DailyDirt: Closer To Understanding Superconductivity

van TechDirt - 3 uur 21 min geleden
The phenomenon of superconductivity could be extremely useful -- if the materials that exhibit the behavior could do so at ambient conditions. The first material discovered to conduct electricity with no resistance was mercury in 1911, but mercury requires temperatures below 10 °K to do this. In 1986, a high temperature superconductor was found that seemed to work around liquid nitrogen temperatures. We've made some progress pushing the limits of the superconductors we've made so far, and it looks like we may be on the cusp of a much better understanding these materials and how they work. Here are just a few links on the matter. If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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Failure To Obtain Warrants Results In Suppression Of Evidence In Two Child Porn Cases

van TechDirt - 4 uur 43 min geleden

When we fight crime, what do we fight? To hear those guarding the borders and all of the towns in between, it's generally a given that the Drug War is the top priority. Adding borders to the mix usually puts terrorism at a close second. The third? That's usually child porn/child molestation. It tends to shoot up the Public Enemy charts whenever someone drags social media or the internet into the discussion.

Considering that pretty much everyone agrees that child pornography is a bad thing, you'd think those in charge of busting possessors of this illegal content would be more careful. In two separate cases, child porn evidence has been thrown out by judges because officers failed to obtain warrants -- with both orders arriving within four days of each other.

The first comes from the Ninth Circuit Court of Appeals and deals with the illegal search of a border detainee's cellphone [pdf link].

Chad Camou was arrested by border patrol agents and his vehicle was searched. Camou invoked his right to remain silent at this point. While the search was ongoing, his cellphone was called several times by a number known to agents to be one of his accomplices. An agent began warrantlessly searching his phone -- originally for contact information but later took a look at Camou's saved photos. That's when he came across the child porn photos. He alerted his superiors to this fact. The search of the phone occurred 80 minutes after Camou's arrest. The warrant to search his phone wasn't obtained for another four days.

The court suppressed the evidence, stating several factors. First, it wasn't a search "incident to arrest" because too much time had elapsed since Camou's arrest and the agent's search of the phone. The court also pointed out that the "exigent circumstances" exception could not be deployed in this situation because the scope of the search exceeded the circumstances.

Most importantly, the court ruled that, in light of the recent Riley decision, that a cellphone does not fall under the "automobile exception," i.e., anything contained within the vehicle being searched can also be examined without a warrant. Given the Court’s extensive analysis of cell phones as “containers” and cell phone searches in the vehicle context, we find no reason not to extend the reasoning in Riley from the search incident to arrest exception to the vehicle exception. Just as “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person,” so too do cell phones differ from any other object officers might find in a vehicle. Id. at 2489. Today’s cell phones are unlike any of the container examples the Supreme Court has provided in the vehicle context. Whereas luggage, boxes, bags, clothing, lunch buckets, orange crates, wrapped packages, glove compartments, and locked trunks are capable of physically “holding another object,” see Belton, 453 U.S. at 460 n.4, “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” Riley, 134 S. Ct. at 2488–89. In fact, “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” The court also refused to let the agent off the hook with the oft-used and abused "good faith exception." The governing law at the time of the search made clear that a search incident to arrest had to be contemporaneous with the arrest. See, e.g., United States v. Hudson, 100 F.3d 409, 1419 (9th Cir. 1996). The government has not met its burden to prove that a reasonably well-trained officer in Agent Walla’s position could have believed that the search of Camou’s cell phone one hour and 20 minutes after Camou’s arrest was lawful… The Supreme Court has never applied the good faith exception to excuse an officer who was negligent himself, and whose negligence directly led to the violation of the defendant’s constitutional rights. Here, the government fails to assert that Agent Walla relied on anyone or anything in conducting his search of Camou’s cell phone, let alone that any reliance was reasonable. The government instead only asserts that by searching the phone, Agent Walla was not acting “recklessly[,] or deliberately” misbehaving. In this case, the good faith exception cannot apply. As Orin Kerr points out in his analysis of this decision, it's somewhat surprising that the government didn't introduce the "Constitution-Free Zone" border free-for-all into its arguments for the legitimacy of a warrantless cellphone search. Kerr speculates that it maybe had too many exceptions in play already and that adding this might have produced nothing more than confusion. In the end, it's the results that matter. An agent discovered child porn stored on a cellphone but government prosecutors are unable to do anything with that evidence because no warrant was obtained.

The same can be said for the next case, even though the underlying circumstances are different.

Homeland Security investigators set up a child porn sting in Brownsville, Texas. It tracked downloads to a residence via the IP address and set up surveillance. Although the IP address traced back to the house, there appeared to be no one living there. The agents then approached the house and spoke to the two residents. One of the residents, Miguel Beckes, had his laptop and external hard drives searched without a warrant. Beckes did sign a consent form but conflicting testimonies make it unclear as to whether he was ever clearly informed that he was giving agents permission to search his electronics.

The agents searched Beckes' devices and found over 800 child porn images. The next day, the agents filed a criminal complaint against Beckes for one count of possession. Nearly 10 days later, they finally acquired a warrant to search the electronics they had already searched.

The judge notes that the government has the burden of proof when it comes to voluntary consent. Beckes' testimony suggests the agents mislead him, referring to "suspicious activity" in his neighborhood, rather than what they were actually looking for. The judge also points out Beckes' mental status (a mental capacity below what's expected for someone his age, according to a psychiatric exam) as being part of the issue [pdf link]. Further, taking into account Beckes' diminished mental capacity, the effects of Agent Baker's actions are compounded, thus showing that Beckes merely acquiesced to Agent Baker's claims of lawful authority rather than voluntarily, freely consenting to the search. The judge goes into much further detail of the investigator's wrongdoing towards the end of the decision. [T]he Court is puzzled at the HSI agents failure to utilize the procedures available to legitimize or at least document this type of investigation and thus avoid the ensuing dispute regarding the validity of the search altogether. At least one year before Agent Baker visited Beckes' residence, he had evidence that child pornography was being downloaded to an IP address associated with that location; evidence he deemed sufficient to apply for and actually receive a warrant to search Beckes' home. Although this IP address was canceled before Agent Baker could execute the search warrant, in January of 2014 -- at least eight months before his visit to Beckes' residence -- Agent Baker discovered that child pornography was again being downloaded to an IP address associated with the same residence.

Despite this evidence, which obviously would have been sufficient to obtain a second search warrant… the agents instead chose to proceed without a warrant and rely on attempts to secure the suspects' voluntary consent to search their electronic devices. Then, having decided on this course of action, they did not even attempt to get a signed consent to search form to document this assent. These forms were obviously available in their own office. Although foregoing the necessary procedural safeguards may have seemed expedient at the time, there was no suggestion that time was of the essence or that any other reason existed for not getting a warrant, or at least proof that consent was given.

Further, the steps the agents took after securing the pornographic images from Beckes' laptop computer suggest that they too doubted the legitimacy of Beckes' consent to search. After arriving with Beckes at the HSI office, Agent Baker had him sign a consent to search form that included devices that had already been searched at Beckes' residence. Then, nine days after the complaint against Beckes was filed in federal court, Agent Baker applied for and received a warrant to search Beckes' electronic devices -- a warrant that included devices Baker had already searched twice. Had he considered Beckes' initial consent to search inarguably valid, Agent Baker likely would have deemed these subsequent actions unnecessarily redundant. The final decision is much like the one above. The images found during the search at Beckes' home are suppressed, along with everything found past that point, including his confession. In the former, the government is pretty much left with pursuing trafficking charges. In the latter, the entire case against Beckes' is almost completely dismantled. Rather than abide by the processes and controls that ensure the usability of evidence as well as protect citizens' rights, agents under the DHS's large umbrella decided to improvise -- and, in doing so, managed to let two people with child porn in their possession off the hook.

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After A Ten Year Nap The Government Wakes Up On Cramming, Finally Holds Big Carriers Accountable (Sort Of)

van TechDirt - ma, 12/22/2014 - 23:28
Most people are familiar with the practice of cramming -- or suddenly waking up one day to find your wireless phone bill stocked with $10 per month services (usually horoscopes, "premium text message" or ringtones) you didn't ask for and don't want. While the government has occasionally come down hard on the small companies engaging in these scams because they're easy legal wins, it has historically left the big carriers (and campaign contributors) alone, despite the fact that AT&T, Verizon, T-Mobile and Sprint all turn a blind eye to the practice in exchange for up to 40% of the proceeds. After a deep slumber, the government has finally started taking bigger companies to task, even if it's a day late and more than a few dollars short.

Back in October, the FTC announced it had struck a $105 million settlement with AT&T, with an investigation finding that not only did AT&T turn a blind eye to crammers and the mountains of consumer complaints, it actively worked to make getting refunds more difficult. The telco also intentionally made bills more confusing so customers would have a harder time figuring out that they were being ripped off:"The structure of AT&T’s consumer bills compounded the problem of the unauthorized charges, according to the complaint, by making it very difficult for customers to know that third-party charges were being placed on their bills. On both the first page of printed bills and the summary of bills viewed online, consumers saw only a total amount due and due date with no indication the amount included charges placed on their bill by a third party. The complaint alleges that within online and printed bills, the fees were listed as “AT&T Monthly Subscriptions,” leaving consumers to believe the charges were part of services provided by AT&T."AT&T's not alone. Rumors indicate that Sprint is about to face similar penalties, and it seems like only a matter of time before Verizon joins the party. The FTC has also struck a settlement deal with T-Mobile that has the "uncarrier" paying $90 million in consumer refunds, $18 million in fines and penalties to the attorneys general of all 50 states, and another $5 million in fines to the FCC. Despite their recent reputation for consumer friendly behavior (the company said the FTC's allegations were "unfounded and without merit" earlier this year), T-Mobile, like AT&T, made getting refunds nearly impossible and intentionally made the charges hard to see on consumer bills:"According to the FTC’s July complaint, T-Mobile’s phone bills made it nearly impossible for consumers to find and understand third-party subscription charges. The FTC’s complaint against T-Mobile noted that in many instances information about the third-party charges crammed on to customers’ bills was buried deep in phone bills that totaled more than 50 pages in length."Of course if you figure out that carriers were getting 40% of $10 per month charged to tens of millions of customers for more than a decade, the fines don't even come close to the amount of money these companies made by ripping off their subscribers. Better late than never?

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Sony Demands Twitter User Remove Posts Containing Images Of Leaked Documents

van TechDirt - ma, 12/22/2014 - 22:25

Sony's lawyer, David Boies, recently made an attempt to silence media outlets' coverage of leaked Sony documents. Without stating any legal basis for Sony's demands, Boies' letter ordered journalists to stop reporting on the leaked documents, destroy whatever they had in their possession (as if that effort would make any difference…) and sit on their hands until they received further instructions on what was/wasn't of "public interest" from the studio itself.

Needless to say, the only thing this cease-and-desist managed to do was increase the amount of criticism heaped on Sony's head. Boies presumably is still employed by Sony, as are whichever executives signed off on this suicidal move.

Sony's legal team is still hoping to shut people up, but it appears to be casting a far wider net. Jason Koebler at Vice reports that a musician who has performed his own digging into the leaked Sony docs and posted the interesting bits to his Twitter account has received legal threats from the studio. Val Broeksmit, a California-based musician, has been combing through gigabytes worth of documents and has been tweeting out screenshots of leaked emails that he finds newsworthy for a couple weeks now. Amongst those are emails that talk about green lighting upcoming films, paying actors to tweet about films, emails sent to Sony by the purported hackers of the company (the “Guardians of Peace”), and internal bickering.

Last week, Elliott Ingram, a copyright specialist who works with Sony in the United Kingdom, reached out to warn him that if he did not delete the posts, the company would have to ask Twitter to do it for them. This polite person-to-person request from Ingram was ignored by Broeksmit, despite the fact that it (politely) bandied about a number of legal terms for scariness' sake, like "trade secrets," "copyright" and "privacy laws." Broeksmit says he ignored it because it "didn't come from a Sony Pictures email account."

Because Broeksmit failed to cave, the threats have escalated. Gone is the cheery and accommodating British politeness. In its place is a rehash of the threatening letter sent to journalists last week, full of demands and excess capital letters ("Stolen Information," etc.)

And once again, one of the studio's lawyers (Sean Jaquez) asks for an ultimately meaningless gesture as a sign of compliance/good faith. The email asks Broeksmit to delete his tweets and to “arrange for and supervise the destruction of all copies of the Stolen Information in your possession [and to] confirm that such restriction has been completed.” Sure, Sony doesn't actually care if any deletion actually occurs. (Well, it cares a little.) What it wants is a leak-free future. But Broeksmit isn't caving, even if his grasp on the legality of his sharing might be a bit shaky. “I’m not with a newspaper and I think I can get away with it,” he said. “It’s important—the reason is it’s so new and different from anything we’ve seen before. This is a billion dollar company being made bare to the public. It’s crazy I have these emails, and it’s fascinating to learn how these companies work.” Confidence is a great thing, but a private citizen generally finds his/her rights to be a bit diminished as compared to the press, rather than vice versa.

Ultimately, it appears Sony will have to talk Twitter into removal of these tweets rather than going straight to the source. It made two pitches and missed with both. Now, it remains to be seen whether Twitter will view Broeksmit's document screenshots are actually infringing on Sony's copyrighted material. As of now, the disputed tweets are still up… and Sony's reputation is still sliding in a downward direction.

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Surprise: CIA-Appointed Panel Finds No Real Problem With CIA Spying On Senate

van TechDirt - ma, 12/22/2014 - 21:20
After the CIA's Inspector General basically revealed that not only did the CIA spy on the network of Senate Intelligence Committee staffers who were investigating the CIA, but that CIA boss John Brennan lied about it and that the breaches were much worse than originally detailed, Brennan appointed a panel to "investigate." Take a wild guess what the panel appointed by the guy who lied about the spying has concluded? If you said that it found serious problems and recommended real consequences for those involved and their leadership, you haven't been paying much attention.

Instead, if you said it would do some hand-wavy talk about "mistakes being made" but recommend no real consequences and downplay the severity of what happened, well, you get a gold star and a special tissue in which to weep about the loss of the separation of powers: While effectively rejecting the most significant conclusions of the inspector general’s report, the panel, appointed by Mr. Brennan and composed of three C.I.A. officers and two members from outside the agency, is still expected to criticize agency missteps that contributed to the fight with Congress.

But its decision not to recommend anyone for disciplinary action is likely to anger members of the Intelligence Committee, who have accused the C.I.A. of trampling on the independence of Congress and interfering with its investigation of agency wrongdoing. The computer searches occurred late last year while the committee was finishing an excoriating report on the agency’s detention and interrogation program.
The message that we keep sending is, if you're powerful enough, there's almost nothing you can do with any actual consequences attached. Is it any wonder that the intelligence community keeps pushing the boundaries further and further?

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China ignores EU, offers to help Russia

van EU Observer - ma, 12/22/2014 - 20:46
China has joined India in helping the Russian economy, but closer to home Belarus and Kazakhstan are hedging their bets on future relations.

Categorieën: Europees nieuws

Vague Warnings Of Pending Tor Attack, While Exit Nodes Are Being Seized

van TechDirt - ma, 12/22/2014 - 20:21
Late last week, the Tor Project blog posted a somewhat vague warning about the possibility of an upcoming attempt to disable the Tor network by going after and seizing specialized directory authority servers that are the key to making Tor work. The Tor Project has learned that there may be an attempt to incapacitate our network in the next few days through the seizure of specialized servers in the network called directory authorities. (Directory authorities help Tor clients learn the list of relays that make up the Tor network.) We are taking steps now to ensure the safety of our users, and our system is already built to be redundant so that users maintain anonymity even if the network is attacked. Tor remains safe to use.

We hope that this attack doesn't occur; Tor is used by many good people. If the network is affected, we will immediately inform users via this blog and our Twitter feed @TorProject, along with more information if we become aware of any related risks to Tor users.

Given that, it seemed especially noteworthy that over the weekend a bunch of Tor exit nodes were apparently quietly seized, according to Thomas White, who ran those servers: Tonight there has been some unusual activity taking place and I have now lost control of all servers under the ISP and my account has been suspended. Having reviewed the last available information of the sensors, the chassis of the servers was opened and an unknown USB device was plugged in only 30-60 seconds before the connection was broken. While he initially suggested that the way it was done made it seem likely that law enforcement was behind it, he later toned down that suggestion, saying he thought it was less likely that law enforcement was involved than he originally believed. Update: And now the servers have been returned and while there's still some confusion, it looks like nothing nefarious happened here.

Tor, itself, isn't compromised -- and pretty much all experts agree that it remains safe -- but it's at least troubling to see that there's at least some possible attempt to compromise parts of the network.

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Snowden, Poitras & Others Sued For 'Billions Of Dollars' Spent By US Government In Response To Leaks

van TechDirt - ma, 12/22/2014 - 19:17
Horace B. Edwards, Navy veteran and former Secretary of Transportation for the state of Kansas, is suing Edward Snowden, Laura Poitras and a handful of "Hollywood Defendants" for profiteering from the distribution of "stolen documents." This is supposedly being done on "behalf of the American people" ("John and Jane Does 1-10" listed in the "Plaintiffs" field). [pdf link]

What Edwards is seeking is a court-ordered "constructive trust," financed by the proceeds of Laura Poitras' Snowden documentary "CitizenFour," to offset the financial damage caused by the leaked documents. This is an action on behalf of the American people to seek prompt imposition of the Supreme Court’s essential financial remedy–a constructive trust–to redress unjust enrichment by ensuring that ill-gotten gains are disgorged… This relief does not infringe upon First Amendment rights but maintains a reasonable balance between national security and the fundamental Constitutional protections of Freedom of the Press. No censorship occurs and no public access is restrained...

Upon information and belief, through this charade in the film, “Citizenfour,” a fugitive senior intelligence official, e.g. CIA/NSA/DIA, together with the “Hollywood Defendants,” intentionally violate obligations owed to the American people, misuse purloined information disclosed to foreign enemies, and covet financial gain for their misconduct. If you're still having any trouble discerning Edwards' stance on the Snowden leaks, allow this paragraph to do the heavy lifting. Upon information and belief together, these Hollywood Defendants have concertedly acted without regard for the health, safety and welfare of all U.S. Citizens, have aided and abetted the illegal and morally wrongful acts of Defendant Snowden, and have callously chosen to commercialize, capitalize and commoditize for their conscienceless benefit, the stolen classified CIA/NSA and other secret documents referred to and revealed in the film. From there, we head to the heart of the matter: the billions of dollars in damages Poitras, Snowden, et al should be forced to pay in compensation to the US government. Upon information and belief, the sums subject to a constructive trust may well exceed hundreds of millions, if not billions of dollars, to achieve restitution for all expenditures of the U.S. government to protect human assets placed at risk, restore/revamp computer infrastructure, rebuild relationships with foreign governments, and respond to various enemies’ resurgence efforts, due to the blowback associated with the film and the release of classified information to foreign enemies of this Nation. Edwards' argument is that Snowden's breach of his secrecy agreements makes him personally obligated to reimburse the US (the government and its people, according to the filing) for expenses incurred. That the "Hollywood Defendants" and Poitras herself have financially benefited from the documentary makes them at least partially liable, and that all proceeds from "CitizenFour" rightfully belong to the government. To that end, Edwards seeks relief in the following form. Impose a constructive trust over, and permit the United States Government to obtain an accounting of, all monies, gains, profits, royalties, and other advantages that all Defendants have derived, or will derive in the future, from the publication, distribution, sale, serialization, or republication in any form, including any other rights, of the work entitled “Citizenfour,” whether or not such gains remain in Defendant Snowden’s possession or in the possession, custody or control, whether direct or indirect, of any other Defendant herein. Considering Edwards is trying to help the US balance its Snowden-related books, you'd think he wouldn't be attempting to harm the US government's constructive trust cash cow -- Poitras' Snowden documentary. But included with the filing are two letters [one, two] from the law firm representing Edwards (Lamfers & Assocs. L.C.) to the Academy of Motion Picture Arts and Sciences, both of which contain reasons why "CitizenFour" shouldn't be allowed to compete for a Best Documentary award. Seeing as an Oscar win usually results in a sales bump -- and with Edwards asserting that Snowden, et al need to pay Uncle Sam back for the trouble they've caused -- it would seem to be in everyone's financial interest that "CitizenFour" receive a nomination and, hopefully, a win.

But this isn't about logic, it's about Edwards' vindictive and likely futile lawsuit. Edwards wants to punish those who have made the film (as it stands now, Snowden is still out of reach) by dragging them through the federal court system and pushing their film out of Oscar running.

As for his assurances that the creation of a constructive trust wouldn't have any impact on the First Amendment rights of those named in the lawsuit, he's only technically correct. Edwards isn't seeking an injunction barring the showing or sale of the film, but if successful, his lawsuit would have a chilling effect on future reporting pertaining to whistleblowers and/or leaked documents. If he somehow manages to prove that Snowden's breach of contract makes him and his "benefactors" responsible for money spent by the US government's damage control, this will deter both future reporting and future whistleblowers from making any information public.

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What happens when you stop being European Commissioner?

van EU Observer - ma, 12/22/2014 - 18:22
In some cases, the change is reason for celebratory singing. For others, the end of a mandate – including its perks – takes them by surprise.

Categorieën: Europees nieuws

Rep. Mike Rogers, On His Way Out Of Congress, Slams Obama For Not Launching Premature Cyberwar Against North Korea

van TechDirt - ma, 12/22/2014 - 18:15
Rep. Mike Rogers is just about out of Congress, but the NSA's biggest defender (despite his supposed role in "overseeing" the agency) is using his last days on Capitol Hill to keep pushing his favorite causes. Over the weekend, he complained that President Obama basically should have gone to "cyberwar" with North Korea over the Sony hack. “Unfortunately, he’s laid out a little of the playbook,” Rogers said. “That press conference should have been here are the actions.” ...

Without discussing specifics, Rogers said the U.S. has the capability to cripple North Korea’s cyberattack capabilities, which have been rapidly improving over the last few years.

“I can tell you we have the capability to make this very difficult for them in the future,” he said.
And I can tell you that Mike Rogers is full of bluster with little basis. First off, there is still some fairly strong skepticism in the actual computer security field that North Korea was behind the hack. Launching an all out attack without more proof would seem premature. Second, Rogers is simply wrong or clueless. We don't have the capability to "cripple" anyone's "cyberattack capabilities" unless he means taking out the entire internet. There are always ways around that. Even the reports that we've seen that do blame North Korea don't seem to think the full attack came from North Korea, so doing something like taking the few internet connections in North Korea off the map wouldn't do much good if the actual attack came from, say, China or Eastern Europe or somewhere else.

Third, can we just get over this ridiculous idea that a hack of one company, which may or may not have been by actors working for a government, is an act of either "terrorism" or "war." It's not. It's a hack. Tons of companies get hacked every day. Some have good security and still get hacked. Some, like Sony, appear to have terrible security and get hacked very easily. It's not terrorism. It's not war. It's a hack. We shouldn't be talking about retaliation or destroying countries over a hack. We should be talking about better security. Jim Harper does a good job explaining why an overreaction is a bad idea: The greatest risk in all this is that loose talk of terrorism and “cyberwar” lead nations closer to actual war. Having failed to secure its systems, Sony has certainly lost a lot of money and reputation, but for actual damage to life and limb, you ain’t seen nothing like real war. It is not within well-drawn boundaries of U.S. national security interests to avenge wrongs to U.S. subsidiaries of Japanese corporations. Governments in the United States should respond to the Sony hack with nothing more than ordinary policing and diplomacy. But, no, not Mike Rogers. Instead, he's using this as his opportunity to push for his favorite bad law: giving the NSA more power to sift through your data: Rogers, who is retiring from Congress in just a few days, made a final plug for his bill to facilitate cybersecurity information sharing between the private sector and National Security Agency (NSA). The measure passed the House, but stalled in the Senate, held up by privacy concerns.

It’s necessary, Rogers argued, if the U.S. wants to protect itself from similar attacks in the future. Because of laws on the books, the NSA is limited in its ability to protect private critical infrastructure networks.

“This isn’t about reading your email, it’s about reading malicious source code,” Rogers said.
He's talking, of course, about his beloved CISPA, which would effectively remove any liability from companies for sharing your private data with the NSA (and the rest of the government). But, as per usual with Rogers, he's wrong about nearly all of the details. There is nothing in CISPA that would have made it so the NSA could have "protected" Sony. Sony's problem here was Sony's terrible computer security. So, no, we don't need CISPA or other cybersecurity legislation to better protect the internet.

And is Mike Rogers really trying to argue that Sony's private intranet is "critical infrastructure"?

Finally, there's nothing in the law today that stops a company from sharing "malicious source code" with the government or others. We already have a good way for dealing with that that doesn't require a new law that gives the NSA more access to everyone's data.

Either way, it looks like Rogers is going out in typical fashion -- shooting his mouth off in favor of his friends and pet projects, without actually understanding or caring about the details. No wonder he's going into AM talk radio. He'll be a perfect fit.

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Big Broadband's Hail Mary To Stop The FCC: Have Congress Pretend To Do Its Job

van TechDirt - ma, 12/22/2014 - 16:54
As we've clearly stated in the past, having the FCC reclassify broadband as a common carrier under Title II of the Telecommunications Act is not the perfect solution to the net neutrality question, but it's the best of a bunch of bad options. A theoretically good Congress would step in with a rewrite to the law to update it for the times. As we noted in that link above, there were two problems with this idea of a Congressional rewrite: (1) Congress isn't particularly functional and (2) lobbying dollars might make the end result worse. Two interesting things have happened in the past couple of months. First, having the FCC reclassify broadband under Title II went from a pipe dream -- which it absolutely was at the beginning of the year -- to quite likely (especially following President Obama's official support for reclassification). Second, the Republicans won Congress in the election. As we've noted, for reasons that don't fully make sense, net neutrality has become a (stupidly) bitterly partisan issue, with Republicans against it and Democrats for it. This is true despite Republican and Democrat voters alike being overwhelmingly in favor of net neutrality.

So, with a Republican-controlled Congress, it appears that the plan is to actually try to do a rewrite of communications law, with the stated goal of legislating net neutrality -- even to the point (it's claimed) of supporting President Obama's requested net neutrality rules: One important piece of the proposed legislation would establish a new way for the FCC to regulate broadband providers by creating a separate provision of the Communications Act known as "Title X," the people said. Title X would enshrine elements of the tough net neutrality principles called for by President Obama last month. For example, it would give FCC Chairman Tom Wheeler the authority to prevent broadband companies from blocking or slowing traffic to Web sites, or charging content companies such as Netflix for faster access to their subscribers — a tactic known as "paid prioritization." In theory, this sounds great. This is, in fact, what we've long said is the better solution. Rather than trying to cram broadband under Title II and dealing with the ill-fitting pieces via forbearance, actually writing regulations for the 21st century sounds like a better idea. Especially if it's true that it would block paid prioritization.

But, does anyone honestly believe this is what's going to happen? Remember, for years Republicans in Congress have angrily denounced any sort of net neutrality rules as "regulating the internet." Yet, now, suddenly, people think that they're going to do so in a slightly different manner through a rewrite of communications law? On top of that, the politicians opposed to net neutrality have taken in insane amounts of cash from big broadband providers. It seems highly likely that any such rewrite to the Telecommunications Act is going to contain plenty of gifts for the big broadband players, and huge loopholes. Considering that the big broadband players have fought any sort of real net neutrality rules for over a decade, while also making noises about how they not only like paid prioritization very much, but that they really want to figure out more ways to charge internet services to double or triple pay just to reach end users, it's difficult to take seriously the idea that this new law will actually be real net neutrality at all.

And, of course, rewriting the Telecommunications Act is a massive job that will impact a ton of other issues as well -- from things like municipal broadband to spectrum to the Universal Service Fund -- but is unlikely to do very much of anything to actually help the key thing that is more important for the future of an open internet: encouraging real and meaningful competition. In fact, it seems fairly likely that most of the moves will be designed to limit such competition, giving more power to the giant broadband players who already dominate the market.

In many ways, this is a rather clever play by the big broadband players and their supporters. They're recognizing that they lost the battle over Title II. At this point, it's almost entirely certain that the FCC will move to reclassify. So, instead, they're going to switch over to Congress -- a plan that, in theory, is more appropriate -- while knowing that with the current state of Congress, the resulting law that will be written will not just block the possibility of Title II, but will serve up some sort of fake, loophole-ridden version of net neutrality in its place.

It is, of course, possible that Congress could do a good job rewriting the Telecommunications Act, but since when has anyone believed that Congress was competent about issues like this?

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Categorieën: Technieuws

[Ticker] Former EU commissioner becomes Latvian president advisor

van EU Observer - ma, 12/22/2014 - 15:38
Former European Commissioner for development Andris Piebalgs will take up a job as special advisor to Latvian president Andris Berzins, Latvian media reported on Monday. On 1 January 2015, Latvia takes up the presidency of the European Council for six months.

Categorieën: Europees nieuws

Children Are Leading The Cord Cutting Revolution

van TechDirt - ma, 12/22/2014 - 14:56
The cable industry has long pretended that the cord cutting phenomenon either isn't real or that the only people cutting the cord are aging losers living in their parents' basement. Of course when you actually look at the data, while cord cutting remains a slow but growing phenomenon, most of the cord cutters are young, highly educated, employed, and make a good amount of money. As it turns out, you'll be surprised to note these folks are having children -- and these children are also starting to prefer on demand, a la carte services like Netflix instead of traditional cable.

For a few years now data has shown that Netflix is really eating the lunch of channels like Nickelodeon, given that toddlers in particular don't really care if they're watching the latest and greatest "True Detective" episode or not, and time shifting is important for parents on hectic schedules. A new research note from Bernstein Research notes that not only is viewership down for both cable and over the air broadcasts (8 and 9%, respectively, for the week of November 17 through 23), but it's dropping significantly for children's programming, which saw a 12% drop during that same period.

The numbers get worse quarter over quarter, where kid's programming saw a 15% drop. In fact the only growing cable viewership audience that week was the predominately-older Fox News audience, which had tuned in to Fox's live Ferguson coverage. Kids and parents, in contrast, just want the simplest, most enjoyable content experience on their own terms:"A 5-year-old is probably less concerned with seeing the latest Spongebob Squarepants, compared to just reruns of that show," said Brett Harriss, a media analyst at Gabelli & Company. Nickelodeon and Disney Channel viewership fell 25% and 24% respectively, according to the Bernstein report. "For kids' programming it's a unique audience. They're not loyal to any network or channel. It's platform-agnostic," said Amy Yong, an analyst at Macquarie Capital USA Inc."Of course these kids aren't going to stay young forever, and when they grow up, paying Comcast $150 a month for an ocean of awful reality TV programs and infomercials is going to seem as backward to them as drilling holes in the heads of the mentally ill to let the demons out.

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Categorieën: Technieuws

Finland Abolishes Copyright Levies On Digital Devices

van TechDirt - ma, 12/22/2014 - 12:49
As we've noted before, copyright levies -- effectively a tax on blank storage media -- are becoming ever-more anachronistic and unworkable. So it's good to hear about a country doing the sensible thing and getting rid of them entirely (pdf): Finland is the latest EU member state to scrap levies on digital devices, following similar moves in Spain and the UK. The Finnish Parliament on Wednesday voted overwhelmingly to replace a levies system that has existed since 1984 with the creation of a government fund designed to compensate artists for private copying of content such as music and movies. That's from a press release issued by the lobby group Digital Europe, which describes itself as follows: Digital Europe represents the digital technology industry in Europe. Our members include some of the world's largest IT, telecoms and consumer electronics companies and national associations from every part of Europe. Digital Europe wants European businesses and citizens to benefit fully from digital technologies and for Europe to grow, attract and sustain the world's best digital technology companies. Given its background, it's hardly surprising that Digital Europe hopes that Finland's decision is part of a wider move: Pressure for EU reform is now greater than ever. The UK earlier this year passed a law that legalized private copying by individuals without any requirement for additional compensation to artists. Two years ago Spain replaced levies with a government compensation fund similar to the one adopted in Finland this week. Although it's true that progress has been made, it's also worth noting that the usual copyright dinosaurs are fighting back, and that the final outcome is by no means clear. In the UK, the music industry has said that it may try to challenge the private copying exception in the courts. In Spain, legal action by collecting societies has resulted in two key questions about copyright levies being sent to the European Union Court of Justice, and its judgment on the case is likely to have important implications for such levies throughout the EU.

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Categorieën: Technieuws

Netflix wint octrooizaak van OpenTV

van ICT recht - ma, 12/22/2014 - 11:00

Netflix heeft op 17 december 2014 een rechtszaak gewonnen tegen OpenTV. In de rechtszaak werd Netflix beticht van inbreuk op octrooirechten, maar Netflix doet een beroep op ongeldigheid van het octrooi – en wint dus.

OpenTV beheert de intellectuele eigendomsrechten voor de Kudelski Groep en is onder meer houdster van een octrooi voor een toegangssysteem en -werkwijze voor gekoppelde mediadiensten.

Netflix is natuurlijk bekend van de “on demand internet streaming media”-dienst die zij aanbiedt. In de rechtszaak werd Netflix ervan beticht inbreuk te maken op het octrooirecht van OpenTV.

Octrooien, ook wel patenten genoemd, kunnen niet alleen op technische producten worden verleend, maar bijvoorbeeld ook op een werkwijze voor het maken van een product, een werkwijze voor het zaken doen of bijvoorbeeld op computerprogramma’s (zoals software en firmware). Het idee achter een octrooi is dat innovatie daarmee wordt gestimuleerd, en dat bijvoorbeeld de kosten voor onderzoek en ontwikkeling zo kunnen worden terugverdiend.

Een octrooi moet echter ook aan een aantal voorwaarden voldoen voordat het ook daadwerkelijk een geldig octrooi is.  Zo moet de uitvinding technisch toepasbaar zijn, en ook nieuw en inventief. Voldoet het aan die eisen, dan heb je twintig jaar lang een geldig octrooi. Na die periode is de uitvinding in principe vrij beschikbaar.

Netflix meende echter dat het octrooi niet geldig was, omdat deze niet zou voldoen aan de vereiste nieuwheid. Ook tussentijds ingediende hulpverzoeken van OpenTV kunnen het octrooi volgens Netflix geen nieuwheid verschaffen. Omdat het octrooi niet zou voldoen aan het nieuwheidsvereiste, vordert Netflix de vernietiging van het octrooi. De rechtbank Den haag gaat daarin mee.

Zo overweegt de rechtbank dat zij

“4.3. (…) met Netflix van oordeel [is] dat de gemiddelde vakman de (…) beschreven decoder zal aanmerken als ‘electronic detecting means for electronically extracting the address’ in de zin van conclusie 9 van EP 534 aangezien de decoder de adressen elektronisch uit het vertical blanking interval ‘stript’. OpenTV heeft ook niet toegelicht waarom zij dat anders ziet.

4.4. Het betoog van OpenTV dat WO 699 geen ‘means for indicating to the user that an address has been extracted which permits communication with an online service provider’ openbaart, is gebaseerd op de veronderstelling dat de weergave van een geëxtraheerd adres op het scherm, zoals WO 699 openbaart in de hiervoor geciteerde passage, niet kan worden aangemerkt als een middel voor het aanduiden dat een adres is afgeleid in de zin van conclusie 9 van EP 534. De rechtbank is met Netflix van oordeel dat die veronderstelling ongegrond is. Het weergeven van het adres op het scherm is juist een voor de hand liggende manier om de gebruiker aan te duiden dat een adres is afgeleid. OpenTV heeft ook geen reden gegeven voor haar stelling dat de gemiddelde vakman zou menen dat de weergave van het adres op het scherm niet kan worden aangemerkt als een middel voor het aanduiden dat een adres is afgeleid in de zin van conclusie 9 van EP 534.”

Eén en ander resulteert in een vernietiging van het octrooi van OpenTV en afwijzing van de inbreuk. OpenTV wordt veroordeeld in de vergoeding van de proceskosten die worden begroot op maar liefst ruim EUR 235.000,-.

Als een partij jou aanspreekt op inbreuk op een octrooi – met bijvoorbeeld de sommatie om de inbreuk te staken of om schade te vergoeden, dan doe je er dus goed aan direct juridisch advies in te winnen. Het product of de werkwijze die je aanbiedt mag namelijk geen inbreuk maken op octrooirechten van anderen. Of dat het geval is, en of het octrooi waarop de ander een beroep doet wel geldig is, is iets wat een jurist of advocaat voor je kan uitzoeken. Ook kan een reactie worden geschreven op de inbreukbrief, of op andere wijze contact worden opgenomen met de wederpartij.

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The post Netflix wint octrooizaak van OpenTV appeared first on LAWFOX.

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Categorieën: Europees nieuws

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Categorieën: Europees nieuws

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van EU Observer - ma, 12/22/2014 - 09:22
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Categorieën: Europees nieuws