That's not to say it's perfect. As with the original USA Freedom Act, the reforms only go so far, and it leaves much to be desired. There are also some big and dangerous loopholes that are quite problematic. As some have noted, there's some good, bad and ugly in the bill.
However, if this bill moves forward it still would be a very big step forward and a significant effort to push back on the intelligence community's domestic surveillance efforts. There's still a process that it needs to go through, including getting approved by the full Senate (the rumor is it may skip the whole committee markup/approval process), and then getting reconciled with the House version (oh, yeah, and getting the President to sign it). Anywhere along the way, there may be efforts to water it down, as happened with the House bill. However, given all the negotiations that we've heard went into this, there's at least some belief that something very close to what was introduced today has a real chance -- and that's a good thing. This bill also has strong bipartisan support, including support by some powerful Senators who rarely agree on much. That's a good sign.
Even if you think -- as we do -- that much more needs to be done, there are reasons to support this bill as a stepping stone in the right direction and real pushback on the ability of the NSA to do mass surveillance.
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Hi. My name is Jen... and I was once a Congressional staffer who knew so little about Internet policy that I had no idea how little I knew about Internet policy. (I think this is where you're supposed to supportively say, "Hi, Jen," and reassure me that this is a safe space for me to continue my embarrassing confession. Because it gets worse.)
In late 2010, when my former boss -- U.S. Senator Ron Wyden -- announced that he was putting a hold on the Combating Online Infringement and Counterfeits Act (COICA) – the predecessor to PIPA and later, SOPA -- I not only didn't know how the DNS system worked, I'm not sure I knew what infringement meant. (I'm not proud of these things, but they're true.)
If my boss hadn't involved himself in this issue, odds are I would never have heard of it and, heck, if by some chance I had learned that the Judiciary Committee had unanimously passed legislation giving law enforcement (what their press release called) "important tools" to go after illegal activity, I probably wouldn't have given the issue any thought beyond thinking it was nice that Democrats and Republicans remembered how to work together.
Worse yet, when my chief of staff stopped by my office to let me know that the Senator would be placing a hold on the legislation, I didn't drop what I was doing to alert reporters or ask one of my deputies to pound out a press release. I'm not sure I even looked up from my computer.
Honestly, it didn't occur to me that anyone would consider what my boss did that afternoon news, until I got a Google News Alert that a blog called, Techdirt, had written about it.
Now, in my defense, the above does not mean that I was lazy or willfully ignorant. From the outside, I realize Congress doesn't appear to do anything, but there are so many bills and issues swirling around Capitol Hill at any one time that it's a challenge just to stay on top of the sliver of them that pertains to your job. On an average day, Senator Wyden could go from a breakfast forum on health reform, to a committee hearing on tax reform, to introducing legislation on renewable energy, to questioning the forest service on resources for firefighting, before giving a floor speech on NSA surveillance, and that would just be before noon. So, the odds of my being on top of something that happened in a Committee my boss wasn't assigned to -- like the Judiciary Committee -- were slim.
Furthermore, my deputies and I -- as Wyden's communications director -- could barely keep up with all of the questions and requests we got from reporters. We didn't have the time or resources to tweet about everything he did, let alone proactively promote all of his work. I mean, just writing and distributing a press release can take a few hours, coming up with a messaging strategy, educating reporters, planning events and writing the various one-pagers, FAQs, op-eds and speeches needed to support a successful advocacy campaign can take days, weeks, even months and that's if nothing else is going on (which is rarely the case).
The day Senator Wyden put a hold on COICA, was the same day he introduced legislation to amend the Affordable Care Act with Senator Scott Brown. I was getting inundated with questions from reporters and bloggers wanting to understand "why in the hell he'd do such a thing," plus the Democratic caucus wanted us to put out and promote a statement pushing for the repeal of Don't Ask Don't Tell, which had my deputy tied up, in addition to the various other things that tended to make the end of session a sprint.
I didn't jump at the opportunity to publicize my boss's hold announcement, because I didn't know enough about the issue to judge its news value, let alone explain it to reporters or write a quick press release, and I didn't have the time to learn enough about it to do any of those things before the end of the day. So, I told my chief of staff "great" and went back to talking to reporters about health policy.
Again, I'm not proud of the above story, but I was moved to share it, when I read that Techdirt's coverage of the COICA/PIPA/SOPA debate ultimately cost them more than 50% of their advertising revenue and has since forced them to operate at a loss.
I don't want to imagine a tech debate without Techdirt in it.
I can't even begin to imagine how the COICA/PIPA/SOPA debate would have gone without Mike Masnick and Techdirt's coverage.
But I can imagine where I -- personally -- would have been without Techdirt's coverage. All I have to do is close my eyes and remember November 18, 2010. Now, as much as I'd like to tell you that Mike's November post on Ron Wyden's COICA hold changed everything for me, it didn't. One post couldn't make me an expert on Internet issues any more than a single story could have won the debate. But I can say the more I learned about the issues surrounding COICA and later PIPA and SOPA – and the more confident I grew in my knowledge and ability to explain those issues -- the more involved I got, the more press releases, speeches, FAQ's and blogs I wrote in support of Ron's work, the more reporters I talked to, coverage I influenced, and interviews I secured for the senator.
I can also say, I wouldn't have been able to do any of those things (at least not well) without Mike Masnick and the rest of the guys at Techdirt, because they're the guys who taught me tech policy.
That's not to say, I didn't work with really smart people who taught me a lot, I did and they did; but with Techdirt, I never had to ask a stupid question or admit what I didn't know. (I just kept reading.) Techdirt's posts were consistently straightforward, easy to understand and timely. Sure, another site might put together one or two good posts or a definitive explainer, but reading Techdirt every day was like taking a college course on the issues with every new post helping me understand a new aspect of what I'd learned previously. I often found some of the site's shorter posts and illustrative examples the most helpful, because they were the examples I ultimately used to explain the issues to others. For example, I've yet to find a better way to get someone to see the potential harm bills like SOPA and PIPA can do to free speech than pointing out that Universal once tried to blacklist 50 Cent's personal website, a fact I learned from a 6/21/11 Techdirt post, entitled "Did Universal Music Declare 50 Cent's Own Website A Pirate Site?" (Seriously, that story alone helped me convince at least a dozen – non-tech – reporters to write about the issue, not to mention all of the Hill staffers I shared it with.)
Now, I understand that some of you may be tempted to write my experience off as unique (or flame me for asking you to sympathize with Congressional staffers), but I guarantee not having enough hours in the day was not an affliction unique to my experience. I'd also argue that good lobbyists derive less power from campaign contributions than they do from helping tired, overworked, Congressional staffers "understand" complex issues.
Lobbyists are experts at framing their client's positions in ways that sound like non-controversial no-brainers. They're so good at it, that most of them have even been convinced by their own arguments. A seasoned staffer who understands the issue at play will see through the lobbyist's ploy (and realize the offers of assistance aren't really "help"), but there aren't very many seasoned staffers who work on Internet and tech policy. To create those staffers and make the lobbyist's job harder, means helping those overworked staffers learn these issues, with short, easily digestible information that makes the problems with the lobbyists' sales pitch easy to discern. And, speaking from experience, no one is better at that than Techdirt.
Now, one of the sad realities of our political system is the fact that helping for-profit entities maintain the advantages that made them profitable pays a lot more than advocating for the public interest, which – if you're lucky – might yield you a pat on the back. But just because something isn't done for the money, doesn't mean those who do it don't have to earn a living. Saving the Internet shouldn't force Mike's staff to take pay cuts or his kids to go hungry.
If you care about a free and open Internet, you want Techdirt to be at full strength in the Net Neutrality debate. You want them to be educating more lawmakers and their staffers (like my former self) to understand these issues and be confident enough in their knowledge to take a stand against the cable companies and their lobbyists.
I'm donating to Techdirt's campaign because I know where I would have been without their work and I don't want a tech debate to take place without them. I hope you will do the same. It's also a great way to say thanks.
Click here to support Techdirt's crowdfunding campaign »
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NBC, Now Owned By Comcast, Once Told FCC It Should Break Net Neutrality To Force ISPs To Be Copyright Cops
If you don't recall, NBC Universal has actually been vehemently against net neutrality for a long time, in large part because it's afraid that with net neutrality, broadband access providers wouldn't be able to spy on what users were doing, and wouldn't be able to throttle things like BitTorrent, as Comcast famously did in the past. You may even recall that, back in 2008, NBC Universal more or less offered up a deal to the broadband access providers: if the broadband ISPs agreed to become Hollywood copyright cops to spy on users and cut them off for any possible infringement, it would side with them in the fight to get rid of net neutrality.
In fact, in an FCC filing on net neutrality going all the way back to 2007, NBC Universal made it clear that it more or less wanted the FCC to force broadband providers like Comcast into being copyright cops: What is missing from this debate – and from the Policy Statement and the Commission’s own commentary – is the acknowledgment that a huge and rapidly growing proportion of Internet traffic consists of stolen property and the concomitant recognition that service providers must act to stem the overwhelming use of their broadband facilities for the distribution of that stolen property. While the number of subscribers engaging in such activity is small, the impact on broadband service is enormous. The Commission should make unmistakably clear, as part of its regulations governing broadband industry practices, that broadband service providers have an obligation to use readily available means to prevent the use of their broadband capacity to transfer pirated content, especially when such use represents huge percentages of their capacity and reduces the quality of service to other subscribers. Whether those means consist of relatively low-tech but potentially effective steps such as forwarding notices to customers who have been identified as infringers, or using increasingly sophisticated bandwidth management tools as and when they come online, the obligation to deploy such measures must be explicit. Now, recognize that many of the same folks in leadership positions at Comcast came from NBC Universal, including the author of that comment to the FCC, Rick Cotton, who was General Counsel of NBC Universal, but last year shifted to a new role, entirely focused on "anti-piracy issues." This is the same Rick Cotton who is famous for all sorts of misleading claims over the years, including telling Congress that piracy hurt the American corn farmer because apparently pirates eat less popcorn when they watch movies (I don't get it either). He was also one of the key driving forces behind SOPA.
And he remains a senior exec at Comcast -- the company that is both trying to kill off any chance at real net neutrality reform and which is famous for one of the first net neutrality "violations" in throttling BitTorrent users.
If the FCC follows through and allows its new rules to be put in place, effectively killing off net neutrality, does anyone want to bet how long it will take Comcast -- driven by folks at NBC Universal like Rick Cotton -- to seize upon the opportunity to "monitor" your traffic and try to "use readily available means to prevent the use of their broadband capacity" for what Comcast/NBC Universal thinks is infringing (whether or not it is)?
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Recording Industry Willfully Misreads The Law In Order To Sue Ford & GM For Having Built-in CD Rippers
The latest such example is the AARC -- the Alliance of Artists and Recording Companies -- deciding to file a lawsuit demanding $2,500 for every car in which Ford and GM have installed CD devices that will automatically rip CDs into MP3s to store on a local hard drive. The AARC is a smaller and little known collection society. It was created solely to collect fees from the Audio Home Recording Act (AHRA), one of the many (many) laws that the RIAA foisted upon the world in fear over the rise of digital music. It was designed as something of a "compromise" between the RIAA and the computing and consumer electronics industry. The focus was supposedly to better enable personal, non-commercial home copies of music, while putting royalties on devices used to make serial (repeated) copies.
The problem is that the AHRA is basically a deadletter act, with little real standing in the world today, partly because the act itself killed the market for such devices. The RIAA had tried to use it in the late 1990s to ban the mp3 player (or, well, to tax them to death). But, thankfully, a court in RIAA v. Diamond rejected that interpretation of the law, making mp3 players perfectly legal (without the corresponding royalty tax). That ruling, which destroyed the RIAA's (wrong) interpretation of the law, also opened up the wonderful digital music world we have today, where you can store thousands of songs in your pocket. Without the RIAA v. Diamond ruling, it's unlikely that we'd ever have the iPod.
There are still a very small number of things that are supposedly covered by the AHRA, but AARC collects a tiny, tiny amount of money. The Copyright Office's data shows a total of $748,277.72 in 2013. That's down from previous years, but at it's very highest AARC collected $5.3 million, and most years it was closer to $2 million. Oh, and in case you're wondering, almost none of that money actually gets paid out. The last year that the Copyright Office has published details concerning these fees, 2010, it notes that AARC collected $1.75 million... and paid out just $7,894.84. Yes, you read that right. AARC collected nearly $2 million, but gave less than $8,000 to copyright holders (likely the major labels, who probably didn't give any of that money to actual artists). The previous year, it paid out a whopping $16,564.63.
However, suddenly AARC seems to think that these CD-to-mp3 devices violate the law, and the auto companies and the electronics firms that make the devices, Denso and Clarion, must pay. The AARC is pulling out all the stops to explain why the lawsuit makes sense, focusing on claims by GM (in its marketing material) that "the hard drive will not accept photos or other sorts of data" but just music. This is in part because of the Diamond ruling noted (correctly) that a general purpose hard drive doesn't apply. But the AARC appears to be totally ignoring other key parts of the ruling.
For example, the court focused on the fact that the AHRA was targeted towards devices that are making more copies of works, and not on attempts to make recordings for private, non-commercial use. Here's what the court said about Diamond's Rio mp3 player (SCMS is the DRM the AHRA required device manufacturers install -- the Rio didn't have it, because they noted you can't copy works off the device, so it wasn't needed): the Rio does not permit such further copies to be made because it simply cannot download or transmit the files that it stores to any other device. Thus, the Rio without SCMS inherently allows less copying than SCMS permits.
In fact, the Rio's operation is entirely consistent with the Act's main purpose - the facilitation of personal use. As the Senate Report explains, "[t]he purpose of [the Act] is to ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private, noncommercial use."... The Act does so through its home taping exemption, ... which "protects all noncommercial copying by consumers of digital and analog musical recordings," ... The Rio merely makes copies in order to render portable, or "space-shift," those files that already reside on a user's hard drive. Cf. Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 455 (1984) (holding that "time-shifting" of copyrighted television shows with VCR's constitutes fair use under the Copyright Act, and thus is not an infringement). Such copying is paradigmatic noncommercial personal use entirely consistent with the purposes of the Act. In other words, the court recognized that devices that are just recording for home and personal use (and not allowing further copies) fit nicely into the purpose of the act and aren't subject to the royalty rates. It seems likely that the same argument applies to Ford and GM in this case. The AARC coyly claims that "other manufacturers, importers and distributors of comparable music recorders pay the required royalties without controversy," but it doesn't name who actually pays or for what.
Of course, these days, even CD ripping is well on its way to the technological graveyard. If the AARC magically succeeds with this lawsuit, I would imagine it would receive a one-time payout (how much do you think artists will see?), followed by Ford and GM ditching CD rippers from their vehicles, and moving straight to built-in streaming setups via things like Pandora and Spotify. But, you know, these days, the legacy record labels are searching under every damn legal cushion, never once thinking that maybe not trying to demand cash, but rather earning it from willing buyers might make more sense.
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CIA Tells FOIA Requester That He Needs To Know Everything About The Emails He's Requesting Before He Can Request Them
More FOIA-related nonsense, this time from the CIA. Michael Morisy, co-founder of MuckRock, sent a request for internal emails discussing (rather ironically) the fact that the CIA's "FOIA Portal" seems to suffer from extended periods of downtime. This is a request under the Freedom of Information Act. I hereby request the following records:
A copy of emails sent to or from the CIA's FOIA office regarding the FOIA Portal's Technical Issues.
According to the CIA's current FOIA website: "FOIA requests cannot currently be made online due to technical issues. Requests can still be submitted via the US Postal Service and facsimile."
Please also include any attachments to these emails. Given the agency's disdain for the FOIA process (second only to the NYPD), I'm sure this sort of outage is viewed as a feature, not a bug. But whatever internal musings the CIA had about its FOIA portal issues will apparently be staying internal for the time being.
The CIA rejected Morisy's request in full, basically stating that searching for emails is hard work and that the requester could have at least bothered to know exactly who was talking about the portal issues and exactly when they were doing it before making the request. The FOIA requires requesters to "reasonably describe" the information they seek so that professional employees familiar with the subject matter can locate responsive information with a reasonable amount of effort. Commonly this equates to a requirement that the documents must be locatable through the indexing of our various systems. Extremely broad or vague requests or requests requiring research do not satisfy this requirement. We require requesters seeking any form of "electronic communications" such as emails, to provide the specific "to" and "from" recipients, time frame and subject. We note that you have provided the subject only. Therefore, we must decline your request. Obviously, a FOIA requester isn't going to know these sorts of specifics beforehand, hence THE REQUEST FOR INFORMATION. As MuckRock's JPat Brown points out, Twitter user Mythosopher had perhaps the best response to this refusal... You can't see any emails or know who sent or received them. But you must request the exact email and who sent and received it. ... along with this graphic:
The CIA has pretty much ensured many requests will be found too cumbersome to comply with. It used 2013's brief sequester as an excuse to shut down its office in charge of declassifying historical documents and fold it in with the FOIA department's steady stream of extension requests and denials. And the CIA joins an ever-lengthening list of federal agencies completely mystified by internal email systems. Oddly, this same government expects the US public to trust that agencies like the FBI, CIA, NSA and countless law enforcement entities will be able to find the needles in your personal email haystacks -- obtained in bulk with FISA court orders, NSLs or old-fashioned open-ended, non-specific warrants.
The CIA itself has already raided internal networks to root out Senate staffers and whistleblowers, but no one heard anyone complain about the lack of specifics making the job too tough to do. It's only when the public asks to dip into the government's business that these agencies suddenly start acting like the impossible is being demanded.
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Sinds kort is het mogelijk om geschillen online uit te vechten via de eKantonrechter. Eerst was deze manier van geschilbeslechting enkel toegankelijk voor burgers onderling. Nu is het ook voor bedrijven mogelijk om hun geschillen online te beslechten.
Natuurlijk zijn veel zaken te ingewikkeld om online te behandelen. Enkel zaken die gaan over wonen, werken en winkelen worden behandeld. Daarnaast mag de waarde van het contract waar het geschil over gaat maximaal € 25.000,- zijn.
Als u twijfelt of u gebruik kunt maken van de eKantonrechter, dan kunt u toch online een zaak starten. De eKantonrechter zal het aangeven als uw zaak niet online behandeld kan worden. U hoeft pas griffierechten te betalen nadat de zaak is toegelaten.
Het voordeel is dat u alles online kunt volgen. Net zoals bij de ‘gewone’ Kantonrechter bent u niet verplicht u te laten vertegenwoordigen door een advocaat bij de simpele geschillen. Verder volgt er al binnen 8 weken een uitspraak van de rechter. Let op! Er is geen hoger beroep mogelijk als u het niet eens bent met de uitspraak.
De zaak zal overigens niet geheel online behandeld worden, de zitting zal offline plaatsvinden in Rotterdam of ‘s-Hertogenbosch. Bekijk de hele procedure hier.
- 12 augustus 2013Hoe beoordeelt de rechter contracten en algemene voorwaarden?
- 19 september 2013Bewijsbeslag (op versleutelde bestanden) in de cloud: het kan!
- 16 januari 2014Nieuw webinar: Cloud security & continuïteit op 21 en 23 januari
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On May 28 last year, Judge James Zagel, a FISA Court member since 2008, purchased stock in Verizon. In June of this year, Zagel signed off on a government request to the FISA Court to renew the ongoing metadata collection program.
He's not the only one. We filed a request to the courts for the personal finance statements for all of the FISA Court judges. About a month ago, federal judges began turning in their disclosures, which cover the calendar year of 2013. The disclosures show that FISA Court Judge Susan Wright purchased Verizon stock valued at $15,000 or less on October 22. FISA Court Judge Dennis Saylor has owned Verizon stock, and last year collected a dividend of less than $1,000. The precise amount and value of each investment is unclear—like many government ethics disclosures, including those for federal lawmakers, investments amounts are revealed within certain ranges of value.While this may not be a true sign of corruption, it at least raises some basic ethics questions. As Fang notes, ethics rules say that judges need to recuse themselves from cases where they have a financial stake in the outcome. But, it's not as clear cut, since the telcos aren't actually parties to the cases brought by the DOJ to the FISA Court (there are no other parties, generally, it's just the government). And even if there isn't anything fishy here, just the appearance of a potential bias seems problematic. "I think prudence would suggest that a FISA judge would not acquire investments in these telecommunication stocks," says Professor William G. Ross, an expert on judicial ethics at Samford University's Cumberland School of Law in Alabama. "I'm not saying there is a conflict of interest, which my impression says there's probably not," Ross says, adding, "this is between what's improper and what's prudent." And, indeed, there definitely appears to be a conflict of interest here. As you may recall, it's been reported that the telcos were given over $100 million for "volunteering" to hand over customer records. While that may be peanuts overall to a major telco's bottom line, it's not nothing.
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The court however, completely rejects this request, noting the importance of open and public court procedures. While it does admit that there are cases where plaintiffs are allowed to proceed under pseudonyms, that tends to be in cases where to come forward would put them in direct danger -- not direct danger of being publicly associated with things they actually did. Basically, the court notes that while it may be embarrassing for this information to end up on the web, these guys are adults who made their own choices, and keeping the fact that you were busted with drugs secret is quite different from keeping information secret to avoid being thrown in an Iranian prison: There is no potential for serious harm to Plaintiffs in the case at bar. There are also no special circumstances that would justify an exception to one of the hallmarks of the American democracy, the openness of our courts. This is not a case involving "abortion, birth control, transexuality, mental illness, welfare rights of illegitimate children, AIDS, and homosexuality." ... The only harm to Plaintiffs is that which they identified — the embarrassment of possession of contraband and that news media outlets may discuss the story, which will then live in perpetuity through web searches on the internet.
The Megless/Provident Life/Citizens for a Strong Ohio factors certainly mitigate against Plaintiffs arguments in favor of anonymity. Plaintiffs here are not children, but adults who have left the nest to explore the world; albiet, the semi-sheltered world of college life at a private, small, expensive liberal arts college in rural Pennsylvania.
Bucknell kept the students disciplinary record confidential; Plaintiffs have therefore been protected from public disclosure up to this point. However, the Bucknell's desire to protect its students has no bearing on the instant proceedings. The public has no compelling need to protect the identities of adults alleging Fourth Amendment violations (to be contrasted with the use of pseudonyms for sexual assault victims, the public has a compelling need to protect identities to promote disclosure by these victims). Moreover, this case does not involve private medical information; a risk to Plaintiffs of future imprisonment in the Peoples Republic of China, the Islamic Republic of Iran, or even in the United States; nor does it involve the threat of loss of the right to invoke the Fifth Amendment. Basically, the 4th Amendment issues may be worth exploring, but there's no compelling argument for keeping their names out of the case. Just because their names -- and the associated actions -- may "live in perpetuity through web searches on the internet," that's no reason to allow them to stay anonymous.
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