Appeals Court Makes The Right Call Regarding Non-Commercial Creative Commons Licenses

from the good-to-see dept

We've pointed out for years that there's always been some level of confusion about the boundaries of the "non-commercial" tag on a Creative Commons license. There are lots of things that are kind of fuzzy about it. Does it mean you just can't sell the work? Or does it mean you can't even use it on a website if that website has ads on it? Indeed, we've worried that the non-commercial license created a bit of a branding problem for Creative Commons. However, to the organization's credit, it has spent plenty of time and effort over the past decade or so to try to clarify some of the confusion about non-commercial licensing, saying that it really just refers to the direct sale of such works.

For the past few years, that's also meant that Creative Commons, the organization, has had to step in to an ongoing lawsuit over such a license, and inform the court what a non-commercial license actually means.

The issue, in the case, was that an educational non-profit, Great Minds, sued various copy shops for making copies of its educational materials, even though they were licensed under Creative Commons BY-NC-SA 4.0 license. That license says the work can be copied, but only under non-commercial terms. Great Minds argued that because the copy shops, like FedEx and Office Depot, made money from the copies, that made it commercial. Creative Commons kept telling the court that this was a misreading of "non-commercial" and in the Office Depot case, the 9th Circuit has agreed.

It's a nice, quick, and simple ruling:

There is no dispute that the school and school district licensees’ copying of Great Minds’ material is permitted under the License. There also seems to be no dispute that if Office Depot were itself a licensee, commercial copying of Great Minds’ material would fall outside the scope of the License and infringe Great Minds’ copyright. The issue we consider then is whether the school and school district licensees’ exercise of their rights under the License through the services provided by Office Depot results in Office Depot becoming a licensee. We hold that it does not. A licensee’s hiring of a third-party copy service to reproduce licensed material strictly for the licensee’s own permitted use does not turn that third party into a licensee that is bound to the License terms.

Citing the ruling in the 2nd Circuit in the basically identical case that Great Minds brought against FedEx:

“Great Minds’ licensees may rely on non-employee agents in carrying out permitted uses without converting those agents into independent licensees.”

The court also notes (again, echoing the 2nd Circuit's ruling) that Great Minds' contention that Office Depot's "volitional" conduct changes matters, is "absurd":

Great Minds also contends that the “volitional” element, i.e., which entity’s employee does the copying, is determinative in this case. But that argument produces the following absurd results: (1) a teacher may copy Eureka Math on an Office Depot-owned copy machine for a fee in-store, but cannot hand the materials to an Office Depot employee to be copied; (2) a school may pay a copy machine provider a monthly fee to keep a machine on site to copy Eureka Math, but cannot pay Office Depot employees to make the same copies; and (3) a school may permit teachers to copy Eureka Math on school-owned or leased machines, but cannot pay a high school student to make the same copies.

Great Minds’ interpretation cannot be correct.

So now we have rulings in both the 2nd and the 9th Circuit saying basically the same thing. That's useful, as those are the two biggest circuits for copyright law, generally. This is, at the very least, good news. Putting an NC license on Creative Commons works does not prevent all commercial activity, so long as that activity is within the reasonable ambit of the license.

Filed Under: copyright, creative commons, non-commercial, print shops
Companies: fedex, great minds, office depot

Federal Agent: Using A Taped Box To Send Stuff Overnight Via FedEx Is Suspicious Behavior

from the nothing-more-evil-than-a-convenient-shipping-option dept

Here's how we're fighting the War on Drugs. Lots of stuff going on, but not much seems to be happening in terms of actually, you know, keeping drugs from ending up in buyers' hands. The byproduct of the problem -- the cash -- is all anyone seems interested in.

As Brad Heath points out in his tweets referencing this in rem complaint, federal agents camp out at major air traffic hubs looking for nothing but cash. As we've covered here earlier, the DEA is actually paying TSA agents to search for cash and alert officers if any amount worth seizing rolls through checkpoints.

The same thing is happening in FedEx hubs. In this case, officers from the DHS, Indiana State Police, Indiana Metro PD all combined to stop some cash from traversing the country from Ohio to Arizona.

The filing lets us know what the government finds suspicious in terms of packaging and sending stuff around the country: everything. If you like using FedEx and their new boxes, but apply a bit too much tape, you might be a drug dealer. From the complaint [PDF]:

Based on information and experience, task force officers can easily identify suspicious packages with indicators, such as newly-bought boxes bought from the shipping company, overnight shipping, and excessive taping at the seams of the box.

Boxes, tape, and overnight shipping are literally what FedEx is known for. Yes, these officers uncovered a lot of suspicious stuff once they were IN the boxes -- packages of cash wrapped in fabric softener sheets -- but they needed something to justify the search of the boxes in the first place. I'm sorry, but "information and experience" asserting little more than what hundreds of FedEx customers do every day just doesn't cut it.

Sure, they ran a dog around the boxes and it alerted, but cash will probably prompt alerts anyway, given how much of it has circulated close to drugs or has been used as a drug delivery device. (A "blind" drug sniff is mentioned later, suggesting the dog and boxes were tossed into the room without a handler. It's a nice control but doesn't mean much when there's already been an alert with the handler present. If the dog had "failed" to detect drugs without the handler present, this simply would have been omitted from the warrant.)

The only other link to suspicion was the fact that the package was being shipped to Arizona from Ohio, but both the "To" and "From" labels contained the same Arizona address. God forbid you ship anything to or from Arizona -- not if any drug interdiction teams are in the area:

Parcels 6920 and 7068 drew attention for other reasons: they were heavily taped and being shipped to Arizona, known by law enforcement as a source for illegal controlled substances…

This is same assertion made about several states and major cities. Everything has a drug nexus if you're in the business of drug warring. The thing is, there's a lot of innocent activity going on in these same cities and states, but it all looks suspicious through a drug interdiction lens.

In total, there's a $108,000 being forfeited as suspected drug proceeds. The final nail in the evidentiary coffin is the background check on the package's recipient. Not sure how it all adds up to drug dealing, but I guess all crimes are gateway crimes or whatever.

Richard Reyes has a criminal history for theft, assault causing bodily injury, and criminal mischief. In 2003, Richard Reyes was found guilty of one count of theft in case number M-0111051 (Tarrant Criminal County Court, Texas). In 2003, Richard Reyes was also found guilty of one count of assault causing bodily injury and one count of criminal mischief in case numbers 0610831 and 0610832 (Travis County Court, Texas).

I'm not saying Reyes isn't a drug dealer. I'm saying this is pretty thin connective tissue if someone's trying to prove the money came from the sale of drugs. But the evidentiary bar is so low law enforcement is probably going to get to keep this cash.

Then there's the presence of a DHS agent. This allows Indiana law enforcement to profit from suspected criminal activity occurring outside of its jurisdiction. The package was sent from Ohio to Arizona but intercepted in Indianapolis. Dragging a federal agent along keeps the money from going into the coffers of coppers in the two states where drug dealing may actually be occurring. Handy that.

This is just one of dozens of similar litigation filed every year in the federal court system to take cash from people the government has no interest in arresting or charging. Somehow, seizing cash is supposed to cripple drug cartels. Seeing as civil forfeiture has experienced no serious income dips over the past 30 years, it's safe to say this process is doing nothing but enriching government agencies who prefer cash to preventing crime.

Filed Under: 4th amendment, dhs, indiana, indiana metro pd, indiana state police, probable cause, shipping, tape, war on drugs
Companies: fedex

FBI Faked Up A FedEx Website To Track Down A Scam Artist

from the phishing-for-fraudsters dept

Trust no one. The DEA impersonates medical board investigators. Police pretend to be people's friends. FBI agents pretend to be journalists. And, in this case, federal investigators pretended they could help an alleged scammer trace a FedExed payment. Joseph Cox of Motherboard has more details, taken from recently unsealed FBI warrant applications.

The two 2017 search warrant applications discovered by Motherboard both deal with a scam where cybercriminals trick a victim company into sending a large amount of funds to the scammers, who are pretending to be someone the company can trust. The search warrants show that, in an attempt to catch these cybercriminals, the FBI set up a fake FedEx website in one case and also created rigged Word documents, both of which were designed reveal the IP address of the fraudsters. The cases were unsealed in October.

The warrant application [PDF] in one case seeks permission to use an NIT (Network Investigative Technique) to expose identifying information about a targeted device/computer. This warrant request -- relying on recent changes to jurisdictional limitations -- says the NIT deployment was necessary because the FedEx impersonation failed to obtain usable IP address info thanks to the target's use of a VPN to access the impersonated site.

On July 25, 2017, FBI Buffalo, Rochester Resident Agency purchased the domain www.fedextrackingportal.com and developed the website www.fedextrackingportal.com/apps/us-en/tracking.php?action=track&trackingnumber=731246AF7684. The website was created with the message "Access Denied, This website does not allow proxy connections" error message when accessed. The website was created to capture the basic server communication information, as IP Address date and time stamp, and user string when the website was accessed. No malware or computer exploit was deployed in the development of the website; the only information captured in the webserver logs was unencrypted basic network traffic data identified above.

The IP addresses trapped with this ruse traced back to ExpressVPN, necessitating the technique described in this warrant application: a malicious email attachment.

The deployment of the NIT will occur through email communications with the TARGET USER, with consent from the victim company, Gorbel, and the Accounts Payable manager Belt. The FBI will provide an email attachment to the victim which will be used to pose as a screen shot of the FedEx tracking portal for the sent payment. The FBI anticipates the target user, and only the target user, will receive the email and attachment after logging in and checking emails. The subject will download the attachment which will deploy a technique designed to identify basic information of the TARGET location. [...] For the email attachment approach, the FBI will use a document with an embedded image requiring the computer to navigate outside the proxy service in order to access the embedded item.

A second warrant application dug up by Motherboard details pretty much the same process: an NIT deployed via email attachment to force the target to relinquish identifying info like IP addresses and device information. The twist in the second application is that the malicious embed (an image contained in a Word document) would require the recipient to turn off "Protected Mode" to open the attachment. Simply harvesting info from an end user is one thing. Having them perform an action on their end to give the government access to their computer is another. "In an abundance of caution," the FBI requested a warrant, even though the application makes it clear the FBI believes it shouldn't need a warrant to force targeted devices to give up potentially-identifying info.

The impersonation of FedEx may be novel, but the FBI's use of NITs began well before its extrajurisdictional searches were codified by Rule 41 changes. NITs have been in the FBI's toolkit for most of this decade. Here's a 2012 application and returned warrant showing the FBI using an NIT to obtain IP addresses and device info to locate a wanted felon using an email address the agency believed belonged to the target.

The FBI's impersonation of people, places, and things is likely just as widespread, even if the rules (very loosely) governing this investigative technique suggest it shouldn't be. FedEx may have questions about the FBI's use of its name to obtain IP addresses from criminal suspects, but so far, it hasn't commented on the news. What's seen in these applications suggests some care is being taken to avoid sweeping up innocent internet users, but there's only so much that can be implied from this very small sampling of federal investigative activity.

Filed Under: doj, fake website, fbi, impersonation, nit, phishing, warrant
Companies: fedex

Creative Commons Continues To Try To Help Courts Understand What Its NonCommercial License Means

from the important-stuff dept

Over the years we've expressed some concerns about the NonCommercial license option from Creative Commons. Even as we're incredibly supportive of CC, the NonCommercial license often seemed to raise more questions than answers -- to the point that some have argued that it actually harmed CC's brand and resulted in significant confusion for how CC licenses work. There have even been suggestions that CC should drop the NC license option altogether.

To its immense credit, people at Creative Commons have appeared to take these concerns quite seriously over the past few years, doing quite a bit of work to try to clarify what NonCommercial means for the purpose of the license. Our specific concern is that NonCommercial could mean all different things to different people. If you're using a NonCommercial CC-licensed image on a personal blog and you have ads on that blog (even if you don't make much money from it) is that non commercial? If you use it in a tweet and your Twitter bio promotes your business is that non commercial?

Two years ago we wrote about Creative Commons stepping in to file an amicus brief in a case that raised some specific issues concerning a NonCommercial license. An educational non-profit, Great Minds, sued FedEx over FedEx Office shops photocopying some Great Minds works for educational entities, even though the works were licensed under CC's BY-NC-SA 4.0 license. Great Minds argued that because FedEx made money from copying, it's "commercial" and thus in violation of the license. Creative Commons stepped into that lawsuit and explicitly stated that Great Minds interpretation was wrong.

In the FedEx case, both the district court and the 2nd Circuit appeals court rejected Great Minds' interpretation and tossed out the lawsuit saying that the license in question did not limit FedEx from charging for copies. Great Minds also filed a nearly identical case against Office Depot in California, which also was dismissed, despite Great Minds claiming that this case is different than the FedEx one (specifically, it argued that Office Depot employees were "actively soliciting" schools to copy Great Minds' works). The court didn't buy it.

That case has now been appealed to the 9th Circuit (who, as we've noted all too frequently, mucks up copyright cases). And Creative Commons is back again asking the court if it can file an amicus brief again. This seems like the perfect situation for an amicus brief, given that Creative Commons certainly should understand its licenses the best. The proposed brief is well worth a read.

Creative Commons appreciates the valuable contributions to the development of open educational resources made by Great Minds, along with its use of a standard CC public license to enable broad reuse of the materials it produces. However, its interpretation of the Creative Commons license at issue in this lawsuit is incorrect. As the U.S. Court of Appeals for the Second Circuit correctly determined in Great Minds’ prior suit against another copy shop, FedEx Office, the license authorizes a bona fide non-commercial user to discharge her licensed rights by directing a third party like Office Depot to make copies at her instruction. Creative Commons welcomes and respectfully seeks a similar holding from this Court:

Under the Creative Commons “NonCommercial” license at issue, a bona fide non-commercial user may engage contractors to exercise the non-commercial user’s own licensed rights on behalf and at the direction of the noncommercial user, irrespective of whether the contractor is itself non-commercial actor.

Going into details, CC explains how Great Minds is completely misinterpreting its NC license term:

The CC BY-NC-SA 4.0 license fully authorizes the conduct that Great Minds contends on appeal is unlawful. The only licensee here is the school district. Under the terms of the license and prevailing principles of law, a school district may permissibly use Office Depot as a means by which the school district exercises its own licensed rights. The license does not restrict the school district to using only its own employees to exercise those rights; it allows the school district to engage anyone—employees and non-employee contractors alike—to do so. To establish a rule that denies a licensee the ability to use non-employee actors to exercise the rights it is lawfully entitled to exercise would contravene the plain language of the license and established precedent.

To be sure, Office Depot could not on its own initiative make copies of Great Minds’ curricular materials and sell them for a profit. In that scenario, Office Depot would not be acting at the direction of a bona fide licensee, would not be shielded by any bona fide licensee’s license, and thus would itself need to rely on the terms and conditions of the CC BY-NC-SA 4.0—including limiting its conduct to non-commercial purposes when reproducing the licensed work. But that is not what is alleged here. Instead, on the facts as pleaded, the school district has, under its license from Great Minds, engaged Office Depot to make copies and paid Office Depot for the service, just as it could have paid an employee to make the same copies at an Office Depot store. In that scenario, Office Depot is not a licensee in its own right, and its own, independent purpose is analytically irrelevant.

Hopefully the 9th Circuit follows the lead of the 2nd and agrees that Great Minds is misreading the NC part of the license. This would go a long way towards further establishing that NC licenses aren't so limiting.

Filed Under: copying, copyright, creative commons, licenses, nc, noncommercial
Companies: creative commons, fedex, great minds, office depot

Important Ruling On Perennially-Problematic Creative Commons Non-Commercial License

from the NC-stands-for-'not-clear' dept

Techdirt has been warning about the problems with the Creative Commons Non-Commercial License (CC NC) for many, many years. Last September, Mike wrote about an important case involving the CC NC license, brought by Great Minds, an educational non-profit organization, against FedEx, the shipping giant. Copy shops owned by FedEx photocopied some of Great Minds' works on behalf of school districts. The material had been released by Great Minds under a CC BY-NC-SA 4.0 license -- that is, the Attribution-NonCommercial-ShareAlike license. The issue was whether a company like Fedex could make copies on behalf of a non-commercial organization, of material released under a license that stipulated non-commercial use. Happily, the judge in the case has ruled that it can (pdf):

At issue on this motion to dismiss is whether the allegations that FedEx has copied the Materials at the behest of one or more school districts and charged the school districts for that copying at a rate more than FedEx's cost states a claim for violation of GM's copyright. There is no claim that the undisclosed school districts are using the Materials for other than a "non-Commercial purpose" or that FedEx has copied the Materials for any other entities or for its own purposes. As so framed, FedEx's copying of the Materials is permitted by unambiguous terms of the License and the motion to dismiss is granted.

That's a sensible result: FedEx was simply an intermediary making copies on behalf of a non-profit organization, even if FedEx extracted normal profits in the course of doing so. But it's also important, because if the judge had found against FedEx, the wider consequences for the CC-NC license would have been disastrous. A few were spelled out in the August 2016 letter from Creative Commons Corporation's lawyers (pdf) seeking permission to file an amicus brief:

a CC BY-NC-SA 4.0 license would be of decidedly limited value if the licensor could invariably sue any for-profit intermediary engaged by the end user in the course of carrying out the ultimately permitted use. And the results would be absurd. Under the plaintiff's interpretation, school districts could not engage a parcel service to send copies of the licensed works to schools; could not use an internet service provider to host the works online for use in the classroom; or, more unworkable still, could not even email a digital file through a commercial network for receipt by students and educators

Although everything turned out fine in this case, it's worth noting that the problem was caused -- yet again -- by the ambiguous nature of the CC-NC license. Moreover, we are quite likely to see yet more court cases as a result of the lack of clarity around the definition of non-commercial use. It's hard not to feel that this particular Creative Commons license is more trouble than it's worth.

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

Filed Under: copy shop, copying, non-commercial
Companies: creative commons, fedex, great minds

Creative Commons Wants To Step Into Lawsuit Over Definition Of 'Noncommercial' In A CC License

from the this-could-be-interesting dept

Two decades ago, there were a series of lawsuits against copy shops over whether or not it was fair use for them to be photocopying educational materials for college coursepacks. Unfortunately (and, some of us still think, incorrectly) the courts ruled that this was not fair use. The end result was that the price of coursepacks shot up to astronomical levels (this happened while I was in college, and I saw coursepacks increase in price from $20 - $30 to well over $100, and they've gone up more since then).

Earlier this year, it appears that a new version of this kind of lawsuit was filed by Great Minds, an educational non-profit, against FedEx, the shipping giant who also took over what used to be known as Kinkos copy shops, now rebranded as FedEx or FedEx Office. At issue: these copy shops owned by FedEx were photocopying some of Great Minds' works for educational entities. Great Minds says that FedEx is infringing on the copyright. If that was all there was to it, based on the cases back in the 90s, Great Minds would have a slam dunk of a case (unfortunately).

Here's the twist: the works in question, Great Minds released under the CC BY-NC-SA 4.0 license, or the Attribution-NonCommercial-ShareAlike license. So at the heart of this issue is what is meant by "noncommercial" in this license. Great Minds argues that because FedEx is profiting off the copying, it's commercial, and thus the license is violated and the copies are infringing:

This explicit limitation of the License to noncommercial use requires that commercial print shops, like FedEx, negotiate a license and pay a royalty to Great Minds if they wish to reproduce the Materials for commercial purposes – i.e., their own profit – at the request of their customers. Thus, this limitation benefits Great Minds and the public, too, by providing Great Minds with additional financial resources to develop new curricula, which in turn can be made available nationwide for free, noncommercial use, and otherwise to further its educational mission.

Now, this is both an interesting question and a not particularly surprising one. For many, many, many years, I've pointed out some concerns I've had with the "noncommercial" license that Creative Commons offers, because "commercial use" is kind of a vague idea at times, and seems to open up the opportunity for nutty cases (like this one!). In fact, we've also noted that the offering of a "noncommercial" license has resulted in some problematic branding confusion for Creative Commons, sometimes leading people to think that it's only for people who don't want to make money. And people have made the suggestion that CC may want to drop or otherwise spin off those NC licenses to avoid the confusion.

To its credit, Creative Commons has actually tried to address this issue proactively over the last few years, and has been careful to take a lot of the feedback into account. And part of that has resulted in increasingly defined guidelines that clarify what is and what is not commercial use in the context of Creative Commons.

And that makes the latest news quite interesting as well. Creative Commons is asking to file an amicus brief in the case, arguing that Great Minds has seriously misunderstood what NC means in a CC license. CC doesn't beat around the bush either:

We seek to file an amicus brief explaining why Great Minds’ interpretation of the CC BY-NC-SA 4.0 license is wrong....

[....]

The point of Creative Commons licenses is to be useful tools that facilitate creative, socially constructive activity. Particularly (though not exclusively) where the licensee is an entity rather than an individual, the entity must be able to act as entities do, through employees and contractors alike. The artificial distinction drawn by Great Minds—between whether a school district employee pushes “copy” and pays FedEx Office for use of its copier, or a FedEx Office employee pushes “copy” on the same machine—would, if applied more broadly, preclude the use of most or all standard channels of dissemination and render the licenses all but useless. It would force users to choose between owning the entire chain of production or distribution, and leaving a trail of actionable copyright infringements in their wake. That is emphatically not how Creative Commons NonCommercial licenses were designed to work.

Creative Commons further points out that agreeing with Great Minds could create a real issue as tons of NonCommercial CC licenses may not do what people expected them to do:

Finally, we note that Great Minds has argued that “granting FedEx’s motion would create bad public policy.” See Pl.’s Opp. to Mot. to Dismiss at 15. That is backwards. Creative Commons takes no view on whether, as a general matter, it is good or bad policy for creators to license works to the world-at-large under precisely the terms Great Minds seeks to enforce in this litigation—by using their own licenses, not ones from Creative Commons. But to twist the meaning of the CC BY-NC-SA 4.0 to engineer that result would be profoundly damaging. It would disrupt the settled expectations of innumerable users and creators of works governed by CC BY-NC-SA 4.0 licenses around the globe. And it would substantially diminish the utility of a license that enables the sharing of knowledge and creativity to build a more equitable, accessible, and innovative world.

Hopefully, CC is allowed to weigh in... and the court realizes how this lawsuit is a misinterpretation of the NonCommercial license.

Filed Under: copy shops, copyright, creative commons, fair use, non-commercial
Companies: fedex, great minds

Judge Upholds UPS Employee/Paid Informant's Search Of An Intercepted Package

from the can't-challenge-what-you've-taken-steps-to-distance-from-yourself dept

Maybe this is part of UPS's large settlement with the DOJ. Maybe this is what FedEx won't do, which is why the DOJ tried to prosecute it for aiding and abetting illicit drug sales, right up until a federal judge called its prosecution "novel" and ushered it out of the court.

Whatever the case, there's at least one "inside man" (in this case a woman) at the UPS. A San Bernardino UPS store owner acted as a "citizen informant" for the county sheriff. In exchange for unspecified "compensation," the store owner would flag suspicious packages and call in the Sheriff's Department to come in and have a look/sniff at said shipments.

All well and good, if that's the sort of service you expect from a private company, rather than, say, the US Postal Service, which presumably does this sort of thing all the time. The Sheriff's Department, however, did instruct the store owner that she was not to open any suspicious packages.

So much for that. From the suppression order [PDF] (via Brad Heath):

On May 27, 2014, the UPS store owner contacted Officer Kristina Winegar, a deputy assigned to the narcotics division/parcel interdiction team in the Sheriff’s Department in the County of San Bernardino, California, about a “suspicious package.” The UPS store owner told the deputy that a black male entered the UPS store and paid $90 to have the package shipped to Houma, Louisiana. According to the deputy’s police report, “[d]ue to the [cost of shipping the package] and suspicious behavior of the suspect,” the store owner opened the package and found a container wrapped in cellophane. The store owner smelled a chemical order and resealed the box. The sender of the package, who provided the UPS store with the name “Sam Niel” and a Louisiana phone number, listed “John Lirette” in Houma as the recipient. The shipper used the UPS store address as the return address for the package.

You can't undo a package opening, even with access to official UPS box-sealing tape -- not under the Fourth Amendment. That's what led to this suppression hearing. The sheriff's department showed up and discovered that no "Sam Niel" existed in its criminal record database. It grabbed a dog to sniff the package. The dog alerted. Finally, a warrant was obtained to search the contents of the box that had already sort of been searched by a UPS employee on the Sheriff Department's payroll. This search led to a "controlled delivery" to the address on the box. That residence was also searched.

"Sam Niel," whose given name is actually Phillips Thompson, moved to suppress the evidence as the result of an illegal search. He might have had a point, too. A paid "citizen informant" working for the government and performing "private searches" (against instructions) is very different than non-government employees doing the same thing. The Geek Squad member who comes across child porn while repairing a computer performs a private search, and that's perfectly legal and constitutional.

The government is generally discouraged from availing itself of private searches, especially when it's paying someone at a private company to act on its behalf. So, interesting questions might have been raised, if not for the use of an "alias."

"Sam Niel" does not exist, therefore Phillips Thompson cannot challenge the search. It's a form of disavowal and the courts will not let someone make two incompatible claims:

1. That's not my stuff.

2. The search of that stuff was unconstitutional.

Suppression denied. But that ruling doesn't eliminate another interesting, but mostly unexplored, aspect of this decision. As Scott Greenfield points out, what the government refers to as an "alias," and ties solely to criminal activity, could be something far more innocuous.

Notice that it’s called an “alias” here, whereas it might be called a pseudonym if he used the name “Sam Niel” in a comment to this post telling me that I’m a dumbass. The distinction is that an alias is what’s used to conceal an identity to commit a crime, while a ‘nym is a time-honored, First Amendment protected, effort at quasi-anonymity.

But the government’s argument raises troubling issues. While a person’s intention to conceal his identity may be protected anonymity, should the government allege that its use related to crime, it would, by the government’s argument, morph into an alias, designed to distance the person from the offense. And further by the government’s argument, deprive a person of their right to challenge evidence based on this notion that he “forfeited any objectively reasonable expectation of privacy.”

As we're well aware, the US Postal Service scans every package and envelope and makes this available to law enforcement agencies on request (no warrant required). Maybe you feel the government doesn't really need to know who is sending communications back and forth, just the destination. You use fake names to throw off this tracking or just to dump some garbage data into the bulk collection. There's nothing illegal about it, but the government has determined that -- should one of these packages be searched -- you cannot challenge the search because you've used an "alias." Whatever bit of privacy you've tried to take back by using a pseudonym has only served to prevent you from challenging inspection of the communications content.

To put it another way, most people's email addresses aren't reflective of their real names. NSLs and subpoenas can grab to/from data but not the content. If the government treats email addresses as "aliases," the contents of communications are quickly painted as somehow criminal and it could argue the fake "name" contained in the email address is nothing more than the sender trying to distance themselves from what's contained in the messages. So much for suppression.

Of course, many email addresses are tied to actual people and that identifying info can be obtained from the service provider. But what about throwaway accounts containing nothing linking them to an actual person? There may be no criminal activity but it would be extremely difficult to challenge a search of email contents if someone has made an effort to distance the communications from themself and/or the other parts of their online identity. Pseudonymous speech is apparently protected by the First Amendment. Not so much by the Fourth.

Filed Under: 4th amendment, doj, informants, paid informants, searches, ups
Companies: fedex, ups

DOJ Drops Stupid Drug Trafficking Charges Against FedEx After Judge Criticizes Its 'Novel Prosecution'

from the The-Man-reluctantly-moves-on-to-hassling-other-parties dept

After two years, the DOJ has decided to drop its bogus conspiracy/drug trafficking case against Federal Express. In July 2014, FedEx was hit with an indictment for allegedly knowingly delivering illegal/counterfeit drugs to a handful of sketchy recipients.

The government insisted FedEx perform interdiction efforts for it by opening boxes and determining (without guidance) whether or not the contents were legit. FedEx pointed out that it was in the package delivery business, not the law enforcement business. The DEA shrugged and said, "Do better." FedEx said, "Why don't you give us a list of people/businesses you think are engaged in illegal activities?" The DOJ refused to do so and rewarded FedEx's good faith efforts with an indictment.

An indictment is easy to obtain, as anyone familiar with the machinations of grand juries is aware. The DOJ's case, however, immediately fell apart after it dragged its purple and orange ham sandwich into a process that's actually adversarial. Judge Charles Breyer -- who we know from his hilariously-redacted denial of HP's heavily-redacted request to seal documents and his interest in the FBI's possibly-illegal courthouse step wiretaps -- presided over the opening arguments… and that was pretty much all he had to hear.

Maria Dinzeo of Courthouse News Service reports:

Addressing the court briefly, Breyer said, "I'm quite familiar with this industry. I'm deeply concerned by tragic consequences caused by sales of toxic substances to individuals, including children, who have not had a direct consultation with a licensed physician"

But this case was "entirely different," Breyer said. "The court has been asked to determine if defendant should be held criminally liable as a co-conspirator. As a result of detailed opening statements by the government and defense and accepting factual assertions as uncontested, the court concludes the defendants are factually innocent. They did not have criminal intent."

Breyer emphasized that FedEx repeatedly offered to help the government, asking officials to identify a particular customer shipping illegal substances, so that it might stop picking up its packages.

"The DEA was unwilling or incapable of providing that information to FedEx," Breyer said. "Rather the government decided to pursue this novel prosecution."

When judges call something "novel," it's rarely because they're impressed. "Novel" is a polite way of saying "bullshit." Or "insane." It's a word pro se plaintiffs hear quite frequently. The DOJ is probably not quite as used to it, as even its weakest arguments tend to be granted more deference than they deserve.

That was enough to convince the DOJ to drop the charges, wrapping up another ridiculous situation where drug warrior zealotry has culminated in The Man sticking it to Himself.

The DEA certainly could have intercepted suspicious packages and examined them itself, but it chose to pass that burden on to the intermediary. This suggests its investigations aren't going as smoothly as it might have hoped. Probable cause for search warrants isn't a particularly high bar, but the DEA presumably either can't meet it, or would rather let others do the work for it and save it the trouble of filling out the paperwork.

Filed Under: dea, deliveries, doj, drug trafficking
Companies: fedex

FedEx Refuses To Ship Perfectly Legal Milling Machine (Which Can Also Craft Gun Parts), Can't Provide A Coherent Reason Why

from the baby,-bathwater dept

I recently toured a maker space in Burlington, and while I lack the inclination to build amazing contraptions out of Raspberry Pis, soldered metal and imagination myself, there's a Lego-loving corner of my brain that has an endless appreciation for the fusion of technology and creativity aided by modern marvels like 3D printers. It probably goes without saying that inexpensive and/or communal 3D printers, milling machines and other tools have opened the door toward a massive realm of new innovation, whether that's building less expensive prosthetic limbs, robotics or drones.

Of course, the fact that a lot of this technology can also help build weapons has resulted in no limit of hysteria that has a great potential to hamper a lot of the better aspects of this technological evolution. The latest case in point comes courtesy of FedEx, which is refusing to ship a computer controlled (CNC) mill dubbed the Ghost Gunner. Sold by Defense Distributed, the $1,500 machine can carve any number of aluminum objects from digital designs. With a few cheap extra parts, it can also help craft untraceable, semi-automatic firearms. This, apparently, has worried the FedEx legal and marketing departments:

"This device is capable of manufacturing firearms, and potentially by private individuals,” FedEx spokesperson Scott Fiedler wrote in a statement. “We are uncertain at this time whether this device is a regulated commodity by local, state or federal governments. As such, to ensure we comply with the applicable law and regulations, FedEx declined to ship this device until we know more about how it will be regulated."

Of course, we're entering an era where anything can be built at home, and just because firearms are among them, that doesn't make the tools illegal. Any lathe or mill can be used to help make a firearm; Defense Distributed appears to have gotten attention because of founder Cody Wilson's salty demeanor, and the fact it's specifically marketing their milling machine as a potential firearms maker. Again though, that doesn't magically make the ownership of such technologies against the law:

"But buying, selling, or using the Ghost Gunner isn’t illegal, nor is owning an AR-15 without a serial number, says Adam Winkler, a law professor at UCLA and the author of Gunfight: The Battle over the Right to Bear Arms in America. "This is not that problematic,” he says. "Federal law does not prohibit individuals from making their own firearms at home, and that includes AR-15s."

When pressed, FedEx hasn't been able to give a decent reason why it has suddenly added milling machines to its list of unshippable materials alongside hazardous waste and corpses. As we've noted when discussing the hysteria over firearm printing instructions or legislative efforts to thwart gun printing, this is a genie that's well out of its bottle, and no limit of cajoling the agitated djinn back into confinement is likely to be successful. Still, it seems inevitable that we try, in the process stumbling on and over a myriad of technological potential in the misguided quest to roll back the clock to a simpler age.

Filed Under: 3d printing, cnc machines, cody wilson, guns, shipping, weapons
Companies: defense distributed, fedex

FedEx Indicted For Failing To Look Into Its Packages To See If Any Online Pharmacies Were Sending Drugs

from the say-what-now? dept

Back in March of last year, we were somewhat disturbed by UPS agreeing to forfeit $40 million to the US government for shipping drugs from "illegal internet pharmacies." Not that such drugs or pharmacies should be legal (that's a whole different discussion), but it's insane to pin the blame for the shipments on the shipping company, whose sole job is to get packages from point A to point B. In fact, we don't want shipping companies to be liable for what's in packages, because then they have not just the incentive, but the mandate to snoop through all our packages.

Apparently, FedEx was unwilling to fall on its sword and cough up a similar amount to the US government, so the DEA and DOJ have announced they've gotten a grand jury to indict the company for delivering drugs associated with internet pharmacies. You can read the full indictment, which tries to spin a variety of stories into evidence that somehow FedEx "knew" what was in those packages. The indictment does describe FedEx deliveries to vacant homes and parking lots where carloads of people would be waiting.

As early as 2004, FEDEX couriers and customer service agents in Kentucky, Tennessee, and Virginia expressed safety concerns to their management, including the following: FEDEX trucks had been stopped on the road by Internet pharmacy customers demanding packages of pills; delivery addresses included parking lots, schools, and vacant homes where people would wait for deliveries of drugs; customers would jump on FEDEX trucks and demand Internet pharmacy packages; FEDEX drivers were threatened if they insisted on delivering a package to the address instead of giving the package to the customer who demanded it; and customers would use multiple names and identification documents to pick up packages of drugs.

A FEDEX employee also raised concerns to FEDEX management that some recipients of Internet pharmacy packages were engaged in "doctor shopping," were "known to be selling and using," and that "some of the recipients have overdosed and died."

While that may sound damning, remember this is the DEA/DOJ's spin on things. Even if everything above is true, FedEx's job is to deliver packages, not examine everything inside those packages to make sure they're legal. Even in some of the cases -- as described in the indictment -- where FedEx becomes aware that some of the companies ran into trouble with the DEA for selling drugs illegally, it's hard to see how that means FedEx should automatically drop all business connections with those entities. Presumably, a firm that was caught selling drugs illegally could have other legitimate business to continue and would make use of services like FedEx going forward. It's not FedEx's job to examine everything in those packages.

This is, quite literally, blaming the messenger.

FedEx is fighting these claims pretty aggressively, insisting that it's crazy to make it responsible for what's in the packages:

"We are a transportation company — we are not law enforcement."

Furthermore, the company notes that it has long asked the DOJ to provide it with a list of online pharmacies that it shouldn't do business with, so that it didn't have to just guess. The government did not provide the list, and seems to think that FedEx must be psychic (and should know what's in all packages and whether or not they're illegal."

"We have repeatedly requested that the government provide us a list of online pharmacies engaging in illegal activity," [VP Patrick Fitzgerald] said. "Whenever DEA provides us a list of pharmacies engaging in illegal activity, we will turn off shipping for those companies immediately. So far the government has declined to provide such a list."

Even a former DEA official interviewed by Bloomberg, Larry Cote, claimed the situation was extreme and unprecedented:

The criminal case is an unprecedented escalation of a federal crackdown on organizations and individuals to combat prescription drug abuse, said Larry Cote, an attorney and ex-associate chief counsel at the U.S. Drug Enforcement Administration.

“Targeting a company that’s two, three steps removed from the actual doctor-patient, pharmacy-patient relationship is unprecedented,” said Cote....

“The DEA does believe that everyone in the supply chain is responsible and has an obligation to understand where their products are ending up,” said Cote, calling that “a stretch.”

We often talk about secondary liability on the internet, but it's the same basic principal here. The company that's merely acting as the conduit shouldn't be liable for what's traversing over its system. The implications of changing that, and holding a company liable are very serious. It's going to create massive incentives for shipping companies to not just open up and look at what's in our packages, but to also make on-the-fly determinations of whether or not they think it's legal.

Filed Under: dea, doj, drugs, online pharmacies, secondary liability, shipping
Companies: fedex