DailyDirt: How To Forget (When You Want To)

van TechDirt - 1 uur 59 min geleden
The movie Eternal Sunshine of the Spotless Mind is based on a fictional technology that allows people to selectively forget events in their life that they don't want to remember. While that whole movie was dedicated to erasing memories, memory loss actually isn't an uncommon plot device. For example, Men In Black had "neuralyzers" that zapped away a person's memory, and the main character in Memento suffered from a complete loss of his short-term memory. (And don't forget all the soap operas that use amnesia in various convenient situations.) In reality, it's much harder to induce forgetfulness on demand, but some research could make it easier to do so in the future. Here are a few studies you might want to remember -- and later forget. 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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Google Bans Disconnect.me App From Play Store Based On Vague Guidelines

van TechDirt - 3 uur 16 min geleden
Having had our own run-ins with Google's opaque (and often hypocritical) decision-making process at times, it's not surprising (though unfortunate) to hear of yet another case. The folks over at Disconnect.me have been working on tools to give people more control over their own data and how it's shared. They're not looking to stop all data sharing, but rather put it back under the control of the individual users, rather than companies in the middle. While this may make some companies nervous, it shouldn't. A company that is actually providing value and is properly transparent shouldn't have to worry about such things.

So it's quite disappointing that Google has chosen to pull Disconnect.me's new app from the Android store based only on a very vague and broad "prohibition" in its terms of service, saying that you can't offer an app that "interferes with" other services. The email Google sent doesn't provide many details, other than saying that the Disconnect.me app "interferes with or accesses another service or product in an unauthorized manner."

Now, you can understand the basic rationale for why this term is in Google's rules -- the intent there is to block malicious activities. But what's "malicious" in this context? Disconnect believes Google mistook its app as an adblocker: But our mobile product (like our Desktop product) is not an adblocker. Instead Disconnect focuses on protecting people from invisible tracking and sources of malware, and all too often these threats come in the form of advertising. In fact, some of the most privacy invasive data collection online happens through ads, which see you even if you don’t see or interact with them. And worse, ad networks (including Google) are increasingly being used by “advertisers” to spread malware. This increasingly popular tactic, called malvertising, is currently being investigated by the US Senate, and Disconnect Mobile is the first app to directly address it.

The fact is, we are not opposed to advertising and think advertising plays a critical role in the Internet economy. But we are 100% opposed to advertising that invisibly tracks people and compromises their security.
In short, Disconnect.me is working to block evil activities. You'd think that the company with the whole "don't be evil" slogan would appreciate an app that tries to protect users from evil. But, as was the case when we got threatened with being cut off from ad revenue, it appears this is yet another case where you have a very large company that has put in place "by the book processes" that lead to a lack of common sense being employed. Instead you get checkmarks and bad end results. This all goes back to one of my biggest complaints about Google, going back years, that it continues to be the big white monolith when dealing with all sorts of users, customers and partners. Programs like AdSense and the Android Play Store are massive, and there are, certainly, those who look to abuse those systems. And so it's no surprise that the company has put in place policies to help try to weed out those abuses -- even leading to some false positives. The problem is that the company all too frequently doesn't have any real second level of review where common sense comes back into play.

Disconnect.me is appealing the decision and seeing if it can get Google to reverse its position -- and hopefully that happens. It still seems to me that this is one of Google's most glaring problems as it has grown, and it's shown little sign of improving on this front to date. I know that Google is especially sensitive to antitrust concerns being leveled against it, and I'm honestly confused why the company doesn't view this as a potential concern on that front. When it has the ability to cut people off from areas where it has massive control (including the Android market and the advertising market), it's only asking for trouble from those where it makes the wrong call.

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Blunders By Convicted 'Fast And Furious 6' Cammer Made It Easy To Track Him Down

van TechDirt - di, 09/02/2014 - 23:36
Back in May last year, Techdirt wrote about how the UK police worked in worryingly-close collaboration with the local anti-piracy group, FACT (Federation Against Copyright Theft), effectively becoming its private enforcement squad. As we noted recently that case has now passed through the UK courts, with Philip Danks receiving 33 months in prison.

The severe sentence is noteworthy, but what's really interesting here is how Danks was tracked down. TorrentFreak has written a fascinating follow-up piece explaining just how easy he made it. Apparently, Danks's online alias in the torrenting scene was TheCod3r. That seems safe enough, revealing nothing about the person behind it. But as TorrentFreak notes, a quick online search for that term brings up a link to someone else using exactly the same nickname, this time on the dating site Plenty of Fish: Clicking that link on dating site Plenty of Fish (POF) reveals a whole range of information about a person who, at the very least, uses the same online nickname as Danks. There's no conclusive proof that it's the same person, but several pieces of information begin to build a picture.

In his POF profile, Danks reveals his city as being Willenhall, a small town situated in an area known locally as the Black Country. What FACT would've known soon after the movie leaked online was which cinema it had been recorded in. That turned out to be a Showcase cinema, just a few minutes up the road from Willenhall in the town of Walsall.
Danks also seems to have been incredibly reckless on Facebook: On May 10, 2013, Danks again took to Facebook, this time to advertise that he was selling copies of movies including Robocop and Captain America.

This continued distribution of copyrighted material particularly aggravated the Court at his sentencing hearing this week, with Danks’ behavior being described as "bold, arrogant and cocksure offending."
The TorrentFreak article concludes by making an important point: While the list of events above clearly shows a catalog of errors that some might even find amusing, the desire of many pirates to utilize the same nickname across many sites is a common one employed by some of the biggest in the game.

Once these and other similar indicators migrate across into real-life identities and activities (and the ever-present Facebook account of course), joining the dots is not difficult -- especially for the police and outfits like FACT. And once that happens, no amount of VPN encryption of lack of logging is going to put the genie back in the bottle.
In other words, these high-profile wins for the copyright industry are not the result of the police making use of surveillance powers, or of clever sleuthing by organizations like FACT. Rather, they are the direct and largely predictable result of the arrogance and stupidity displayed by those breaking the law.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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You Can't Be Fired For 'Liking' A Colleague Calling Your Bosses 'Assholes' On Facebook

van TechDirt - di, 09/02/2014 - 22:33
A couple of years ago, we wrote about a rather troubling legal ruling in which a court declared that Facebook "likes" aren't a First Amendment protected expression. The ruling made little sense. It involved some employees of a local sheriff getting fired after "liking" the Facebook profile of the sheriff's opponent in the next election. Thankfully, that key part was overturned on appeal, with the 4th Circuit appeals court ruling that Facebook likes absolutely could be protected speech. Now, facing a somewhat similar issue, the National Labor Relations Board (NLRB) has similarly concluded that a Facebook like can be a form of "concerted protected activity" for which you cannot be fired.

The story involved a restaurant, Triple Play Sports, that apparently made an accounting error concerning the amount of taxes withheld in paychecks. Because of this, some of the restaurant's employees had to pay more taxes. A former employee, Jamie LaFrance, who this impacted had posted angrily to Facebook: Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!! A current employee, Jillian Sanzone, added this helpful comment: I owe too. Such an asshole. Another current employee, Vincent Spinella, "liked" Sanzone's comment. Soon after, Sanzone and Spinella were fired. Triple Play argued that they were fired for violating the restaurant's "Internet/Blogging" which is an actual thing, apparently. It's also noteworthy that a number of other Triple Play employees took part in the conversation, and were not fired. Triple Play actually argued that the fact that it kept the other employees on board showed that it wasn't targeting protected concerted action. However, the NLRB disagreed. It first found that the entire discussion was concerted activity (it helped that one of the other employees talked about raising the issue at a future meeting). Triple Play appealed and the NLRB still said it was protected activity. As Kevin Goldberg at the CommLawBlog summarizes: Equally important here is the holding that, because Vinnie “liked” only Jamie’s original post and did not separately “like” any of the ensuing comments, his “Like” was an endorsement only of the original post and not the entire thread.

In other words, Vinnie’s “Like”, without anything more, was an expression of agreement with Jamie’s original, clearly non-defamatory, complaint. So a “Like” is clearly expression, at least in the eyes of this NLRB panel. And that interpretation can in turn be read to say that purely mechanical acts (e.g., clicking on the “Like” button) are “expression” under the NLRA. Based on that reasoning, I’d assume that, if you retweet something in a similar attempt to be part of a conversation or garner support for protected activity, you’d be protected as well.
The panel further noted that Triple Play's internet police was itself a violation, since it effectively would ban protected concerted activity. This is not the first time that the NLRB has gotten involved in social media either. A few years back, we wrote about it issuing some warnings that it would not look kindly on firing people based on them speaking out on social networks. This ruling shows that it's living up to that promise.

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Why Is Huffington Post Running A Multi-Part Series To Promote The Lies Of A Guy Who Pretended To Invent Email?

van TechDirt - di, 09/02/2014 - 21:26
I thought this story had ended a few years ago. Back in 2012, we wrote about how The Washington Post and some other big name media outlets were claiming that a guy named V.A. Shiva Ayyadurai had "invented email" in 1978. The problem was that it wasn't even close to true and relied on a number of total misconceptions about email, software and copyright law. Ayyadurai and some of his friends have continued to play up the claim that he "invented" email, but it simply was never true, and it's reaching a level that seems truly bizarre. Ayyadurai may have done some interesting things, but his continued false insistence that he invented email is reaching really questionable levels. And, now it's gone absolutely nutty, with the Huffington Post running a multi-part series (up to five separate articles so far -- all done in the past 10 days) all playing up misleading claims saying that Ayyadurai invented email, even though even a basic understanding of the history shows he did not.

Let's take care of the basics first, and then we'll dig in on what's going on here, because it's really quite ridiculous. First off, no one denies that V.A. Shiva Ayyadurai -- an apparently very bright 14-year-old at the time -- wrote an email software program for the University of Medicine and Dentistry of New Jersey (UMDNJ) in 1978. By all accounts, it was a perfectly decent email system that allowed the UMDNJ staff to send electronic messages. Further, no one doubts that in 1981, Ayyadurai registered the copyright on his program, which was called EMAIL. The problems are that (1) email was invented long before 1978, (2) the copyright is merely on the specific software code, not the idea of email, and (3) while Ayyadurai may have independently recreated the basics of email (and even added a nice feature), none of his work was even remotely related to what later became the standards of email. What's most sickening about this is that as part of this new PR campaign, Ayyadurai is ridiculously arguing that the reason no one believes him isn't because he's simply wrong, but because they can't stand to believe that "a dark-skinned immigrant kid, 14 years old" invented email, and that it was done in "one of the poorest cities in the US" rather than at a famous university.

Again, that might make for a nice story line if there were some factual basis behind it, but there isn't. The history of email is well-documented from multiple sources and it began way, way before 1978. And while early versions were somewhat crude, by 1978 they had basically everything that Ayyadurai claims to have invented (it is entirely believable that Ayyadurai, as a bright kid, independently came up with the same ideas, but he was hardly the first). There was a messaging system called MAILBOX at MIT in 1965. You can read all the details of it here, including source code. Ray Tomlinson is frequently credited with inventing the modern concept of email for the internet by establishing the @ symbol (in 1972) as a way of determining both the user and which computer to send the email to. By 1975, there were things like email folders (invented by Larry Roberts) and some other basic email apps. As is noted, by 1976 -- two years before Ayyadurai wrote his app -- email was 75% of all ARPANET traffic.

So, let's get to the Huffington Post trying to whitewash all of this factual history out of existence.

It started on August 20th, with an article by Larry Weber, CEO of Racepoint Global, kicking off a supposed "series" called "The History of Email." Except that the series has little to do with the history of email at all. It's just about Ayyadurai writing his particular email program in 1978. Great story. Smart kid done good. Has nothing to do with the invention of email. Weber, though, calls it The Boy Who Invented Email. At this point, it should be worth questioning why Weber suddenly decided this was such an interesting story. If you don't know, Weber is one of PR's biggest names, having built one of the most successful PR companies in history. It seems odd that he "just happened" to come across Ayyadurai's fake story and decided to help create a 5-part series about it. I have reached out to both Weber and the Huffington Post to ask if Weber has any financial relationship with Ayyadurai. As I publish this, neither has responded. The post will be updated if I hear from either. None of the posts in the series disclose any such relationship. Nor does the Huffington Post indicate that this is a "sponsored" post as far as I can tell.

The second and third articles in the series are both written by Leslie Michelson, the Director of High Performance and Research Computing at Rutgers Medical School (which took over UMDNJ a while back). More importantly, in 1978 he was the Director of the Laboratory Computer Network at UMDNJ, and apparently "challenged" Ayyadurai to create an electronic interoffice mail system. The fourth article in the series is by Robert Field, a technologist at Rutgers Medical School and, in 1978, a colleague of Ayyadurai at UMDNJ. See a pattern? Huffington Post also interviewed Ayyadurai for HuffPost Live in which he mostly attacks anyone who challenges his story, comparing himself to Philo T. Farnsworth -- except in that case, Farnsworth actually invented TV before anyone else. Ayyadurai did not do that with email. Apparently there are two more in this series that are still to come.

When you look at the collection of articles, they all repeat the same basic things: Ayyadurai did create an email system and "it was recognized by the federal government." This is misleading in the extreme. It's amusing how they all use the exact same language. Larry Weber claims: On August 30, 1982, the US government officially recognized V.A. Shiva Ayyadurai as the inventor of email by awarding him the first US Copyright for "Email," "Computer Program for Electronic Mail System," for his 1978 invention. This was awarded at a time when Copyright was the only way to protect software inventions. Leslie Michaelson says: On August 30,1982, V.A. Shiva Ayyadurai received official recognition as the inventor of email from the U.S. government, for the work he had done in 1978. Every article in the series includes this image of his copyright registration: Except, if you know anything about copyright, you know that what they're claiming is not at all true. The registration of copyrights is about as close to a rubber-stamping process as is possible. It has nothing to do with "inventions" at all, but is rather a copyright for the specific software program. Ayyadurai received a copyright on his email program and that's it. It has absolutely nothing to do with him being the inventor of email.

Microsoft holds a copyright on Windows, but no one claims it "invented" the glass things you look outside your building with. Hell, no one even claims that Microsoft invented windowing user interfaces, because it did not. The name of the program and the fact that you can copyright it does not make you the "inventor" of the concept behind it.

Weber, Ayyadurai and his friends try to counter the "it's a copyright, not a patent" claim with an incredibly misleading response. Here's Michelson: On August 30, 1982, Shiva was issued the first Copyright for "Email", "Computer Program for Electronic Mail System." At that time, Copyright was the equivalent of a patent, as there was no other way to protect software inventions. Only in 1980 was the Copyright Act of 1976 amended to protect software. Patent law had not even caught up to software in 1980 Copyright was not, and has never been "the equivalent of a patent." Copyright and patents are two very different things. Copyright protects specific expression. Patents protect inventions. That's why copyright protected only the specific code that Ayyadurai wrote, rather than the concept of email. While it's true that software wasn't considered patentable by many at the time, that doesn't, in any way, mean that a copyright on a particular piece of software was the equivalent in any way, to a patent at the time.

To further their argument, both Weber and Michelson include nearly identical, but slightly different, infographics on the history of email, which (of course) start in 1978 with Ayyadurai's work. According to those charts, email was barely even a thing outside of UMDNJ until 1985 when offline email readers come about. The infographic is the work of the impressive sounding International Center for Integrative Systems. What's left out is that the "Founder and Chairman" of the International Center for Integrative Systems happens to be... a guy named V.A. Shiva Ayyadurai. The same infographic tosses in a "milestone" in email in 1995, when "Echomail" launched. Doesn't sound familiar? Echomail was a company started by... V.A. Shiva Ayyadurai.

The rest of the articles seem to just focus on attacking those who actually were involved in the invention of email and who dared to speak out against Ayyadurai's claims. The story, which includes no actual support, is that the folks at BBN decided in the early 80s that email security was a big business opportunity and rewrote history. Whether or not BBN played up their role in the history of email is debatable, but none of that changes the fact that they (and many others) were using email, and had email software, long before Ayyadurai did anything. At no point do any of them address the long history of email systems long before Ayyadurai arrived on the scene. Instead, they just talk about this grand conspiracy theory, claiming (ridiculously) that if BBN were outed as not being the inventor of email (even though no one really claims the company was the inventor of email) it would harm its business. That makes no sense at all. First of all, BBN's history of work related to the internet is long and well-detailed (there's even a fantastic book about it). Even if it had nothing to do with email, it's other work is much more impressive. Second, the company is currently owned by defense contracting giant Raytheon. Does anyone honestly think Raytheon cares one way or the other who "invented email"?

All of their "debunking" claims rest entirely on a RAND report written by David Crocker in 1977, where they take two sentences totally out of context. Here's what Ayyadurai, Weber and their friends claim Crocker said: "At this time, no attempt is being made to emulate a full-scale, inter-organizational mail system. The fact that the system is intended for use in various organizational contexts and by users of differing expertise makes it almost impossible to build a system which responds to all users' needs." It's telling that Ayyadurai and his friends never actually tell you the name of the report or link to it. Because actually reading what Crocker wrote would undermine their argument. The report is called "Framework and Functions of the 'MS' Personal Message System" and you can read it here. Not only do Ayyadurai and his friends take Crocker entirely out of context, the two sentences above are not even contiguous sentences. They're not even on the same page. The first sentence is on page 18 of the paper. And it just says that this particular implementation (the program called MS) is focused on certain facets, and for MS "no attempt is being made to emulate a full-scale inter-organization mail system" even though the entire point of the paper is how various email implementations are clearly replicating inter-organizational mail systems. The second sentence comes on page 21 (with lots in between) and just focuses on the fact that lots of users have very different requests and desires, and it's impossible to satisfy everyone -- and that it, alone, is beyond the scope of this project. He's not, as Ayyadurai implies, claiming that building an interoffice email system is impossible. He's claiming that creating a full system that satisfies absolutely everyone is impossible. However, he does make it clear that other components are being worked on, and when combined could create a more functional email system. Here's that part, back in context: To construct a fully-detailed and monolithic message processing environment requires a much larger effort than has been possible with MS. In addition, the fact that the system is intended for use in various organizational contexts and by users of differing expertise makes it almost impossible to build a system which responds to all users' needs. Consequently, important segments of a full message environment have received little or no attention and decisions have been made with the expectation that other Unix capabilities will be used to augment MS. For example, MS has fairly primitive data-base management filing and cataloging) facilities and message folders have been implemented in a way which allows them to be modified by programs, such as text editors, which access them directly, rather than through the message system. From the actual source documents (which, again, Ayyadurai and his friends fail to link to and totally misrepresent), it's clear that all Crocker is saying is that no single system will satisfy everyone's current interests. He's not saying it's impossible to create an interoffice email system. He's just saying that lots of different people have lots of different needs for an interoffice email system, and for the team building MS, it would be too difficult to satisfy everyone's exact requests, so they're focusing on certain features, knowing others will add other components later. And, given that people are still working to improve upon email today, it seems that's still basically true.

Back to the rest of the paper, which actually does a tremendous job undermining basically all of Ayyadurai's claims (again, which suggests why no one names or links to the full paper) -- in the very first paragraph (again, this is prior to Ayyadurai doing anything) it talks about research for "computer software" for "electronic mail." Ooops. It goes on: This report describes the design of one such program--the "MS" message system. Early electronic mail systems have existed on the larger computers. MS incorporates and expands upon many of the functions and concepts of such systems within an integrated package... In other words, the very paper that Ayyadurai and his friends insist prove that there was no email prior to 1978 talks in depth about a variety of email programs. Again, remember that this was written in 1977. This is not historical revisionism. It goes on: One of the earliest and most popular applications of the ARPANET computer communications network has been the transfer of text messages between people using different computers. This "electronic mail" capability was originally grafted onto existing informal facilities; however, they proved inadequate. A large network greatly expands the base of potential communicators; when coupled with the communication convenience of a message system, there results a considerable expansion to the list of features desired by users. Systems which have responded to these increased user needs have resided on medium- and large-scaled computers. In other words, lots of folks are working on email systems. Ayyadurai tries to brush all those aside by saying that his actually included things like "folders." But again, Crocker's paper notes: Messages reside in file "folders" and may contain any number of fields, or "components." It actually has a whole section on folders. It also shows some sample messages at the time, showing "to," "from," "cc," "subject," and "message" fields, showing that the very basics of interoffice mail (such as "cc" -- standing for carbon copy, which was a standard bit of interoffice mail) had already moved into email. Here's a screenshot (which you can click for a larger version): Ayyadurai has built up his entire reputation around the (entirely false) claim that he "invented" email. His bio, his Twitter feed and his website all position himself as having invented email. He didn't. It looks like he wrote an implementation of an email system in 1978, long after others were working on similar things. He may have added some nice features, including the "blind carbon copy/bcc" concept (Update: Nope, bcc was in a 1977 RFC). He also appears to have potentially been ahead of others in making a full address book be a part of the email system. He may, in fact, be the first person who shortened "electronic mail" to "email" which is cool enough, and he'd have an interesting claim if that's all he claimed. Unfortunately, he's claiming much, much more than that. He's set up an entire website in which he accuses lots of folks, including Techdirt, of unfairly "attacking" him. He apparently believes that some of the attacks on him are because he spoke out against corruption in India. Or because people think only rich white people can invent stuff. None of that is accurate. There's a simple fact, and it's that Ayyadurai did not invent email.

He does not even attempt to counter any of the actual facts. The documents that are presented are misleading or out of context. He misrepresents what a copyright registration means. And his main "smoking gun," claiming that people are trying to unfairly write him out of history, is presented in a misleading way, out of context, with two entirely separate sentences pushed together to pretend they say something they didn't.

He's clearly quite proud of the email software he wrote in 1978, and that's great. He should be. It may have made some incremental improvements on what else was already out there, but it is not inventing email. It's also entirely possible that he was wholly unaware of everything else that was out there. And, again, that's great. We've talked many times in the past about multiple people coming up with the same ideas around the same time. Ayyadurai should be quite proud of what he's done. But he's simply not telling the truth when he claims to have invented email. His website is full of accolades from the past, including his Westinghouse award (which is a prestigious award for high schoolers), his copyrights and his later patents. There are local newspaper clippings. That's all great. It reminds me of the folder my mother has on all the nice things that happened to me as a kid. But none of it means he invented email.

It's unclear why Huffington Post is publishing this ludicrous and disproven narrative. It's unclear why one of the biggest names in PR is involved in all of this, though you can take some guesses. But there are facts, and they include that "electronic mail" existed long before V.A. Shiva Ayyadurai wrote his program as a precocious teenager. Huffington Post is either not disclosing a paid for series of posts (which would be a massive ethical breach) or they've been taken for a ride. Neither option speaks well of HuffPo and its journalistic integrity.

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Mogherini backs Western Balkan enlargement

van EU Observer - di, 09/02/2014 - 20:29
Italian minister and incoming top EU diplomat Mogherini has called for progress on Western Balkan enlargement, while saying Russia is no longer an EU “partner”.

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The Brett Kimberlin Saga: A Story Of Wacko Vexatious Lawsuits

van TechDirt - di, 09/02/2014 - 20:25
For years we've been paying somewhat loose attention to the saga involving Brett Kimberlin and his ongoing lawsuits against bloggers. The story was complex and convoluted from the beginning, and only got more so over time. In fact, it got so confusing that it almost became too difficult to jump into the story mid-stream. On top of that, the "partisan" overtones of many of the folks debating the story (on both sides) made it even more of a farce. When Kimberlin lost one of his lawsuits against some bloggers a few weeks ago, we debated writing a story, but there was so much back story to cover (and so many other things going on) that we let it slide. Thankfully, Dave Weigel, writing for the Daily Beast has a giant story about last month's trial, including much of the background. If you're unfamiliar with the Kimberlin saga (or even if you're very familiar with it), it's a worthwhile read.

The short version is that Kimberlin is a guy who had some significant legal problems back in the 70s, including being convicted of the so-called Speedway bombings. In the 1980s, he got lots of attention for claiming to have sold marijuana to Dan Quayle. In the 1990s, a book was written about him by Mark Singer called Citizen K: The Deeply Weird American Journey of Brett Kimberlin, but that "deeply weird American journey" was far from over. In the 2000s, he got attention warning about e-voting machines and the possibility of fraud (something we wrote about extensively at the time as well). But in the 2010s, it appears his "deeply weird" journey has moved onto suing people who say things he doesn't like.

Weigel's writeup of the trial is well worth reading, highlighting just how ridiculous the charges were, and how it was pretty clear that Kimberlin was suing these bloggers simply because he didn't like what they said about him, rather than on the basis of anything that was actually defamatory. The end result was that Kimberlin lost spectacularly. It didn't even go through a full trial. Kimberlin presented his evidence, and the judge ruled against him on the spot (i.e., without the other side having to go through its whole argument). As Ken "Popehat" White explains: After the close of Kimberlin's day of "evidence," the judge granted a motion for a directed verdict against him. Under Maryland law, that means the judge necessary found "a total failure of legally sufficient evidence to prove" Kimberlin's remaining defamation claim. The judge didn't just find Kimberlin's evidence unpersuasive; he effectively found it irrelevant Reading Weigel's account of the trial, you can quickly see why the judge ruled that way. So many of the points raised by Kimberlin clearly had nothing to do with anything coming anywhere near defamation, but rather were focused on "people said mean things online." For example, Kimberlin questioned one of the defendants, Robert Stacy McCain, about a blog post supposedly making fun of Kimberlin's daughter's singing career (in reality, that's only mentioned in passing -- most of the post is about Brett Kimberlin himself). Kimberlin then calls his own daughter, Kelsie, to the stand to testify (I'm not making this up) about how Taylor Swift tweeted some of her videos, leading Kimberlin to ask her, "So, are you considered a child prodigy?"

After the ruling, Kimberlin made it clear to Weigel that he wasn't done, and he intended to keep bringing new legal actions to tie everyone up in court (Kimberlin, in the past has allegedly made similar threats, saying, "I have filed over a hundred lawsuits and another one will be no sweat for me. On the other hand, it will cost you a lot of time and money and for what," in an email to another blogger (who posted the email). Here's what Kimberlin told Weigel: “These guys are going to come out today and say I’m a pedophile,” said Kimberlin. “And tomorrow, I can file another lawsuit against them. And now I know what I need to do. It’s going to be endless lawsuits for the rest of their lives. And that’s what it ends up being. I sue them. They sue me. They come into court. I sue them. They come into court. That’s the way it is.” A shortened (tweeted) version of this quote led Ken White to suggest crowdsourcing an effort to get Kimberlin declared a vexatious litigant. Apparently, Kimberlin has already "filed a motion for issuance of judgment," basically a precursor to asking for a new trial on the basis that the judge got it wrong. Another defendant claims that Kimberlin is also threatening to have his daughter sue them as well.

For years we've written about various attempts by people to get others to shut up when they say or write unkind things. Our legal system isn't supposed to allow that sort of thing. Kimberlin's actions are, once again, a (strong) reminder why we really need a federal anti-SLAPP law that will help get bogus lawsuits designed to stifle constitutionally-protected speech tossed out quickly.

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Ferguson Debacle Results In Armored Vehicles Being Removed From Two California Police Departments

van TechDirt - di, 09/02/2014 - 19:18
Today's militarized policeman often feels naked without the protection of mine-resistant vehicles, despite very little evidence that such vehicles are necessary to handle the deadly (or is it?) rigors of police work. Citizens, however, aren't so sure they like seeing their law enforcement officers rolling out like they're keeping the peace in the middle of Baghdad.

Even better, some representatives are finally starting to feel the same way. Sure, the vehicles and other militarized accoutrements may come cheap, thanks to DHS grants, but even deep, deep discounts aren't enough to justify picking these up simply because the US government has made them available.

Two law enforcement agencies will be returning their MRAPs to Uncle Sam, with the announcements arriving almost simultaneously. Davis, Calif., city officials have directed the police department to return a surplus U.S. military armored vehicle to the federal government after residents, citing images seen during protests in Ferguson, Mo., expressed fears of militarization.

The Davis Police Department now has 60 days to get rid of a $689,000 Mine Resistant Ambush Protected armored vehicle, which police acquired through a U.S. Defense Department program, and must consider other rescue vehicle options. Councilman Robb Davis explained the rationale behind the decision: "I am opposed to the investments that are made and then the results of those investments flowed back to our community in ways that may not hurt our community in a physical sense by are destructive in terms of not increasing our security but increasing our anxiety." Councilman Robb Davis said at a council meeting Tuesday. The public's growing unease with the weaponry amassed via the Pentagon's 1033 program has been hurtling towards critical mass in recent weeks, thanks to the heavy-handed tactics and military gear used by police officers in response to protests in Ferguson, MO. The police cited armored vehicles' life-saving qualities in two separate instances, but that wasn't enough to sway the council's vote. Perhaps the worst part (for the cops) is the fact that they didn't even get a chance to take their new armored toy for a spin. The Davis Police Department took possession of the free vehicle two weeks ago… It still had that new 1033 acquisition smell. What a shame.

Over in San Jose, CA, it's a completely different story. Rather than having an MRAP pried from law enforcement's clutches by city reps, the San Jose Police Department gave it up voluntarily to protect its relationship with the people it serves.

San Jose police spokeswoman Sgt. Heather Randol told KCBS the decision was made based on concerns for potential damage to the department’s image and community relationships. “We want to keep their trust. We don’t want them to feel we are going off on another path with our police department,” she said. “We want them to feel comfortable about the tools that we use.” Kudos to the SJPD. Not many police departments offer this sort of statement as lip service, much less with actions to back it up. Notice that it's San Jose, with a population of nearly 1 million and a violent crime rate right at the national average, that is voluntarily giving up its armored vehicle. Davis (pop. 66,000) has a violent crime rate that's roughly half of San Jose's, and its MRAP had to be taken away from it by the city government. (Quick fact: San Jose had 35 murders in 2012. Davis had 4... in the last decade.) Who would you rather be policed by? Those who know that combating serious crime doesn't require the use of shock-and-awe vehicles or those who think that officer safety is more important than maintaining a positive relationship with their community?

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City Of London Police Issue Vague, Idiotic Warning To Registrars That They're Engaged In Criminal Behavior Because It Says So

van TechDirt - di, 09/02/2014 - 18:19
This was mentioned briefly in our recent post about EasyDNS changing how it deals with online pharmacies, but it's still dealing with bizarre requests from the City of London Police. As we've been detailing, the City of London Police seem to think that (1) their job is to protect the business model of the legacy entertainment industry and (2) that they can do this globally, despite actually just representing one-square mile and (3) that they can do this entirely based on their own say so, rather than any actual court ruling. It started last year when the City of London Police started ordering registrars to transfer domains to the police based entirely on their say so, rather than any sort of due process/trial that found the sites guilty of violating a law. The police wanted the domains to point to sites that the legacy entertainment industry approved of, which makes you wonder why the police are working on behalf of one particular industry and acting as an ad campaign for them.

Speaking of advertising, the City of London Police's more recent tactic is inserting ridiculous and misleading banner ads on websites based on a secret blacklist that has no oversight and no due process or way to appeal. Such lists often include perfectly legitimate sites. But, I'm sure we can trust the City of London Police to get this right, given that the guy in charge of the City of London Police's Intellectual Property Crime Unit (PIPCU), Adrian Leppard, believes that "the Tor" is 90% of the internet and that "Bitnet" is a "huge risk and threat to our society."

The latest move, as detailed in a post by Mark Jeftovic from EasyDNS, is sending registrars like EasyDNS a "notice of criminality" that doesn't directly tell the company to do anything, other than to think long and hard about who they do business with. Classification: NOT PROTECTIVELY MARKED
Dear Sir or Madam,

Notice of Criminality

[domain name redacted by easyDNS]


Receipt of this email serves as notice that the aforementioned domain, managed by EASYDNS TECHNOLOGIES, INC. 28/03/2014 is being used to facilitate criminal activity, including offences under:

Fraud Act 2006
Copyright, Designs and Patents Act 1988
Serious Crime Act 2007

We respectfully request that EASYDNS TECHNOLOGIES, INC. give consideration to your ongoing business relationship with the owners/purchasers of the domain to avoid any future accusations of knowingly facilitating the movement of criminal funds.

Should you require any clarification please do not hesitate to make contact.

Kind regards,

PIPCU Anti-Piracy | Operations | Police Intellectual Property Crime Unit | PIPCUantipiracy@cityoflondon.police.uk<PIPCUantipiracy@cityoflondon.police.uk > | Address: City of London Police Economic Crime Directorate, 21 New Street, London, EC2M 4TP | ü www.cityoflondon.police.uk<http://www.cityoflondon.police.uk/>

As Jeftovic notes, the implication here is pretty clear. The City of London Police wants to "build a case" that EasyDNS is somehow responsible for aiding and abetting criminal activity. Once again, we are being asked to do (something, we're actually not sure what this time) based entirely on an allegation which has never been tested in a court of law and has been afforded absolutely zero "due process". (The domain in question is a search engine that hosts no content).


We think this time the intent is not to actually get the domain name taken down, but rather to build some sort of "case" (I won't call it legal, perhaps the better word would be "kafka-esque") that we, easyDNS by mere "Receipt of this email" are now knowingly allowing domains under management to be "used to facilitate criminal activity".

Thus, if we don't takedown the domains PIPCU want us to, when they want us to, then we may face accusations in the future (in their own words) "of knowingly facilitating the movement of criminal funds."

Which of course, we don't know at all because there has never even been a court case anywhere to test the PIPCU allegations. I know I never went to law school or anything, but in my mind, until that happens, that is all they are – allegations.
And, of course, it's tough to see how the City of London Police have any jurisdiction at all over EasyDNS, a Canadian company. Jeftovic goes on to wonder if the City of London Police are actually defaming the websites they accuse in these notices. Of course, the problem is that these sites tend to be small and powerless. As we've seen with sites like Dajaz1 and Rojadirecta, even after they were taken down and businesses were destroyed for over a year before the Justice Department in the US simply dropped the cases and handed back the domain names, there was little those sites could do in response. Sure, they could have filed a lawsuit, but lawsuits are expensive, and a lawsuit for a tiny struggling website against the US government? That's just not likely to get anywhere productive.

What's extra troubling is how this tactic of targeting registrars for non-judicial censorship like this is becoming increasingly common -- and it's happening in countries like the US and the UK which claim to support basic principles of due process and are (supposedly) against prior restraint. When it comes to the City of London Police, they seem to be operating without any sort of controls or oversight, just making it up as they go along. Unfortunately, because they're "the police," it doesn't seem likely that anyone will get them to cut out this censorious and harassing activity.

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Iranian Grand Ayatollah Issues Fatwa Against 'Immoral' High-Speed Internet Connections

van TechDirt - di, 09/02/2014 - 16:57
Iran continues to battle the Internet, recognizing the fact that an unfiltered exchange of ideas (some of them admittedly often horrifically bad) tends to undermine repressive regimes. While the President and the Minister of Communications have stressed that higher-speed connections (and less censorship) are useful to Iran's citizens, many others in the government feel that increasing speeds means giving up lots and lots of control. (via @vision_studios) [C]onservative, religious, and security organizations and officials fear the loss of control that a faster Internet will bring, and as such resist the administration’s efforts to provide the faster services. These government officials would prefer the President push everyone onto Iran's version of the Internet: the National Information Network. Whenever it's finally fully implemented, it will function like a countrywide Intranet, giving government control over access as well as opening users up to significant amounts of surveillance.

Since President Rouhani seems reluctant to throttle the nation's internet users, others have pressed forward on the issue. Cue the Grand Ayatollah of Iran, who has arbitrarily determined that high-speed connections are an affront to [this particular] God. A Grand Ayatollah in Iran has determined that access to high-speed and 3G Internet is “against Sharia” and “against moral standards.” In answer to a question published on his website, Grand Ayatollah Nasser Makarem Shirazi, one of the country’s highest clerical authorities, issued a fatwa, stating “All third generation [3G] and high-speed internet services, prior to realization of the required conditions for the National Information Network [Iran’s government-controlled and censored Internet which is under development], is against Sharia [and] against moral and human standards.” Left undiscussed is how incremental increases in speed are incremental increases in sin or how exactly an Iran-only internet would redeem "immoral" high-speed connections. These sorts of questions are better left unasked, especially in a nation filled with religious leaders that can impose and carry out death penalties with impunity.

The bottom line is that a clunky internet is a mostly-useless internet, even for non-subversive reasons like seeking jobs or performing research. Shirazi's declaration is mostly noise-making, but it does serve a purpose -- to give the conservatives pushing for the Iranternet more ammo to use against political opponents. Nothing brings the froth to the surface faster than blending politics and religion, especially when the subject matter is the world wide web.

The former Minister of Communications had this to say in support of strangling the web. "If the Ministry of Communications does not pay attention to the sensitivities of the people and the ulama [high-ranking clerics], [the Ministry] will have no choice but to prepare itself for significant developments at the Parliament and in society." Note that the "sensitivities of the people" are somehow exactly the same as the "sensitivities of high-ranking clerics," even when the people are actively seeking better connection speed. Mahmoud Khosravi, Chairman of the Board and Managing Director of the Ertebatat-e Zirsakht (Communications Infrastructure) Company, stated recently that three million new requests for high-speed Internet services had been filed. Iran's citizens want one thing. Parts of the government want another. And religious leaders just want control of both the people and the government. In between lies the internet. "Knowledge is power" as they say, and the internet contains a wealth of it. And Iran's power structure -- the part of it that relies on stupidity like "2G good, 3G bad" fatwas -- would like this threat neutralized, and it's willing to further harm the future of the nation to do it.

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[Ticker] Swiss economy flatlines

van EU Observer - di, 09/02/2014 - 16:36
Switzerland's economy recorded zero growth in the second quarter of 2014, the country's State Secretariat for Economics reported on Tuesday. Analysts said that the performance, which mirrors the eurozone's flat performance between April and June, was the result of lower exports with the eurozone and a fall in construction spending.

Categorieën: Europees nieuws

France wants creation of new EU migration post

van EU Observer - di, 09/02/2014 - 16:34
France wants to create a European coordinator to ensure member states follow through more rapidly on their asylum and border control commitments.

Categorieën: Europees nieuws

No, Microsoft Is Not Suddenly 'Defying' A Court Order To Turn Over Emails

van TechDirt - di, 09/02/2014 - 14:54
A very stupid story broke out over the weekend and got some buzz after some people read way too much into some legal maneuvering. As you may recall, back in April a court ruled that Microsoft had to hand over email data stored in Ireland based on a warrant issued in the US under the (incredibly outdated) Electronic Communications Privacy Act (ECPA). Microsoft, quite reasonably fought back, pointing out that a warrant only applies within the US and not to foreign countries. The DOJ (and the original judge) claimed that an ECPA warrant isn't really like a warrant at all, but rather a "hybrid warrant/subpoena." But, Microsoft (rightly) points out that this is the DOJ wanting the best of both worlds -- while ignoring the protections of both. Here was the crux of Microsoft's argument: The Government's interpretation ignores the profound and well established differences between a warrant and a subpoena. A warrant gives the Government the power to seize evidence without notice or affording an opportunity to challenge the seizure in advance. But it requires a specific description (supported by probable cause) of the thing to be seized and the place to be searched and that place must be in the United States. A subpoena duces tecum, on the other hand, does not authorize a search and seizure of the private communications of a third party. Rather. it gives the Government the power to require a person to collect items within her possession, custody, or control, regardless of location, and bring them to court at an appointed time. It also affords the recipient an opportunity to move in advance to quash. Here, the Government wants to exploit the power of a warrant and the sweeping geographic scope of a subpoena, without having to comply with fundamental protections provided by either. There is not a shred of support in the statute or its legislative history for the proposition that Congress intended to allow the Government to mix and match like this. In fact, Congress recognized the basic distinction between a warrant and a subpoena in ECPA when it authorized the Government to obtain certain types of data with a subpoena or a "court order," but required a warrant to obtain a person's most sensitive and constitutionally protected information -- the contents of emails less than 6 months old. Unfortunately, as we noted at the end of July, the judge in the case, Loretta Preska sided with the DOJ.

On Friday, Judge Preska did what was basically a procedural move. When she had made the original ruling, she had put a stay on the ruling, fully expecting Microsoft to appeal. This is fairly standard procedure. When a district court judge knows a ruling is likely to be appealed the judge will frequently "stay" the ruling pending the appeal. The DOJ claimed that this was a procedural error and that the particular order, for a whole host of boring legal reasons, is not an "appealable order" and that the stay is inappropriate for that reason. Everyone involved in the case -- the Judge, Microsoft and the DOJ -- all know that it's going to go to an appeal. There's just a very, very minor debate over the correct legal process to get it to appeal. Judge Preska agreed that the original order probably is not appealable, and thus the stay order makes no sense, since it was only pending the appeal. Thus, to speed things along, she lifted the stay, noting quite clearly that this was to help along the appeal process: Both parties share the common goal of permitting the Court of Appeals to hear this case as soon as possible. Their disagreement concerns the correct path to that goal. In order words, the parties agree on the destination but the route to get there is the subject of hot dispute. Basically, this was a very minor move to push things onto the proper legal track to get this case before the appeals court. Because the original order isn't technically appealable, the stay didn't make any sense, so the Judge removed it, with everyone knowing that Microsoft won't hand over the info, leading the Judge to issue a different ruling that can be appealed. I saw the news on Friday and realized it wasn't worth writing about, because it's basically nothing.

However, a few sites appear to have totally misread this into being a big deal. If you don't read carefully, seeing that a judge lifted a stay suggests that Microsoft is being forced to hand over the info. But anyone who actually read any of the details (including the decision and/or the Reuters report that broke the news) should have known that wasn't actually the case. Microsoft then said the most obvious thing in the world: that it wasn't handing over the info, because it hasn't done that all along and this is what it needs to do to get the case to appeal. But a bunch of sites misread the whole thing as if Microsoft was somehow taking a new stand, rather than just procedurally moving things forward. A site called WindowsITPro wrote up that Microsoft was now "defying" a court order and this somehow proved it was a heroic company, fighting for its customers: Despite a federal court order directing Microsoft to turn overseas-held email data to federal authorities, the software giant said Friday it will continue to withhold that information as it waits for the case to wind through the appeals process. The judge has now ordered both Microsoft and federal prosecutors to advise her how to proceed by next Friday, September 5.

Let there be no doubt that Microsoft's actions in this controversial case are customer-centric. The firm isn't just standing up to the US government on moral principles. It's now defying a federal court order.
They did this, even though in the very next paragraph the Microsoft statement itself points out that this is nothing more than a procedural issue. Unfortunately, sites like Slashdot also picked up on the WindowsITPro story and repeated the misleading headline.

Yes, Microsoft is trying to protect its customers' email data (held in Ireland) in this case. And yes, it's an important case. But Microsoft (and a variety of other tech companies that filed amicus briefs in support of Microsoft's position) took that stand months ago. What happened on Friday was a minor procedural effort to move the case along, and didn't represent any big new "heroic" move by Microsoft to "defy" a court order. Nothing to see here, move on. The appeals court is where this case will actually get interesting.

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Mag de gemeente persoonsgegevens verstrekken aan een tandartspraktijk?

van ICT recht - di, 09/02/2014 - 13:53

Post van een onbekende tandartspraktijk op je deurmat. Of je er wel even aan denkt dat je kindje naar de tandarts moet, hij of zij is tenslotte net twee jaar oud geworden. Erg handig, zo een dergelijke reminder, maar hoe wéét deze tandartspraktijk dit? Na wat uitzoekwerk blijkt dat de gemeente persoonsgegevens (adres + geboortedatum) over jouw kinderen doorspeelt aan een (jeugd)tandartspraktijk. De gemeente geeft vervolgens aan dat dit de normale gang van zaken is. Een tandartspraktijk kan volgens de gemeente gezien worden als een ‘vrije derde’ en er is sprake van een maatschappelijk belang. Bovendien dient er een gat gevuld te worden, de schooltandartsen zijn namelijk afgeschaft. De betreffende tandartspraktijk waar jij post van hebt ontvangen neemt deze rol op zich. Hartstikke fijn toch, dat de gemeente deze persoonsgegevens ongevraagd verstrekt?

Nee, helaas is dit helemaal niet hartstikke fijn en is dit niet zomaar toegestaan. In de Basisregistratie Personen (BRP) zijn persoonsgegevens opgenomen van alle ingezeten en niet-ingezeten van Nederland. Het ligt voor de hand dat niet iedereen toegang heeft tot deze gegevens of deze gegevens kan opvragen. De regelgeving die ziet op de BRP kent daarom ook een gesloten verstrekkingsregime: het is nauwkeurig omschreven aan welke organisaties gemeenten gegevens mogen verstrekken.

Wat betreft argument nr. 1 van de gemeente klopt het dat gegevens verstrekt mogen worden aan ‘vrije derden’. Een vrije derde is een rechtspersoon zonder winstoogmerk. Een tandartspraktijk kan niet gezien worden als een rechtspersoon zonder winstoogmerk. Het betoog van de gemeente gaat voor dit punt dus al niet op. Tevens natuurlijke personen kunnen aangemerkt worden als vrije derden. Dat een tandartspraktijk geen natuurlijk persoon is spreekt voor zich.

Daarbij geeft de gemeente ook nog aan dat er sprake is van een maatschappelijk belang. Bij gemeentelijke verordening kunnen door derden verrichte werkzaamheden met een gewichtig maatschappelijk belang voor de gemeente worden aangewezen. In de gemeentelijke verordening van deze betreffende gemeente wordt aangegeven dat gegevens aan vrije derden verstrekt worden met inachtneming de wet. De cirkel is nu weer rond. Gegevens mogen volgens de wet verstrekt worden aan vrije derden, maar een tandartspraktijk is dit niet.

Op naar argument nr. 2 van de gemeente: de tandartspraktijk vult een ‘gat’ op (ha ha, woordgrapje van de gemeente zelf). Dit is natuurlijk wél hartstikke fijn. Een jeugdtandarts is een goede vervanger voor de schooltandarts. Het doet er alleen niet toe of deze tandartspraktijk dit gat kan opvullen of niet. De tandartspraktijk is géén ‘vrije derde’. Daarom mogen de gegevens überhaupt niet verstrekt worden aan deze tandartspraktijk.

Tot slot kun je je afvragen of er hier geen sprake is van systematische gegevensverstrekking. Indien een tandartspraktijk elke keer gegevens ontvangt wanneer een kind twee jaar oud is geworden, kun je spreken over systematische gegevensverstrekking. Dit is slechts toegestaan als de tandartspraktijk aangemerkt kan worden als een ‘bijzondere derde’. Bijzondere derden moeten bij algemene maatregel van bestuur worden aangewezen. Bovendien moeten de gegevens die verkregen worden noodzakelijk zijn voor de vervulling van hun taak. Dit is bij de tandartspraktijk niet het geval.

Ze moeten de gemeente nog maar eens stevig aan de tand voelen. Voor je het weet ontvangen wij, met dank aan de gemeente, wekelijks een stapeltje gepersonaliseerde post. Dit ‘Big Brother’ idee ban ik liever héél snel uit mijn gedachten.

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Juncker starts interviews for his new commission

van EU Observer - di, 09/02/2014 - 13:41
Incoming EU commission chief Jean-Claude Juncker has started meeting the nominees for his 28-strong college, but gender balance continues to be a problem.

Categorieën: Europees nieuws

Indian Media Giant's New Policy For Employees: Hand Over Your Social Media Passwords

van TechDirt - di, 09/02/2014 - 12:57

Over the last half a decade, Techdirt has written a number of times about employers seeking the right to ask for the social media passwords of their employees. But a story on the Quartz Web site suggests that India's largest media conglomerate has gone much further in its demands. In fact, there are two stories on Quartz covering this, posted on consecutive days. Here's what the first one reported: Under a contract unveiled to employees last week, Bennett, Coleman and Company Ltd -- India's largest media conglomerate and publisher of the Times of India, Economic Times, among many other properties -- told staffers they are not to post any news links on their personal Twitter and Facebook accounts. This runs counter to many social-media policies in newsrooms across the world, which often encourage journalists to share content widely.

But BCCL, as the company is known, is telling journalists that they must start a company-authorised account on various social media platforms. They also have the option of converting existing personal social media accounts to company accounts. On these, they are free to discuss news and related material. The company will possess log-in credentials to such accounts and will be free to post any material to the account without journalists' knowledge. It is now also mandatory to disclose all personal social-media accounts held by the journalist to the company.
This understandably drew wide criticism for being clueless about how social media works, and how companies might try to benefit from it -- see, for example, Mathew Ingram's analysis on Gigaom. This barrage of negative comments coupled with resistance from the journalists affected seems to have forced the company to backtrack quickly -- but not much, as the second Quartz story explains: There are two main changes. An earlier clause that said the company could continue to post updates from an employee's account even after they leave, has been removed. Secondly, the clause that earlier prohibited an employee from posting news links on her personal social media account has now become more ambivalent. It states: If you are planning to maintain two user accounts, then the company expects that all content related to your primary role at BCCL should be solely posted on your Company User Account, though it can be re-tweeted/shared from your Personal User Account. It is not clear whether that means journalists can or cannot post news and related links on their personal account. But they can retweet them off the official accounts. Adding to confusion, the company said it strongly encourages staffers to maintain one account, which by default, becomes the official account. Moreover: Like in the previous contract, the company claims unhindered access to all followers/friends of company user accounts. Any future revenue from such accounts shall belong solely to the company. It remains to be seen whether this slightly amended policy proves more acceptable to BCCL employees, or whether resistance continues and it is changed again. In any case, it's a reminder that important issues about who "owns" and controls social network accounts used by employees are still largely unresolved many years after the problems first surfaced.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Het grijze gebied tussen de klachten-, retour- en garantieprocedures (1)

van ICT recht - di, 09/02/2014 - 10:57

Een van mijn werkzaamheden is het uitvoeren van websitescans, vooral voor webwinkeliers. Ik check deze dan van A tot Z op alle relevante wet- en regelgeving, en adviseer over de verschillende mogelijkheden om wél aan de wet te voldoen.

Wat ik vaak zie is dat webwinkeliers klachtenprocedures, garantieprocedures en retourprocedures door elkaar halen, hetgeen ook niet zo gek is. Iemand die een beroep doet op garantie omdat een product plotseling stuk is, heeft immers ook tegelijk een klacht. En valt een defect product dat iemand al terugstuurt binnen de 14 dagen bedenktermijn nu onder garantie of het retourrecht?

Deze week bespreek ik de klachtenprocedure en de garantieprocedure en volgende week de samenloop tussen garantieprocedure en de retourprocedure.


Ik zal per geval aangeven wat de regels en de verschillen zijn, te beginnen met de klachtenprocedure. Het vermelden van een klachtenprocedure is verplicht (art.6:230 l onder d BW) en moet in normale mensentaal op een klantenservicepagina.

Je vermeldt hier niet alleen wat de eigen procedure is (bellen, mailen, postduif en de termijn waarbinnen u de klacht inhoudelijk oplost), maar ook (indien van toepassing) de mogelijkheid van toegang tot buitengerechtelijke klachten- en geschilbeslechtingsprocedures waarbij je bent aangesloten, en de wijze waarop daar toegang toe is. Dus ben je aangesloten bij een geschillencommissie, dan dien je de consument hierover te informeren, en aan te geven hoe hij bij die geschillencommissie een klacht kan indienen.

Een klacht kan zowel gaan over een product als over de dienstverlening van de webwinkelier. Als iemand een klacht heeft over een product, is dat niet altijd iets dat tevens voor garantie in aanmerking komt. Er hoeft immers niet iets mis te zijn met het product. Het kan ook zijn dat de productbeschrijving niet duidelijk was, waardoor de consument andere verwachtingen had.

De klachttermijn die als redelijk wordt aanvaard is twee maanden na ontdekking van het gebrek aan het product.


Het vermelden van informatie over de garantieprocedure is ook een verplichting. Ook deze procedure moet in simpele taal worden uitgelegd aan de consument. Naast de vermelding van de wettelijke garantie waar een consument altijd recht op heeft moet je ook duidelijk zijn over eventuele aanvullende fabrieksgarantie of de commerciële ‘geen gezeur’ garantie die je als webwinkelier biedt.

Garantie is voor veel webwinkeliers een lastig onderwerp. De basis is in ieder geval de wettelijke garantie. Een consument heeft simpelweg recht op een goed product. Een product moet doen wat er redelijkerwijs van verwacht mag worden. Is dit niet het geval, dan moet de webwinkelier zorgen voor herstel of vervanging van het product. Is dit niet mogelijk dan heeft de consument recht op zijn geld terug. Doorverwijzen naar leveranciers of fabrikanten is niet toegestaan: de consument heeft het product bij jou gekocht en mag dus ook bij jou aankloppen in dit geval.

Aan de wettelijke garantie is geen termijn gekoppeld in de wet, het wordt berekend aan de hand van de te verwachten levensduur bij normaal gebruik. Het ene product gaat immers langer mee dan het ander en van het ene product wordt ook weer meer verwacht dan van het andere. Denk aan een A-merk of een B-merk.

De eerste zes maanden na aankoop geldt een omgekeerde bewijslast. Dat wil zeggen dat de webwinkelier moet bewijzen dat het defect te wijten is aan een fout van de klant. Lukt dat niet, dan wordt het defect geacht een fabricagefout te zijn en ben je als verkoper verantwoordelijk.

Als een consument een terecht beroep doet op de garantie moet de afhandeling kosteloos zijn. Tot slot moet de consument tijdig na ontdekking van het gebrek het garantieverzoek/de klacht indienen bij de verkoper. Daarbij geldt ook hier dat een termijn van 2 maanden in ieder geval tijdig is.


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Luchtverkeerssysteem voor drones moet intensief gebruik mogelijk maken

van ICT recht - di, 09/02/2014 - 10:03

Vandaag las ik op NU.nl dat NASA werkt aan een luchtverkeerssysteem voor drones. Het systeem moet het intensieve gebruik van drones boven dichtbevolkte gebieden mogelijk maken. Hierdoor zouden bezorgdiensten bijvoorbeeld hun pakketten via drones kunnen laten afleveren en zouden onbemande vliegtuigjes vaker ingezet kunnen worden voor inspecties. Het is goed dat NASA onderzoek doet naar het luchtverkeerssysteem, maar het gebruik van drones ‘an sich’ is door een eventuele komst van het systeem nog niet toegestaan.

Het systeem dat de NASA ontwikkelt is bedoeld om de drones op een veilige manier te kunnen laten vliegen. Dat betekent dat de kans op ongelukken met de vliegtuigjes wordt verkleind. Doordat het systeem de drones zelf en daarbij het weer continue in de gaten houdt, worden de juiste acties uitgevoerd waardoor een ongeluk mogelijk wordt voorkomen.

Hoewel het luchtverkeerssysteem de veiligheid moet waarborgen, betekent dit nog niet dat het gebruik van drones daadwerkelijk is toegestaan. Onder de huidige Nederlandse wetgeving mogen commerciële vluchten zonder ontheffing niet worden uitgevoerd. Het recreatieve gebruik van de drones is wel toegestaan, zolang de gebruiker rekening houdt met de wetgeving voor modelvliegen. Uit deze wetgeving vloeit echter voort dat het vliegen dicht bij bebouwing niet mag.

Naast het feit dat de veiligheid moet worden gewaarborgd, blijven de bezwaren rondom privacy bestaan. Het is immers gemakkelijk om foto’s of video’s te maken op plaatsen waar je normaalgesproken geen toegang toe hebt. Een luchtverkeerssysteem biedt hier geen oplossing in. De vraag is ook of hier een directe oplossing voor is. In principe biedt de huidige wetgeving genoeg waarborgen, maar is het kwaad al geschiedt op het moment dat een foto of video wordt gepubliceerd.

De ontwikkeling bij de NASA is een goed teken voor de commerciële vliegers of bedrijven die graag gebruik willen gaan maken van de nieuwe techniek. Maar voordat ze daadwerkelijk de pakketjes mogen afleveren of inspecties mogen uitvoeren, zal de huidige wet- en regelgeving moeten worden aangepast. Tot die tijd zal een drone voor commerciële doeleinden zonder ontheffing nog niet de lucht in mogen.

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