Many people seem to forget that before Ed Snowden came along, Senator Ron Wyden was beating the drum in Congress about how the NSA was abusing Section 702 of the FISA Amendments Act to spy on Americans. Here's a story we did back in 2011 concerning Wyden raising concerns about the failure of the Director of National Intelligence to say how Section 702 was being used on Americans. Even earlier in 2011, we wrote about then Director of National Intelligence, James Clapper, refusing to answer this question, saying that "it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed."

Wyden kept up a series of similar requests, famously leading to the 2013 hearing in which Wyden directly asked Clapper about whether or not information was being collected on Americans and Clapper flat out lied. Snowden himself has credited that particular exchange as playing a big role in convincing him to leak documents.

Fast forward to now. Last week, Senator Wyden sent a letter to incoming Director of National Intelligence* Dan Coats, once again asking how many Americans are having their communications watched under Section 702 of the FISA Amendments Act (which, again, is supposed to be used for foreign intelligence, but which we now know is regularly used to do surveillance on Americans).

I and other members of Congress have been seeking an answer to this question since 2011. We posed the question again in the context of the reauthorization of Section 702 in 2012. It is now central to the debate this year over the reauthorization of the program, which you have described as your "top legislative priority."

As Wyden notes:

The lack of information on the extent to which Americans' communications have been collected under Section 702 is relevant not just to the question of whether Section 702 should be reauthorized, but to what reforms may be needed. For example, the government is currently authorized to conduct warrentless queries for Americans' communications collected under Section 702. Without data on the number of Americans' communications available to government, it is impossible to know the full extent to which these queries intrude on the privacy and constitutional rights of Americans.

Wyden was hoping to get an answer to this question, prior to Coats' being voted in. That, of course, did not happen. However, Wyden gave one of his big speeches about this issue:

In it, he calls out these issues quite clearly:

But I want it understood that the reason that I’m going through this background is that I believe the American people deserve a fully informed debate about the Foreign Intelligence Surveillance Act reauthorization. You cannot have that debate — you cannot ensure that the American people have security and liberty unless you know the impact of section 702 of that bill on the constitutional rights of law-abiding Americans.

So for six years, Mr. President, in this body Democrats and Republicans — in the other body, Democrats and Republicans — have been asking the same question: How many law-abiding Americans are having their communications swept up in all of this collection?

Without even an estimate of this number, I don’t think it’s possible to judge what section 702 means for the core liberties of law-abiding Americans.

Without this information, the Congress can’t make an informed decision about whether to reauthorize section 702 or what kind of reforms might be necessary to ensure the protection of the individual liberties of innocent Americans.

There's a lot more in the nearly 50-minute speech (the transcript is in the link above). But it's truly incredible that the executive branch refuses to give Congress this information that it needs for oversight:

Mr. President, how many law-abiding Americans — innocent, law-abiding Americans are getting swept up in these searches? It will be an increasingly important issue, as the nature of telecommunications companies continues to change because it is now a field that is globally interconnected. We don’t have telecommunications systems just stopping at national borders.

So getting the number of Americans whose communications have been collected in the first place is the prerequisite to doing real oversight on this law and doing our job at a time when it is being reauthorized and the American people want both security and liberty and understand that the two are not mutually exclusive. So, Director Clapper then suggested reviewing the classified number of targets that were later determined to be located in the United States. But the question has never been about the targets of section 702, although the mistaken targeting of Americans and the people in our country is another serious question.

The question that Democrats and Republicans have been asking is about how many Americans are being swept up by a program that, according to the law, is supposed to only target foreigners overseas. So let me repeat that. That’s what the law says. The Foreign Intelligence Surveillance Act says that the targets are supposed to be foreigners overseas. And Democrats and Republicans want to know how many law-abiding Americans who might reside in Alaska or Oregon or anywhere else are getting swept up in these searches. So this bipartisan coalition has kept asking.

Wyden goes on to explain how many in the intelligence community are misleading the public on how broad the powers and searches under Section 702 really are. He even highlights the claims that some have made that anyone against 702 must be part of a "bad guy caucus." But the issue is that, as currently used, Section 702 can and likely is being used to broadly conduct warrantless surveillance on Americans:

I’ve heard my colleagues on the other side talk frequently. Well, you know, if law-abiding Americans are having their communications swept up, we shouldn’t get all concerned about that because this array of Americans’ communications is being minimized, and somehow that means that it’s not getting out. It’s being hidden. That’s not what necessarily happens.

To begin with, all that collection does not stay at the National Security Agency. All the e-mails collected through the PRISM component of section 702 go to several other agencies, including the C.I.A. and the F.B.I. Then you have those three agencies in particular authorized to conduct searches through all the data for communications that are to, from, or about Americans. Look for an American’s name, telephone number, e-mail address, even a key word or phrase. They can do that without any warrant. There doesn’t have to be even a suspicion, even a suspicion that an American is engaged in any kind of wrongdoing.

The F.B.I.’s authorities are even broader. The F.B.I. can also conduct searches for communications that are to, from, or about an American to seek evidence of a crime. Unlike the National Security Agency and the Central Intelligence Agency, the F.B.I. doesn’t even report how many searches for Americans it’s conducting. Moreover, neither the F.B.I. Nor the C.I.A. Reports on the number of searches for Americans it conducts using metadata collected under section 702.

Now, the authority to conduct searches for Americans’ communications in section 702 data is new. Before 2011, the FISA court prohibited, prohibited queries for U.S. persons. I’m going to repeat that: Under the Bush Administration and the first two years of the Obama Administration, it was not possible to conduct these back-door, warrantless searches of law-abiding Americans. Then the Obama Administration sought to change the rules and obtained authority to conduct them.

In April, 2014, the Director of National Intelligence in response to questions from myself and Senator Mark Udall publicly acknowledged these warrantless searches, and my June, the House voted overwhelmingly to prohibit them. That prohibition didn’t become law, but I can tell you it’s sure going to be considered in the context of this reauthorization, and the House voted overwhelmingly, overwhelmingly to prohibit these warrantless searches. So the question really is what exactly is the privacy impact of these warrantless searches for Americans?

There's a lot more in the speech as well, but this post is getting to be long enough. Unfortunately, of course, the speech will get little attention. It's not the exciting sort of political football that cable news likes to cover. There's no partisan horse race element to it. It's just the kind of thing that impacts the basic Constitutional rights of all Americans. And, apparently, only a few people actually seem to care about it -- and none of them seem to be in roles where they can stop this kind of 4th Amendment violation from happening again.

* Clapper, astoundingly, was never fired or otherwise punished for lying to Congress, and only left at the beginning of this year with the change in administrations.

Remember James Woods? The Hollywood actor sued a Twitter troll for $10 million, claiming defamation, because that troll had sarcastically referred to Woods as a "cocaine addict." Woods, of course, has a long history of mixing it up on Twitter with lots of people, including saying things almost identical to what he sued over:

Throughout the case, Woods continued to make it abundantly clear to the world that he is a horrible person. Specifically, during the course of the case, the (anonymous) defendant unexpectedly passed away, leading Woods to gloat about the guy's death, after first claiming that the reason the appeal in the case was dropped was because he was winning the case:

Not only that, but even after the defendant passed away and the case was dropped, Woods continued the lawsuit and forced the opposing side to reveal the name of the anonymous Twitter user who so enraged Woods.

Of course, as we've said time and time again, people should be very careful in gleefully taking down the rights of others, because you never quite know when that same sort of thing might boomerang back around. Case in point: the Hollywood Reporter notes that James Woods is being sued for defamation... over some of his tweets. The lawsuit, seeking $3 million, and brought by Portia Boulger, claims that Woods defamed her and then was insincere in his apology:

This all started in March 2016, after the Chicago Tribune posted a campaign rally photo of a woman who was wearing a Trump T-shirt and giving a Nazi salute — the well-known 'Heil Hitler' salute with her right hand raised straight up — and several Twitter users misidentified the woman in the picture as Boulger, according to the complaint. Woods tweeted the photo from his verified account and wrote, “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?”

[....]

After Boulger's attorneys contacted the actor, he deleted the tweets and wrote a new series of them that were meant to be a retraction. However, two of the three apology tweets were untrue, according to Boulger.

A March 23 tweet by Woods reads: “Ms. Boulder [sic] has reached out to me and asked me to use my many followers to stop people from harassing her. I am more than happy to do so.”

That was followed by another: “Though she supports @BernieSanders, I am happy to defend her from abuse. I only wish his supporters would do the same for other candidates.”

You can read the full lawsuit here if you're interested.

Now, here's the thing: while there's obviously the emotional appeal of seeing Woods hit with the same kind of lawsuit that he saddled someone else with, this lawsuit appears to be just as misguided, if not worse. I know (first hand...) that some people think that it's okay to cheer on bogus lawsuits against people you dislike, but some of us have principles. Bogus defamation lawsuits are an affront to free speech, whether they're brought against people we like or not. And this certainly looks like a bogus defamation lawsuit. I hate to say it, because I'm sure Woods will continue to gloat and never realize the contradictions if he does, but Woods should win this lawsuit easily.

The original tweet may be borderline, but it would be quite difficult to argue that Woods posted it with actual malice, defined as knowledge that the information was false, or with reckless disregard for the truth -- which is the standard necessary if Boulger is deemed a public figure, which seems likely in this case (Boulger is a political activist and that's a big part of what the dispute is about). Yes, the tweet misidentified her, but hard to argue that it could pass the bar to be defamation. The fact that Woods then deleted the tweet after being informed that he was wrong, and posted the follow up tweets helps his case as well, even if Boulger's lawyers attack those tweets too. Here's what the complaint says about them:

The second and third of these tweets were false, insulting and demeaning as Ms. Boulger never asked Mr. Woods to “reach out to my many followers to stop people from harassing her.” Rather, Ms. Boulger, through counsel, had demanded a retraction and apology.

Yeah... that's such a difference of degree that there's almost no way it will be seen as defamatory. Furthermore, "insulting and demeaning" is not defamation, nor is it against the law. Unfortunately for Woods, Ohio, where the case is filed has no anti-SLAPP law as far as I can tell. So this case becomes yet another example of why a federal anti-SLAPP law is important. Of course, Woods could try to move the venue or push for California's anti-SLAPP law to apply, since he's a resident of California.

In certain ways, this case actually has a fair number of similarities to the Katie Hopkins Twitter defamation lawsuit in the UK that we wrote about earlier this week. We noted in that story how different UK and US defamation law can be, but also noted that Hopkins was widely disliked, and thus many people who otherwise tend to be good on free speech issues were celebrating her "loss." One hopes that on this one people can remain above that sort of thing, and recognize that if you support true freedom of expression, then this case must fail, even if you don't like James Woods, or were furious at him for filing his own wacky defamation case over tweets not too long ago.

We've talked about the astounding hypocrisy of Rep. Devin Nunes a few times in the past. He heads the House Intelligence Committee, which is supposed to be conducting "oversight" of the intelligence community, but has generally been a cheerleader for mass surveillance in recent years. Nunes, in fact, has regularly slammed any attempt to cut back on surveillance, to the point of actively misleading the public in making false claims about how NSA surveillance programs work. The hypocrisy became clear when Nunes flipped out following the firing/resignation of Mike Flynn as National Security Advisor, arguing that it was somehow unprecedented that an American's phone calls with Russian officials were recorded by the intelligence community. Of course, that suggests either near total ignorance of the programs he's supposedly in charge of overseeing, or just blatant political pandering.

And now it's getting worse. Reporter Katie Bo Williams got her hands on an interesting letter that Nunes, along with ranking member Rep. Adam Schiff, just sent to the heads of the CIA, NSA and FBI, continuing to dig in on the whole "recorded Mike Flynn" thing. The target now is Executive Order 12333, which we've spoken about quite a lot. That's the executive order signed by President Reagan, that more or less gives the intelligence community total free rein in conducting surveillance overseas. As an ex-State Department official revealed back in 2014, the vast majority of NSA surveillance actually is done under 12333, and it just uses other programs -- like Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act -- to fill in the gaps of what they can't get via 12333. Executive Order 12333, for example, was used to hack into Yahoo and Google's servers overseas, allowing the NSA to scoop up lots of info without any oversight by US courts.

Anyway, based on the letter that Nunes has sent, he's suddenly quite concerned about 12333. And this demonstrates his massive hypocrisy, because another letter he sent a few years ago has him arguing that there should be less oversight on 12333... but we'll get to that. This new letter suggests that the Flynn recording came under 12333, and so he's demanding all sorts of data on how 12333 is used on US Persons.

Of course, what's interesting here is that the Congressional intelligence committees have long stated that they don't really have much oversight into anything under 12333. Dianne Feinstein (who was a top member of the Senate Intelligence Committee) admitted in the past that the committees get zero insight into 12333 intelligence collection:

“The other programs do not (have the same oversight as FISA). And that’s what we need to take a look at,” she said, adding that her committee has not been able to “sufficiently” oversee the programs run under the executive order. “Twelve-triple-three programs are under the executive branch entirely.”

Feinstein has also said the order has few, if any, privacy protections. “I don’t think privacy protections are built into it,” she said. “It’s an executive policy. The executive controls intelligence in the country.”

Got that? Good. At least when Feinstein was bringing it up, she was bringing it up to argue that the Intel Committees should be getting more insight into what 12333 is used for.

However, Devin Nunes, apparently wanted it to be kept in the dark. And wanted the public kept in the dark. That's because I just received in a surprisingly well-timed FOIA response, a letter that Nunes, along with Senate Intel Committee boss Richard Burr, sent a letter to the Privacy and Civil Liberties Oversight Board (PCLOB) back in 2015, basically telling the PCLOB to stop looking into 12333, because it was outside its purview. As you may recall, after doing detailed reports on Sections 215 and 702, the PCLOB announced that it was going to do a detailed study on 12333 to determine if it was violating the privacy and civil liberties of Americans. While that was announced way back in 2014, nothing final ever came out -- and it's unlikely to ever come out because the PCLOB is effectively dead.

But Nunes and Burr were apparently so concerned that the PCLOB might find actual problems with 12333 and how it violates the rights of Americans, that they made it clear that the PCLOB should knock it off:

As we are sure you are aware, intelligence activities conducted under E.O. 12333 address a broad range of national security issues beyond counterterrorism, including significant and important foreign intelligence matters that fall well outside of the PCLOB's limited statutory charter. Many intelligence activities conducted under E.O. 12333 predate the creation of the PCLOB and were not within the scope that the 9/11 Commission or Congress envisioned when PCLOB was established. The purpose is clear and specifically defined by Congress.

We trust you will keep in mind the finite statutory authority as you move forward and work with the Intelligence Community to limit appropriately your review only to those matters which Congress has specifically authorized you to review.

In other words, just two years ago, Devin Nunes was telling the one body in the government specifically tasked with reviewing intelligence collection programs to see how they're being used on Americans, that they should stop doing that. And now, today, he's suddenly demanding to know how the intelligence community uses 12333 to spy on Americans -- as if it had never crossed his mind before that the program was used this way.

This is not effective oversight. This is a hypocritical joke by the name of Rep. Devin Nunes.

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The Mormon Church has been somewhat flip-floppy when it comes to criticism against it. On the one hand, the notoriously tight-knit Church has been admirably tolerant of many attempts to parody it, including public commentary and a certain Broadway show of world renown. On the other hand, it seems the Church tends to draw a line in the sand when it comes to disseminating official church documents, even when this is done by journalists and organizations dedicated to commentary and news. In the past, the Mormon Church has attempted to utilize copyright law to have those documents removed from such sites as Wikimedia and Wikileaks, which of course resulted in the wider viewership of those same documents as news of the threats wove through the media. The Streisand Effect, it seems, offers no quarter of religious institutions.

A decade later, it seems our friends in Utah have not learned this lesson, as the Mormon Church reportedly threatened the MormonLeaks website with legal action over copyright infringement after the site hosted a PowerPoint presentation.

The site, which has generated past headlines by displaying restricted church papers on topics ranging from the salaries of Mormon apostles to rules governing calls home by missionaries, had taken down the presentation after The Church of Jesus Christ of Latter-day Saints threatened legal action March 1. Based on a copyright-violation allegation, it marked the first time that the Utah-based faith had turned to its attorneys to challenge MormonLeaks' revelations in the four months the site has been up. On Tuesday, the site reposted the material, along with a letter sent Monday to Barry Taggart, a representative of the LDS Church's Intellectual Property Office.

In the letter, MormonLeaks' Las Vegas-based attorney Marc Randazza contends the site "obtained this document lawfully and had a right to distribute it in its capacity as a journalistic resource devoted to discussing facts about the LDS Church."

Readers of this site will be familiar with Randazza and his reputation for repudiating bogus takedowns and lame uses of intellectual property in this matter. His involvement does not bode well for the Mormon Church's prospects for the continued bullying of MormonLeaks through the inappropriate application of copyright law. The site is clearly well within the boundaries of Fair Use. And, while Utah's version of an anti-SLAPP law is horribly neutered, limited only to suits involving "the process of government", Randazza's otherwise congenial notice to the Church hints that there will be consequences of it doesn't walk away from all of this.

"At this point, my client is willing to let bygones be bygones," Randazza writes. "If your client is willing to step back from the brink, and to cease efforts to censor this material, my client is willing to refrain from bringing a claim [of abusing copyright law]."

While it should be clear to the Church that the best move now is to walk away, it would have been far better had it never tried this bullying tactic to begin with. After all, the Streisand Effect has now taken over, with news of the dispute resulting in wider publicity for the site and documents that were targeted for removal.

Last fall, Alphabet/Google announced that the company would be notably scaling back its Google Fiber ambitions. The company axed its CEO, laid off a small number of employees, and froze a number of anticipated fiber builds (in Portland and a few other locations). Numerous reports indicated that there were growing concerns among many executives about the high costs and slow pace of deploying fiber, so the company was considering an overall pivot to next-generation gigabit wireless while it continued building out most already-announced markets.

While it's hard to call this pivot a failure until we see a real wireless product, ISPs like AT&T were of course quick to suggest Google Fiber was little more than folly (ignoring that AT&T's anti-competitive behavior played a starring role in Google Fiber's struggles in many cities). This has contributed to an overall air of "we told you so" smugness emanating from numerous quadrants of the telecom status quo.

That take, however, is short-sighted. One, the launch of Google Fiber put an unrelenting spotlight on the lack of broadband competition in countless markets, driving many large ISPs (like AT&T) to deploy gigabit broadband service that had previously been unheard of. Google Fiber also managed to shine a bright spotlight on the way many large ISPs use our broken legislative and regulatory systems to keep things broken, whether that's by using utility pole beaurocracy to slow competitors' installs, or writing awful state protectionist law hamstringing what your local town and city can do about it.

Over at Backchannel, long-standing duopoly critic and Harvard Law Professor Susan Crawford notes that there are a lot of useful lessons from Google Fiber, most notably that the system Google Fiber is operating in is effectively rotten to the core:

"The fundamental lesson of Google Fiber is that, in the end, its business model was just like that of another cable actor. It was playing within the existing sandbox, using the right technology but the wrong business model.

That sandbox has been left to the vagaries of the marketplace, in which existing monopolies have built moats around their businesses in the form of rights to programming, rights of way, bundled products, relationships with credulous legislators, and a million other barriers to entry that make competing — even for Google — just too expensive for shareholders looking for immediate, media company-like returns, quarter after quarter."

The solution, Crawford insists, is a shift toward local, municipal, open access networks via which ISPs come in and compete:

"The only business model for fiber that will work to produce the competition, low prices, and world-class data transport we need — certainly in urban areas — is to get local governments involved in overseeing basic, street grid-like “dark” (passive, unlit with electronics) fiber available at a set, wholesale price to a zillion retail providers of access and services. There’s plenty of patient capital sloshing around the US that would be attracted to the steady, reliable returns this kind of investment will return. That investment could be made in the form of private lending or government bonds; the important element is that the resulting basic network be a wholesale facility that any retail actor can use at a reasonable, fair cost.

The result: Instead of different wires competing side by side with one another, there would be one great basic facility available neutrally to every form of business. Your ISP could use that fiber in competition with 10 others; your traffic lights could use it to govern congestion; your energy grid could use it to measure and regulate consumption and use of renewables. (Here comes the much-touted Internet of Things, which, without fiber everywhere, is being built on sand.) At the same time, the government would stay out of providing and inventing retail services itself."

Data, including data from the FCC (promptly ignored by the agency) does support the argument that such open access networks result in better broadband, better customer service, and lower prices thanks to real competition. In fact, Google Fiber initially insisted it would support the open access model -- before promptly backing away from it. And some areas, like Huntsville, Alabama, are following through on building an open network, then inviting multiple ISPs (including Google Fiber) to come in and compete.

More competition means organic punishment for high prices, bad service, and net neutrality violations -- which in turn means fewer attempts to fix this issue using often ham-fisted attempts at regulating a moving train.

The problem: incumbent ISPs effectively run massive chunks of our government, to the point where they quite-literally write telecom law (usually via ALEC or some other third-party, legislation ghostwriting apparatus). That includes the twenty-some odd state laws preventing towns and cities from making telecom infrastructure decisions for themselves, lest they might upset somebody at AT&T, Verizon, Charter or Comcast.

Like so many sectors, you can't really fix what ails the broadband industry until you fix the underlying legislative rot that lets companies use campaign contributions and disinformation to dictate garbage technology policy in the first place. So sure, open access networks should absolutely be pursued where possible, but voting out politicians whose entire function appears to be to protect broken mono/duopoly markets (looking at you, Marsha Blackburn) would need to be the very first step in what's an achievable but Sisyphean climb toward better broadband.

A couple of years ago, the Freedom of the Press Foundation sued the DOJ over its refusal to release its secret rules governing spying on the nation's journalists. This was prompted by revelations the FBI had used National Security Letters to obtain information on AP and Fox News journalists. The DOJ then issued new rules on the do's and don'ts of surveilling journalists, but once again (a) redacted them into uselessness and (b) granted the FBI an NSL exception, undercutting the entire point of the recrafted rules.

The OIG report -- in which the Inspector General disputed the DOJ's extensive redactions -- still has yet to be released in a less-redacted form. Sadly, it now appears it will never be any less redacted than the unintelligible mess the DOJ handed over a few years ago. A federal judge has sided with the government, finding its investigative techniques and methods are too sensitive to be handed over to the public, much less journalists it may or may not have surveilled using NSLs. (h/t Trevor Timm, Mike Scarcella)

Underlying everything is the government's barely-contested assertion that these rules contain information of national security interest. It's a handy assertion because it means the DOJ doesn't even have to explain why the redactions it made are relevant to its national security claims. From the opinion [PDF]:

Recognizing the Court’s “limited institutional expertise on intelligence matters,” the Court accords substantial weight to Hardy’s representation that “any greater specificity in the descriptions and justifications . . . could reasonably be expected to jeopardize the national security of the United States.” Hardy Decl. ¶ 46. In the area of national security, “it is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency.”

This same argument appears later in the decision when dispensing of the plaintiff's challenge to yet another FOIA exception deployed by the FBI:

[T]he Court finds Defendant has met its burden and properly withheld documents under Exemption 7(E) for all five categories of documents. Defendant described with particularity that the withheld documents all contained non-public information about the FBI’s investigative techniques and procedures. These pages not only identified NSLs as an investigative technique, but also described information such as the circumstances under which the techniques should be used, how to analyze the information gathered through these techniques, and the current focus of the FBI’s investigations. As in Hamdan, the Court concludes that the declarations, which state that further detail would “reveal[] the very information it seeks to protect,” are sufficient to satisfy Defendant’s burden.

The court's also uninterested in double-checking the DOJ's secrecy assertions. As always, the court has the option to review contested documents behind closed doors (and away from plaintiffs) to see if the government's claims of national security/investigative concerns are valid. The court here declined to exercise this privilege.

The Court finds that in camera review is unnecessary here as Defendant already provided sufficiently detailed factual information in support of its exemptions in the Hardy Declarations and Vaughn Index.

The FBI is still free to use NSLs to obtain information -- including call records -- about journalists. The DOJ may have reined in other options, but NSLs have always been the FBI's go-to form when it's stymied by the FISA court, magistrate judges, or internal guidelines. Nothing about that will change. As for what's actually changed at the DOJ as a result of this public outing of journalist surveillance, the public apparently can't be trusted with that information.

In the fall of 2015, privacy activist Phil Mocek and the Center for Open Policing sued the city of Tacoma for its response to a request for Stingray documents. The documents Mocek obtained were heavily-redacted, despite there being several mostly-unredacted versions of the FBI's Stingray non-disclosure agreement already in public circulation.

(This would be the standard NDA the FBI appends to every Stingray purchase by local law enforcement agencies -- one that says all public records requests should be forwarded to the feds and encourages locals to toss cases rather than expose Stingray use. It's also the same contract the FBI was shocked to hear agencies were complying with after signing on the dotted line to take ownership of their new cell tower spoofers.)

The lawsuit was filed under the state's open records law, with Mocek challenging the Tacoma PD's use of the "investigative records" exemption to withhold significant amounts of a mostly bog-standard nondisclosure agreement. As was noted back then, the continued withholding of this information could become costly (for taxpayers): the state's public records law allows for fines of $500/day for violations.

The court has spoken and the Tacoma PD's excessive secrecy is indeed going to cost residents a chunk of change.

The city of Tacoma will pay a $50,000 fine as well as legal fees for violating the Public Records Act by withholding most of a nondisclosure agreement it signed to obtain cellphone surveillance equipment commonly known as a Stingray.

[...]

In an order signed Friday, Pierce County Superior Court Judge Frank Cuthbertson said the city’s redactions violated state law.

He ordered Tacoma to pay $100 a day for every day the city “wrongfully withheld the unredacted NDA from June 21, 2014, until November 3, 2015, when the city provided this record to plaintiffs,” a penalty period of 500 days. The penalty is the maximum allowable under state law.

The judge determined the exemption cited was improper and withholding large amounts of contractual language served no conceivable law enforcement purpose. The city blamed the FBI for its lavish deployment of black toner. Presumably, the FBI will push back, stating it expects no one to uphold the terms of an agreement it forces them to sign before they can acquire the devices.

This unjustified secrecy is going to hurt the city (and its taxpaying residents) a few more times. The Tacoma New Times points out there are several pending lawsuits dealing with the same Stingray documents, including one filed by the ACLU. The city says it won't seek reimbursement from the federal government for fines and fees, but maybe it should, especially if it's going to blame the FBI for the Tacoma PD's secrecy. This actually sounds like a "good faith" attempt to respect the terms of its agreement with the FBI. The FBI got the secrecy it wanted -- at least temporarily. The least it can do is offer to cover the damages of the NDA it says everyone must sign, but apparently doesn't expect anyone to follow.

Last month, we noted that a ton of tech companies -- including us at the Copia Institute -- had signed on to amicus brief opposing the Trump Executive Order on immigration. As you know, the administration came out with a new executive order a few weeks later, trying to get around the multiple courts that had blocked the original order. The new order is just a cosmetic rewriting of the original one with a few small changes that the administration hopes will survive judicial scrutiny. A number of challenges have already been filed to the new order, and in one of them, brought by the state of Hawaii, a bunch of tech companies (again, including the Copia Institute) have now filed an amicus brief opposing the order. In particular, this brief focuses on the harms to the tech industry, including actual examples of harms created by this exec order:

• A U.S. resident employed at a cutting-edge software company fears that he cannot leave the U.S. because he is a national of a Muslim majority country targeted by President Trump’s travel ban. If he attempts to travel outside the country, he could be detained and refused re-entry. After the travel ban went into effect, he canceled plans to bring his mother to the U.S. to visit him, out of concern that she might be detained or turned away. He has not been home for five years. The U.S. company he works for, which employs over 100 people and has raised hundreds of millions of dollars in capital, was founded by an immigrant.
• A high-tech, U.S.-based software company devoted significant resources to an event it scheduled in February 2017 where it planned to host owners of small businesses and tech start-ups based overseas. Before these entrepreneurs became business and start-up owners, they were Syrian refugees. After President Trump’s travel ban went into effect on January 27, 2017, the event was abruptly postponed, because the guests were unable to travel to the U.S. on account of their status as Syrian refugees. The U.S.- based software company plans to reschedule the event at a location outside the U.S., so the Syrian refugees and entrepreneurs can safely attend.
• A U.S.-based mobile app and website development company with millions of users worldwide employs U.S. residents who are nationals of the Muslim-majority countries targeted by President Trump’s travel ban. In late January and February 2017, some of these employees had planned to fly outside the U.S. for business or personal reasons. Since the travel ban was announced, these employees canceled their flights for fear they would be detained or not permitted to re-enter the U.S.
• A U.S.-based technology company courted promising job candidates overseas and was prepared to offer them employment when the prospects suddenly withdrew from consideration because they were worried about immigration issues in light of President Trump’s travel ban.
• After the implementation of President Trump’s travel ban, foreign born founders of a U.S.-based technology company began exploring the possibility of moving their company outside of the U.S.—and taking the company’s jobs with them.

The filing goes through the history of the initial ban, and then notes that the new version is still just as bad:

President Trump’s new travel ban is no different. It will inflict the same substantial and irreparable harm upon U.S. companies and their employees. And in implementing the promise of a “Muslim ban,” the new travel ban suffers from many of the same defects as the first travel ban. It violates the prohibition against nationality-based discrimination that Congress established through the Immigration and Nationality Act. It exceeds the authority granted to the Executive. It is arbitrary and overbroad in scope. And it impermissibly discriminates on the basis of religion and deprives individuals of Due Process rights, thus violating the U.S. Constitution. In sum, President Trump’s new travel ban has not overcome the constitutional and legal deficiencies that led courts to enjoin his first travel ban. Accordingly, the new travel ban should meet the same fate as the first travel ban— it should be enjoined nationwide.

This amicus brief is at the district court level, so it's still quite early in the process -- and there are other legal challenges in other courts. This will still take a while to sort itself out, but we're proud to stand alongside others in the industry in speaking up for why these immigration executive orders are illegal and unconstitutional, not to mention bad for innovation and the economy.

Update: Oh, and just an hour or so after I posted this, the judge has granted a temporary restraining order, blocking the executive order from going into effect...

As we noted last week, one of the main copyright battlegrounds in the UK concerns the use of Kodi boxes -- low-cost devices running the open source Kodi multimedia player, usually augmented with plug-ins that provide access to unauthorized content. One of the popular uses of such Kodi boxes is to watch live streams of sporting events. TorrentFreak reports on an important new court order obtained by the UK's Football Association Premier League (FAPL) to prevent people from viewing live streams of soccer games free of charge. The problem for the FAPL is that the addresses of the servers streaming matches are often only known once the games begin. To meet that challenge, the court has granted a new kind of injunction: one that allows live blocking. Here's how it will work:

servers can only be selected [for blocking] by FAPL if it "reasonably believes" they have the "sole or predominant purpose of enabling or facilitating access to infringing streams of Premier League match footage." Secondly, the FAPL must not know or have reason to believe "that the server is being used for any other substantial purpose."

In other words, the servers must be dedicated to live streaming rather than doing it incidentally alongside other, possibly more legitimate, activities.

This caution is needed because this injunction will be carried out live, as soon as matches begin to hit the Internet. FAPL and its anti-piracy contractor will monitor the Internet, grab IP addresses, and ask the ISPs to block them in real-time. No court will be involved in that process, it will be carried out at the discretion of the FAPL and the ISPs.

Giving the FAPL the power to ask for any IP address to be blocked as it sees fit, and without a court order, is bad enough, but the TorrentFreak post points out some other extremely troubling features of this latest decision. It explains how the FAPL hired an "anti-piracy" company to monitor unauthorized streams. It seems that leading UK ISPs helped by providing data about download patterns:

"A very substantial volume of traffic from BT, Sky and Virgin, who are the three largest UK ISPs, has been recorded from these [infringing servers] during Premier League match times," the injunction reads.

"The extent of these spikes in traffic, the closeness of their correlation with each scheduled match, and the absolute volume in terms of raw bandwidth consumed, are only consistent with large numbers of consumers obtaining Premier League content from these servers."

This information is also "only consistent" with those three ISPs actively helping the investigation of streaming servers. As TorrentFreak points out:

Overall, this injunction provides a clear indication of what can happen when ISPs stop being "mere conduits" of information and start becoming distributors of entertainment content. In the case of Sky and BT, who pay billions for content, it would be perhaps naive to think that they would've behaved in any other way.

Indeed, this case has all the hallmarks of companies agreeing to take action together and then going through the formalities of an injunction application to get the necessary rubber stamp and avoid criticism.

If confirmed, that's a terrible development. It would mean that the ISPs with investments in material that customers view over their connections no longer see themselves as neutral "mere conduits," but now are on the side of the copyright industry.

The legal blog IPKat points out another important aspect of this latest case. It seems to be the first time that the awful GS Media ruling by the Court of Justice of the European Union -- that a link posted "for profit" can be considered direct infringement -- has been applied in the UK. The judge in this live streaming case wrote:

Generally speaking, the operators of the Target Servers are not merely linking to freely available sources of Premier League footage. Even if in some cases they do, the evidence indicates that they do so for profit, frequently in the form of advertising revenue, and thus are presumed to have the requisite knowledge for the communication to be to a new public.

Expect to see more of these live blocking orders in the UK as the copyright industry there continues to wage its war on the popular Kodi boxes. The question is, will courts in other EU countries start to use them too?

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