'A genuinely disturbing place': England's spookiest sites inspire new ghost stories from top writers
The likes of Jeanette Winterson, Mark Haddon and Sarah Perry have penned dark tales of ancient houses and hauntings, spanning the country from Audley End in Essex to York Cold War Bunker
Beneath Dover Castle, an imposing Gothic bulk atop the chalk hills of the English port, is a labyrinth of tunnels. Dug in the 18th century for troops garrisoned there as a first line of defence against revolutionary France, the tunnels have recently developed a ghostly reputation.
Once a month, English Heritage, which manages the site, evacuates the tunnels for staff to perform sweeps, searching for any of the mysterious figures that tourists have reported seeing. In one report, a heavy door slammed shut and a stretcher trolley, part of a wartime exhibit, raced along the corridor as if pushed by a violent force. In another, a stranger in wartime fatigues approached a small boy asking for his help to find “Helen” (neither man nor his quarry were found).Continue reading...
Researchers attached electrodes to neurons in monkeys, showed them pictures of faces, and then reconstructed the faces reading brain waves.
After decades of work, scientists at Caltech may have finally cracked our brain’s facial recognition code. Using brain scans and direct neuron recording from macaque monkeys, the team found specialized “face patches” that respond to specific combinations of facial features.
Like dials on a music mixer, each patch is fine-tuned to a particular set of visual information, which then channel together in different combinations to form a holistic representation of every distinctive face.
There are so many ways this could be used irresponsibly, but to be honest, tech-enhanced photographic memory sounds kind of awesome.
Amanda Shendruk for The Pudding analyzed how genders are represented differently in comic books, focusing on “naming conventions, types of superpowers, and the composition of teams to see how male and female genders are portrayed.” The charts are good, but I’m pretty sure the animated GIFs for a handful of female characters make the piece.
Amazon's grocery ambitions were clear long before the Internet giant bought Whole Foods last month, and the company is moving ahead with those ambitions after purchasing the grocery chain. According to a report from the British publication The Times, Amazon filed a trademark for a meal kit service on July 6 with the tagline "We do the prep. You be the chef." The service covers "prepared food kits... ready for assembly as a meal" and, according to CNBC, will primarily include dishes consisting of grains, pasta, rice, and noodles.
Any Amazon meal kits to come in the future will likely be sold through Amazon Fresh, the company's online grocery ordering and delivery service. Amazon Fresh already sells meal kits from partners including Tyson Foods and Martha Stewart, so any newly branded Amazon meal kits won't be the only prepared ingredient boxes available through the service. While it's unclear if Amazon Fresh will take over Whole Foods' existing grocery delivery service, there's a good chance that any meal kits offered by Amazon could also be prepared and delivered via Whole Foods locations.
It may be some time before we see Amazon-branded meal kits online, but the competition is already feeling the heat. Blue Apron is the largest meal kit provider in the US, followed by HelloFresh, and this is the second hit the company has taken recently. Blue Apron filed its IPO shortly after Amazon bought Whole Foods, and since then its stock has fallen 30 percent month-to-date. Today, Blue Apron stocks hit an intraday low of $6.51 a share, down nearly 10 percent.
The Federal Communications Commission has denied a request to extend the deadline for filing public comments on its plan to overturn net neutrality rules, and the FCC is refusing to release the text of more than 40,000 net neutrality complaints that it has received since June 2015.
The National Hispanic Media Coalition (NHMC) filed a Freedom of Information Act (FoIA) request in May of this year for tens of thousands of net neutrality complaints that Internet users filed against their ISPs. The NHMC argues that the details of these complaints are crucial for analyzing FCC Chairman Ajit Pai's proposal to overturn net neutrality rules. The coalition also asked the FCC to extend the initial comment deadline until 60 days after the commission fully complies with the FoIA request. A deadline extension would have given people more time to file public comments on the plan to eliminate net neutrality rules.
Instead, the FCC yesterday denied the motion for an extension and said that it will only provide the text for a fraction of the complaints, because providing them all would be too burdensome. Pai has previously claimed that his proposed repeal of net neutrality rules is using a "far more transparent" process than the one used to implement net neutrality rules in 2015. Pai has also claimed that net neutrality rules were a response to "hypothetical harms and hysterical prophecies of doom" and that there was no real problem to solve.
In Alaska, you don’t mess with nature—lest it mess with you.
Emmett Fitch, an Alaska man who runs a small ISP in Unalaska, Alaska—1,000 miles southwest of Anchorage—told Ars that last month he was out helping a drone videographer visiting from Nevada shoot a promotional video in the nearby port of Dutch Harbor.
The team flew a drone out over the harbor, Fitch said, "a mile away," and the pilot, Scott Robertson, was trying to bring it back to shore.
The Trump administration supports the Federal Communications Commission effort to overturn net neutrality rules passed during the Obama years, a White House spokesperson said yesterday.
"The previous administration went about this the wrong way by imposing rules on ISPs through the FCC's Title II rulemaking power," White House Deputy Press Secretary Sarah Sanders told reporters yesterday. "We support the FCC chair's efforts to review and consider rolling back these rules and believe that the best way to get fair rules for everyone is for Congress to take action and create regulatory and economic certainty."
The net neutrality rules passed in 2015 are enforced with the FCC's Title II authority over common carriers; a previous version of the rules that did not rely upon Title II was thrown out in court. Under Chairman Ajit Pai's leadership, the Republican-controlled FCC took a preliminary vote to undo the Title II classification and the net neutrality rules in May.
If you happen to be a fan of the heavy metal band Isis (an unfortunate name, to be sure), you may have trouble ordering its merchandise online. Last year, Paypal suspended a fan who ordered an Isis t-shirt, presumably on the false assumption that there was some association between the heavy metal band and the terrorist group ISIS.
Then last month Internet scholar and activist Sascha Meinrath discovered that entering words such as "ISIS" (or "Isis"), or "Iran", or (probably) other words from this U.S. government blacklist in the description field for a Venmo payment will result in an automatic block on that payment, requiring you to complete a pile of paperwork if you want to see your money again. This is even if the full description field is something like "Isis heavy metal album" or "Iran kofta kebabs, yum."
These examples may seem trivial, but they reveal a more serious problem with the trust and responsibility that the Internet places in private payment intermediaries. Since even many non-commercial websites such as EFF's depend on such intermediaries to process payments, subscription fees, or donations, it's no exaggeration to say that payment processors form an important part of the financial infrastructure of today's Internet. As such, they ought to carry corresponding responsibilities to act fairly and openly towards their customers.
Unfortunately, given their reliance on bots, algorithms, handshake deals, and undocumented policies and blacklists to control what we do online, payment intermediaries aren't carrying out this responsibility very well. Given that these private actors are taking on responsibilities to help address important global problems such as terrorism and child online protection, the lack of transparency and accountability with which they execute these weighty responsibilities is a matter of concern.
The readiness of payment intermediaries to do deals on those important issues leads as a matter of course to their enlistment by governments and special interest groups to do similar deals on narrower issues, such as the protection of the financial interests of big pharma, big tobacco, and big content. It is in this way that payment intermediaries have insidiously become a weak leak for censorship of free speech.
Cigarettes, Sex, Drugs, and Copyright
For example, if you're a smoker, and you try to buy tobacco products from a U.S. online seller using a credit card, you'll probably find that you can't. It's not illegal to do so, but thanks to a "voluntary" agreement with law enforcement authorities dating back to 2005, payment processors have effectively banned the practice—without any law or court judgment.
Another example that we've previously written about are the payment processors' arbitrary rules blocking sites that discuss sexual fetishes, even though that speech is constitutionally protected. The congruence between the payment intermediaries' terms of service on the issue suggests a degree of coordination between them, but their lack of transparency makes it impossible to be sure who was behind the ban and what channels they used to achieve it.
A third example is the ban on pharmaceutical sales. You can still buy pharmaceuticals online using a credit card, but these tend to be from unregulated, rogue pharmacies that lie to the credit card processors about the purpose for which their merchant account will be used. For the safer, regulated pharmacies that require a prescription for the drugs they sell online, such as members of the Canadian International Pharmacy Association (CIPA), the credit card processors enforce a blanket ban.
Finally there are "voluntary" best practices on copyright and trademark infringement. These include the RogueBlock program of the International Anti-Counterfeiting Coalition (IACC) in 2012, about which information is available online, along with a 2011 set of "Best Practices to Address Copyright Infringement and the Sales of Counterfeit Products on the Internet," about which no online information is found. The only way that you can find out about the standards that payment intermediaries use to block websites accused of copyright or trademark infringement is by reading what academics have written about it.
Lack of Transparency Invites Abuse
The payment processors might respond that their terms of service are available online, which is true. However, these are ambiguous at best. On Venmo, transactions for items that promote hate, violence, or racial intolerance are banned, but there is nothing in its terms of service to indicate that including the name of a heavy metal band in your transaction will place it in limbo. Similarly, if you delve deep enough into Paypal's terms of service you will find out that selling tickets to professional UK football matches is banned, but you won't find out how this restriction came about, or who had a say in it.
Payment processors can do better. In 2012, in the wake of the payment industry's embargo of Wikileaks and its refusal to process payments to European vendors of horror films and sex toys, the European Parliament Committee on Economic and Monetary Affairs made the following resolution:
[The Committee c]onsiders it likely that there will be a growing number of European companies whose activities are effectively dependent on being able to accept payments by card; [and] considers it to be in the public interest to define objective rules describing the circumstances and procedures under which card payment schemes may unilaterally refuse acceptance.
We agree. Bitcoin and other cryptocurrencies notwithstanding, online payment processing remains largely oligopolistic. Agreements between the few payment processors that make up the industry and powerful commercial lobbies and governments, concluded in the shadows, can have deep impacts on entire online communities. When payment processors are drawing their terms of service or developing algorithms that are based on industry-wide agreements, standards, or codes of conduct—especially if these involve governments or other third parties—they ought to be developed through a process that is inclusive, balanced and accountable.
The fact that you can't use Venmo to purchase an Isis t-shirt is just one amusing example. But the Shadow Regulation of the payment services industry is much more serious than that, also affecting culture, healthcare, and even your sex life online. Just as we've called other Internet intermediaries to account for the ways in which their "voluntary" efforts threaten free speech, the online payment services industry needs to be held to the same standard.
Border agents may not use travelers’ laptops, phones, and other digital devices to access and search cloud content, according to a new document by U.S. Customs and Border Protection (CBP). CBP wrote this document on June 20, 2017, in response to questions from Sen. Wyden (D-OR). NBC published it on July 12. It states:
In conducting a border search, CBP does not access information found only on remote servers through an electronic device presented for examination, regardless of whether those servers are located abroad or domestically. Instead, border searches of electronic devices apply to information that is physically resident on the device during a CBP inspection.
This is a most welcome change from prior CBP policy and practice. CBP’s 2009 policy on border searches of digital devices does not prohibit border agents from using those devices to search travelers’ cloud content. In fact, that policy authorizes agents to search “information encountered at the border,” which logically would include cloud content encountered by searching a device at the border.
We do know that border agents have used travelers’ devices to search their cloud content. Many news reports describe border agents scrutinizing social media and communications apps on travelers’ phones, which show agents conducting cloud searches.
EFF will monitor whether actual CBP practice lives up to this salutary new policy. To help ensure that border agents follow it, CBP should publish it. So far, the public only has second-hand information about this “nationwide muster” (the term CBP’s June 17 document uses to describe this new CBP written policy on searching cloud data). Also, CBP should stop seeking social media handles from foreign visitors, which blurs CBP’s new instruction to border agents that cloud searches are off limits.
Separately, CBP’s responses to Sen. Wyden’s questions explain what will happen to a U.S. citizen who refuses to comply with a border agent’s demand to disclose their device password (or unlock their device) in order to allow the agent to search their device:
[A]lthough CBP may detain an arriving traveler’s electronic device for further examination, in the limited circumstances when that is appropriate, CBP will not prevent a traveler who is confirmed to be a U.S. citizen from entering the country because of a need to conduct that additional examination.
This is what EFF told travelers would happen in our March 2017 border guide, based on law and reported CBP practice. It is helpful that CBP has confirmed this in writing. However, CBP also should publicly state whether U.S. lawful permanent residents (green card holders) will be denied entry for not facilitating a CBP search of their devices. They should not be denied entry. Notably, Sen. Wyden asked CBP to answer this question about all “U.S. persons,” and not just U.S. citizens.
CBP’s responses leave other important questions unanswered. For example, CBP should publicly state whether, when border agents ask travelers for their device passwords, the agents must (in the words of Sen. Wyden) “first inform the traveler that he or she has the right to refuse.” CBP did not answer this question. The international border is an inherently coercive environment, where harried travelers must seek permission to come home from uniformed and frequently armed agents in an unfamiliar space. To ensure that agents do not strong-arm travelers into surrendering their digital privacy, agents should be required to inform travelers that they may choose not to unlock their devices.
Also, CBP should publicly answer Sen. Wyden’s question about how many times in the last five years CBP has searched a device “at the request of another government agency.” Such searches will usually be improper. Historically, courts have granted border agents greater search powers than other law enforcement officials, but only for purposes of enforcing customs and immigration laws. If border agents search travelers at the request of other agencies, they presumably do so for others purposes, and so use of their heightened powers is improper. While CBP’s document provides information about CBP’s assistance requests to other agencies (for example, to seek technical help with decryption), this sheds no light on other agencies’ requests to CBP to use a traveler’s presence at the border as an excuse to conduct a warrantless search, which likely would not be justified at the interior of the country.
EFF applauds Sen. Wyden for his leadership in congressional oversight of CBP’s border device searches. We also thank CBP for answering some of Sen. Wyden’s questions. But many questions remain.
CBP’s June 2017 responses confirm that much more must be done to protect travelers’ digital privacy at the U.S. border. An excellent first step would be to enact Sen. Wyden’s bipartisan bill to require border agents to get a warrant before searching the digital devices of U.S. persons.
The failed Trans-Pacific Partnership (TPP) was a lesson in what happens when trade agreements are negotiated in secret. Powerful corporations can lobby for dangerous, restrictive measures, and the public can't effectively bring balance to the process. Now, some members of Congress are seeking to make sure that future trade agreements, such as the renegotiated version of NAFTA, are no longer written behind closed doors. We urge you to write your representative and ask them to demand transparency in trade.
Representative Debbie Dingell (D-MI) has today introduced the Promoting Transparency in Trade Act (H.R. 3339) [PDF], with co-sponsorship by Representatives Laura DeLauro (D-CT), Tim Ryan (D-OH), Marcy Kaptur (D-OH), Jamie Raskin (D-MD), Keith Ellison (D-MI), Raúl Grijalva (D-AZ), John Conyers (D-MI), Jan Schakowsky (D-IL), Louise Slaughter (D-NY), Mark DeSaulnier (D-CA), Dan Lipinski (D-IL), Chellie Pingree (D-ME), Brad Sherman (D-CA), Jim McGovern (D-MA), Rick Nolan (D-MN), and Mark Pocan (D-WI). Representative Dingell describes the bill as follows:
The Promoting Transparency in Trade Act would require the U.S. Trade Representative (USTR) to publicly release the proposed text of trade deals prior to each negotiating round and publish the considered text at the conclusion of each round. This will help bring clarity to a process that is currently off limits to the American people. Actively releasing the text of trade proposals will ensure that the American public will be able to see what is being negotiated and who is advocating on behalf of policies that impact their lives and economic well-being.
We wholeheartedly agree. Indeed, these are among the recommendations that EFF has been pushing for for some time, most recently at a January 2017 roundtable on trade transparency that we held with stakeholders from industry, civil society, and government. That event resulted in a set of five recommendations on the reform of trade negotiation processes that were endorsed by the Sunlight Foundation the Association of Research Libraries, and OpenTheGovernment.org.
A previous version of the Promoting Transparency in Trade Act was introduced into the previous session of Congress, but died in committee. Compared with that version, this latest bill is an improvement because it requires the publication of consolidated draft texts of trade agreements after each round of negotiations, which the previous bill did not.
Another of our recommendations that is reflected in the bill is to require the appointment of an independent Transparency Officer to the USTR. Currently, the Transparency Officer is the USTR's own General Counsel, which creates an conflict of interest between the incumbent's duty to defend the office's current transparency practices, and his or her duties to the public to reform those practices. An independent officer would be far more effective at pushing necessary reforms at the office.
The Promoting Transparency in Trade Act faces challenging odds to make it through Congress. Its next step towards passage into law will be its referral to the House Committee on Ways and Means, and probably its Subcommittee on Trade, which will decide whether the bill will be sent to the House of Representatives for a vote. The Senate will also have to vote on the bill before it becomes law. The more support that we can build for the bill now, the better its chances for surviving this perilous process.
Passage of this bill may be the best opportunity that we'll have to avoid a repetition of the closed, secretive process that led to the TPP. With the renegotiation of NAFTA commencing with the first official round of meetings in Washington, D.C. next month, it's urgent that these transparency reforms be adopted soon. You can help by writing to your representative in Congress and asking them to support the bill in committee.
One day after a large protest of his plan to gut net neutrality rules, Federal Communications Commission Chairman Ajit Pai was asked if the number of pro-net neutrality comments submitted to the FCC might cause a change in course.
In response, Pai maintained his stance that the number of comments is not as important as the content of those comments.
"As I said previously, the raw number is not as important as the substantive comments that are in the record," Pai said at a press conference following yesterday's monthly FCC meeting.
The ways in which the disastrous Blurred Lines verdict represents a complete mess for the music ecosystem are fairly legion, from chilling artistic creation for fear of unintended infringement to the absurdity of giving estates of long-dead artists license to stifle the release of new art that would benefit our culture as a whole. The awful ripple effects of the lawsuit don't end there and it's useful to keep in mind that the jury awarded the $7.3 million verdict to the Marvin Gaye estate acknowledged that there was no willful infringement on the part of Blurred Lines creators Robin Thicke and Pharrell Williams. Put another way, the jury latched onto the duo's perceived and, in the case of Pharrell, stated inspiration by Gaye's contributions to music and decided that inspiration was copyright infringement. For anyone with even a cursory understanding of how music is made and creativity sparked, this was crazy.
So crazy, in fact, that as the world waits for the appeal, it seems that some musicians and their management groups have decided that nobody ought to talk about who inspired whom publicly.
Now though, music experts have told the Victoria Derbyshire programme that artists are being advised not to mention publicly who has inspired them. This is because of a high-profile copyright infringement case in which US jurors ruled that Robin Thicke and Pharrell Williams, on their song Blurred Lines, had copied Marvin Gaye's Got To Give It Up.
According to forensic musicologist Peter Oxendale "everyone's concerned that inspiration can [now be interpreted as] a catalyst for infringement.
"All of these companies are worried that if a track is referenced on another at all, there may be a claim being brought," he explains.
If you've ever wondered what a chilling effect looks like in its chilly, chilly flesh, this is it. Since time immemorial, it has been common practice in the music industry to laud praise on one's inspirations and heroes in the music world, with no narrow eyes cast at those inspired by the greats from the past. When Bruno Mars created Uptown Funk, everyone who listened to it knew the era and genre the music was inspired by. Hell, the first time I heard that song, it made me immediately go back and listen to Morris Day and the Time, for instance. That's how music and culture works... and it's great for music and culture. Homages such as Uptown Funk or Blurred Lines, with their nods to music's past and to the great artists that built that past, are undoubtedly what keeps those past artists relevant. But now, in the wake of a terrible jury award for what everyone seems to agree wasn't even willful infringement, we get to witness copyright killing that part of the culture. Instead, apparently everyone will simply pretend publicly that all art is created in a vacuum of influence, devoid of homage and bereft of cultural context.
And the labels aren't just stopping there. There are some reports that the labels want artists to secretly disclose their influences contractually as a way to do a risk analysis on future copyright lawsuits.
Mr Oxendale says some artists are now having the requirement to name their influences written into contracts by their record labels - although he would not specify names.
"Many of the companies that I work with ask the producers and the artists to declare all of the tracks that may have been used as inspiration for their new tracks," he says.
He also confirmed that he is being sent new music to check the possibility of future copyright infringement claims.
No serious person could possibly claim this is good for music, for artists, or for our shared musical culture. And if we agree on that, then we agree that this ruling represents a perversion of copyright from its intended purpose, which is to foster more culture and creation. Much in the way certain industries absolutely hate ambiguity in their markets, so too does the music industry on matters such as these.
Nevertheless, Simon Dixon - one of the lawyers for Ed Sheeran, Sir Elton John and the Rolling Stones - says the judgement has made some people in the industry nervous.
"[The court case] wouldn't have been decided the same way over here [in the UK]," he explains. "So as a result, everyone felt they knew what the law was, they knew what the parameters were. And when you know what the laws are and the rules are you get comfortable. This injects an element of grey into the picture. So as a result people are less certain now about what they can and can't do. And as a result, everybody feels a bit nervous."
Any person who would want to state that this nervousness has no effect on artistic output would make that claim to the peril of their credibility. It has to have an impact and that impact cannot possibly be positive. If ever there were a case of copyright being used against its own purpose, this certainly must be that case. It also serves nicely as a canary in the coal mine for what our permission culture might ultimately do on our wider culture as a whole.
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Yet another company has been caught leaving personal customer data just sitting on an openly-accessible server for anybody to obtain and abuse. According to Upguard and security researcher Chris Vickery, the data was being stored by Nice Systems, a Ra'anana, Israel-based company employed by Verizon to store and analyze the data for an "unknown purpose." The data, left unprotected on an Amazon S3 storage server by the company, included information on six million subscribers that had called Verizon support in the last six months, including customer names, phone numbers and the account pins used to access their accounts.
Vickery notes that the ability to abuse these pin numbers was particularly problematic:
"Beyond the risks of exposed names, addresses, and account information being made accessible via the S3 bucket’s URL, the exposure of Verizon account PIN codes used to verify customers, listed alongside their associated phone numbers, is particularly concerning. Possession of these account PIN codes could allow scammers to successfully pose as customers in calls to Verizon, enabling them to gain access to accounts—an especially threatening prospect, given the increasing reliance upon mobile communications for purposes of two-factor authentication."
Similarly problematic was the fact that Verizon and Nice were notified of the breach on June 13th, but the data wasn't secured until June 22:
"This exposure is a potent example of the risks of third-party vendors handling sensitive data. The long duration of time between the initial June 13th notification to Verizon by UpGuard of this data exposure, and the ultimate closure of the breach on June 22nd, is troubling. Third-party vendor risk is business risk; sharing access to sensitive business data does not offload this risk, but merely extends it to the contracted partner, enabling cloud leaks to stretch across several continents and involve multiple enterprises."
For its part, Verizon tried to downplay the breach to ZDNet, laying the entirety of the blame on Nice while trying to insist that most of the data had no real value:
"Verizon provided the vendor with certain data to perform this work and authorized the vendor to set up AWS storage as part of this project," said a spokesperson. "Unfortunately, the vendor's employee incorrectly set their AWS storage to allow external access."...The phone giant said that the "overwhelming majority of information in the data set has no external value."
Yeah, not comforting. The timing is ironic given that Verizon was one of several ISPs that just got done lobbying Congress and the Trump administration to kill new FCC broadband privacy protections that would have taken effect back in March. Those rules (pdf) would have not only required that ISPs be transparent about what third party data vendors obtain and store customer information, but required ISPs adhere to basic private data storage and protection standards, and quickly notify subscribers when their data is exposed (impacted users in this instance do not appear to have been notified yet).
Verizon had long argued that telecom privacy protections aren't necessary because the industry could "self regulate," something quickly disproven when Verizon was busted a few years ago covertly modifying wireless user data packets to track their behavior around the internet. At one point the company insisted that privacy protections aren't necessary because "public shame," would keep the company honest -- something that's a bit difficult when customers have absolutely no idea who's collecting, reviewing, or storing (poorly) their personal information in the first place.
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The cable and broadcast industry goes to some amusing lengths to downplay cord cutting and streaming competition's impact on ratings and subscriber totals. Initially the impulse was just to insist that cord cutting wasn't real. When the data made outright denial impossible, the industry began insisting cord cutting was only something done by irrelevant nobodies living in mom's basement or Millennials who would see the error of their ways once they procreated. Of course data repeatedly showed that these people were the norm, and now we're looking at potentially one of the biggest quarterly subscriber losses in television history.
As ratings have reflected the industry's dying cash cow, they've also taken consistent aim at viewership measurement systems as well. A bone of particular contention has been Nielsen, which is stuck between trying to accurately measure the damage and cater to myopic cable and broadcast clients that can't hear well with their heads buried firmly in the sand. A few years ago, Nielsen was forced to stop publicizing the rise in broadband-only (not TV) households. More recently, ESPN tried to publicly shame Nielsen when the company accurately highlighted the massive subscriber exodus happening at the channel.
But the cable and broadcast industry has been engaged in some other notable shenanigans to try and protect the illusion that everything is going swimmingly. The Wall Street Journal indicates that the industry has increasingly been going so far as to intentionally misspell their programs in program listings. Why? Because when they know a show is going to see a ratings dip, listing it under another name prevents its core listing from being impacted in the Nielsen ratings:
"That explains the appearance of "NBC Nitely News," which apparently aired on the Friday of Memorial Day weekend this year, when a lot of people were away from their TVs. The retitling of “NBC Nightly News” fooled Nielsen’s automated system, which listed “Nitely” as a separate show. Hiding the May 26 program from Nielsen dramatically improved the show’s average viewership that week," the report adds. "Instead of falling further behind first-place rival 'ABC World News Tonight,' NBC news narrowed the gap."
The Journal goes on to note how this has been a sort of "open secret" in the industry for several years, but as cord cutting has begun to accelerate, its use has increased. At one point, NBC intentionally misspelled "NBC Nitely News" every night for a week. And all of this appears to be happening with the blessing of Nielsen, which again tries to walk a tightrope between being taken seriously as a rating metric system and keeping paying cable and broadcast clients happy with manufactured tales from fantasy land.
For its part, NBC issued a statement that features a number of words, but at no point addresses the issue at hand:
"As is standard industry practice, our broadcast is retitled when there are pre-emptions and inconsistencies or irregularities in the schedule, which can include holiday weekends and special sporting events,” a show spokesman said."
Granted that sounds so much nicer than "we intentionally misspell our own programs to try and pretend our industry isn't facing a massive revolution we're ill-prepared for."
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Thomas Blank, a former lobbyist and Republican official, was recently appointed to serve as the chief of staff to the U.S. Immigration and Customs Enforcement, the agency charged with investigating and enforcing immigration-related matters for the Department of Homeland Security.
There was no public press release and no announcement to mark the senior appointment. Rather, the only official acknowledgement of Blank’s new post was found through a quiet update to the ICE leadership website this week.
“Thomas Blank’s appointment as Chief of Staff for U.S. Immigration and Customs Enforcement was finalized on Wednesday, July 12,” said ICE Assistant Director for Public Affairs Liz Johnson, in a statement to The Intercept.
“Information about his appointment was then sent internally to staff and posted on the ICE.gov website, as is standard practice. Since Mr. Blank did not represent clients with ICE interests and never lobbied the agency, there are no conflict of interest concerns with Mr. Blank’s former employment.”
Blank arrived to ICE after working for over a decade as a corporate lobbyist, helping corporate contractors secure business before the agency he now leads. As the vice chairman of the lobby shop Wexler & Walker, Blank “established the firm’s growing Homeland Security Practice by building a base of clients with policy and business development interests on Capitol Hill, in The White House, and before the Departments of Homeland Security and Transportation.”
Blank’s ICE biography makes a passing reference to his 12-year lobbying career, noting that he “provided private sector consulting services in business development primarily for the security technology industry.”
Records show Blank attempted to influence lawmakers and homeland security officials on behalf of a number of government contractors. His clients included firms such as the company formerly known as Taser International, the manufacturer of electronic shock weapons used by law enforcement as an alternative to firearms. Another former Blank client, Assuretec Inc., specializes in facial recognition and identity authentication.
Notably, Chad Wolf, another prominent Homeland Security lobbyist appointed this year by the Trump administration to the Department of Homeland Security, was Blank’s colleague on a number of lobbying campaigns. The pair registered to lobby on behalf of Analogic Corp., a baggage screening company, which sought a bid for lucrative contracts with the Transportation Security Administration.
Blank, before his career as an influence peddler, worked as a staffer to then-Speaker Newt Gingrich, and after that, as a senior official in the George W. Bush administration. He assisted with the creation of the Office of Transportation Security Policy, the sub-agency that developed security procedures for the Transportation Security Administration after the attacks of September 11. Like many officials charged with overseeing the growth of the post-9/11 TSA, Blank transitioned afterwards to the private security industry to help business interests cash in on new contracts.
Blank has also worked for former Democratic lobbyist Dick Gephardt at his firm, Gephardt Government Affairs, and through a firm founded by Blank called Belvedere Strategies. Last year, Blank signed a contract, through a partnership with Gephardt Government Affairs, to lobby on behalf of the government of Turkey to assist with President Recep Tayyip Erdogan’s outreach efforts in Washington.
The appointment is the latest in a long procession of revolving door hires. President Donald Trump has filled his government with former corporate lobbyists overseeing key decisions on matters from agriculture to health to financial regulation to military acquisition and beyond.
Homeland security lobbyists have played a pivotal role in shaping the administration’s agenda in particular. As we’ve reported, lobbyists for businesses involved in immigrant detention and mass surveillance have won political appointments to ICE and DHS. Secretary John Kelly, the head of the agency, failed to publicly disclose his own financial ties to security contractors during the confirmation process.
The post Taser Lobbyist Quietly Appointed to Top Immigration Enforcement Job appeared first on The Intercept.
Yesterday's record-smashing Net Neutrality day of action showed that the Internet's users care about an open playing field and don't want a handful of companies to decide what we can and can't do online.
Today, we should also think about other ways in which small numbers of companies, including net neutrality's biggest foes, are trying to gain the same kinds of control, with the same grave consequences for the open web. Exhibit A is baking digital rights management (DRM) into the web's standards.
ISPs that oppose effective net neutrality protections say that they've got the right to earn as much money as they can from their networks, and if people don't like it, they can just get their internet somewhere else. But of course, the lack of competition in network service means that most people can't do this.
Big entertainment companies -- some of whom are owned by big ISPs! -- say that because they can make more money if they can control your computer and get it to disobey you, they should be able to team up with browser vendors and standards bodies to make that a reality. If you don't like it, you can watch someone else's movies.
Like ISPs, entertainment companies think they can get away with this because they too have a kind of monopoly --copyright, which gives rightsholders the power to control many uses of their creative works. But just like the current FCC Title II rules that stop ISPs from flexing their muscle to the detriment of web users, copyright law places limits on the powers of copyright holders.
Copyright can stop you from starting a business to sell unlicensed copies of the studios' movies, but it couldn't stop Netflix from starting a business that mailed DVDs around for money; it couldn't stop Apple from selling you a computer that would "Rip, Mix, Burn" your copyrighted music, and it couldn't stop cable companies from starting businesses that retransmitted broadcasters' signals.
That competitive balance makes an important distinction between "breaking the law" (not allowed) and "rocking the boat" (totally allowed). Companies that want to rock the boat are allowed to enter the market with new, competitive offerings that go places the existing industry fears to tread, and so they discover new, unmapped and fertile territory for services and products that we come to love and depend on.
But overbroad and badly written laws like Section 1201 of the 1998 Digital Millennium Copyright Act (DMCA) upset this balance. DMCA 1201 bans tampering with DRM, even if you're only doing so to exercise the rights that Congress gave you as a user of copyrighted works. This means that media companies that bake DRM into the standards of the web get to decide what kinds of new products and services are allowed to enter the market, effectively banning others from adding new features to our media, even when those features have been declared legal by Congress.
ISPs are only profitable because there was an open Internet where new services could pop up, transforming the Internet from a technological curiosity into a necessity of life that hundreds of millions of Americans pay for. Now that the ISPs get steady revenue from our use of the net, they want network discrimination, which, like the discrimination used by DRM advocates, is an attempt to change "don't break the law" into "don't rock the boat" -- to force would-be competitors to play by the rules set by the cozy old guard.
For decades, activists struggled to get people to care about net neutrality, and their opponents from big telecom companies said, "people don't care, all they want is to get online, and that's what we give them." The once-quiet voices of net neutrality wonks have swelled into a chorus of people who realize that an open web was important to their future. As we saw yesterday, the public broadly demands protection for the open Internet.
Today, advocates for DRM say that "People don't care, all they want is to watch movies, and that's what we deliver." But there is an increasing realization that letting major movie studios tilt the playing field toward them and their preferred partners also endangers the web's future.
Don't take our word for it: last April, Professor Tim Wu, who coined the term "net neutrality" and is one of the world's foremost advocates for a neutral web, published an open letter to Tim Berners-Lee, inventor of the web and Director of the World Wide Web Consortium (W3C), where there is an ongoing effort to standardize DRM for the web.
In that letter, Wu wrote:
I think more thinking need be done about EME’s potential consequences for competition, both as between browsers, the major applications, and in ways unexpected. Control of chokepoints has always and will always be a fundamental challenge facing the Internet as we both know. That’s the principal concern of net neutrality, and has been a concern when it comes to browsers and their associated standards. It is not hard to recall how close Microsoft came, in the late 1990s and early 2000s, to gaining de facto control over the future of the web (and, frankly, the future) in its effort to gain an unsupervised monopoly over the browser market.
EME, of course, brings the anti-circumvention laws into play, and as you may know anti-circumvention laws have a history of being used for purposes different than the original intent (i.e., protecting content). For example, soon after it was released, the U.S. anti-circumvention law was quickly by manufacturers of inkjet printers and garage-door openers to try and block out aftermarket competitors (generic ink, and generic remote controls). The question is whether the W3C standard with an embedded DRM standard, EME, becomes a tool for suppressing competition in ways not expected.
This week, Berners-Lee made important and stirring contributions to the net neutrality debate, appearing in this outstanding Web Foundation video and explaining how anti-competitive actions by ISPs endanger the things that made the web so precious and transformative.
Last week, Berners-Lee disappointed activists who'd asked for a modest compromise on DRM at the W3C, one that would protect competition and use standards to promote the same level playing field we seek in our Net Neutrality campaigns. Yesterday, EFF announced that it would formally appeal Berners-Lee's decision to standardize DRM for the web without any protection for its neutrality. In the decades of the W3C's existence, there has never been a successful appeal to one of Berners-Lee's decisions.
The odds are long here -- the same massive corporations that oppose effective net neutrality protections also oppose protections against monopolization of the web through DRM, and they can outspend us by orders of magnitude. But we're doing it, and we're fighting to win. That's because, like Tim Berners-Lee, we love the web and believe it can only continue as a force for good if giant corporations don't get to decide what we can and can't do with it.
A couple of years ago, the DHS's Inspector General set out to see if the TSA could actually do the one thing it was supposed to do: prevent weapons and explosives from being brought onboard. This was the result:
According to officials briefed on the results of a recent Homeland Security Inspector General’s report, TSA agents failed 67 out of 70 tests [95%], with Red Team members repeatedly able to get potential weapons through checkpoints. In one test an undercover agent was stopped after setting off an alarm at a magnetometer, but TSA screeners failed to detect a fake explosive device that was taped to his back during a follow-on pat down. Officials would not divulge the exact time period of the testing other than to say it concluded recently.
95 out 100 terrorists agree: the TSA is doing a bang-up job making travel safer. Now, the DHS is insisting foreign airports start buckling down on security or start subjecting fliers to a variety of inconvenient bans. However, it hasn't had much to say about the insecurity of domestic airports, where things have progressed less-than-incrementally since the last Red Team audit.
When put to the test, Minneapolis-St. Paul International Airport failed 95 percent of security tests conducted at the airport last week, according to Fox 9 sources. [Fox has a rounding error: 17 of 18 is 94.4%]
Last Thursday, what’s referred to as the “Red Team” in town from Washington D.C., posed as passengers and attempted to sneak items through security that should easily be caught.
In most cases, they succeeded in getting the banned items though. 17 out of 18 tries by the undercover federal agents saw explosive materials, fake weapons or drugs pass through TSA screening undetected.
That percentage could conceivably have been worse. According to Fox 9, the Red Team stopped the audit once it hit the 95% threshold. Even the most sociopathic of us finds it uncomfortable to watch supposedly-trained people fail over and over at the one task they've been assigned.
Fox also points out the MSP team has failed before, albeit somewhat less spectacularly. Last year, TSA screeners missed 9 of 12 weapons/explosives. Since that previous low water mark, security has only gotten worse.
The TSA's response? To borrow a gun from someone who got past the screeners in order to shoot the messenger.
When asked about Thursday’s failing grade, the TSA said, “TSA cannot confirm or deny the results of internal tests and condemns the release of any information that could compromise our nation’s security."
Hey, TSA: it's not the release of information that's compromising national security. It's your employees. If they did their job competently, there'd be nothing to report.
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On the campaign trail, you might recall that Donald Trump threatened to block AT&T's $89 billion acquisition of Time Warner, insisting that the deal was "an example of the power structure" he was fighting, because it would deliver "too much concentration of power in the hands of too few." Granted he subsequently appointed an FCC chairman in Ajit Pai who's little more than a rubber stamp for companies like AT&T, and nominated an antitrust boss already on record stating he has no real problems with the merger, leading most analysts to believe the deal will be approved anyway.
There are of course a number of legitimate reasons to block the deal, including concerns that AT&T will make licensing access to necessary programming more difficult than ever for streaming video competitors. Or the fact that AT&T's using its dominance in wireless to give Time Warner content an unfair advantage over competitors via usage caps and overage fees (aka "zero rating"). It would be foolish to think a company with such a rich history of anti-competitive and anti-consumer behavior wouldn't use this greater size and leverage anti-competitively.
But these are complicated nuances it's not-terribly-likely the current President actually understands. Instead, his focus in recent months has been the fact that he doesn't like Time Warner-owned CNN's critical coverage of his administration, and, according to the New York Times, hopes to use the deal as "leverage" to force CNN to soften its critcism of the President as part of his broader assault on the media:
"White House advisers have discussed a potential point of leverage over their adversary, a senior administration official said: a pending merger between CNN’s parent company, Time Warner, and AT&T. Mr. Trump’s Justice Department will decide whether to approve the merger, and while analysts say there is little to stop the deal from moving forward, the president’s animus toward CNN remains a wild card."
Other news outlets noted that the Trump administration is also contemplating demanding the ouster of current CNN boss Jeff Zucker in exchange for approving the deal. The news was quick to result in letters to the DOJ from several Senators who claimed Trump was "interfering" in an approval process that should be left up to regulators and the DOJ to decide:
"Any political interference in antitrust enforcement is unacceptable," Minnesota Sen. Amy Klobuchar wrote in a letter to Attorney General Jeff Sessions. "Even more concerning, in this instance, is that it appears that some advisers to the President may believe that it is appropriate for the government to use its law enforcement authority to alter or censor the press. Such an action would violate the First Amendment."
If you're at all familiar with the ethical behavior over at AT&T (like the times it ripped off a program for the hearing impaired or made bills harder to understand to help criminals scam its own customers), it would certainly be in character for AT&T to agree to trample the editorial firewall between itself and CNN to get the deal done -- it just wouldn't be stupid enough to put any such agreement in writing. As the net neutrality fight makes clear, telecom giants aren't particularly concerned about the whole free speech thing (check out Verizon's first foray into tech content, for example).
AT&T's also a world-class expert at making utterly bogus claims when it comes to its latest megamergers, consistently claiming such deals will lower prices, expand broadband coverage and create oceans of new jobs (telecom megamerger history makes it abundantly clear the exact opposite almost always occurs). Given some similar expertise over at the Trump camp, there's an incredible opportunity for some amazing bullshit here; an opportunity Trump likely won't want to waste by continuing what's become an arguably unhealthy fixation on CNN.
The likely outcome is that we'll get to have our rotten cake and eat it too: a torrent of bogus job and broadband expansion promises the likes of which we've never seen before -- and a CNN left bridled by a meddling new corporate parent focused exclusively on currying favor in the Trump administration to anti-competitive benefit. Just think of the incredible potential for synergies...and bullshit.
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Over his long career in business, Donald Trump took a minimalist approach to ethics. He stiffed contractors, dodged creditors, slapped his name on projects that he had almost nothing to do with, and treated his federal tax bills like parking tickets. He did the bare minimum, in other words, to avoid being hauled into court as a cheat.
Trump made little effort to hide his scofflaw attitude during the campaign. Instead, he framed it as a strength. Dodging taxes “makes me smart,” he bragged during a televised debate. If he’d chosen to pay up, the money “would be squandered.” And, unlike every major-party presidential candidate from Ronald Reagan on, Trump refused to release his tax returns.
A few days before Trump took office, he did spend a few minutes talking in public about ethics. On January 11, standing behind a desk with a theatrically high pile of documents and manila folders, Trump announced that he would step aside and hand control of the Trump Organization to his two sons and a company lawyer. “The president-elect will have no role in deciding whether the Trump Organization engages in any new deal,” said Sheri Dillon, a tax lawyer who Trump hired to manage potential conflicts of interest. Dillon spoke of “the wall that we are building between President-elect Trump and the Trump Organization.” Her promises fell well short of putting Trump’s assets in a blind trust. Instead, Trump’s business would be controlled by his family and chief financial officer. It later turned out that he would even be able to withdraw money from his businesses at his liking without any disclosure, according to documents filed by Trump in February and reported on in April by ProPublica.
Dillon was essentially promising some ethical baby steps. At first, it looked as though Trump was going to abide by her plan. Shortly after his inauguration, he released a letter, dated January 19. It appeared to show him resigning from more than 400 corporate entities connected to the Trump Organization’s businesses. Alex Garten, a Trump Organization lawyer, told CNN that the Trump Organization would update the company’s official state records “in the ordinary course as and when required by law.”
Now, a review of state corporate records by The Intercept shows that the “wall” between Trump’s presidency and his businesses is even flimsier than what Dillon had promised. As of June 11, six months after Trump’s press conference, New York state continued to have Donald J. Trump listed as CEO or president at four different entities — all of which he previously claimed to have resigned from. Two of those entities made new filings on June 29 and June 30 that replaced Trump’s leadership with his immediate family and employees. The new filings were made after repeated phone calls and emails from The Intercept to the White House and the Trump Organization asking why Trump was still listed on state documents as being in charge of four Trump Organization entities.
Trump, it seems, couldn’t even be bothered to promptly follow through on the very small promises made by Dillon to create the appearance of some separation between his presidency and his businesses. True to form, Trump promised the bare minimum and did even less.
Rep. Elijah Cummings, D-Md., the ranking member on the House Oversight Committee, said that Trump’s tardy filings were another indication that his “business entanglements” have led to a lack of accountability and transparency. “I agreed with President Trump when he said that no one is above the law,” Cummings said in a recent statement to The Intercept. “That principle applies to him as well. He must fix this.” Cummings has repeatedly pressed the White House for more information on Trump’s businesses, particularly in relation to the emoluments clause of the Constitution, which prohibits the president from accepting gifts from other countries. Trump is now facing three lawsuits that claim he is violating it.
As of mid-June, Trump Las Vegas Corp., a corporation registered in Nevada, continued to have Donald J. Trump listed as its president and director. On June 29, after The Intercept placed multiple calls and emails to the White House and the Trump Organization, Trump Las Vegas Corp. filed an amendment replacing Trump with his son Donald Trump Jr.
A company called 3126 Corporation, which is registered in New York, continued to have Donald J. Trump listed as its chief executive officer through mid-June. According to New York law, corporations are required to file a biennial statement including changes to the company’s leadership once every two years. 3126 Corporation, which was supposed to file an updated statement in May, was overdue. On June 30, 3126 Corporation filed its biennial statement replacing Trump with Michael Levchuck as CEO. 3126’s mailing address is care of the Trump International Hotel and Tower on Central Park. Levchuck’s LinkedIn profile lists him as “director of finance at Trump International Hotel.” Nevertheless, Alan Garten, the Trump Organization’s chief legal officer, told The Intercept by email that 3126 Corporation is controlled by a condominium board and “not the Trump Organization.”
Two more companies — Trump Ferry Point Member Corp. and Trump Empire State Inc. — are Delaware corporations registered to do business in New York. They continue to have Donald J. Trump listed as chief executive officer on their New York paperwork. Garten said these two corporations had updated their Delaware filings and that “the applicable filings for those entities in New York have been requested.” In Delaware, Trump’s son Eric is listed as president of Trump Empire State Inc. while another son, Donald Jr., is listed as director of Trump Ferry Point Member Corp.
“You need to contact the Trump Organization,” said Sarah Huckabee Sanders, the principal deputy White House press secretary, in an email statement to The Intercept. The Trump Organization responded with a pat affirmation of the initial resignations. “President Trump has resigned from all entities as previously stated and reflected on his public financial disclosure form,” a spokesperson for the Trump Organization wrote in an email.
Richard Painter, who served as the White House’s chief ethics lawyer under George W. Bush, said that the failure to file updated state paperwork was a sign that Trump does not take ethics very seriously. “This shows the sloppiness Trump’s organization has with respect to ethics requirements. They don’t even want to do what they’ve said they’re going to do. They should be correcting the filings. People ought to be able to look and see who has the authority to act on behalf of these companies.”
Trump appears to have taken his pledge more seriously for some companies and less seriously for others. For many of the entities listed in his January letter, Trump has followed through on his promise to file new paperwork. As reported by ProPublica in January, the Trump Organization filed new paperwork with the state of Florida for more than a dozen companies immediately after the inauguration. For the four companies listed above, however, Trump was listed as an officer on state paperwork more than six months after his January resignation letter and contrary to statements made on his most recent ethics form, which Trump signed on June 14, and which claims that he resigned from all four of the above posts in January.
The Office of Government Ethics, which helps the president and other officials fill out ethics forms, declined to comment on the record. Federal law does not require the office to audit ethics reports for accuracy, only to review them. Walter Shaub, the office’s head, resigned last week. Shaub had recommended that Trump liquidate his businesses and said that Trump’s own ethics plan “doesn’t meet the standards that the best of his nominees are meeting and that every president in the past four decades has met.”
While it can be difficult to tell how the four companies fit into Trump’s vast portfolio of businesses, it appears from his ethics filings that at least two of them are connected to substantial assets. Trump Las Vegas Corp. is the “managing member” that controls two other Trump entities — Trump Las Vegas Member LLC and Trump Las Vegas Managing Member LLC. The latter controls Trump Ruffin LLC, which, working with casino mogul Phil Ruffin, has developed a tower with multimillion luxury condos on the Las Vegas strip. Trump Ferry Point Member Corp. appears to be connected to Trump Ferry Point LLC, which brought in more than $7 million in income from a public golf course concession in the Bronx. A web of trusts and shell companies controlled by Trump’s family continues to lease and manage a luxury hotel three blocks from the White House.
The post Trump Dropped the Ball on Paperwork to Officially Resign From Several Businesses appeared first on The Intercept.
The Republican-led Federal Communications Commission is preparing to overturn the two-year-old decision that invoked the FCC's Title II authority in order to impose net neutrality rules. It's possible the FCC could replace today's net neutrality rules with a weaker version, or it could decide to scrap net neutrality rules altogether.
Either way, what's almost certain is that the FCC will eliminate the Title II classification of Internet service providers. And that would have important effects on consumer protection that go beyond the core net neutrality rules that outlaw blocking, throttling, and paid prioritization. Without Title II's common carrier regulation, the FCC would have less authority to oversee the practices of Internet providers like Comcast, Charter, AT&T, and Verizon. Customers and websites harmed by ISPs would also have fewer recourses, both in front of the FCC and in courts of law.
Title II provisions related to broadband network construction, universal service, competition, network interconnection, and Internet access for disabled people would no longer apply. Rules requiring disclosure of hidden fees and data caps could be overturned, and the FCC would relinquish its role in evaluating whether ISPs can charge competitors for data cap exemptions.
There has been much in the way of focus on all the different ways Congress has devised to fight with itself as of recent, with most of that revolving around stupid partisan bickering and political posturing. Still, there are real proposals on the table, and currently the 2018 defense budget is one of them. We've already talked about some recent changes in DoD recruitment strategies that seek to get with the times, as it were. But where those changes were made to stave off dwindling rosters of soldiers at CYBERCOM, the House proposal for 2018 includes the creation of a brand new military branch.
Don't get your hopes up too high about becoming a space marine quite yet. But if the House of Representatives' version of the 2018 defense budget goes through, you may soon be able to enlist in the US Space Corps.
The House Armed Services Committee (HASC) has breathed new life into those old plans by including a provision in the House version of the 2018 US defense budget that would create a separate military service dedicated to the cause of space as a warfare domain: the US Space Corps. It would also create a separate joint command, the US Space Command, breaking the role out of the US Strategic Command much in the way that was done with the US Cyber Command.
The biggest surprise in all of this might well be that it took this long, actually. Cyber Command's battleground is mere decades old, whereas we have been exploring space for more than half a century. Still, there is something unnerving about formalizing Earth's place at the cosmic table as a potential war theater. That said, the proposal does enjoy the rare consensus of bi-partisan support and it's not difficult to understand why. More than ever, we rely on assets outside of our immediate atmosphere to power all sorts of things key to our national security and power. The branch that currently oversees space defense and strategy, the Air Force, is no longer seen as capable of handling the job.
There’s been nothing shortsighted about this. We started working on it vigorously in September, and we’ve had countless meetings with a number of experts who have advised us as to how this should be construed. GAO has done three studies on this, all of which tell us that you cannot maintain the current organizational construct of the Air Force and solve the acquisition problems and the operational problems that we have. The Air Force is like any other bureaucracy. They don’t want to change.
At some level, this was inevitable. We are humans and, where we go, we fight. So don your helmets and fire up that chainsaw, future space marines, because the next battleground may be the inky blackness of the void. If so, it seems the House of Representatives, at least, wants to be prepared for it.
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As you probably know (because it's almost unavoidable across the web), today is the "Day of Action" on behalf of net neutrality. Tons of other sites are participating in various ways. Many are popping up widgets, warning you of how crappy the internet might become if broadband access providers were allowed to create the kind of internet they dream of -- one in which they are the gatekeepers, and where they get to put tollbooths on services trying to reach you. But you already know about all that, because you already read Techdirt, and we've been talking about this for over a decade. Many sites are encouraging you to comment on the FCC's proceedings -- which you absolutely should do (even as the FCC itself is making a mockery of the commenting process, by allowing bogus and fraudulent comments in.
However, for this day of action, I wanted to focus people here on two key things. First, yes this does matter. I know that some of you think you're oh-so-cool and therefore you take the cynical approach of "it doesn't matter, man, the fix is already in" or however you phrase it, but that's bullshit. This stuff does matter. And I know that the cynical folks and the DC insiders absolutely hate when people bring this up, but other situations in the past -- including SOPA and the last net neutrality rule making -- were both situations where the "savvy" absolutely knew what was going to happen... and they were totally wrong. If enough people speak up and make things clear, change can and does happen. And if you still want to remain cynical, consider this: being cynical and insisting that nothing you do will matter guarantees that nothing you do will matter and by default helps ensure the shitty situation you're so cynical about remains shitty. Speaking up at least contributes to the possibility of things going in a better direction.
Second: while you absolutely should go and file FCC comments (and I highly recommend first reading this guide to filing impactful FCC comments from a former top FCC staffer), this fight is going to end with Congress one way or the other. Two months ago we wrote about the real game plan to destroy net neutrality, and you can see it playing out in realtime. Ajit Pai's move to get the FCC to repeal the rules is an effort to force the hand of Congress, and make it come in and create new regulations. Indeed, if you look around, it's not hard to find lots of opeds from telco-funded folks about how "Congress should solve this" (all of which pretend to support net neutrality). And, yes, this is the kind of thing that Congress should solve -- if we trusted Congress to actually do what was in the interest of the public, rather than the interests of the broadband access providers. But, right now, you shouldn't. After all, this is the same Congress that happily voted to kill broadband privacy rules, and then seemed shocked that this upset people.
So, the fight at the FCC matters, but the end game is Congress. And we all know that bad stuff can happen in Congress (especially when it comes to broadband providers writing legislation themselves). But (and this is the important part): the best way to stop bad stuff from happening in Congress is to speak up. This is what killed SOPA five years ago, even though a ton of people in Congress had signed on as co-sponsors. We've talked about this in the past: lobbyists win in Congress all the time, but only on issues where the public isn't speaking up. Congress relies on lobbyists to fill in the gaps (and sometimes that's even okay!). The problems come in when the public interest and the lobbyists' interest diverge -- and if the public isn't speaking up, then the lobbyists win. But if the public is speaking up -- and doing so loudly -- it can stop bad bills in their tracks (witness Congress's recent inability to pass any major bad legislation).
So, not only should you be commenting for the FCC's benefit, you should be calling your Representative and Senators and letting them know that if they support undermining net neutrality in any way -- even with bogus bills that pretend to support net neutrality, while really undercutting it -- then you'll no longer support them. If you can, set up meetings. Make Congress aware that this matters to you deeply. Make them aware that if they support the internet, the people on the internet will support them back. Make Congress aware that this is an issue that matters and that ignoring the will of the public (most of whom -- on both sides of the partisan aisle overwhelmingly support an open internet) will not go unnoticed by the wider internet.
Techdirt only exists because of the open internet. When I set it up almost 20 years ago, I didn't have to go and get permission. I didn't have to go and beg (or pay!) AT&T or Comcast to make sure people could reach the site. It wasn't like TV or publishing where I had to get approval from some giant gatekeeper to exist. I just got to set stuff up and now millions of people have visited and supported us over the years. The internet is wonderful because it's not TV and there aren't gatekeepers. Let's keep it that way.
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A really weird decision with some implications for DMCA safe harbors has come out of a US district court in California. The case revolves around paintings and pictures licensed by Greg Young Publishing International [GYPI], several of which appeared on Zazzle's website and, consequently, were turned into physical reproductions (mugs, t-shirts, etc.) via Zazzle's automated print-on-demand process.
After some discussion about which prints GYPI actually controls for infringement claim purposes, the court gets down to addressing the supposed infringement. Discussing the safe harbor provisions, the court finds Zazzle qualifies for these protections. Sort of. The court says Zazzle qualifies as a provider of online services and, thanks to GYPI never sending any DMCA notices, it had no knowledge of the infringement.
That's where the court's reasoning starts swimming in non-concentric circles. As Eric Goldman points out, the court's legal math doesn't add up when it decides there's something Zazzle could have done to prevent the alleged infringement. Goldman comments on the court's strange determination:
“Zazzle had the right and ability to control the types of products it produced,” in contrast to how eBay/Amazon allow vendors to select which products to sell. This is a non-sequitur because the alleged infringements are attributable to the images selected and uploaded by Zazzle’s users. It’s irrelevant to the alleged infringement what cut of T-shirt is selected by Zazzle and who manufactures the raw materials.
At this point, Zazzle should still be protected from the infringement committed by a user. But that's not how the court sees it. The court sees an infringing uploaded image (where Zazzle is still protected) being turned into a physical product and decides this is the point where Zazzle loses its safe harbor. From the decision [PDF]:
GYPI argues that Zazzle had “the right and ability to control” the sale of infringing products because “it is actively involved in selecting the products that are sold, pricing those products, selling the products, manufacturing the products, inspecting the products, and finally packaging and delivering the products.” Doc. 50-1 at 27. Zazzle does not dispute that it engages in these activities. The Court concludes that Zazzle had the right and ability to control the types of products it produced. Unlike eBay or Amazon, Zazzle’s role is not limited to facilitating the sale of products owned and marketed by third parties. Zazzle creates the products. If Zazzle lacks the right and ability to control the sale of products it creates, it is hard to imagine any defendant that would have such a right.
Without the uploads, there would be no infringement. Zazzle may benefit indirectly from the sale of products with infringing images, but the court still feels Zazzle should be held accountable even if it has almost no direct input in the physical product creation other than forwarding the order to the print-on-demand contractor. As Goldman pointed out, the reasoning doesn't add up. But that's OK, says the court, Zazzle's reasoning doesn't add up either.
Zazzle argues that it lacked the ability to control the sale of infringing products because, in practice, “the production process was effectively automatic . . . after a product was ordered and approved by Zazzle’s CMT [content management team].” Doc. 69 at 25. That is a non sequitur. It doesn’t matter if Zazzle lacked the ability to control its production process after CMT approved the product; presumably CMT had the authority to reject products that were infringing. More to the point, even if the entire process were automatic, that would suggest at most that Zazzle had chosen not to exercise its right and ability to reject infringing products, not that it lacked the right or ability to do so. GYPI is entitled to summary judgment that Zazzle is not protected under § 512(c) to the extent it manufactured and sold physical products bearing infringing images.
There is no further attempt made to explain the court's rationale. For some reason, it can't seem to get past the production of physical products, even though Zazzle claims it has no more control over that than it does over uploaded content. In effect, the court sets up a double standard: physical vs. digital. Zazzle is protected if users upload infringing images but not if customers decide they want a copy of this image on a t-shirt or poster.
The CMT mentioned above sounds like little more than a perfunctory infringement check similar to the one that accompanies each image upload. And if the court decides to untwist Zazzle's "non sequitur" and hold it up for examination, Zazzle shouldn't be able to avail itself of DMCA safe harbors at the point of image upload either. The decision is internally inconsistent. Given the number of print-on-demand companies out there, this bizarre internal split on physical/digital infringement could cause problems down the road.
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You'd be hard pressed to find a bigger enemy of net neutrality than the fine folks at AT&T. The company has a history of all manner of anti-competitive assaults on the open and competitive internet, from blocking customer access to Apple FaceTime unless users subscribed to more expensive plans, to exempting its own content from arbitrary and unnecessary usage caps while penalizing streaming competitors. AT&T also played a starring role in ensuring the FCC's 2010 net neutrality rules were flimsy garbage, and sued to overturn the agency's tougher, 2015 rules.
So it's with a combination of amusement and awe to see the company's top lobbying and policy head, Bob Quinn, pen a missive over at the AT&T website proudly proclaiming the company will be joining tomorrow's "day of action protest" in support of keeping the existing rules intact. According to Quinn, the company still opposes the FCC's popular 2015 consumer protections, but wanted to participate in the protest because that's just how much the sweethearts at AT&T adore the open internet:
"Tomorrow, AT&T will join the “Day of Action” for preserving and advancing an open internet. This may seem like an anomaly to many people who might question why AT&T is joining with those who have differing viewpoints on how to ensure an open and free internet. But that’s exactly the point – we all agree that an open internet is critical for ensuring freedom of expression and a free flow of ideas and commerce in the United States and around the world. We agree that no company should be allowed to block content or throttle the download speeds of content in a discriminatory manner. So, we are joining this effort because it’s consistent with AT&T’s proud history of championing our customers’ right to an open internet and access to the internet content, applications and devices of their choosing.
That is an incredible, astounding line of bullshit.
So one, some of you might recall that the net neutrality debate began in earnest when former AT&T CEO Ed Whitacre said in 2005 that he "wasn't going to let Google ride his pipes for free." What Whitacre was proposing was using a lack of broadband competition to force companies to pay an arbitrary and duplicative toll to so much as touch the AT&T network. Ed thought he was being pretty clever in forcing other companies to pay for network upgrades, but his comments are what set off concerns that in the absence of real competition we needed rules to keep duopolies from abusing their market dominance.
Like Comcast and Verizon, AT&T is one of several companies that subsequently spent hundreds of millions of dollars to thwart these efforts, yet now would like you to believe they're somehow still a major ally in the fight to keep the internet healthy and open. And sure, AT&T supports not blocking websites entirely since that's not something ISPs were ever truly interested in anyway. The net neutrality debate has long since shifted from ham-fisted blocking to more clever applications of anti-competitive intent like interconnection, arbitrary and punitive usage caps, and zero rating.
Quinn's post is filled with alternative history, including this little gem:
"For more than a decade, whether under a Democratic or Republican administration, AT&T has supported the need for clear and enforceable open internet rules. We supported the efforts of Republican FCC Chairmen to introduce the nation’s first Open Internet Principles. And we welcomed FCC Chairman Genachowski’s Open Internet Order in 2010 and testified before Congress, as a Democratic witness, in support of it.
It should be reiterated that AT&T did support the FCC's original 2010 rules, but only because they were utter and total garbage, quite literally co-written by AT&T, Verizon and Google to ensure they were filled with loopholes. These loopholes allowed them to pretty much do whatever they wanted -- provided they pretended it was for the health and safety of the network. AT&T was also a major reason the rules didn't apply to wireless. When the FCC shored up those horrible rules in 2015, there was no more vocal opponent than AT&T, which is why this disingenuous prattle about supporting net neutrality is almost high art.
Also... Quinn's post pretends that the 2010 rules stayed in place until the evil Tom Wheeler overturned them... leaving out the fact that it was actually a lawsuit filed by Verizon that overturned the rules and explicitly told the FCC if it wanted these rules, it needed to use Title II. But in AT&T's revisionist history all that goes missing:
Unfortunately, in 2015, then-FCC Chairman Wheeler abandoned this carefully crafted framework and instead decided to subject broadband service to an 80-year-old law designed to set rates in the rotary-dial-telephone era. Saddling modern broadband infrastructure and investment decisions with heavy-handed, outdated telephone regulations creates an environment of market uncertainty that does little to advance internet openness. Instead, it jeopardizes the prospects for continued innovation and robust growth we have witnessed since the internet’s creation.
Not any bit of that is accurate. Internet access was under Title II until the mid-2000s and there was a ton of broadband infrastructure buildout (and... competition). And since Wheeler put things back under Title II, investment in broadband has continued.
So what's AT&T actually up to here? As we've mentioned previously, large ISPs want the current rules thrown out, and replaced with entirely new rules drafted by Congress. In an ideal world that would make sense, given that Congressional rules couldn't be overturned by the partisan whims of the FCC. But AT&T knows that Congress is such a epic shitshow these days that these replacement rules either won't happen, or they'll be quite literally written by AT&T lawyers. Quinn would have you simply ignore that our Congress is so awash in AT&T campaign contributions that a real net neutrality law of any worth is all-but impossible:
"The debate around an open internet has been going on for nearly 15 years. In the end, the issue is never really about what the rules should be or whether we should have an open internet. Rather, the debate focuses on whether open internet rules should derive from the 80-year-old Communications Act or some other theory of Congressional authority because the current law predates the internet. Instead of having this debate again, Congress should act now to provide the clear statutory authority that guarantees an open internet for all consumers."
So again, the goal here isn't to protect net neutrality. It's to kill effective and popular rules at the FCC, to gut nearly all regulatory authority over major ISPs, and to replace all of it with fluff, nonsense, and a piece of feel-good legislation that will be quite-literally crafted by AT&T lawyers. It's a pretty clever policy play by AT&T since it gives the impression they're not a bunch of anti-competitive jackasses. But AT&T pretending to care about an open internet is like Dracula suddenly professing a heartfelt concern for the plight of blood donors, or Jeffery Dahmer saying he just popped by to lend a helpful hand in the kitchen.
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