Corporate sovereignty has become a big issue as a result of its inclusion in TPP and TAFTA/TTIP, but it's present in hundreds of other trade and investment treaties.The heated discussion of investor-state dispute settlement (ISDS) chapters in those negotiations has led some countries to realize that corporate sovereignty could prove very costly to them one day. As we've written, both South Africa and Bolivia have decided to dismantle the ISDS provisions by renegotiating treaties, and according to a new report in The Economic Times, India has decided to do the same on a large scale: India has written to 47 countries to nullify the existing bilateral investment agreements and ink fresh treaties that will make it mandatory for foreign investors to exhaust local judicial remedies before seeking arbitration. Forcing foreign investors to use domestic courts is designed to stop them circumventing Indian's laws by going outside the system to arbitration tribunals. Among the 47 treaties that India wants to renegotiate are relatively new ones, as well as others that can be cancelled quite easily. The Economic Times provides some information on the growing magnitude of India's ISDS problem: The government amended the text after being dragged into international arbitration by as many as 17 companies or individuals including Deutsche Telekom of Germany, Vodafone International Holdings BV, Sistema of Russia, Children's Investment Fund and TCI Cyprus Holdings. India even lost an international arbitration case involving White Industries of Australia. This is a very sensible move by the Indian government, and a great signal to other countries exposed to the threat of costly corporate sovereignty claims in the future. It will be interesting to see who is next now that India has helped legitimize further the idea of renegotiating these deals.
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- SmartWater is a chemical fingerprint spray that can help identify thieves (who get caught) by covering them with a durable watermark. This stuff can stay on skin for months, and SmartWater has been a commercial product for decades now. [url]
- Actual fragments of DNA injected into underground wells could help track hydrothermal water for drilling optimal wells for geothermal energy production. DNA-encoded materials can identify where water flows underground, and they're a bit more environmentally friendly and durable than radioactive tracers or chemical dyes. [url]
- Wrinkled silica polymers can be formed into artificial fingerprints that could be used as anti-counterfeit tags. If artificially intelligent robots are going to take over the world someday, maybe we should give them fingerprints just like us. [url]
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Forty years ago, the general counsel for the CIA reached a conclusion that has since been ignored repeatedly -- most often by the current administration. CIA GC Anthony Lapham issued a memo on the effectiveness of using the Espionage Act to punish leakers/whistleblowers. In short, Lapham found its application in this manner to be not unlike approaching every leak as a nail because all you have is a Nerf bat. (via Boing Boing)
“It is extremely doubtful that the provisions [of the Espionage Act] were intended to have application in such situations, and as a matter of historical fact, leaving aside the unsuccessful Ellsberg prosecution and possibly one or two other cases, they never have been so applied.”
Moreover, added Lapham, “Under current Justice Department procedures, unauthorized disclosures of national security information, in other than espionage situations, are almost never even investigated, let alone prosecuted.”
Our current Justice Department is more than happy to prosecute, pushed along by a president who shows little sympathy for those who expose this country's abuses, errors, and shortcomings. The government has bagged one significant trophy -- Chelsea Manning -- along with a handful of other whistleblowers, and shows zero interest in holding back should Ed Snowden ever return to the US.
But with all the prosecutions, the stripping of protections for whistleblowers, the campaigns to eradicate "insider threats," the US government still can't stop the leaks. It has punished whistleblower after whistleblower, but Snowden continues to frustrate it, and he's been joined by other leakers yet to be identified.
Part of the problem, as Lapham saw it four decades ago, is the government's desire to treat every leak as threatening to national security -- a desire that has only grown in size and intensity over the past 15 years.
“It seems to us that the universe of classified information is quite simply too large, and encompasses such a great variety of material of so many different degrees of importance to the national security, as to make impractical the idea of extending criminal sanctions to the unauthorized disclosure of all such information,” he wrote.
Espionage charges simply don't make sense when information is turned over to the general public via journalists. Sure, this means the country's enemies now have access to documents the government would prefer they hadn't, but it's not even slightly equivalent to handing classified documents directly to unfriendly governments. But the law is written so broadly as to forbid the disclosure of classified information to any "unauthorized person" -- and this administration in particular has chosen to deploy a very literal interpretation of that phrase, rather than work within the spirit of the law, which was to protect state secrets from foreign enemies. It has been used several times in the past to punish actual spies, but in recent years, it has almost exclusively been applied to whistleblowers who have given information to journalists.
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Appeals Court: As Long As The Government Has 'Good Faith,' It Can Root Around In Your Digital Files As Much As It Wants
A case dealing with a warrant issued in 2003, a subsequent warrant issued in 2006, and a whole lot of judicial work in between finally concludes -- with the Second Circuit Court of Appeals coming down on the side of the government's apparent "right" to seize everything, hold it for an indefinite period of time, and pore through unrelated documents in hopes of finding evidence of additional criminal activity.
The government, in the form of the US Army, first went after Stavros Ganias for billing improprieties and theft of copper wire. Over the next three years, this morphed into an IRS investigation for tax fraud, using the same hard drives the Army seized three years before the IRS showed any interest. The IRS obtained its own warrant and began looking for evidence related to its suspicions.
In 2014, the Appeals Court decided Ganias' Fourth Amendment rights had been violated by the government's multi-agency fishing expedition.
The Government's retention of copies of Ganias's personal computer records for two-and-a-half years deprived him of exclusive control over those files for an unreasonable amount of time. This combination of circumstances enabled the Government to possess indefinitely personal records of Ganias that were beyond the scope of the warrant while it looked for other evidence to give it probable cause to search the files. This was a meaningful interference with Ganias's possessory rights in those files and constituted a seizure within the meaning of the Fourth Amendment.
[....] The Government had no warrant authorizing the seizure of Ganias's personal records in 2003. By December 2004, these documents had been separated from those relevant to the investigation of American Boiler and IPM. Nevertheless, the Government continued to retain them for another year-and-a-half until it finally developed probable cause to search and seize them in 2006. Without some independent basis for its retention of those documents in the interim, the Government clearly violated Ganias's Fourth Amendment rights by retaining the files for a prolonged period of time and then using them in a future criminal investigation.
The DOJ immediately asked for a rehearing, claiming it should be able to dig through unrelated files because the seized hard drives were technically government property. Besides, it explained in its 86-page brief, this sort of fishing around in non-relevant files had once resulted in a child pornography conviction.
The Second Circuit's second take [PDF] doesn't necessarily align with the government's arguments. However, despite the opinion running 60 pages, the court spends very little time discussing the Fourth Amendment implications and a lot of time developing the government's "good faith exception" argument for it.
For whatever reason, the court mostly glosses over the lack of "good faith" in the Army's examination of files unrelated to is investigation and its extended seizure (in the form of mirrored hard drives) of non-relevant files. Instead, it focuses mostly on the IRS's warrant and search of the mirrored drives, finding that this warrant -- issued two-and-a-half years after the first one and predicated on the Army's peek at unrelated files -- was obtained and executed in "good faith." The end result is another win for the government's heart being in the right place and another loss for Fourth Amendment protections.
Ganias argues that the Government retained non-responsive data on mirrored hard drives acquired pursuant to a 2003 search warrant in violation of the Fourth Amendment, and that evidence acquired pursuant to a 2006 search of that data should thus have been suppressed. Because we find that the Government relied in good faith on the 2006 warrant, we need not and do not decide whether the Government violated the Fourth Amendment, and we affirm the judgment of the district court.
Further on in the opinion, the court inadvertently shows its hand -- pointing out that discussing "good faith" exceptions means it's not interested in examining the merits of the defendant's arguments.
Having noted Ganias’s argument, we do not decide its merits. We instead turn to the question of good faith.
The government gets credit for trying. The accused get nothing more than a brief tap on the shoulder as the court squeezes by them and their questions.
Judge Chin's dissent [PDF], for what little good it does for Ganias and future citizens in his position, at least makes some attempt to address the lack of merit in the government's arguments.
[E]nshrined in the Fourth Amendment is the foundational principle that the Government cannot come into oneʹs home looking for some papers and, without suspicion of broader criminal wrongdoing, indiscriminately take all papers instead.
In this case, the Government argues that when those papers are inside a computer, the result is different. It argues that when computers are involved, it is free to overseize files for its convenience, including files outside the scope of a warrant, and retain them until it has found a reason for their use. In essence, the Government contends that it is entitled to greater latitude in the computer age. I disagree. If anything, the protections of the Fourth Amendment are even more important in the context of modern technology, for the Government has a far greater ability to intrude into a personʹs private affairs.
Chin is uninterested in allowing the government to shrug and say, "Technology is hard," before obtaining its "good faith" pass from the courts.
The majority opinion, however, makes it clear that as long as the government obtains a warrant, it can dig through non-relevant documents for an indefinite period of time. Because the court decided to pass on examining the merits of Ganias' Fourth Amendment arguments, the government will be able to use its "good faith" shield in the Second Circuit for years to come. It took Ganias several years of courtroom appearances to fight a search that occurred ten years ago. And while this has made its way slowly through the justice system, his life has been on hold. Tracing back to the point where he was first investigated for wrongdoing, that's 13 years of his life -- and all of it for nothing, thanks to the two words no defendant wants to hear: good faith.
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NSA Emails Provide Little Insight Into Snowden's Pre-Leak Concerns, But Speak Volumes About Agency's Internal Controls
Jason Leopold has secured another comprehensive set of Snowden-related documents from the NSA, dealing with the agency's search for evidence backing up his claim that he tried to take his complaints to intelligence community officials before heading to Hong Kong with a drive full of secret documents.
The long, detailed post -- written with the help of Marcy Wheeler and Ky Henderson -- covers the 800+ pages of internal emails released to Vice in response to a FOIA request. The headline suggests there's a smoking gun, but a few thousand words later, the conclusion seems to be, "There's possibly a smoking gun... and the NSA, due to malice or just incompetence, is going to be of no help in locating it."
What is undoubtedly true is that there was more to Snowden's concerns than the single email released to shore up the NSA's side of the story. There is evidence Snowden contacted other officials about his concerns, but the agency decided to present the single email as though that were the extent of Snowden's complaints.
This posed problems later as Snowden repeated his assertion to other news outlets, including NBC and Vanity Fair. These resulted in further search efforts from the agency which had already claimed to have uncovered everything that could be considered evidence of Snowden's "proper channels" claims.
The following morning, [NSA General Counsel Rajesh] De sent someone at NSA an email with the subject line "NBC/email."
"I need very senior confirmation [Kemp/Moultrie) [a reference to the NSA's director of security and Ron Moultrie, then the NSA's deputy SIGINT director] that all possible steps have been taken to ensure there are no other emails from [Snowden] to OGC," De wrote.
Those assurances apparently could not be provided — even though the agency had publicly been saying over the course of a year that no other relevant communications from Snowden existed.
What's been released by the NSA seems at odds with Snowden's claims that he made several efforts to bring his concerns to the proper authorities. Other communications were uncovered, but none of those dealt with privacy concerns or other whistleblowing attempts.
That certainly doesn't mean the NSA's first assertion that Snowden didn't raise concerns internally is correct either. The released documents show that its ability to search its own files is far less robust than the systems it uses to dig through the rest of the world's communications. For one, the agency appears to have been unable to retrieve emails related to Snowden's work with Booz Allen. Another heavily-redacted email says the NSA was able to gather and read through everything from Snowden's NSAnet and NSAgov accounts, but appends the phrase "that we've been able to obtain," suggesting the results of its search aren't as comprehensive as it would have the public believe.
What's far more disconcerting is the fact that the NSA -- the king of metadata -- isn't able to keep its own email metadata in working order.
What's remarkable about this FOIA release, however, is that the NSA has admitted that it altered emails related to its discussions about Snowden. In a letter disclosed to VICE News Friday morning, Justice Department attorney Brigham Bowen said, "Due to a technical flaw in an operating system, some timestamps in email headers were unavoidably altered. Another artifact from this technical flaw is that the organizational designators for records from that system have been unavoidably altered to show the current organizations for the individuals in the To/From/CC lines of the header for the overall email, instead of the organizational designators correct at the time the email was sent."
There's no telling where this falls on the stupid/malicious scale, but either way, it helps the NSA muddy the timeline waters and obscure the agencies/personnel involved in these email discussions. That admission is downright frightening considering what the agency does with the metadata it harvests.
Remember, this is the agency that “kills people based on metadata,” per its former Director, Michael Hayden.
But “due to a technical flaw in an operational system,” it could not preserve the integrity of either the time or the aliases on emails obtained under FOIA.
That's the scary part. Here's the hypocritical part, as pointed out by attorney and CUNY law professor Douglas Cox, in response to Marcy Wheeler's post on the NSA's metadata problem:
[Y]our point is right on, even in more mundane contexts not involving drone strikes it is remarkable the disconnect between standards agencies impose and those they practice. When you are producing docs to a govt agency in response to doc requests, eg, you often have to abide by exacting standards in format including careful capture of metadata, but with FOIA you get things like this.
Among the things this careless approach to internal metadata accomplished was obscuring the genesis of one official's recounting of a face-to-face meeting with Snowden over surveillance concerns.
As noted, the compliance woman's story had to be corrected to match the dates up to when Snowden would have been at Fort Meade. "We received a call from D4 [Office of the Director of Compliance] questioning the dates (11 or 12 Jun) that [redacted] annotated during the discussions on" the Section 702 course, one of the other people in Oversight and Compliance wrote on April 10. She "has modified her dates to reflect 5-12 April 2013."
NSA did not provide a version of the draft of the email with the incorrect date. When the chief of Oversight and Compliance provided a description of all the department's interactions with Snowden to the NSA chief of staff, Elizabeth Brooks, in June 2014, there was no mention of any other paper trail of the exchange, though earlier that same day the deputy chief had stated, generally, that that information had been provided to Ensor on June 10, 2013.
One thing that is clear, however, is that the apology laying all these details out, written after several days of fact checking at the NSA and document review in June 2014, leaves out at least one key detail — that the OGC email and the face-to-face communication could have happened the same day, making it far more likely they should be treated as parts of the same exchange. More significantly, the apology claims that "in response to the June 2013 Agency All... she provided in writing her account of these engagements." If the timestamps on documents provided to VICE News are correct (something that the NSA has admitted is a problem with this FOIA response), she actually provided her side of at least the OGC contact even before the Agency All email. But there is no record she provided her written account, to either of these exchanges, until a year after the event, a detail — if true — that Rogers should have known.
Beyond that, there's the NSA's ongoing obsession with controlling this narrative. The agency refused to answer questions from Vice pertaining to these documents but it did send it an email informing it that it had already made the FOIA documents available at the ODNI's website, presumably in an attempt to undercut Leopold/Vice's "exclusive."
The jury is still out on Snowden's claims he took his complaints to the proper officials before deciding to leak the documents he obtained. The NSA's assertions of it just being one email would be far more believable if it could provide any evidence that it can handle its own internal email systems with any sort of competence. But as far as this release goes, there's nothing in it definitively pointing to multiple attempts by Snowden to raise concerns. But it's also a stack of documents whose release was overseen by the same agency he exposed and one that still needs every "victory" it can earn… or take.
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Torrenfreak further points out that while the Copyright Alliance points to PIR's abuse policy, it conveniently ignores that said policy does not apply to intellectual property disputes, which require actual due process.
Meanwhile, as the Copyright Alliance was whining publicly, the RIAA was sending a letter to PIR basically saying the same thing, and asking it to take down the .org domain. The letter lists other countries where various TPB domains have been blocked, and then notes: With respect to the U.S, please remember that the infringing nature of The Pirate Bay has been noted in each of the Notorious Market Reports issued by the USTR for the past several years. Per the Google copyright transparency report, over 400,000 infringements have been identified on www.thepiratebay.org, with over 50,000 since The Pirate Bay moved back to its .org domain. This is in addition to the over 3,000,000 infringements identified on its previous alter ego, www.thepiratebay.se. It is well known that The Pirate Bay does not take action in response to notices. In addition, there have been numerous reports recently of malware and other abuse occurring via The Pirate Bay at its various domains. Of course, it's a bit weird to use Google's transparency report as part of its argument, since that just details accusations, rather than actual evidence of infringement (and, again, I don't know how many times this needs to be pointed out, but TPB doesn't host any content). And, again, the RIAA supported SOPA, but it lost. It should stop pretending it won.
PIR, in turn, forwarded the letter on to TPB's registrar, EasyDNS. EasyDNS then contacted TPB to discuss the possible policy violations, and got back reasonable answers that it was not actually in violation. On the question of copyright, TPB claimed that it now abides by the DMCA: TPB is DMCA compliant and if TPB receive any DMCA complaints from RIAA they will be investigated and removed if found to be valid. We have not revived[sic] any DMCA complaints from RIAA at all so far this year. Some may point out that TPB, in the past, regularly ignored (or mocked) the DMCA, noting that as a non-US company, it was not subject to US laws. Whether or not TPB still ignores DMCA takedowns could, arguably, impact if it's abiding by registrar policies, but without a court weighing in, it's difficult to see how a registar should take the RIAA's word for it without more evidence.
The RIAA's letter also notes TPB distributing malware, and so EasyDNS asked about that as well, to see if it violated its terms of service, and again TPB insists that the RIAA is being misleading: As with every site that are displaying 3rd party advertising trough external ad-networks, sometime bad and corrupt ads slips by, it happens to everyone, here is an example:
As soon as it is discovered/detected on TPB, the ads will be taken down, or the entire ad-tag from where the malware comes, until the issue is resolved. Usually with the help of google webmaster-tools to track down the exact source of the malware.
It has happened twice during 2016, both times when adding new ad- networks, They were taken down directly when detected. Based on that, EasyDNS properly notes that it has no legitimate basis to takedown TPB's .org domain. At this time we find no violation of our AUP. Absent either a specific proceeding pursuant to our accreditation as a .ORG registrar or a legal finding in a competent jurisdiction to the Province of Ontario, there is nothing for us to do.
easyDNS will of course always: comply with our contractual obligations - both to the registries we operate under and to our customers; comply with the laws under which govern our jurisdiction (the Province of Ontario, Canada) and enforce our own Acceptable Use Policy.
Thank you for bringing this matter to our attention. In a blog post, EasyDNS President Mark Jeftovic explains the due process rationale here: Our opinion in these matters continues unchanged. As a Registrar or as a DNS provider unless there is a clear violation of our AUP or net abuse (which we are competent to detect), taking action against domains based on content or at the behest of third-parties, regardless of their altruism or noble intentions, amounts to having us adjudicate international law. It's not reasonable to expect us to do that and you don't want your domain registrar doing that. This is the key point. Whatever you believe about TPB -- and many people see it as being horribly illegal, obviously -- due process has to mean something. The RIAA and its friends should not just be able to point to something and say "illegal, kill it!" because they have a fairly long history of being totally wrong about such things. In the past, they've argued that nearly every innovation is illegal, from player pianos to radio to cable TV to the photocopier to the VCR to the DVR to the MP3 player and to YouTube. And over and over they've been wrong about those things. And that's why due process is important, and why it's good to see EasyDNS (and PIR) recognizing this.
Jeftovic, by the way, separately highlights that no one should think of EasyDNS as being "friendly" to bittorrent site operators, as he expects it won't be long until there will be sufficient due process to take down those sites: We should also mention our Open Letter to Bit Torrent operators, wherein we predict a near-future where due process across borders catches up with technology and when that happens it will be relatively quick, easy and painless for a law enforcement agency in one country (i.e. Sweden) to have the requisite order issued in another country (like Canada, eh) and cause a domain that appears to be flagrantly violating copyright and freeriding on content creators efforts to be shut down.
Ahead of that day, if I were a filesharing site operator I'd be using my time wisely in concentrating my efforts on legitimizing my operations. This would include negotiating blanket licensing agreements with mechanical rights agencies. In other words, contrary to what some will claim, this is not EasyDNS standing up for torrent sites. It's EasyDNS standing up for basic due process. You'd think that the Copyright Alliance and the RIAA would support due process, but apparently that's too difficult.
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