Brindle

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

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

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

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

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

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So, over the weekend, the Washington Post revealed some of the code names for various NSA surveillance programs, including NUCLEON, MARINA and MAINWAY. Chris Soghoian has pointed out that a quick LinkedIn search for profiles of people in Maryland with codenames like MARINA and NUCLEON happen to turn up profiles like this one which appear to reveal more codenames:

+Skilled in the use of several Intelligence tools and resources: ANCHORY, AMHS, NUCLEON, TRAFFICTHIEF, ARCMAP, SIGNAV, COASTLINE, DISHFIRE, FASTSCOPE, OCTAVE/CONTRAOCTAVE, PINWALE, UTT, WEBCANDID, MICHIGAN, PLUS, ASSOCIATION, MAINWAY, FASCIA, OCTSKYWARD, INTELINK, METRICS, BANYAN, MARINA

TRAFFICTHIEF, eh? WEBCANDID? Hmm... Apparently, NSA employees don't realize that information they post online can be revealed.

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General Michael Hayden, the former head of both the NSA and the CIA, has already been out making silly statements about how the real "harm" in the latest leaks is it shows that the US "can't keep a secret." However, he's now given an even more ridiculous interview trying to defend both the mass dragnet collection of all phone records and the PRISM collection of internet data. In both cases, some of his claims are quite incredible. Let's start with this whopper, in which he claims that they don't do any data mining on the mass dragnet data they collect, they just "ask it questions."

HAYDEN: It is a successor to the activities we began after 9/11 on President Bush's authority, later became known as the Terrorist Surveillance Program.

So, NSA gets these record and puts them away, puts them in files. They are not touched. So, fears or accusations that the NSA then data mines or trolls through these records, they're just simply not true.

MARTIN: Why would you be collecting this information if you didn't want to use it?

HAYDEN: Well, that's - no, we're going to use it. But we're not going to use it in the way that some people fear. You put these records, you store them, you have them. It's kind of like, I've got the haystack now. And now let's try to find the needle. And you find the needle by asking that data a question. I'm sorry to put it that way, but that's fundamentally what happens. All right. You don't troll through the data looking for patterns or anything like that. The data is set aside. And now I go into that data with a question that - a question that is based on articulable(ph), arguable, predicate to a terrorist nexus. Sorry, long sentence.

I'm not sure if Hayden is just playing dumb or what, but asking it questions is data mining. What he describes as asking it questions is exactly what people are afraid of. It's exactly the kind of data mining that people worry about. On top of that, just the fact that he flat out admits that they're putting together the haystack to "try to find the needle" is exactly the kind of issue that people are so concerned about. The whole point of the 4th Amendment is that you're not allowed to collect the haystack. You're only supposed to be able to, on narrow circumstances, go looking for the needle with proper oversight. Yet, here, he admits that there's no such oversight once they have that haystack:

MARTIN: May I back up? Do you have to have approval...

HAYDEN: No.

MARTIN: ...from the FISA court...

HAYDEN: No.

MARTIN: ...which is the intelligence surveillance court established in order to go in and ask that question.

You have had a generalized approval, and so you've got to justify the overall approach to the judge. But you do not have to go to the judge, saying, hey, I got this number now. I'll go ahead and get a FISA request written up for you. No, you don't have to do that.

That should be a "wow" moment right there, because it also appears to contradict President Obama's claim that "if anybody in government wanted to go further than just that top-line data ... they'd have to go back to a federal judge and — and — and indicate why, in fact, they were doing further — further probing." Furthermore, he's basically admitting that they basically give the FISA Court some vague reason why they need every possible record on phone calls, and then there's no oversight by the court on how those are used, other than vague promises from the NSA that they're not being abused for data mining -- but just for "asking questions," which is data mining.

Moving on to PRISM. Hayden's responses are equally astounding. He's asked about the fact that the NSA has admitted that they try to make a determination of if the person is foreign and have a system to determine if they're 51% sure that a person is foreign in deciding whether or not to keep their data. As the interviewer notes, 51% "seems mushy." Hayden's response is ridiculous:

Yeah, well, actually, in some ways, you know, that's actually the literal definition of probable, in probable cause.

Um, whether or not that's the standard for probable cause is meaningless. Probable cause is the standard used to determine if someone can be arrested (or to have a search done). It is not the standard for determining if the person is foreign or not, subjecting them to mass surveillance by the NSA. The 4th Amendment requires probable cause for a search, but not probable cause in foreignness, rather probable cause in criminal activity. Is Hayden honestly suggesting that being foreign is probable cause of criminality? Because that's insane.

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The escalating build-out of the American surveillance state since 9/11 can't be attributed to any one factor. There have been several contributors, most of which have used the omnipresent "threat" of terrorism as leverage to increase governmental power and control at the expense of its citizens. But one undeniable aspect is the fact that two consecutive presidents have recast their presidential responsibilities, as Micah Zenko points out at Foreign Policy.

When asked last September if he personally chose which individual terrorist suspects could be targeted with lethal force, President Barack Obama gave a response that would have astounded the founding fathers: "What is absolutely true is that my first job, my most sacred duty, as president and commander in chief, is to keep the American people safe." This is false. As the presidential "Oath or Affirmation" in the Constitution reads: "I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

As Zenko states, Obama should know better. After all, he spent more than a decade lecturing on constitutional law at the University of Chicago. But his predecessor led the way, informing Americans that "safety" would trump rights.

George W. Bush told a cheering crowd at the 2004 Republican National Convention: "I believe the most solemn duty of the American president is to protect the American people.

While on the campaign trail, Obama vowed to correct Bush's skewed priorities. But rather than follow through on that promise, he has gone the other direction, expanding on his inherited policies and defending various agencies accused of abuse. Unfortunately, once this mindset is in place, it is almost impossible to roll back. The policies it creates only move in one direction.

The essential and enduring feature of both post-9/11 presidents has been their shared contention that their core objective -- and by extension, that of the executive branch -- is to protect U.S. citizens from one particular form of harm: terrorist violence. Both success and failure at achieving this objective have justified the expansion of additional authorities and tools. If there are no terrorist attacks, then all policies in place must remain, but when terrorist plots are revealed or the rare attack occurs, then additional tools and secrecy are mandated.

The executive branch is a key part of the system of checks and balances this country's founders mandated in order to prevent the sort of mission creep and rights erosion occurring today. Instead of protecting the Constitution and their constituents, two consecutive presidents have relegated it to the background, preferring to pursue the unobtainable: safety and security.

Other government agencies are tasked with protecting the public. The executive branch is ultimately responsible for preventing abuses and excesses. Instead, this branch has willingly paved the way for a surveillance network that undermines protections and rights in exchange for vague assurances of security.

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As the NSA spying scandal lumbers along, or as some reports suggest, begins, reports of American apathy have already rolled in. Of course, those supposed indifferent shrugs tend to amount more to how the questions are being asked than actual viewpoints. Couple that with how social humans are as a species, is in my opinion quite dangerous. It'd be all too easy for people to hear reports that nobody really seems to care about any of this intrusive data gathering business and decide that they should feel similarly.

Fortunately, there's at least some evidence that such an effect isn't occurring. Otherwise, we're going to have to come up with a whole new logical reason as to why George Orwell's books, particularly 1984, are skyrocketing up the hot sellers lists. As Gawker notes:

According to Amazon's Movers & Shakers countdown, three different editions of George Orwell's alt-history book Nineteen Eighty-Four have shot up hundreds of spots on the chart since news of the NSA's clandestine spying program PRISM broke late last week. One edition in particular — the Centennial Edition — has exploded in popularity, increasing its sales rank by 7,000% in days.

Now, before you cheer this on, it's worth noting that other books on the "Movers and Shakers" list aren't so politically-minded, unless books on being a gentleman (pshhh!), books on calorie counting (pshhh!), or books by Glenn Beck (PSHHH!) actually have some value there that I'm not aware of. Still, it's encouraging to see signs that people are paying attention. That, after all, is how change actually occurs. I might suggest some lovely texts by Thomas Jefferson and Thomas Paine as well, but Orwell is certainly a start.

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We've already covered how Director of National Intelligence James Clapper not only lied to Congress, but has now admitted he lied by claiming he told the "least untruthful answer" he could think of, which was extremely untruthful, in that it was untruthful. He was asked whether or not the NSA collects any type of data on millions of Americans and he said no. The full collection of records on every phone call for the past seven years (at least) proves that statement was categorically false. Derek Khanna has an excellent and detailed opinion piece up on how this clearly constitutes an impeachable offense in the form of lying to Congress.

The whole thing is worth reading, but after going through the background leading up to the question and answer, followed by an explanation that Wyden clearly wasn't fishing, but was asking from direct knowledge of what the NSA was doing, Khanna gets to the point of why this is so horrific for a functioning democracy:

Clapper's statement appears to have misled the relevant Congressional Committee, and more importantly, misled Members of Congress who don't receive the information that the Intelligence Committee receives. Ultimately these statements misled the general public. This obfuscation of the truth inhibited the Intelligence Committee from performing proper oversight, which is the primary role of the Intelligence Committee. There is little point in having an oversight committee for intelligence if members of the intelligence community can simply lie when asked questions before a hearing.

Misspeaking at a hearing may be a mistake. Misspeaking before the Intelligence Committee is an extremely grievous mistake. But even more egregious here is the Clapper had ample time to correct the record and apparently failed to do so. Statements made at hearings are not coffee shop like discussions; rather, they are carefully prepared in advance. If Clapper did not have a prepared answer for this question, it's extremely likely that the NSA counsel would have reviewed his statement after the hearing - putting him on notice that if his statement was incorrect he had the obligation to correct it. In fact, if the NSA's counsel knew that Clapper was lying or misspeaking, he may have had a legal obligation to tell Clapper to inform the Committee of his misstatement. And, under a similar procedure for lying at court, if Clapper refused to correct the record then the Counsel may have had an obligation to tell the Committee anyway. This gives some perspective on the legal severity of lying to a congressional committee.

In other words, if Clapper is allowed to lie, expect plenty of other administration officials to lie as well, and say goodbye to any oversight authority that Congress may have once had.

Furthermore, as Khanna points out, President Obama's claims that Congress was "fully informed" about these programs ring hollow when put into context:

President Obama has claimed that Congress was aware of all ongoing programs of this nature. The Administration can't have it both ways. It can't claim that Congress was in the loop and signed off when the Director of National Intelligence appears to have at best misled and at worst lied to the relevant oversight branch.

We've gone through this before. The intelligence community's rogue nature was supposed to have been reined in 40 years or so ago, but in the last decade it appears to have gone right back to the way it used to be. If there is no real oversight, is it really any surprise that they start increasingly looking to expand and abuse the tools they have at their disposal. It seems, at the very least, that Congress should be exploring, deeply, whether or not the administration, and James Clapper in particular, directly lied to Congress, and then continued to lie after that initial lie.

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A bipartisan group of eight Senators have now introduced a bill to end the secret interpretation of the law which enabled the NSA, via the rubber-stamping FISA Court, to claim that the FISA Amendments Act enabled them to sweep up basically all phone call data on everyone.

The measure, coming amid daily revelations about the extent to which the National Security Agency is monitoring communications by Americans, would require the Attorney General to declassify significant Foreign Intelligence Surveillance Court (FISC) opinions. The senators say the move would allow Americans to know how broad of a legal authority the government is claiming to spy on Americans under the Patriot Act and the Foreign Intelligence Surveillance Act (FISA).

“Americans deserve to know how much information about their private communications the government believes it’s allowed to take under the law,” explains Oregon Senator Jeff Merkley, a Democrat who has been an outspoken advocate for congressional oversight of surveillance programs. “There is plenty of room to have this debate without compromising our surveillance sources or methods or tipping our hand to our enemies. We can’t have a serious debate about how much surveillance of Americans’s communications should be permitted without ending secret law.”

The bill will be put forth by Merkley, but co-sponsored by Senators Patrick Leahy, Dean Heller, Mark Begich, Al Franken, Jon Tester and Ron Wyden. Leahy, being the chair of the Judiciary Committee, is important, suggesting that this bill isn't automatically dead in the water. During the FISA Amendments Act fight at the end of 2012, Leahy was one of only a few Senators (along with Merkley and Wyden) who pushed back on just doing a straight reauthorization. In fact, it sounds like this bill will be similar to the one that Merkley pushed as an amendment to the renewal of the FISA Amendments Act last year, which got shot down -- but did score 37 votes in the Senate. Perhaps with Leahy's support, and all the news going on, it can get a few more votes.

And, in case you're wondering, yes, Congress can order the executive branch to declassify anything it wants, though obviously it needs to pass the law (and get past any potential veto). Declassifying how the FISC has interpreted the law should not be controversial. As we've been pointing out for years, under no circumstances would it make sense to claim that the official interpretation of what's legal and illegal should be classified. Yes, certain techniques or methods might need to remain classified, but the law must be public. Hopefully, others in Congress will finally recognize that basic fact.

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About a year ago, after a lot of pressure from Senator Ron Wyden, the government finally admitted (late on a Friday) that, yes, indeed some of its surveillance efforts had been found unconstitutional for violating the 4th Amendment. But they didn't explain what, nor did they reveal the FISA court ruling which made that assessment. Since that time, the EFF has been fighting the government to get it to reveal the ruling. The DOJ refused to release it following a Freedom of Information Act (FOIA) request, and later said that even if it wanted to, it can't release the document, because only the FISA Court (FISC) could release it. But, in an earlier ruling in a different case filed by the ACLU seeking to reveal a FISC ruling, FISC had said that FISC couldn't reveal it, and the ACLU needed to seek the document from the DOJ. In other words, both the DOJ and FISC are pointing fingers at each other, saying that only the other one can reveal the document. In response, the EFF has asked for confirmation from FISC that if a district court rules against the DOJ and tells it to release the document, that FISC will actually do so.

Now, the DOJ is fighting back with the most circular and ridiculous logic imaginable:

In its response filed with the FISC today, the government offers a circular argument, asserting that only the Executive Branch can de-classify the opinion, but that it is somehow prohibited by the FISC rules from doing so.

The government’s argument is guaranteed to make heads spin. DOJ earlier argued that it lacks discretion to release the FISC opinion without the FISC's consent, but DOJ now argues that if the FISC were to agree with EFF, “the consequence would be that the Government could release the opinion or any portion of it in its discretion.” But FISC material is classified solely because the Executive Branch demands that it be, so release of the opinion has always been a matter of Executive discretion.

Frankly, it’s difficult to understand what DOJ is saying. The Government seems to have a knee-jerk inclination towards secrecy, one that often – as in this case – simply defies logic. The government's bottom line is this: their rules trump the public's statutory rights. But it's not the province of the Executive branch to determine which rights citizens get to assert.

Basically, the finger pointing continues. However, considering the increasing concern about vast government surveillance, it certainly seems like the government should start looking into being a hell of a lot more transparent, and it could start by giving up this game and releasing that FISC ruling.

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"It allows you to easily host your own website, email, 'cloud' and more, all within arm's reach. It does this by interfacing with existing software and allowing the user to easily update and change settings with a graphical interface. No more need to depend on external cloud services, which can be insecure 'walled gardens' that require you to give up control over your data. arkOS will have several different components that come together to make a seamless self-hosting experience possible on your Raspberry Pi. Each of these components will work with each other out-of-the-box, allowing you to host your websites, email, social networking accounts, cloud services, and many other things from your arkOS node." I have to look into this.

One of the points we've made throughout this discussion on the revelations around widespread NSA surveillance is that if you had been paying attention, none of this should have come as a surprise. It's just the confirmation of the exact issues that people raised. In 2007, when Congress passed the "Protect America Act," some people quickly pointed out that it massively expanded warrantless surveillance with little oversight:

But the hastily-enacted legislation, dubbed the Protect America Act, does more than permit the interception of foreign-to-foreign communications. It permits warrantless surveillance "directed at a person reasonably believed to be located outside of the United States." There is no language specifically restricting surveillance activities to communications originating outside of the United States.

And then, a year later, we got the FISA Amendments Act (FAA), which raised more concerns:

In passing the FISA Amendments Act, Congress gave the executive branch the power to order Google, AT&T and Yahoo to forward to the government all e-mails, phone calls and text messages where one party to the conversation is thought to be overseas. President Bush signed the bill into law Thursday morning, describing it as a bill that "protect[s] the liberties of our citizens while maintaining the vital flow of intelligence."

Of course, last year, the FAA was up for renewal and we spent a lot of time discussing how folks in the House and the Senate (1) pretended that it only applied to foreign calls (when it clearly did not) and then (2) ignored Senators Wyden and Udall, who repeatedly made it clear that the law was being abused in this way, and asked others in Congress to demand a full and public accountability.

And, of course, the nefariousness here is not a partisan issue. Both of the laws above were signed by President Bush, and while President Obama campaigned on the fact that he would end such practices, we can safely say that that never happened.

So, while it's good that people are now realizing just how widespread the spying is, perhaps next time, when the same group of folks raise the alarm at these bills, they shouldn't be ignored or brushed off to the side as "oh you guys again..."

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Towards the end of my piece this morning about the administration's ridiculous response to the leaked evidence and confirmation that the NSA is scooping up every single phone record (confirmed from Verizon at least, though you can assume it applies to everyone else as well) was a quick note mentioning that Senator Dianne Feinstein was saying that this was a continuation of the same program that had been going on for seven years. And, now, lots of Senators are coming out and saying the same thing. In fact, it appears that our 100 Senators all knew that this has been going on for seven years without telling us:

"Everyone's been aware of it for years, every member of the Senate," said Sen. Saxby Chambliss (Ga.), the ranking Republican on the Senate Intelligence Committee.

Chambliss told reporters that the program has been going on for seven years under the auspices of the Foreign Intelligence Surveillance Act. He said he was not aware of a single citizen filing a complaint about it.

I love that last bit. Yes, since no citizens "complained" about the totally secret program in which their private data was sucked up by the NSA, what's there to worry about? Senator Harry Reid's response is equally ridiculous, suggesting that everyone should calm down because this is nothing new:

"Right now I think everyone should just calm down and understand that this isn't anything that's brand new -- it's been going on for 7 years," Reid said.

Again, it's astounding how out of touch these people are. They're pretending that a secret program that went way, way, way beyond what most people believed was happening now being revealed is no big deal because they knew about it for seven years? Frankly, that makes the whole situation that much worse, because it means they supported it and did nothing to end it for seven years.

I know that Senators Ron Wyden and Marc Udall have been trying to get this fact out to the public for years -- demanding that the NSA say how many Americans they were spying on. It was obvious that Wyden and Udall knew what was going on, but couldn't say anything since such information is "classified." But shame on every other Senator for not standing up against this.

Some are arguing that they didn't know:

"If you're on the intel committee, or if you're in leadership, you might have been briefed. I'm pretty good about attending meetings; I don't remember being briefed," said Sen. Johnny Isakson (R-Ga.). He said he voted for the FISA reauthorization and the Patriot Act but did not intend to grant authority to collect millions of phone records at a time.

"I never voted intentionally for any bill that would grant blanket [authority] to just monitor every phone call," he said.

But that's a lame excuse as well, because Senator Wyden spent an awful lot of time making this very point on the Senate floor, pointing out that very clearly that the NSA was using FISA to spy on tons of Americans (hinting strongly that it was all of them) and saying that the Senate shouldn't approve the reauthorization until the NSA told them how many people were being spied on. If Senator Isakson didn't pay attention to Senator Wyden ringing the alarm bell, that's his own fault.

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The NSA and FBI directly tapped central servers belonging to nine U.S. internet firms, in order to get a constant feed of audio, video, photos, emails and documents as well as connection logs, according to a new report.

Some troubling news has crossed the desks of newsrooms everywhere. According to court order documents obtained by The Guardian, the National Security Agency (otherwise affectionately known as the NSA) has recently been granted full, unlimited access to several pieces of Verizon Wireless subscriber data

Following the news that broke last night that the federal government was getting full records of all Verizon phone calls, the Obama administration is now trying to defend this move, by claiming they can break the law because terrorism is scary:

But the Obama administration, while declining to comment on the specific order, said the practice was "a critical tool in protecting the nation from terrorist threats to the United States".

Uh, that's really not the point. Under that standard, there is no Constitution. There are lots of things that could be very useful tools in stopping crime and attacks, but we don't allow them because they violate the public's rights. We don't allow the FBI to walk up and down the street, enter every house and search it for weapons, for example. While that might be a "critical tool" in stopping the use of those weapons, it's also incredibly unconstitutional on a whole variety of levels. Saying that it's okay to ignore the 4th Amendment entirely because there are terrorists out there is no excuse at all.

And, of course, as we noted last night, there's nothing new about this. Already it's been confirmed that the order to Verizon was not a special case, but rather a "renewal of an ongoing practice." Senator Feinstein has admitted that this has been going on consistently for the past seven years, and this latest leak is just the "renewal" for another three months. And if anyone thinks that only Verizon got this order and has been doing this for the past seven years, you're not paying attention. As we've noted, we've had multiple whistleblowers who have flat out said that this was happening for years. Mark Klein, who worked at AT&T, revealed in 2006 that he'd helped hook up NSA machines to record all data flowing over the AT&T network. Meanwhile former NSA employee William Binney also blew the whistle on this activity from the NSA side. We've known all of this for years... and no one seemed to care until now.

Even more incredible, is that the NSA has no problem directly lying about all of this. Because last week, before all of this came out, and before the Obama administration 'fessed up to using this "critical tool," General Keith Alexander, the head of the NSA, ridiculously claimed the following:

"The great irony is we're the only ones not spying on the American people," he quipped.

Just days after that was said, we have written proof that this claim is 100% false. So, now, what do we do about it?

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One of the common "defenses" of patents that we often hear is that "investors require them." That's simply not true. There are, certainly, some short-sighted investors who require patents, but more and more of the most respected investors have spoken out against the patent system, acknowledging that it does more harm than good. The latest example of this comes from Rob Pegoraro, who spoke to a bunch of startups presenting at a "Demo Day" and asked each of them about their patent strategy.

While some of them are filing for their own patents, a key point was that their investors definitely didn't require it or push them in that direction.

None said their investors had pushed them to file for patents.

Even more to the point, investors seem to recognize that patents can take a big chunk of money out of early investment if startups file for a patent. Fortify Ventures managing director Jonathon Perrelli pointed out:

“When they’re raising $50,000 to pay for ramen and hosting services and their desks, $15,000 doesn’t have to go to intellectual property.”

The article also asked the startups if they were worried about patent trolls, and, unfortunately, many of the startups seemed fairly naive about the whole thing, suggesting that they're okay since they're not copying anything. That's not how patent law works, of course. Patent trolls pop out of the woodwork claiming you violate some tiny thing all the time. The one company that Pegoraro spoke to that insisted it was impossible that they violated a patent is likely in for a big surprise if it ever gets big enough to attract patent troll attention.

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What's always been suspected has now been proven true: the NSA is indiscriminately harvesting the phone records of millions of Americans. Various whistleblowers have pointed out that the NSA's hunger for data has driven it to collect anything and everything it can, without having to submit to limitations placed on other agencies. Domestic surveillance is a full-time job for the NSA, and this order obtained by the Guardian spells it all out in unredacted black and white.

The order... requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing...

Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.

This order was granted by the secret FISA court, allowing the FBI to collect this data until July 19th, with another copy going to the NSA. This sort of thing isn't necessarily new or unusual (large scale data collection like this began during the Bush presidency, as Greenwald points out), but this particular request's scope is rather breathtaking.

The unlimited nature of the records being handed over to the NSA is extremely unusual. Fisa court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.

This order has no target. It just wants everything. Every Verizon subscriber is included in the NSA's data dragnet. And while there's a lack of individual specificity in the data Verizon is ordered to produce, there are several ways the information collected can be manipulated and abused.

The information is classed as "metadata", or transactional information, rather than communications, and so does not require individual warrants to access...

While the order itself does not include either the contents of messages or the personal information of the subscriber of any particular cell number, its collection would allow the NSA to build easily a comprehensive picture of who any individual contacted, how and when, and possibly from where, retrospectively...

Privacy advocates have long warned that allowing the government to collect and store unlimited "metadata" is a highly invasive form of surveillance of citizens' communications activities. Those records enable the government to know the identity of every person with whom an individual communicates electronically, how long they spoke, and their location at the time of the communication.

A year ago, the NSA claimed it couldn't say how many Americans it had spied on illegally because doing so with violate the privacy of those it spied on. Now, we can make an estimate: 98.2 million Verizon customers as of Dec. 2012. And that's just Verizon. There's no reason to believe other carriers haven't received (and submitted to) similar orders and past events indicate the NSA has been spreading its net wide for several years. And, of course, thanks to a whistleblower literally showing up at the front door of the EFF, we know that AT&T has basically helped set up direct access for the NSA on its network in the past as well.

The NSA, as part of a program secretly authorized by President Bush on 4 October 2001, implemented a bulk collection program of domestic telephone, internet and email records. A furore erupted in 2006 when USA Today reported that the NSA had "been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth" and was "using the data to analyze calling patterns in an effort to detect terrorist activity."

With this document exposed, the NSA can no longer pretend (if it's even bothering to at this point) its data collection efforts are targeted. It long ago turned away from its original mandate -- foreign surveillance only -- and now appears to be harvesting vast amounts of data on US citizens simply because no one's going to stop it.

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Just a guess, but it probably sucks to be the IRS right now. Between reports about them snooping on people's emails and their targeting of conservative groups, it's quite easy to paint them as a big, evil bureaucracy. Actually, it was pretty easy to do so before all that. You can generally rely on the hatred of the people for a group that requires meticulous spending records and then collects taxes. Big, bad, evil. What could be worse?

Well, how about hypocritical? That sure seems like an apt word in light of reports on how flighty the IRS was with tax-payer money for their own comforts.

The conference spending included $4 million for an August 2010 gathering in Anaheim, Calif., for which the agency did not negotiate lower room rates, even though that is standard government practice, according to a statement by the House Oversight and Government Reform Committee.
Instead, some of the 2,600 attendees received benefits, including baseball tickets and stays in presidential suites that normally cost $1,500 to $3,500 per night. In addition, 15 outside speakers were paid a total of $135,000 in fees, with one paid $17,000 to talk about "leadership through art," the House committee said.

Infuriating, right? The bald-faced audacity of the organization that collects our taxes using some of that tax money to go to baseball games has the air of outright thievery. Fortunately, thanks to the investigation by the Treasury Department, we now have a full and accurate account of the awful IRS spending, right?

No, we damn well don't, because the IRS -- and I stress this, the IRS -- is claiming it can't find its own receipts, so the spending may well have been even worse.


Hypocrisy, thy name is now an acronym, and that acronym is IRS. This is the type of thing that keeps pitchfork and torch manufacturers in business. In fact, were it not for the undeniably smooth face and impossibly perfect coiffure of Anderson Cooper getting me through this, I might just be leading the mob.


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"The entire global supply chain is too complex and overwhelming to be addressed as whole. Which is why we're starting with a single product. One, single, open, high-performance smartphone made as fairly as possible with a transparent supply chain. One step at a time." I love the idea behind the Fairphone (and it's a Dutch project, too), but I'm too much of a realist to think it will truly force large corporations and consumers to change their minds.

This is the impressive Portal testing chamber themed bedroom designed by video game fan and artist Lauren. I would totally do some testing in there. And by testing I mean have a sleepover. We can eat pizza and do each other's hair and talk about boys! That wasn't meant to be sexist by the way, that's just how I like to spend sleepovers. Hit the jump for a bunch more including some worthwhile ones of the room in night more with infinity portal mirrors, but be sure to check out Lauren's blog for even more pics and info on the whole build. Thanks to Darkomen, ChaosLex and outspire, whose bedrooms suddenly feel inadequate.

You may recall the concern some have raised over Smart TVs, those internet connected glowing boxes with cameras ripe for exploits that would allow hackers to watch you watch TV. Supposedly less nefarious were concerns over technology that would allow those same Smart TVs to recognize when you had left the room or were looking away, subsequently dimming the screen to conserve energy. Whether or not either is a concern rising to the levels of epidemic privacy invasion, one thing that is clear is that the general public is a bit dubious about being monitored within their own living rooms.

With that in mind, it will be interesting to see how that same public reacts if Microsoft actually decides to implement the technology described in their shiny new patent application, which describes how the Xbox One console could monitor your body, eyes, and heartbeat to determine if you're actually watching advertising and then reward you for it with Xbox achievements.

The patent, snappily titled "Awards and achievements across TV ecosystem", describes camera sensors monitoring the eye movements and heartbeats of TV viewers. Which means a console will know if you're in the room when an ad break is on, or if you've popped out to make tea. It'll also be able to tell whether you're actually watching the ad or if you're engrossed in the latest issue of Heat magazine. And don't even think about gaming the system by watching telly with the lights off: the XBox would be able to monitor you even in the dark.

Every move you make, every breath you take, the Xbox would be watching you – but also rewarding you. The patent suggests that sitting through commercial breaks would rack you up points to buy both virtual and physical awards. The thinking behind this being that people today need to be bribed in order to sit still and watch a commercial. As the patent application explains: "With the proliferation of digital video recording devices, advertisers are finding it increasingly difficult to introduce their advertisements to viewers."

While the above can be slightly misleading in that this is a patent application, not a granted patent, the response to it is the same. Fun, right? Here's the problem. I am aware that, at some level, everything about video games is reward-based. The obvious Xbox achievements are in place and people ostensibly seek them out, though I have yet to attain any modicum of understanding as to why people do this. Less obvious is the concept of gaming in general. Get to the next level. See that next cut-scene. Advance the plot. Unlock the new weapon, the new armor, or the new ability to shoot a bad guy directly in the balls. These are things that are important to gamers. It might therefore seem natural to build a rewards-based system for advertising as well within this audience.

Except advertisements are different, aren't they? If we're skipping ads, it's because they're an annoyance. Whereas stopping the bad guy, winning the World Series, or uncovering a mystery are all integral to the playing of whatever game we're enjoying, advertisements are, by definition, a break from what we're actually interested in doing. In fact, the label of "achievement" itself relating to watching advertising reeks of a gross misnomer. Granted, being able to stomach a minute's worth of Miss Cleo advertising may seem like a challenge, but it isn't an achievement in the same way.

More importantly, as the article notes, getting people to watch ads isn't a problem solved by some kind of Pavlovian reward system. It's solved by having creative, interesting, and entertaining ads.

The proliferation of digital video recording devices is something of a red herring when it comes to ad-viewing. After all, people aren't forced to skip the ads when they watch a time-shifted show; rather, they're free to watch them over and over again if they like. Just, err, most people don't like. Research conducted by Deloitte in 2010 found that 90% of TV viewers always skip through the adverts on their DVR. But the answer to stopping this behaviour doesn't lie in sophisticated motion-detecting technology, it lies in making ads that people actually want to watch. The biggest threat to advertising isn't technology like Sky+; the biggest threat to advertising is bad advertising.

Because advertising is content and content is advertising. And these invalidating arguments are made without even bothering to touch upon the public's reaction to being watched through the all-seeing eye in Microsoft's device. In a world where authors like Rand and Orwell are well-read, I expect a line to be drawn between cameras in the public square and cameras within our own walls. That this would be done to solve a problem better solved through smarter means is a fact I hope won't be lost on anyone.

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Photo by Boing Boing reader Captain Tim, shared in the BB Flickr Pool.

A provocative article from the Netherlands published in the Journal of Sexual Medicine says people who like to participate in bondage-discipline, dominance-submission, and sado-masochism erotic play are "characterized by a set of balanced, autonomous, and beneficial personality characteristics.”

Practitioners of BDSM report “a higher level of subjective well-being” when compared to people who tend to have more boring forms of sex.

These sexual practices have long been "associated with psychopathology," the paper says. "However, several more recent studies suggest a relative good psychological health of BDSM practitioners."

The results mostly suggest favorable psychological characteristics of BDSM practitioners compared with the control group; BDSM practitioners were less neurotic, more extraverted, more open to new experiences, more conscientious, less rejection sensitive, had higher subjective well-being, yet were less agreeable.

The conclusion: BDSM is "recreational leisure," not pathology.

"Plain old vanilla sex," by the way, is what Hustler's Larry Flynt once told me he was into, during an interview I did for NPR. True story.

More: PSMAG, and here's the study. (via @vaughanbell)

NOTE: Larger version HERE in case you want to print it out and frame it and put it on your desk and pretend like you know these people. This is the best wedding party photo of all time, taken by photographer Quinn Miller. Granted the t-rex had to be Photoshopped in, but it's still better than anything any of my married friends came up with AND I DON'T CARE IF THEY KNOW IT. You know why? Because I keep it real. I'm a straight shooter, and if a friend can't handle that, well, they should stay out of the gunfight. Being an old west cowboy isn't for everyone, you know? Now if you'll excuse me. *gets kicked by a horse, shoots myself in the leg* DAMMIT, DID ANYBODY SEE THAT? I'll kill anybody who saw that. Thanks to T.J. O., who pointed out I would be running towards the dinosaur like I didn't already know that.

We already did a post exploring the ridiculous background and bad assumptions of the so-called IP Commission Report, but we're going to explore some of the "recommendations" of the report as well. In that first post, we noted that the basis, assumptions and methodology of the report were all highly problematic, so it should come as little surprise that the "recommendations" that come out of it are equally ridiculous.

Let's start with the one that has received the most attention: the fact that the report recommends a "hack back" legalization, to allow those who feel their (loosely defined) "intellectual property" has been infringed to "hack back" at those who infringe. As Lauren Weinstein summarizes, this proposal more or less is a plan to legalize malware against infringers. Of course, this kind of idea is not new or unique. It's been around for a while. Almost exactly ten years ago, Senator Orrin Hatch proposed allowing copyright holders the right to destroy the computers of anyone infringing. The specifics here are explained over two "suggestions" that, when combined (hell, or even individually), are somewhat insane for anyone even remotely familiar with the nature of malware. First up, legalizing some basic spyware/malware:

Support efforts by American private entities both to identify and to recover or render inoperable intellectual property stolen through cyber means.

Some information or data developed by companies must remain exposed to the Internet and thus may not be physically isolated from it. In these cases, protection must be undertaken for the files themselves and not just the network, which always has the ability to be compromised. Companies should consider marking their electronic files through techniques such as “meta-tagging,” “beaconing,” and “watermarking.” Such tools allow for awareness of whether protected information has left an authorized network and can potentially identify the location of files in the event that they are stolen.

Additionally, software can be written that will allow only authorized users to open files containing valuable information. If an unauthorized person accesses the information, a range of actions might then occur. For example, the file could be rendered inaccessible and the unauthorized user’s computer could be locked down, with instructions on how to contact law enforcement to get the password needed to unlock the account. Such measures do not violate existing laws on the use of the Internet, yet they serve to blunt attacks and stabilize a cyber incident to provide both time and evidence for law enforcement to become involved.

Basically, malware/DRM-on-steroids. As if that will work. Anyone who had even a modicum of experience with DRM or watermarking knows that these things aren't difficult to get around, and are basically a huge waste of time and money for those who employ them. The idea that they might then lock down entire computers if an incorrect file gets onto one seems even more ridiculous. Given how often DRM causes problems for legitimate users of the content, you can imagine the headaches (and potential lawsuits) this kind of thing would lead to. A complete mess for no real benefit.

So, then, they take it up a notch. If bad DRM/watermarking isn't enough, how about legalizing the pro-active hacking of infringers? No, seriously.

Reconcile necessary changes in the law with a changing technical environment.

When theft of valuable information, including intellectual property, occurs at network speed, sometimes merely containing a situation until law enforcement can become involved is not an entirely satisfactory course of action. While not currently permitted under U.S. law, there are increasing calls for creating a more permissive environment for active network defense that allows companies not only to stabilize a situation but to take further steps, including actively retrieving stolen information, altering it within the intruder’s networks, or even destroying the information within an unauthorized network. Additional measures go further, including photographing the hacker using his own system’s camera, implanting malware in the hacker’s network, or even physically disabling or destroying the hacker’s own computer or network.

Notice how that recommendation gets even more insane the further you read. "Retrieving" info? Okay. "Destroying info on an unauthorized network"? Yeah, could kinda see where someone not very knowledgeable about computers and networks thinks that's a good idea. "Photographing the hacker"? Well, that's going a bit far. "Implanting malware in the hacker’s network"? Say what now? "Physically disabling or destroying the hacker's own computer or network"? Are you people out of your minds?

This isn't just a bad idea, it's a monumentally dangerous idea that will have almost no benefit, but will have tremendously bad and dangerous consequences. Hell, today we already have to deal with a plethora of bogus DMCA takedown notices. Imagine if that morphed into bogus malware attacks or destroying of computers? It makes you wonder how anyone could take anything in the study seriously when you read something like that.

To be fair, the authors of the report say they don't recommend legalizing this stuff yet, but immediately make it clear that something like this is going to need to happen in the future, because "the current situation is not sustainable." Based on what? Well, as we explained in the first post about this report, that's mostly based on the authors' overactive imaginations, rather than anything fact-based.

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We've discussed in the past the oddity of how a UK anti-piracy group, FACT (Federation Against Copyright Theft), which is a private organization set up and controlled by large entertainment industry players, being deeply involved in criminal investigations and cases against individuals. In the case against Surfthechannel, FACT was directly involved in seizing and keeping the computers involved and then in paying the police for the prosecution. Even if you can reasonably argue that they should be involved in helping with providing information for the investigation, you'd think most people would agree that that's where the industry's involvement should end. They shouldn't be present on raids. They shouldn't get to touch or keep the evidence. And they certainly shouldn't be financing and pressing the criminal case.

But, apparently, the industry's control over law enforcement in the UK continues. TorrentFreak reports on how FACT teamed up with local police to send five police cars to house to arrest a guy and seize his electronic equipment with FACT employees, because FACT claimed the guy had filmed a movie and uploaded it. Apparently, the person they were actually looking for no longer lived at the address, but it didn't stop police from taking the guy to the police station where he was interrogated mainly by FACT employees with the police just sitting back and taking notes.

“At the police station I was interviewed by the police together with FACT (Federation Against Copyright and Theft). During questioning they asked me about Fast and Furious 6, where I obtained a copy from and if I was the one who went and recorded it at the cinema.”

Despite police involvement, as in previous cases it appears they were only present in order to gain access to the victim’s property, sit on the sidelines taking notes, and for their powers when it comes to presenting crimes for prosecution.

“I was detained for 3 hrs 12 minutes, out of that I was questioned for approximately 40 minutes. One police officer and two FACT officers conducted the interview. The police officer sat back and let FACT do all the questioning, so FACT were running the show,” the man reports.

As for what charges were used to arrest the guy? The vaguely ridiculous: "Miscellaneous Offense." When the guy questioned the police, they said they "could not find the relevant charge." Wow.

In the meantime, the guy has been released on bail and told that he's not allowed to enter any movie theater in England or Wales "while the investigation is being carried out."

No matter which side of the debate you're on, I'd hope you can recognize how utterly insane it is to allow private parties to effectively run a criminal investigation like this.

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I posted about Monkey Lights back in 2009, and now the company's back with a NEW AND IMPROVED version with cooler animations. I want to be able to spell out words with them, and I want the front wheel to say, 'IF YOU CAN READ THIS' and the back one, 'DIE SCUMBAG!'. The new Monkey Light Pro system is currently a Kickstarter project, and the bad news is it costs $500 for the four light bars required for one wheel animation. So that's a cool $1,000 to get both wheels animated. That's a lot of money. Unless -- UNLESS -- you're using it to advertise your business. Then it's a tax write off. New plan -- front wheel: 'HANDJOBS', back wheel: '$5'. Hit the jump for a couple more gifs and a worthwhile video with even more animations. Thanks to my pal Terry, who's always making fun of my fixie even though he used to bike all the time but now just sits on the couch drinking beer and growing rounder.

If you're a government with something to hide, there are plenty of shady ways to handle Freedom of Information Act requests. You can make sure your organization is legally allowed to carry guns and simply refuse, like the NYPD. You can also make a big deal about how requests are only honored for in-state residents, as if that were the spirit of the legislation. Or, if you're as big as the federal government, you can play a sort of bureaucratic hackey-sack game with the request for years before releasing the most non-useful information possible. The problem with all of these methods, however, is that they make those using them look petty, but they don't really cement their position in the corrupt jackasses category that I believe all government agencies secretly want to obtain.

Which is why we'll go to the Chicago city government, since they're the obvious experts in the matter. Here, Rahm Emanuel's administration has taken responding to FOIA requests to a whole new level, not only providing nothing in response to such requests, but then answering questions from the Attorney General with non-responses indicating they might just have proactively destroyed the documents being requested. This story begins with our vaunted public school system, the CPS. Glenn Krell wanted to get his hands on what research had been done when CPS put in a longer school day without bothering to give schools any resources to actually do anything with the extra time.

Krell figured CPS had done research on the longer school day because, like every parent in the system, he'd received a letter from Jean-Claude Brizard, then the CEO, claiming that "our elementary school students are receiving 22 percent less instruction time than their peers across the country." So he sent CPS a FOIA request asking for "the reports, statistics, comprehensive city-by-city analysis and other documents that back up the statement by Mr. Brizard."

CPS responded that "the district does not maintain any documents responsive to your request."

Got that? CPS cites a statistic justifying the longer school day, Krell asks for the basis of that statistic, and CPS says there is no document for that. In internet terms, Krell asked for a citation and CPS was unable to provide one. In addition, Krell asked for information on how the city decided to achieve what it calls "selective enforcement tiers", by which high-performing schools are made available to lower-income families as a method for integration. This was another matter about which CPS had indicated its offices were just overflowing with research.

He knew CPS had lots of information on this matter because he'd read about it in the Tribune. In that article, CPS officials boasted about how they'd left no stone unturned in their effort to make the selection process as fair and objective as possible. They said the process considers data such as home-ownership rates in the students' census tracts and the share of homes where English isn't the primary language.

The response to that request? CPS claimed there too it had no documents to turn over. But why? Had Brizard and CPS simply made the statistics and research claims up? To find out, Krell appealed to AG Lisa Madigan, which is exactly what the law indicates you're supposed to do if you get a fishy response to a FOIA request. Madigan's office dutifully asked CPS if such documents had never existed, or if they'd simply been destroyed. CPS responded that they had never maintained those records and they do not exist. The result of that non-answer was for Madigan's office to declare the matter closed.

And that's a problem, because CPS didn't actually answer the AG's question. They do not answer whether or not the documents ever existed at all, only that they never maintained them and they don't exist currently. One way to achieve that answer is for the research to never have actually been done, which would make CPS liars on multiple items it had addressed to parents and the press. Another way is for those documents to have been proactively destroyed instead of maintained, quite possibly so that they'd never have to be revealed for a FOIA request. Either way, that's crappy government. Add to that Madigan's shirking of her responsibility and it's difficult to take Emmanuel seriously when he claims his administration is "the most open, accountable, and transparent government Chicago has ever seen."

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A pair of the cell phone recordings of the David Silva beating have been released by attorney Daniel Rodriguez. 23ABC News received the videos first, both of which capture the final moments of Silva's life. Unfortunately for those seeking more clarity as to the actions of the nine responding officers, these videos fail to provide much insight into the officers' actions during the previous 30-40 minutes.

Both videos were shot after the batons had stopped (allegedly) swinging. [The videos won't embed so you'll have to click through to view them.] In the first, Silva is surrounded by several members of law enforcement who are obviously still restraining him. You can hear faint orders to "get down" being yelled by the officers, but the most noticeable sounds come from Silva himself, who spends most of the runtime screaming.

The second video shows the efforts of law enforcement and the responding EMS unit to revive Silva. One of the offscreen voices makes a couple of interesting statements. First, he points out that officers "stood around for five minutes" by Silva's unmoving body before attempting resuscitation. The second, echoed by a female voice, lends some credence to the story put forth by several witnesses: "Now, it's a murder scene."

Also of note, at 5:19 a second cell phone, presumably recording, shows up in frame. This would appear to be the other cell phone that was seized by the Sheriff's Department, the one on which the footage is no longer available.

The witnesses claim that both phones had footage of officers striking and kicking Silva, but with both phones now returned to their owners, none of the footage has survived. Both phones made their way from the deputies who seized the phones to the Kern County Sheriff's Office, which then shared the phones with the Bakersfield PD and the FBI. The FBI has apparently analyzed both phones but has yet to release its findings.

Here's where we stand right now, according to Rodriguez:

Rodriguez told ABC23 that "the more incriminating video was one on the other cellphone." He said that video was shot "while the batons were swinging." Rodriguez added the second phone was returned to his client with no video. If a video was erased from that phone, he said, it could not be recovered because of the type of the device.

David Cohn, the attorney for David Silva's family, has his own concerns:

[Cohn] said his clients are concerned that the videos might be erased or destroyed, either accidentally or on purpose. He has not seen them.

"If I'd heard that they'd given them to the FBI, ok," he told The Associated Press on Tuesday. "But the Bakersfield Police Department, whom they work with on a daily basis? It certainly doesn't have the look of impartiality."

Cohn also (obviously) has his concerns about the phone seizures themselves.

Cohn said the Sheriff's Department went "well beyond a reasonable search" in obtaining the videos, making no effort to ask for copies or voluntary cooperation from the witnesses.

"They held these people hostage for several hours pending the serving of a search warrant. I've never heard of that before," he said.

Beyond the deputies' abuse of these witnesses' rights, there's another aspect that may have made these seizures illegal, as posited by ExCop-LawStudent.

The Privacy Protection Act, 42 U.S.C. 2000aa(a) (hereafter PPA), states:

Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication….

This law provides that if a person takes a video of police action and intends to disseminate it to the public, the police can only obtain the video by subpoena, not by a search warrant. In this case neither of the individuals who had their property seized were suspects in the crime being investigated, the death of David Silva at the hands of Kern County Sheriff’s deputies, nor were they being arrested.

The sheriff’s office was aware of the video because the individual that taped the beating called 911.

Further, that individual informed the 911 personnel that she intended to disseminate the video to the public (at 0:46 of the call), saying “I’m sending it to the news.” At this point, the Sheriff’s office was on notice that this was “work product” protected by the Privacy Protection Act, and should have been obtained by subpoena, not by a search warrant. Indeed, the law specifically provides that a warrant can only be used after a subpoena has failed to obtain the material.

In support of this argument, the author cites the infamous case brought against the US by Steve Jackson Games, which had several work products seized by US Secret Service agents via a warrant, despite not being a suspect in the investigation at hand. The end result was $50,000 in damages plus attorney's fees being awarded to the game maker for these illegal seizures.

The video supposedly containing the most damning footage is missing. What we do have available only shows the aftermath of the beating. We're still waiting for much more information to be released. There's been no word back from the FBI on its analysis of the phones. The coroner has yet to release an official cause of death and the sheriff's office has stated this process could take up to four months. Kern County Sheriff Donny Youngblood continues to make concerned noises, but the lack of conclusive video has also prompted a bit more hedging, along with some unfortunate statements.

"I have seen the video," Youngblood said last week. "I cannot speculate whether they acted appropriately or not just by looking at the video."

The sheriff, however, acknowledged that there is a great deal of public concern about the incident and subsequent investigation. "It is not just troubling to the public, it is not just troubling to news media, it is troubling to me," he said. In an interview with The Times, he said the credibility of the department is at stake.

"Baton strikes were used, but what I don't know is how many and where they were on the body and if they caused significant injury that caused death," he said.

Youngblood said the baton is a less lethal weapon, and because of that its use doesn’t usually lead to deputies being placed on leave. But he said the head is not an appropriate place for a baton strike.

"Sometimes in the heat of battle, the baton doesn't go where you want it to go.... If someone has 20 baton strikes to the head, OK, that is easy for us. But when there is a fight or scuffle and a baton strike goes where it should not ... then you have to evaluate,” he said.

The passive voice in this context is bordering on reprehensible. There's a person controlling the baton and that person presumably should have the training to ensure proper "placement" of the weapon. The two deputies seen on the surveillance tape seem to be controlling their batons very well, using both hands to swing and connect with Silva. Nine officers swinging batons at one man are going to run out of "appropriate" real estate on a human body very quickly.

Youngblood seems to be drawing a line between proper baton use and a savage beating, but he's drawing the line in his office's favor. If all officers aimed exclusively and repeatedly for Silva's head, it's an open-and-shut case. But, if Silva struggled, or if blows rained down on other parts of his body as well, it's probably just good (if a bit too aggressive) police work (pending "evaluation").

Youngblood's statement serves two purposes: to define how far officers under his control actually have to go in terms of violence in order to warrant further review or disciplinary action, and to justify the fact that his deputies are still on active duty, despite earlier reporting that they had been placed on paid administrative leave until the investigation was complete.

It is common to place law enforcement officers on paid leave during investigations of arrest-related deaths, but the Californian reported the deputies involved remain on duty.

Youngblood's deputies who allegedly beat a man to death are still on patrol. One hopes that they won't find themselves in any situations in which a baton strike might be used, or go where the deputies "don't want it to go."

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