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19 Sep 11:31

The Senate’s Military Spending Increase Alone Is Enough to Make Public College Free

by Alex Emmons

One of the most controversial proposals put forward by Sen. Bernie Sanders during the 2016 presidential campaign was a pledge to make tuition free at public colleges and universities. Critics from both parties howled that the pie-in-the-sky idea would bankrupt the country. Where, after all, would the money come from?

Those concerns were brushed aside on Monday night, as the Senate overwhelmingly approved an $80 billion annual increase in military spending, enough to have fully satisfied Sanders’ campaign promise. Instead, the Senate handed President Trump far more than the $54 billion he asked for. The lavish spending package gives Trump a major legislative victory, allowing him to boast about fulfilling his promise of a “great rebuilding of the armed services.”

The bill would set the U.S.’s annual military budget at around $700 billion, putting it within range of matching the spending level at the height of the wars in Afghanistan and Iraq.

To put that in further perspective: if the package becomes law, U.S. military spending would exceed the total spending of its next 10 rivals put together, going off of 2016 military spending estimates from the Stockholm International Peace Research Institute (SIPRI).

Put another way, with a $700 billion military budget, the U.S. would be spending more than three times as much as China on its military, and ten times as much as Russia. According to SIPRI, the U.S. already accounts for more than a third of all military spending:

The share of world military expenditure of the 15 states with the highest spending in 2016. (Credit, SIPRI)

Or with $80 billion a year you could make public colleges and universities in America tuition-free. In fact, Sanders’ proposal was only estimated to cost the federal government $47 billion per year.

If the additional military spending over the next ten years instead went to pay off student debt, it could come close to wiping it out entirely.

But proposals like that are written off as non-starters, even by Democrats. In her new book, Hillary Clinton compares Sanders’ idea to him nonsensically saying “America should get a pony.” And while concerns about the cost of ponies abound, few Democrats are raising similar concerns about military spending, even when it is meant for a commander-in-chief they consider reckless and unstable.

The Senate voted 89-8, with three senators not voting, to approve the military money. Spendthrift Bernie Sanders joined only four Democrats to vote against the bill: Senators Kirstin Gillibrand of New York, Patrick Leahy of Vermont, and Jeff Merkley and Ron Wyden from Oregon. Republicans Bob Corker of Tennessee, Rand Paul of Kentucky and Mike Lee of Utah also voted against it.

When Trump submitted a budget proposal in March, which cut social spending dramatically to fund a $54 billion increase in defense spending, Democrats criticized it as a non-starter. Senate Minority leader Chuck Schumer said he “emphatically opposed” the blueprint, and Nancy Pelosi said the budget “throws billions of dollars at defense while ransacking” health and education funding.

Before the bill becomes law, it is has to be reconciled with the version the House already passed, which contains a similar $77 billion spending increase. It is likely to become law by the end of the year.

Top photo: The U.S. Capitol.

The post The Senate’s Military Spending Increase Alone Is Enough to Make Public College Free appeared first on The Intercept.

19 Sep 11:22

EFF Resigns From W3C After DRM In HTML Is Approved In Secret Vote

by Mike Masnick

This is not a huge surprise, but it's still disappointing to find out that the W3C has officially approved putting DRM into HTML 5 in the form of Encrypted Media Extensions (EME). Some will insist that EME is not technically DRM, but it is the standardizing of how DRM will work in HTML going forward. As we've covered for years, there was significant concern over this plan, but when it was made clear that the MPAA (a relatively new W3C member) required DRM in HTML, and Netflix backed it up strongly, the W3C made it fairly clear that there was no real debate to be had on the issue. Recognizing that DRM was unavoidable, EFF proposed a fairly straightforward covenant, that those participating agree not to use the anti-circumvention provisions of the DMCA (DMCA 1201) to go after security researchers, who cracked DRM in EME. The W3C already has similar covenants regarding patents, so this didn't seem like a heavy lift. Unfortunately, this proposal was more or less dismissed by the pro-DRM crowd as being an attempt to relitigate the question of DRM itself (which was not true).

Earlier this year, Tim Berners-Lee, who had the final say on things, officially put his stamp of approval on EME without a covenant, leading the EFF to appeal the decision. That appeal has now failed. Unfortunately, the votes on this were kept entirely secret:

So much for transparency.

In Bryan Lunduke's article about this at Network World, he notes that despite the W3C saying that it had asked members if they wanted their votes to be public, with all declining, Cory Doctorow (representing EFF) says that actually EFF was slapped on the wrist for asking W3C members if they would record their votes publicly:

“The W3C did not, to my knowledge as [Advisory Committee] rep, ask members whether they would be OK with having their votes disclosed in this latest poll, and if they had, EFF would certainly have been happy to have its vote in the public record. We feel that this is a minimal step towards transparency in the standards-setting that affects billions of users and will redound for decades to come.”

“By default, all W3C Advisory Committee votes are ‘member-confidential.’ Previously, EFF has secured permission from members to disclose their votes. We have also been censured by the W3C leadership for disclosing even vague sense of a vote (for example, approximate proportions).”

It was eventually revealed that out of 185 members participating in the vote, 108 voted for DRM, 57 voted against, and 20 abstained.

And while the W3C insisted it couldn't reveal who voted for or against the proposal... it had no problem posting "testimonials" from the MPAA, the RIAA, NBCUniversal, Netflix, Microsoft and a few others talking about just how awesome DRM in HTML will be. Incredibly, Netflix even forgot the bullshit talking point that "EME is not DRM" and directly emphasized how "integration of DRM into web browsers delivers improved performance, battery life, reliability, security and privacy." Right, but during this debate we kept getting yelled at by people who said EME is not DRM. So nice of you to admit that was all a lie.

In response to all of this, Cory Doctorow has authored a scathing letter, having the EFF resign from the W3C. It's worth reading.

The W3C is a body that ostensibly operates on consensus. Nevertheless, as the coalition in support of a DRM compromise grew and grew — and the large corporate members continued to reject any meaningful compromise — the W3C leadership persisted in treating EME as topic that could be decided by one side of the debate. In essence, a core of EME proponents was able to impose its will on the Consortium, over the wishes of a sizeable group of objectors — and every person who uses the web. The Director decided to personally override every single objection raised by the members, articulating several benefits that EME offered over the DRM that HTML5 had made impossible.

But those very benefits (such as improvements to accessibility and privacy) depend on the public being able to exercise rights they lose under DRM law — which meant that without the compromise the Director was overriding, none of those benefits could be realized, either. That rejection prompted the first appeal against the Director in W3C history.

In our campaigning on this issue, we have spoken to many, many members' representatives who privately confided their belief that the EME was a terrible idea (generally they used stronger language) and their sincere desire that their employer wasn't on the wrong side of this issue. This is unsurprising. You have to search long and hard to find an independent technologist who believes that DRM is possible, let alone a good idea. Yet, somewhere along the way, the business values of those outside the web got important enough, and the values of technologists who built it got disposable enough, that even the wise elders who make our standards voted for something they know to be a fool's errand.

We believe they will regret that choice. Today, the W3C bequeaths an legally unauditable attack-surface to browsers used by billions of people. They give media companies the power to sue or intimidate away those who might re-purpose video for people with disabilities. They side against the archivists who are scrambling to preserve the public record of our era. The W3C process has been abused by companies that made their fortunes by upsetting the established order, and now, thanks to EME, they’ll be able to ensure no one ever subjects them to the same innovative pressures.

This is a disappointing day for the web, and a black mark on Tim Berners-Lee's reputation and legacy of stewardship over it.



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18 Sep 11:38

Sean Spicer Is Honored Because, As Bush Officials Showed, D.C. Elites Always Thrive

by Glenn Greenwald

Sean Spicer’s playful, glamorous appearance at last night’s Emmy Awards and being honored as a visiting fellow at Harvard’s Kennedy School (the honorific which the CIA vetoed for Chelsea Manning) has prompted a mix of shock and indignation. Former Obama speechwriter Jon Favreau wrote: “Harvard fellowships, Emmy appearances, huge speaking fees: there’s just gonna be no penalty for working in Trump’s White House, huh?” Slate’s Jamelle Bouie added: “The degree to which Sean Spicer has faced no consequences is a glimpse into the post-Trump future.”

There should be nothing whatsoever surprising about any of this, as it is the logical and necessary outcome of the self-serving template of immunity which DC elites have erected for themselves. The Bush administration was filled with high-level officials who did not just lie from podiums but did so in service of actual war crimes. They invaded and destroyed a country of 26 million people based on blatant falsehoods and relentless propaganda. They instituted a worldwide torture regime by issuing decrees that purported to re-define what that term meant. They spied on the communications of American citizens without the warrants required by law. They kidnapped innocent people from foreign soil and sent them to be tortured in the dungeons of the world’s worst regimes, and rounded up Muslims on domestic soil with no charges. They imprisoned Muslim journalists for years without a whiff of due process. And they generally embraced and implemented the fundamental tenets of authoritarianism by explicitly positioning the President and his White House as above the law.

We’re supposed to all forget about that, or at least agree to minimize it, in service of this revisionist conceit that the United States has long been governed by noble, honorable and decent people until Donald Trump defaced the sanctity of the Oval Office with his band of gauche miscreants and evil clowns. Many of the same people who, just a decade ago, were depicting Dick Cheney, Karl Rove and Paul Wolfowitz – remember them? – as monsters of historic proportions are today propagating the mythology that Trump is desecrating what had always been sacred and benevolent American civic space.

Not only were all Bush officials fully immunized from the legal consequences of their crimes – in DC, that’s a given – but they were also fully welcomed back into decent elite society with breakneck speed, lavished with honors, rewards, lucrative jobs and praise. Those same Bush officials responsible for the most horrific crimes are now beloved by many of the same circles which, today, are expressing such righteous rage that Sean Spicer is allowed onto the Emmy stage and a classroom at Harvard.

The speechwriter who churned out some of George W. Bush’s worst lies and most obscene justifications, David “Axis of Evil” Frum, is a Senior Writer at the Atlantic, a CNN contributor, and one of the most beloved and cited commentators by the self-styled anti-Trump “Resistance.” With a straight face, he wrote a long, somber Atlantic article earlier this year, which the magazine put on its cover, in which he postured as someone qualified to warn of the dangers of authoritarianism when his only real qualification would be to write a manual on how to implement it.

The Sean Spicer of torture and the Iraq War, Ari Fleischer, is a regular CNN contributor and makes many millions of dollars on the speaking circuit and providing communications consulting advice to large corporations and sports teams. One of the most vocal proponents of torture, former Bush and Rumsfeld speechwriter Marc Thiessen, was hired as a columnist by the Washington Post shortly after his torture-advocating book was published, and he remains employed there.

John Yoo, author of the memos justifying torture and lawlessness, is on the faculty of Berkeley Law School, where he holds an endowed chair. Condoleezza Rice, who literally chaired the meetings inside the White House where torture was choreographed to the last detail and crusaded for the invasion of Iraq, is not only on the faculty of Stanford but serves on the Boards of multiple Fortune 500 corporations and is virtually universally beloved.

Darth Cheney himself, after leaving the Bush administration, made millions from a book that he was able to promote by being welcomed onto all major television networks, where he was treated like a wise, old statesman. When a marble bust of him was unveiled at the Capitol, Joe Biden – whose administration had previously immunized Bush officials from prosecution for war crimes – attended to pay homage and heap praise on his predecessor, gushing: “I actually like Dick Cheney.”

The rehabilitation of George W. Bush has been as widespread as it has been nauseating, culminating with a recent appearance on the talk show of liberal icon Ellen Degeneres, who hugged him, hailed him as a personal friend, invited him to denounce Trump for sullying the office which Bush served with such honor, and then posted warm and loving pictures of the pair to her 48 million followers on Instagram.


Hillary Clinton, in her new book, fondly recalls how “George [W. Bush] actually called just minutes after I finished my concession speech, and graciously waited on the line while I hugged my team and supporters one last time. When we talked, he suggested we find time to get burgers together.” She added: “I think that’s Texan for ‘I feel your pain.'” We’ve put all that Iraq War, torture and rendition unpleasantness behind us – just some good faith policy disputes – and now see him as a nice, kind, decent and honorable statesman.

In a recent interview with Vulture, the weekend MSNBC host Joy Reid, a former Obama campaign aide, gushed about the favorable views she now holds about, and the alignments she has now formed with, the Bush-era neocons who helped justify and usher in some of the most repugnant abuses and war crimes in American history:

Vulture: On the flip side, it has to be a bit heartening that some conservatives who used to be sort of MSNBC “villains” are now on your network trashing a Republican president.

Reid: One of the most amazing outcomes of the Trump administration is the number of neo-conservatives that are now my friends and I am aligned with. I found myself agreeing on a panel with Bill Kristol. I agree more with Jennifer Rubin, David Frum, and Max Boot than I do with some people on the far left. I am shocked at the way that Donald Trump has brought people together. [Laughs.]

So if initiating an aggressive war (which the Nuremberg Tribunal called “the supreme international crime”), instituting an international torture regime (which Ronald Reagan called “an abhorrent practice” that no circumstance can justify), and embracing the full model of presidential lawlessness does not result in ostracization, sanction or exclusion from polite society, why on earth would anyone expect that Sean Spicer would face any sort of actual recriminiation or consequence?

If you’re someone who employs David Frum or hires Ari Fleischer or treats Bush-era war criminals as respectable and honored sources, you really have no standing to object to the paradigm that has ushered Spicer into the halls of elite power.  This is the precedent of elite immunity that has been created, often by the same people who are now so upset that Sean Spicer and his fellow Trump functionaries are the beneficiaries of the framework they helped to install.

The post Sean Spicer Is Honored Because, As Bush Officials Showed, D.C. Elites Always Thrive appeared first on The Intercept.

18 Sep 00:09

Amid Opioid Crisis, Insurers Restrict Pricey, Less Addictive Painkillers

by by Katie Thomas, The New York Times and Charles Ornstein, ProPublica

by Katie Thomas, The New York Times and Charles Ornstein, ProPublica

At a time when the United States is in the grip of an opioid epidemic, many insurers are limiting access to pain medications that carry a lower risk of addiction or dependence, even as they provide comparatively easy access to generic opioid medications.

The reason, experts say: Opioid drugs are generally cheap while safer alternatives are often more expensive.

Drugmakers, pharmaceutical distributors, pharmacies and doctors have come under intense scrutiny in recent years, but the role that insurers — and the pharmacy benefit managers that run their drug plans — have played in the opioid crisis has received less attention. That may be changing, however. The New York state attorney general’s office sent letters last week to the three largest pharmacy benefit managers — CVS Caremark, Express Scripts and OptumRx — asking how they were addressing the crisis.

ProPublica and The New York Times analyzed Medicare prescription drug plans covering 35.7 million people in the second quarter of this year. Only one-third of the people covered, for example, had any access to Butrans, a painkilling skin patch that contains a less-risky opioid, buprenorphine. And every drug plan that covered lidocaine patches, which are not addictive but cost more than other generic pain drugs, required that patients get prior approval for them.

In contrast, almost every plan covered common opioids and very few required any prior approval.

The insurers have also erected more hurdles to approving addiction treatments than for the addictive substances themselves, the analysis found.

Alisa Erkes lives with stabbing pain in her abdomen that, for more than two years, was made tolerable by Butrans. But in January, her insurer, UnitedHealthcare, stopped covering the drug, which had cost the company $342 for a four-week supply. After unsuccessfully appealing the denial, Erkes and her doctor scrambled to find a replacement that would quiet her excruciating stomach pains. They eventually settled on long-acting morphine, a cheaper opioid that UnitedHealthcare covered with no questions asked. It costs her and her insurer a total of $29 for a month’s supply.

Erkes, who is 28, is afraid of becoming addicted and has asked her husband to keep a close watch on her. “Because my Butrans was denied, I have had to jump into addictive drugs,” she said. (Kevin D. Liles for The New York Times)

The Drug Enforcement Administration places morphine in a higher category than Butrans for risk of abuse and dependence. Addiction experts say that buprenorphine also carries a lower risk of overdose.

UnitedHealthcare, the nation’s largest health insurer, places morphine on its lowest-cost drug coverage tier with no prior permission required, while in many cases excluding Butrans. And it places Lyrica, a non-opioid, brand-name drug that treats nerve pain, on its most expensive tier, requiring patients to try other drugs first.

Erkes, who is 28 and lives in Smyrna, Georgia, is afraid of becoming addicted and has asked her husband to keep a close watch on her. “Because my Butrans was denied, I have had to jump into addictive drugs,” she said.

UnitedHealthcare said Erkes had not exhausted her appeals, including the right to ask a third party to review her case. It said in a statement, “We will work with her physician to find the best option for her current health status.”

Matthew N. Wiggin, a spokesman for UnitedHealthcare, said that the company was trying to reduce long-term use of opioids. “All opioids are addictive, which is why we work with care providers and members to promote non-opioid treatment options for people suffering from chronic pain,” he said.

Dr. Thomas R. Frieden, who led the Centers for Disease Control and Prevention under President Obama, said that insurance companies, with few exceptions, had “not done what they need to do to address” the opioid epidemic. Right now, he noted, it is easier for most patients to get opioids than treatment for addiction.

Read More

Take the Generic Drug, Patients Are Told — Unless Insurers Say No

Faced with competition, some pharmaceutical companies are cutting deals with insurance companies to favor their brand-name products over cheaper generics. Insurers pay less, but sometimes consumers pay more.

Leo Beletsky, an associate professor of law and health sciences at Northeastern University, went further, calling the insurance system “one of the major causes of the crisis” because doctors are given incentives to use less expensive treatments that provide fast relief.

The Department of Health and Human Services is studying whether insurance companies make opioids more accessible than other pain treatments. An early analysis suggests that they are placing fewer restrictions on opioids than on less addictive, non-opioid medications and non-drug treatments like physical therapy, said Christopher M. Jones, a senior policy official at the department.

Insurers say they have been addressing the issue on many fronts, including monitoring patients’ opioid prescriptions, as well as doctors’ prescribing patterns. “We have a very comprehensive approach toward identifying in advance who might be getting into trouble, and who may be on that trajectory toward becoming dependent on opioids,” said Dr. Mark Friedlander, the chief medical officer of Aetna Behavioral Health who participates on its opioid task force.

Aetna and other insurers say they have seen marked declines in monthly opioid prescriptions in the past year or so. At least two large pharmacy benefit managers announced this year that they would limit coverage of new prescriptions for pain pills to a seven- or 10-day supply. And bowing to public pressure — not to mention government investigations — several insurers have removed barriers that had made it difficult to get coverage for drugs that treat addiction, like Suboxone.

Experts in addiction note that the opioid epidemic has been changing and that the problem now appears to be rooted more in the illicit trade of heroin and fentanyl. But the potential for addiction to prescribed opioids is real: 20 percent of patients who receive an initial 10-day prescription for opioids will still be using the drugs after a year, according to a study by researchers at the University of Arkansas for Medical Sciences.

Several patients said in interviews that they were terrified of becoming dependent on opioid medications and were unwilling to take them, despite their pain.

In 2009, Amanda Jantzi weaned herself off opioids by switching to the more expensive Lyrica to treat the pain associated with interstitial cystitis, a chronic bladder condition.

But earlier this year, Jantzi, who is 33 and lives in Virginia, switched jobs and got a new insurer — Anthem — which said it would not cover Lyrica because there was not sufficient evidence to prove that it worked for interstitial cystitis. Jantzi’s appeal was denied. She cannot afford the roughly $520 monthly retail price of Lyrica, she said, so she takes generic gabapentin, a related, cheaper drug. She said it does not manage the pain as well as Lyrica, which she took for eight years. “It’s infuriating,” she said.

Jantzi said she wanted to avoid returning to opioids. However, “I could see other people, faced with a similar situation, saying, ‘I can’t live like this, I’m going to need to go back to painkillers,’” she said.

In a statement, Anthem said that its members have to meet certain requirements before it will pay for Lyrica. Members can apply for an exception, the insurer said. Jantzi said she did just that and was turned down.

Erkes, who is petting her dog, Kallie, once visited her pain doctor every two months. Since her insurer denied coverage of Butrans, she has gone back much more frequently, and once went to the emergency room because she could not control her pain. (Kevin D. Liles for The New York Times)

With Butrans, the drug that Erkes was denied, several insurers either do not cover it, require a high out-of-pocket payment, or will pay for it only after a patient has tried other opioids and failed to get relief.

In one case, OptumRx, which is owned by UnitedHealth Group, suggested that a member taking Butrans consider switching to a “lower cost alternative,” such as OxyContin or extended-release morphine, according to a letter provided by the member.

Wiggin, the UnitedHealthcare spokesman, said the company’s rules and preferred drug list “are designed to ensure members have access to drugs they need for acute situations, such as post-surgical care or serious injury, or ongoing cancer treatment and end of life care,” as well as for long-term use after alternatives are tried.

Butrans is sold by Purdue Pharma, which has been accused of fueling the opioid epidemic through its aggressive marketing of OxyContin. Butrans is meant for patients for whom other medications, like immediate-release opioids or anti-inflammatory pain drugs, have failed to work, and some scientific analyses say there is not enough evidence to show it works better than other drugs for pain.

Dr. Andrew Kolodny is a critic of widespread opioid prescribing and a co-director of opioid policy research at the Heller School for Social Policy and Management at Brandeis University. Kolodny said he was no fan of Butrans because he did not believe it was effective for chronic pain, but he objected to insurers suggesting that patients instead take a “cheaper, more dangerous opioid.”

“That’s stupid,” he said.

Erkes’s pain specialist, Dr. Jordan Tate, said her patient had been stable on the Butrans patch until January, when UnitedHealthcare stopped covering the product and denied Erkes’s appeal.

Without Butrans, Erkes, who once visited the doctor every two months, was now in Tate’s office much more frequently, and once went to the emergency room because she could not control her pain, thought to be related to an autoimmune disorder, Behcet’s disease.

Tate said she and Erkes reluctantly settled on extended-release morphine, a drug that UnitedHealthcare approved without any prior authorization, even though morphine is considered more addictive than the Butrans patch. She also takes hydrocodone when the pain spikes and Lyrica, which UnitedHealthcare approved after requiring a prior authorization.

Erkes acknowledged that she could have continued with further appeals, but said the process exhausted her and she eventually gave up.

While Tate said Erkes had not shown signs of abusing painkillers, her situation was far from ideal. “She’s in her 20s and she’s on extended-release morphine — it’s just not the pretty story that it was six months ago.”

Dr. Shawn Ryan, who runs an addiction treatment practice in Cincinnati, said too many insurance companies put onerous barriers on patients needing medications to treat their addictions. (Andrew Spear for The New York Times)

Many experts who study opioid abuse say they also are concerned about insurers’ limits on addiction treatments. Some state Medicaid programs for the poor, which pay for a large share of addiction treatments, continue to require advance approval before Suboxone can be prescribed or they place time limits on its use, both of which interfere with treatment, said Lindsey Vuolo, associate director of health law and policy at the National Center on Addiction and Substance Abuse. Drugs like Suboxone, or its generic equivalent, are used to wean people off opioids but can also be misused.

The analysis by ProPublica and the Times found that restrictions remain prevalent in Medicare plans, as well. Drug plans covering 33.6 million people include Suboxone, but two-thirds require prior authorization. Even when such requirements do not exist, the out-of-pocket costs of the drugs are often unaffordable, a number of pharmacists and doctors said.

At Dr. Shawn Ryan’s addiction-treatment practice in Cincinnati, called BrightView, staff members often take patients to the pharmacy to fill their prescriptions for addiction medications and then watch them take their first dose. Research has shown that such oversight improves the odds of success. But when it takes hours to gain approval, some patients leave, said Ryan, who is also president of the Ohio Society of Addiction Medicine.

“The guy walks out, and you can’t blame him,” Ryan said. “He’s like, ‘Hey man, I’m here to get help. What’s the deal?’”

17 Sep 15:40

Hillary Clinton Doesn’t Understand Why the Corporate Media Is So Bad

by Jon Schwarz

Hillary Clinton has every right to be infuriated by the performance of the press during the 2016 election. In her new book “What Happened,” Clinton mainly indicts television news for abandoning coverage of any actual public policy issues in favor of its berserk obsession with her use of a private email server. Subsidiary malefactors include Matt Lauer, for asking her about almost nothing else at NBC’s September 2016 Commander-in-Chief Forum on national security, and the New York Times, for its spasmodic freak-out when FBI Director James Comey declared he was re-opening the Bureau’s investigation into her emails just before the election.

But here’s where Clinton and I part ways:

In an interview Tuesday, she said, “I don’t think the press did their job in this election, with very few exceptions.” She believes the problem is something new, and the fault of bad individuals.

Clinton’s problem is obvious: At 69 years old and after a lifetime in politics, she somehow doesn’t understand what the corporate media’s job is.

Generally speaking, when people fail to do their jobs in a spectacular way, they get fired. When they do their jobs, they’re not.

Who exactly in the corporate media has been fired for failing to provide the United States with in-depth, sober, fair-minded coverage of the Joint Comprehensive Plan of Action with Iran and the minutia of the Patient Protection and Affordable Care Act?

No one.

Which suggests that the media did do its job. Moreover, I think the media performed incredibly well.

The New York Times, CBS, NBC, ABC, CNN, et al., are gigantic corporations — in most cases owned by even larger ones. And the job of giant corporations is not to inform American citizens about reality. It’s not to play a hallowed role in the history of a self-governing republic. It’s to make as much profit as possible. That in turn means the corporate media will never, ever be “liberal” in any genuine sense, and will be hostile to all politicians who feint in that direction.

From that perspective, the media’s performance in 2016 was a shining, glorious success. As Les Moonves effused just as the primaries were starting, Trump’s campaign was “good for us economically. … Go Donald! Keep getting out there!” The entire Hieronymus Bosch-like nightmare, said Moonves, “may not be good for America, but it’s damn good for CBS.” CNN made $1 billion in profits during the election year, far more than ever before.

With that in mind, read this passage from Clinton’s book about her experience with Lauer, who asked her five questions in a row about her private email server:

Finally, after learning absolutely nothing new or interesting, Lauer turned to a question from one of the veterans NBC had picked to be in the audience. He was a self-described Republican, a former Navy lieutenant who had served in the first Gulf War, and he promptly repeated the right-wing talking point about how my email use would have landed anyone else in prison. Then he asked how could he trust me as President “when you clearly corrupted our national security?”

NBC knew exactly what it was doing here. The network was treating this like an episode of The Apprentice, in which Trump stars and ratings soar. Lauer had turned what should have been a serious discussion into a pointless ambush.

That’s Clinton’s problem right there. Of course NBC “knew exactly what it was doing.” What Lauer and his co-workers were doing was their job: to make as much money as humanly possible for NBC.

By contrast, fostering “serious discussion” is not part of their job. Serious discussion about politics is time-consuming and expensive. Serious discussion makes advertisers, executives, and shareholders angry. It’s unprofitable.

Getting angry at the corporate media for not telling America the truth is like getting angry at chainsaws for doing a terrible job brushing your teeth. Sure, the chainsaw company may run lots of promotional ads about how its latest model, the Scytherate 9000, is essential for your dental health. And maybe you have the right to get mad at the manufacturer the first time you jam it in your mouth and turn it on. But if you keep doing it, at a certain point that’s on you. You should be able to figure out that getting your teeth minty fresh is in fact not what chainsaws are designed to do.

Clinton’s inability to grasp this fundamental point is the central mystery of her condemnation of the media. No American politician has been personally brutalized for longer by the press’s relentless garbage tornado. Yet she somehow was surprised when it happened again in 2016, and came through that painful experience still believing the corporate media’s propaganda about itself.

For instance, Clinton makes a big deal out of a study that found the nightly news on CBS, NBC and ABC devoted just 32 minutes to real issues in the presidential race during the first 10 months of 2016. By contrast, she points out, “In 2008, the major networks’ nightly newscasts spent a total of 220 minutes on policy. In 2012, it was 114 minutes.”

Okay, 220 minutes on policy is better than 32 minutes. But 220 minutes of policy coverage is still just seven minutes per network per month. That’s not a golden era to look back upon with great nostalgia. Moreover, Clinton doesn’t mention election years like 1996, when the networks devoted just 96 minutes to issues.

Likewise, Clinton claims that the media’s disinclination to pin Trump down on any of his endless lies in real time, particularly during their debates, “was not just a slight shift; this was a ground-shaking shift.” But no one who lived through Ronald Reagan’s constant excursions to a fantasy world, and the media acquiescence to it, could believe that Trump is qualitatively new. Indeed, then-Vice President George H.W. Bush’s Press Secretary Peter Teeley told the New York Times in 1984 that campaign operatives knew they could get away with lying during debates. “You can say anything you want during a debate and 80 million people hear it,” Teeley explained, and if the media later documents that what the candidate said was false, “So what? … Maybe 200 people read it or 2,000 or 20,000.”

Then there’s Clinton’s peculiar affection for the New York Times. Yes, she says, it has often viewed her “with hostility and skepticism,” but “I’ve read the Times for more than 40 years and still look forward to it every day. I appreciate much of the paper’s terrific non-Clinton reporting.” She doesn’t mention the paper’s terrific assistance to the George W. Bush administration’s campaign of deceit about Iraq, which might suggest the paper has some baked-in flaws.

Since Clinton has no structural critique of the press, why does she believe she was so badly mauled in 2016? The only explanation she presents is that the rules are different for her personally:

I don’t think I’m held to the same standard as anybody else. I believed that if I were to say … “let’s do single-payer tomorrow” … unlike either my primary opponent or my general election opponent, I would’ve been hammered all the time. “Okay, how are you going to do that? How are you going to pay for it? Where’s the money going to come from?”

If Clinton’s right, no one would be asking those questions this week about Bernie Sanders’s Medicare-for-All bill. But if she’s wrong, if the corporate media is fundamentally hostile not to her specifically but to progressive policies in general, reporters will in fact demand answers on this from Sanders repeatedly. All you need to do is open your computer browser to see it’s going to be the latter.

In the end, Clinton’s ideas about the media demonstrate that, more than anything, she badly needed to watch the Noam Chomsky documentary “Manufacturing Consent” or get a subscription to the Fairness and Accuracy in Reporting newsletter. Then she could have approached her campaign with fewer illusions, and with a much greater chance of winning.

Instead, she’s left with the bitter observation that the press “want me to stop talking. If it’s all my fault, then the media doesn’t need to do any soul searching.” But that’s the whole point: The corporate media doesn’t have a soul. It just has a balance sheet.

The post Hillary Clinton Doesn’t Understand Why the Corporate Media Is So Bad appeared first on The Intercept.

15 Sep 20:56

Trump Administration Says It's Classified If They Can Let The NSA Spy On Americans

by Mike Masnick

Senator Ron Wyden, as a member of the Senate Intelligence Committee, spent half a decade trying to get President Obama's Director of National Intelligence, James Clapper, to answer some fairly straightforward questions about NSA surveillance on Americans. As you may recall, this got so bad that Clapper flat out lied to Wyden in an open Senate hearing, which inspired Ed Snowden to leak documents to Glenn Greenwald. With the Trump administration, Dan Coats took over Clapper's job... and Clapper's role of obfuscating in response to important questions from Wyden concerning NSA surveillance. Despite promises to the contrary, Coats (like Clapper before him) has refused to share just how many Americans have their information sucked up under Section 702. Since that program is up for renewal later this year, that kind of information seems quite relevant to the debate.

However, as we noted back in June, Wyden has also been asking a different, and much more specific question of Coats. At a hearing in June, Wyden asked:

Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic?

This seems like a kind of important question. 702 on its face, says that it can't be used to target domestic communications. Literally, the law says this: "An acquisition authorized under [this statute]... may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States."

But, as we've learned, when Senator Wyden asks an "is this happening?" question -- the answer is always "yes." And, once again, it appears that Coats is playing games. Coats responded to that question at the time saying: "Not to my knowledge. It would be against the law." That seems like a pretty clear and definitive answer: "no." Which is as it should be.

But then... something weird happened. The very next day, Coats' office put out a "clarifying" statement (ruh roh...), saying that Coats had "interpreted" Wyden's question to be referring specifically to Section 702(b)(4) (the part that says you can't spy on domestic communications). But, that's not what Wyden had asked. He had asked about the entirety of 702. So this "clarification" certainly seemed to suggest that Coats' original answer was incorrect in regards to the actual question, and instead, his staff was rewriting Wyden's question to make sure he had answered it accurately.

In other words, it appears that Coats put himself in a Clapper-position, of mistakenly claiming that the NSA isn't spying on Americans under a specific authority when it absolutely is -- and the reinterpretation of the question was his retroactive attempt to make his answer "truthy."

Not surprisingly, this didn't please Wyden, who quickly asked Coats to officially answer the original question with a yes or no, and not the reinterpreted question his office claimed he had answered.

Coats has now sent "an answer" but not a good one. He's now claiming that it's classified, and also takes some weird shots at Wyden for asking such a question in the first place:

Dear Senator Wyden:

In response to your letter of July 31, 2017, I would note that I responded to your question publicly both at the Senate Select Committee on Intelligence's open hearing on June 7, as well as in an unclassified letter to you on June 8. However, in further conversations with you and your staff, including at a closed budget hearing on June 15, it became clear that you already had the specific information that you were seeking, but this information was classified. In an effort to be responsive to you, I committed to assessing whether the sources and methods information you were asking for could be publicly released.

After consulting with the relevant intelligence agencies, I concluded that releasing the information you are asking to be made public would cause serious damage to national security. To that end, I provided you a comprehensive classified response to your question on July 24. This response also discussed, at length, why the information is properly classified and cannot be publicly released.

I want to stress that the Intelligence Community takes seriously its obligation to faithfully execute collection under Section 702 consistent with the Constitution and statutory requirements. We also take seriously our obligation to ensure Congress has all the information - both publicly available and classified it needs to conduct oversight of this program. While I recognize your goal of an unclassified response, given the need to include classified information to fully address your question, the classified response provided on July 24 stands as our response on this matter.

Sincerely,

Daniel R. Coats

Now, for those of you thinking "okay, it makes sense that we can't reveal classified information that might harm national security," let me remind you of the question that Wyden asked:

Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic?

Okay. So please explain how a simple yes or no answer to that can be classified -- especially given the plain language of the law itself? And, of course, this answer -- or, more specifically, the refusal to say "no" -- more or less confirms that the answer is a resounding "YES!" the government believes that it can use Section 702 to collect purely domestic communications, in clear contradiction to the plain language of the law.

Furthermore, if this question is so scary and so dangerous, why didn't anyone -- including Coats himself -- have any problem answering it when it was initially posed back in June? It didn't seem like such a risk to national security then. It's only a risk to national security after Coats' staff realized he misspoke? How, exactly, does that work?

As you might imagine, Senator Wyden is not pleased with this turn of events:

It is hard to view Director Coats' behavior as anything other than an effort to keep Americans in the dark about government surveillance. I asked him a simple, yes-or-no question: Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic?

What happened was almost Orwellian. I asked a question in an open hearing. No one objected to the question at the time. Director Coats answered the question. His answer was not classified. Then, after the fact, his press office told reporters, in effect, Director Coats was answering a different question.

I have asked Director Coats repeatedly to answer the question I actually asked. But now he claims answering the question would be classified, and do serious damage to national security.

The refusal of the DNI to answer this simple yes-no question should set off alarms. How can Congress reauthorize this surveillance when the administration is playing games with basic questions about this program?

This is on top of the administration's recent refusal even to estimate how many Americans’ communications are swept up under this program.

The Trump administration appears to have calculated that hiding from Americans basic information relevant to their privacy is the easiest way to renew this expansive surveillance authority. The executive branch is rejecting a fundamental principle of oversight by refusing to answer a direct question, and saying that Americans don't deserve to know when and how the government watches them.

So, uh, who in the NSA is going to play the role of Snowden this time? Once again, it appears we have a Director of National Intelligence claiming no surveillance on Americans under a specific authority, when everything that Wyden is saying indicates that he damn well knows that's not true. Sooner or later someone's going to leak the fact that the intelligence community is lying to the American public in order to spy on the American public.



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15 Sep 20:51

Verizon disconnecting 8,500 people in 13 states because they’re unprofitable

by Ashley King
Verizon advertised unlimited plans to rural customers to entice them to join the network, but now it's giving them the boot because those roaming charges cost more than rural customers pay Verizon.
15 Sep 15:39

U.S. Embassy Memos Offer a Glimpse Into the “Devastated” Lives of Refugees Rejected by the Travel Ban

by Cora Currier

In internal memos, American embassies in Jordan and Ethiopia detailed how refugees there were “devastated” by January’s U.S. executive order barring travel from predominately Muslim countries. The memos back to State Department headquarters tell of the desperation of asylum-seekers who had their hopes of getting into the United States dashed by the order — including a girl who tried to kill herself when her family was told they could not travel.

The embassy documents, which The Intercept obtained through a Freedom of Information Act request, are dated from the days and weeks after President Donald Trump issued what came to be known as “the Muslim ban,” sparking protests nationwide. In addition to barring travel from seven Muslim-majority nations — almost all war-torn and with large refugee populations — the order mandated an immediate halt to all refugee admissions for 120 days, cut the number of refugees to be let in to the U.S. this year by half, and indefinitely blocked refugees from Syria. The controversial order was immediately met with legal challenges and will be taken up by the Supreme Court next month. Trump used this morning’s terror attack in the London subway to declare that “the travel ban into the United States should be far larger, tougher, and more specific.”

But a memo from the U.S. Embassy in Addis Ababa, dated February 6, 2017, a little over a week after the order was signed, told the stories of refugees for whom the travel ban was “undoubtedly devastating.” The memo noted that despite a court stay halting its implementation, the order had already had “severely impacted” U.S. refugee programs and “delayed thousands of in-process legitimate travelers.”

More than 150 refugees from Somalia, Eritrea, and Sudan, who had been poised to travel to the United States, were left stranded in a transit camp in Addis Ababa. When State Department officials visited the camp on January 30, the refugees asked them to intercede and “to prioritize those who are more in need,” including a Somali “with a heart condition whose family departed the day before the EO was announced,” and an “8-year-old boy who has lost 90 percent of his vision to glaucoma,” according to the February 6 memo. Among the Somalis who had to be informed that their “already-printed visas would not allow them entry into the United States” were people who had been “waiting more than a year to join their family members already settled in the U.S.” Those cases included a 2-year-old and “a 4-year-old who had never met his father.”

A March 9 memo described a meeting with Somali refugees who were “clearly emotionally distressed” by the effects of the ban. “A mother of nine said she had used all her money to buy winter clothing for the trip to the United States,” the memo stated. She also “mentioned that her oldest daughter had tried to commit suicide after their family was told their travel was postponed indefinitely.”

Like Ethiopia, Jordan hosts many thousands of refugees, including from the banned countries. The order meant that 27,686 of them who were in the “pipeline” for U.S. resettlement, “all of whom are now in limbo,” according to a January 30 missive from the U.S. embassy in Amman. Nearly 22,000 of the affected refugees were from Syria, on top of a significant number of Syrians in Jordan waiting for other forms of visas. As in Ethiopia, the families were “devastated” by the uncertainty.

A young couple from Aleppo “had sold their house to pay for what they hoped would be a new life in Ohio” and had no money to live in Jordan or return to Syria. Their three-year-old daughter “suffered from panic attacks every time she heard an airplane flying overhead.” A family of five “saw no choice but to return to their battered neighborhood in Homs, despite no longer having a home.” The eldest daughter in the family, a recent graduate of law school, grilled the consular officer, “as if cross examining him,” the memo said. “‘Is the 90-day ban actually permanent?” she asked. “Are you just telling us 90 days to try to give us hope?”

GAMBELA, ETHIOPIA - JUNE 20: South Sudanese refugee family members are seen as they try to live at Nguenyyiel refugee camp in Gambela region of Addis Ababa, Ethiopia on June 20, 2017. In the refugee camp, which was opened by UNHCR (United Nations High Commissioner for Refugees), around 60,000 refugees mostly women and children take shelter. Ethiopia, currently hosts around 850,000 refugees from 20 different countries mostly Sudanese, Somalis, Eritreans and South Sudanese.  (Photo by Minasse Wondimu Hailu/Anadolu Agency/Getty Images)

South Sudanese refugee family members live at Nguenyyiel refugee camp in Gambela region of Addis Ababa, Ethiopia, where about 60,000 refugees take shelter, on June 20, 2017.

Photo: Minasse Wondimu Hailu/Anadolu Agency/Getty Images

As chaos prompted by the executive order played out, with passengers stuck around the world and protesters descending on U.S. airports, the State Department memos reflect the impact that the ban had on refugees, who were “some of the most vulnerable in the world.” The documents are similar in tone and content to memos dissenting on the policy that leaked at the time, such as one from the U.S. consulate in Dubai reflected the anguish of Iranian and Iraqi refugees, and another signed by nearly 1,000 foreign service officers stating, “We are better than this ban.” A senior immigration official told The Intercept in January, “There are people literally crying in the office here.”

After federal courts intervened against the ban, there was a period where many refugees were again able to travel. In the March 9 memo, the Addis Ababa embassy noted that the 156 refugees initially stranded in Ethiopia had been resettled in the United States. But the memo went on to say that new caps on refugee admissions for the year were “dramatically slowing the pace of admissions from Ethiopia,” with “just a couple more families” expected to qualify that month.

Trump’s order capped the number of refugees allowed into the U.S. in fiscal year 2017 at 50,000, down from former President Barack Obama’s target number of 110,000. That ceiling came into effect in late June and was reached almost immediately, meaning that admissions have slowed to a trickle of special cases. Advocacy groups say that the combination of the ban and cap have generated many more instances like those detailed in the State Department memos.

“These are people with very urgent need,” said Betsy Fisher, policy director for the International Refugee Assistance Project. “Those are the kind of stories that we’re hearing, and the kind of cases we deal with when people aren’t allowed in.”

Federal judges blocked parts of the order halting refugees and banning travelers from Iran, Somalia, Sudan, Libya, Yemen, and Syria (Iraq was removed from the list in the March order), but the Supreme Court has partially reinstated those travel bans until it takes up the case. In the interim, the order does not apply to people with “a bona fide relationship” in the United States. Just this week, the court said that relationships between refugees and resettlement agencies did not qualify as “bona fide,” allowing the Trump administration to block roughly 24,000 refugees who might have qualified for an exception.

“It’s all eyes to the Supreme Court on October 10, we’ll see what happens,” said Fisher.

In the meantime, advocacy groups are concerned by news reports that the Trump administration is considering further lowering next year’s quota for refugees to below 50,000, the lowest it has been since 1980. The president must set that ceiling by the beginning of fiscal year 2018, on October 1. Such a low number is “insufficient and unconscionable – especially as the global migrant crisis continues to escalate,” the group Church World Service said in a statement.

The State Department documents highlight how badly people are left in the lurch when options for resettlement are rescinded. Pending asylum applications, many sell their belongings to raise money for relocation and give up their assigned shelters in camps for displaced people. The February memo from Addis Ababa stated that most of the cases that the embassy there handles are female and mostly children under 16.

“Longer wait times will undoubtedly mean further hardships for applicants who have waited years on a legal path to migration,” it read. “Most live without legal authorization for employment or travel,” and their uncertain status in Ethiopia would leave them scraping by in black-market jobs.

The January 30 memo from Jordan said that most Syrians there “lack legal status in Amman; Jordanian authorities admitted them with the understanding they would soon be leaving for the United States. Many have no homes to which they can return. Several lost houses to Syrian regime or opposition shelling.” Most had used all their resources to get as far as they had, and the withdrawal of U.S. support left them with no money.

Personnel from the United Nations High Commissioner for Refugees told the Addis Ababa embassy that “an increasing number of refugees” were considering taking the dangerous route to Europe if it appeared that resettlement in the United States was “not a realistic option.”

The memos also make clear how U.S. withdrawal from refugee assistance impacted other countries: The February memo noted that Ethiopia’s refugee agency had been “instrumental” in handling paperwork and processing for the delays caused by the order and made special exceptions to accommodate them. The director of the Ethiopian agency “argued passionately” for the U.S. to continue taking in refugees, saying that the executive order “would affect America’s image abroad,” according to the memo. The State Department refugee coordinator, Peter Vrooman, discussed with the U.N. personnel and the International Organization for Migration how to get Canada, France, and Nordic countries to accept more refugees as the United States took in fewer. Both international organizations “realize that even in a best-case scenario, expanded quotas from other countries will not make up for reduced intake from the United States.”

Faraj Ghazi al-Jamous, a Syrian refugee who was prevented from travel to the United States due to President Donald Trump's executive order blocking entry to citizens from seven Muslim-majority countries, including Syria, sits in a living room with his son, showing documents provided by the UNHCR verifying his status, in the Jordanian capital Amman on February 1, 2017. After spending over a year amid interviews, health and security checks, Jamous, a father of five who was travelling with his wife and children, was contacted by a representative from the International Organisation of Migration (IOM) who told him that the family's immigration and resettlement plans were suspended indefinitely. / AFP / Khalil MAZRAAWI        (Photo credit should read KHALIL MAZRAAWI/AFP/Getty Images)

Faraj Ghazi al-Jamous, a Syrian refugee prevented from travel to the U.S. due to President Donald Trump’s executive order, sits in a living room with his son in the Jordanian capital, Amman, showing documents provided by the UNHCR verifying his status, Feb. 1, 2017.

Photo: Khalil Mazraawik AFP/Getty Images

In response to questions from The Intercept, a State Department official said that “U.S. funding provides life-saving assistance to millions of displaced and crisis-affected people, including refugees worldwide” and highlighted ongoing humanitarian support for Ethiopia and Jordan. In fiscal year 2017 to date, the official said the United States had resettled 2,897 refugees from Ethiopia, primarily Somalis and Eritreans. The official was unable to immediately provide a comparable figure for Jordan.

The Jordan memo also discussed local reaction to the ban. Government officials in Jordan said privately that the order would “benefit Daesh recruitment” (using the Arabic acronym for the Islamic State), and the embassy in Amman also noted public outrage at the ban in a section headed with a quote: “It’s easier to get into heaven than the United States.” Even people not directly affected were turned off: A Jordanian employee withdrew herself from a U.S.-sponsored course, and a group of high school seniors visiting the embassy who had planned to attend college in the U.S. now said “that they had reservations.” The memo notes, “high-achieving Jordanian students now appear to be considering other options — particularly Canada.”

Other State Department memos released to The Intercept detail public and governmental responses from other nations, including protests in Malaysia and “broadly negative” reactions in Iraq. A dispatch from Somalia noted that the media reaction there was “muted,” but the discussion is mostly redacted. Other memos — on Sudan, Afghanistan, Bulgaria, and Canada — were almost entirely withheld. The documents were released as part of an ongoing Freedom of Information Act lawsuit for records relating to the travel ban from a number of federal agencies.

Top photo: Syrian refugees are seen at the Zaatari refugee camp, on the Jordanian border on May 31, 2017.

The post U.S. Embassy Memos Offer a Glimpse Into the “Devastated” Lives of Refugees Rejected by the Travel Ban appeared first on The Intercept.

14 Sep 20:18

Judge in Arpaio Case Wants to Hear Arguments Before Vacating Former Sheriff’s Conviction

by Maryam Saleh

When the Founding Fathers created the presidential pardon power, they likely had a few ideas about how that authority could be used. Clemency might be granted in a show of mercy, or to undo a miscarriage of justice. Or maybe the president would want to pardon anti-government rebels in an attempt to restore peace to the republic, much like President Andrew Johnson would do after the Civil War.

But what the founders could not possibly have envisioned was that a president would pardon an elected official for ignoring a court order to stop violating constitutional protections enshrined in the Bill of Rights. Those rights, after all, did not exist until two years after the Constitution came into force.

Or so goes the argument by civil rights groups that say, for this reason, that President Donald Trump’s controversial pardon of former Sheriff Joe Arpaio cannot stand.

And the judge involved in the case is willing to hear them out.

“We are not aware of a single case in our nation’s history where the president pardoned an elected official for disobeying a court order to stop violating constitutional rights,” said Ron Fein, legal director at Free Speech for People, which this week filed a friend-of-the-court brief challenging the pardon. “With this pardon, Trump has pushed our country into uncharted territory.”

Trump last month pardoned Arpaio, the former sheriff of Arizona’s Maricopa County, for a contempt conviction that stemmed from a 2011 racial-profiling lawsuit. In 2013, a federal judge ordered Arpaio to stop his office’s practice of unfairly singling out Latino drivers for special scrutiny in violation of the Fifth Amendment. But Arpaio’s deputies continued to racially profile Latinos, and in July, U.S. District Judge Susan Bolton found Arpaio in criminal contempt of court, ruling that he had “willfully violated” the order. He faces up to six months in jail.

Immediately following the pardon, Arpaio asked Bolton to vacate his conviction. Instead, she canceled his October sentencing hearing and ordered the former sheriff and the Department of Justice, which is prosecuting the case, to submit briefs on why she should or should not grant Arpaio’s request.

The Justice Department on Monday said it agrees with the pardon and urged the court to vacate the conviction. On the same day, two groups separately filed briefs opposing Arpaio’s request to dismiss his conviction, arguing that Trump’s pardon undermines judicial protections of constitutional rights.

The pardon sets a dangerous precedent, said David Shapiro, a lawyer at the Roderick and Solange MacArthur Justice Center, which filed an amicus brief arguing that the president cannot issue pardons that undo the judicial power to enforce the Bill of Rights. “I think the brief sort of sets forth that the concern is that [the pardon] sends a message to law enforcement that you can flout the Constitution and do it with impunity,” Shapiro said.

Law enforcement officials across the country now understand “that if they get into trouble and if the court orders them to stop doing something unconstitutional, they can disobey that court order and the president will issue them a get out of jail free card,” Fein said. “Most law enforcement officials won’t do that. Most will be scrupulous and follow court orders, but those like Joe Arpaio heard a very strong message from the pardon.”

The pardon power is not absolute. While the facts of Arpaio’s case are somewhat unique — both because of the underlying constitutional issues and because he has not yet been sentenced — challengers have been objecting to presidential pardons for centuries. But Fein said his group found only one other case where a presidential pardon infringed upon the Bill of Rights. In a 1915 case called Burdick v. United States, the Supreme Court protected the Fifth Amendment right against self-incrimination by holding that a newspaper editor’s refusal of a pardon, designed to compel him to reveal a source, voided the pardon.

The Supreme Court has also dealt with pardons related to criminal contempt on at least one occasion. In 1920, a court ordered a man named Phillip Grossman to stop operating a speakeasy in violation of prohibition. He continued to sell alcoholic drinks and was ultimately convicted of criminal contempt of court and sentenced to prison time and a $1,000 fine. President Calvin Coolidge issued a pardon that reduced Grossman’s sentence to the payment of the fine, and the pardon was challenged. The Supreme Court ultimately held that the president had the authority to pardon someone for a criminal contempt of court conviction. The critical difference between Grossman and Arpaio, the challengers say, is that there were no constitutional protections related to the order that Grossman denied. And that makes all the difference.

But even if the court decides that Arpaio’s pardon is valid, it should nonetheless deny Arpaio’s request to vacate the conviction, the MacArthur Justice Center lawyers argued. “The president has pardoned Arpaio in a manner repugnant to our constitutional order, rewarding him for waging war on minority communities and for breaking the law repeatedly and willfully,” they wrote in their brief. “The least this disgraced lawman should suffer is the stigma of conviction. The nation deserves for his conviction to stand.”

Trump’s pardon also raised questions about the potential impact on the Trump-Russia probe. “This pardon also sends a signal to people in Trump’s circle who may be implicated in the Russia scandal that if they get a court order to testify and they refuse, Trump is willing to bail them out of any criminal contempt of court through a pardon,” Fein said.

Arpaio gained national notoriety for his aggressive anti-immigration views and public humiliation of prisoners. America’s self-styled “toughest sheriff” operated Tent City, an outdoor jail where inmates in striped jumpsuits and pink underwear slept in tents that he once referred to as a “concentration camp.” Arpaio’s 24-year run as sheriff ended last year when he lost his bid for re-election. The court will hear arguments on Arpaio’s request to dismiss his conviction on October 4.

Top photo: Sheriff Joe Arpaio of Maricopa County, Ariz., listens as then-Republican presidential candidate Donald Trump speaks to reporters at a rally on Jan. 26, 2016, in Marshalltown, Iowa.

The post Judge in Arpaio Case Wants to Hear Arguments Before Vacating Former Sheriff’s Conviction appeared first on The Intercept.

14 Sep 18:19

Lawyer: Without The Monkey's Approval, PETA Can't Settle Monkey Selfie Case

by Mike Masnick

Ted Frank is a well-respected lawyer who has heroically dedicated much of his career to stopping bad legal practices, including sketchy settlements in class action lawsuits. Now he's taking action in another case involving a sketchy settlement: the monkey selfie case. As we highlighted earlier this week, while it was no surprise that PETA and photographer David Slater worked out a settlement agreement to end the ridiculous lawsuit PETA had filed, it was deeply concerning that part of the settlement involved PETA demanding that the original district court ruling -- the one saying, clearly, that animals don't get copyrights -- should be thrown out.

It took just a few days for Frank, on behalf of CEI, to file a wonderful and hilarious amicus brief with the court. There are a bunch of reasons why vacatur is improper here, but the real beauty of this brief is in pointing out that Naruto -- the monkey -- has been left out of the settlement, and thus not "all parties" have agreed. No, really.

PETA continued to assert that it acted as Naruto’s next friend before this Court, after Dr. Engelhardt voluntarily dismissed her appeal before briefs were filed.... The defendants argued that because Dr. Engelhardt was the only person pleaded to have any relationship with Naruto, PETA could not demonstrate the “significant relationship” required to establish next friend standing.... In response, PETA again asserted in writing and at oral argument that it acts as Naruto’s next friend....

Incredibly, PETA now represents that it entered into settlement with the defendants alone—without Naruto.... The settlement instead “resolves all disputes arising out of this litigation as between PETA and Defendants.”... This statement makes no sense. PETA did not have claims against the defendants. PETA argued repeatedly it was a next friend, a nominal party. For what their worth, all claims arising out of this litigation belong to the sole plaintiff, Naruto....

The underlying complaint does not plead a case or controversy between PETA and defendants, and this alone bars vacatur. Without standing, PETA may not move for vacatur. It does not matter that the defendants half-heartedly moved for vacatur under their settlement agreement “without joining or taking any position as to the bases for that request.”... The losing party—Naruto—must carry the burden of proving “equitable entitlement to the extraordinary remedy of vacatur.”...

No Naruto, no standing, no vacatur.

No Naruto, no standing, no vacatur. What a world we live in.

PETA’s too-clever-by-half argument simply does not work. PETA cannot claim to be a qualified next friend, then pretend to be unqualified when it suits them for the limited purpose of vacating an unfavorable precedent. Their position is especially untenable because PETA still “contends that it can satisfy the Next Friend requirements, or should be permitted the opportunity to do so before the district court, if the appeal is not dismissed.”

Alternatively, Frank argues that since Naruto is not technically a part of the settlement, perhaps the appeals court should reject the settlement and issue its opinion anyway:

Alternatively, if the Court takes PETA’s argument literally, and if PETA agreed only to stop acting as next friend for Naruto, leaving the monkey without an advocate, such a selfish settlement would not extinguish Naruto’s appeal. A stipulation signed only on behalf of the next friend (a nominal party) cannot moot the underlying controversy with the actual party. To the extent that PETA insists this occurred, they have simply ceased to adequately represent their supposed friend Naruto. If so, PETA’s stipulation should be disregarded.

Frank also takes a stab at PETA's whole "next friend" argument and why it's so silly in a footnote. First, he notes that if the court is concerned that Naruto is now "friendless" at the court, it could appoint a guardian ad litem, with the following footnote mocking PETA's claim to "next friend" status.

The Competitive Enterprise Institute has as much of a personal relationship with Naruto as PETA pleaded (i.e., none), so might plausibly serve the role as well as PETA has. However, any next friend or guardian should have a bona fide personal and non-ideological interest in the incompetent person—putting aside the question of whether animals may be persons under Fed. R. Civ. Proc. 17.

And, of course, who knows if Naruto (or some other "next friend") won't sue again:

In any event, if Naruto’s claims were indeed not settled by PETA, vacatur should be denied because “Naruto” (that is, someone claiming to be his “next friend”) would remain free to file suit again for further acts of alleged infringement.

While this is a bit of a throwaway line, it's actually important -- and it's one that David Slater should pay attention to. Allowing PETA to toss out the lower court settlement might not end his legal troubles over this matter. Anyone else alleging to be Naruto's "next friend" might go right back to court.

Finally, Frank notes that just because the parties have announced a settlement, that doesn't mean the court can't reject it and issue a ruling -- providing guidance to other courts in the circuit on this issue.

In Americana Art, the panel chose to issue an affirming opinion notwithstanding the dismissal because of the “opportunity to provide additional guidance to the district courts.”... PETA previously stated to this Court that the case presents “a question of first impression [and] the issue is not a trivial one.” ... Given the judicial resources already expended at the district-court and appellate level, the Court can rationally conclude, especially given that PETA is attempting to elide the question of whether it is or is not a “next friend,” that, if the Court is already close to a decision in this straightforward case, it should provide “guidance to the district courts” by issuing a decision that would not require much additional expenditure of judicial resources

I would be pleasantly surprised if the 9th Circuit actually keeps the case going and issues an opinion -- but at the very least, it shouldn't ditch the district court ruling.



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14 Sep 12:57

VICTORY: DOJ Backs Down from Facebook Gag Orders in Not-so-secret Investigation

by nate

The U.S. Department of Justice has come to the obvious conclusion that there’s no need to order Facebook to keep an investigation “secret” when it was never secret in the first place. While we applaud the government’s about-face, we question why they ever took such a ridiculous position in the first place.

Earlier this summer, Facebook brought a First Amendment challenge to gag orders accompanying several warrants in an investigation in Washington, D.C. that Facebook argued was “known to the public.” In an amicus brief joined by three other civil liberties organizations, EFF explained to the D.C. Court of Appeals that gag orders are subject to a stringent constitutional test that they can rarely meet. We noted that the timing and circumstances of the warrants were strikingly similar to the high-profile investigations of the protests surrounding President Trump’s inauguration on January 20 (known as J20). Given these facts, we argued that there was no way the First Amendment could allow gag orders preventing Facebook from informing its users that the government had obtained their data.

In a joint filing today, Facebook and the DOJ have told the court that the gag orders were no longer necessary, because the investigation had “progressed.” Of course, if the investigation in this case is about what we think it is—the January 20 protests in D.C., opposing the incoming Trump Administration—then it had “progressed” to the point where no gag orders were necessary even before the government applied for them.

While we’re pleased that the government has come to its senses in this case, it routinely uses gag orders that go far beyond the very narrow circumstances allowed by the First Amendment. We’ve fought these unconstitutional prior restraints for years, and we’ll continue to do so at every opportunity.

Read about what we had to say about the government’s original position here.

14 Sep 09:33

Google is replacing defective Nexus 6P devices with Pixel XL

by Ashley King
Reports that Google is replacing faulty Nexus 6P devices with a Google Pixel XL are true. If you're having battery issues with your device you should consider contacting Google for a replacement.
13 Sep 16:30

Cuba's crumbling infrastructure no match for might of Irma

Havana was in midnight darkness and the floodwaters were neck-high were Yanelis Rodríguez finally gave up hope that help was on its way.

As giant waves crashed over the Malecón seawall just 200m away, Rodríguez and her two young children waded through Hurricane Irma’s storm surge to safety.

“The winds started at four in the afternoon. We’d waited so long because we just assumed the government would come and help us,” she said. “We got out of the water and sheltered in a nearby building.”

It was a harrowing night: in the early hours of the morning an iron girder crashed down onto the roof above them. Yanelis ran into the street, before changing her mind and going back inside: it was too dangerous to seek refuge elsewhere.

Irma hit Cuba as a category 5 hurricane and barrelled through the central and western provinces, causing catastrophic destruction in a country that prides itself on disaster preparedness. At least 10 people died – Cuba’s worse hurricane death toll since Hurricane Dennis killed 16 in 2005.

Seven of the fatalities were in Havana, whose decaying historic buildings were no match for the force of the storm. And as as uprooted trees were hauled away, and electricity returned to more neighbourhoods, many in the Cuban capital were asking whether authorities were ready for another storm.

Two brothers, Roydis and Walfrido Valdés, died instantly in their central Havana apartment when a huge block of concrete fell from four storeys above them.

The fire brigade arrived a few hours later to pull their mangled corpses from the wreckage. But more than a dozen people remain living in the 100-year-old building. An elegant marble staircase with an ornate iron banister leads up to the first floor where the brothers died.

Cracks between bricks in the wall are many inches wide. The floor is sunk and uneven. Like many of Havana’s once-elegant buildings, it is home to dozens of families but has recieved little maintenance in years.

Cubans wade through the rubble from a collapsed building in Havana. Many of the city’s historic structures have received little maintenance in over the years.
Cubans wade through the rubble from a collapsed building in Havana. Many of the city’s historic structures have received little maintenance in over the years. Photograph: Yamil Lage/AFP/Getty Images

“The government knows this building is liable to collapse,” said one neighbour, Lixa Peñalver, 47, adding that an elderly man fell to his death years ago when another part of the building caved through. “If you know that there’s a big risk, surely this should be one of the first buildings you evacuate. But nobody came.”

María Estela Pedroso, who knew the brothers, said she had been trying to convince the authorities to relocate her for over a decade. “Nobody should be living where we are living,” she shouted furiously. “I go to all the Committee for the Defence of the Revolution meetings, all the assemblies, and I’ve always said they are not going to get us out of here until somebody dies.”

Luís Dilu Galiente is the president of the building’s Committee for the Defence of the Revolution – neighbourhood bodies which provide basic social services, and also watch out for counter-revolutionary activities.

He admitted that the block had not been evacuated, but pointed out that many locals had taken in neighbours seeking shelter – a standard element of Cuba’s emergency planning. A family of six has been staying in Galiente’s own two-bedroom apartment since before Irma struck.

“The state didn’t send buses to evacuate the building like they have on other occasions. But anybody can find refuge if they want it – at least with their neighbours,” he said.

The government knows this building is liable to collapse. This should be one of the first buildings you evacuate

Lixa Peñalver, Havana resident

Cuban media reported that tens of thousands of people were evacuated in Havana and over a million throughout the island. On Saturday, after the extent of the flooding became clear, dozens of buses were sent to evacuate people from central Havana, according to state media.

Though television ran regular updates warning of flooding and advising people to take precautions in the run up to the hurricane, the forecasts did not place Havana on the main storm path.

The flooded streets of Havana after Hurricane Irma passed through. At least 10 people have died in the storm.
The flooded streets of Havana after Hurricane Irma passed through. At least 10 people have died in the storm. Photograph: Ramon Espinosa/AP

“Given that the country is so poor and the housing is so bad, you would think that there would be many more deaths,” said Elizabeth Newhouse, who has led delegations of emergency managers from New Orleans and the Gulf Coast in the US to study Cuba’s response system. “This is really a small number given what it could be.”

“They are very adept in disaster mitigation,” said Newhouse, director of the Cuba program at the Center for International Policy. “They have to be.”

Three-quarters of the island’s workforce is still employed by the state, so although Cuba’s government is often slow, bureaucratic and profoundly inefficient, in times of crisis, it can marshal its human and material resources in a way that other islands in the Caribbean cannot.

The week before the storm hit, the island’s pharmaceutical industry was instructed to put other medicines on hold so as to manufacture and distribute hydration salts.

Tonnes of extra flour were distributed to state bakeries in the days before the hurricane struck. Authorities cut gas and electricity before storm hit, but bakers in Havana’s Vedado district worked through the night, using a petrol generator and sometimes even firewood to keep production going.

With macabre comic timing, Donald Trump renewed the US embargo on Cuba for another year just hours before the Irma made landfall. While the island’s faltering economy goes some way to explaining the condition of housing stock the embargo makes matters worse.

As city authorities go about patching up walls and constructing new homes, Cuba will have to pay over the odds for building materials. The country cannot buy from multinationals that trade with the US, so is forced to source items from further afield.

With dozens of hotels smashed, millions still without power, and thousands of hectares of sugar cane destroyed, financing the reconstruction effort will be a challenge: the embargo also prevents Cuba from joining the IMF and the World Bank, as well as other regional lending institutions that grant infrastructure loans.

Nobody that the Guardian spoke to in central Havana could point to a nearby shelter, but elsewhere in the city there were plenty to be found.

People put furniture out to dry outside their homes in Havana.
People put furniture out to dry outside their homes in Havana. Photograph: Alexandre Meneghini/Reuters

The Belén Convent in Old Havana is a care home for the elderly which has been transformed into a shelter for the hurricane. It is clean and calm. Fans whirl to keep the heat at bay. The bunks have clean sheets, and apart from mothers sleeping with new-borns, everyone has their own bed.

The smell of fresh coffee wafts through the air as a nurse chats to a police officer as half a dozen evacuees sit back to watch a Bruce Lee movie.

“When the rain started I came here with my daughter. We knocked on the door and they let us in,” said Carlotta Francisca Valdés, 79.

“The food here is pretty good. I’ve been given things that I don’t have in my house at the moment: minced beef, for example.”

Yorka Gutiérrez Pérez came here with her neighbours when the front of their building collapsed. She’s hoping to stay in the shelter until she’s given a new house, but given that hundreds of Cubans are in temporary housing following the last hurricane, it’s likely she’ll have a wait.

“I’ve got faith in this government,” she said. “Until now, at least, the Revolution has never abandoned us”.

Additional reporting by Amanda Holpuch in New York

13 Sep 15:46

EFF, ACLU Sue Over Warrantless Phone, Laptop Searches at U.S. Border

by karen
Lawsuit on Behalf of 11 Travelers Challenges Unconstitutional Searches of Electronic Devices

Boston, Massachusetts—The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) sued the Department of Homeland Security (DHS) today on behalf of 11 travelers whose smartphones and laptops were searched without warrants at the U.S. border.

The plaintiffs in the case are 10 U.S. citizens and one lawful permanent resident who hail from seven states and come from a variety of backgrounds. The lawsuit challenges the government’s fast-growing practice of searching travelers’ electronic devices without a warrant. It seeks to establish that the government must have a warrant based on probable cause to suspect a violation of immigration or customs laws before conducting such searches.

The plaintiffs include a military veteran, journalists, students, an artist, a NASA engineer, and a business owner. Several are Muslims or people of color. All were reentering the country from business or personal travel when border officers searched their devices. None were subsequently accused of any wrongdoing. Officers also confiscated and kept the devices of several plaintiffs for weeks or months—DHS has held one plaintiff’s device since January. EFF, ACLU, and the ACLU of Massachusetts are representing the 11 travelers.

“People now store their whole lives, including extremely sensitive personal and business matters, on their phones, tablets, and laptops, and it’s reasonable for them to carry these with them when they travel. It’s high time that the courts require the government to stop treating the border as a place where they can end-run the Constitution,” said EFF Staff Attorney Sophia Cope.

Plaintiff Diane Maye, a college professor and former U.S. Air Force officer, was detained for two hours at Miami International Airport when coming home from a vacation in Europe in June. “I felt humiliated and violated. I worried that border officers would read my email messages and texts, and look at my photos,” she said. “This was my life, and a border officer held it in the palm of his hand. I joined this lawsuit because I strongly believe the government shouldn’t have the unfettered power to invade your privacy.”

Plaintiff Sidd Bikkannavar, an engineer for NASA’s Jet Propulsion Laboratory in California, was detained at the Houston airport on the way home from vacation in Chile. A U.S. Customs and Border Protection (CPB) officer demanded that he reveal the password for his phone. The officer returned the phone a half-hour later, saying that it had been searched using “algorithms.”

Another plaintiff was subjected to violence. Akram Shibly, an independent filmmaker who lives in upstate New York, was crossing the U.S.-Canada border after a social outing in the Toronto area in January when a CBP officer ordered him to hand over his phone. CBP had just searched his phone three days earlier when he was returning from a work trip in Toronto, so Shibly declined. Officers then physically restrained him, with one choking him and another holding his legs, and took his phone from his pocket. They kept the phone, which was already unlocked, for over an hour before giving it back.

“I joined this lawsuit so other people don’t have to have to go through what happened to me,” Shibly said. “Border agents should not be able to coerce people into providing access to their phones, physically or otherwise.”

The number of electronic device searches at the border began increasing in 2016 and has grown even more under the Trump administration. CBP officers conducted nearly 15,000 electronic device searches in the first half of fiscal year 2017, putting CBP on track to conduct more than three times the number of searches than in fiscal year 2015 (8,503) and some 50 percent more than in fiscal year 2016 (19,033). 

“The government cannot use the border as a dragnet to search through our private data,” said ACLU attorney Esha Bhandari. “Our electronic devices contain massive amounts of information that can paint a detailed picture of our personal lives, including emails, texts, contact lists, photos, work documents, and medical or financial records. The Fourth Amendment requires that the government get a warrant before it can search the contents of smartphones and laptops at the border.”

Below is a full list of the plaintiffs:

 ·      Ghassan and Nadia Alasaad are a married couple who live in Massachusetts, where he is a limousine driver and she is a nursing student.

 ·      Suhaib Allababidi, who lives in Texas, owns and operates a business that sells security technology, including to federal government clients.

 ·      Sidd Bikkannavar is an optical engineer for NASA’s Jet Propulsion Laboratory in California.

 ·      Jeremy Dupin is a journalist living in Boston.

 ·      Aaron Gach is an artist living in California.

 ·      Isma’il Kushkush is a journalist living in Virginia.

 ·      Diane Maye is a college professor and former captain in the U. S. Air Force living in Florida.

·      Zainab Merchant, from Florida, is a writer and a graduate student at Harvard University.

·      Akram Shibly is a filmmaker living in New York.

·      Matthew Wright is a computer programmer in Colorado.

The case, Alasaad v. Duke, was filed in the U.S. District Court for the District of Massachusetts.

For the complaint:
https://www.eff.org/document/alasaad-v-duke-complaint

For more on this case and plaintiff profiles:
https://www.eff.org/cases/alasaad-v-duke

For more on digital security at the border:
https://www.eff.org/wp/digital-privacy-us-border-2017

Tags: 
Contact: 
Sophia
Cope
Staff Attorney
Adam
Schwartz
Senior Staff Attorney
Josh
Bell
ACLU Media Strategist
12 Sep 18:54

Monkey Selfie Case Reaches Settlement -- But The Parties Want To Delete Ruling Saying Monkeys Can't Hold Copyright

by Mike Masnick

For many years now, we've been covering the sometimes odd/sometimes dopey case of the monkey selfie and the various disputes over who holds the copyright (the pretty clear answer: no one owns the copyright, because the law only applies to humans). David Slater, the photographer whose camera the monkey used, has always claimed that he holds the copyright (and has, in the past, tried to blame us at Techdirt for pointing out that the law disagrees). A few years back, PETA, the publicity-hungry animal rights group, hired big time lawyers at Irell & Manella to argue (1) the monkey holds the copyright, not Slater, (2) PETA somehow magically can stand in for the monkey in court -- and sued Slater over it. Slater and I disagree over whether he holds the copyright, but on this we actually do agree: the monkey most certainly does not hold the copyright.

The district court ruled correctly that works created by monkeys are in the public domain and that PETA had no case. PETA appealed. Last month, we wrote that the case was likely to settle, because both sides were highly motivated to get it out of court. On Slater's side, he had told some reporters that the legal fight has left him broke (which bizarrely lead to a bunch of people blaming me, which still makes no sense), while PETA desperately wanted to settle because the hearing in the case made it abundantly clear that the appeals court was not buying its argument. Indeed, it appears that the judges hearing the case could barely contain laughter at the bananas argument made by PETA's lawyers.

So it comes as little surprise that the parties have released a joint statement saying they've settled the case and asking the court to dismiss the appeal. Part of the agreement is that Slater says he'll donate 25% of any future proceeds from the monkey selfie pictures to organizations that protect the habitat of macaque monkeys in Indonesia, which seems like a good cause.

But... there is a pretty clear problem with the proposed settlement. Not only are they asking the court to dismiss the case due to the settlement, the parties have also agreed to ask the court to vacate the district court's ruling saying that animals cannot copyright works they create. Basically, PETA and its high-priced lawyers lost really badly on a fundamental issue of copyright... and now they want to erase that precedent so they or others can try again. PETA is arguing, incredibly, that if the original ruling stands, it will unfairly bind the monkey Naruto:

Here, the settlement is between PETA and Defendants. Accordingly, under Bonner Mall, PETA maintains that Naruto should not be “forced to acquiesce” to the district court’s judgment that he lacks standing under the Copyright Act where the appeal will be mooted by an agreement by PETA and PETA’s Next Friend status is contested and undecided. Rather, PETA maintains that it would be just and proper to vacate the judgment of the district court.

Wait. So PETA doesn't want Naruto -- the monkey that it claims to represent on no real basis, and who has absolutely no clue any of this is actually happening -- to be "forced to acquiesce" to the ruling? That's utter bullshit.

Of course, it's almost certainly not the real motivation here. The more likely reason is simply that PETA doesn't want that precedent on the books and there will likely be other cases in the very near future on other non-human created works. PETA's lawyers, Irell & Manella, may very well be trying to position themselves as the go-to lawyers on issues like who holds the copyright on AI-created works (answer again: no one), and having this ruling on the books, even at the district court level, would be inconvenient.

Hopefully the court will see through this and leave the ruling as is. Otherwise it seems likely that we'll be seeing a lot more of these kinds of cases. In the meantime, PETA also put a silly statement on its blog calling the case "groundbreaking." It was not groundbreaking. It was a stupid, nonsensical argument that was clearly not correct, and was basically laughed out of court. PETA says that this "sparked a massive international discussion about the need to extend fundamental rights to animals...." Except it did nothing of the sort.

Most of the press coverage you'll see about the case are just sort of laughing it off -- saying "oh that silly monkey selfie case has settled." But very few of them are reporting the request to vacate the lower court ruling. It's a bad idea and hopefully the court does not allow it to happen.



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12 Sep 16:52

Meet Zika’s Lifesaving Side: It Kills Cancer

by Lina Zeldovich

Zika, the virus that was recently found to cause microcephaly in unborn children, may actually have some useful qualities, according to a new study. Found in animals in 1947, Zika was thought to be harmless to humans. That changed in 2016 when the World Health Organization declared Zika a global health emergency.

Transmitted via mosquito bites and through sex, Zika may cause little to no symptoms in adults, but it targets and destroys a specific type of brain cells called neuroprogenitors, which foster the expansion of the growing fetal brains. In pregnant women, Zika infection can result in babies being born with undersized, misshapen heads, which quickly made it of the most dreaded viruses of modern times. Over 1000 cases of Zika-linked microcephaly were registered in Brazil, and a few more in other countries. The Centers for Disease Control and Prevention warned pregnant women to avoid traveling to mosquito-infested locales and be weary of mosquitoes in the areas with high risk of Zika, which at some point included Florida. Scientific research pondered a gamut of mosquito preventative measures, including genetically engineering mosquito populations to self-destruct.

But a study published in The Journal of Experimental Medicine by researchers at the University of California, San Diego and Washington University, report that the same biological qualities that let Zika do its devastating neurological fetal damage, can also destroy the stem cells of glioblastoma, the most common type of brain tumors. With a median survival rate of about 14 months after diagnosis, glioblastoma is one of the deadliest cancers known to men. It is the type of cancer senator John McCain was diagnosed with this year.

Glioblastoma afflicts about 12,000 people a year in United States, and only 30 percent of them live two years after the diagnosis. It is treated with surgery, radiation, and chemotherapy, but, with the exception of very few cases, some of the tumor’s stem cells manage to resist treatment. These cells continue to divide, giving rise to a new tumor, which usually grows back within six months and proves fatal.

Zhe Zhu, a postdoctoral researcher at UC San Diego, thought that glioblastoma stem cells’ aggressive reproduction resembled the fast growth of the neuroprogenitor cells, which Zika normally targets. He wondered if Zika would be effective in killing glioblastoma too. With his colleagues, Zhu tested Zika on patient-derived glioblastoma samples and found that the virus indeed killed the tumor’s stem cells. The team then injected Zika into mice implanted with glioblastoma. Two weeks later Zika-treated animals had significantly smaller brain tumors than the untreated mice.

Zika virus (green) preferentially targets the stem cells (red) in a human glioblastoma. Credit: Zhu et al., 2017

“The Zika virus specifically targets neuroprogenitor cells in fetal and adult brains,” Jeremy Rich, professor of medicine at UC San Diego School of Medicine, said in a press release. “Our research shows it also selectively targets and kills cancer stem cells, which tend to be resistant to standard treatments and a big reason why glioblastomas recur after surgery and result in shorter patient survival rates.”

Developing, testing and getting approvals for new therapeutics takes years, so it’s unlikely that Zika will become a mainstream treatment soon, but researchers do see it as a complementary component to surgery and chemotherapy. Chemo kills glioblastoma’s cells, but not its stem cells, which cause tumors to regrow. Zika bypasses the regular glioblastoma cells, but wipes out the stem cells. Together, they sound like a promising duo. Researchers are also working on making an attenuated version of Zika, to assure it won’t do any damage to the brain’s normal cells.

The post Meet Zika’s Lifesaving Side: It Kills Cancer appeared first on JSTOR Daily.

12 Sep 16:50

FTC Advice On How To Deal With Equifax Hack: Er... Race The Hackers To Filing Your Taxes Before They Do

by Mike Masnick

So, yes, by now you know all about the whole Equifax hack and how really, really terrible it is. Lots of sites have been posting various stories about what you should do about it, when the truth is you really can't do much. A lot of people are likely going to deal with an awful lot of bad stuff almost entirely because of this leak by Equifax. Not surprisingly, the FTC has weighed in with some suggestions, most of which won't actually help very much. Most of them are the standard suggestions everyone's giving -- including checking your credit reports, putting a credit freeze on your files and basically watching very closely to see if you're fucked over by whoever has access to these files.

But the FTC's very last suggestion is the one I wanted to focus on today. It's basically "um, well, maybe try to file your tax returns early next year, so you beat hackers trying to do the same?"

File your taxes early — as soon as you have the tax information you need, before a scammer can. Tax identity theft happens when someone uses your Social Security number to get a tax refund or a job. Respond right away to letters from the IRS.

As someone who has been a victim of someone filing fake tax returns to try to get your refund, it's a really shitty process to go through. The problem here, though, is the whole setup of our tax system, which makes it pretty damn easy for someone to fake your tax returns -- now made even easier thanks to this breach. If the FTC really wanted to help, it should be pushing for a complete overhaul of how tax filing works, such that merely knowing your Social Security Number and address isn't enough to file tax returns in your name. Among the many problems here, it starts with the idiotic idea that we use SSNs as an identity tool -- but there's also the fact that we continue to have the IRS force every American to play a guessing game with their taxes just to keep tax prep companies like Intuit and H&R Block happy.

I recognize that the FTC isn't directly in a position to fix this, but the fact that it's best suggestion is "race the hackers to filing your tax returns and hope you get there first" should highlight just how totally fucked up our income tax system is in the US.



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12 Sep 15:40

Allergan: Creating Sovereign Immunity with Tribal Pass-Through

It appears that Allergan’s attorneys have been working overtime.  In a bold move, Allergan has transferred title to all of its Restasis patents to the Saint Regis Mohawk Tribe.  I don’t know if I’m laughing or crying, but there’s not a dry eye in the house.

Image result for Restasis

The move is designed to prop the patents up against challenge via a tribal sovereign immunity claim.   (Several of the transferred patents are being challenged before the PTAB in AIA Trials). Parallel claims have been quite successful for public universities in fending of both IPR and declaratory judgment lawsuits – even when the patents are exclusively licensed to commercial entities.  In fact, this is one reason why public universities almost never sell their patent assets, but instead merely license them.  Of course, a major difference with the university situation is that the university patents are the outcome of original university research.  In Allergan’s case one question will be whether the ownership structure creates a sham that can be pierced as if a fraudulent corporate veil. I’m confident, however, that Allergan’s lawyers worked through the analysis.  One element of the potential sham – the Tribe reports that it is being paid $13.75 million to buy the patents and will receive up to $15 million in annual royalties.

Allergan is a frequent player of jurisdictional games.  Its corporate “headquarters” is in Dublin for the tax benefits, although it is “actually” sited in New Jersey.

Patents involved: United States Patent Nos. 8,629,111; 8,633,162; 8,642,556; 8,648,048; 8,685,930 and 9,248,191.

12 Sep 11:48

Tesla Remotely Extended The Range Of Drivers In Florida For Free... And That's NOT A Good Thing

by Mike Masnick

In the lead up to Hurricane Irma hitting Florida over the weekend, Tesla did something kind of interesting: it gave a "free" upgrade to a bunch of Tesla drivers in Florida, extending the range of those vehicles, to make it easier for them to evacuate the state. Now, as an initial response, this may seem praiseworthy. The company did something (at no cost to car-owners) to help them evacuate from a serious danger zone. In a complete vacuum, that sounds like a good idea. But there are a variety of problems with it when put back into context.

The first thing you need to understand is that while Tesla sells different version of its Model S, with different ranges, the range is actually entirely software-dependent. That is, it uses the same batteries in different cars -- it just limits how much they'll charge via software. Thus, spend more on a "nicer" model and more of the battery is used. So all that happened here was that Tesla "upgraded" these cars with an over the air update. In some ways, this feels kind of neat -- it means that a Tesla owner could "purchase" an upgrade to extend the range of the car. But it should also be somewhat terrifying.

In some areas, this has lead to discussions about the possibility of hacking the software on the cheaper version to unlock the greater battery power -- and I, for one, can't wait to see the CFAA lawsuit that eventually comes out of that should it ever happen (at least some people are hacking into the Tesla's battery management system, but just to determine how much capacity is really available).

But this brings us back to the same old discussion of whether or not you really own what you've bought. When a company can automagically update the physical product you bought from them, it at least raises some serious questions. Yes, in this case, it's being used for a good purpose: to hopefully make it easier for Tesla owners to get the hell out of Florida. But it works the other way too, as law professor Elizabeth Jo points out:

And, of course, there's the possibility that one of these over-the-air updates goes wrong in disastrous ways:

So, yes, without any context, merely upgrading the cars' range sure sounds like a good thing. But when you begin to think about it in the context of who actually owns the car you bought, it gets a lot scarier.



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12 Sep 11:44

DEA Agent Gave Convict Girlfriend Access To Evidence, Classified Info; Received Almost No Punishment

by Tim Cushing

Routine misconduct by DEA agents? The DEA could not possibly care less. An Inspector General's report released in 2015 in the aftermath of a sex-parties-and-harassment investigation showed 8 of the 14 agents investigated received bonuses and awards while still under investigation, a violation of DEA policy. None of the agents were fired or even demoted. The DEA's unwillingness to address serious misdeeds seriously made it clear DEA agents are nigh un-fireable.

Even minor disciplinary actions tend to be rolled back, as the Inspector General's office reports [PDF]. An agent engaging in plenty of unrelated misconduct found himself stripped of his security clearance, but only momentarily. The list of things the agent did wrong is as impressive as it is disturbing. [h/t Brad Heath]

The DEA Office of Professional Responsibility (DEA OPR) learned about the Special Agent’s misconduct in 2013. The Special Agent admitted to DEA OPR that he had, among other things: carried on an extramarital affair with a woman who was a convicted criminal; allowed her after-hours access to a DEA office, including a drug evidence room; allowed her to listen to recorded telephone calls of subjects of DEA investigations; and had sex with her on numerous occasions in the DEA office and his DEA vehicle.

That the DEA chose not to fire this employee or subject him to something harsher than a (very) temporary suspension of his security clearance is no surprise given the DEA's historical disinterest in disciplining its employees.

Although the OIG found that there were relatively few such allegations reported for fiscal years 2009 through 2012, the report identified significant systemic issues with the components’ processes for handling these important matters that led the OIG to recommend prompt corrective action by the Department.24 Most notably, with respect to the DEA, the OIG found instances where DEA OPR failed to refer allegations involving sexual behavior that raised security concerns to Security Programs, potentially exposing DEA employees to coercion, extortion, and blackmail, all of which create security risks.25 The OIG also found instances where DEA OPR failed to fully investigate allegations of serious sexual misconduct and sexual harassment.

Following the DEA's investigation of the agent, officials decided to strip him of his security clearance. But this was swiftly reversed.

Based on the Special Agent’s misconduct and inconsistent statements, on March 24, 2015, the DEA Security Programs Manager (SPM) suspended the Special Agent’s clearance, rendering him ineligible for access to classified (and, by DEA policy, ineligible for access to DEA sensitive information). However, 3 days later, then-DEA Acting Chief Inspector Herman E. “Chuck” Whaley instructed the SPM to reinstate the Special Agent’s clearance.

Whaley's reasoning: this obviously-untrustworthy employee could be trusted with his security clearance because his long list of violations didn't have national security implications. This call was made despite the agent being unable to say for sure how much classified info he'd allowed his convicted criminal girlfriend to see nor being able to fully recall how often (and for how long) he'd allowed her to roam the DEA's evidence room unattended. Whaley made this decision unilaterally, bypassing the SPM and others charged with controlling security clearances.

The report points out Whaley misunderstood his position within the DEA hierarchy, thus arriving at the mistaken conclusion he could reinstate security clearances without running it by the SPM. But, as the Inspector General points out, the decision was still a terrible one to make, especially in light of all the other information Whaley had access to.

Whaley’s actions also reflected a disregard for the OIG's findings in the several drafts (October 2014, February 2015, March 2015) and final (March 2015) reports regarding the handling of sexual harassment and misconduct allegations by the DEA and other DOJ components. Whaley was familiar with the OIG review, having received a draft report as early as October 2014, and was responsible for revising DEA policy to address this precise issue. Among other things, the OIG report identified security risks created when DEA OPR employees untrained in security adjudications were allowed to determine whether to refer findings of sexual or other misconduct to Security Programs.

Nonetheless in late March 2015, Whaley reviewed DEA OPR’s August 2013 Stentsen investigation, which identified both sexual conduct and potential security concerns (including disclosing DEA sensitive information to unauthorized personnel, using a state law enforcement database for personal reasons, providing a girlfriend with access to the DEA facility after hours, and associating with a criminal), and he did not make any effort to discuss the matter with Cone, ensure that he himself was aware of all the relevant information, or ask whether the Stentsen case warranted closer attention given the findings in the OIG report. Whaley’s lack of leadership in this regard is particularly troubling considering that on March 26 (the day before Whaley instructed Cone to reverse his decision), the OIG publicly released the final report, Congress ordered hearings, and the national media reported the story.

The OIG also finds it worrying Whaley was more concerned about superficialities, rather than ensuring his underling was properly disciplined for his severe misconduct.

Whaley told the OIG that had he known that Stentsen had received notification of his suspension, he would not have directed Cone to reinstate the security clearance essentially because it would have looked unprofessional for DEA to change positions after the fact. Putting aside the suggestion that substantive decisions on security clearances would be impacted by such consideration of appearances, we note that Cone had e-mailed Whaley a copy of the final signed and dated suspension memorandum to Stentsen on March 24 but Whaley was not aware that it had already been sent to Stentsen’s supervisors and served on Stentsen.

It's just more evidence America's law enforcement agencies are far more concerned with external police work than with internal accountability. It also shows the DEA is systemically averse to internal discipline. The scandal referenced earlier made headlines around the nation, but DEA officials still refused to hand out anything more than wrist slaps. And those wrist slaps often came packaged with bonuses, awards, and personnel moves that strongly suggested the DEA was willing to forgive all but the most egregious misconduct, even while under the glare of the national spotlight.



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12 Sep 11:44

I downloaded an app. And suddenly, was part of the Cajun Navy.

  • Ben Theriot, of Prarieville, La., a Cajun Navy volunteer,searches for evacuees in Humble, Tues., Aug. 29. "We're trying to do what we can," said Theriot, an engineer whose house near Baton Rouge was flooded in last year's storms. "I had people that I barely knew showing up to help me." Photo: EDMUND D. FOUNTAIN, NYT / NYTNS

Photo: EDMUND D. FOUNTAIN, NYT

Ben Theriot, of Prarieville, La., a Cajun Navy volunteer,searches for evacuees in Humble, Tues., Aug. 29. "We're trying to do what we can," said Theriot, an engineer whose house near Baton Rouge was flooded in last year's storms. "I had people that I barely knew showing up to help me." less
Ben Theriot, of Prarieville, La., a Cajun Navy volunteer,searches for evacuees in Humble, Tues., Aug. 29. "We're trying to do what we can," said Theriot, an engineer whose house near Baton Rouge was flooded in ... more
Photo: EDMUND D. FOUNTAIN, NYT
Top: Floodwaters from the Addicks Reservoir inundate a neighborhood off North Eldridge Parkway in the aftermath of Hurricane Harvey. Above: Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos with the Cajun Navy after their rescue Tuesday just north of FM 1960. less
Top: Floodwaters from the Addicks Reservoir inundate a neighborhood off North Eldridge Parkway in the aftermath of Hurricane Harvey. Above: Shelly Jones gets help carrying her dogs out of the boat belonging to ... more
Photo: Karen Warren, Staff Photographer
Members of the volunteer é’Cajun Navyé“ outside the RV serving as their mobile command station during rescue operations in Humble, Texas, Aug. 29, 2017. With little formal organization, the Cajun Navy has come to the rescue in previous disasters, from Hurricane Katrina in 2005 to catastrophic floods in south-central Louisiana last year. (Edmund D. Fountain/The New York Times) less
Members of the volunteer é’Cajun Navyé“ outside the RV serving as their mobile command station during rescue operations in Humble, Texas, Aug. 29, 2017. With little formal organization, the Cajun Navy ... more
Photo: EDMUND D. FOUNTAIN, STR
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto River, just north of 1960, Tuesday, Aug. 29, 2017, in Houston. less
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto ... more
Photo: Karen Warren, Houston Chronicle
Joe Henley tries to get his dog, Bubba, out of the boat of Josh Mtanyos, with Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto River, just north of 1960, Tuesday, Aug. 29, 2017, in Houston. Henley was trying to find his other two dogs that are missing in the floods. less
Joe Henley tries to get his dog, Bubba, out of the boat of Josh Mtanyos, with Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto River, just north ... more
Photo: Karen Warren, Houston Chronicle
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto River, just north of 1960, Tuesday, Aug. 29, 2017, in Houston. less
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto ... more
Photo: Karen Warren, Houston Chronicle
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto River, just north of 1960, Tuesday, Aug. 29, 2017, in Houston. less
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto ... more
Photo: Karen Warren, Houston Chronicle
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto River, just north of 1960, Tuesday, Aug. 29, 2017, in Houston. less
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto ... more
Photo: Karen Warren, Houston Chronicle
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto River, just north of 1960, Tuesday, Aug. 29, 2017, in Houston. less
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto ... more
Photo: Karen Warren, Houston Chronicle
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto River, just north of 1960, Tuesday, Aug. 29, 2017, in Houston. less
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto ... more
Photo: Karen Warren, Houston Chronicle
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto River, just north of 1960, Tuesday, Aug. 29, 2017, in Houston. less
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto ... more
Photo: Karen Warren, Houston Chronicle
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto River, just north of 1960, Tuesday, Aug. 29, 2017, in Houston. less
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto ... more
Photo: Karen Warren, Houston Chronicle
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto River, just north of 1960, Tuesday, Aug. 29, 2017, in Houston. less
Shelly Jones gets help carrying her dogs out of the boat belonging to Josh Mtanyos, with the Cajun Navy, as they were rescued as heavy rains from Tropical Storm Harvey continued filling the the San Jacinto ... more
Photo: Karen Warren, Houston Chronicle
Cajun Navy's Josh Mtanyos hands a cat in a carrier to a man as he helped to rescue flooded residents as heavy rains from Tropical Storm Harvey the San Jacinto River, flooded a neighborhood at Townsen Road just north of 1960, Tuesday, Aug. 29, 2017, in Houston. less
Cajun Navy's Josh Mtanyos hands a cat in a carrier to a man as he helped to rescue flooded residents as heavy rains from Tropical Storm Harvey the San Jacinto River, flooded a neighborhood at Townsen Road just ... more
Photo: Karen Warren, Houston Chronicle

After watching nonstop coverage of the hurricane and the incredible rescues that were taking place, I got in bed at 10:30 on Tuesday night. I had been glued to the TV for days. Every time I would change the channel in an attempt to get my mind on something else for a few minutes, I was drawn right back in.

I finally turned off the TV and picked up my phone to do a quick check of email and Facebook. I read an article about the Cajun Navy and the thousands of selfless volunteers who have shown up to this city en masse. The article explained they were using a walkie-talkie-type app called Zello to communicate with each other, locate victims, get directions, etc. I downloaded the app, found the Cajun Navy channel and started listening.

I was completely enthralled. Voice after voice after voice coming though my phone in the dark, some asking for help, some saying they were on their way. Most of the transmissions I was hearing when I first tuned in were from Houston, but within 30 minutes or so, calls started coming in from Port Arthur and Orange. Harvey had moved east from Houston and was pummeling East Texas.

ZELLO: Hurricane Irma just made a digital walkie-talkie the No. 1 app online

Call after call from citizens saying they were trapped in their houses and needed boat rescue. None of the volunteer rescuers had made it to that area from Houston, but as soon as the calls started coming in, they were moving out, driving as fast as they could into the middle of Harvey.

Holly Hartman, at the dining room table where she helped the Cajun Navy rescue Houstonians after Tropical Storm Harvey. Photo: Dale Dye, Courtesy Holly Hartman

Holly Hartman, at the dining room table where she helped the Cajun Navy rescue Houstonians after Tropical Storm Harvey.

Holly Hartman, at the dining room table where she helped the Cajun...

As I was listening, I quickly figured out that there were a few moderators on the app that were in charge and very experienced in using this method of communication during emergencies. One in particular, Brittney, was giving directions, taking rescue requests, and prioritizing calls and rescues. At one point, she said something that made me realize she's a nurse, so I immediately understood why she was so effective in this situation.

A couple of other women (who were working from other parts of the country, not Houston) who had been taking calls from victims and logging in the information came on the line around 12:30 and said they had to sign off so they could get to bed. They asked if there was anyone who could work through the night to keep taking rescue requests and log them.

I sat up and turned on my light. I timidly pushed the "talk" button and said, "I can."

READ ALSO: How to get around Houston's horrible traffic jams after Harvey

An early post on Facebook. Photo: Barbara Pace Mumphrey

An early post on Facebook.

An early post on Facebook.

I GOT a two-minute "training" session and a "good luck!" One of the key suggestions of the training session was that when I received a rescue request, I needed to try to call the person making the request if possible to get more details and to ensure that it was a legitimate request. Unfortunately, there had been reports of people calling in fake rescue requests and then robbing the volunteers when they arrived. Despicable.

A flooded car along Kuykendahl Road, Tue., Aug. 29. Photo: EDMUND D. FOUNTAIN, NYT / NYTNS

A flooded car along Kuykendahl Road, Tue., Aug. 29.

A flooded car along Kuykendahl Road, Tue., Aug. 29.

After I received each request and had called the person making the request, I was to log their information on a designated website, let the requester know the ID number they'd been assigned and move on to the next call.

Within minutes, I was on the phone with Karen. Karen was in a house in Port Arthur, sitting on her kitchen cabinet with seven other adults, two teenagers and a newborn. The water was almost to the counter tops. I assured here we would get someone to her as soon as we could and told her to stay safe.

READ ALSO: Flooding causes sinkhole on Beltway 8 frontage road

It was 1:15 a.m..

By this time, Cajun Navy rescuers had begun arriving in Port Arthur. They were begging to be let in the water, but the Coast Guard understandably wouldn't grant them permission because the storm was just too strong.

It was gut-wrenching to hear so many calls coming in and having to tell them there was nothing we could do until the storm calmed down a little. The local authorities were doing the best they could, but they were far outnumbered and also unable to get to everyone in the treacherous conditions.

I took several more calls and quickly realized there was no way I could call to verify every request. They were coming in faster than I could type them into the website data bank. I would listen to the request, write down their info and start typing it in. In the time I could enter one request, three more would come in.

I was originally just sitting up in bed with my laptop on my lap, phone in hand and a notepad on my nightstand. Pretty quickly, I moved to my dining room table, plugged in my computer and phone and poured a huge glass of iced tea.

I started out taking notes nice and neat on printer paper. That quickly turned into chaotic scribbles. I was having trouble reading my own handwriting at times.

I got a request from Chad. I had enough time to call him. Trapped in their house, he and his wife had water up to their chests. He told me they were about to go to their attic. I begged him not to do that and told him he had to go to his roof instead. He said there was no way for them to do that. I told him he didn't have a choice. I asked him to keep calling 911, over and over. When we hung up, I texted him other numbers to try — the Coast Guard, the Jefferson County Office of Emergency Management, the Air Force.

It was 2:20 a.m..

I spoke to another woman whose name I can't even remember. I didn't call her directly but we had a few exchanges through the app. She told me she and her kids were sitting on their kitchen counter and needed rescuing, but she was scared to get off the counter when boats arrived because there were snakes in the water in their house.

I took request after request after request. Name...phone number...address...number of adults...number of children...number of elderly...medical conditions. I would then type this information in as fast I could so the dispatchers could send the rescuers out. After submitting the information, I received an ID number that I was supposed to relay to the person requesting the rescue. We asked them to remember the number so they could give it to their rescuers when they were finally picked up. We could then mark them safe in the system, avoiding the dilemma of rescuers looking for people who had already been saved by someone else.

It was around this time that I heard one of the dispatchers who goes by Goose ping in to our channel to let us know that the Cajun Navy still had no boats on the water. Conditions were still too dangerous. I had mistakenly assumed we had boats in the water by then.

No wonder we had so many people desperately begging for rescue. No one was coming for them.

All night long I had been telling them to "hang on, we'll be there soon." I didn't know I had been lying to them.

Cajun Navy volunteers hash out their final destination as they stopped on Interstate 10 while traveling from Louisiana to Houston, Monday, Aug. 28. Photo: EDMUND D. FOUNTAIN, NYT / NYTNS

Cajun Navy volunteers hash out their final destination as they stopped on Interstate 10 while traveling from Louisiana to Houston, Monday, Aug. 28.

Cajun Navy volunteers hash out their final destination as they...

AROUND 3 a.m., I got a request from a teenage boy in Orange who was screaming so hysterically I couldn't even understand him. I got his phone number and told him I'd call him directly. The second he answered, he was screaming that his brother and cousin were laying in the backyard, unresponsive, possibly electrocuted.

I'm sad to say that I don't even remember this boy's name. I know I asked, but in the conversation that ensued, I forgot it. He told me that his brother and cousin had been near a shed in the backyard for over an hour, but they couldn't get to them because of the rising water and the storm.

I told him they needed to try to get to them and that I was getting help to them as soon as I could. I think he thought I was an official 911 dispatcher, as he kept asking me why the police weren't there. He said he'd called 911 "at least 100 times" and they never answered. He then told me he and another cousin were going to go outside to check on the young men in the yard. I told him I'd wait. He put the phone down. I listened. And waited.

I could hear panicked conversation and rain and sloshing water. After a very long seven or eight minutes, I suddenly heard the most blood-curdling, gut-wrenching screaming I've ever heard.

I heard a little girl screaming at the top of her lungs.

I heard a boy's voice screaming "no, no, no, noooooo" over and over.

I felt nauseated. And completely helpless. I started screaming into the phone..."Hello! Hello!"

He picked up the phone.

"Miss, I think my brother is dead! He's not breathing! Should we do CPR? What do we do?"

"Do you know CPR? Yes, try CPR!"

"What do I do?" he screamed.

Before I could answer, he dropped the phone again. More chaos. More screaming. Guttural. Desperate. He came back to the phone.

"He's not moving! I don't know what to do! I have to go get my cousin!"

I asked him to put his mom on the phone.

A woman's voice. Much calmer than I expected.

"Hello?"

"Hello, I'm Holly. I'm trying to get some help to you. Tell me what's going on. What's your name?"

"Margaret. My boy is gone! His lips are purple. He's gone."

I desperately searched for words.

Cajun Navy's Josh Mtanyos swings through a flooded a neighborhood at Townsen Road just north of 1960, Tues., Aug. 29. Photo: Karen Warren, Houston Chronicle / @ 2017 Houston Chronicle

Cajun Navy's Josh Mtanyos swings through a flooded a neighborhood at Townsen Road just north of 1960, Tues., Aug. 29.

Cajun Navy's Josh Mtanyos swings through a flooded a neighborhood...

"Margaret, I'm so very sorry. Where is your nephew?"

"He's in the yard. They're trying to get him now."

"Who else is with you?"

Margaret told me she was with her other kids — four or five people total, if I remember correctly — and that they were up to their waists in water.

"My boy is on the table." Her voice cracked. "They're out there trying to get my nephew now. Please get someone here, please," she begged.

I assured her we would. But I knew there were still no boats in the water.

I hung up and called the Coast Guard number we'd been given. They answered immediately, but the person I was talking to was actually in Houston. I quickly explained who I was and what I had just experienced and gave them Margaret's address. He assured me he would let the Coast Guard in Orange know about the family.

I hung up and called the Jefferson County Office of Emergency Management. Shockingly, he answered on the second ring.

"Address!" he barked.

"Hi, my name is Holly Har-"

"I know why you're calling! Where are you?"

"I don't need help. I'm working with the Cajun Navy dispatchers and need someone to get to a family I just spoke with."

I explained the situation and gave them the address

"Jesus Christ," he sighed. He sounded completely defeated.

"I know you're doing the best you can. Just please get to this family."

"We will. We're going to have a lot of deaths here tonight."

I got up from my table to take a break and try to process what had just happened. I had just interjected myself into a family's most horrible moment. As quickly as I had crossed paths with them, they were gone. A 15-minute interaction that will stay with me for a lifetime.

I went to the bathroom, refilled my tea, walked around a bit, thinking to myself, "What are you doing?? You're not qualified to do this!"

Then I sat back down and went back to it.

Joe Henley tries to get his dog, Bubba, out of the boat of Josh Mtanyos, a Cajun Navy volunteer, just north of 1960, Tues., Aug. 29. Photo: Karen Warren, Staff Photographer / @ 2017 Houston Chronicle

Joe Henley tries to get his dog, Bubba, out of the boat of Josh Mtanyos, a Cajun Navy volunteer, just north of 1960, Tues., Aug. 29.

Joe Henley tries to get his dog, Bubba, out of the boat of Josh...

AROUND 4:30, I got a request from a young woman in Beaumont who was trying to get her 87-year-old grandfather, Chester, rescued in Port Arthur. He lived alone and had water to his shins. I couldn't hear her well through the app, so I called her directly. She told me her grandfather couldn't get through to 911 and she was really scared for him. I assured her someone would get to him and that he would be okay.

There were still no Cajun Navy boats in the water.

At some point, I'd heard another volunteer mention that a woman who lived on Sassine Street and her three kids had retreated to their attic to escape rising waters. I pinged in and told the volunteer that she had to call the woman back and tell her to get out of the attic and go to her roof.

The volunteer came back on the line and said that she'd talked to the woman, but she refused to move because her kids couldn't swim. I asked if she had anything they could use to break through the attic roof. No.

We got word around 7:30 a.m. Wednesday — seven hours after the first calls stared coming in from Port Arthur — that the Cajun Navy had finally been let in the water. Reports of rescues started coming in. I was finally able to mark one of my cases "safe."

I kept taking calls all day Wednesday. Throughout the night and into Wednesday, I was texting with Chad and Shaundra, the young woman calling for her grandfather.

Chad told me the water was almost to their necks and they still hadn't gone to the roof.

Shaundra texted me repeatedly, asking why no one had gotten to her grandfather. The water had risen to his chest. I promised her someone would get there.

The rescues and the "safe" status reports were increasing by the hour. I turned on the TV at some point and started seeing scenes of the same people and situations I was listening to on the app.

Around 10:00, I heard one of the rescuers who uses the handle Cowboy ask about "the woman in the attic on Sassine Street." I immediately pinged in, and Cowboy asked me to call him. He wanted the address again and wanted to know when we had last heard from the lady in the attic. I told him I had no idea because the volunteer who originally took that call had signed off.

Cowboy said he was a few minutes away from Sassine St. and didn't know if he should request another boat with "breaching equipment" or a helicopter. I suggested helicopter, hoping the family had somehow made it to the roof.

The calls for rescue were slowing down but continued to come in at a steady pace. Every 20 to 30 minutes, I'd remind the rescuers that Chester, Shaundra's grandfather, still needed a rescue from 19th Street. And I kept telling Shaundra that they would get there.

Flooded cars in a Humble apartment complex parking lot visited by volunteer rescuers with the Cajun Navy, Tue., Aug. 29. Photo: EDMUND D. FOUNTAIN, NYT / NYTNS

Flooded cars in a Humble apartment complex parking lot visited by volunteer rescuers with the Cajun Navy, Tue., Aug. 29.

Flooded cars in a Humble apartment complex parking lot visited by...

She finally said she was just going to get in the car and drive from Beaumont to Port Arthur to get him herself. I told her to be careful and let me know she made it. 20 minutes later she texted me to say that they'd been stopped by flood waters and couldn't get there. She told she was afraid he was going to die.

Around 11:30, I realized I hadn't heard Cowboy on the line with a report about Sassine Street. I asked on the app if we had had any update.

My phone rang. It was Cowboy.

"We got to Sassine. It's confirmed."

"Confirmed?" I frantically asked. "Confirmed what? What does that mean? Does that mean they're dead?"

"Yes. Water past the roof. They never left the attic. We sent divers in."

I thanked him for letting me know and off he went to the next rescue.

My texts with Shaundra. Photo: Used By Permission.

AT 3:02 p.m., I got a text from Shaundra that said "[Mam], I thank you so much. He is on his way to the bowling alley." A few minutes later: "Thank you [mam]. He was on a boat at first now he is on a truck."

I let out a huge sigh of relief. I think I may have actually said "Thank you, God" out loud.

I texted Chad at 5:30 p.m. to see if he was safe. I didn't hear back from him until 7:30 Thursday morning: "We are safe now."

I pinged Goose to ask him if he knew if Margaret, the mother who lost her son and her nephew, and her other kids had been rescued. He said they had.

I have texted Margaret to ask her how she was doing. I still haven't heard from her. I've been scanning reports from Orange to see if her family has been mentioned. I need to know the names of the two boys who died.

At 6 p.m. Wednesday, I closed my laptop. I'd been awake 34 hours and wasn't even tired. I was emotionally drained, but there was no way I could've slept right then. I thought back on the last day and half and couldn't believe what I had just heard and experienced.

Even as I type this, it seems surreal. I don't know how police officers and firefighters and 911 dispatchers and EMTs do this every day.

What I do know: I am grateful beyond measure that they do it.

And thank God for the Cajun Navy. How many more people would be dead today if not for our first responders and the thousands of volunteers here? What if a flood of this magnitude had happened 20 years ago, before cell phones and social media? The deaths would be in the hundreds.

I saw a meme on Facebook today that said, "Someone needs to erect a statue honoring the regular dude with a bass boat." It was meant to be funny, but it's actually spot-on.

On Thursday, I got another text from Shaundra. It was a picture of her and her grandfather. I sent a selfie back to her and told her I was going to find a way to meet them in person someday. I really hope I get to do that.

On Thursday, Shaundra texted me this photo of her and her grandfather, safe and sound. Photo: Used By Permission

On Thursday, Shaundra texted me this photo of her and her grandfather, safe and sound.

On Thursday, Shaundra texted me this photo of her and her...

Holly Hartman has been a teacher for 22 years. She currently teaches journalism and is the yearbook and newspaper adviser at Memorial High School in Spring Branch ISD. This story originally appeared as a post on her Facebook page.

Bookmark Gray Matters. Then pour yourself a huge glass of iced tea.

11 Sep 18:24

Cop Cleans Out Wallet Of Unlicensed Hot Dog Vendor Just Because He Can

by Tim Cushing

No job too small. That's asset forfeiture for you. But small jobs are the safest jobs when it comes to the government keeping someone else's property. Keeping the seizures small makes it less likely they'll be challenged by those whose property was taken.

The year-end totals may look impressive, but behind those totals are lots and lots of tiny cash grabs. In the cases where agencies' forfeitures have been itemized and examined (which is a rarity -- there's a ton of opacity in forfeiture reporting), the largest number of forfeitures are for the smallest amounts, usually well under $1,000.

Officers take what they can because they can. A video going viral on Twitter shows a California police officer rummaging through the wallet of an unlicensed street vendor and taking the vendor's cash and debit card. A citation and a shutdown of the hot dog stand should have been enough. But it wasn't. Officer Sean Aranas decided -- with the only citation handed out during the football game -- to take the man's earnings.

The backlash has been swift. A crowdfunding page for the vendor -- identified only as "Juan" -- has already raised more than $30,000. A petition demanding the firing of Officer Aranas has gathered 11,000 signatures. And it's gotten the attention of his employer:

UC Berkeley spokesman Dan Mogulof offered a brief statement Sunday evening: “We are aware of the incident. The officer was tasked with enforcing violations related to vending without a permit on campus. UCPD is looking into the matter.”

The UCPD says the money taken from the vendor has been booked into evidence. If so, it's just another way the PD can keep Juan's money, even after he's paid his fine and obtained a permit. This can happen even if the citation is dropped. Money booked into evidence just stays there unless someone's willing to fight uphill against a system designed to keep citizens from their seized property. It's not quite as difficult or expensive as fighting a forfeiture in court, but it's still an arduous process involving a lot of people (cops, prosecutors) with zero interest in returning people's property.

There will be a number of people pointing out Juan should have just secured a permit. True, that would have prevented this from happening, but it's a bit like saying cops are justified in taking cash from anyone at any time if a law has been violated. Juan's violation is a misdemeanor. It's like saying a cop should be able to take cash/debit cards from people who've been cited for traffic violations. It's unnecessarily punitive and far more of a punishment than a misdemeanor should warrant.

The outrage won't budge the needle at the University of California Police Department. Everything done here likely has a corresponding policy allowing it. Calling it "evidence" rather than a forfeiture may make it feel a bit more legit, but it's still just policy-enabled theft that allows the government to stack punishment on top of punishment and possibly enrich itself in the process.



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11 Sep 11:22

Thanks To The DEA And Drug War, Your Prescription Records Have Zero Expectation Of Privacy

by Tim Cushing

How private are your medical records? You'd think they'd be pretty damn private, considering Congress specifically passed a law regulating the disclosure of these sensitive records. Some states feel the same way, extending even greater privacy protections to things like prescription records. Not only are medical entities prevented from passing on sensitive info without patients' consent, local law enforcement agencies aren't allowed to obtain third-party records like prescription data without a warrant.

Seems pretty locked down, but as Leslie Francis and John Francis point out at the Oxford University Press blog, federal law enforcement agencies have undone both Congressional protections and state protections.

Utah’s requirement for a warrant conflicts with the federal Controlled Substances Act (CSA), which permits the DEA to issue administrative subpoenas for information relating to individuals suspected of violations of the CSA. According to a US Department of Justice report, administrative subpoenas may be issued by the agency without judicial oversight and without the showing of probable cause that would be required for a warrant.

When states provide more protections to residents than the federal government's willing to grant, it's often the state laws that lose, especially when controlled substances are involved. Such is the case here, at least so far. The DEA demanded the release of patient info/prescription records without a warrant, something forbidden by Utah law. The state objected to the DEA's records demand. The DEA responded by flexing its considerable federal muscle.

The DEA countered with the Supremacy Clause: valid federal laws are superior to conflicting state laws.

The court ended up agreeing with the DEA: patient info and prescription records aren't afforded additional privacy protections, no matter what HIPAA/state laws have to say about the matter. The court's rationale was that prescription medicine is part of a "closely regulated" industry, which lowers the bar for government access. This lumps pharmacies and hospitals in with pawn shops, gun dealers, and adult filmmakers.

The Francis' point out this reading of close regulation and the DEA's Supremacy assertions is incredibly broad. It proposes nearly no limits to what the government can grab without a warrant. While the court discussed the possibility this should be limited to prescriptions containing controlled substances, it drew no precedential conclusions that may have shortened the government's reach.

And, indeed, there are no court decisions that grant reasonable privacy expectations to records most members of the public feel should be accessed only by them and their healthcare providers. The blog points to the last Supreme Court ruling related to patient privacy -- one that's nearly 40 years old at this point. All the Whalen v. Roe decision did was indicate the Court believed New York state's statutory privacy protections were enough and that there was no need to drag the Fourth Amendment into this. As we can see from the DEA's actions and assertions, statutory privacy protections mean nothing, not if the federal government can step in and override protections put in place by state and local governments.



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09 Sep 23:39

Equifax Security Breach Is A Complete Disaster... And Will Almost Certainly Get Worse

by Mike Masnick

Okay, chances are you've already heard about the massive security breach at Equifax, that leaked a ton of important data on potentially 143 million people in the US (basically the majority of adults in America). If you haven't, you need to pay more attention to the news. I won't get into all the details of what happened here, but I want to follow a few threads:

First, Equifax had been sitting on the knowledge of this breach since July. There is some dispute over how quickly companies should disclose breaches, and it makes sense to give companies at least some time to get everything in order before going public. But here it's not clear what Equifax actually did. The company has seemed almost comically unprepared for this announcement in so many ways. Most incredibly, the site that Equifax set up for checking if your data has been compromised (short answer: yeah, it almost certainly was...) was on a consumer hosting plan using a free shared SSL certificate, a funky domain and an anonymous Whois record. And, incredibly, it asked you for most of your Social Security Number. In short, it's set up in a nearly identical manner to a typical phishing site. Oh and it left open the fact that the site had only one user -- "Edelman" -- the name of a big PR firm.

Not surprisingly, it didn't take long for various security tools to warn that the site wasn't safe.

And, when Equifax pushed people to its own "TrustedID" program to supposedly check to see if you were a victim of its own failures... it just started telling everyone yes no matter what info they put in:

So, yeah, what the hell did Equifax do during those six weeks it had to prepare? Oh, well, a few of its top execs used the delay to sell off stock, which may put them in even more hot water (of the criminal variety). Also, just days before it revealed the breach, and long after it knew of it, the company was talking up how admired its CEO is. This is literally the last tweet from Equifax prior to tweeting about the breach (screenshotted, because who knows how long it'll last):

I can't see any scenario under which Smith keeps his job. And it seems likely that many other execs are going to be in trouble as well. Beyond the possible insider trading above, there's already scrutiny on its corporate VP and Chief Legal Officer, John J. Kelley, who made $2.8 million last year and runs the company's "security, compliance, and privacy" efforts.

And despite six weeks to prepare for this, the following was Equifax's non-apology:

We apologize to our consumers and business customers for the concern and frustration this causes.

That's a classic non-apology. It's not apologizing for its own actions. It's not apologizing for the total mess it's created. It's just apologizing if you're "concerned and frustrated."

Oh, and did we mention that the very morning of the day that Equifax announced the breach, it tweeted out about a newsletter it published about how "safeguarding valuable customer data is critical." Really (again, screenshotted in case this disappears):

What the fuck, Equifax? Should we even mention that Equifax has been a key lobbying force against data breach bills? Those bills have some problems... but, really, it's not a good look following all of this.

And while there was some concern that signing up to check to see if you were a victim (again: look, you probably were...) would force you out of being a part of any class action lawsuit, that's since been "clarified" to not apply to any class action lawsuits over the breach. And you better believe that the company is going to be facing one heck of a class action lawsuit (a bunch are being filed, but they'll likely be consolidated).

That's all background of course. What I really wanted to discuss is how this will almost certainly get worse before it gets better. More than twelve years ago, I wrote that every major data breach is later revealed to be worse than initially reported on. This has held true for years and years. The initial analysis almost always underplays how serious the leak is or how much data is leaked. Stay tuned, because there's a very high likelihood we'll find out that either more people were impacted or that more sensitive information is out there.

And that should be a major concern, because what we already know here is stunning. As Michael Hiltzik at the LA Times noted, this is the mother lode of data if you want to commit all sorts of fraud:

The data now at large includes names, Social Security numbers, birthdates, addresses and driver’s license numbers, all of which can be used fraudulently to validate the identity of someone trying to open a bank or credit account in another person’s name.

In some cases, Equifax says, the security questions and answers used on some websites to verify users’ identity may also have been exposed. Having that information in hand would allow hackers to change their targets’ passwords and other account settings.

Other data breaches may have been bigger in terms of total accounts impacted, but it's hard to see how any data breach could have been this damaging. For over a decade, we've pointed out that credit bureaus like Equifax are collecting way too much data, with zero transparency. In fact, back in 2005, we wrote about Equifax itself saying that it was "unconstitutional and un-American" to let people know what kind of information Equifax had on them. The amount of data that Equifax and the other credit bureaus hold is staggering -- and as this event shows, they don't seem to have much of a clue about how to actually secure it.

At some point, we need to rethink why we've given Equifax, Experian and TransUnion so much power over so much of our everyday lives. You can't opt-out. They collect most of their data without us knowing and in secret. You can't avoid them. And now we know that at least one of them doesn't know how to secure that data.



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09 Sep 23:39

Equifax Is Proving Why Forced Arbitration Clauses Ought to Be Banned, Just Like the CFPB Wants to Do

by David Dayen

Equifax, the credit reporting bureau that on Thursday admitted one of the largest data breaches in history, affecting 143 million U.S. consumers, is maneuvering to prevent victims from banding together to sue the company, according to consumer protection advocates and elected officials.

Equifax is offering all those affected by the breach a free, one-year credit monitoring service called TrustedID Premier, which will watch credit reports for suspicious activity, lock and unlock Equifax credit reports, scan the internet for Social Security numbers, and add insurance for identity theft. But the service includes a forced arbitration clause, which pushes all disputes over the monitoring out of court. It also includes a waiver of the right to enter into a class-action lawsuit.

This shields TrustedID Premier from legal exposure, instead relying on a process that’s very favorable to corporate interests. At first the arbitration clause was a non-negotiable feature of the contract. Now Equifax says you can opt out, but only if you contact them in writing within 30 days.

There’s already a proposed class-action suit against Equifax itself, arguing that the company failed to protect consumer data and exposed hundreds of millions to identity theft. But if you can’t sue over the credit monitoring but only the credit breach, it could significantly lessen the damages at issue. Also the language of the arbitration clause is fairly broad, saying that those who agree to the credit monitoring “will be forfeiting your right to bring or participate in any class action … or to share in any class awards, even if the facts and circumstances upon which the claims are based already occurred or existed.” Presumably some defense lawyer is thinking up a clever way to apply that to the Equifax breach itself.

Equifax’s terms of service also include an arbitration clause, which is almost identical to the one in the credit monitoring agreement. It also includes an opt-out, but it’s not clear when the clock starts on that, since people are not informed of Equifax monitoring their credit in the first place. “Look up ‘shameless.’ There’s a new first definition: Equifax,” said Public Citizen president Robert Weissman in a statement.

In short, nobody asked Equifax to monitor their credit and then let hackers steal their data. But if these same victims have a problem with the company’s remedy for this massive breach, they have to do all the work to make sure they’re allowed to sue.

This has inspired fury, to put it mildly. New York Attorney General Eric Schneiderman has asked Equifax to take down the arbitration clause entirely, calling it “unacceptable and unenforceable.”

Sen. Sherrod Brown, D-Ohio, ranking Democrat on the Senate Banking Committee, did the same. “It’s shameful that Equifax would take advantage of victims by forcing people to sign over their rights in order to get credit monitoring services they wouldn’t even need if Equifax hadn’t put them at risk in the first place,” he said in a statement.

The breach, which includes names, Social Security numbers, birthdates, and driver’s license numbers, encompasses roughly three-quarters of all people with credit reports in the U.S. Even to check to see if you’re a victim of the breach, you have to give Equifax the last six digits of your Social Security number, which, given their track record, is a bit unnerving.

These arbitration clauses have been deemed so harmful to consumers that the Consumer Financial Protection Bureau issued rules to ban the waiver of class-action rights within them. That rule was finalized in July, but doesn’t take effect on contracts until next March. This arbitration clause, in other words, would be illegal if it were presented in consumer contracts in the future.

That CFPB rule is now under threat from Congress, and the Equifax controversy is now at the heart of that. Under a law called the Congressional Review Act, Congress has 60 legislative days from the finalizing of an agency rule to formally disapprove of it. Since President Donald Trump’s inauguration, Congress has used this 14 times to kick out rules they didn’t like. And a disapproval of the CFPB arbitration rule has already passed in the House.

However, it has run into some resistance in the Senate. Some Republicans, like Sen. Lindsey Graham, R-S.C., have already announced their support for the arbitration rule, and others have wavered. With the Equifax breach showing what arbitration clauses mean in practice, Republicans may find the CFPB rule too hot to touch. “This is just one more example why the Consumer Financial Protection Bureau’s rule banning forced arbitration is badly needed to protect the rights of working Americans,” Brown said.

Equifax also faces investigation because three of its top managers sold $1.8 million in company stock after they learned of the data breach but before the company released that information to the public.

“Equifax just gave 143 million reasons why Americans should tell Congress not to take away their day in court when companies like Equifax abuse their trust,” said Lauren Saunders, associate director of the National Consumer Law Center.

Top photo: Equifax Inc. offices in Atlanta.

The post Equifax Is Proving Why Forced Arbitration Clauses Ought to Be Banned, Just Like the CFPB Wants to Do appeared first on The Intercept.

09 Sep 12:10

Pigeon Noir

by Reza

09 Sep 10:48

Is This Triple-Hurricane Image the Sign of the New Norm?

by Lina Zeldovich

There are currently three hurricanes swirling over the Atlantic Ocean, and meteorologists are saying they have never seen anything like this in modern history. Coming right on the heels of Harvey, the deadly trio of Irma, Jose, and Katia are threatening to hit land at the same time. Multiple hurricanes had been observed over the Atlantic in the past, but they’ve never threatened to make landfall simultaneously. It seems that after a relative “hurricane lull,” the Atlantic is once again showing its wrath.

Scientists noted that hurricane activity rises and falls over the years. For example, in the United States, the 1940s and 1960s hurricanes were more destructive than those in the 1970s and 1980s, but then they picked up again in the 1990s and in the new millennia, when Andrew decimated Florida and Katrina swamped New Orleans. The reason for these spikes and lulls, however, remains largely a mystery. There are many factors involved, including climate change, pollution, and the fluctuation in ocean currents, which also affect the water temperature. But the warmer the ocean is, the more powerful and destructive hurricanes it can produce.

Based on global climate change predictions, a recent NOAA model projected that while the overall hurricane activity may actually decrease in the future, the frequency of the category 4 and 5 storms may double by the end of the 21st century. Given that the 2016 was the warmest year on record, according to NOAA and NASA, the scary swirling trio may indeed be a sign of the new normal, unless we find a way to cool off our oceans, and do so fast.

The post Is This Triple-Hurricane Image the Sign of the New Norm? appeared first on JSTOR Daily.

07 Sep 19:49

Elizabeth Warren Jumps on Board Bernie Sanders’s “Medicare for All” Bill

by Ryan Grim

Sen. Elizabeth Warren on Thursday announced her support for an upcoming bill from Vermont’s independent Sen. Bernie Sanders.

Sanders said in March that he would follow through on his long-held support for single-payer insurance by introducing a bill extending Medicare-like coverage to achieve universal health care. The bill, which is still being crafted, is due to be unveiled Wednesday

Warren, a Democrat from Massachusetts, shared the news with her supporters in an email that began, “I’m co-sponsoring Bernie’s Medicare-for-All bill.”

Warren follows California Sen. Kamala Harris, who recently backed the Sanders bill at an Oakland town hall. The three senators are considered top-tier contenders for the 2020 Democratic presidential nomination, should they decide to run.

Warren’s support of the bill unites the two most powerful members of the party’s left flank, which used to be called the “Warren wing” before being rechristened the “Sanders wing,” given his surprisingly close contest with Hillary Clinton in the 2016 election.

To have Sanders, Warren, and Harris on the same bill sends a signal that this is the central Democratic vehicle for health care policy reform going forward, which stretches the contours of a debate that previously excluded single-payer.

“There’s a lot of potential to really grow this idea if you have six or seven Democrats all talking about why we need a single-payer system,” said Josh Miller-Lewis, a spokesperson for Sanders, on the Warren endorsement. “This is a big moment.” Miller-Lewis added that the bill was still being written.

Signing on to a single-payer bill with momentum may seem like an obvious political move for Warren, but it’s not that simple. Warren has achieved stature in Congress; signing on to a colleague’s bill rather than drafting one to her own specifications is a concession to Sanders. The move is a nod to Sanders’s elevation within the progressive movement.

Indeed, embedded in Warren’s letter to supporters is a note that Sanders’s bill is “one way” to address health care policy. “Medicare for All is one way that we can give every single person in the country access to high quality health care,” she wrote. “Everyone is covered. Nobody goes broke paying a medical bill. Families don’t have to bear the costs of heartbreaking medical disasters on their own.”

Warren has also had a complicated past political relationship with single-payer schemes. During her 2012 campaign for the Senate, her opponent, Republican Scott Brown, criticized her for backing single-payer, while Warren’s leftist primary opponent criticized her for not backing it.

“I made a clear statement I’m the only candidate in this race who supports single-payer,” Marisa DeFranco, Warren’s challenger from the left, told MassLive.com. “No one disabused me of that notion.” Warren never explicitly backed single-payer in that campaign, instead saying that the focus needed to be on defending the Affordable Care Act, Barack Obama’s signature health care reform law.

Brown, however, based his charge of Warren’s support for single-payer on a chapter in a 2008 book she co-authored with Deborah Thorne, a University of Idaho professor. In the book, “Health at Risk: America’s Ailing Health System — and How to Heal It,” edited by Jacob Hacker, who would later become known as the father of public option, they wrote: “We approach the health care debates from a single perspective: maintaining the financial stability of families confronting illness or injury. The most obvious solution would be universal single-payer health care.”

Thorne and Warren, then a professor at Harvard Law School, added that such a solution may be “politically unacceptable.”

It’s not anymore.

Top photo: Sen. Elizabeth Warren, D-Mass., speaks at a news conference on the Social Security system in Washington on Feb. 16, 2017.

The post Elizabeth Warren Jumps on Board Bernie Sanders’s “Medicare for All” Bill appeared first on The Intercept.

07 Sep 18:06

Bill Introduced That Would Make Arrested Protesters Pay Police Overtime, Gov't Expenses

by Tim Cushing

When faced with First Amendment activity they don't care for, some legislators attempt to gerrymander this right until it only contains the speech they like. This can take the form of cyberbullying bills, hate speech legislation, and, lately, anti-protesting laws.

The problem with these efforts is they routinely run afoul of the Constitution. Some do better than others trying to stay within the confines of what can actually be controlled by the government, but in most cases, the proposed laws are badly-written rush jobs attempting to paper over the current issue du jour.

Another anti-protesting law is in the works, prompted by oil pipeline demonstrations both in North Dakota and, closer to home, in the district of the state rep introducing the bill, Scott Martin of Lancaster County, Pennsylvania.

Under the terms of the bill, “a person is responsible for public safety response costs incurred by a State agency or political subdivision as a result of the State agency’s or political subdivision’s response to a demonstration if, in connection with the demonstration, the person is convicted of a felony or misdemeanor offense.”

In other words, they could be on the hook for costs, such as police overtime, medical or emergency response, or other basic public services associated with protests. Whatever felony or misdemeanor offense the protester was convicted of would come with its own independent penalty.

Because the state's laws concerning damage to property and the usual assortment of rioting-related charges apparently isn't enough to deter people from complaining about stuff in Martin's district, a new law must be put in place to hold demonstrators responsible for the actions of others, as well as anything the state might want to add to the final post-protest invoice.

The bill cites -- in support of its First Amendment-chilling efforts -- the millions of dollars spent by government agencies in response to the Dakota Pipeline protests. It's a slick move, one that might convince more bottom-line-oriented legislators to hop aboard despite the obvious Constitutional implications.

In practice, this law could saddle someone picked up during a protest for blocking a sidewalk (a misdemeanor) with a sizable chunk of the costs incurred by the government during the protest. This will discourage most people from showing support for any controversial cause or, indeed, for any cause at all. Any protest of any size will result in additional expenditures by government agencies, all of which can now be passed on directly to the protest's participants.

And it won't be spread evenly among participants. The costs will be borne only by those arrested, which creates an incentive to arrest as many protesters as possible to offset projected expenses. This, in turn, will push prosecutors towards ensuring even the most bullshittiest of charges sticks, as they'll have to answer to lawmakers waving ledger books filled with red ink if they don't.

Sure, this bill won't survive a Constitutional challenge, but someone's going to have to spend their own money to correct the Pennsylvania government's error. Hopefully, the bill will get laughed out of the legislature immediately -- especially since Rep. Martin's intentions may be less than honorable.

DeSmog Blog notes that Martin has close ties to pipeline lobbyists. Prior to joining the Pennsylvania Senate, Martin worked for a firm called Community Networking Strategies. CNS is a subsidiary of the lobbying firm, McNees, Wallace & Nurick — which lobbies for Gulf Oil Ltd, Industrial Energy Consumers of Pennsylvania, and Sunoco Logistics.

If it does somehow become law, it will be a statewide embarrassment and a vehicle for government abuse. And it will give the state the ability to rob Peter twice to pay Officer Paul's protest-related overtime.



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07 Sep 18:05

South Park: The Fractured but Whole's difficulty slider changes the colour of your skin

Ubisoft's comedy RPG South Park: The Fractured but Whole features various levels of difficulty, from easy to very difficult, much like most games. What's different though is the difficulty affects the colour of your character's skin.

During the character creation section of the game, which you can see in the video below (skip to the five minutes and 40 seconds mark), you select the difficulty of the game. What's interesting is the easier the difficulty, the lighter your character's skin. Conversely, the harder the difficulty, the darker your character's skin. It means if you want to play The Fractured but Whole on a harder than normal difficulty, you have to play as a person of colour.

During the process, South Park stalwart Eric Cartman will comment: "Don't worry, this doesn't affect combat. Just every other aspect of your whole life."

Our Aoife Wilson and Chris Bratt, who captured the gameplay in the video, asked Ubisoft developers about this feature during a recent hands-on event. They were told the difficulty of the game affects the amount of money you receive and the way other characters speak to you throughout the course of the game. It is, quite clearly, a social commentary on racism in modern society, and as far as video games go, a pretty effective one.

Later in the game, The Fractured but Whole asks you to choose your character's gender. In a conversation with South Park school counsellor Mr Mackey (the "drugs are bad MKAY" guy), you must choose from three options: male, female and other. In previous South Park game A Stick of Truth, you had to play as a boy.

Our Aoife and Chris picked female. Mr Mackey ums and ahs before calling your parents, who reinforce the decision.

It turns out, if you pick a non-male character, Ubisoft will use the conversation with Mr Mackey as a smart retconning of The Stick of Truth.

"So the whole King and Stick of Truth thing, she was actually a girl the entire time?"

Mr Mackey then asks you to clarify exactly what you mean by a girl. You're then asked to select whether you identify as cisgender or transgender.

Aoife and Chris picked transgender, and Mr Mackey once again calls your parents. "It still tracks with The Stick of Truth, yes it does. She was definitely a girl the whole time. Yes of course. I get it."

You can see all this play out in the video below, from the 44 minute mark.

So there you have it. South Park the video game very much reflecting the tone and approach of South Park the TV show.