Five Years Ago

This week in 2011, the battle over the PROTECT IP bill continued, with the MPAA utterly failing to address the concerns of experts and the creators of the internet and the Copyright Alliance vaguely trying to "set the record straight" by responding to an un-linked, un-cited post written against the bill. We pointed to a variety of examples showing why we shouldn't rush to approve PROTECT IP, but it seemed like the lawmakers were pretty confused about what it was to begin with — one senator thought it was about an internet kill-switch, and another had it all confused with net neutrality.

Also this week in 2011, we saw the beginning of what we now know to be a very sad story: federal prosecutors filed felony charges against Aaron Swartz for downloading documents from JSTOR. We couldn't help but notice that, despite so much rhetoric about theft and infringement, there was no mention of copyright in the indictment. Indeed, there didn't seem to be any legal or moral basis for the charges whatsoever. But that didn't stop the Copyright Alliance from throwing their hat into the ring with a post full of terrible analogies — nor did it stop lots of people from uploading JSTOR research to file-sharing sites in protest.

Ten Years Ago

It's easy to forget that once upon a time YouTube was new — and that was the case this week in 2006, when it was still independent and so young that its very first copyright lawsuits were just beginning to materialize. Interestingly, this same week, the MPAA was getting hyped about new technology for detecting infringing video (though perhaps they should have focused more on innovations that aren't designed to fail).

We were also pleased to see a very rare beast: an honest debate about net neutrality. Not just that — there was also a great John Hodgman-helmed explainer segment on the Daily Show, and a creative reimagining of the debate that made it all about sidewalks instead of networks.

Fifteen Years Ago

This week in 2001, though Napster was basically dead, it didn't seem to have helped the recording industry very much (and who could have predicted that?) Over in the UK, they decided the best way was to start young, and began teaching kids about the evils of file sharing in elementary school. Meanwhile, the high-profile arrest of a Russian programmer for breaking encryption was shaping up to be a major test to copyright law. And amidst all this, copy-protected CDs were starting to show up in record stores.

Also this week in 2001: Microsoft was discovered stopping a charity from distributing computers over licensing issues; the top-ranked legal advisor on an advice website was a fifteen-year-old kid; Fandango made the first brave foray into the now-normal practice of printing movie tickets at home; and people were still trying to figure out how (and why) to get video onto cellphones.

One-Hundred And Seventeen Years Ago

NEC isn't a big trendy consumer name — at least not outside Japan. But its a gigantic supplier of the network equipment that powers so much of our digital world — and it was on July 17th, 1899 that it was launched as the first ever Japanese joint-venture with foreign capital.

Did you hear? Yesterday, we launched our latest t-shirt on Teespring. It's a re-vamped version of our classic DMCA tee: the Takedown T-Shirt. In addition to men's and women's t-shirts for $20 each, we've reduced the price of hoodies to $35 and added some new color options including royal blue and forest green!

This initial run is available until Monday, August 1st, after which point your only choice will be to reserve one and wait until the campaign reboots — so if you want to get your hands on one soon, don't delay and order yours now!

You may recall, from last month, that a hacker (who many have accused of working for the Russian government) got into the Democratic National Committee's computers and copied a ton of stuff. All of the emails that were obtained (a little over 19,000, from seven top DNC officials) are now searchable on Wikileaks, so there are tons of stories popping up covering what's been found. The Intercept, for example, appears to be having a field day exposing sketchy behavior by the DNC.

But one point that hasn't received as much attention: the DNC appears to have flat out lied right after the hack happened. In its statement on the hack, the DNC had insisted that no personal donor info got out:

The hackers had access to the information for approximately one year, but that access was wiped clean last weekend, The Washington Post reported, noting that the DNC said that no personal, financial or donor information had been accessed or taken.

Except, well, no. There had been reports, driven by the hacker, that the files absolutely did include personal donor info, and now you can see some of that for yourself. For example, it took me all of about 5 minutes to find a list of donors and their email addresses, which I won't be sharing here, but I'm sure others can find as well. And, then, of course, you can find things like this discussion about a potential donor, Niranjan Shah, with "ties" to disgraced and convicted former Illinois Governor Rod Blagojevich, noting that there were "pay to play" accusations associated with him. The DNC noted that they "could be ok" with Shah donating to the DNC, but that the administration might not want him to show up at their events. And, of course, there are emails detailing specific donations by specific people.

There are claims that some emails contain credit card data, though I haven't seen that myself. Either way, it certainly appears that in the rush to "nothing to see here" the leak of the info, the DNC simply lied about what was leaked.

Judge Alex Kozinski pointed out the obvious in a Ninth Circuit Appeals Court decision:

There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.

Brady evidence -- possibly exonerating evidence that prosecutors are required to turn over to the defense -- is far too frequently withheld and/or buried. The punishments for violating this requirement are almost nonexistent. The prosecution hates to see wins become losses. And the government in general -- despite declaring fair trials to be the right of its citizens -- hates to play on a level field.

A federal judge withdrew from a forensic evidence committee because the government told him it wasn't his job to point out the severely-flawed pre-trial forensic evidence discovery procedures deployed by prosecutors. Judge Rakoff called the government out in his resignation letter.

The notion that pre-trial discovery of information pertaining to forensic expert witnesses is beyond the scope of the Commission seems to me clearly contrary to both the letter and the spirit of the Commission’s Charter… A primary way in which forensic science interacts with the courtroom is through discovery, for if an adversary does not know in advance sufficient information about the forensic expert and the methodological and evidentiary bases for that expert’s opinions, the testimony of the expert is nothing more than trial by ambush.

"Trial by ambush" will continue unabated. Prosecutors will shrug off the minimal punishments for withholding evidence. The DOJ will continue to argue that it's allowed to erect as many roadblocks as it wishes in front of defendants.

The DC Appeals Court has allowed the DOJ to retain another aspect of its "trial by ambush" strategy, as reported by Mario Machado of Fault Lines.

The D.C. Court of Appeals declared that the federal government will not have to disclose the contents of a guide that determines when its prosecutors should disclose evidence to the accused. The Department of Justice’s “Blue Book” stays in-house, at least for the time being.

The "Federal Criminal Discovery Blue Book" was crafted after DOJ prosecutors were blasted by a judge for their actions in the prosecution of Senator Ted Stevens.

In nearly 25 years on the bench, I have never seen anything approaching the mishandling and misconduct I have seen in this case.

Brady material was withheld from the defense, something that would have never been discovered without an FBI whistleblower stepping forward. The new guidelines were supposed to make things better. Very little seems to have changed since its introduction. And no one on the defense side of the fight has any idea what prosecutors are required to do under these guidelines.

The National Association of Criminal Defense Lawyers (NACDL) tried asking the government for a copy. This was denied. So, it filed a FOIA request for the "blue book." This, too, was denied, with the government claiming its internal guidelines for ensuring a fair fight were not subject to FOIA requests. From the DC Appeals Court decision [PDF].

The Department refused to disclose the Blue Book, invoking the Freedom of Information Act’s Exemption 5, which exempts from disclosure certain agency records that would be privileged from discovery in a lawsuit with the agency. The Department maintained that the Blue Book fell within the attorney work-product privilege, and therefore Exemption 5, because it was prepared by (and for) attorneys in anticipation of litigation.

This claim is laughable. Of course it's for litigation. But it's not for any specific litigation. It's for use in all DOJ prosecutions, which makes it more aligned with general information, rather than a narrow slice of "attorney work-product." The NACDL pointed this out.

The NACDL argued that the Blue Book fell outside the work-product privilege because it had a non-adversarial function, to wit: the training and education of the DOJ’s vaunted prosecutors. It also argued that its disclosure was fair game because it was not drafted with a specific litigation in mind, but ultimately the Court sided with the federales, who fought tooth and nail to keep the book under wraps.

One part of the judicial system has seen the contents of the "blue book" (other than DOJ prosecutors): the district court. An in camera presentation to both the lower court and the appeals court has allowed both to reach the decision they have. But will it result in the courts holding the DOJ to their own super-secret standards? Of course not.

Judges are presented with evidence obtained through discovery. They have no idea whether all of it is present or if the DOJ followed its own instructions for handing over Brady material to the defense. The judges' viewing of this internal document will not result in greater accountability.

Handing these guidelines over to defense lawyers, however, would give them more avenues to challenge withheld evidence and other perceived violations in disclosure. The government doesn't like this idea and claims that a more level playing field would severely hamper its prosecutions. One is inclined to agree with the DOJ's claim about hampered prosecutions, although not for the reasons it states.

DOJ thus argues that disclosing the Blue Book would “essentially provide a road map to the strategies federal prosecutors employ in criminal cases.” Id. It contends that disclosure would afford anyone who wanted to read the Blue Book (including opposing counsel) “unprecedented insight into the thought processes of federal prosecutors.” Disclosure thus would “undermine the criminal trial process by revealing the internal legal decision-making, strategies, procedures, and opinions critical to the Department’s handling of federal prosecutions.” In addition, it would “severely hamper the adversarial process[,] as DOJ attorneys would no longer feel free to memorialize critical thoughts on litigation strategies for fear that the information might be disclosed to their adversaries to the detriment [of] the government’s current and future litigating positions.”

In other words, the fight might be slightly fairer, and the government won't be having any of that. The DC Circuit is now completely complicit in the government's "trial by ambush" plans.

If you want to see what the U.S. broadband market really looks like, you should take a close look at West Virginia. Historically ranked close to dead last for broadband access and quality, the state has been a perfect example of what happens when you let the incumbent telecom monopoly incestuously fuse with state regulators and politicians. For years now the state has been plagued by news reports of unaccountable broadband subsidies, money repeatedly wasted on unnecessary hardware, duplicate consultants overpaid to do nothing, and state leaders focused exclusively on ensuring nobody is held accountable.

Frontier acquired Verizon's phone and broadband networks in the state back in 2010, and while jumping from an entirely apathetic incumbent monopoly ISP to a barely competent one netted some slight improvements initially for users, the lack of competition continues to keep serious advancement at bay. In an attempt to improve access to neglected areas of the state, Frontier that same year received $126.3 million in federal stimulus funds to provide high-speed Internet to such areas, including 1,064 public facilities such as schools, courthouses and first responders.

Roughly $40 million of that money was supposed to be used to build an "open-access middle-mile network" intended to help multiple, competing West Virginia ISPs improve last-mile connectivity to roughly 700,000 homes and 110,000 businesses. But it didn't take long for allegations to surface that Frontier had used that money solely to shore up its broadband monopoly in the state, building fiber connections that only benefited itself. Allegations also surfaced that Frontier had manipulated just how much fiber was actually laid, with state investigations and audits, as they're wont to do, going nowhere fast.

Fast forward to this week, when the courts unsealed a 2014 lawsuit (pdf) by competing West Virginia ISP Citynet, shining a little more light on the claims, while also naming a number of government officials as defendants alongside Frontier. Among other allegations, the lawsuit claims that Frontier artificially inflated fiber deployment metrics in ways that weren't even particularly creative and shouldn't have been difficult for regulators or auditors to uncover:

Citynet claims that Frontier “double-counted” fiber to 58 buildings in 32 counties, and “used excessive maintenance coil to make up for fiber not constructed.” “Frontier also misrepresented the proposed distances for many of the community anchor institutions by simply inputting the same number for several projects,” the lawsuit alleges. “Incredibly, there were 36 [buildings] in seven different counties that each required the exact same 4,390 feet of new fiber.”

Not only did Frontier deliver less fiber than actually promised in a way no competitor could access (again, the state and Frontier repeatedly promised this would be an open access network), the company charged significantly more than originally estimated. With the help of a former Verizon executive turned state Technology Officer, the lawsuit alleges that Frontier inflated its invoices using something called "loadings fees":

Citynet claims on July 1, 2012, Given, the former president of Verizon, was appointed as the new State Technology Officer and immediately took exclusive control over approving Frontier’s invoices for the BTOP project. Within one month, every one of Frontier’s invoices that were submitted for payment contained a “loadings” charge, which, per the invoices, was for “allocated indirect costs such as vehicles, accounting, administration, etc.”

In many instances, the indirect cost fee was higher than the original total cost estimate for the fiber build and there were 365 separate invoices with loadings fees, totaling $4,553,387.31, according to the suit.

“Even though Frontier often ended up building much less fiber than was originally estimated, its final charges were substantially higher than the original estimate,” the complaint states.

FCC data ranks West Virginia 48th in terms of broadband availability. After the project was completed, the lawsuit claims West Virginia ranked 53rd among 50 states, Guam, Puerto Rico and the District of Columbia. It's unfortunate in that broadband stimulus subsidies really have helped a number of communities where the private sector failed, just not in states where incumbent monopolies have excessive control over state players that should be policing this kind of behavior.

Should West Virginia's dysfunction follow the historical tendency of other boondoggles of this type by the likes of AT&T and Verizon, absolutely nothing will come of this case or any subsequent investigation, audits (in the rare case they actually occur) will magically conclude no wrong doing by any participant, and the entire sordid affair will magically be forgotten the next time Frontier is in line to receive additional taxpayer handouts.

The administration's brief flirtation with converting occupying forces back into police departments is apparently over. In the wake of the Ferguson protests, the administration announced its plan to rein in police departments which had been availing themselves of used military gear via the Defense Department's 1033 program. This itself was short-lived. A year later, the administration mustered up enough enthusiasm for another run at scaling back the 1033 program, but it has seemingly lost some steam as Obama heads for the exit.

The images of police greeting protesters with assault rifles, armored vehicles, grenade launchers, and officers who appeared to mistake the Midwest for downtown Kabul apparently was a bit too much. It looked more like an occupation than community-oriented policing -- something every administration has paid lip service (and tax dollars) to over the past few decades while simultaneously handing out grants that turned police officers into warfighters.

That's all off the table now. Two recent shootings of police officers have effectively dismantled the dismantling of militarized police forces.

The White House will revisit a 2015 ban on police forces getting riot gear, armored vehicles and other military-grade equipment from the U.S. armed forces, two police organization directors told Reuters on Thursday.

Shortly after the recent shooting deaths of police officers, President Barack Obama agreed to review each banned item, the two law enforcement leaders said.

That could result in changes to the ban imposed in May 2015 on the transfer of some equipment from the military to police, said Jim Pasco, executive director of the Fraternal Order of Police, and Bill Johnson, executive director of the National Association of Police Organizations.

The law enforcement lobbyists met with the President and Vice President, and it appears Obama has sent the administration's chief legal counsel to "review" the ban. The law enforcement organizations claim police need greater protections now, even though the recent clustering of officer deaths doesn't put the nation on track for anything more than an average year of on-duty deaths.

But, while the chance of being killed in the line of duty remains steady, agencies are pushing for a return to pre-2015 levels of military gear, including tracked vehicles and grenade launchers "to deal with riots." It doesn't appear that any words were wasted discussing the underlying causes of the protests officers are now facing -- none of which will be resolved with increased police militarization. Put someone in war gear and they're going to be pretty sure they're in a war, rather than serving the public as a trusted member of the community.

Yet another politician can be added to the list of people who think police officers just don't have enough protections as is. Following in the footsteps of legislators in New Jersey and Minnesota -- along with Rep. Ken Buck (CO) -- Texas governor Greg Abbott has decided it's time to treat attacking officers as a "hate crime."

Texas Gov. Greg Abbott (R) wants the targeted killing of a police officer to be deemed a hate crime in Texas and urged lawmakers to send him such a bill to sign during next year’s legislative session.

Abbott announced Monday his plan to lobby for adding his Police Protection Act to Texas law. Along with extending hate-crime protections to law enforcement, the measure would also increase criminal penalties for any crimes in which the victim is a law enforcement officer and “create a culture of respect for law enforcement by organizing a campaign to educate young Texans on the value law enforcement officers bring to their communities,” according to a statement from Abbott’s office.

Nothing "creates a culture of respect" like handing beneficiaries of a host of "extra rights" even more protection in the form of stiffer penalties just because the victim was wearing a certain uniform. As Fault Line's JoAnne Musick points out, "hate crime" laws are generally enacted to provide greater protections for historically underprotected classes, not those already in positions of power.

Are police an otherwise vulnerable group? Is violence against an officer intended to hurt or intimidate the entire police community? Are crimes against officers underreported and in need of encouragement to prosecute them? Plain and simple, the answers are no. Police are not particularly more vulnerable. In fact, they are better trained and greater equipped to protect each other and themselves. Crimes against police are rarely underreported. They are most definitely heavily prosecuted – as they should be. So, why is there a need to create a special class?

The Dallas shooting that left five officers dead is the only reason this call for legislation even exists. It's a kneejerk reaction that shifts even more power to the powerful. It's sure to gather support from legislators because who could possibly be opposed to punishing cop killers? Add to that the further consolidation of power it represents and there's very little chance someone won't run this up the legislative flagpole. After all, the governor himself is calling for legislation, so it's guaranteed to become law if it hits his desk. That's an easy win -- something legislators like almost as much as jingoism and "tough on crime" posturing.

Rather than address the issues that have led to this (seeming) flashpoint (despite the recent murders of police officers, numbers are still on track for another "normal" year in on-duty officer deaths), politicians like Abbott have decided to give law enforcement yet another tool to use to significantly harm anyone who doesn't immediately comply with their commands. And this is in a state that already adds years to sentences if the crime victim is a police officer.

[A] simple assault is a class A misdemeanor carrying a punishment of up to one year in jail; however a simple assault against a police officer is a third degree felony punishable up to 10 years in prison.

That's the current law. Abbott wants something above and beyond this. Simple assault, under current Texas law, includes simply threatening someone or "provocatively" making physical contact. Push back when being arrested? That's assault. Accidentally bump an officer's elbow while attempting to comply with a frisk? Assault. The law already encourages prosecutors to pile on. This would make it even worse.

The underlying issues, which have prompted a horrifically violent reaction, aren't going to be mitigated by giving law enforcement and prosecutors even more leverage. Greg Prickett -- a 20-year veteran of law enforcement -- points out that the current miserable state of affairs can't be blamed on anything other than law enforcement's own actions over the past few decades. According to Prickett, this is what's prompted the shooting of law enforcement officers.

It’s simple, really. It is militarization of the police coupled with a lack of accountability for their actions.

Law enforcement has shifted away from being an integral part of the communities they serve and opted instead to view themselves as an occupying force in a war zone. The weapons and vehicles are repurposed military gear. Officers' training goes heavy on force deployment. Very rarely are tactics like de-escalation or actual community-oriented policing given any priority. While there's no condoning the actions of people who kill cops, the reality is that law enforcement itself has shown over the years that its preferred method of communication is violence. It's the only thing it truly understands.

Governor Abbott may think he can reverse this course by throwing more prison time at certain criminals, but it's not going to stop people from killing cops. All it's really going to do is give officers and prosecutors a way to inflict maximum pain for the most minimal injury or perceived slight.

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Last week's one-sided "hearing" on encryption -- hosted by an irritated John McCain, who kept interrupting things to complain that Apple hadn't showed up to field false accusations and his general disdain -- presented three sides of the same coin. Manhattan DA Cyrus Vance again argued that the only way through this supposed impasse was legislation forcing companies to decrypt communications for the government. The other two offering testimony were former Homeland Security Advisor Ken Wainstein and former NSA Deputy Director Chris Inglis.

Not much was said in defense of protections for cellphone users. Much was made of the supposed wrongness of law enforcement not being able to access content and communications presumed to be full of culpatory evidence.

But one of the more surprising assertions was delivered by a former government official. Wainstein's testimony [PDF] -- like Vance's -- suggested the government and phone makers start "working together." "Working together" is nothing more than a euphemism for "make heavy concessions to the government and prepare to deliver the impossible," as Patrick Tucker of Defense One points out. Wainstein says phone manufacturers must do more than theorize that weakened encryption would harm them or their companies. They must hand over "hard data" on things that haven't happened yet.

Kenneth L. Wainstein, a former assistant attorney general for national security at the Department of Justice, told lawmakers that the burden is on technology companies and privacy advocates to show how backdoors would harm user security, rather than on law enforcement to prove that altering the encryption scheme would be safe.

“For the tech industry and civil liberties groups, this means laying out technically specific support for the contention that a government accommodation would undermine the integrity of default encryption. They should provide hard data that demonstrates exactly how—and how much—each possible type of accommodation would impact their encryption systems. It is only when Congress receives that data that it can knowledgeably perform its deliberative function and balance the potential cybersecurity dangers posed by a government accommodation against the national security and law enforcement benefits of having such an accommodation in place,” he said.

The only thing harder than proving a negative is proving how badly things might go if backdoors are inserted or companies are required to retain encryption keys.

As usual, the "smart guys" are ahead of the curve on this bizarre demand. Last year, multiple encryption experts collaborated on a research paper [PDF] that laid out the problems that would result from government-mandated access.

In this report, a group of computer scientists and security experts, many of whom participated in a 1997 study of these same topics, has convened to explore the likely effects of imposing extraordinary access mandates. We have found that the damage that could be caused by law enforcement exceptional access requirements would be even greater today than it would have been 20 years ago. In the wake of the growing economic and social cost of the fundamental insecurity of today's Internet environment, any proposals that alter the security dynamics online should be approached with caution. Exceptional access would force Internet system developers to reverse forward secrecy design practices that seek to minimize the impact on user privacy when systems are breached. The complexity of today's Internet environment, with millions of apps and globally connected services, means that new law enforcement requirements are likely to introduce unanticipated, hard to detect security flaws.

So, if Wanstein is looking for answers, he already has them. So does James Comey. So does Cyrus Vance. (Although, to be fair, Vance hasn't really feigned much concern for tech companies or their customers.) They just don't like the answers they've received. This is why they continue to claim that a perfectly safe, government-mandated encryption backdoor is just a "smart guy" breakthrough away. Any day now, someone at Apple or Google will shout "Eureka" and hand over the unicorn Comey, et al insist must exist.

It seems the USOC is just getting started with its bullying bullshit this Olympic season. Fresh off the heels of threatening Oiselle, a corporate sponsor of an Olympic athlete (but not a sponsor of the Olympics themselves), over trademark concerns because the company posted a congratulatory tweet for its sponsored athlete that included the Olympic bib she was wearing, the USOC is now sending out a helpful little reminder to other companies that have sponsored athletes but not the games. And by helpful, I mean that it's helpful in seeing just how blatantly the USOC will outright lie in order to continue its bullying ways.

ESPN got its hands on the letter the USOC sent around.

"Commercial entities may not post about the Trials or Games on their corporate social media accounts," reads the letter written by USOC chief marketing officer Lisa Baird. "This restriction includes the use of USOC's trademarks in hashtags such as #Rio2016 or #TeamUSA."

It's the kind of blanket statement that the USOC likes to make, even as it avoids any of the pesky nuance that might call its claims into question. Certainly, as part of trademark law, a company's Twitter account could not claim to be an Olympic sponsor, or attempt to confuse followers into thinking it had some kind of affiliation. And this might translate into that company not including trademarked hashtags themselves. But what about retweets? What about posts that mention the sponsored athlete but not the hashtags? What about informing followers of the success of the athletes the company sponsors?

Well, for that last one at least, the USOC has boldly claimed it owns the rights to facts.

The letter further stipulates that a company whose primary mission is not media-related cannot reference any Olympic results, cannot share or repost anything from the official Olympic account and cannot use any pictures taken at the Olympics.

Yeah, that's not actually true. Like, at all. As we've pointed out in the past, several times, there is no applicable part of trademark law that applies to facts, such as the factual results or stats of a sporting event. And there's no line in the sand to draw between the average Twitter user and a corporate Twitter account when it comes to this, meaning that corporate sponsors of athletes are absolutely free to mention the results of their sponsored athletes at the Olympic Games or trials. Beyond that blatant lie, claiming that a company's account can't retweet an Olympic account misunderstands the very nature of social media (make your damn account private then!), while blanket claims about what types of pictures of the games can be used completely ignores any Fair Use arguments that could be made, of which there are many.

But this is SOP for the USOC, even as they further lie about the necessity for all of this bullying.

While the USOC argues that money from sponsors and licensees who pay for the rights allow them to support athletes to go to the Games, Bergesen says the stringent rules hurt the athletes because companies that can't support them during the Games can't afford to pay them because of lack of promotion.

"It costs $300,000 to send an Olympian to the Games, and for our athletes, the USOC has reimbursed them about 1 percent of that cost," Bergesen said. "Is that supporting them?"

Well, no, but of course that isn't the point of the Olympics, which long ago transitioned into a money-making machine rather than any kind of international sporting competition. The corruption is so bad, few countries even want to bid to host them anymore. But, sure, keep focusing on corporate sponsors that want to congratulate their athletes, as though that was the problem.