Court Calls Out Government For The 'General Warrant' It Served To Facebook

from the but-awards-it-an-A-for-effort dept

In a disturbing case involving the sex trafficking of minors, the 11th Circuit Appeals Court has reached a few interesting conclusions involving digital searches and the Fourth Amendment. Included in the court's findings are rulings on the use of the All Writs Act to force Apple to unlock a device, an email warrant served to Microsoft, and warrants used to obtain a vast amount of information from Facebook. [h/t Orin Kerr]

The All Writs Act received a ton of free publicity thanks to Apple's fight with the DOJ over the (forced) unlocking of the San Bernardino shooter's iPhone. Ultimately, the DOJ hired outside help to crack open the phone, abandoning its search for helpful precedent. (And, ultimately, the phone -- the shooter's work-issued phone -- contained nothing of interest.)

Here, the Appeals Court finds [PDF] there's nothing wrong with using the 1789 All Writs Act to paper over holes in the 200+ years of legislation.

The authority granted by the All Writs Act is broad but not boundless. The Act “is a residual source of authority” that permits issuing writs only if they “are not otherwise covered by statute.” Penn. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43, 106 S. Ct. 355, 361 (1985). It is a gap filler. “Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.” Id. And where Congress has proscribed a certain type of judicial action, the Act cannot overcome that proscription. See id. The bypass order meets this requirement because no statute expressly permits or prohibits it.

Using somewhat circular reasoning, the court states the All Writs warrant issued here doesn't produce any Fourth Amendment difficulties because Apple willingly complied with it.

To comply with the bypass order, Apple simply had to have an employee plug the iPad into a special computer and then transfer the iPad’s data to a thumb drive. That is not an unreasonable burden, especially in light of the fact that Apple did not object to the bypass order’s requirements.

More helpfully, the court seems to suggest it's amenable to challenges like the one raised here. In most cases, challenging an All Writs warrant can only be done by the company receiving it. The court doesn't have to meet the issue of whether or not the defendants had standing to challenge the warrant served to Apple, but doesn't immediately dismiss their attempt to establish standing.

Moving on, the court examines the warrant served to Microsoft for emails related to the criminal charges. The court finds the warrant was not overbroad.

Viewed against that constitutional history, the Microsoft warrant complied with the particularity requirement. It limited the emails to be turned over to the government, ensuring that only those that had the potential to contain incriminating evidence would be disclosed. Those limitations prevented “a general, exploratory rummaging” through Moore’s email correspondence. The Microsoft warrant was okay.

How often does a court describe a warrant as merely "okay?" I'm guessing it's probably not that often. Here's why it did in this case, explained in the footnote attached to the "okay" descriptor.

It is somewhat troubling that the Microsoft warrant did not limit the emails sought to emails sent or received within the time period of Moore’s suspected participation in the conspiracy. Nevertheless, the warrant was appropriately limited in scope because it sought only discrete categories of emails that were connected to the alleged crimes. As a result, the lack of a time limitation did not render the warrant unconstitutional.

The government passes this warrant examination with C-. The work needs improvement and the government just isn't applying itself. Unfortunately, neither is the court if it's going to allow third parties do the government's particularity work for it.

The Facebook warrant, however, doesn't live up to the court's "okay" standard.

The Facebook warrants are another matter. They required disclosure to the government of virtually every kind of data that could be found in a social media account… And unnecessarily so. With respect to private instant messages, for example, the warrants could have limited the request to messages sent to or from persons suspected at that time of being prostitutes or customers. And the warrants should have requested data only from the period of time during which Moore was suspected of taking part in the prostitution conspiracy. Disclosures consistent with those limitations might then have provided probable cause for a broader, although still targeted, search of Moore’s Facebook account. That procedure would have undermined any claim that the Facebook warrants were the internet-era version of a “general warrant.”

If there's one thing law enforcement doesn't want to hear from a judge, it's the term "general warrant." Being compared to an occupying force is never a good thing. And these warrants are definitely not "okay."

The two warrants required Facebook to “disclose” to the government virtually every type of data that could be located in a Facebook account, including every private instant message Moore had ever sent or received, every IP address she had ever logged in from, every photograph she had ever uploaded or been “tagged” in, every private or public group she had ever been a member of, every search on the website she had ever conducted, and every purchase she had ever made through “Facebook Marketplace,” as well as her entire contact list. The disclosures were not limited to data from the period of time during which Moore managed the prostitution ring; one warrant asked for all data “from the period of the creation of the account” and the other did not specify what period of time was requested.

The government claimed the Facebook warrant was no different than warrants used to search electronic devices. In the latter case, the government generally takes possession of the device and digs through it until it finds what it needs. (This is an area of jurisprudence that is slowly shifting. With "persons' entire lives" often located on devices like smartphones, the analog equivalent is the government seizing the entire contents of a person's home before taking what's actually relevant to the case at hand.) The court has no sympathy for this argument, pointing out the warrant should have asked Facebook for only what was relevant and allow a non-government party to dig through the suspects' digital personal effects.

The means of hiding evidence on a hard drive — obscure folders, misnamed files, encrypted data — are not currently possible in the context of a Facebook account. Hard drive searches require time-consuming electronic forensic investigation with special equipment, and conducting that kind of search in the defendant’s home would be impractical, if not impossible. By contrast, when it comes to Facebook account searches, the government need only send a request with the specific data sought and Facebook will respond with precisely that data.

And the government should know this, because it does this thousands of times a year.

That procedure does not appear to be impractical for Facebook or for the government. Facebook produced data in response to over 9500 search warrants in the six-month period between July and December 2015.

Unfortunately, the government is allowed to keep the Facebook evidence under the "good faith" exception.

The Facebook warrants do not fall within either category of excludable warrants. As we have already explained, probable cause supported issuance of the warrants. And while the warrants may have violated the particularity requirement, whether they did is not an open and shut matter; it is a close enough question that the warrants were not “so facially deficient” that the FBI agents who executed them could not have reasonably believed them to be valid.

This suggests a two-step process for warrants served to service providers might be the better path to take in the future. While particularity is difficult to nail down when you're not sure exactly what you're looking for, trimming down demands for data and communications to relevant time periods raises the chances of warrants surviving suppression challenges. The court sets no precedent in this decision thanks to its good faith ruling, but the footnote addressing the Microsoft warrant and the multiple paragraphs devoted to the government's Facebook haul hints the government really needs to tighten up its search warrant procedures.

Filed Under: all writs act, doj, fishing expedition, general warrant, surveillance
Companies: apple, facebook, microsoft

Despite Claiming It's Now On Par With Apple, Comcast's Already Bad Satisfaction Ratings Are Actually Getting Worse

from the frying-pan,-fire dept

Like clockwork, every few months you'll see a Comcast executive pop up like a meerkat to proclaim the company has seen the error of its ways, and will henceforth focus on dramatically improving its historically abysmal customer service. In 2014, that involved the well-hyped hiring of a new "customer experience" VP who was supposed to "reimagine the customer experience and ensure that we are delighting our customers at each touch point." But these heavily-marketed promises are never matched by measurable improvements in satisfaction studies, where Comcast remains among the worst companies in any industry when it comes to customer satisfaction and support.

In fact, despite these promises by Comcast, things are somehow getting worse.

The well-respected American Consumer Satisfaction Index ranks customer satisfaction across 43 different industries. Their latest rankings of pay TV providers has found that Comcast has slipped four points in the ACSI rankings, from 62 to 58. That fall places it as the second worst-ranked cable TV provider in the United States -- six points worse than the already-bad national average for cable TV providers, and thirteen points lower than industry leader Verizon FiOS:

That's a different story than the one Comcast keeps telling the press, featuring a supposed relentless dedication to shoring up customer service and support. For example, a company executive recently told the Chicago Tribune that Comcast's evolution is moving along so nicely, execs don't even think of Comcast as a cable company any longer -- but as a premiere technology brand more in line with Google and Apple:

"We don't see ourselves as a cable company," (Comcast exec Matt) Strauss said. "We see ourselves as a technology and communication-entertainment company, much more in the consideration set of Apple and Google than more of the traditional cable and satellite providers."

Except consumers don't agree. If you check out Apple's ratings in those same ACSI rankings for cell phone manufacturers, perhaps you can spot a slight difference:

In fact, Comcast is not only nowhere in the same universe as Apple when it comes to customer satisfaction, but the ACSI indicates that most government agencies are more liked than Comcast, including the IRS (at least for individual filers). That's not a particularly impressive feat for a company that has pledged, every six months or so for the better part of the last decade, that it's working tirelessly to fix the cable industry's justifiably abysmal reputation for service.

Of course there's an obvious reason Comcast doesn't really improve: it doesn't have to. Cable's customer satisfaction problems originate with the focus on prioritizing growth at all cost. And, once large, these companies ensure that when they "compete" it's traditionally of the wink-wink, nudge-nudge variety. And as telcos refuse to spend the money needed to upgrade lagging DSL networks, Comcast is slowly but surely building a growing monopoly over fixed-line broadband service, allowing it to impose extremely unpopular usage caps and overage fees (glorified, unnecessary rate hikes) and turn a blind eye to consumer complaints.

And with the current FCC looking to gut everything from media consolidation restrictions to privacy and net neutrality consumer protections, you can expect a hell of a lot more of this particular brand of dysfunction in the years to come.

Filed Under: customer satisfaction
Companies: apple, comcast

Apple, Verizon Join Forces To Lobby Against New York's 'Right To Repair' Law

from the making-ownership-more-expensive dept

Over the last year, we've noted the surge in so-called "right to repair" laws, which would make it easier for consumers to repair their electronics and find replacement parts and tools. It's a direct response to the rising attempts by companies like John Deere, Apple, Microsoft and Sony to monopolize repair, hamstringing consumer rights over products consumers think they own, while driving up the cost of said product ownership. John Deere's draconian lockdown on its tractor firmware is a large part of the reason these efforts have gained steam over the last few months in states like Nebraska.

In New York, one of the first attempts at such a law (the "Fair Repair Act") has finally been making progress. But according to New York State's Joint Commission on Public Ethics, Apple, Verizon, Toyota, Lexmark, Caterpillar, Asurion, and Medtronic have all been busy lobbying to kill the law for various, but ultimately similar, reasons. And they're out-spending the consumer advocates and repair shops pushing for this legislation by a rather wide margin:

"The records show that companies and organizations lobbying against right to repair legislation spent $366,634 to retain lobbyists in the state between January and April of this year. Thus far, the Digital Right to Repair Coalition—which is generally made up of independent repair shops with several employees—is the only organization publicly lobbying for the legislation. It has spent $5,042 on the effort, according to the records."

To be clear, the vast majority of the time, companies lobbying against this kind of legislation don't like to even admit that they oppose it. But when they do go on the record, it usually features a trifecta of false claims that the bills will make users less safe, pose a cybersecurity risk, and open the door to cybersecurity theft. In Nebraska, for example, we've already noted how Apple claims that allowing people to repair and tinker with the hardware they own will somehow turn the state into a "mecca for bad actors and hackers," and that letting consumers repair their own electronics would cause lithium batteries to catch fire.

Of course, the real reason Apple opposes this legislation is that it stands to lose significant repair revenue once people no longer have to drive half an hour to the nearest Apple Genius bar and support team. The same is true for game console makers Sony and Microsoft, who obviously would prefer it if you're only able to use their significantly-more expensive repair programs. They'll ignore the fact that this kind of behavior not only allows companies to charge an arm and a leg for what very well may be superficial repairs, but helps prop up closed, proprietary ecosystems, hurting customers in a myriad of other ways as well.

And while supporters of these right to repair bills are very candid about the benefits they think users will see, it's telling that the companies lobbying against these rules refuse to comment whatsoever on their opposition, and when they are willing to talk can only trot out a parade of theoretical horribles that don't really make coherent sense.

Filed Under: license agreements, new york, ownership, right to repair
Companies: apple, lexmark, toyota, verizon

That Story About Uber Tracking People After They Deleted The App? Yeah, That's Not Really Accurate

from the let's-try-this-again dept

Have you heard the story about how Uber was tracking ex-users even after they had deleted the app from their phone? You'd have to be living under a rock to have missed it. It came from a fascinating NY Times profile of Uber's CEO/founder Travis Kalanick and is the opening anecdote, and then it started spreading like wildfire across social media.

Travis Kalanick, the chief executive of Uber, visited Apple’s headquarters in early 2015 to meet with Timothy D. Cook, who runs the iPhone maker. It was a session that Mr. Kalanick was dreading.

For months, Mr. Kalanick had pulled a fast one on Apple by directing his employees to help camouflage the ride-hailing app from Apple’s engineers. The reason? So Apple would not find out that Uber had been secretly identifying and tagging iPhones even after its app had been deleted and the devices erased — a fraud detection maneuver that violated Apple’s privacy guidelines.

But Apple was onto the deception, and when Mr. Kalanick arrived at the midafternoon meeting sporting his favorite pair of bright red sneakers and hot-pink socks, Mr. Cook was prepared. “So, I’ve heard you’ve been breaking some of our rules,” Mr. Cook said in his calm, Southern tone. Stop the trickery, Mr. Cook then demanded, or Uber’s app would be kicked out of Apple’s App Store.

This has created lots and lots of headlines all over the place, claiming that Apple kept tracking ex-Uber users after they'd deleted the app. And some even whining that Apple "let" Uber get away with this with no more than a verbal scolding. The most egregious of these is Andrew Orlowski, over at the Register, who has never found a story about a tech company he couldn't totally misreport to make the company look worse. Here, he claims: Uber cloaked its spying and all it got from Apple was a slap on the wrist. Others just claimed that Uber was "tracking users even after they deleted the app."

Except, if you actually read what the NY Times said it notes that what the company was doing was an anti-fraud detection. Did it break Apple's rules and go too far? Yes, absolutely. Was it bad? Probably. Was it tracking users who deleted the app? No, not at all. Again, there are plenty of legitimate reasons to dislike Uber or to dislike its business practices or its management. But that's no excuse to oversell a story that already looks bad. Uber clearly broke the rules and used a fairly sketchy maneuver to track phones to prevent fraud -- but that's not the same as tracking users who deleted the app. Wired has a pretty clear summary of what actually happened:

Fingerprinting, in and of itself, has plenty of non-invasive uses. Uber, for example, deployed it to help prevent fraud. Being able to identify when a device reinstalls a particular app helps developers spot phones that are, say, bouncing around the black market. In Uber’s case, fingerprinting kept drivers, especially those in China, from gaming a promotion that rewarded them for maximizing ride volume. The company discovered that some drivers were buying stolen phones, creating dummy Uber accounts, and using those phones to call for rides.

When someone uninstalls an app that uses fingerprinting, it leaves behind a small piece of code that can be used as an identifier if the app is ever reinstalled on the device. For the iOS App Store, Apple originally permitted developers to keep track of their users over time using a broad Unique Device Identifier (UDID). Beginning with iOS 5, though, Apple scaled this back, because of the potential privacy implications of giving developers permission to individually ID users even after their app had been uninstalled. Instead, Apple turned to more limited mechanisms, like advertising IDs and vendor IDs. These still give developers the ability to do fraud defense, but with less leeway for potential privacy abuse.

Uber took it one step further, which is to say, one step too far, using application program interfaces designed to access data like an iPhone’s device registry and Apple-assigned serial number.

Again: this is not excusing what Uber did. It clearly broke Apple's rules, and using this kind of fingerprinting can have some problematic consequences for privacy. And, yes, because everything Uber does seems to come included with some secondary component that makes even reasonable actions look bad, the company geofenced Apple's headquarters to try to try to hide the fact that it was doing this. That seems like a pretty blatant admission that the company knew it was breaking Apple's rules. It just doesn't mean that the company was tracking you after you deleted its app.

I certainly understand that there's a long list of actions by Uber that make people not trust the company. And that's completely valid. But if you're going to attack the company, it should be for the bad actions that the company actually did, rather than the exaggerated and misleading descriptions that start spreading across social media.

Filed Under: deleted, fraud, press coverage, tracking, travis kalanick
Companies: apple, uber

Apple Takes Heat For Software Lock That Prevents iPhone 7 Home Button Replacement By Third-Party Vendors

from the right-to-repair dept

We've been discussing for some time how John Deere, Apple, Sony and Microsoft are among a laundry list of companies fighting against so-called "right to repair" bills. The bills, currently being pushed in a handful of different states, make it easier for consumers to repair their own products and find replacement parts and tools. The bills are an organic consumer response to the attempts of many of these companies to monopolize repair, driven in large part by John Deere's draconian lockdown on "unauthorized repairs" -- forcing tractor owners to pirate tractor firmware and maintenance tools just to repair products they thought they owned.

Apple's been notably vocal on this subject, recently trying to shut down a Nebraska right to repair bill by proclaiming that it would turn the state into a dangerous hacker playground. Of course, propped up by the DMCA's anti-circumvention rules, Apple has utilized a rotating crop of tools to try and protect this repair monopoly. Last year, for example, Apple caused a bit of a shitstorm due to "Error 53", part of an iOS update that bricked phones that had their screens replaced by third party repair vendors.

Having apparently learned no lessons from the backlash from that use of repair locks, Apple is once again taking heat for new software locks cooked into the iPhone 7, which prevent the device's home button from working after it has been replaced. Unless, that is, the replacement is performed by a certified Apple technician with the proper "re-calibration" software. The home button is used to unlock the phone, and to return the user to the home screen when pressed.

In previous iPhone versions (iPhone 5S, 6, and 6S) if you replaced the home button you lost the security function, but users could still login via pin -- and the button still worked to bring users "home." But with the iPhone 7, replacing the home button via third-party vendor results in the button not working at all -- unless you take the device to Apple's Genius bar. This is, independent repair shops claim, just part of Apple's overall strategy of monopolizing repair, hampering third-party repair vendors, and restricting consumer choice:

"In a video demonstrating the block, Michael Oberdick, owner of the independent iPhone repair shop iOutlet, swapped the front displays (and home buttons) of two iPhone 7 devices. When swapped, the phone displays an error message that says "The Home Button May Need Service." Its functionality is disabled and "Assistive Touch" automatically pops up on the device, creating an onscreen, software-based home button."

This is, Oberdick argues, little more than a vindictive, anti-consumer move on the part of Apple:

"Not supporting that menu function makes no sense," Justin Carroll, owner of FruitFixed, an independent iPhone repair shop, told me. "Just a sad and petulant move on their part that will directly affect consumers especially after their one year manufacturer warranty is up."...This may sound like an esoteric issue, and to some extent it is—screen replacements can still be done so long as the original home button is carefully removed and moved to the new screen. But software locks specifically designed to prevent repair are a monopolistic, anti-consumer move that attempts to "tie" an electronic to the manufacturer even after it's already been sold.

Whether coming from Apple, Sony, or Microsoft, opposition to "right to repair" bills usually focuses on the three (false) ideas: the bills will make users less safe, somehow "compromise" intellectual property, and open the door to cybersecurity theft. Apple will be sure to breathlessly insist that they're only making the iPhone 7's home button impossible to repair to protect consumer security, hoping you'll ignore the entire practice of such software locks simply allows the company to monopolize repair, drive up the cost of overall ownership for all of its customers, and make life harder for third-party repair vendors.

Filed Under: digital locks, home button, iphone, right to repair, software lock
Companies: apple

Apple Says Nebraska Will Become A 'Mecca For Hackers' If Right To Repair Bill Passes

from the nebraska-cornhackers dept

It looks like Apple decided to drop in on flyover country in hopes of thwarting a "Right to Repair" bill pending in the Nebraska legislature. It did not go well.

[T]he prospect of a Cupertino-based megacorporation losing business to local repair shops isn't a very sympathetic argument at the Nebraska statehouse. And so Apple has tried a slew of other tactics, according to state Sen. Lydia Brasch, who was recently visited by Steve Kester, an Apple state government affairs specialist.

"Apple said we would be the only state that would pass this, and that we would become the mecca for bad actors," Brasch, who is sponsoring the bill, told me in a phone call. "They said that doing this would make it very easy for hackers to relocate to Nebraska."

Apple probably expected its heavy-handed (and stupid -- more on that in a bit) "suggestion" to be taken more seriously by podunk legislators in the middle of nowhere. Unfortunately for Apple, Brasch isn't just a legislator in a state mainly known for corn and football-as-religion.

Brasch is not only an Apple customer, but she's a farmer who has had to deal with plenty of repair-blocking BS from companies like John Deere. She also has a background in computer science and an apparent tendency to not let corporate lawyers talk down to her.

Not only did Apple pick the wrong legislator to threaten, its threat is incoherent. I've spent most of the last 15 years in the Midwest and, trust me, it would take far more than a right-to-repair bill's passage to make Nebraska a mecca of anything. (Beyond college football, he said to head off the Cornhusker faithful most likely already demanding a retraction…)

Then there's the thing about "hackers." There's more than one type of hacker, but Apple dropped it as a pejorative term in hopes of conjuring images of hoodied figures sitting in dark rooms with the local SWAT team on speed dial and deploying some sort of encryption… you know, the evil kind.

All sorts of nonsensical arguments are already being raised in response to a handful of right-to-repair bills around the nation. The corporate version of "you'll shoot your eye out" has been deployed to portray DIY repair jobs as hospitalizations waiting to happen.

The idea that it's "unsafe" to repair your own devices is one that manufacturers have been promoting for years. Last year, industry lobbyists told lawmakers in Minnesota that broken glass could cut the fingers of consumers who try to repair their screens, according to Gay Gordon-Byrne, executive director of Repair.org. Byrne said she will also testify at the Nebraska hearing and "plans to bring band aids."

Apple's take is this: the "hacker mecca" thing plus a very short parade of not-all-that-horribles.

Brasch said the representatives made two other main arguments: They said repair could cause lithium batteries to catch fire, and said that there are already enough authorized places to get iPhones repaired, such as the Apple store.

Define "enough." As Brasch points out, getting her devices repaired "conveniently" involves setting up an appointment at the nearest Apple store, which is 80 miles from where she lives. Apple certainly doesn't mind taking money from rurally-located customers when selling devices. But it's not nearly as willing to make repairing their purchased products actually convenient.

And it's not just Apple. Other phone manufacturers have spoken to Brasch in an attempt to get her to drop the legislation, or at least rewrite it in their favor.

"They said just take out the 'phone' part of the bill and we'll go away," Brasch said. "That's tempting, but we need to repair consumer technology too."

Brasch's bill sprung out of her frustration with repairing her farm's equipment, which has been made increasingly difficult by John Deere's refusal to allow anyone other than repair shops it makes to profit from touching its products. Phone manufacturers have the same attitude. They express faux concern about consumer safety while preventing consumers from having any control over how their purchased devices are repaired. The concern most of these companies have for their consumers only extends as far as their ability to purchase add-ons, new products, and inconvenient repairs at non-competitive prices. The battle is over bottom lines, not consumer safety, no matter how it's spun and no matter how many hacker-based horror stories are spun.

Filed Under: lobbying, lydia brasch, nebraska, right to repair
Companies: apple

Apple Wants To Stop You Fixing Your iPhone And iPad: Source Says It Will Testify Against 'Right To Repair' Legislation

from the wrong-side-of-history dept

Techdirt has been covering the fight for a "Right to Repair" for a long time -- Mike first wrote about it in 2009. Even though the idea seems a no-brainer -- you bought it, why shouldn't you be able to repair it? -- progress has been extremely slow, as successive Techdirt articles have chronicled. One of the most important developments is a number of "Right to Repair" bills that are being considered by various state legislatures. These typically require electronics manufacturers to make service manuals available to the public, and to sell repair parts. The hope is that if even one or two of these are passed, manufacturers will find it simpler to comply nationally. However, an article on Motherboard suggests that the "Right to Repair" movement has a rather surprising enemy. Here's what an unnamed source told the publication:

an Apple representative, staffer, or lobbyist will testify against the bill at a hearing in Lincoln on March 9. AT&T will also argue against the bill, the source said. The source told me that at least one of the companies plans to say that consumers who repair their own phones could cause lithium batteries to catch fire.

It's all about safety, you see, and definitely not about trying to push the public to buy new models when the old ones break. The Motherboard story suggesting Apple will try to derail the "Right to Repair" bill in Nebraska is plausible, because the company did exactly the same in two states last year, as the Huffington Post reported. It seems those were not isolated incidents, but part of a long-running official Apple policy against the "Right to Repair" idea.

For a company that likes to portray itself as serving its users better than its rivals, this is shabby behavior. It not only forces people to spend money unnecessarily, it is harmful for the environment. Discarding old models is likely to lead to more toxic landfill, even though Apple says that it tries to recycle as much as possible. It's sad to see an otherwise innovative player lining up with the dinosaurs on the wrong side of history for this issue.

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

Filed Under: copyright, ownership, planned obsolescence, right to repair
Companies: apple

Basically The Entire Tech Industry Signs Onto A Legal Brief Opposing Trump's Exec Order

from the we-need-to-stand-up dept

I've been quite clear how I feel about Donald Trump's awful executive order that places a blanket ban on people entering the US (even if they had valid visas) from 7 countries, including a permanent block on Syrian refugees. Tons of people have been protesting this decision, and multiple courts have ruled against it. There has been some discussion over whether or not the tech industry was really going to stand up against this move, and some of the early statements about the executive order were a bit weak. However, late Sunday night, basically the entire technology industry (plus some companies from other industries as well) signed onto an amicus brief calling the order illegal and unconstitutional (technically, it's a motion asking for permission to file the amicus brief, with that brief attached).

The brief was filed in the Ninth Circuit appeals court, which is one of the first appeals courts considering the executive order, after a federal judge in Seattle issued a nationwide temporary restraining order on enforcing the exec order. On Sunday, the appeals court refused to reverse the lower court, keeping the TRO in place. However, it also gave both parties (the lawsuit itself was filed by the state of Washington) a very quick turnaround time to file written arguments to be considered.

Given that incredibly short time frame, the fact that 97 companies -- including some of the world's largest -- but also some tiny ones, like the Copia Institute (the think tank arm of Techdirt), were able to come together and not only get a detailed amicus brief together, but also get sign on from all of those companies (on Super Bowl Sunday, no less), is impressive. Having been through the process in which amicus briefs with multiple signers has been done before, normally there's lots of hemming and hawing from different companies and nitpicking over certain choices. It takes a lot of effort. Update: Another 30 companies have signed on as well.

But this issue was so important and so core and fundamental to our basic values, that basically the entire industry came together and signed onto this. You name the company, and it's probably signed on. There are the big guys: Google, Facebook, Microsoft and Apple (despite a false Washington Post article that claimed none of them had signed on). There are lots of other huge names as well, including Twitter, Snap, Uber, Airbnb, Lyft, Dropbox, Cloudflare, Box, eBay, GitHub, Kickstarter, Indiegogo, Medium, Mozilla, Patreon, Paypal, Pinterest, Reddit, Salesforce, Spotfy, Stripe, Wikimedia, Yelp, Y Combinator and many, many more. Update: Among the notable companies in the "late" sign on, were SpaceX, Tesla, Slack, Pandora, Adobe, HP, Evernote, Udacity and more...

I highly recommend reading the full amicus brief -- which makes an economic argument, a moral argument and a legal argument all wrapped up in one.

Immigrants make many of the Nation’s greatest discoveries, and create some of the country’s most innovative and iconic companies. Immigrants are among our leading entrepreneurs, politicians, artists, and philanthropists. The experience and energy of people who come to our country to seek a better life for themselves and their children—to pursue the “American Dream”—are woven throughout the social, political, and economic fabric of the Nation.

For decades, stable U.S. immigration policy has embodied the principles that we are a people descended from immigrants, that we welcome new immigrants, and that we provide a home for refugees seeking protection. At the same time, America has long recognized the importance of protecting ourselves against those who would do us harm. But it has done so while maintaining our fundamental commitment to welcoming immigrants—through increased background checks and other controls on people seeking to enter our country.

[....]

The Order effects a sudden shift in the rules governing entry into the United States, and is inflicting substantial harm on U.S. companies. It hinders the ability of American companies to attract great talent; increases costs imposed on business; makes it more difficult for American firms to compete in the international marketplace; and gives global enterprises a new, significant incentive to build operations— and hire new employees—outside the United States.

The Order violates the immigration laws and the Constitution. In 1965, Congress prohibited discrimination on the basis of national origin precisely so that the Nation could not shut its doors to immigrants based on where they come from. Moreover, any discretion under the immigration laws must be exercised reasonably, and subject to meaningful constraints.

There's much more in the full brief, and hopefully the court allows it and recognizes how momentous this is. I've never seen anything that so many tech companies have gotten behind (including things like SOPA), and this happened so fast that it is literally unprecedented. A whole bunch of people put in a tremendous effort to actually get this done (including more than a few having to miss the Super Bowl to get this done...). Andy Pincus from Mayer Brown deserves a specific shoutout for being the main lawyer putting the brief together.

We shall see what happens from here, but having basically the entire tech industry rise up in a single voice to say that this order is not right is nice to see. In this day and age, it's easy not to speak out and to just sit on the sidelines. But this is important, and when it mattered all of these companies spoke out.

Filed Under: amicus brief, donald trump, executive order, muslim ban, tech industry, travel, visas
Companies: apple, copia institute, facebook, google, microsoft, netflix, snap, twitter

Denmark Says Tech Giants Affect It More Than Entire Countries, Decides To Appoint Official 'Digital Ambassador' To Them

from the if-you-can't-beat-them,-establish-diplomatic-relations-with-them dept

As you may have noticed, here on Techdirt we write quite a lot about companies like Apple, Google and Facebook. That's partly because they are very rich and very powerful, and therefore tend to be driving many of the key developments in the tech field. Some think they are too powerful. Here, for example, is Robert Reich, writing for The New York Times, in a 2015 piece entitled "Big Tech Has Become Way Too Powerful":

While in 2001, the top 10 websites accounted for 31 percent of all page views in America, by 2010 the top 10 accounted for 75 percent. Google and Facebook are now the first stops for many Americans seeking news -- while Internet traffic to much of the nation's newspapers, network television and other news gathering agencies has fallen well below 50 percent of all traffic. Meanwhile, Amazon is now the first stop for almost a third of all American consumers seeking to buy anything. Talk about power.

As Reich points out, the European Union seems to agree, and is investigating Amazon, Apple and Google for various alleged abuses of that growing power. More recently, the European Commission signalled that it was not happy about aspects of Facebook's takeover of WhatsApp. But not everyone thinks fighting tech giants is the solution. Here, for example, is what Denmark's Foreign Minister Anders Samuelsen has announced, as reported by The Local:

Saying that tech giants like Google and Apple now have more influence than many countries, Denmark will become the first nation in the world to appoint a so-called digital ambassador.

…

Samuelsen said that through the ambassadorship, which has not yet been filled, Denmark will work toward better relationships with the American tech firms that have amassed fortunes much larger than some of the countries with which Denmark practises traditional diplomacy.

There's a certain logic there, but it does set a worrying precedent. If there's an official digital ambassador, why not have an energy ambassador for the giant oil and gas companies, and a drug ambassador for Big Pharma? And won't that kind of political apparatus provide yet more ways for already influential companies to bend and shape government policy in a country -- tipping the balance against ordinary people even further?

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Filed Under: denmark, digital ambassador
Companies: apple, facebook, google