monetary value, not only impacts the owner, but may impact other family members, and one’s livelihood. Indeed, the home is where one expects the greatest freedom from governmental intrusion; it not only occupies a special place in our law, but the most exacting process is demanded before the government may seize it.

It goes on to point out the trial court failed to examine this as thoroughly as it should have, especially given the impact it would have on the elderly owner -- and it gave far too much credence to the government's arguments.

As noted by the Commonwealth [appeals court], various parts of the record were not considered, or at least addressed, by the trial court. Specifically, the court did not address Appellee’s past dealings with her son when she discovered drug usage; her contention that she did not see any drugs in her home or van; her explanation that she only allowed her son to return home due to her belief that he had stopped using illegal drugs; her assertions that, if she had found drugs in her home, she would have evicted her son; that no neighbors or the block captain reported knowledge of drug dealing from the home or problems with Appellee’s son; that she requested from police some proof that her son was selling drugs, but that no proof was ever proffered; and the failure of the police to arrest her son after executing a search warrant on the home in November 2009. All of these circumstances should have been accounted for and considered by the trial court in rendering its decision. Furthermore, the prospect of evicting Appellee’s son needed to be contemplated in the context of an elderly widow with serious health challenges who relied upon her son for living assistance. The trial court should have considered what was reasonable under these circumstances.

This isn't a reform effort or a drastic rereading of the state's forfeiture statutes. It's a warning from the state's highest courts that lower courts are no longer welcome to turn in cursory reviews of forfeiture claims. As it points out in a footnote, it's not setting new precedent: it's just letting everyone know the law will be interpreted far more precisely than it has been.

In requiring such review, we are not upsetting the statutory burdens of proof found in the Forfeiture Act as asserted by the Commonwealth. Rather, we are mandating compliance with that statute and our case law, and ensuring that innocent property owners are not dispossessed of what may be essential possessions — even though not convicted of or even charged with a crime — without rigorous scrutiny by the courts.

This is the way it always should have been. It's just taken until 2017 to hit critical mass in the Pennsylvania court system.

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If you thought the monkey selfie lawsuit couldn't get any weirder, well, you underestimated the monkey selfie case. If you don't remember, the details of this case go back a few years to when a photographer named David Slater got some press attention by claiming that a macaque monkey in Indonesia had come up to his camera, that was on the ground, and taken some selfies. As we explained ages ago, there is no copyright in such photos, because the copyright law in the US, in the UK (where Slater is from) and in Indonesia (where the monkey is) makes it clear that copyright is only available for human creations. Slater has long disagreed about this (and we've received some threats here and there, and he's trashed us personally for claiming the lack of copyright in those images). But... the lawsuit here was a bizarre twist on that. Slater wasn't suing anyone... instead, PETA, the group known more for its stupid publicity stunts than anything it's actually done to help animals, decided to sue Slater. PETA argued that it should hold the (non-existant) copyright on behalf of the monkey. Just because. And, on this, we agree with Slater that this is insane and an abuse of the legal system.

PETA is represented by a big time law firm (Irell & Manella) that apparently doesn't mind looking extraordinarily foolish for claiming that some totally unrelated third party could hold a copyright in a photograph for which no copyright can exist. Even worse, the lawyer from Irell & Manella -- again, a big time, well-regarded firm on copyright issues -- actually argued that there has to be a copyright in the image, apparently ignoring that things can be in the public domain. To make its case seem marginally stronger, PETA initially teamed up with a primatologist with a history of studying macaques, named Antje Engelhardt. This is how we found out that the macaque in question is supposedly named Naruto (though there had been some dispute about the sex of the macaque). Either way, the judge quickly and correctly pointed out that monkeys can't get a copyright and thus PETA and Engelhardt have no case at all (leaving aside the separate question of why they should get to grab the copyright should it actually exist... which, again, it does not).

PETA, never one to let a good stupid publicity stunt go to waste, then appealed and put forth more nonsense about how macaques are, like, super smart, which has nothing to do with whether or not it can hold a copyright (it can't).

But... things are getting even more bizarre. A year ago, soon after the appeals process began, Engelhardt dropped out of the case with no explanation. There was just a filing saying that "Dr. Englehardt will not continue as a next friend to appellant in this proceeding," leaving PETA alone as the supposed "Next Friend" of Naruto. But that seems tough to justify since in the original case, PETA leaned heavily on Engelhardt's experience to justify it's possible standing as a "next friend" of Naruto:

Since 2006, Dr. Engelhardt has served as the co-head of one of the foremost scientific projects studying the ecology, reproductive biology, and social systems of Sulawesi crested macaques in their natural habitat and promoting their conservation and protection. She is one of the world’s foremost experts on the Macaca nigra species.

Dr. Engelhardt and those with whom she works have known, monitored, and studied Naruto since his birth. Naruto and his matrilineal family are an integral part of the crested macaque population Dr. Engelhardt studies. She has the scientific and professional expertise, and commitment to consult and cooperate with PETA on behalf of Naruto, so that the proceeds from the administration of Naruto’s copyright in the Monkey Selfies are used for the protection of Naruto, his community and their habitat.

Seems kind of key to have Engelhardt involved. But, even without her, the case has continued to move forward and is set for oral arguments next month. But, last week, Slater's lawyers noted that the relationship between PETA and Engelhardt may be relevant, because Engelhardt is now facing criminal charges in New Jersey for harassing PETA's General Counsel (who's name is also a part of the case) and for trespassing on his property. From the complaint:

If you can't see that, the relevant portion reads:

... the named defendant... did... enter into [REDACTED] of Jeffery Kerr, a place to which notice against trespass was given by actual communication to the defendant knowing that she/he was not licensed or privileged to do so, specifically by ringing the doorbell of the residence, the owner telling subject to leave the residence, and the subject walked into the backyard of the residence.

[...] with purpose to harass another, make or cause to be made a communication or communications in a manner likely to cause annoyance or alarm, specifically by sending an text message stating that she was gonna stop by the victim's resident at a known time and date.

Now, admittedly the complaint's wording is a bit weird (yes, it literally says "gonna stop by"), and we might question the Constitutionality of a law that says you can't "cause annoyance" to someone, it certainly would appear that Engelhardt and PETA... are not thrilled with one another, and Engelhardt is now facing criminal charges because of it. As Slater's lawyers note:

Regardless of the merits or outcome of the criminal case against Dr. Engelhardt, its very existence is a relevant consideration on whether PETA can adequately represent the interests of Naruto, notwithstanding the documented animosity that has developed between PETA and Dr. Engelhardt.

And, thus, this already extraordinarily bizarre case gets that much more bizarre.

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The debate over the renewal of Section 702 surveillance continues, but a group of legislators is looking to short-circuit the discussion. Senator Tom Cotton and a whole bunch of Republicans have introduced a bill that would ensure this discussion is never raised again. [h/t Julian Sanchez]

Senator Tom Cotton (R-Arkansas) along with Senators Richard Burr (R-North Carolina), Jim Risch (R-Idaho), Marco Rubio (R-Florida), Susan Collins (R-Maine), Roy Blunt (R-Missouri), James Lankford (R-Oklahoma), John Cornyn (R-Texas), John McCain (R-Arizona), Thom Tillis (R-North Carolina), Pat Roberts (R-Kansas), Lindsey Graham (R-South Carolina), John Thune (R-South Dakota), and David Perdue (R-Georgia) today introduced legislation making Section 702, and the entirety of Title VII, of the Foreign Intelligence Surveillance Act (FISA) permanent.

This followed Cotton's statements on the Senate floor, where he used recent attacks in the UK to make incoherent points about domestic security.

The attacks in London last weekend exposed in a matter of minutes just how vulnerable our free societies truly are. All it takes is a van or a knife and an unsuspecting bystander to turn a fun night out on the town into a horrific nightmare. Course, we shouldn't need any reminders, but let me give one yet again: We are at war with Islamic extremists. We have been for years, and, I'm sorry to say, there's no end in sight. It's easy to forget this as we go about our daily lives, but our enemies have not-and they will not. They've never taken their eyes off the ultimate target either: the United States.

Attacks in other countries are apparently just pre-game warmups for terrorists. The only way to prevent a domestic attack is to never ask questions about Section 702 again, apparently. If we don't trust our government to respect our privacy and civil liberties, it's not because the NSA constantly abused its Section 702 collection programs (and then hid these abuses from its oversight). No, the real villain here is the man who exposed this abuse to the general public.

Unfortunately, this and other programs were distorted in the public debate by a traitor, disgruntled ex-NSA contractor Edward Snowden, who now sits in the warm embrace of Russian intelligence services. And ever since his very damaging leak of classified material a few years back, many Americans have grown doubtful of these programs-and section 702 in particular.

I love it when someone describes the dumping of internal documents as "distorting." It underlines the speaker's desire to have the Great Unwashed remain in the dark while the government expands its collection capabilities and surveillance powers.

Cotton's Senate statement goes on to make it clear that nothing but a "forever" renewal will do, while handwaving away NSA abuses with meaningless phrases about privacy protections.

It's true that this program occasionally does collect information about American citizens-and that will be true of any attempt to stop any kind of homegrown terrorism. But if you're concerned about protecting Americans' privacy rights, then you should support extending this program. It puts in place a host of privacy protections to scrub raw intelligence of any unnecessary identifying information. To allow this program to expire on December 31 would hurt both our national security and our privacy rights.

That's why today I'm introducing a bill that would reauthorize section 702 permanently, as is, with no changes.

If nothing changes, then the "host of privacy protections" simply don't exist. The NSA itself made the biggest step towards fixing its routine, decade-long run of privacy violations by dropping the "about" program. A clean re-auth adds nothing to anyone's privacy. A forever re-auth would ensure this status quo in perpetuity.

As astounding as Cotton's contradictory assertions are, they're topped by Sen. Lindsey Graham. Earlier in the day, Graham was reported to have stated he would not support the reauthorization of this surveillance program because it could be "politically manipulated." And yet his name appears in the list of legislators pushing this bill.

So here we are, with the debate just officially beginning in the Senate and already surveillance proponents are making it clear they're not interested in discussing Section 702. Ever.

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This is a video of a guy crashing his alleged $35,000 custom-built twin turbine R/C jet plane. The video says it's 1/3 scale but it looks like it's actually smaller than that. Kind of like how my Tinder profile says I'm 6' 1" but when I show up for a date I'm actually 5'2" and wearing ski boots. Wait -- where are you going? "Your whole profile is a lie." I didn't lie about my eye color! "You said they were brown with red laser beams." God, you're right, I don't deserve companionship. Keep going for the crash and burn. Thanks to Rifter, who agrees any R/C plane that costs $35,000 better be able to carry a human.

Congress agrees (with who, I don't know): to save our nation's children from the scourge of sexting, we much incarcerate our nation's children. As Elizabeth Nolan Brown reports for Reason, the way to salvation sext-free kids runs through our nation's prison pipelines, where they'll be rehabilitated through the power of life-crippling criminal sentences and accelerated to adulthood via actual sexual assault at the hands of prisoners/guards.

Teens who text each other explicit images could be subject to 15 years in federal prison under a new bill that just passed the House of Representatives. Rep. Sheila Jackson Lee (D-Texas), ranking member of the House Judiciary Subcommittee on Crime, has called the measure "deadly and counterproductive."

[...]

Introduced by Rep. Mike Johnson (R-Louisiana) in March, the "Protecting Against Child Exploitation Act of 2017" passed the House by an overwhelming majority last week. Only two Republicans—Reps. Justin Amash of Michigan and Thomas Massie of Kentucky—voted against the bill, along with 53 Democrats.

Yes, you read that right. The bill would add mandatory minimums to child pornography production -- even if both participants are minors. Mandatory minimums would also apply to thoughtcrime. Rep. Bobby Scott -- one of the few opponents of the bill -- was the first to point out that this draconian child porn law would criminalize consensual behavior between teenagers. He also pointed out that the bill seeks to punish "solicitation," which takes this past actual production of forbidden images into the realm of the hypothetical.

What's more, "the law explicitly states that the mandatory minimums will apply equally to an attempt or a conspiracy," Scott noted:

That means if a teenager attempts to obtain a photo of sexually explicit conduct by requesting it from his teenage girlfriend, the judge must sentence that teenager to prison for at least 15 years for making such an attempt. If a teenager goads a friend to ask a teenager to take a sexually explicit image of herself, just by asking, he could be guilty of conspiracy or attempt, and the judge must sentence that teenager to at least 15 years in prison.

As Brown details in her thorough report on the bill, the proposed law is supposed to close a "loophole" that prevented some child porn prosecutions. At least that's what its supporters are saying. In reality, the loophole isn't a loophole, but rather a bad decision made by prosecutors.

19-year-old Anthony Palomino-Coronado was accused of molesting his 7-year-old neighbor repeatedly over the course of several months. In investigating the case, police discovered one photo of the abuse that had been taken and subsequently deleted from Palomino-Coronado's phone.

Combined with the victim's testimony, the photo should have guaranteed state police little trouble in trying to prosecute Palomino-Coronado for sexual abuse of a child. But federal prosecutors preempted such a prosecution by deciding to instead try Palomino-Coronado in federal court for producing child pornography.

It was a bad call—the case "could have been brought in state court and the defendant would have been subjected to extremely long, lengthy prison time," Rep. Scott noted during floor debate. But federal law against producing child pornography requires a minor to have been recruited "for the purpose of" producing photo or video. In this case, the court concluded, the long-term pattern of abuse, combined with the fact that only one explicit image was ever taken (and subsequently deleted), meant the perpetrator's purpose was not producing child porn but, rather, his own sexual gratification. If the feds had simply let the state handle the case as one of sexual abuse, Palomino-Coronado would probably be behind bars right now; instead, they overreached with the child porn charge, and now he's free.

To try to make amends for this prosecutorial blunder, the DOJ is pushing to have this terrible new law enacted. Not that there's any lack of supporters for the idea of tossing teens in jail. Sponsor Mike Johnson cited noted legal expert, the apostle Paul.

Johnson, a freshman congressman (and vocal Trump supporter), dismissed opponents' concern that the measure would be used in ways he didn't intend it to be used. "In Scripture, Romans 13 refers to the governing authorities as 'God's servants, agents of wrath to bring punishment on the wrongdoer,'" he said in response to their floor concerns. "I, for one, believe we have a moral obligation, as any just government should, to defend the defenseless."

My guess is Johnson's definition of "defenseless" doesn't cover sexting teens -- not if he's using Biblical authority to shore up his shaky legal assertions. Other supporters are equally as naive, claiming federal prosecutors won't use the law to prosecute sexting teens, blithely ignoring the fact that child porn laws have routinely been misused to do exactly that.

This is the road to hell legislators love to travel. And why not? It's routinely re-paved with good intentions and has lanes wide enough that even the most obtuse legislator can travel comfortably. When it comes to the nation's youth, nothing's too good for them. Our nation's lawmakers are ready to grant them them longer minimum sentences and more ways to avail themselves of one of our nation's oldest traditions: doing federal time on trumped-up charges. After all, you can't be for the children unless you're willing to damn the children. For their own good, of course.

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Over the last few months, a battle has played out over what will happen to the 6,700 page "CIA Torture Report" that the Senate Intelligence Committee spent many years and approximately $40 million producing. The report apparently reveals all sorts of terrible details about how the CIA tortured people for little benefit (and great harm in other ways) and lied to Congress about it. While a heavily redacted executive summary was released, there is apparently significantly more in the full report. And if we, as a country, are to actually come to terms with what our nation did, this report should be made public and there should be a public discussion on our past failings.

Instead, it looks like the report is going to be returned and destroyed. Senator Richard Burr has been against the report from the beginning, and ever since he took over the Senate Intelligence Committee he's demanded that the administration return the report, arguing (totally against all evidence) that it was a work product of the Senate Intelligence Committee not meant for distribution to the executive branch. Of course, that's the exact opposite of what Senator Dianne Feinstein -- who spearheaded the effort to create the report -- has said. The intention was to understand what the CIA did and make sure the same mistakes were not repeated. And, in fact, Feinstein asked the executive branch agencies to put the document into their own records -- which would make the report subject to a FOIA request.

The previous administration did not give the report back to Burr, but did block those in the executive branch from reading it or from putting it into their records -- which has so far stymied FOIA requests. And now, the Trump administration has started returning the report to Burr to destroy:

The Trump administration has begun returning copies of a voluminous 2014 Senate report about the Central Intelligence Agency’s detention and interrogation program to Congress, complying with the demand of a top Republican senator who has criticized the report for being shoddy and excessively critical of the C.I.A.

The Trump administration’s move, described by multiple congressional officials, raises the possibility that copies of the 6,700-page report could be locked in Senate vaults for good — exempt from laws requiring that government records eventually become public. The C.I.A., the office of the Director of National Intelligence and the C.I.A.’s inspector general have returned their copies of the report, the officials said.

This is problematic on many, many levels. Feinstein had even asked Obama to declassify the report, before leaving office -- something he refused to do. Feinstein is not at all happy about this turn of events.

“I’m concerned and disappointed that Chairman Burr demanded the return of copies of the classified edition of the torture report. The fact that he would take this divisive action without notifying or consulting with the Democrats on the committee is a departure from the bipartisan nature of this committee. It’s particularly troubling he would take this divisive action while the committee is conducting its Russian investigation.

“The committee voted in March 2009 to initiate a report on harsh interrogation techniques used by the CIA on detainees during the Bush administration. After almost four years of hard work, the committee approved the report in December 2012. The CIA was afforded the opportunity to respond and where appropriate, changes were made and the CIA’s responses were included in the footnotes. The committee then voted to declassify and release the executive summary and the findings and conclusions in December 2014.

“Chairman Burr’s assertion that he, today, has authority over a final Senate report completed prior to him assuming the chairmanship is both alarming and concerning. This creates a dangerous precedent that a current chairman could question acts of previous congresses and countless historical reports and records and essentially nullify reports produced by a prior congress under a different chairman.

“No senator—chairman or not—has the authority to erase history. I believe that is the intent of the chairman in this case.

“I’m profoundly disappointed that CIA Director Pompeo would approve this action. Members, including myself, carefully questioned him during his confirmation process about his views on torture. He clearly stated his opposition to torture and made a commitment to read the full classified report. I very much doubt that he has had an opportunity to fulfill that commitment.

“The report is an important tool to help educate our intelligence agencies about a dark chapter of our nation’s history. Without copies of it, the lessons we’ve learned will be forgotten. The intelligence agencies have a moral, if not legal, obligation to retain every copy of this report for posterity.”

Senator Ron Wyden put out an even stronger statement:

“Attempts to erase history are the tactics of the insecure and the power hungry and have no place in a democracy. The torture report is a historical record that belongs to all Americans,” Wyden said. “This unprecedented move by Chairman Burr and the Trump administration could serve only one purpose -- to pave the way for the kind of falsehoods used to justify an illegal and dangerous torture program. For the sake of future generations of Americans, this report should be immediately returned to the government agencies who gave it up, disseminated widely within the government and most importantly, declassified for the American people.”

Assuming Burr gets back his copies and does, in fact, destroy them, there are still two possible other copies out there. The Trump administration (unlike the Obama administration) did, in fact, give a copy to the courts as was ordered by the judge in a case about the torture program. The other copy was apparently "preserved" in the Obama archives, where it will be kept for 12 years before it might be declassified. At this point that copy is, perhaps, the only chance that this detailed report won't be completely deleted from history.

Of course, the other possibility... is that someone along the way who had access to the report has kept a copy of it and decides to leak the report to the press. This would be doing a true service to history and help preventing future shameful episodes involving torture. Hopefully someone out there with access to the report -- and a conscience -- does the right thing.

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Back at the end of March, the Department of Homeland [in]Security issued rules stating that all electronics larger than a smartphone should be checked instead of kept in a carry-on on flights into the US from 10 airports or on 9 airlines from mainly Muslim countries in the middle east and north Africa. This was following claims by US and UK intelligence that terrorists are smuggling explosive devices in various consumer items to 'target commercial aviation'.

Not only does this not pass the smell test -- anyone looking to bring down an aircraft with explosive devices won't care if they're in the cabin or the hold: boom is boom. The idea that items are going to go through some sort of super-secret screening is laughable, when red-team penetration tests find it trivial to get prohibited items onto aircraft (including via people with no ticket who bypass security screenings). And, of course, airports already require carry-on electronics to be x-rayed, and often swabbed for explosive residue. What's more, I remember seeing 'explosives smuggled on board' hysteria since Pan Am 103 almost 30 years ago, where Czech explosive Semtex was suspected to be in everything from fake muesli to electronics following the use of just 12 ounces (340g) to blast a 50cm hole in the 747's hold.

A more "credible" theory is potential "cyber warfare" (a pox on that term). With electronics out of sight of the passengers after check-in, access to them is far easier for 'security services'. As well as allowing easy access to snoop on passenger electronics and data, there is a potential for far more nefarious actions in the tradition of Stuxnet.

Stuxnet was a worm that targeted a certain Siemens industrial control system primarily used by Iranian nuclear centrifuges. However, it spread via infected USB drives to computers, and from those computers to other USB drives, all the while using rootkits with compromised digital signatures to hide. It essentially used a digital version of '6 degrees of separation' to eventually infect its target. What better way to spread similar malware than to infect a bunch of computers on flights to the target country? It's not just laptops either, cameras need memory cards and are just as easy to infect. As a theory, it's got a lot to commend it, but that's beside the point, because, remember, this is about 'safety' and people not taking bombs into aircraft cabins.

So fast forward to the present, and while expanding the ban has been kicked about, a JetBlue flight has shown the incredible danger of requiring electronics to be put into bags that often are kicked about.

May 30th's JetBlue flight 915 (NY JFK to San Francisco) had to make an emergency landing in Michigan after a AA lithium battery in a backpack started to smoke. When it was noticed, the backpack was moved to the aircraft bathroom which presumably dislodged whatever was causing the short. Luckily that was enough to prevent the fire from getting started, which would have soon gotten out of control.

And therein lies the problem. Lithium battery fires are very dangerous, and one of the things that make them more dangerous than most other fires is that most of the things you'd do by instinct to put out a fire (smother it, put water on it) actually makes them worse. Realistically, the only way to deal with a lithium fire is to stop it before it starts, and while that happened this time, if it were in the hold we'd be looking at a downed Airbus A321 with 158 dead.

Airlines know this and have for a long time. In 2000, I tried to fly with 2 batteries in my checked baggage from the UK to San Francisco with Virgin, and to Las Vegas with TWA. The batteries, Hawker (now Enersys) SBS40's were 38Ah, 12v batteries (yes, you can easily start a car with them) and were packed safely into my checked baggage as well as being certified safe for air travel (they won't leak if tipped or punctured). Virgin had no problems, but TWA flatly refused, citing a risk of fire in the hold (and at 28lb/12.7kg each, carry-on wasn't an option)

Now bear in mind this is a battery designed for rugged use, puncture resistant and safe (which is why they were used in Battlebots entries, which is why I was taking them, for the Suicidal Tendencies team), in a fire-resistant case where the only available fuel might be some small amounts of hydrogen gas, and whatever items are around. Lithium batteries generally don't come in rugged fire-resistant cases, provide their own fuel, and worst of all, physical damage (such as heavy-handed baggage handlers) can cause such damage.

If you want a more specific example of the risks, just cast your minds back to last year and the Samsung note7. With just the potential for a fire with note7 battery, they were banned from aircraft for safety reasons. They weren't consigned to the hold, where they can cause problems without anyone noticing.

And it gets worse, Lithium-ion batteries are EVERYWHERE. Aside from the rechargeable AA and AAA batteries like the one that caught fire on flight 915, lithium batteries are in laptops and cameras. Here are some examples of lithium batteries I had to hand, that I'd take on a trip with me and have to check.

That's a laptop battery, a digital camera battery, a phone battery and a video camera battery (I have 4 of these). One of them is 10 years old, that's how long these batteries have been out there.

Any of these can cause an uncontrollable fire if mishandled (and sometimes, just from age). What's more, any of these devices wouldn't take much to rig with a short-range detonation using nothing more than their own battery as the bomb. A bomb which will pass all the cursory security checks because there are no obvious chemicals (RDX, TNT, etc) to detect.

As a policy to prevent bombings, it's not useless, it's actually WORSE than useless, as it makes it FAR easier to take down an aircraft with electronics, just by accident, let alone by design.

The only people who benefit from this policy were it to be enacted worldwide, would be the computer snoopers, and of course, the many thieves, pilferers, 5-finger-discount shoppers, and general low-life criminals that seem to be employed at most airports in their security/baggage handling/TSA departments. Anyone else is potentially flying corpse-class.

Now, some might say that in this case, having lithium-ion batteries of any kind on an aircraft -- whether in checked luggage or carry-on -- is a recipe for disaster, and that they should be banned in general. But what I'm saying is that they are more prone to fire through mishandling than other battery types, and that such a fire, once it has started and takes hold, is more difficult to get under control easily. Well-maintained, well-treated batteries are safe if they're kept in the cabin, as any incident can at least be quickly addressed, as the recent JetBlue incident showed. Requiring they be put into baggage that is dropped, thrown, punted, squished, molested, rummaged through and otherwise mishandled, before being packed tightly into an aircraft hold unattended means that damage leading to a fire is far more likely, and that fire is unlikely to be discovered – let alone extinguished – before it is too late for the safety of the aircraft.

And if you're wondering how to put out a lithium battery fire when started, the answer is to use a class-D fire extinguisher (which only works on metal fires) but in a pinch, salt (pun intended) or sand can be used. Good luck finding the former, or enough of the latter two at 43,000ft. In a pinch, you can use water in mist form to cool around the battery and bring its temperature down (this can take a LOT of water and time), while also isolating it from any other fuel where possible (which was done in this case). Again, this is not really feasible if the fire is in the hold. Here's a demonstration of extinguishing a laptop battery fire, and how even when prepared, and waiting for it, with an extinguisher at the ready, it can still take a minute or two to put it out. Most people would be tempted to stop once the flames go out, allowing for re-ignition.

Reposted from the Politics & P2P blog

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The thing about biometric scanning as a security practice is it is one of those things that sounds great. "Lock your phone with your fingerprint or facial scan", shout the manufacturers and security companies that came up with the scans. Well, shit, thinks the average person, if nobody else has my face I'm in the clear. Even when movies and television tackle the subject, the methods for breaking the biometric security typically involve convoluted plans and insane stunts so brazen they would make Danny Ocean's jaw drop.

The problem is that the hype around this tech is typically more effective than the tech itself. Fingerprint scanners are easily fooled and facial recognition software has been shown to be defeatable by, and I swear this is true, printouts of a person's face. That isn't security, it's a punchline. So, when Samsung and its security partner decide to pimp the iris-scanning security feature of the Galaxy S8 with language like "airtight" and suggestions that owners of the phone can "finally trust that their phones are protected", one would expect those claims to be backed up by strong technology.

It isn't.

Hackers have broken the iris-based authentication in Samsung's Galaxy S8 smartphone in an easy-to-execute attack that's at odds with the manufacturer's claim that the mechanism is "one of the safest ways to keep your phone locked."

The cost of the hack is less than the $725 price for an unlocked Galaxy S8 phone, hackers with the Chaos Computer Club in Germany said Tuesday. All that was required was a digital camera, a laser printer (ironically, models made by Samsung provided the best results), and a contact lens. The hack required taking a picture of the subject's face, printing it on paper, superimposing the contact lens, and holding the image in front of the locked Galaxy S8. The photo need not be a close up, although using night-shot mode or removing the infrared filter helps. The hackers provided a video demonstration of the bypass.

As they did in the previous facial recognition flaw post referenced above, some will, at this point, be diving for their keyboards to point out that this type of security isn't really designed to make a device impermeable. Rather, it's to keep easy break-ins from occurring. And, hey, that's true! Good job, you guys! The problem here isn't that Samsung's security tech failed to be 100% effective. It's that it's barely effective, yet at the same time Samsung is pitching it as the end of phone break-ins. I'm not the one making wild claims here; they are.

And this tech is going to be rolled out in a big way, likely pitched to the public in the same manner.

"Iris recognition is the next big thing with mobile devices," Starbug wrote in an e-mail. "The technology, especially with the packed space and low computing power of mobile devices, is hard to make hack proof. You can't hide your iris, and it's even worse than fingerprints." At the same time, "mobile devices are holding more and more sensitive data."

Advertising this iris security as "airtight" is actively misleading the public on the security of a device becoming all the more important and one on which the public is more often storing sensitive information. For a company like Samsung to be so vociferous in its claims in light of this easy workaround ought to result in a ding to its credibility.

For biometrics generally, a good pin number is probably still your best bet. The tech may improve to the point of being the most effective option some day, but we're not there yet.

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One of the longest-running lawsuits over NSA surveillance is still no closer to a final decision, but at least we may get to take a look at a few more Section 702 documents. Jewel vs. NSA (filed in 2008) predates the Snowden leaks by five years and, judging by the speed of the government's responses, will probably hit the 10-year mark before everything is sorted out.

The EFF reports a production order has been handed down by the court, which will hopefully light a fire under the recalcitrant government.

In 2016 the Court had ordered that the plaintiffs could seek discovery. After over a year of government stonewalling, the Court has now ordered the government to comply with a narrowed set of discovery requests by August 9, 2017. The discovery is aimed at whether plaintiffs' communications were subject to the mass NSA program tapping into the Internet backbone called Upstream. The court also ordered the government to file as much of its responses as possible on the public court docket.

Whether or not most of these documents will make their way into the public eye remains to be seen. But the court's order [PDF] contains a hypothetical indicating it's expecting a lot of production.

By 6-2-17: Government counsel to inform the Court if, hypothetically, a career law clerk was granted security clearance, would she be able to view all documents, including those already produced in classified submissions.

The court will still handle some of the discovery behind closed doors, but it's hoping to keep itself from being buried in paperwork. The order tells the government to move forward with its production in phases. It also asks the plaintiffs to narrow their discovery request "significantly." By August, the court would like to have this wrapped up and the case moving forward again.

Of course, this order has been delivered to a government that has argued no one has standing to challenge domestic surveillance and one that conveniently interpreted the Section 215 shutdown as permission to destroy evidence. The DOJ will continue to do everything it can to stem the flow of information to the public. It already spent a year ignoring the court's production order. I'm sure it will find a way to turn two months of discovery obligations into a much longer order -- perhaps even long enough to keep more Section 702 info out of the public's hands until after it obtains the year-end renewal it so badly wants.

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Printer companies have long used the fairly straightforward business model of "sell cheap printers, and make all the money by price gouging the ink." As we've noted, one study found that a swimming pool filled with printer ink would cost you almost $6 billion at retail (and that was almost 15 years ago, so the number is likely much higher today). For this business model to function at truly monopolistic pricing levels, it requires that the printer manufacturers figure out ways to block third parties from selling cheaper ink for their printers. Lexmark has been among the most aggressive in doing so, and has gone for the intellectual property trifecta: abusing copyright, trademark, and patent laws to try to block third party ink sales. Back in 2004, it lost its attempt to abuse copyright law to block sales. In 2014, the Supreme Court told Lexmark to stop abusing trademark law to scare off customers of third party ink sellers. And, today, the Supreme Court has completed the triad and told Lexmark that it cannot abuse patent law to stop third party ink cartridges as well. In the process, the Supreme Court, once again, smacked down the Court of Appeals for the Federal Circuit (CAFC), the appeals court that is supposed to be the "experts" in patent law, but keep getting the basics wrong.

The specific issue here was one of patent "exhaustion." That is, when a manufacturer (legally) sells a patent product, has it "exhausted" its rights to its patents regarding that particular product, or can it continue to hang onto those rights and block legal purchasers from doing things with it. This is important, if you believe in the right to actually own what you buy. Lexmark tried to argue that even after it sold its printers, it could block third party ink (or, in this specific case, laser toner) cartridges, by claiming that using such cartridges violated its patents. If you follow this stuff, you may remember two previous big Supreme Court cases, dealing with the concept of "exhaustion." There was the Kirtsaeng case regarding copyright exhaustion (once you've sold a copyrighted work, you can't stop the buyer from reselling it) and Quanta v. LG that said the same basic thing for patents.

But CAFC twisted itself in knots to argue that this case was different, saying that Quanta was only about blocking sales, and this case -- titled Lexmark v. Impression Products at CAFC and now Impression Products v. Lexmark at SCOTUS -- was different because it involved a "limited license" rather than a direct sale. That is, Lexmark basically sold its products with a license agreement, saying "hey, don't use third party cartridges, and if you do, we effectively are pulling our patent license and will sue you for infringement."

The Supreme Court is not impressed with the CAFC's pretzel logic and notes that it's pretty damn obvious that once you've sold a patented product, you've exhausted the right to pull back the license on that product and claim infringement:

We conclude that Lexmark exhausted its patent rights in these cartridges the moment it sold them. The single-use/no-resale restrictions in Lexmark’s contracts with customers may have been clear and enforceable under contract law, but they do not entitle Lexmark to retain patent rights in an item that it has elected to sell.

The Patent Act grants patentees the “right to exclude others from making, using, offering for sale, or selling [their] invention[s].” ... For over 160 years, the doctrine of patent exhaustion has imposed a limit on that right to exclude.... The limit functions automatically: When a patentee chooses to sell an item, that product “is no longer within the limits of the monopoly” and instead becomes the “private, individual property” of the purchaser, with the rights and benefits that come along with ownership.... A patentee is free to set the price and negotiate contracts with purchasers, but may not, “by virtue of his patent, control the use or disposition” of the product after ownership passes to the purchaser.... The sale “terminates all patent rights to that item.” ...

This well-established exhaustion rule marks the point where patent rights yield to the common law principle against restraints on alienation. The Patent Act “promote[s] the progress of science and the useful arts by granting to [inventors] a limited monopoly” that allows them to “secure the financial rewards” for their inventions.... But once a patentee sells an item, it has “enjoyed all the rights secured” by that limited monopoly.... Because “the purpose of the patent law is fulfilled . . . when the patentee has received his reward for the use of his invention,” that law furnishes “no basis for restraining the use and enjoyment of the thing sold.”

Simple, right? And, once again, the (unanimous) SCOTUS ruling is not kind to the lower judges at CAFC:

This venerable principle is not, as the Federal Circuit dismissively viewed it, merely “one common-law jurisdiction’s general judicial policy at one time toward anti-alienation restrictions.” ... Congress enacted and has repeatedly revised the Patent Act against the backdrop of the hostility toward restraints on alienation. That enmity is reflected in the exhaustion doctrine.The patent laws do not include the right to “restrain[ ] . . .further alienation” after an initial sale; such conditions have been “hateful to the law from Lord Coke’s day to ours” and are “obnoxious to the public interest.”... “The inconvenience and annoyance to the public that an opposite conclusion would occasion are too obvious to require illustration.”

And then, to help the CAFC out, after quoting another case saying that this result is "too obvious to require illustration"... immediately provides an illustration. In other words, "hey CAFC, how can you be this stupid? You even need us to draw you a picture."

But an illustration never hurts. Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale. Those companies might, for instance, restrict resale rights and sue the shop owner for patent infringement. And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits. Either way, extending the patent rights beyond the first sale would clog the channels of commerce, with little benefit from the extra control that the patentees retain. And advances in technology, along with increasingly complex supply chains, magnify the problem.

As an aside, this "illustration" being used to mock CAFC is likely to come in handy elsewhere. We've been writing a bunch lately about companies trying to kill off "right to repair" laws, and here's the Supreme Court, in a unanimous decision written by the Chief Justice, using the right to repair as a fundamental and obvious point. "That smooth flow of commerce would sputter..." Indeed.

The opinion continues to smack down CAFC later, noting that it "got off on the wrong foot."

The Federal Circuit reached a different result largely because it got off on the wrong foot. The “exhaustion doctrine,” the court believed, “must be understood as an interpretation of ” the infringement statute, which prohibits anyone from using or selling a patented article “without authority” from the patentee.... Exhaustion reflects a default rule that a patentee’s decision to sell an item “presumptively grant[s] ‘authority’ to the purchaser to use it and resell it.” ... But, the Federal Circuit explained, the patentee does not have to hand over the full “bundle of rights” every time.... If the patentee expressly withholds a stick from the bundle—perhaps by restricting the purchaser’s resale rights—the buyer never acquires that withheld authority, and the patentee may continue to enforce its right to exclude that practice under the patent laws.

The misstep in this logic is that the exhaustion doctrine is not a presumption about the authority that comes along with a sale; it is instead a limit on “the scope of the patentee’s rights.”... The right to use, sell, or import an item exists independently of the Patent Act. What a patent adds—and grants exclusively to the patentee—is a limited right to prevent others from engaging in those practices.... Exhaustion extinguishes that exclusionary power.... As a result, the sale transfers the right to use, sell, or import because those are the rights that come along with ownership, and the buyer is free and clear of an infringement lawsuit because there is no exclusionary right left to enforce.

There was a separate, but related question in the case as well, concerning "international" exhaustion. The above parts were about what happened to cartridges Lexmark sold within the US. But Lexmark had argued separately that products sold outside the US shouldn't be subject to patent exhaustion, so if those cartridges were then sold back into the US, they should be subject to infringement cases, since the exhaustion had not occurred under US patent law (the same issue that came up under copyright in the Kirtsaeng case). And, here, SCOTUS (at 7 to 1, with Justice Ginsburg dissenting) found that the same applies to patent law, pointing to the ruling in Kirtsaeng, ans saying that the analysis is effectively the same here:

Applying patent exhaustion to foreign sales is just as straightforward. Patent exhaustion, too, has its roots in the antipathy toward restraints on alienation... and nothing in the text or history of the Patent Act shows that Congress intended to confine that borderless common law principle to domestic sales. In fact, Congress has not altered patent exhaustion at all; it remains an unwritten limit on the scope of the patentee’s monopoly.... And differentiating the patent exhaustion and copyright first sale doctrines would make little theoretical or practical sense: The two share a “strong similarity . . . and identity of purpose,” ... and many everyday products—“automobiles, microwaves, calculators, mobile phones, tablets, and personal computers”—are subject to both patent and copyright protections.... There is a “historic kinship between patent law and copyright law,” ... and the bond between the two leaves no room for a rift on the question of international exhaustion.

The opinion also makes fun of the White House for weighing in on this case with little relevant to add, and with a confusion about the fact that patent law is based on the public interest, rather than as what's in the best interest for the two parties in the transaction:

The Government has little more than “long ago” on its side. In the 1890s, two circuit courts—in cases involving the same company—did hold that patentees may use express restrictions to reserve their patent rights in connection with foreign sales.... But no “coalesc[ing]” ever took place: Over the following hundred-plus years, only a smattering of lower court decisions mentioned this express-reservation rule for foreign sales.... And in 2001, the Federal Circuit adopted its blanket rule that foreign sales do not trigger exhaustion, even if the patentee fails to expressly reserve its rights.... These sparse and inconsistent decisions provide no basis for any expectation, let alone a settled one, that patentees can reserve patent rights when they sell abroad.

The theory behind the Government’s express-reservation rule also wrongly focuses on the likely expectations of the patentee and purchaser during a sale. Exhaustion does not arise because of the parties’ expectations about how sales transfer patent rights. More is at stake when it comes to patents than simply the dealings between the parties, which can be addressed through contract law. Instead, exhaustion occurs because, in a sale, the patentee elects to give up title to an item in exchange for payment. Allowing patent rights to stick remora-like to that item as it flows through the market would violate the principle against restraints on alienation. Exhaustion does not depend on whether the patentee receives a premium for selling in the United States, or the type of rights that buyers expect to receive. As a result, restrictions and location are irrelevant; what matters is the patentee’s decision to make a sale.

As for Ginsburg's dissent over international exhaustion, she also dissented from Kirtsaeng, and more or less repeats that argument here.

In the end, this is a big win for consumer rights, and blocks companies from trying to abuse patent law from restricting how people can actually use products they bought.

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As this site has long documented, DRM more often than not provides a false sense of security to those terrified of piracy, yet just as frequently annoys paying customers -- ironically driving those customers to the piracy alternatives the DRM was supposed to prevent in the first place.

The latest example of this phenomenon: with the latest version 5.0 of the Netflix app, Netflix is now leaning entirely on Google's Widevine digital rights management system. With Netflix recently introducing downloadable shows (assuming the license for that specific program allows it), Netflix's programming partners likely wanted Netflix to utilize Widevine to ensure that Netflix's app "only works with devices that are certified by Google and meet all Android requirements."

The problem is that there are countless enthusiasts who enjoy rooting their devices and installing custom ROMs... and don't pirate Netflix content. Yet when these users look for the Netflix app in the Google Play store, they're now greeted with this warning message telling them that the device they legally own is no longer compatible with Netflix's app:

Netflix confirmed its updated DRM plans to Android Police, acknlowledging that not only will the app not be downloadable for rooted phones, but the app itself may no longer even show up in the Play store:

"With our latest 5.0 release, we now fully rely on the Widevine DRM provided by Google; therefore, many devices that are not Google-certified or have been altered will no longer work with our latest app and those users will no longer see the Netflix app in the Play Store."

The thinking on the part of Netflix and broadcasters is that those with rooted phones and custom ROMs have greater control over the OS, and therefore have a better chance of being able to bypass the DRM. But again, many of these folks simply modify their devices because they enjoy the greater flexibility it provides, not necessarily because they're looking to pirate content. Now, those users are faced with a choice of either giving up additional control over their device just to watch Netflix, or heading to piracy alternatives if they want to watch Netflix programs.

The app's listing in the Google Play store appears to be determined by whether or not your device is cleared to run Android Pay, not Widevine. That means that if you've simply got your bootloader unlocked -- and you haven't even fully rooted your phone or installed a custom ROM -- you can still be denied access to Netflix even if you're still using a secure, stock implementation of Android. As a result, many of these users have left reviews for the app warning Netflix that their decision to punish them for modifying devices they own may simply drive them to piracy:

To be clear, this isn't exactly the apocalypse. There are methods that allow you to hide the fact that your device has been rooted, and many users say they're still able to sideload the Netflix app to the devices (for now). But the fact remains that these customers aren't technically doing anything wrong, but are being punished anyway. All for what's likely a largely false sense of security, given all of the content these companies believe they've secured is going to wind up on BitTorrent networks anyway. As such, the only real net result? Annoyed paying (and now possibly former) customers.

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Android Auto is so yesteryear. Automobiles in 2017 will be all about the new Android-based infotainment experience being built by automakers like Chrysler, and -- as of today -- Volvo and Audi.

Last week, there were two widely reported "deaths" on the internet: Pepe The Frog and the MP3 audio codec. Most people seemed to understand what was meant by the former headline -- that you cannot in fact kill a meme, no matter how distasteful its use, and the death of Pepe in an official cartoon strip was a symbolic disavowal of the character by its creator. But on the MP3 issue people seem a bit more confused.

Here's what happened: in late April (not sure why there was such a big delay in the explosion of blog posts) Fraunhofer IIS, the research company that holds the patents on MP3 encoders and decoders, announced that it had terminated the licensing program for those patents, for the stated reason that the format has been surpassed by alternatives like AAC (which is also patented and licensed by Fraunhofer). For some reason, a whole lot of media outlets have accepted this at face value and reported that the format is now officially on its way out. "The MP3 is Dead" headlines abound, with only a small few bothering to add qualifiers like "according to its creators" or the classic rejoinder "long live the MP3":

Most of the articles buried some attempt to call the move "symbolic" or clarify that the files would still exist towards the end of their coverage, after much eulogizing, but almost none took the time to understand anything about the patent situation, or expose Fraunhofer's huge lie of omission in its announcement.

Because here's what really happened: the last of the patents related to the MP3 format expired (or will very soon -- more on that later), so Fraunhofer has nothing left to license. The termination of the licensing program was not a choice, nor was it suddenly motivated by the ascendence of another format that has itself been around for 20 years. Most importantly, despite what many people have reported, this does not mean the death of the MP3. Of course, Fraunhofer's statement didn't contradict any of these things, it just omitted them all and left people with the implication that this move ensured the decline and eventual death of the format -- when in fact it likely means the exact opposite.

Prior to this, developers wishing to include MP3 functionality in their software needed a license to do so. If you use Linux, or open source audio tools like the excellent Audacity, you already know this: open-source software doesn't ship with MP3 encoding and decoding capabilities built in, but requires you to separately download and install the codec so as not to pollute the FOSS package with proprietary, patented code. That's no longer the case, and indeed Red Hat has already announced that Fedora will now ship with MP3 capabilities built in (hat tip there to one of the few blogs that is reporting this story properly). Expect Audacity and countless other FOSS apps to follow suit soon. As for non-open-source software, it's one less patent number on the long lists of licenses that live on loading splash screens and About dialogues, and a little bit of saved cost. All around, it's the removal of a barrier to building apps and tools that work with this ubiquitous audio format.

Does that sound like death to you?

So does Fraunhofer's announcement actually mean anything? Well, a little bit: as noted, it actually hasn't been 100% clear when all the patents would expire, due to the size and complexity of the patent thicket in the overall MPEG ecosystem. It was generally agreed that all patents covering MP3s would expire this year, and many had pegged the date as the end of April, but this was much harder to confirm. Fraunhofer's announcement does not offer any specific information to make this determination easier (since it doesn't admit that this has anything to do with patent expiry at all), but developers like Red Hat are taking it as a sign that the patents are officially expired and the format is free to use.

While it's frustrating that Fraunhofer issued such a misleading statement, it's even more frustrating that so much of the media uncritically parroted it. Some also decided to throw in some scattershot links to various questionable studies claiming MP3 compression has negative effects like stripping out the "emotion" from music (that particular study was conducted on just 20 college students, and used MP3s encoded at a bit-rate well below the modern norm for music distribution) to bolster the idea that MP3 compression must be replaced by the still-patented AAC codec. I'm sure Fraunhofer was grateful.

So, no: the MP3 is not dead. Its creators have not killed it. Like Pepe the Frog, it's alive and well and probably isn't going anywhere for a long time -- except in this case we can actually be happy about that fact.

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This long Austin American-Statesman investigative report details apparent police brutality as discovered by parents who were kept in the dark by local cops about how their teenaged son actually died. It all started with their 5'4" 110-lb. 18-year-old suffering through a bad acid trip while hanging out with friends. It ended in the hospital with their son brain-dead, on life support, and the arresting agency unwilling to say anything more than their son had suffered a "head injury."

To the law enforcement agency, it's just another in-custody death. To the parents of Graham Dyer, it's long-delayed closure to a chapter kept deliberately unfinished by the law enforcement agencies who took Dyer into custody and returned him to his parents more dead than alive.

In Texas, the system is stacked against victims of police misconduct. State law, upheld by court decisions, make it almost impossible to mount a lawsuit against law enforcement officers. Courts are generally receptive to law enforcement claims and extremely hesitant to strip officers of immunity, no matter how egregious the apparent civil rights violation. This situation is made much, much worse in Texas where documents needed to propel a lawsuit past a judge's first reading often can't be obtained from the law enforcement agency holding them.

State law says a police agency isn’t required to turn over records for incidents that don’t result in a conviction. Graham, who’d been charged with assaulting a police officer after the confrontation, had died before his case could be litigated. So, the department reasoned, his records were confidential. Asked to weigh in on the dispute, then-Attorney General Greg Abbott agreed the Mesquite police could refuse the Dyers’ request.

The most important part of this paragraph is two words in the last sentence: "could refuse." The law does not forbid departments from handing over this information. It simply gives them a legal excuse not to. The Mesquite PD could have closed this tragic chapter in the Dyers' lives, but doing so would have guaranteed a lawsuit. So, it withheld the records, ensuring the officers involved in Graham Dyer's death remained free of accountability. It continued to deny release of the record, citing "ongoing investigations" that apparently involved one dead "suspect" and another arrestee, who had only been charged with public intoxication.

Faced with this hurdle, the Dyers approached the FBI, asking it to investigate Graham's death. It performed an investigation, but informed the couple it could not find enough evidence to move forward with a federal civil rights lawsuit on the couple's behalf. But it did open a door for the Dyers to obtain the evidence the Mesquite PD wouldn't release.

Using the federal Freedom of Information Act, in early 2015 Kathy asked the FBI to turn over any records it had accumulated in its investigation of Graham’s death in Mesquite. That fall, police videos of the fatal evening started arriving.

The recordings are disturbing. Graham's parents haven't watched them, on the advice of their lawyer. (All images below a screengrabs from the video posted at the Statesman.)

There was, for example, the image of a Mesquite police officer standing with his foot on Graham’s head.

There was the image of Graham in the backseat of the police cruiser, his hands and feet bound — yet also unseatbelted or otherwise restricted — in obvious distress, hurling himself about the car. And then the ghostly image of a police officer’s hand with a Taser stun gun appearing in the camera frame, shocking Graham on the leg.

And then, pushing him on his back and shocking him again — this time directly, and apparently deliberately, in his testicles. And Graham screaming silently as the electric shock to his genitals appeared to be repeated.

The Statesman has also released 24 seconds of audio from the arrest. It contains just enough to add even more horror to the images above. It contains the tortured screams from the 18-year-old as he is tased by an officer. It contains another disheartening scream from Dyer, who was suffering through a bad LSD trip at the time of his arrest: "Where the fuck am I?" And, disturbingly, it contains an officer's brutal statement as he tased the bound teenager: "Motherfucker, I'm going to kill you."

That officer was correct. The Mesquite PD did kill Graham Dyer. It killed him to save him from himself, according to the PD.

“A Taser was deployed in an effort to control decedent, prevent escape and prevent him from injuring himself,” the city stated in court documents, adding the officer had been aiming for Graham’s leg and it was dark.

The PD also killed Dyer with indifference. By the time Dyer arrived at the jail, he was in terrible shape. But to the five officers on the scene, he was just a piece of inconvenient meat.

The videos of Graham as he was delivered to the jail also seemed at odds with the police department’s explanation of what occurred. According to the agency’s in-custody death report, upon arriving at the jail Graham had still needed to be placed in a special restraint chair “until the jail personnel noticed he was having labored breathing.”

Yet the video the Dyers received from the FBI depicts Graham lying limp on the sally-port floor after being lifted out of the cruiser. As he tries to raise his head, one of the officers pushes it back to the ground.

Records show it would be more than two hours before an ambulance was called.

The Dyers can finally move forward with their lawsuit. The presiding judge says the evidence obtained -- no thanks to the Mesquite PD -- shows they have a plausible civil rights claim. The PD obviously hoped its public records exemptions would keep the Dyers from successfully suing it, much less actually finding out what happened that night.

The government, far too often, insulates the worst of its employees against the public that's entrusted it with power. In many ways, the system is deliberately designed to push citizens towards resigned acceptance of abuse by authority figures. The courts, meant to be a check against government power, have been far too compliant for far too long. The end result is the ugliness above where no one in a position of power will do anything to assist constituents until forced to. And they'll will follow this up by doing as possible to deter future acts of violence and brutality. The cops involved in this arrest -- and every government official that's assisted in erecting a wall between police and accountability -- should take a good, long look at the terrorized teen captured by the police cruiser's camera and see if they still feel comfortable with their decisions.

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In the world of law enforcement, there's very little more ridiculous than police unions. That's the unfortunate side effect of feeling compelled to defend every "bad apple," no matter how rotten they are. The Cleveland police union has reached the apotheosis of law enforcement spin -- this time taking the form of a lawsuit that looks like a punchline.

First, some backstory. In 2014, 12-year-old Tamir Rice was killed by a Cleveland police officer as he played with a toy gun in the park. A caller reported Rice, saying he was waving around a gun. The caller also said it was likely the person they saw was a juvenile and the gun was likely a toy. This information was not passed on to the responding officers, who boldly/stupidly raced across the park lawn to within feet of where Rice was standing and shot him two seconds after exiting their vehicle. The "gun" Rice had was an Airsoft replica with the bright "not a gun" tip removed.

Had the dispatcher passed on the mitigating factors, Tamir Rice might still be alive. Had the officers decided to approach this tactically, rather than like an out-of-control half of a buddy-cop movie cliche, Tamir Rice might still be alive. But, as the Cleveland Patrolmen's Association sees it, the problem wasn't bad communication and worse tactics. The real problem here is toy gun makers.

The Cleveland Patrolmen's Association announced it will soon be filing a lawsuit against toy gun manufacturers in federal court.

CPPA attorney Henry Hilow told News 5 the civil lawsuit will not seek financial damages, but rather seek to restrict the design of toy guns, so they don't look so realistic.

"These fake weapons put the community at risk, puts law enforcement at risk, something has to be done," Hilow said. "The remedy that we'd be looking for is that that gun could not replicate. That that gun would be of such a color have such a tip."

Airsoft guns do look realistic, minus the bright orange tip that comes standard. Anyone can remove the tip… just like anyone can create a real gun that looks fake. None of that matters, though, as attempts to create vicarious liability tend to fall apart under judicial scrutiny. And, notably, the Cleveland Police Union has never attempted to sue the manufacturers of real guns, despite them being involved in almost every situation where officers have shot at people or been shot by them.

As Popehat pointed out on Twitter, this is likely only the first of many police union lawsuits:

Next to be sued by police: Coach for making wallets and God for making black people's hands and waistbands

So far, the CPPA stands alone in its jackassery. But it has hopes that others similarly situated will beclown themselves for the dismayed amusement of the nation:

He said the CPPA is looking for support from other police unions in major cities like Columbus and Dallas.

I applaud the union's willingness to take a stand in court against the maker of an item held by a person one of its members killed. Anything that draws more attention (albeit inadvertently) to the trigger-happy tendencies of Cleveland police officers and the increasing ridiculousness of police union statements and actions is fine by me.

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From Microsoft's FAQ about Windows 10 S: Yes, Microsoft Edge is the default web browser on Microsoft 10 S. You are able to download another browser that might be available from the Windows Store, but Microsoft Edge will remain the default if, for example, you open an .htm file. Additionally, the default search provider in Microsoft Edge and Internet Explorer cannot be changed. Braindead. Edge is buggy and messy, Bing is garbage. Not being able to change default applications is one of the many reasons using iOS is so grating and cumbersome, and Microsoft copying that behaviour is really, really dumb.

If defense lawyers did this, you can bet the local prosecutor's office would be there in an instant to file charges. But since it's a prosecutor's office doing it, local prosecutors see nothing wrong with lying to witnesses to obtain testimony. Charles Maldonado of The Lens looks into the unethical practices of the Orleans Parish District Attorney's Office.

The notice Tiffany Lacroix received in November had “SUBPOENA” printed at the top, next to a logo of the Orleans Parish District Attorney’s Office. It ordered her to meet with a prosecutor to discuss the upcoming trial of Cardell Hayes, charged with murdering former Saints player Will Smith.

“A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE,” it declared.

But it wasn’t authorized by a judge. It wasn’t issued by the Clerk of Court, which sends out subpoenas. And Lacroix wouldn’t have gone to jail if she had ignored it. In other words, it was fake.

According to the DA's office, it's done nothing wrong. Assistant District Attorney Chris Bowman says these documents used to trick people into talking to prosecutors are nothing more than "notices" or "notifications." He compares the use of fake subpoenas to methods used by other, more honest prosecutors' offices, which use legal letterhead to make the same request, in a much more congenial tone wholly separated from false threats of arrest.

Bowman also says legal letterhead just doesn't get as much cooperation as his office's fake subpoenas, which he refuses to refer to as fake subpoenas. Instead, Bowman says these fake legal documents are just a more "formal" version of legitimate methods used elsewhere.

Of course, it's easy to see how locals might be confused by this "more formal" request, which looks exactly like this [PDF]:

According to Bowman, the subpoenas that aren't have been used for decades. Unlike the nicer, more ethical legal letterhead used elsewhere, the DA's office's faux subpoenas highlight the potential (but completely unenforceable) downside of blowing off local prosecutors. In big, bold letters directly under the word SUBPOENA is the following phrase: A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE.

Subpoenas -- the real ones -- are used every day to compel cooperation. These aren't the real thing, but come across as legitimate demands for cooperation backed with the threat of jailing. The real things are run by judges and issued by clerks. These pieces of paper -- backed by zero legal authority -- are issued by the DA's office whenever a prosecutor wants to.

When recipients have challenged these before an actual judge, the DA's office has finally done the right thing and secured an actual subpoena. But since they're rarely challenged, the DA's office has used them far more frequently than their legitimate, court-approved counterpart. And it's not the only weapon in the DA's arsenal, should it desire additional dialogue with people who shouldn't need to fear being tossed in the clink. As the saying goes, "Don't be a victim of a crime if you can't do the time."

[E]arlier this month, the watchdog group Court Watch NOLA found several cases in which the DA’s office obtained arrest warrants for victims of crimes because they did not cooperate with prosecutors.

There seems to be no question this practice is unethical, but is it illegal? Unfortunately, there's no clear answer. Defense attorney Anthony Ibert -- who has appeared multiple times before judges to get the DA's fake subpoenas quashed -- theorizes it might be prosecutable.

Ibert said he thinks the fake subpoenas may be a type of forgery. The documents don’t include a judge’s name or signature. But Louisiana’s law on forgery includes “to alter, make, complete, execute, or authenticate any writing so that it purports … to be the act of another who did not authorize that act.”

Without a judge's (forged) signature, forgery charges are a tough sell. (I'll bet the DA's office could make the charge stick... to itself... if it wanted to.) The good news is -- without giving the DA's office any credit whatsoever -- prosecutors will no longer be using this deception to obtain interviews.

On Wednesday, prosecutors announced they are dropping the ominous heading on those notices, acknowledging that the DA's Office does not have the authority to issue subpoenas by itself.

[...]

The DA's Office will now send a request called a “notice to appear” instead.

“I have today again gone out and said this is the only acceptable notice to appear that we will be sending to people,” First Assistant District Attorney Graymond Martin said.

Unfortunately, this still sounds almost as mandatory. The Advocate -- which first reported the DA's change of heart in the face of bad press -- wasn't provided a sample of the new document. Hopefully, it will be free of statements that might lead recipients to believe they'll be fined or jailed if they fail to "appear." Undercutting the grandiosity of the office's slightly-less-dickish move is the statement accompanying the official statement.

“It’s an assertive invitation for you to come and talk to us,” Martin said.

Fun. Sounds like being "voluntold."

Also this:

"Our obligation is to the community at large, not necessarily to the victims or the witnesses," said Assistant District Attorney Chris Bowman, a spokesman for the office. "We want to make the process both for victims and witnesses as user-friendly as possible, but we are not going to allow them to determine the future of the case."

For the good of the community, the DA's office is going to misrepresent the mandatory-ness of requests for interviews. There will be no end credits statement to the effect of "no witnesses or crime victims were harmed during the course of this prosecution." So, things will get marginally better in Orleans Parish, where local prosecutors believe it's better that ten witnesses or crime victims be pushed around by thuggish prosecutors than one guilty man go free.

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This isn't a huge surprise, but unfortunately, today -- after a mostly ridiculous "debate" on the House floor full of claptrap and bullshit about how important copyright is to "protecting jobs" (despite this bill having nothing to do with any of that) -- the House voted 378 to 48 to approve a bill that makes the head of the Copyright Office, the Copyright Register, a Presidential appointment rather than an appointment by the Library of Congress, as it's been throughout the entire history of the Copyright Office. As we pointed out just yesterday, Congress appears to be rushing this through for no clear reason. It held no hearings on the issue (other than the fact that the current Librarian of Congress, Carla Hayden, was getting ready to appoint her own Copyright Register).

Again, every reason given by supporters of this bill doesn't hold up to any scrutiny. They claimed, falsely, that copyright creates 5 million jobs (one Rep -- Tony Cardenas -- even claimed that the Copyright Register "oversees" those jobs). But this is not true. They claimed that the Copyright Office needs to be modernized -- which is true. But Carla Hayden has already commenced a massive modernization project, which this bill will stop dead in its tracks. They claimed that this would provide "greater oversight" over how the Copyright Office is run, but that's not even remotely true. The bill actually takes away the oversight from the Librarian of Congress... and gives it to no one other than the President, who isn't likely to be paying much attention to what's happening at the Copyright Office.

This bill serves no purpose other than to take power away from the Librarian of Congress and give it to powerful lobbyists who will have a major say in who runs the Copyright Office. The bill will now move to the Senate where it is also likely to get an easy approval, and no doubt the President will sign the bill (which gives him more power, even if he's shown little sign of actually appointing people to the nearly 500 open positions which this will add to). It's a bad bill, and it's a gift to Hollywood, even as it will harm the actual content creators who will have to wait even longer for the office to actually be modernized.

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These are a handful of shots of the Little Tykes Cozy Coupes that father Ian Pfaff modded into Mad Max style vehicles for children, two-year old Junior and five-month old Benji. Ian uses all sorts of found objects to complete the look, including parts from old bikes, barbecue grills, computers, an espresso machine -- Ian's wife Emily even donated her old breast pumps, which are seen as the exhaust pipes on top of the car on the right. Nice work, Ian. Just real quick though -- those kids have had their tetanus shots, right? Because one time I cut myself on a piece of wire fencing on my uncle's farm and it got infected and I got lockjaw and couldn't open my mouth or talk. "Best three weeks of my life." Mom! "Why'd we get him treated again?" Dad! "Just kidding, son." Oh thank god. "We should poke him again while he's asleep." I heard that! Keep going for several more shots, including a couple in-progress ones, as well a apocalyptic sippy cup crafted by Ian's wife. Thanks to Jinxy Beth, who already added 'Mad Max style Power Wheels' to her birthday list.

As most people know, babies who are breastfed from birth enjoy a wide range of benefits. Here's what the United Nations Children's Fund (Unicef), a global organization with nearly $5 billion of funding, has to say on the topic of breastfeeding:

It has profound impact on a child's survival, health, nutrition and development. Breast milk provides all of the nutrients, vitamins and minerals an infant needs for growth for the first six months, and no other liquids or food are needed. In addition, breast milk carries antibodies from the mother that help combat disease.

…

Breastfeeding also lowers the risk of chronic conditions later in life, such as obesity, high cholesterol, high blood pressure, diabetes, childhood asthma and childhood leukaemias. Studies have shown that breastfed infants do better on intelligence and behaviour tests into adulthood than formula-fed babies.

Formula milk, by contrast, can actively harm babies:

Formula is not an acceptable substitute for breastmilk because formula, at its best, only replaces most of the nutritional components of breast milk: it is just a food, whereas breast milk is a complex living nutritional fluid containing anti-bodies, enzymes, long chain fatty acids and hormones, many of which simply cannot be included in formula. Furthermore, in the first few months, it is hard for the baby's gut to absorb anything other than breastmilk. Even one feeding of formula or other foods can cause injuries to the gut, taking weeks for the baby to recover.

The case for breastfeeding, and against formula milk, seems pretty clear. But a new publication from the Office of the United States Trade Representative (USTR), the "2017 National Trade Estimate Report on Foreign Trade Barriers" (pdf), begs to differ. As a post on the Public Citizen site explains, the USTR calls out several countries for promoting breastfeeding over formula as a "technical barrier to trade" that might harm the profits of US industries. These are some of the polices that the USTR wants eliminated:

Hong Kong: The Report criticizes a Hong Kong draft code, designed to "protect breastfeeding and contribute to the provision of safe and adequate nutrition for infants and young children." USTR labels the policy as a technical barrier to trade due to its potential to reduce sales of "food products for infants and young children."

Indonesia: USTR labels a draft regulation in Indonesia that would prohibit the "advertising or promotion of milk products for children up to two years of age" as a technical barrier to trade.

Malaysia: USTR questions Malaysia's proposed revisions to "its existing Code of Ethics for the Marketing of Infant Foods and Related Products" that would restrict corporate marketing practices aimed at toddlers and young children.

Thailand: The report critiques Thailand for introducing a new regulation that would impose penalties on corporations that violate domestic laws restricting the "promotional, and marketing activities for modified milk for infants, follow-up formula for infants and young children, and supplemental foods for infants."

Although "technical barriers to trade" sound like a minor issue, they lie at the heart of modern trade deals. Traditional tariffs are now relatively low in many parts of the world, which means that the hard part of trade negotiations is often these "non-tariff barriers" (NTBs). Indeed, it was in large part a failure to agree on the removal of NTBs that caused the TAFTA/TTIP talks to grind to a halt, and then end up in limbo when the Trump administration took them over.

The USTR's attack on policies that promote breastfeeding over formula milk may seem extreme. But they are typical of the way the USTR views the world primarily through the optic of boosting the profits of US companies, with no thought to the harms this may inflict on people in other nations as a result. No wonder that trade deals are viewed so negatively in many parts of the world.

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

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This is a shot of the exchange between @SamsungMobileUS and @savEdward on Twitter. Samsung asked new owners of the Galaxy 8 to send their first photo taken with the phone. Edward responded that it was a wiener pic, and Samsung followed up with the microscope emoji. Samsung: they'll burn you. Either on Twitter or when your Galaxy Note 7 exploded. Hoho -- you just got got, Samsung! Come at me, bro. Thanks to Nathaniel, who agrees somebody should hire me as their social media manager.

This is one of the strangest "but for video" cases ever. We know many cops are hesitant to clip body-worn cameras on themselves for a variety of reasons. The official statements always express concern about privacy, as though people interacting with public servants somehow believe these interactions are private. Others show concern for police officers' privacy, as though the public is really hoping to FOIA footage of officers sitting in the break room or using the restroom.

Deep down, everyone knows the cameras are a tool of accountability, albeit one that's far from perfect. Body camera footage frequently goes "missing" when force is deployed questionably. And it's completely possible to make the footage subjective with strategic body positioning and constant yelling of exonerative phrases like "Stop resisting!"

So, it's accountability in its infancy, run through a layer of law enforcement-friendly filters (footage is controlled by police officers and often sheltered from FOIA requests). But it's much better than what we had before, where all action had to take place in front of stationary dashboard cameras.

Still, there are plenty of bugs -- both those inherent to the system and those created by law enforcement resistance -- to be worked out. We've seen cops damned by their captured footage and we've seen officers exonerated by footage that contradicts arrestees' complaints.

What we haven't seen before is a camera being activated by someone other than the cop in possession of it. And we definitely haven't seen any situations where the footage captures off-duty violence. This is a new one, and it's likely to lead to another "privacy" discussion by the time it's all sorted out. (via PoliceMisconduct.net)

A North Charleston Police officer was arrested for assaulting his wife Sunday after police say the incident was captured on his body camera. Hanahan Police say the officer, Nicholas Palumbo was arrested early Sunday morning.

According to an incident report, Palumbo's wife told him she wanted a divorce. The report states Palumbo became very irate and pushed his wife to the ground in their kitchen. Police say after the altercation started Palumbo's wife went into the bedroom and turned on his body camera.

According to the report, Palumbo came into the room, pinned his wife to the bed and threatened to strike her in the head with his fist while shaking her. His wife told investigators she was in great fear for her safety and the safety of her children. The report states she did not know where her husband had gone and was afraid he would return home and cause physical harm to her.

I'm not sure which part is more amazing: the forethought of the abused spouse to activate the camera or the fact that the footage was actually viewed by someone at the police department.

We know officers protect officers first. Perhaps being the wife of an officer grants you more attention and respect than a random civilian with a list of allegations. Whatever the case is, the department viewed the footage and arrested the officer. Even more surprising, the officer was immediately fired. I guess this decision was made easier by his bail requirements, which forbade him from possessing guns or ammo -- something every on-duty cop generally has on them or easy access to.

It's a petard-hoisting of sorts and definitely an anomaly in the pantheon of body-worn cameras. No doubt other cops with the same domestic issues will be keeping a closer eye on their issued gear during their off-duty hours. And there will definitely be challenges to the evidence, should this go to trial.

Arguments will be made about surreptitious recordings being used to fire a police officer, but those shouldn't get too far. South Carolina is a one party consent state when it comes to recordings. The fact that it was recorded in a private home (rather than in a public area) makes it a bit more complicated, but the recording should be treated no differently than the spouse's oral testimony. The recording just makes it a lot tougher to challenge the spouse's domestic abuse allegations.

Whatever happens, it's one for the "but for video" record books: body worn camera as the prosecution's star witness in a domestic assault case.

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Back in 2008, Comcast sued the city of Chattanooga shortly after the city-owned utility (Electric Power Board, or EPB) announced plans to deliver the kind of cheap, ultra-fast broadband Comcast long refused to. After being saddled with legal expenses, EPB ultimately won that lawsuit, and in 2010 began offering ultra-fast fiber broadband. But it wasn't long before the community-owned broadband network ran into another obstacle: a Tennessee state protectionist law -- quite literally written by AT&T and Comcast -- that hamstrung the operation and prohibited it from expanding.

Fast forward nearly a decade, and EPB now offers symmetrical gigabit connections for around $70 a month -- at least to the parts of Chattanooga ISP lobbyists have allowed it to. A 2016 survey by Consumer Reports ranked EPB, outside of Google Fiber, as the only ISP with a truly positive consumer satisfaction rating among the 30 national ISPs ranked by the magazine. Chattanooga's Mayor, meanwhile, has cited EPB as a major contributor to the city's reinvention.

Facing this weird new phenomenon known as competition, Comcast this year finally broke down and brought its own gigabit offering (technically 1 Gbps down, 35 Mbps up) to the city. But Comcast being Comcast, it simply couldn't help but saddle the offering with a number of restrictions. Specifically, Comcast's offering the gigabit option to Chattanooga residents for $70 a month -- but only if they're willing to sign a three year contract. If users refuse -- the price of the service not only is jacked to $140 per month -- but you'll face usage caps and overage fees -- which are only avoidable if you sign the absurdly long contract.

Hoping to get Chattanooga residents excited about the new option when it finally arrived a few weeks ago, Comcast posted an announcement to Facebook "introducing" the city to gigabit broadband service. It didn't go well. The company began taking an absolutely ferocious beating from area locals tired of Comcast's high prices and legendarily-bad customer service:

Take note of the automated Comcast "support" representative that appears to believe they're "helping" without any understanding of the context of the concerns. The beating proceeds like this for an amazingly long time, consistently citing slow speeds, high prices and poor service:

You may notice a consistent theme or two brought up by Chattanooga locals. The beating was so severe it made the Chattanooga Times Free Press, via which Comcast tried to claim that the response to the company's quickly-backfiring ad campaign was a "misunderstanding":

Comcast says the ongoing backlash is the result of a misunderstanding. The cable giant says that it didn't mean to imply it was rolling out the city's first gigabit service. Rather, it was introducing Xfinity's first gigabit service for residential customers.

"Comcast's recent advertisement on Facebook was intended to remind customers in Chattanooga that our 1-gigabit internet service is now available in their area," said Alex Horwitz, vice president for public relations at Comcast. "The service is offered via cable modem technology, which makes Chattanooga one of the first markets in the nation to enjoy this new service."

There's no misunderstanding. Chattanooga locals understand all too well that Comcast has thrown millions at lawmakers on both the local and state level to try and stifle competition, then expected locals to be awed when the company belatedly introduced its own, inferior and restriction-laden product -- nearly a decade later. There's a reason that Tennessee remains one of the least connected states in the union (pdf), and it has absolutely everything to do with Comcast being an anti-competitive bully with a near-total stranglehold over the state legislature and politicians like Marsha Blackburn.

Tennessee isn't alone in spending the majority of its time bending over backwards to please the country's biggest broadband incumbents to its own, obvious detriment. And more restrictive state laws are being passed all the time. And instead of fixing this corruption on the state or federal level, we're now looking at axing consumer privacy protections and killing net neutrality. Because, you know, that's certain to deliver the kind of broadband Utopia Chattanooga and countless other U.S. markets have been begging for over the last decade.

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