Brindle

Quick: who is the author of the famous Diary of Anne Frank? If you said "Anne Frank" you'd be correct -- but thanks to copyright law, the Foundation that holds the copyright on the book is now trying to add her father's name as a co-author, all because of copyright law.

The move has a practical effect: It extends the copyright from Jan. 1, when it is set to expire in most of Europe, to the end of 2050. Copyrights in Europe generally end 70 years after an author’s death. Anne Frank died 70 years ago at Bergen-Belsen, a concentration camp, and Otto Frank died in 1980. Extending the copyright would block others from being able to publish the book without paying royalties or receiving permission.

Of course, there are some problems with this, including the fact that in the original publication of the diary, Otto Frank wrote a prologue insisting that the entire diary was written by his late daughter. The Anne Frank Fonds organization in Basel Switzerland currently holds the copyright, but the Anne Frank House Museum in Amsterdam -- which is a totally separate organization -- had been relying on the upcoming expectation that the book would move back into the public domain to apparently create a public version of the diary.

The museum has been working for five years with historians and researchers on an elaborate web version of the diary intended for publication once the copyright expires. The research is still progressing with a historical and textual analysis of her writing, including deletions, corrections and stains.

Meaning, the two organizations connected to Anne Frank's legacy may end up in court sparring over the copyright on the diary.

Which, you know, should at least raise the following question: who in their right mind thinks that copyright was the "incentive" necessary for Anne Frank to write her diary? I'm sure that the revenue from the sales on the book have been quite good to the foundation, and I'll even assume the foundation has done good things with that money in Frank's memory. But that doesn't justify gaming the system to keep the work out of the public domain, where it is likely to do even more good.

Even more to the point: Otto Frank had over 20 years to claim that he was a co-author. And he did not. It's already somewhat questionable that we extend copyright after death, but to enable an organization to claim that someone else has had a copyright in a work decades after his death when he did nothing during his own life to claim it seems exceptionally questionable.

One of Anne’s own astute diary entries seemed to anticipate the disputes: “Why do grown-ups quarrel so easily?”

In this case, the answer is: "because of screwed up copyright law and, of course, lots and lots and lots of money."

Of course, the folks who run the foundation are pulling out bogus arguments about protecting Anne. Because they're liars.

The foundation’s officials said that their aim is to “make sure that Anne Frank stays Anne,” Mr. Kugelmann said, by maintaining control and avoiding inappropriate exploitation of the work. “When she died, she was a young girl who was not even 16. We are protecting her. That is our task.”

Critics, he said, are wrongly looking at the intended change as a financial matter. “It is not about the money,” he said.

Except that's not the purpose of copyright law. And, at some point the book is going into the public domain no matter what. So what is he really "protecting"? The only thing that this protects is the money. That's it.

Oh, and in the meantime, none of this really matters, because as the link above notes, in 1991, an editor named Mirjam Pressler "revised, edited and added 25 percent more material from Anne Frank's diary for what was called a 'definitive edition'." And, amazingly, Pressler was given the copyright on that edition, which she then transferred to the foundation. As the report notes, Pressler is still alive, and thus the Foundation will retain the copyright on that larger edition at least until 70 years after Pressler passes away.

And, of course, since that misleadingly titled "definitive edition" in 1991, additional content has been released as well. In 2001 some extra pages were published. Apparently, those were subject to something of a copyright fight as well -- with the Netherlands State Institute for War Documentation claiming to hold the rights to them and the same Anne Frank Fonds organization claiming that it was "absolutely illegal" for Otto Frank's friend to share the pages with an author. Eventually that fight was settled when a $300,000 donation was made.

And, of course, even more recently, the same foundation apparently released a fully "unedited" version that put back in a bunch of the stuff that had been cut out of all previous versions (which some deemed to be scandalous). Of course, as an unedited version, there shouldn't be any claim to a separate author -- so in theory that complete version should be entering the public domain in many countries in just a couple months. Of course, here in the US, where we keep extending copyright terms, we've got to wait longer anyway. Because, again, without that, why would there be any incentive at all for her to have written her diary...

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These are a bunch of pictures of Barbie's face as compiled by Tumblr user tenaflyviper to show the doll's evolution over the past 56 years. She definitely went through some stages. What's your favorite year? I like 1962 and 1963 (that hair), 1966, 1971 (she looks like Marsha Brady), 1979 (she looks like she started doing drugs), 1983 (she looks like Frankenstein), 1988 (it looks like she's wearing toothbrushes for earrings), 1992 (TROLL DOLL EARRINGS), 1998 - 2002 (so elegant) and 2011 (glitter). In 2015 she looks like a Disney animation princess. The best year of all time though is 1980 because it looks like she has killed, and will definitely kill again. Thanks to Anna, who's always wanted a 1966 Barbie because she's convinced the hair was made with real gold.

The DOJ has been instrumental in curbing abuse and misconduct by local law enforcement agencies around the nation. Its own backyard, however, remains a complete mess.

The FBI and DEA have been obstructing investigations by the DOJ's Inspector General for several years now. The DOJ only just recently got around to addressing the widespread warrantless use of Stingray devices by both of these agencies. DEA agents are hooking up with prostitutes at "sex parties" while on the clock and receiving bonuses rather than suspensions or pink slips. The US Marshals Service has been acting as a law unto itself, confiscating cell site simulator records to keep them out of the hands of FOIA requesters, flying its own airborne cell tower spoofers and blowing asset forfeiture funds on $10,000 conference room tables.

Now this, as uncovered by Brad Heath and Brett Kelman of USA Today:

Federal drug agents have built a massive wiretapping operation in the Los Angeles suburbs, secretly intercepting tens of thousands of Americans' phone calls and text messages to monitor drug traffickers across the United States despite objections from Justice Department lawyers who fear the practice may not be legal.

The chain of command for the DEA runs UP to the DOJ, not vice versa, as would be suggested from this paragraph. The DEA apparently isn't too concerned its parent agency's own lawyers find its actions potentially illegal. It's going to do what it's going to do because drug wars don't fight themselves.

The DEA is getting away with it because it has its own "connect" in Riverside County. There's no telling how much venue shopping resulted in this bit of serendipity. All that matters are the results.

Nearly all of that surveillance was authorized by a single state court judge in Riverside County, who last year signed off on almost five times as many wiretaps as any other judge in the United States. The judge's orders allowed investigators — usually from the U.S. Drug Enforcement Administration — to intercept more than 2 million conversations involving 44,000 people, federal court records show.

This massive amount of surveillance -- stemming almost entirely from a single judge and his presumably overactive wrist/writs -- is problematic. More so are the numerous explanations offered up by officials for this gaping surveillance portal d/b/a Judge Helios Hernandez's courtroom. Hernandez's enthusiasm for issuing wiretap warrants to the DEA may have something to do with his history as a narcotics prosecutor. But for the record, he's offering the following justification for his actions.

Hernandez declined to comment through a spokesman.

The DEA offered this clarification.

Hernandez approved 20 times as many wiretaps as his counterparts in San Bernardino County. DEA officials said they could not explain that difference.

More details were provided by Deena Bennett, who heads the DEA's wiretap unit.

Bennett, a one-time contestant on the reality show Survivor, rebuffed attempts to contact her, telling a reporter that "the fact that you have my cellphone number is really harassment, and I'm going to report it."

The DOJ's lawyers, however, have more to say on the issue. For one, the DOJ believes these warrant requests should be routed through federal courts, rather than state courts, considering they cover violations of federal law and, more importantly, the standards the DEA needs to meet to obtain warrants are higher.

The DEA has used warrants issued by a California county judge to chase down suspects as far away as Virginia and New York. It's also engaged in parallel construction to cover its tracks, something the DOJ is now investigating. What little the DEA had to say in its defense was that it preferred to seek warrants in areas where it feels more intercession is needed and, most tellingly, where it can perform "most effectively."

Because it has cut federal courts out of the warrant process, the DEA is likely not showing it has exhausted other investigatory options before asking for intrusive wiretaps. The DOJ's displeasure with the DEA's actions means the resulting prosecutions will almost never make their way into federal courts.

"It was made very clear to the agents that if you're going to go the state route, then best wishes, good luck and all that, but that case isn't coming to federal court," a former Justice Department lawyer said.

Or more succinctly:

"They'd want to bring these cases into the U.S. Attorney's Office, and the feds would tell them no (expletive) way," a former Justice Department official said.

The troubling implication of these statements is that while the DOJ's legal counsel may have expressed its displeasure at the DEA's surveillance overreach, it apparently never stepped in to fix the issue. It simply told the DEA to take its tainted cases elsewhere.

On top of that, the DEA seemed far more interested in simply taking stuff from suspects rather than locking them up.

[D]EA agents and local detectives in South Gate, Calif., near Los Angeles, used a state-court wiretap to target a man named Omar Salazar, who the DEA suspected was tied to a Mexican drug trafficking group. Between searches of Salazar's car and his house, officers seized $76,869.94, a gun and a cache of illegal drugs, including 36 pounds of methamphetamine and 5 pounds of heroin. Investigators found some of the drugs in a safe in Salazar's garage, along with a box of ammunition and probation paperwork from one of his previous arrests.

That should have been enough to build a significant federal case with a long mandatory prison sentence, but that was not what happened. Court records show the Justice Department prosecuted the $76,869.94 in a civil asset seizure case. But it did not prosecute Salazar.

The DOJ and local prosecutors probably had nearly 77,000 reasons for abandoning Salazar's prosecution. Here are none of them.

Neither the DEA nor prosecutors would explain why.

Sounds about right. They probably weren't expecting to ever answer questions about their actions… at least not questions posed by journalists. As for the DOJ, it make be making angry noises about its troublesome drug enforcement child but it has not shown any willingness to rein the agency in. The problem isn't going to fix itself and it appears the DEA's perfectly fine with running its prosecutions through state courts and using warrants from local courts to pursue suspects all over the nation. The DOJ needs to flex a bigger muscle than its tongue if anything's going to change.

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Aahahhahaha, Mattyice I will f***ing destroy you and your shitty-ass phone! Rumblr is a new app currently in development (whether it actually gets released remains to be seen) that lets users set up fight-club style dates with other crazy people in the area. There is absolutely no way anything could possibly go wrong with this, especially not 1) anybody dying, 2) the cops getting called or 3) the cops getting called and everybody dying.

"Rumblr is an app for recreational fighters to find, meet and fight other brawl enthusiasts nearby," according the app's website. It encourages users to insult their matched opponents with this pro-tip: "tell your match what you don't like about their picture." The fight's location and time is also publicly broadcasted so other users can come and watch the melee, according to the website. The app comes with a chat feature to talk trash and an interactive map, for users to find fights happening near them. It also has a filter system, with "RumblrHER" to find women fighting, and "RumblrGROUP" for crew brawls.

Wow, there's even a group brawl filter. Let's all meet by the old middle school and beat the shit out of each other. After we've all had enough we'll break out the knives and guns and really put the hurt on each other. Who's in? Anybody? Come on. You want me to just stand there stabbing myself? Because I'll do it, I don't care, I just love fighting. *grabs left hand with right hand, throws it through window* Thanks to WHYARENTYOUPLAYINGFALLOUT, which is probably the most legitimate question I've been asked all day.

Here's something worth reading: the Burlington, Vermont Police Department has announced it will no longer be participating in the Dept. of Defense's 1033 Program. This program is the well-intentioned effort to somehow make use of excess/old military inventory. Unfortunately, along with desks, computers, file cabinets and other office staples, the government also allows police departments to pick up mine-resistant vehicles, assault rifles, grenade launchers and other military gear -- often at a steep discount that's made even more inexpensive by Homeland Security grants.

The full press release by the says several things those within its jurisdiction need to hear, along with the rest of the nation's law enforcement agencies (via Information Liberation)

The Burlington Police Department announced today that the Department has severed its ties with the much-scrutinized “1033 Program,” a Department of Defense initiative that allows aging military equipment to be repurposed for domestic policing. Until this summer, the Burlington Police Department possessed two military-issued night vision devices, which were the extent of its holdings under the Department of Defense (DOD) program.

“The militarization of local police departments is a genuine concern in our nation,” said Burlington Chief of Police Brandon del Pozo. “There are times when military-style equipment is essential for public safety, but they are very rare. Between our partners in the Vermont State Police and the Vermont National Guard, as well as the other federal and local agencies the Burlington Police Department partners with, we have the resources to handle all but the most inconceivable public safety scenarios. Amassing a worst-case scenario arsenal of military equipment results in officers seeing everyday policework through a military lens. When I realized what a small role the military played in equipping our police, I concluded it was better to return the items and let our 1033 Program memorandum of understanding expire.”

The Burlington Police Department has no plans to acquire tactical or military items beyond the types of conventional policing equipment it already possesses.

Mayor Miro Weinberger offered his support of this decision: “Today’s announcement cements the Burlington Police Department’s long-standing practice of avoiding the use of military equipment, in contrast to many other police departments. Our focus instead is on the basics of good policing in the 21st century: foot patrols, strong relationships between the officers and the community, and the use of modern tools to increase public transparency and police effectiveness."

One thing should be clarified: the 1033 Program is by no means mandatory. "Severing ties" really means just deciding not to participate. The MOU may have expired but it could have run on forever without the PD feeling obligated to order anything from the 1033 catalog.

What's more important are the sentiments expressed by the Burlington police chief. He recognizes that acquiring military gear only leads to a military mindset that turns public servants into an invading force. Even better, del Pozo recognizes that using worst-case scenarios as justification for heavily-armored vehicles and military weaponry is a bullshit tactic. As we've seen time and time again, local law enforcement will claim anything and everything is a "potential terrorist target" just so they can acquire cheap MRAPs and M4A1 rifles. Del Pozo isn't going to take his force down a similar path.

The mayor's vocal support of this decision is a pleasant surprise as well. Mayor Weinberger won't be making himself any friends in other law enforcement agencies after calling them out for their (ab)use of the 1033 program. Hopefully, other agencies will see Burlington's very public opt-out as worthy of emulation. But considering the latest narratives to take hold (Ferguson Effect, War on Cops) both paint police officers as under siege, it's highly doubtful many will recognize the goodwill they could generate simply by treating residents as human beings, rather than enemy combatants.

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This is a short clip from Back To The Future II edited with real-life 2015 elements. It made me realize how disappointing real life is and how much cooler it would be to live in a movie. Not a horror movie though. Or a disaster film. Or an action movie, because I'd probably get tired of running. I guess I just want to live in a comedy. Or an ADULT movie. Me: *ringing doorbell* Sexy Lady: Well hello there. Me: Here's your pizza, ma'am, EXTRA green peppers. Sexy Lady: Don't you mean extra sausage? Me: Sadly, no, you will probably find the sausage coverage underwhelming. If you were hoping for a meat lover's, I can't recommend ordering from us in the future. Director: CUT! Me: What?! I was just being honest. I want good Yelp reviews. Director:Where the hell did we find this guy? Me: My penis is shaped like a boomerang. Keep going for the video. Thanks to TimTim, who wants to live in a rom-com. But not as one of the main actors, but as the jovial bartender with sage advice.

A year ago, we were writing a ton on the famed Senate Intelligence Committee's torture report. This report, which Committee staffers spent years on, cost $40 million, and clocked in at nearly 7,000 pages of detailed analysis of the US's hugely questionable (both morally and legally) torture program in the wake of 9/11. After much fighting, the Senate finally released a heavily redacted executive summary, but since then there have been some questions about what happens with the full report. Senator Dianne Feinstein, who was (believe it or not!) the driving force behind the report, had copies of the full report delivered to the Defense Department, the CIA, the State Department and the Justice Department. However, there has been a lot of confusion over whether or not anyone actually read it. The DOJ clearly announced that officials had read the whole thing... but later claimed that no one had even opened the report. Obviously, the DOJ lied with one of those statements.

There had been some hope that ex-Senator Mark Udall might choose to release some of it from the Senate floor before leaving office, but that didn't happen.

And, with the changing of the guard, the new head of the Senate Intelligence Committee, Richard Burr, demanded that all the federal government agencies that received the report should return it to him so he can destroy it and make sure that no one ever sees what's in the report. As we noted, however, this whole thing seemed to be an effort to state publicly that the document was a Congressional record. That matters because Congressional records are not subject to FOIA requests. Executive branch records are subject to FOIA requests -- and the ACLU has made a FOIA request to the exec branch for a copy of the report.

The DOJ has taken Burr's lead and claimed that the report is a Congressional record, and that's also why they insist that no one at the DOJ has opened it -- to maintain that it has not become an executive branch record subject to FOIA. Not surprisingly, Senator Feinstein is pissed off about this -- because her staffers spent years putting together this report, detailing massive abuses by the CIA and others in torturing people, and the whole point of it was to help the government learn how badly it messed up and to stop it from doing it again. But if no one reads it, then that won't happen. And, the DOJ now says that not only has it not read it, it has instructed everyone in the exec branch not to read it for fear that reading it would make it subject to FOIA:

Nearly a year after the Senate released a declassified 500-page summary of the report, the fate of the entire document remains in limbo, the subject of battles in the courts and in Congress. Until those disputes are resolved, the Justice Department has prohibited officials from the government agencies that possess it from even opening the report, effectively keeping the people in charge of America’s counterterrorism future from reading about its past. There is also the possibility that the documents could remain locked in a Senate vault for good.

Senator Feinstein (along with Senator Pat Leahy) has sent a rather angry letter (reasonably so!) to Attorney General Loretta Lynch, expressing her strong displeasure over this state of affairs:

Dear Attorney General Lynch and Director Comey:

We firmly believe that appropriate DOJ and FBI officials must read the full 6,700-page Senate Intelligence Committee Study of the CIA's Detention and Interrogation Program in order to understand what happened and draw appropriate lessons. This is exactly what Director Comey promised during his testimony before the Senate Appropriations Committee on March 12, 2015, when he said he would designate FBI officials to read the full, final version of the Committee's Study and consider the lessons that can be learned from it. Director Comey also acknowledged that former FBI Director Bob Mueller ordered FBI agents not to participate in the CIA program. Unfortunately, as the executive summary of the Study makes clear, the Department of Justice was among those parts of the Executive Branch that were misled about the program, and DOJ officials' understanding of this history is critical to its institutional role going forward.

We are gravely disappointed that, according to Assistant Attorney General Peter Kadzik's letter dated August 5, 2015, the Department of Justice is citing a Freedom of Information Act (FOIA) case, ACLU v. CIA as an excuse to refuse to allow Executive Branch officials to review the full and final Study. This DOJ decision prevents the FBI and other parts of the Executive Branch from reading the full 6,700-page Study and learning from the mistakes of the past to ensure that they are not repeated. Further, personnel at the National Archives and Records Administration have stated that, based on guidance from the Department of Justice, they will not respond to questions about whether the Study constitutes a federal record under the Federal Records Act because the FOIA case is pending.

The record in the FOIA case does not support DOJ's decision. According to the court filings in the FOIA case, DOJ represented that it would "preserve the status quo" pending appeal, but the context in which that commitment arose makes clear that DOJ was agreeing not to return the Study to the Senate Intelligence Committee. DOJ's commitment not to return the Study while the FOIA litigation is pending in no way precludes appropriately cleared individuals in the Executive Branch from reading the Study. We urge that you reconsider your position and disseminate the full and final Committee Study to appropriately cleared senior individuals in the Department of Justice and FBI, and instruct other appropriate federal departments to take the same position. For the same reason, we urge you to explicitly commit to retaining copies of the full 6,700-page Study.

We hope you agree that the legacy of this historic report cannot be buried in the back of a handful of Executive Branch safes, never to be reviewed by those who most need to learn from it. We look forward to hearing from you on this important issue.

The DOJ's argument that it has to block anyone from reading the document, lest it magically switch from a Congressional document to an executive branch one is apparently puzzling to experts.

“It’s quite bizarre, and I cannot think of a precedent,” said Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists. He said there are any number of classified Senate documents that are shared with intelligence agencies and remain as Congressional records, even if they are read by members of the executive branch.

But it's not at all bizarre when put into the simple context of recognizing that this administration has bent over backwards refusing to look back on the nature of what the CIA did and whether or not it violated the law or international agreements on torture (or basic morality). This is just another way to avoid facing up to the mistakes of the past, and conveniently using a FOIA lawsuit as a method for making sure this information remains in the dark.

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Back in December of 2013, DC district court judge Richard Leon shocked many by declaring the NSA's bulk collection of phone records under Section 215 of the PATRIOT Act to be unconstitutional. Just a few months ago, the DC circuit appeals court overturned that ruling and sent it back to the lower court, saying that the plaintiff, Larry Klayman, failed to prove he had standing to bring the lawsuit -- mainly because Snowden only had revealed that the NSA was scooping up all Verizon Business Network phone records, and Klayman was a Verizon Wireless customer. That it had since been revealed that the NSA also got Verizon Wireless records was basically ignored.

As we noted in September, Judge Leon made it pretty clear that he still believed the program was unconstitutional, and pushed Klayman to get the process moving so he could rule. Klayman was able to bring new plaintiffs (J.J. Little and J.J. Little & Associates)) into the case who were Verizon Business Network Services subscribers to take that issue out of play. And now that's happened, and Leon has, once again declared the program unconstitutional and ordered an injunction to have it stopped.

With the Government's authority to operate the Bulk Telephony Metadata Program quickly coming to an end, this case is perhaps the last chapter in the Judiciary's evaluation of this particular Program's compatibility with the Constitution. It will not, however, be the last chapter in the ongoing struggle to balance privacy rights and national security interests under our Constitution in an age of evolving technological wizardry. Although this Court appreciates the zealousness with which the Government seeks to protect the citizens of our Nation, that same Government bears just as great a responsibility to protect the individual liberties of those very citizens.

Thus, for all the reasons stated herein, I will grant plaintiffs J.J. Little and J.J. Little & Associates' requests for an injunction and enter an order consistent with this Opinion that (1) bars the Government from collecting, as part of the NSA's Bulk Telephony Metadata Program, any telephone metadata associated with these plaintiffs' Verizon Business Network Services accounts and (2) requires the Government to segregate any such metadata in its possession that has already been collected.

He did not grant the same order for Klayman or other plaintiffs who were not customers of Verizon Business Services, in order to avoid the standing question. Perhaps more interesting is that, unlike last time, he did not give the government an immediate stay on this ruling, and you can tell he's a bit annoyed about what happened last time:

In my December 2013 Opinion, I stayed my order pending appeal in light of the national security interests at stake and the novelty of the constitutional issues raised. I did so with the optimistic hope that the appeals process would move expeditiously. However, because it has been almost two years since I first found that the NSA's Bulk Telephony Metadata Program likely violates the Constitution and because the loss of constitutional freedoms for even one day is a significant harm... I will not do so today.

Good for him.

As noted above, Judge Leon finds standing just for the two new plaintiffs, basically accepting the appeals court's ruling earlier that Klayman and other plaintiffs failed to "adequately" sustain their claims of harm. He rejects some silly defenses from the DOJ, including the claim that we no longer know if Verizon Business Network Services is a part of the program. As Leon says "it defies common sense for defendants to argue, as they apparently do that the Government has chosen to omit from this breathtakingly broad metadata collection Program a provider that the Government surveilled in the past and that, presumably, has the infrastructure to continue assisting in that surveillance. In fact it would make no sense whatsoever for the Government to use all available tools except VBNS call data to accomplish its putative goals."

Then onto the important stuff: the Fourth Amendment. Leon tackled much of that back in his 2013 opinion, but there's more here, noting that the problem is still in place, even after the USA Freedom Act passed:

In my December 2013 Opinion, I explained at length why both the indiscriminate bulk collection of telephony metadata and the analysis of that data each separately constitute a search within the meaning of the Fourth Amendment.... Neither the recent changes in the operation of the Program, nor the passage of the USA FREEDOM Act, has done anything to alter this analysis. The fact remains that the indiscriminate, daily bulk collection, long-term retention, and analysis of telephony metadata almost certainly violates a person's reasonable expectation of privacy.

Then there's the question of whether these collections count as "unreasonable searches" and Judge Leon finds that they do. In part, he tosses out the usual reliance on Smith v. Maryland by the government, which says that if you give data over to a third party, you no longer have any privacy rights over it (the so-called "third party doctrine"). The ruling compares it to the diminished privacy rights you have in going through airport security:

Notably, Americans know that airports are discrete areas in which certain rights otherwise enjoyed are forfeited.... It is their choice to enter that space and, in so doing, to check certain rights at the door. Not so with cellphones. As already described, cellphones have become a constant presence in people's lives. While plaintiffs' privacy interests in their aggregated metadata may be somewhat diminished by the fact that it is held by third-party service providers, this is a necessary reality if one is to use a cellphone at all, and it is, therefore, simply not analogous to the context of voluntarily entering an airport. In this case, plaintiffs have asserted that the searches were a substantial intrusion on their privacy, and I have no reason to doubt that, nor to find that their privacy expectations should have been diminished given the context. Rather, I conclude that plaintiffs' privacy interests are robust.

Judge Leon also notes that the public really had no idea this was happening, until recently:

Finally, far from Americans being put on notice of the Bulk Telephony Metadata Program such that they could choose to avoid it, the Program was, and continues to be, shrouded in secrecy. This may, of course, be practically necessary for the Program to be effective, but it nevertheless increases the level of the privacy intrusion.

Judge Leon then looks to see if, maybe, just maybe the government can justify this intrusion by showing that these searches were necessary to stop terrorist attacks, but again, finds no evidence to support that.

To date, the Government has still not cited a single instance in which telephone metadata analysis actually stopped an imminent attack, or otherwise aided the Government in achieving any time-sensitive objective. Although the Government is not required to adduce a specific threat in order to demonstrate that a "special need" exists, providing this Court with examples of the Program's success would certainly strengthen the Government's argument regarding the Program's efficacy. This is especially true given that the Program is not designed for detection and deterrence like most other programs upheld under the "special needs" doctrine. Indeed, most warrantless searches upheld under the "special needs" doctrine boast deterrence as a substantial Governmental interest.

He also rejects the idea that the USA Freedom Act shows that Congress is okay with the program and that proves that the NSA had the "special needs" necessary to keep the program running. And he clearly thinks this is a dumb argument, even saying a sarcastic "Please!" in his response:

....the Government makes the bootstrap argument that the enactment of the USA FREEDOM Act confirms the importance of this Program to meeting the Government's special needs, and suggests that this Court should defer to that judgment. Please! I recognize that my duty to evaluate the efficacy of this Program is "not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger."... Nonetheless, while "the choice among such reasonable alternatives remains with the governmental officials," I must still determine whether the Program is reasonably effective in accomplishing its goals, even if not optimally so.... This is a conclusion I simply cannot reach given the continuing lack of evidence that the Program has ever actually been successful as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.

From there he goes on to detail why letting the program continue to spy on the plaintiffs would create significant harm and rejects the idea that the government can't respond quickly enough, noting that it's had 22 months since his original ruling to figure out how to handle this.

Of course, again, the ruling only applies to the bulk phone records of two plaintiffs -- and the entire program is set to end at the end of this month anyway, but it is still an important victory for the 4th Amendment and against NSA bulk surveillance.

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A smallish town in Colorado is home to the teen sexting apocalypse. Something that first appeared to be limited to the football team now apparently involves almost half of Canon City High School's student body.

Superintendent of Canon City High School, George Welsh estimates that half the school is involved. That's about 500 students based on the initial stages of the investigation. Some eighth graders may also be involved.

That estimate given by Welsh has since been revised down to "certainly over 100 different kids," which is still a rather large number of students to suspend and (possibly) bring criminal charges against. Yet that's what Welsh feels should happen.

Right now their punishments are undecided but Welsh said they will likely be suspended and face criminal charges. Because posting nude photos is a class three felony, the students involved could be placed on the sex offender registry.

The Canon City Sex Offenders. Catchy, but also horrific and bound to be the least popular choice for new school mascot. Fortunately, the district attorney doesn't believe the path should lead through the local criminal court.

“Consenting adults can do this to their hearts’ content,” said Thom LeDoux, the district attorney, but “if the subject is under the age of 18, that’s a problem.”

He added that he was not interested in arresting hundreds of children and would “use discretion” if he decided to file charges.

This is a far more rational response than we're used to, although LeDoux reserving the right to "use discretion" suggests at least a few of these hundreds of students may end up on the sex offender registry. Especially with this added remark.

Mr. LeDoux, the district attorney, said the investigation would look into whether any adults were involved, whether children were bullied into participating, and whether any illegal sexual contact occurred.

As LeDoux pointed out, if everyone was over 18, all of this would be legal. But the ages of those involved invokes statutes ill-equipped to handle this sort of sexual activity by minors. Under Colorado law, any person under the age of 18 is considered a "child" for the sake of child pornography prosecutions. This means the only thing LeDoux has to do is find a few "adults" within the student body.

The general assembly hereby finds and declares: That the sexual exploitation of children constitutes a wrongful invasion of the child's right of privacy and results in social, developmental, and emotional injury to the child; that a child below the age of eighteen years is incapable of giving informed consent to the use of his or her body for a sexual purpose; and that to protect children from sexual exploitation it is necessary to prohibit the production of material which involves or is derived from such exploitation and to exclude all such material from the channels of trade and commerce.

The relevant portions of the statute would treat sexting as the production and distribution of child pornograpy. If it will be used to charge teens with sexually exploiting themselves (because they cannot give informed consent, even when photographing themselves) remains to be seen. The law, like those in other states, offers no guidance on how to proceed if the creators and recipients of the images are under the age of 18. This is where the prosecutorial discretion comes into play. A few convenient 18-year-olds would make for useful scapegoats should the community unite behind the move to prosecute its way out of this "embarassment."

Court decisions clarifying Colorado's statutes add even more bad news.

Evidence that a person has knowingly received prohibited material in an e-mail could be accepted as proof that the person knowingly possessed the material, because a person who knowingly receives an e-mail is aware of the nature of its content and has immediate and knowing dominion or control over it. Fabiano v. Armstrong, 141 P.3d 907 (Colo. App. 2006).

If read directly, this means students who received unsolicited photos from other students could be found guilty of possession. Even deleting the unwanted photos is of limited defensive use.

The presence of digital images in an internet cache can constitute evidence of a prior act of possession. There was enough evidence that the jury could infer that the defendant knowingly viewed the images in the internet cache. People v. Marsh, -- P.3d -- (Colo. App. 2011).

If the DA decides some charges are warranted, these will be the laws used and they cannot be adapted to fit this situation without a significant amount of imagination and collateral damage.

For now, though, there's been far more restraint exercised than has been exhibited by others in the same situation. Unfortunately, I get the feeling this restraint is more prompted by the sheer scale of the situation, rather than a realization that child porn/sexual assault laws were never written to address this sort of thing. In cases where the sexting has only involved a handful of individuals, school administration and law enforcement have moved far more swiftly and reacted more harshly.

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One of my very first jobs in Silicon Valley was to try to help an internet startup get a big juicy contract with the US government (specifically the Department of Defense). The whole process was a disaster of epic proportions, in which I learned a ridiculous amount about government procurement, none of it good. At one point, I believe the company I worked for was paying a 5-figure-per-month "retainer" to an ex-high ranking military guy, mainly so that he would go out and drink a lot of bourbon with his DoD buddies and award us a no-bid contract before anyone realized it should be put out to bid. And, of course, as an internet startup, we didn't have a GSA contract, and had to find a sham "partner" who would officially get the contract, under which we'd be a subcontractor. And, of course, we were asking for millions of dollars in government cash, and the technology we had in place wasn't anything like what the DoD was actually looking for. In short, the whole thing was a complete mess. That was two decades ago, so I'd hope that things had changed, but we've heard so many stories of the ridiculousness of government procurement, that I doubt it's changed that much.

But... there are glimmers of hope. And a neat little technical division of the GSA, known as 18F, which is modeled on startup culture and bringing a much more innovative take on technology to the government (it's the same group that's going around making the rest of the federal government encrypt their websites...), recently ran an experiment which (somewhat unexpectedly to all involved) resulted in the GSA awarding a $1 contract for a bit of open source software. And, yes, that's ONE DOLLAR.

A few weeks back, 18F announced this experiment in "micro-purchase" contracts, with the idea being to see if they could create a quick and simple process to both (1) do small focused contracts and (2) make it easy for smaller tech firms to actually provide their products and services to the government. So 18F posted the details of a specific problem it was trying to solve to Github, and then created a Google form, to serve as a sort of blind reverse auction. Here's how 18F described things:

If you’re interested in bidding, the closing time for the bid is 12 p.m. on Thursday, October 29, 2015. The opening bid starts at $3,499, and the lowest bid at the closing time will have 10 working days to ship the code necessary to satisfy the criteria. If the criteria are met, the vendor gets paid. If the criteria aren't met the vendor shall not receive payment, the next lowest bidder will have the opportunity.

Got it? Makes sense, as a way to try to keep costs down, but not to make it so crazy low that it's not worth someone's time (or where they're not able to deliver). Except... no one expected someone to (a) bid $1 and (b) then deliver working code that not only met the requirements, but exceeded them. But that's what happened:

Then, there was the $1 bid.

When we received the $1 bid, we immediately tried to figure out whether it was intentional, whether it was from a properly registered company, and whether we could award $1. We contacted the bidder and we confirmed that the bid was valid, that the registration on SAM.gov was current, and that the bid would be the winning bid. It was a plot twist that no one here at 18F expected. This unexpected development will no doubt force us to rethink some of our assumptions about the reverse-auction model.

In some respects, this result was the best possible outcome for the experiment. It proved that some of our core assumptions about how it would work were wrong. But the experiment also validated the core concept that open-source micro-purchasing can work, and it’s a thing we should try to do again. A few weeks ago, micro-purchasing for code was just an idea, but now that we’ve done our first experiment, the data demonstrate that the idea has potential and can be improved upon.

You can see the "winning" $1 pull request by Brendan Sudol over at Github, which went above and beyond the requirements:

Not only did Brendan Sudol meet the requirements of loading the data, the new code had 100 percent test coverage, an A grade from Code Climate, and included some new functionality to boot.

18F notes that the experiment turned up a few other interesting tidbits, including that of the 16 bidders, 8 of them registered to be a government contractor on SAM.gov after the project was announced (showing that, indeed, the process of becoming a government contractor appears to be getting much easier). They also noted that the highest bidder was for $740 with the smallest (obviously) being $1. The most common bid was $50.

Obviously, the $1 bid is both a bit of a gimmick, and something where Sudol recognized that it wouldn't be that much work to provide the code and it apparently seemed like a project worth doing. I doubt that we'll regularly see the government awarding $1 contracts, and the GSA is hardly likely to become the government version of TaskRabbit or Mechanical Turk. But it's still interesting to see the ways in which the terrible inefficiency of government purchasing might go down -- and more recognition over the idea that, if the government just needs a few lines of code, it doesn't need to award a multi-million dollar contract to some stodgy old "services" company.

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In the past few days there have been a flurry of stories about the Russian plane that crashed in the Sinai peninsula, which investigators reportedly think may have been caused by a bomb. Notably, anonymous US officials have been leaking to journalists that they believe ISIS is involved, and it's actually a perfect illustration of the rank hypocrisy of the US government's position on the Edward Snowden disclosures.

Why do US officials allegedly have a "feeling" that ISIS was involved? According to multiple reports, US intelligence agencies have been intercepting ISIS communications discussing "something big" in the region last week.

CNN published a report on Tuesday based on anonymous sources that ISIS was likely responsible despite the fact that "no formal conclusion has been reached by the U.S. intelligence community and that U.S. officials haven't seen forensic evidence from the crash investigation":

The signs pointing to ISIS, another U.S. official said, are partially based on monitoring of internal messages of the terrorist group. Those messages are separate from public ISIS claims of responsibility, that official said.

Huh, weren't we told by Snowden's critics that it was terrible and traitorous when sources tell journalists that the US has surveillance capabilities that, in addition to collecting information on millions of innocent people, also target alleged terrorists?

Just today, the Daily Beast reported this:

The U.S. intelligence community intercepted a signal from an ISIS-affiliated group in the Sinai Peninsula before a Russian jet crashed there on Saturday that warned of "something big in the area," two officials told The Daily Beast. An adviser familiar the U.S. intelligence said a call was made between members of Wilayat Sinai, which a U.S. official said Thursday was one of the "most potent" branches of ISIS. The conversation did not mention downing an airplane, but a defense official said comments could be tied to the crash. (emphasis mine)

Here the leak is even more specific: the little-known name of the subgroup targeted by surveillance (Wilayat Sinai), including their general location (Sinai) and the time of the interception (sometime before the crash).

And just in case anyone wants to pretend that every other surveillance capability of US intelligence is classified but somehow this investigation is not, the New York Times clarified in their article on Wednesday:

"There's not one thing that we know what is saying to us, 'This is a bomb,' " said one of the American officials, who like others spoke on the condition of anonymity because they were discussing intelligence considered preliminary and classified. "It's just all indications of this or that, and not clear right now." (emphasis mine)

So many people criticized Edward Snowden for allegedly leaking information showing that the US targeted suspected terrorists in Pakistan and Yemen with their surveillance capabilities. Keep in mind, Snowden did not publish any of this information himself; it was the decision of major newspapers that found the information was newsworthy. It was also vague information that was months or years old, and in the vast majority of cases not the focal point of the stories -- which was the information collected on millions of innocent people at the same time.

In this case, US officials have no problem at all leaking classified information about top secret surveillance capabilities which target terrorists, since it fits within their narrative. It's also more specific information that's more timely, involving an investigation that is still ongoing. Even the most virulent commentators who claim that Snowden was a traitor for leaking classified information had no problem publishing similarly leaked information about this potential terrorist attack.

We can almost be certain that there will be no leak investigation and no one will be punished -- despite the fact that by the government's own interpretation of the law, this is clearly illegal. (Not that we believe anyone should be prosecuted for leaking, but if the US is going to prosecute, they should do so uniformly and not cherry-pick who they want.)

This has happened over and over since the Snowden revelations started and we can only assume it'll happen again. That's because the US government's policy on leaks has never really been about enforcing the law, or that leaks are so damaging to national security. It's about controlling the story the media tells.

Reposted from the Freedom of the Press Foundation

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We've already established that the University of Kentucky is sort of insane when it comes to overly restrictive trademark practices. We've also established that many other educational institutions are equally asshat-ish when it comes to trademark issues, in particular, for some reason, on any matter that in any way has to do with alcohol brands. The beer and liquor industries are dealing with their own trademark issues resulting from the explosion in craft brewing, but this is the story of how the University of Kentucky has managed to convince itself and, apparently, the USPTO that it has sole ownership of the very name of the state in which it is located for use on apparel.

This all started when Kentucky Mist Moonshine opened its doors recently and, along with ostensibly selling moonshine (mmm!), the company also created apparel to sell at the distillery. You know, hats and T-shirts and whatnot, all of which had "Kentucky Mist Moonshine" branded on them. That's when the University of Kentucky stuck its nose into the distillery's business for reasons I can't even begin to understand.

UK threatened legal action against Kentucky Mist Moonshine for its pursuit of a federal trademark registration for the Kentucky Mist Moonshine mark for hats, hooded sweatshirts, jackets, pants, shirts, shoes and socks in international trademark Class 25 based on its registration of the Kentucky Mist mark.

As a result of the threat letters, Kentucky Mist has filed suit against the university, requesting either that the school's trademarks be declared invalid or, the more likely outcome, reform the registration to limit the protection of the marks to apparel that clearly attempts to trade off of an implied endorsement or association with the school. This only makes sense in terms of the purpose of trademark law, of course, which centers around customer confusion and the ability of a brand to identify itself as the source to the consumer. Kentucky Mist apparel, on the other hand, does nothing to even remotely associate itself with the school. This is all about the control of the word "Kentucky," which is the name of a location and is so generic as to never deserve trademark protection to begin with.

The school's response amounts to stating that it registered the mark and that's the end of the story.

In an email message provided to the Herald-Leader on Oct. 29, UK spokesman Jay Blanton said the university has used the word Kentucky as a trademark to identify its athletic uniforms and various articles of clothing sold to fans since at least 1940. Blanton's letter said the university registered in 1997 with the U.S. Patent and Trademark offices for the word Kentucky for clothing, educational services and collegiate athletic services.

But that's not really true. Established trademarks are reviewed all the time, particularly in the cases of glaringly generic marks such as the name of a state or other geographical location. The message went on to note just how much money the university generates by licensing the use of the word "Kentucky" for clothing, claiming that their tradedmark is "incontestable." We'll find out shortly just how true that is, given that Kentucky Mist intends to contest it via this suit, but the larger point is that a government that permits so much restriction in the name of trademark needs to do a better job of not approving such general trademarks to begin with.

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According to sources inside Disney, the company (along with Lucasfilm) plans to discontinue the manufacture and sale of any Slave Leia merchandise in the future. Will that make what already exists more collectible? One blogger with a self-storage unit full of Slave Leia merchandise hopes so! There is also a push to rename Slave Leia to Slayer Leia, since she uses the very same chains Jabba used to hold her captive to choke that sluggy f***er out until his eyes roll back in his head.

The "Slayer Leia" concept appears to be riding a wave of unease in the Star Wars fan community -- unease not with the costume itself, but with the way it has traditionally been portrayed in various forms of merchandise. "Not only does Leia win, but she slays her oppressor Jabba with the chains that bind her," Star Wars blogger Tricia Barr wrote this summer on her site Fangirl..." "Female cosplayers have taken the powerful message embedded in the character and worn the costume with pride..." The fact that the slave attire serves valid storytelling and characterization purposes within the movie, however, does not somehow automatically give a free pass to all the ways Lucasfilm or its licensees have exploited the costume and its image since then.

I never even thought of that, that really is a powerful message. Of course, if George Lucas had his way he would probably remove Slave Leia from the movie entirely and replace her with a CG space bear or something. I also heard in the Mos Eisley scene between Han and Greedo he wanted to replace Han's blaster pistol with a baby so there's no way he could have shot first. Thanks to everyone who sent this, several of whom are on eBay right now buying all the Slave Leia toys they can find.

Another company is learning about the fine points of Section 333 of the Communications Act, which prohibits willful interference with any licensed or authorized radio communications. This time, it’s the folks who provided the Baltimore Convention Center’s in-house WiFi service who were caught by the FCC trying to block individual WiFi hotspot users from going online. Meanwhile, Hilton is also being slapped with a proposed fine for its failure to comply with an investigation into its alleged hotspot blocking.

Virginia-based M.C. Dean is a huge contractor for electrical and communications systems, and provides telecom services, including WiFi to the Baltimore Convention Center (BCC), where exhibitors were charged several hundred dollars if they wanted access to the BCC WiFi network.

But some exhibitors get better wireless data pricing through — or have needs that are better met by — the use of WiFi hotspots that connect to cellular data networks.

According to a newly released FCC notice of apparent liability [PDF] the commission received a complaint on Oct. 23, 2014, from a company that offers competing WiFi service, alleging that M.C. Dean’s system was sending out “deauthentication frames” to inhibit hotspot users from maintaining a connection between their hotspots and their other devices, thus preventing them from working properly.

The complainant alleged that M.C. Dean’s actions were identical to those that had earned Marriott a $600,000 fine only weeks earlier.

FCC investigators visited BCC three times in the weeks that followed, first confirming that their independent WiFi hotspots worked outside the convention, but not inside, then confirming M.C. Dean’s use of deauthentication frames to cause these disconnects.

When confronted by inspectors, an M.C. Dean staffer acknowledged the blocking but said that visitors still had access to the BCC’s free WiFi network. But the FCC notes that this access was only available in the public lobbies of the BCC and not on the exhibitor floor, where M.C. Dean charged anywhere from $795 to $1,095 for access.

The company later confirmed that it had, since Oct. 2012, been using deauthentication tech to block non-M.C. Dean WiFi access at the convention center.

While one might shrug off the company’s crass attempt to cash in from convention attendees, the FCC notes that there is evidence that M.C. Dean’s auto-blocking system reached beyond the walls of the BCC, meaning the company was screwing over people — and web-connected buses, cars, and trains — who had nothing to do with the conventions.

M.C. Dean tried to defend the illegal hotspot blocking by saying its intended purpose wasn’t to gouge exhibitors or drive out competition, but to “detect and prevent malicious attacks on the wireless network and improve network security and reliability.” However, the FCC says the company provided no evidence of how blocking WiFi hotspots was going to achieve that desired end.

The company also argued that it didn’t do anything horrible because it had whitelisted a handful of pieces of equipment from the auto-blocking system, but the FCC this is just more proof that the company was deliberately blocking the rest of the users.

Then there’s M.C. Dean’s claim that all was okay because it left unblocked a total of two of the dozens of available WiFi channels. This argument did not win over the FCC, which writes that “M.C. Dean offers no evidence that any device that was blocked by M.C. Dean would be capable of automatically finding the one channel in each band that was left unblocked. Such automatic capability does not appear to be standard among Wi-Fi devices and, if it were, it would still force all such devices to share a single channel that could become highly congested and perhaps unusable.”

Finally, M.C. Dean tried to make the case that its blocking of third-party hotspots constituted allowable “network management,” and was not malicious. Again, the FCC disagreed, saying that the company “sought to cause, and in fact did cause, harmful interference to lawfully operated third-party networks… M.C. Dean knew that its system would cause interference to other Wi-Fi devices – in fact, that was the company’s goal.”

The FCC is now proposing a fine of $718,000 against M.C. Dean.

“Consumers are tired of being taken advantage of by hotels and convention centers that block their personal Wi-Fi connections,” said Travis LeBlanc, Chief of the FCC’s Enforcement Bureau. “This disturbing practice must come to an end. It is patently unlawful for any company to maliciously block FCC-approved Wi-Fi connections.”

In related news, the FCC has slapped Hilton Worldwide with a proposed $25,000 fine for allegedly obstructing the commission’s investigation into claims of WiFi blocking.

Since Nov. 2014, the commission has been trying to investigate complaints that multiple Hilton properties are blocking visitors’ personal WiFi hotspots.

Rather than provide all the information requested by the FCC about all locations involved in the complaints, the hotel company only answered questions about a single Hilton property in Anaheim, CA. Furthermore, notes the FCC [PDF], “Those answers were incomplete and inadequate even for that one property.”

The FCC says it then sent multiple warnings about the inadequacy of Hilton’s response, but has thus far only received “limited information regarding the WiFi blocking systems utilized at a small number of additional Hilton properties and again failed to answer many of the questions.”

Thus, the commission seeks to levy the $25,000 penalty against Hilton for “apparently willfully and repeatedly violating” the FCC order. If the fine isn’t enough to convince Hilton to turn over the requested information, the commission says it is prepared to take further actions against the hotel chain.

“To permit any company to unilaterally redefine the scope of our investigation would undermine the independent search for the truth and the due administration of the law,” explains LeBlanc.

Something long-believed but short of official documentation has now been confirmed: Stingray devices can intercept phone calls.

[N]ewly released documents confirm long-held suspicions that the controversial devices are also capable of recording numbers for a mobile phone’s incoming and outgoing calls, as well as intercepting the content of voice and text communications. The documents also discuss the possibility of flashing a phone’s firmware “so that you can intercept conversations using a suspect’s cell phone as a bug.”

The information appears in a 2008 guideline prepared by the Justice Department to advise law enforcement agents on when and how the equipment can be legally used.

The closest we've come to official confirmation of this capability is the DOJ's 2015 "official guidance" on Stingray warrant requirements, which noted that all devices must comply with the pen register requirements, which means the interception of phone numbers only. Any device used by agencies under its control must not use them for the interception of communications.

It also would suggest they're not allowed to use them to obtain cell site location data, as that information can't be obtained with pen register orders. The documents obtained by the ACLU (after a protracted legal battle) clarify this in the opening pages.

111. Invocation of 18 U.S.C. 2702(c)(4) to receive prospective cell site: Reliance on this provision to allow repeated, perspective collection of cell site data may be problematic. Judicious use of this provision is advised. Advise the field that the more prudent course of action is to obtain a search warrant under Rule 41 for repeated disclosures of prospective cell site information because Rule 41 has prospective effect.

The document also handily suggests that a good way to get around pen register limitations and/or warrant requirements is to just ask the service provider for the data ("a service provider can voluntarily disclose historical cell site data..."). Anything handed over voluntarily apparently doesn't implicate the Fourth Amendment, even though the location data was generated by the person with the phone, rather than autonomously by the cell phone provider. But that's the Third Party Doctrine for you.

Following that are instructions for "Emergency Wiretap Orders," which directly mentions utilizing IMSI catchers to intercept communications.

Obtain the following, relevant facts: 1) circumstances giving rise to the emergency situation; 2) who, if known, is using the target phone/facility/location; 3) how the target phone/facility/location was identified; 4) when the phone/facility/location was last known to be used; 5) most recent criminal activity; and 6) basis for belief that phone/facility/location will be used for communications concerning the crime, i.e. what evidence is there that the perpetrator is acting in concert with others -- what communications will be obtained.

More confirmation here, in wording that is echoed by the DOJ's 2015 cell tower spoofer guidance:

Digital analyzers/cell site simulators/triggerfish and similar devices may be capable of intercepting the contents of communications and, therefore, such devices must be configured to disable the interception function, unless interceptions have been authorized by a Title III order.

And for those of you who'd like to play along at home, several of the pages can be printed out and used for your own game of Stingray court order Mad Libs.


You won't have to read all the way to the end, though. Most of the interesting stuff happens in the first few pages, but in true bureaucratic fashion, the bulk of the 71 pages is made up of duplicated responsive documents.

These documents, of course, only deal with the DOJ and its agencies. Whatever's being issued as guidance here doesn't necessarily carry over to local law enforcement agencies using these devices. Considering the intense secrecy surrounding IMSI catchers, it's safe to say they've been deployed to collect communications without a warrant (or at least a warrant that directly refers to the device and its intended use), and we do know they've been using them as ad hoc tracking devices by grabbing cell site location data. When the lid finally comes off entirely, I'm sure we'll see a great number of constitutional violations tracing back to IMSI catchers.

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Back in 2011, we wrote about a troubling ruling in the Supreme Court in AT&T Mobility v. Concepcion, the case which basically said that it's perfectly fine for businesses to put in place "binding arbitration" clauses, that take away people's rights to take a company to court over some sort of wrongdoing. As I noted at the time, ever since taking a series of classes on arbitration in college, I've been fascinated with the process, which sounds like a good idea. But it's yet another case where theory and reality don't necessarily match up.

The theory is that arbitration is a cheaper and more efficient way to deal with disputes between two private parties. Rather than submitting yourself to an overburdened, slow court system, with tons of rules and limtiations, you bring in a "neutral" arbitrator who can help go through both sides of the story and decide who is right. The problem is in the reality. In cases between businesses and individuals, businesses win nearly 97% of the time. Think about that for a second. It's not hard to see why: arbitrators are usually chosen jointly by both parties, but the companies are the ones who are going to be going back for more arbitration over and over again, and if an arbitrator rules against them, they won't even be on future lists at all. It doesn't take a genius in game theory to recognize that the arbitrator will be under tremendous pressure to side with the company, and the stats support that.

This weekend, the NY Times took a deep dive into the mess that has become this private judicial system known as binding arbitration, demonstrating horror story after horror story of how the system has failed ordinary people to the benefit of large corporations. Basically, the fears I wrote about four and a half years ago have become true. As we noted at the time, we agree that the class action judicial system in the US is broken, but replacing it with private arbitration is quite clearly a much worse solution that would certainly lead to companies regularly being able to get away with horrific behavior, leaving individuals with basically no recourse.

The Times story further supports the idea that arbitrators are under pressure to side with companies, even getting a few to admit that:

But in interviews with The Times, more than three dozen arbitrators described how they felt beholden to companies. Beneath every decision, the arbitrators said, was the threat of losing business.

Victoria Pynchon, an arbitrator in Los Angeles, said plaintiffs had an inherent disadvantage. “Why would an arbitrator cater to a person they will never see again?” she said.

The article is full of story after story after story of crazy things happening in arbitration situations that would never be allowed in real courts.

Behind closed doors, proceedings can devolve into legal free-for-alls. Companies have paid employees to testify in their favor. A hearing that lasted six hours cost the plaintiff $150,000. Arbitrations have been conducted in the conference rooms of lawyers representing the companies accused of wrongdoing.

Winners and losers are decided by a single arbitrator who is largely at liberty to determine how much evidence a plaintiff can present and how much the defense can withhold. To deliver favorable outcomes to companies, some arbitrators have twisted or outright disregarded the law, interviews and records show.

In one of the key examples (though there are many) in the article, this story is revealed:

For Ms. Pierce, the most astounding moment came when her lawyers asked Mr. Kalogredis to impose sanctions on the defense for breaking the rules of discovery and destroying evidence. He fined the defense $1,000 after investigating the matter, then billed Ms. Pierce $2,000 for the time it took him to look into it.

There's a lot more craziness as you read through the article. Again, I'm no fan of class action lawsuits, generally speaking. The vast majority of them tend to be boondoggles to help lawyers cash out, rather than actually help the members of the class. But that problem can be dealt with in other ways rather than forcing people to give up their right to petition a court in a dispute through a "binding arbitration agreement" in a clickthrough terms of service no one actually reads.

As one lawyer in the article notes, the whole arbitration process is corrupt because it's forced on people. If two parties willingly agree to go to arbitration, that's one thing. But that's not what's happening.

And this is a problem that isn't just about companies and individuals. As we've been discussing, trade agreements like the TPP and TTIP have a thing we've been calling corporate sovereignty, and which is officially called "Investor State Dispute Settlement" (ISDS). In reality, it's just an "arbitration" system for disputes between companies and countries -- where the arbitrators will often face the same pressures to side with the companies over the countries (at least one hopes that countries will have slightly more bargaining power). As the NY Times article details, companies have learned to play this game pretty well over the last few years, and they must be excited about the possibilities to do it on a wider scale:

Unfettered by strict judicial rules against conflicts of interest, companies can steer cases to friendly arbitrators. In turn, interviews and records show, some arbitrators cultivate close ties with companies to get business.

Some of the chumminess is subtler, as in the case of the arbitrator who went to a basketball game with the company’s lawyers the night before the proceedings began. (The company won.) Or that of the man overseeing an insurance case brought by Stephen R. Syson in Santa Barbara, Calif. During a break in proceedings, a dismayed Mr. Syson said he watched the arbitrator and defense lawyer return in matching silver sports cars after going to lunch together. (He lost.)

Other potential conflicts are more explicit. Arbitration records obtained by The Times showed that 41 arbitrators each handled 10 or more cases for one company between 2010 and 2014.

The court system is far, far, far from perfect. But a secretive, private judicial system that is rigged to companies? That's much, much worse.

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Want to travel from anywhere to anywhere in the United States without being hassled by law enforcement officers? Good luck with that, citizen.

USA Today's Brad Heath pointed out an interesting footnote in an asset forfeiture filing that made the assertion that traveling from Chicago to Los Angeles is inherently suspicious. (One presumes the opposite is also true.)

If you can't see the embed, the government's footnoted assertion reads:

Chicago is a known consumer city for narcotics and Los Angeles is a known source city where narcotics can be purchased.

Also of note: suspect had a backpack, an item used to carry stuff -- something no legitimate traveler would possess.

Turns out this sort of ridiculous assertion isn't limited to this particular filing. Law enforcement agencies are of the firm belief that traveling between any cities where drugs might be "consumed" (which would be every city in the US) and any cities where drugs might be sold (again, the list is long and inclusive) is a healthy indicator of drug-related activity.

The following map lists "known" drug "source" [red] and "destination" [blue] cities, along with links to relevant court filings or statements by law enforcement officials. Pretty much traveling from any large city to anywhere else could be construed as a drug run.


Even though the courts are sometimes unimpressed by this facet of reasonable suspicion, it's still routinely used to justify searches of all things.

US v. Green

Once we discount the facts with which we find weaknesses, we are left with Green's arrival on a plane from a known source city, and her vagueness about the purpose of her trip. These facts are insufficient to demonstrate a reasonable articulable suspicion of criminal activity.

US v. Newland

Given that nearly every stretch of interstate is considered a drug corridor, the fact that a stop occurred on any such route is almost meaningless. See United States v. Wisniewksi, 358 F. Supp. 2d 1074, 1093 (D. Utah 2005) (“[T]raveling on a ‘drug corridor’ cannot reasonably support a suspicion that the traveler is carrying contraband. To so hold would give law enforcement officers reasonable suspicion that every vehicle on every major—and many minor—thoroughfares throughout this country was transporting drugs.”), aff’d, 192 Fed. App’x 749 (10th Cir. 2006). Furthermore, because of courts’ willingness to designate various cities and states as “source” regions for narcotics, it is likely that most major roads in this country could be considered drug corridors. See Foreman, 369 F.3d at 795 (Gregory, J., concurring in part and dissenting in part); United States v. Beck, 140 F.3d 1129, 1138 n.3 38 (8th Cir. 1998) (citing cases recognizing, inter alia, Colorado, Texas, Florida, Arizona, the entire West Coast, New Jersey, New York City, Phoenix, Fort Lauderdale, Houston, Chicago, and Dallas as drug source cities or states); State v. Quirk, 842 N.E.2d 334, 343 (Ind. 2006) (“[C]onsidering the substantial number of states and cities that have been designated as sources of drugs, a motorist, in our highly mobile society, would be hard pressed not to travel either from, to, or through a drug-source jurisdiction.”).

Speaking of which, if you're not flying, you're probably driving. Nearly every major highway in the US can be considered a "drug corridor," depending on who you ask. These "drug corridors," also known as "interstate highways," are prime trolling spots for asset forfeiture. Traveling along these roads subjects out-of-state travelers to instant suspicion and warrantless searches, simply because these roads are also used by drug traffickers. Good luck avoiding using one of these highways during a road trip.


Now, some of you might be saying, "Every one of these cases cited resulted in a law enforcement officer finding drugs! They're right to be so suspicious!" Well, arrestees have more motivation than most to challenge the constitutionality of a search. Many innocent people who have been illegally searched simply because they're on one of these roads/in any major airport won't file a lawsuit. In fact, many people probably believe law enforcement has the right to search people and vehicles simply because of their originating cities and/or destinations. On top of that, many searches and seizures are tied to asset forfeiture, where no conviction is ever obtained and the amount of money seized suddenly seems unimportant when a lawyer informs someone they'd need $5000 or so to even consider fighting the uphill battle to liberate the seized funds.

And if you don't believe me, here's Eighth Circuit Appeals Court Chief Judge Richard Arnold -- from all the way back in 1992 -- explaining the dangers inherent to viewing travellers as drug traffickers simply because of where they're going or where they've come from.

The White opinion is less than three years old, and none of our cases decided since that time has questioned it or thrown doubt upon it in any way. There are differences between the present facts and those in White, to be sure, as there always are, but the differences, on balance, do not place this search and seizure appreciably closer to the line of legality than what happened in White. Like Weaver, White was “very nervous,” he arrived from a source city, the flight was early in the morning, and White had no checked luggage. Some of the facts in White, indeed, appear stronger than the present case: for example, White had purchased his ticket with cash, and it was a one-way ticket. The agents did not know whether Weaver had bought his ticket for cash or not, or whether it was one way. Weaver did not have a copy of his ticket, but sometimes innocent people lose their tickets, to say nothing of ticket coupons which may be of no further use to them. I have lost tickets myself. Weaver had no identification, or at least declined to produce any, but this was his undoubted right: we have not yet come to the point in this country (except maybe in airports) when citizens must identify themselves to public employees.

[...]

Airports are on the verge of becoming war zones, where anyone is liable to be stopped, questioned, and even searched merely on the basis of the on-the-spot exercise of discretion by police officers. The liberty of the citizen, in my view, is seriously threatened by this practice. The sanctity of private property, a precious human right, is endangered. It’s hard to work up much sympathy for Weaver. He’s getting what he deserves, in a sense. What is missing here, though, is an awareness that law enforcement is a broad concept. It includes enforcement of the Bill of Rights, as well as enforcement of criminal statutes. Cases in which innocent travelers are stopped and impeded in their lawful activities don’t come to court. They go on their way, too busy to bring a lawsuit against the officious agents who have detained them. If the Fourth Amendment is to be enforced, therefore, it must be by way of motions to suppress in cases like this.

This is America, post-declaration of (drug) war. This has been 40 years in development. Now, we've added the faulty assumptions of the post-9/11 "national security above all" mindset to it. Traveling from anywhere to anywhere is to invite the suspicions of our nation's domestic "warriors" who patrol our airports and highways, ever-vigilant for the opportunity to rip open luggage or toss a rented car in hopes of finding drugs… or better yet, cold, hard cash.

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There are a few ways law enforcement agencies acquire cell tower spoofers. Very rarely do agencies pay for these expensive devices themselves. (Meaning with their funds drawn from their own departments. Obviously, no government agency is self-funded.) In most cases, funding in whole or in part is obtained from the DHS -- something nearly any agency can obtain simply by checking [X] BECAUSE TERRORISM when applying for a Homeland Security grant.

Agencies are also using seized funds from asset forfeiture programs. The Michigan State Police used both methods to buy and upgrade its Stingray, according to documents obtained by the ACLU.

For nearly a decade, the Michigan State Police has had secretive cellphone tracking devices that were bought to fight terrorism but instead are used to solve everyday crimes, internal documents show.

More than 250 pages of emails, invoices and other documents show the state police in 2006 acquired cellphone simulator technology, which lets police collect large amounts of data including the location of users. The equipment was upgraded in 2013 and an internal memo indicates it was used last year on 128 cases ranging from homicide to burglary and fraud, but not terrorism.

But that didn't stop the state police from telling the DHS that it was going to use the device to beat back terrorists.

The documents acquired by the ACLU indicate the state police paid Harris Corp. $206,500 in 2006 for equipment that was “vital to the war on terrorism” and allows “the state to track the physical location of a suspected terrorist.”

The equipment was fully funded by a U.S. Homeland Security grant and the cost matches Harris Corp. prices lists for its Stingray device, Wessler said.

Seeing as burglary and fraud aren't nearly as fund-worthy as actual terrorism, the agency apparently decided against going to the DHS well twice. The second round of funding was internal, but padded by plenty of external "donors."

In 2013, the state used asset forfeiture funds to pay Harris $593,450 for “surveillance and countersurveillance equipment and supplies,” records show.

The money isn't going to waste though. While the state police may have trouble finding enough "serious" crime (documents show 82 arrests and the location of six missing persons… but still no terrorism) to deploy the device against, it apparently needs very little prompting to put it to use. According to the records, the state police fire up the Stingray (now most likely a Stingray 2.0, aka, Hailstorm) once every three days.

Whether further upgrades will be this easy for the state to obtain remains to be seen. For one, this document release, along with last year's discovery of Oakland County (MI) Sheriff's Department's previously-unmentioned Stingray, has placed the use of these surveillance devices under additional scrutiny by legislators.

Additionally, the state government recently passed an asset forfeiture reform bill. While it didn't go as far as many had hoped (thanks to the objections of law enforcement lobbyists), the new law does raise the level of evidence needed to process a forfeiture from "a preponderance" (which sounds much weightier than it is) to "clear and convincing." It also requires additional reporting from law enforcement agencies on the seizure and distribution of funds and property.

That being said, some legislators still don't see a problem with law enforcement agencies doing whatever they want with surveillance equipment they don't want to talk about.

State Rep. Kurt Heise, R-Plymouth Township, chairman of the House Criminal Justice Committee, said McMillin’s bills [introducing a warrant requirement for Stingray use] would have “tied the hands of police.”

“Right now, I don’t think this is an issue ripe for state action,” Heise said. “The burden is on law enforcement to demonstrate they are operating under the constitution ... If the ACLU wants to challenge this in court, then we may have to let the courts sort it out.”

There's a company man. Heise, of course, speaks with authority on the subject of Stingrays, law enforcement burden and the ripeness of the issue. After all, he had no clue about the technology or who had it until someone else pointed it out to him.

Heise said he wasn’t aware the state police have the technology and isn’t concerned about it.

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In 2010, Mike Masnick wrote a post in which he made the analogy between the silly notion that the home taping of music was killing the recording industry and the oft-cited joke that home cooking must be killing the restaurant industry as well. Well, while we were all having a good laugh and slapping ourselves on our collective backs for our clever ingenuity, France suddenly had its restaurant industry under assault by, you guessed it, home cooking. Well, kind of home cooking, at least.

So now it's the turn of the restaurateurs to join the hoteliers and taxi drivers in getting furious with what they see as upstart competitors. Restaurant owners in Paris are furious with chefs who have started catering for diners in their own homes - traditional eateries say they could be put out of business as websites put customers directly in touch with cooks.

So, like Airbnb and Uber before it, there are startup websites, such as VizEat, that allow locals and tourists alike to book dinners in people's homes for a home-cooked meal. Hosts sign up to prepare and host these meals in their homes, users can browse through those hosts' menus and cooking capabilities, and book a dinner. You know, like a restaurant, except in a home. Meal-sharing, they're calling it, because everything has to be sharing apparently. And trade groups representing French restaurants are pissed and are in fact appealing to the French government to step in and make sure they can keep making money in the face of this useful service that people apparently like.

The main Paris restaurateurs' union Synhorcat has appealed to the French government to take steps to curb the phenomenon, arguing that bistros and brasseries risk being put out of business.

"In the space of three years Airbnb has tripled its presence in Paris - to the point that there are now 50,000 flats advertised on its website," Synhorcat's president Didier Chenet tells me. He says small and medium-sized hotels have been hit hard and over the summer they had to drop their prices. "If the government doesn't do something to stop the underground restaurants, it will be the same disaster. There are people out there offering a service which is identical to restaurants: a choice of starters, main courses, desserts, wine, the works. But they pay no rent, no staff, no taxes - it is completely illegal," says Chenet. "And if you want to set up a real restaurant, you need qualifications: how to deal with allergens; how to deal with alcohol. Do these people realise that if a customer drink-drives after a meal, they - the chefs - are partly responsible?"

Everyone should be instantly able to see how absolutely stupid this line of thought is. First, if there are legal liability issues for allergens and alcohol, there are already laws in place for that where they ought to apply. As for not paying rent, where does Chenet think the space for these in-home meals come from? The ether? The staff is being paid, too, as the staff is the host hosting the meal. Taxes? Well, if I order pizza and friends chip in for it, am I required to pay taxes on that? Not a perfect analogy, but if the only argument against this is taxation, that is easily remedied.

And, really, the base concept that meal-sharing is an identical experience to eating at a restaurant is monumentally silly. The proper analogy here isn't Uber, it's the movie theater business. Home entertainment centers are ubiquitous, but movie theaters have survived these past few decades. Why? Well, because the experience of the theater can't be fully replicated in the home. I would think this would be all the more true in the case of restaurants, where the quality of the food and atmosphere are even more paramount than they are in the experience of watching a movie.

"Our chefs are amateurs, and when they sign up they undertake to do this on an occasional basis," says Camille Rumani, Vizeat's co-founder. "The idea is that people visiting a city - or indeed people living there - can search out a more authentic experience, one in which they can have a proper exchange with local people and make new friends. It is not competition for restaurants. It is a new market we are opening up."

That's so obviously true, it's a wonder it actually has to be stated. Restaurants shouldn't feel threatened at all, nevermind trying to get the government to shut down a not-really-competitor for no good reason.

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This is Snake Venom from Brewmeister. It's a 67.5% alcohol beer. It also costs £50 (~$80) for a 9-ounce bottle, so it's probably not the most cost effective choice for getting drunk. Which is why I'm gonna stick to drinking hand sanitizer and mouthwash. Please nobody actually drink hand sanitizer or mouthwash. I wouldn't be able to live with myself knowing there are Geekologie readers out there so stupid.

This unique beer is made with a plethora of malts including peat smoked malt, acid malt and chocolate malt. It is fermented using two types of yeast - ale yeast and champagne yeast in order to deliver a higher alcohol content. It is then painstakingly freeze concentrated. Tasting notes: Dark brown in colour with a nose of alcohol, whisky and hops.

There's a warning on the bottle that says you shouldn't drink anymore than 35ml (~1 ounce) in a sitting, which seems like a little overkill. I guess they just have to say that to cover their own ass. To cover my ass? Right now it's a dirty bath towel but I may slip into some sweatpants or athletic shorts later. "You're disgusting." I am the monster that monsters are afraid of. Note: Article originally published October 2013, but it's going back around the internet again because the internet, like my roommate, is drunk and should be whipped in the ass with a wet towel. Thanks to TBTMH, who agrees there's no purpose for a 67.5% alcohol beer when liquor already exists. Cheers to that.

This is the PowerPoint presentation Redditor michaelsiemsen's son made to convince his parents to let him buy Grand Theft Auto V. Did It work? Not on me it didn't. I read the whole thing and decided he's better off with Minecraft. "But--" TAKE IT OR LEAVE IT, SON. Keep going for the whole presentation. The last three slides are three different endings to the presentation. The first if they say yes, the second if they say they need to think about it, and the last if they say no. Thanks to Tron Guy, but probably not THE Tron Guy.

The FBI's call for more data on officer-involved-shootings is welcome, if belated and somewhat half-hearted. For years, the federal government has been "collecting" this data via purely voluntary contributions by law enforcement agencies around the country. This is why the federal numbers on citizens killed by police officers is usually half that of any data collection put together by private parties.

A reader identifying himself only as "James" sends in the news that the state of Texas is taking a more "proactive" approach to the dissemination of officer-involved-shootings, thanks to a new law which went into effect on September 1st. The documentation on shootings is housed at the state Attorney General's website and contains single-page reporting forms uploaded by involved departments that include data on the victims as well as the circumstances surrounding the shootings.

Of more use, however, is the compilation of the data into a single spreadsheet -- again, an effort made by a private individual with no current ties to law enforcement.

[T]hat information has been made available via a new online spreadsheet compiled by Amanda Woog, a super-smart young attorney who clerked for Judge Cheryl Johnson at the Court of Criminal Appeals before working as a policy analyst for the Texas House Criminal Jurisprudence Committee, where Grits first met her this spring. This fall, she took a post as a postdoctoral fellow at the UT-Austin Institute for Urban Policy Research and Analysis; this database represents her first project in that new role.

Woog has thoughtfully put these two data points right next to each other:


Those concerned about the "Ferguson Effect" or the "War on Cops" will be happy to know that the "Injury or Death of PO [Police Officer]" tab in Woog's spreadsheet is still empty, nearly 60 days from the enactment of the reporting requirements.

This new information joins the other dataset tracking deaths at the hands of law enforcement -- custodial deaths. This data has been collected since 2005 and published for public inspection since 2011. (Again, as the result of legislation, not that famous Texas transparency we've never actually heard of…)

Obviously, given the right amount of direction and incentives (i.e., not breaking state law), law enforcement entities can produce information on officer-involved-shootings in a timely manner. But the national effort has, so far, been strictly voluntary and overseen by a string of Attorneys General who seemingly could not have cared less about their obligations to the public, much less Congressional mandates.

But, even as we see efforts being made as the result of legislation, the execution still leaves a lot to be desired. That's where the public comes in. Law enforcement agencies may be dumping raw data, but we still need people like Amanda Woog to compile the information in an easily-readable format that doesn't require opening dozens of individual PDFs. This sort of unofficial partnership will be what's needed to make sense of the raw data turned over by law enforcement agencies. But the good news is, the data is finally starting to arrive.

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Mason v. Machine Zone, Inc., wherein a Game of War player falls prey to Gamblor and expects the judicial system to extract her pound of flesh ~$100 from its neon claws.

The suit (PDF) by a Maryland woman named Mia Mason says she lost more than $100 and claims the casino is an unlawful "slot machine or device." The court ruled that were it to apply Mason's logic, one might declare skills-based game pinball to be an illegal gambling device as well.

The judge said that, even if he were to decide in the woman's favor, determining the amount of damages she is owed would render him in the "unenviable position of pricing the conversion from virtual gold and chips to virtual wood and rock."

"Such whimsical undertaking may spark the imaginations of children and ardent game enthusiasts, but it can have no place in federal court," Judge Bredar ruled.

And so it goes throughout the decision, which examines each of Mason's baseless claims in great detail. Mason doesn't have a problem with the main gameplay of Game of War (despite her complaints railing against the evils of free-to-play games), but rather its (entirely optional) "wheel of fortune." The chips to use on the "wheel of fortune" are time-released, which encourages impatient players to spend real money to obtain fake cash to spin the fake wheel to obtain fake money and/or virtual goods (wood, stone, etc.) for use in Game of War's core gameplay.

Mason's paid-for wheel spins evidently failed to return what she perceived to be $100 worth of code and pixels. So, she took the game's creator to court under the dubious legal theory that Game of War's virtual "wheel of fortune" violated California's gambling laws.

The decision is well worth a read, not just for those who enjoy watching judges smack down irresponsible people who seek to hold others accountable for their own actions, but also for those who might be toying with the same sort of dubious legal action. Sure, free-to-play games are incredibly effective at exploiting a variety of human weaknesses, but it hardly follows that the exploiters should be forced to compensate those who participated voluntarily to their own detriment.

Judge James Bredar's decision is full of wonderful moments, most of those hidden away in footnotes:

[D]efendant suggests that if the Casino function constituted the type of gambling activity proscribed in California, “it would be the user’s device itself that was made unlawful” under section 330b, a disconcerting notion given the wild popularity of GoW. Plaintiff retorts that “Defendant controls the software and network that supports the Casino . . . and caused Plaintiff’s device to act as a ‘discrete terminal’ for its Casino.” Plaintiff adds that “even if the phone itself was to be considered a gambling device . . . it’s Defendant’s own conduct . . . that rendered it as such.” Plaintiff’s notion that Defendant is solely responsible for a game that Plaintiff volitionally downloaded to her phone seems dubious…

[...]

In her opposition memorandum, Plaintiff posits that she has standing because Defendant’s allegedly unlawful conduct “occurred in and emanated from California.” The Court finds this assertion curious. In her Complaint, Plaintiff had alleged that the United States District Court for the District of Maryland has personal jurisdiction over Defendant because Defendant “conducts significant business transactions in this District, and because the wrongful conduct occurred in and emanated from this District.” Plaintiff, it seems, would have her cake and eat it too.

[...]

Plaintiff paid for the privilege of playing with Defendant’s in-game currency, and she got precisely what she bargained for. Under such circumstances it is not unjust for Defendant to retain the funds it received from Plaintiff; on the contrary, it would be unjust to return those funds to Plaintiff after she benefited from the enhanced gaming experience that “gold” evidently delivers.

[...]

In Plaintiff’s Complaint, she alleges that she spent more than $100 on “gold,” which she thereafter exchanged for chips to spin the Casino wheel. However, Plaintiff conveniently neglects to identify which Casino prizes she won. For all the Court can tell from the face of the Complaint, Plaintiff may have won a pile of “wood”—or a “gold” jackpot.

As the court points out, Game of War's casino-esque "wheel" offers no "real world" payouts, making it less a gambling device and more a vehicle for entertainment. Bredar compares this game dynamic to other things people pay money for while expecting nothing but temporary amusement in return -- like movie tickets.

In the end, it has nothing to do with gambling and everything to do with the plaintiff feeling she was somehow screwed out of her "investment" by Game of War's payouts of virtual construction materials. That, however, isn't an actionable tort.

At the outset of her Complaint, Plaintiff alleges that with free-to-play games of chance, “developers have begun exploiting the same psychological triggers as casino operators.” The Court does not doubt that gambling addiction is a real phenomenon and that the allure of an elusive jackpot can be powerful. Similarly powerful, the Court suspects, is the remorse a buyer may feel when she realizes that she has wittingly swapped her hard-earned cash for simulated gold. The Court does not sit in judgment of the entertainment choices that Plaintiff and others like her have made—but it will not allow Plaintiff to foist the consequences of those choices onto an entertainment purveyor that, at least on the face of this Complaint, appears to have done nothing wrong.

Hopefully, the failure of this lawsuit will discourage future remorseful buyers from bringing baseless lawsuits against companies that are similarly skilled at separating fools from their money. A string of purely voluntary transactions isn't the best basis for a lawsuit. Mason's attempt to use California's gambling laws to sue the game's creator in Maryland proves nothing more than her ongoing ability to be separated from her money.

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Two recent legislative efforts have been mounted to add police to the rolls of "disadvantaged" citizens in need of the additional shelter of "hate crime" laws. Hate crime laws are immediately problematic. They add additional punishments to criminal acts already punishable under existing laws. It's exactly the sort of thing justice isn't meant to be: vindictive. A murder is a murder, whether or not it was propelled by someone's underlying biases. A threat is a threat, no matter the threatener's personal views on race, marriage or human sexuality. Adding additional punishments solely because of a perceived motive serves no purpose other than to make those who support these laws feel like past racial/sexual wrongs are slowly being righted. The sinners of the present pay for the sins of the past sinners.

Adding police officers to this mix is not just stupid and completely antithetical to the underlying rationale of "hate crime" laws. It's also incredibly dangerous. Elizabeth Nolan Brown of Reason takes a look at how hate crime laws are being deployed in other countries. What she's found is that hate crime laws are like any other: they're abused most frequently by those in power and deployed inconsistently to further governments' aims.

The agency tasked with prosecuting hate speech in Kenya is called the National Cohesion and Integration Commission (NCIC); it was formed in 2008 to address ethnic conflicts in the nation. Onyando asserts that NCIC has ignored the bulk of complaints it has received and acts "more like an arm of the ruling coalition" than an independent agency, honing in only on those who speak out against the Jubilee Alliance, a coalition established in 2013 to support the candidacy of current President Uhuru Kenyatta and Deputy President William Ruto.

In this case, the government only cares about hate speech when it's on the receiving end of the hate. But this selective enforcement isn't limited to non-Western governments with a history of corruption. It's also happening in Europe.

Because "hate speech" is not narrowly defined, it's up to those in power to decide what qualifies as hate and what doesn't, and often that depends very much on both whom the speaker is and the sympathies of those in power. France has been accused of treating anti-Semitic sentiment with kid gloves while ignoring anti-Muslim expression. In the U.K., a British teenager was arrested after criticizing British military actions in Afghanistan.

So, selective enforcement should work out great when it's cops who are targeted. Threats against law enforcement officers will be treated as exceptional crimes, even though they're facially indistinguishable from threats made against non-uniformed individuals or groups.

The government in general is supportive of law enforcement, even when agencies' track records indicate this trust is unearned. The selective application of hate crime/hate speech laws will almost always favor this particular "protected" group. "Hate crime/speech" sentence enhancements will be piled on top of existing sentence enhancements pertaining to the assault of government employees. Fines and bail amounts will increase dramatically.

In San Francisco, for instance, leaders recently condemned graffiti saying "No More Chinese" as hate speech. The suspected spray painter was charged with 13 crimes, including felony vandalism with a felony hate crime enhancement. "We're exposing a man to somewhere around six years of jail time for spray painting," said public defender Yali Corea-Levy. And while bail for felony vandalism is normally set around $25,000, the suspect's bail awas set at $155,000. Similar outrage has not been summoned in San Fran for street art advocating the killing of hipsters or urging "techie scum" to die.

Our own government has already indicated a willingness to punish speech that "attacks" the home team. It won't take much to persuade it to use its power against those who take aim -- verbally or physically -- at law enforcement professionals. These new rights won't be equally granted. They will be used almost exclusively to ensure groups with considerable amounts of power and protection are given just a little more.

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Techdirt has been writing about open access for many years. The idea and practice are certainly spreading, but they're spreading more slowly than many in the academic world had hoped. That's particularly frustrating when you're a researcher who can't find a particular academic paper freely available as open access, and you really need it now. So it's no surprise that people resort to other methods, like asking around if anyone has a copy they could send. The Internet being the Internet, it's also no surprise that this ad-hoc practice has evolved into a formalized system, using Twitter and the hashtag #icanhazpdf to ask other researchers if they have a copy of the article in question. But what is surprising is that recently there have been two articles on mainstream sites that treat the approach as if it's really quite a reasonable thing to do. Here's Quartz:

Most academic journals charge expensive subscriptions and, for those without a login, fees of $30 or more per article. Now academics are using the hashtag #icanhazpdf to freely share copyrighted papers.

Scientists are tweeting a link of the paywalled article along with their email address in the hashtag -- a riff on the infamous meme of a fluffy cat’s "I Can Has Cheezburger?" line. Someone else who does have access to the article downloads a pdf of the paper and emails the file to the person requesting it. The initial tweet is then deleted as soon as the requester receives the file.

And here's BBC News:

In many countries, it's against the law to download copyrighted material without paying for it -- whether it's a music track, a movie, or an academic paper. Published research is protected by the same laws, and access is generally restricted to scientists -- or institutions -- who subscribe to journals.

But some scientists argue that their need to access the latest knowledge justifies flouting the law, and they're using a Twitter hashtag to help pirate scientific papers.

Both stories go on to give some background to the approach and its hashtag. But what's striking is that after mentioning that this kind of activity may be against the law, there's none of the traditional hand-wringing about "piracy", and how it will end Western civilization as we know it unless tough measures are brought in to stop it.

It's surely no accident that this novel relaxed attitude to sharing materials covered by copyright concerns academic papers. After all, such sharing lies at the heart of research, which derives much of its power from the fact that people can build on what has been found before, rather than being forced to re-discover old knowledge. The idea of locking away that knowledge behind paywalls, and making it hard for any researcher to access it, is so self-evidently absurd, that even mainstream publications like Quartz or BBC News apparently have no difficulty accepting that viewpoint, implicitly through their coverage, if not explicitly. It's a further sign of copyright's dwindling relevance in a world whose central technology -- the Internet -- is built on sharing and openness.

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

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The DC Appeals Court has just come to an unfortunate conclusion: because terrorism exists, your rights as a citizen will not be upheld if you travel outside of the United States. This summary of the case is from Lawfare's David Ryan, whose article claims this is a "victory" for the DOJ, rather than a loss for the American public.

The plaintiff, Amir Meshal, is a U.S. citizen and resident of New Jersey. According to the allegations in his complaint, he traveled to Somalia in 2006 to broaden his understanding of Islam, but fled to Kenya soon after because of violent unrest. In January 2007, a joint U.S.-Kenyan-Ethiopian law enforcement operation apprehended him and transported him to Nairobi. Over the next four months, the defendants allegedly violated Meshal’s Fourth and Fifth Amendment rights by secretly detaining and interrogating him, threatening him with torture and death, denying him access to counsel, and moving him across the borders of three African countries without legal process. The FBI eventually released Meshal, and the U.S. never charged him with any crime.

Meshal sued the FBI for violating his rights, bringing a Bivens action against the involved agents. This action is supposed to remedy unlawful searches and seizures that occur during criminal investigations. Meshal's case, however, raised previously-unaddressed issues. First, Bivens has never been applied to extraterritorial incidents. Second, the tort -- while addressing actions taken during criminal investigations -- has never been raised in the context of criminal investigations with national security implications. Because of this, the court (somewhat reluctantly) found that Meshal could not seek damages under Bivens.

As we understand it, the Supreme Court has taken a case-by-case approach in determining whether to recognize a Bivens cause of action. We therefore need not decide, categorically, whether a Bivens action can lie against federal law enforcement officials conducting non-terrorism criminal investigations against American citizens abroad. Nor do we decide whether a Bivens action is available for plaintiffs claiming wrongdoing committed by federal law enforcement officers during a terrorism investigation occurring within the United States. Our holding is context specific.

Unfortunately, this means Meshal cannot seek redress under any existing judicial precedent.

Once we identify a new context, the decision whether to recognize a Bivens remedy requires us to first consider whether an alternative remedial scheme is available and next determine whether special factors counsel hesitation in creating a Bivens remedy. See Wilkie, 551 U.S. at 550.

Meshal has no alternative remedy; the government does not claim otherwise. See Meshal, 47 F. Supp. 3d at 122 (“The parties agree that Mr. Meshal has no alternative remedy for his constitutional claims.”). Meshal, backed by a number of law professors appearing as amici curiae, argues that, when the choice is between damages or nothing, a Bivens cause of action must lie. The Supreme Court, however, has repeatedly held that “even in the absence of an alternative” remedy, courts should not afford Bivens remedies if “any special factors counsel[ ] hesitation.”

The lower court, along with the dissent in this decision, finds this situation unsatisfactory. But as the appeals court sees it, the lack of a remedy for the violation of Meshal's rights under these specific circumstances is a problem that must be solved by other government entities

There are no definitive answers to these competing visions of congressional action. We are not foreclosing either interpretation, but in a case where the thumb is heavy on the scale against recognizing a Bivens remedy, uncertain interpretations of what Congress did in 1973 and 1988 cannot overcome the weight of authority against expanding Bivens. In any event, if the courts, as amici argue, have radically misunderstood the nature and scope of Bivens remedies, a course correction must come from the Supreme Court, which has repeatedly rejected calls for a broad application of Bivens. Because we follow its lead, we will ship our oars until that Court decides the scope of the remedy it created.

If people like Meshal are to have recourse to damages for alleged constitutional violations committed during a terrorism investigation occurring abroad, either Congress or the Supreme Court must specify the scope of the remedy.

The court doesn't appear thrilled with the conclusions it has reached. "Our hands are tied" decisions are seldom satisfactory, especially for plaintiffs.

The dissenting opinion -- written by Judge Cornelia Pillard -- points out just how bizarre the court's conclusion is.

Had Meshal suffered these injuries in the United States, there is no dispute that he could have sought redress under Bivens. If Meshal’s tormentors had been foreign officials, he could have sought a remedy under the Torture Victim Protection Act. Yet the majority holds that because of unspecified national security and foreign policy concerns, a United States citizen who was arbitrarily detained, tortured, and threatened with disappearance by United States law enforcement agents in Africa must be denied any remedy whatsoever.

But the decision stands. And for the DOJ, it means its agencies will have a lot of leeway in the handling of US citizens it detains in other countries. Americans' rights are effectively nullified if the detainment is declared to be in the interest of national security. The majority opinion -- while dismissing Meshal's case -- states its sympathy for his situation and agrees that US citizenship has "inherent value." Unfortunately, its conclusion here appends a national security asterisk to that assertion, furthering the notion that civil liberties should nearly always grant the right of way to the War on Terror.

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Did this sort of thing come about because someone at the nation's most hated agency whined that "everyone else was getting one?" Because there seems to be no logical explanation for this:

The Internal Revenue Service is the latest in a growing list of US federal agencies known to have possessed the sophisticated cellphone dragnet equipment known as Stingray, according to documents obtained by the Guardian.

Invoices obtained following a request under the Freedom of Information Act show purchases made in 2009 and 2012 by the federal tax agency with Harris Corporation, one of a number of companies that manufacture the devices.

No explanation will be forthcoming. The documents The Guardian obtained were heavily redacted and requests for comments were met with silence. But there it is: the IRS not only has a Stingray, but it paid $65,000 to upgrade it to the Hailstorm model, allowing it to continue to intercept calls and data without being locked out by upgraded cell networks.

It appears the agency does have the legal authority to deploy the devices. (The IRS is part of the Treasury Department and not subject to the new, exception-loaded warrant requirement handed down by the DOJ.)

[Former IRS Deputy Commissioner Mark] Matthews said there are currently between 2,000 and 3,000 “special agents” in the IRS who form the criminal investigation division (CID). They have the ability to get PEN register orders – the only authority needed to use Stingray devices.

Considering the criminal activity the IRS investigates most frequently -- tax evasion -- rarely involves highly-mobile suspects or the use of burner phones, it seems unlikely the IRS's Stingray sees much use. Then again, it does partner with other law enforcement agencies in criminal investigations, presumably under the Al Capone Theory of "tax evasion, if nothing else."

He said the IRS on its own usually uses gentler investigation tactics. But increasingly, investigating agents from the agency are brought on board for joint operations with the FBI and other agencies when the latter need financial expertise to look at, for example, money laundering from drug organisations.

Even if the IRS is frequently assisting with these investigations, it's pretty much guaranteed that whatever agency it's partnering with already has this technology on hand. The IRS's acquisition of a cell tower spoofer would seem to be redundant, at best. Then again, maybe it's redundancy the government wants. Can't have drug-running suspects slipping out of sight just because the local DEA office's Stingray is in the shop.

Of course, the IRS's Stingray could become the go-to device in the future, if federal law enforcement agents are looking for a way to circumvent the DOJ's new warrant requirement. They could send IRS agents with pen register paperwork to obtain permission to deploy cell tower spoofers.

But at the same time, the IRS's Stingray device seems to be more a product of "because it's available" thinking. Why not have one on hand, just in case? When the news arrives that Fish and Wildlife or the US Postal Inspector's Office has one, it will be greeted with "of course they do" shrugs, because that's just the way things go these days.The US government is sold on the "essentialness" of cell tower simulators and with funding for devices often tied to ever-swelling budget lines for Wars A (Drugs) and B (Terrorism), no agency should have to go without.

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FBI director James Comey is now beclowning himself by endorsing the so-called "Ferguson Effect." Some major US cities are experiencing increases in violent crime, and law enforcement agencies are blaming this on the fallout from the Michael Brown shooting.

Supposedly, law enforcement officers are afraid to do their jobs properly, fearing reprisal, public humiliation or possible prosecution for deploying any form of force. Further extrapolations of the "Ferguson Effect" theorize that the public's respect for law enforcement has fallen so low citizens are now often openly hostile.

It's telling that this is called the "Ferguson Effect," rather than say, the "Garner Effect." Both officer-involved-killings happened within a few weeks of each other and both touched off massive protests. In both cases, grand juries failed to return indictments against the police officers responsible for the deaths of two unarmed black men. However, the shooting in Ferguson lacked a crucial element: a video recording of the incident. In Ferguson, the evidence presented was a mess of contradictory eyewitness testimonies.

In the New York City incident, clear recordings of an NYPD officer choking Eric Garner to death were all over YouTube before the NYPD could even issue a coherent statement. For some reason, it's called the "Ferguson Effect" even though it was NYPD officers who first stated a reluctance to lay down on the job in response to the backlash.

As Comey sees it, the problem (which doesn't actually exist) isn't with police departments. It's with the people they serve… and their unblinking eyes.

He said his conversations with officers often come back to cellphones. He said they describe encounters with young people and their cellphone cameras "taunting" them "the moment they get out of their cars."

"They told me, 'We feel like we're under siege and we don't feel much like getting out of our cars,'" Comey said.

To put it in the parlance of official police statements: the officers feared for their safety power.

Police have always performed their duties in public, observed by many. But until recently, any footage of these encounters were left to dashcams. In the absence of recordings, it was the public's word against the officer's, and the officer's word usually won out. Now, police officers no longer have the luxury of controlling the narrative. Apparently, it's this lack of control that's preventing them from doing their jobs.

The "Ferguson Effect" narrative goes hand-in-hand with the "War on Cops" -- the bogus theory that cops are being targeted and killed more frequently simply because they're cops. In both cases, there's no data backing up these assertions. Any perceived spike in violence cannot be traced back to law enforcement officers being more wary of deploying force. Even if it could, the problem still lies with the police, rather than the public.

Public servants performing their duties in public should expect to be observed. If officers can't handle the "taunting" of camera-wielding citizens, they should exit the law enforcement business. If they feel imprisoned in their own vehicles by members of the public wielding nothing more dangerous than recording devices, they're not cut out to handle the actual dangers of the job.

Comey's furtherance of this bogus narrative is not just stupid. It's also hypocritical. Constant observation -- a.k.a. "surveillance" -- alters people's behavior. Comey admits as much in his remarks on the "Ferguson Effect."

So the suggestion, the question that has been asked of me, is whether these kinds of things are changing police behavior all over the country.

And the answer is, I don’t know. I don’t know whether this explains it entirely, but I do have a strong sense that some part of the explanation is a chill wind blowing through American law enforcement over the last year. And that wind is surely changing behavior.

Marcy Wheeler points out the obtuseness of this statement, which highlights the side effect of constant surveillance no government intelligence/investigative agency seems willing to discuss.

I actually do think there’s something to the chilling effect of surveillance (though, again, what’s happening to cops is targeted, not dragnet). But if Comey has a problem with that, he can’t have it both ways, he needs to consider the way in which the surveillance of young Muslim and African-American men leads them to do things they might not otherwise do, the way in which it makes targets of surveillance feel under siege, he needs to consider how the surveillance his Agents undertake actually makes it less likely people will engage in the things they’re supposed to do, like enjoy free speech, a robust criminal defense unrestricted by spying on lawyers, like enjoy privacy.

Law enforcement can dish it out, but it can't take it. That's the true definition of the "Ferguson Effect."

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