AT&T Continues Its Bullshit Sales Pitch For A Fake Net Neutrality Law

from the zero-credibility dept

While Verizon, Comcast and AT&T may have convinced the FCC to repeal net neutrality, they've still got a steep, uphill climb before they can be comfortable that the repeal is on solid footing, meaning we still have some time before they begin taking full anti-competitive advantage. The FCC's repeal still needs to survive a wall of legal challenges from consumer groups, Mozilla, and nearly half the states in the union. From there, ISPs need to ensure that a future FCC or Congress doesn't just pass new, tougher rules all over again.

That's why Verizon, Comcast and AT&T are all now pushing for a new "net neutrality law" in name only. While the same ISPs that gutted these popular consumer protections insist they're just interested in "putting this contentious issue to bed," the reality is they want a law that pre-empts any future federal or state attempts to protect consumers. As usual, they've managed to get industry marionettes like Martha Blackburn behind the legislative push. Since they've long since demolished any credibility on this subject, there's been little traction in these legislative efforts so far.

But with the power they wield over Congress, they remain dedicated to the cause all the same, and they know full well that many of these kinds of legislative efforts are won by brutal repetition. Enter AT&T, who this week penned yet another blog post insisting that they really love net neutrality just like you!:

"So, today is another “Day of Action” for net neutrality advocates across the United States. We are supporting today’s Day of Action just as we did last summer’s Day of Action. But also like last summer, we support real action – actual legislation from Congress that places the pillars of net neutrality into law and applies those pillars across the internet for the benefit of all consumers.

Except the "real action" AT&T wants is little more than a head fake. AT&T's definition of "real action" involves throwing campaign contributions at Congress in exchange for a Congressional "solution" it knows its lawyers will literally be writing. Said law will ban things ISPs never had any intention of doing (the outright blocking of websites), but include so many loopholes as to be effectively meaningless. Again, the goal isn't passing real net neutrality protections -- it's to prevent real, comprehensive protections from being passed later.

A federal law would also pre-empt all of the numerous, state level measures currently winding through state legislatures across half of the States in the nation. Large ISPs convinced their BFF Ajit Pat to include pre-emption language attempting to ban states from protecting consumers in the wake of federal oversight apathy, but that effort rests on pretty shaky and relatively untested legal ground, and ISP lawyers know it.

And amusingly, while AT&T's version of "consumer protections" would be little more than a giant legislative middle finger aimed at consumers, AT&T's Bob Quinn acts as if trying to buy a hollow net neutrality law is some kind of altruistic act:

"We received criticism from a certain corner of this debate last year for our support of the Day of Action and I expect we will hear from those same folks again today. But no matter what some of the advocates argue, AT&T has supported enforceable net neutrality rules that do not crush investment incentives for over 10 years; there is nothing weak about them. The simple reality is that we won’t achieve those rules unless and until Congress acts. So, for today’s Day of Action, we reiterate our call for a Federal Consumer Bill of Rights that provides consumers with openness, transparency and privacy protections no matter where they go on the internet."

You'd be pretty hard pressed to find a company (outside of Verizon and Comcast) that has less credibility on the subject of consumer welfare than AT&T. After all, this is the same company that in the last few years has been fined for ripping off the hearing impaired, helping drug dealers run a directory assistance scam, ripping off a program intended to help the poor, and for actively making their bills harder to understand to help scammers and crammers. AT&T's the company you go to if you want tips on protectionism, the NSA's favorite foods, and regional monopolies, not consumer protection.

Regardless, expect AT&T's push for a new law to continue gaining momentum in the new year as incumbent ISPs grow increasingly nervous about their legal chances in the looming court case. A case that's going to repeatedly highlight all of the shady nonsense that occurred as the FCC rushed to repeal popular consumer protections solely to benefit a handful of telecom monopolies like AT&T.

Filed Under: congress, fcc, laws, net neutrality
Companies: at&t

More Legislators Jump On The 'Blue Lives Matter' Bandwagon

from the still-plenty-more-'stupid'-in-the-Congressional-storerooms dept

Not wanting to be outdone by idiots in Congress, two idiot senators from the great state of Texas* are pushing their own "Blue Lives Matter" legislation. Senators Cruz and Cornyn have (re)introduced the Backed and Blown "Back the Blue Act," which adds mandatory minimums to any act of violence against most government officials. Oh, and for extra fun, automatic death penalty considerations for anyone charged under this act.

^{*Federal law requires the descriptor "great state of" to be appended to any state name, but especially Texas.}

I'll get out of the way and allow Senator Cornyn to toot his own horn:

“Our law enforcement officers put their lives on the line every day to protect and serve families across Texas. Violent criminals who deliberately target those who protect and serve our communities should face swift and tough penalties and the Back the Blue Act sends that clear message. Every day, and particularly during National Police Week, we must give the men and women in blue our unparalleled support,” Sen. Cornyn said.

You hear that, you bunch of ungrateful Americans? No matter how many citizens are gunned down for holding game controllers or toddlers torched by carelessly-tossed flashbang grenades, these fine men and women are to be given "unparalleled support." They apparently "deserve" it -- a term that must be wholly divorced from the process of earning it.

Cruz and Cornyn's 2016 attempt died from a lack of attention, perhaps overshadowed by the DOJ's endless stream of scathing reports on police misconduct. With a new "tough on crime" DOJ boss at the helm and the DOJ's civil rights division neutered, the political climate seems a tad more receptive to glorifying government employees as lowercase-g gods. (But gods nonetheless.)

Several legislators have joined the two senators in stumping for underprotected government employees. Rep. Ted Poe (also of Texas) has plenty to say about the bill at his personal blog. He's all for it, naturally, but more importantly, he summarizes the harsh new penalties awaiting anyone who threatens, injures, kills, or conspires to do any of the above to a law enforcement officer.

Creates a new federal crime for killing, attempting to kill, or conspiring to kill a federal judge, federal law enforcement officer, or federally funded public safety officer. The offender would be subject to the death penalty and a mandatory minimum sentence of 30 years if death results; the offender would otherwise face a minimum sentence of 10 years.

Creates a new federal crime for assaulting a federally funded law enforcement officer with escalating penalties, including mandatory minimums, based on the extent of any injury and the use of a dangerous weapon. However, no prosecution can be commenced absent certification by the Attorney General that prosecution is appropriate.

Creates a new federal crime for interstate flight from justice to avoid prosecution for killing, attempting to kill, or conspiring to kill a federal judge, federal law enforcement officer, or federally funded public safety officer. The offender would be subject to a mandatory minimum sentence of 10 years for this offense.

Take a good look at the middle stipulation. This means pretty much every law enforcement officer in the nation will be covered by this law, instantly subjecting people who do nothing more than assault an officer (aka, resisting arrest, contempt of cop, etc.) to federal punishments. Almost every law enforcement agency in the nation receives some sort of federal funding. This bill would yank prosecutions out of locals' hands and, presumably, separate defendants from less-harsh local laws.

The bill also allows law enforcement officers (including those whose agencies are the recipients of federal funding) to carry weapons into places citizens can't. Nothing like adding an extra right to a long list of extra punishments.

This chaser would put two "Blue Lives Matter" bills in play, giving Congress multiple ways to make policing worse. Considering the Go Team Blue attitude on display at the White House, these bills have a home team advantage and a president dying to sign a few more citizens' rights and liberties away on behalf of law enforcement.

Filed Under: blue lives matter, free speech, hate speech, john cornyn, laws, police, ted cruz

Court Says Posting Georgia's Official Annotated Laws Is Not Fair Use, And Thus Infringing

from the this...-is-a-problem dept

We've written a number of times about Carl Malamud and his organization Public.Resource.org, a nonprofit that focuses on making the world's laws more readily accessible to the people governed by those laws. You'd think that people would be excited about this, but instead, Carl just keeps getting sued. All the way back in 2013, the state of Georgia first threatened Carl for daring to publish online the "Official Code of Georgia Annotated." Two years later the state did, in fact, sue Carl for copyright infringement.

The case is, at least somewhat tricky and nuanced -- even if it shouldn't be. The key issue is the annotations and other additions to the official laws created by the legislature (the state of Georgia claims that "names of titles, chapter, articles, parts and subparts, history lines, editor notes, Code Commission notes, annotations, research references, cross-references, indexes and other such materials" are all covered by copyright). Obviously, it's crazy to think the underlying law itself is covered by copyright and unpublishable, but this has to focus on the annotations -- which are the various notes and links to relevant case law that add important context to the code itself. As people studying the law quickly learn, "the law" is not just the regulations written down by legislators, but also the relevant caselaw that interprets the laws and sets key standards and makes decisions that influence what the written code actually means. I don't think anyone disagrees that a private party who develops useful and creative works as annotations could potentially hold a copyright on the creative elements of that work (merely listing relevant cases, probably not, but a deeper explanation, sure...). And here, these annotations are developed by a private company: LexisNexis. The issue is the "official" part. Under contract with the state, LexisNexis creates the annotations, gets the copyright, and then assigns the copyright to the state of Georgia on those annotations, with Georgia releasing it as "the Official Code of Georgia Annotated."

It's also worth noting that every new bill in the Georgia legislature says that it's "an Act to amend the Official Code of Georgia Annotated" -- not to just amend the code. I just grabbed the first bill I could find, and this is what you see:

Also, as noted above, it's not just the "annotations" here -- but as the state claims, the "Code Commission" notes. That seems like fairly relevant information created by the government. Either way, the state of Georgia views the entire "Official Code of Georgia Annotated" as its one true source of law, and it's not available to the public. While the state has responded that (via LexisNexis) it does offer a website with the unannotated code, that website requires that you agree to LexisNexis' overly broad terms and conditions, which include all sorts of crazy demands, including insisting that if they ask you not to link to them, you have to stop linking. Also, even though this is Georgia's state laws, you agree that any dispute over the website will be in a New York jurisdiction. Oh, and the actual website with the law is basically unusable.

Malamud and his legal team argued that (1) due to the nature of this odd relationship, the work cannot be covered by copyright and (2) that, if it was covered by copyright, republishing this annotated code was fair use. Unfortunately Judge Richard Story, in the federal district court in Atlanta, has rejected both these arguments and found that the posting of the work was infringing.

On the question of whether or not this work could be covered by copyright, the court shows how legal annotations have long been considered copyright-eligible. In response to the argument that this is different, since it's the government itself now claiming these annotations as "official," the judge... just doesn't buy it:

Here, Defendant argues that these annotations to the O.C.G.A. are not copyrightable, but the Court disagrees. The Court acknowledges that this is an unusual case because most official codes are not annotated and most annotated codes are not official. The annotations here are nonetheless entitled to copyright protection. The Court finds that Callaghan v. Mvers. 128 U.S. 617 (1888), in which the Court found annotations in a legal reporter were copyrightable by the publisher, is instructive. Defendant itself has admitted that annotations in an unofficial reporter would be copyrightable, and the Court finds that the Agreement does not transform copyrightable material into non-copyrightable material.

The court further notes that the State of Georgia, while still publishing this as the "official" code, has bent over backwards over the years to remind everyone that the annotations themselves do not carry the force of law. This is probably the right legal conclusion as copyright law currently stands, even if it's an unfortunate legal conclusion. What it means is that, in Georgia, professional practitioners, with access to the expensive official annotated code, are the only ones able to truly understand the law -- and the average everyday Georgian cannot. From a public policy perspective, that just seems like a bad idea.

The fair use argument is a bit more interesting, and seems more viable to me, but the judge doesn't seem to think so. As always, the court runs through the four factors test for fair use, and weighs them... saying that they tip towards the state, rather than Malamud (and the public). For test one, on the nature of the work and whether or not the use is transformative, the court says there's no transformative use here at all, since it's just reposting the work as is.

Defendant does not transform the annotations. It does not add, edit, modify, comment on, criticize, or create any analysis or notes of its own. Defendant's justification in support of its verbatim copying and free distribution without authorization is that it purports to provide wider distribution of the annotations. Courts have routinely rejected arguments that this is transformative use

The fact that Public.Resource.org is a nonprofit and doing this for the benefit of the public still doesn't tilt the scales. In fact, in a rather troubling part of the ruling, Judge Story actually claims that because Carl "profits" from attention, he shouldn't even be considered a nonprofit.

In this case. Defendant's business involves copying and providing what it deems to be "primary legal materials" on the Internet. Defendant is paid in the form of grants and contributions to further its practice of copying and distributing copyrighted materials. Defendant has also published documents that teach others how to take similar actions with respect to government documents. Therefore, the Court finds that Defendant "profits" by the attention, recognition, and contributions it receives in association with its copying and distributing the copyrighted O.C.G.A. annotations, and its use was neither nonprofit nor educational.

That's... insane. I mean, just about any nonprofit doing anything gets "recognition" for the work they do, and most nonprofits survive on grants and contributions. It seems quite troubling to argue that just because a nonprofit gets attention for doing the work it set up to do, that you can ignore that the use of a work was for nonprofit purposes.

The second factor is the nature of the work. Without much analysis, the judge calls this one even, saying that it's "at best, neutral, as between these parties." This was a surprise to me. At the very least, I figured this factor would fall towards Malamud, as it's pretty easy to point out that "the nature" of the work is the official laws of the state of Georgia and the officially "blessed-by-the-state" annotation for what those laws mean. It seems like that should definitely push the ledger to the "fair use" side. But, for unclear and unexplained reasons, the judge says this one is even.

The third factor was almost certainly going to go against Carl: it's for the "amount and substantiality" of the work. While we've covered multiple important fair use cases where it was determined that even using the entire work can be fair use, in this case, that was going to be a hard argument, and the judge gives this one easily to the state of Georgia: "In this case. Defendant has misappropriated every single word of every annotation using a bulk industrial electronic scanner." I'm not sure why the "bulk industrial electronic scanner" needs to be called out here, as that's really kind of unrelated to the fair use question, but the judge went with it.

Finally, there's the fourth factor, about the impact on "the market." And, again, this one goes to Georgia:

Plaintiffs have established the markets for the O.C.G.A. works: printed publications, CD-ROM, and subscription services. When considering Defendant's actions being performed by everyone, it is inevitable that Plaintiffs' markets would be substantially adversely impacted. A judicial decree that Defendant's wholesale copying of the copyrighted annotations constitutes a fair use would hinder the economic viability of creating and maintaining the O.C.G.A. because people would be less likely to pay for annotations when they are available for free online.

The judge goes on to note that poor, poor LexisNexis won't have any economic incentives at all if this sorta thing keeps up. Of course, LexisNexis is part of the RELX Group conglomerate that "only" brought it somewhere around $8.5 billion dollars in revenue last year. How will they ever survive if the one-man shop of Carl Malamud puts the official annotated code of Georgia online? And, of course, this also ignores the fact that the State of Georgia doesn't need to set up a relationship with LexisNexis whereby LexisNexis gets paid based on sales of the code. It could, just as easily, pay LexisNexis for the annotations and then make them freely available to help its own citizens. But, nope, the judge is quite worried about the profits of this mega-conglomerate, which might be hurt by this one man nonprofit who dares to profit from "attention."

Even if you agree that this is an accurate fair use determination, the whole situation seems unfortunate. Georgia suing someone for helping to make its own laws more accessible just feels pretty damn sleazy and against what a government should be doing for its citizens. Either way, in this round, Malamud, Public.Resource.org and the citizens of Georgia have lost big time, while the state of Georgia (and LexisNexis) have won. Over the weekend, Malamud told me that he will be filing a notice of appeal shortly.

Filed Under: carl malamud, copyright, fair use, georgia, laws
Companies: lexisnexis

US Court System Just Another Extension Of The Government's Ongoing Opacity Project

from the nothing-checked,-little-balanced dept

FBI director James Comey and Manhattan DA Cyrus Vance say we're "going dark." Others more attuned to the vast amount of data generated by everyday life say the opposite. But US magistrate judge Stephen Wm. Smith, writing for Just Security and speaking from firsthand experience, says there's a real darkness out there, but it's government-generated and it's obscuring the inner workings of one of the few checks against government power.

Over the last 40 years, secrecy in all aspects of the judicial process has risen to literally unprecedented levels.

It's not just the FISA court -- which, in contrast, is probably more transparent than it's ever been. It's the regular court system where criminal prosecutions are pursued. Documents which used to be easily accessible by any member of the public are now withheld by the request of the government with alarming -- and increasing -- frequency.

That traditional aversion to court secrecy has been overcome in the last few decades. To take but one example, the case name In re Sealed Case first appeared in 1981; it is now the most common case name on the D.C. Circuit Court of Appeals docket.

The same law that gives the government warrantless access to citizens' electronic communications -- the Electronic Communications Privacy Act -- also gives the government the privilege of preventing service providers from disclosing any information about these requests to targeted users. This blanket opacity is a problem for several reasons (First and Fourth Amendment concerns), not the least of which is no one -- not even Congressional oversight -- can provide an accurate accounting of these requests and their accompanying gag orders.

How large is this secret ECPA docket? Extrapolating from a Federal Judicial Center study of 2006 federal case filings, I have estimated that more than 30,000 secret ECPA orders were issued that year alone. Given recent DOJ disclosures, the current annual volume is probably twice that number. And those figures do not include surveillance orders obtained by state and local authorities, who handle more than 15 times the number of felony investigations that the feds do. Based on that ratio, the annual rate of secret surveillance orders by federal and state courts combined could easily exceed half a million. Admittedly this is a guess; no one truly knows, least of all our lawmakers in Congress.

The courts may be acting as checks against government power. Or they may be acting as rubber stamps. Given the number of gag orders and sealed documents, it's impossible to make that call. The courts are supposed to act as a check against government overreach and the only way to verify they're actually performing this function is to allow the public to see warrants, orders, motions, responses, and other court documents. But the government has pretty much destroyed this part of the accountability process by abusing a multitude of transparency loopholes -- most of those linked to "national security" or protecting law enforcement means and methods.

The government far too routinely -- in far too many routine criminal prosecutions -- deploys gag orders, sealed documents, ex parte presentations, in camera submissions and other tactics like parallel construction to ensure the judicial playing field is never level. These same tactics also prevent the public from seeing what's being done in their name and with their tax dollars.

Smith also points to the inevitable consequences of the government leading by example: the desire to treat public forums as somehow private arenas has bled over to civil litigation as well.

The same FJC study found that 576 civil cases filed in 2006 were completely sealed, meaning that the public was denied any information about the case, including the docket sheet. Rationales for the blackout varied from weak (“the parties wanted them sealed,” “to protect physicians reputations,” “to protect a party’s credit rating”) to non-existent (“17 pro se actions,” “30 habeas corpus and prisoner actions,” “33 forfeitures and seizures”).

Many of those listed still have a government nexus, but even cases that have no government intersection other than the use of the court system will still routinely contain sealed documents.

Even the most mundane employment suit will have a docket sheet littered with “Sealed event” entries.

As Smith notes, the numbers provided by the study are far from comprehensive. To fully tally the number of civil cases with sealed documents would take an examination of nearly every suit filed in federal court. Redacted dockets and sealed documents are apparently just as common in the civil arena, a large number of which can also be attributed to direct government intervention.

It's not one administration or one branch. It's everyone and it's been trending towards opacity for over 30 years. The government desires power without responsibility. The worst part is that the courts appear to be allowing it.

Filed Under: court system, dc circuit, ecpa, in re sealed case, laws, opacity, public, sealed cases, transparency

Abuse Of Power: Laws Should Be Designed As If The People We Distrust The Most Are In Power

from the thinking-this-through dept

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There have been a few stories lately that have all combined to make a few key points crystallize in my mind, concerning various legal powers and the way that some people view them. It starts with an excellent article from Trevor Timm in which the title lays out the issue: Imagine Obama's national security policies in Trump's hands. After all, this is the guy who hasn't been shy in promising to settle scores if he's elected.

Trump’s abhorrent daily pronouncements about what he would do as president come at such a rate that we have become numb to them. We’ve lost count of the amount of times he’s claimed he’ll bring back waterboarding, or some forms of torture that are “so much worse” (something that would constitute a war crime). Or that he’ll not only kill terrorists, but members of their families as well – another war crime. (After some backlash for these statements, Trump claimed on Friday that he would still “obey the law”.)

Trump’s list of enemies could make Nixon, who saw no problem in using the NSA to spy on American dissidents and his political opponents, look tame in comparison. While one of the NSA’s mass surveillance programs was curtailed (but not eliminated) by the USA Freedom Act, there remain myriad programs that touch on vast numbers of Americans’ communications. The FBI still has carte blanche to look at NSA’s international intercepts for Americans caught up in its net, and just last week the New York Times reported that the NSA plans to remove key privacy protections from much of its surveillance data, so that it can be shared with other federal agencies without any administrative protections. Are these the types of powers we want in the hands of a Trump administration?

But the larger point of Timm's piece is not so much to freak out about a potential Trump presidency, but rather to highlight the ridiculous hypocrisy of basically every Presidential administration and their own party apparatus and supporters, who freak out about certain laws and powers when the other guy is in power, but gleefully make use of them when they are in power. It's the sort of "benevolent dictator" fallacy, in which people think that it's okay for them to make use of these laws, because surely "my guy" or "my team" won't abuse them and only use them for good purposes. But everyone thinks that -- and eventually the people in power won't be your team. In fact, it may be people who scare you.

Take, for example, the issue of extrajudicial executions via drones ("murder from the sky"). The Obama administration embraced this strategy gleefully, after it was started by the previous administration of George W. Bush. However, once Obama came into power it was expanded massively with no public debate or discussion and, importantly, with no guidelines for how and when it could be used. In fact, somewhat ridiculously underlining the point of this very post, during the heat of the 2012 campaign, when there was a chance that Mitt Romney might beat Obama in the election, the Obama administration finally put together "explicit rules" that would limit when Presidents could use drones to murder people. But once Romney lost, the administration suddenly lost interest in those guidelines. And while a few rules were eventually put in place, they seem to be arbitrarily applied.

This is just one example of why our laws should be designed to function as if the people we trust least are in power. Because eventually, the other side will be in power. And for all the trust you had in your team, think about how someone you don't trust might use it.

And we have plenty of examples of this. Just this weekend, the NY Times had an article about how South Korea has been aggressively using defamation laws to crack down on government dissent:

Last year, the United Nations Human Rights Committee warned against South Korea’s “increasing use of criminal defamation laws to prosecute persons who criticize government action.” Freedom House, a rights group based in Washington, criticized “the increased intimidation of political opponents” under Ms. Park, who took office in 2013.

“The government is especially sensitive about defending the personal reputation of the president,” said Park Kyung-sin, a professor of law at Korea University who has researched the issue.

This is the same South Korea that just embraced a right to be forgotten concept. Just think how that might be abused as well.

And think about South Korea when you hear Donald Trump talk about "opening up" defamation laws.

And, of course, this can apply to lots of other concepts as well. There's been a big push around the world for laws against "hate speech" -- which, in a vacuum, may sound like a good thing. However, what may sound like a good thing, if you assume that "hate speech" will be defined in a reasonable manner, can sound quite different in other contexts. As we've noted, historically, hate speech laws are used most frequently as a way for governments to punish people they don't like. And, just to drive this point home, look at how some people have been claiming that Mitt Romney's anti-Trump speech last week was a form of hate speech:

reminder to people who support hate speech bans: you never know who will be in charge of defining hate speech pic.twitter.com/eVhvmFIi8Z

— Sarah McLaughlin (@sarahemclaugh) March 3, 2016

And, of course, this applies to areas like copyright as well. When I talk about the ways in which copyright can be abused for censorship, many supporters of the copyright system like to mock me, claiming I'm just "supporting piracy" or some sort of nonsense like that. But copyright is frequently and regularly abused to censor people, and with power in the wrong hands it can be abused even further. Remember how Vladimir Putin (who Trump has repeatedly expressed admiration for as a "strong leader, a powerful leader") used copyright law to suppress government dissent, raiding the offices of advocacy groups and opposition publications, claiming they were just there to check their computers for pirated software?

And of course, there's the big debate over encryption and whether or not Apple should be forced to provide the DOJ with the tools to hack its own systems. Are you really comfortable with that kind of power -- to force companies to hack into systems, to do forced updates that secretly remove security features -- in the hands of a President who has stated that those who disagree with him need "to be very careful"?

There are lots of reasons why we should be careful in passing laws -- including potential unintended consequences. But, even more to the point, we should be concerned about how those laws will be used by the people we trust the least. Because these are not theoretical concerns we're talking about. And it's distressing that those in power always seem to argue along with this when they're not in power, but forget it when they are. Remember how the Democrats dropped civil liberties from their official platform in 2012 after being a big part of the platform in 2008? I wonder why...

So, yes, perhaps the example of a possible Trump victory makes this clearer for some:

Guantanamo Bay prison, a symbol of torture and indefinite detention which should have been closed years ago, remains open. While Obama still says he wants to close it, his administration has enshrined the concept of indefinite detention into our system, and no matter who is president next has the opportunity to exploit that. Trump has vowed to expand Guantanamo, and according to a leaked memo obtained by CNN, his campaign even said he would detain American Isis “sympathizers” (whatever that means). This would of course be illegal and unconstitutional in a variety of ways, but given that Gitmo remains open and the last two administrations have faced no consequences for their unprecedented policies, how far could Trump go before he’s stopped?

But it should be a concern for everyone, even when their own friends are in power. Because we should always design laws in a manner that we'll still respect and trust in them even if the people we distrust the most are using them.

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Filed Under: abuse of power, copyright, defamation, donald trump, encryption, laws, politics, power

Here's The Ridiculous Texas Law That Allows Law Enforcement To Pretend A Digital Clock Is A Hoax Bomb

from the everything's-bigger-in-Texas,-including-overbroad-wording dept

There may be some method behind the zero tolerance, racially-tinged madness of the Irving, Texas, police department. The department perp-walked fourteen-year-old Ahmed Mohamed out of school and into its welcoming arms for the crime of not building a bomb. It was a clock, but because it had wires and a circuit board and was contained in a metal case and was on school grounds and Ahmed Mohamed's name is Ahmed Mohamed, the police decided that if it wasn't a bomb, it was the next best thing: a "bomb hoax."

So, after handcuffing him "for his safety" (ACTUAL QUOTE) and holding the non-bomb "as evidence" of a crime that wasn't committed, the department has dropped all charges. It isn't very repentant, however, despite everyone else -- including the President of the United States -- expressing support for the student. It still claims everything about the horrendous debacle was by the book. And, sadly enough, it probably was.

Mark W. Bennett, a Houston (TX) criminal-defense lawyer, pointed out that the state's "hoax bomb" statute is not just the regular kind of Texas-sized overbroad, but perhaps unconstitutionally overbroad. In a series of tweets, he broke down just how insanely stupid the law is.

1/ A hoax bomb includes a device that by its design causes reaction of any type by an official of a public safety agency.

— Mark W. Bennett (@MarkWBennett) September 16, 2015

2/ Possessing a hoax bomb with intent to use it to cause reaction by an official of a public safety agency is a crime.

— Mark W. Bennett (@MarkWBennett) September 16, 2015

3/ A telephone is designed to call other telephones, making them ring, causing a reaction.

— Mark W. Bennett (@MarkWBennett) September 16, 2015

4/ So possessing a telephone with the intent to call the cops is a violation of Texas’s “hoax bomb” statute.

— Mark W. Bennett (@MarkWBennett) September 16, 2015

5/ Lesson: statute titles don’t mean anything.

— Mark W. Bennett (@MarkWBennett) September 16, 2015

In case you can't see the embed, it says the following:

1/ A hoax bomb includes a device that by its design causes reaction of any type by an official of a public safety agency.

2/ Possessing a hoax bomb with intent to use it to cause reaction by an official of a public safety agency is a crime.

3/ A telephone is designed to call other telephones, making them ring, causing a reaction.

4/ So possessing a telephone with the intent to call the cops is a violation of Texas’s “hoax bomb” statute.

5/ Lesson: statute titles don’t mean anything.

Here's the actual language of the statute, which shows Bennett wasn't exaggerating.

Sec. 46.08. HOAX BOMBS.

(a) A person commits an offense if the person knowingly manufactures, sells, purchases, transports, or possesses a hoax bomb with intent to use the hoax bomb to:

(1) make another believe that the hoax bomb is an explosive or incendiary device; or

(2) cause alarm or reaction of any type by an official of a public safety agency or volunteer agency organized to deal with emergencies.

Well, Mohamed didn't pretend the clock was a bomb. Far from it. But that doesn't matter because of subsection (2), which takes away anything involving intent and puts it all in the fearful minds of nearly any government official. "Alarm or reaction of ANY type." How does one avoid causing an alarm or reaction in others, especially others that seem particularly easily alarmed? It's impossible.

Mohamed's science teacher wasn't alarmed, but he did remark that maybe Ahmed shouldn't show this project to anyone else. Mohamed didn't plan to, but the clock started beeping during another class and shortly thereafter, his English teacher started panicking. (But in the controlled sort of panic where a person demands someone hand over a bomb -- something no rational person would do if they actually thought the device in question was a bomb.)

Now, if we're going to play along with this statute's wordings, a whole lot of everyday items suddenly become much more "dangerous." Road flares, cell phones, batteries, a box full of wires, a vibrator, a doorbell, a power inverter… basically anything someone might feel could explode or could trigger an explosion would fall under the enormous shadow this statute casts.

But if we're going to play along with the police and the stupid law they used to defend their actions, we have to ask why several school officials -- including the English teacher who reported Mohamed to them -- weren't arrested as well. After all, they very likely knew they didn't have an actual "explosive or incendiary device" in their hands, and yet they approached the police department with claims that they did. This very definitely provoked a reaction and, at that point, the device was in the possession of school personnel. That's subsection (2).

By claiming a bomb was on the school's premises (when they likely knew it wasn't a bomb -- see also: no evacuation of the school, no warning sent to parents, etc.), they also violated subsection (1) of the statute:

make another believe that the hoax bomb is an explosive or incendiary device

Perp walking a few school officials out of the building and into squad cars would certainly teach them not to waste valuable law enforcement resources with stupid, fearful bullshit. But these actions would only be taken by a police department not so inclined to waste its own time investigating bombs that aren't bombs and arresting students who aren't criminals. And, as can clearly be seen, the Irving PD does not meet these standards.

Filed Under: ahmed mohamed, hoax bomb, laws, mark bennett, regulations, texas

Sexting Teen Charged With Sexually Exploiting Himself

from the and-simultaneously-being-an-adult-and-a-minor dept

Why the cops even had access to these photos remains a mystery, but the conclusion they came to is the pure, uncut stupid we've come to expect when laws are bent to "fit" the "problem" of consensual behavior. Reason's Robby Soave leads off with a straightforward and seemingly-damning recap of the situation.

A North Carolina 17-year-old caught in a sexting scandal faces charges of sexually exploiting a minor that could land him in jail for up to 10 years, since the law considers him an adult.

Could be a problem. How young was the victim?

Fayetteville, North Carolina, cops have charged 17-year-old Cormega Copening with sexual exploitation of a minor—his girlfriend, who is the same age—because the couple sent each other nude photos of themselves during their relationship.

They were both 16 when the alleged sexting took place. Both will be 18 in a year, which would make any sexting entirely legal. Because the state's consent laws consider anyone 16 and under a minor but allows minors 16 or over to be charged as adults in certain circumstances, Copening (and his girlfriend) could have ended up in a Kafka-esque legal nightmare.

North Carolina is one of two states in the country (the other is progressive New York) that considers 16 to be the age of adulthood for criminal purposes. This mean, of course, that Copening can be tried as an adult for exploiting a minor—himself.

Indeed, these were the charges first brought against Copening and his girlfriend -- both of whom are the same age.

Copening faces two counts of second-degree sexual exploitation of a minor and three counts of third-degree sexual exploitation of a minor.

Denson had faced one count of second-degree sexual exploitation of a minor and one count of third-degree sexual exploitation of a minor -- said the victim being herself.

In both cases, the teens were charged with exploiting each other… and themselves. Once again, the law becomes a drooling idiot when it butts up against something it was never written to address.

The charges have been modified and they're now only slightly less horrifically stupid.

An earlier story said Cormega Copening was charged with exploitation of a minor for texting photos of his genitals. He was charged making photos of himself and for possessing these photos, plus possessing a photo he received from Denson.

Not much better. Copening is being charged with being his own child pornographer. Denson's charges seem to be a bit lighter.

An earlier version of this article said Brianna Denson still faces two felony charges of sexual exploitation of a minor. Those charges were dropped on July 21 when Denson pleaded guilty to a misdemeanor charge and started a year of probation. That misdemeanor charge will be dismissed next year if she complies with her punishment.

The Fayetteville Observer doesn't state what the misdemeanor charge is, but it's apparently linked to the consensual behavior the state insists on prosecuting as the self-generation of minor-exploiting photography.

Copening, however, is still being charged with unlawfully possessing photos of himself. Apparently, Copening has no possessory interest in himself until the state cuts him loose as an "adult" at age 18.

The implication is clear: Copening does not own himself, from the standpoint of the law, and is not free to keep sexually-provocative pictures, even if they depict his own body.

To add to the fucked-upness of it all, the Fayetteville Observer published the names of two minors who were accused of criminal activity, something most publications don't do. It pointed out (using the severely twisted logic of the situation) that it always publishes the names of adults charged with felonies. The underlying laws -- as badly mangled as they are -- back up the paper's editorial decision. Both teens are considered adults under these statutes. But the exploitation charges also consider the two teens to be "minors," because the alleged photos were taken when they were sixteen. Most publications have a policy of protecting the identity of minors who are victims of crimes. As Robby Soave points out, according to the charges, the two teens are also victims of sexual exploitation, which normally would be enough to keep their names out of the papers.

Beyond all of this, we have to ask how the officers found these photos in the first place. The agency involved has refused to comment, but the Fayetteville Observer notes Copening is facing a misdemeanor property damage charge from August 22nd. No warrant was issued for the search and the detective (the charging detective, mind you) wrote in his report that pics were only sent between Copening and his girlfriend and recommended releasing him to his parents. And yet, the charges weren't dropped and Copening's court date has twice been reset.

On top of all of this, if the charges against Copening stick, he'll be required to register as a sex offender -- (mostly) for possessing photos of his own body.

There is nothing about this case that isn't tragically stupid. At worst, the officers should have considered the context, the consensual nature and the lack of age discrepancy and did what the charging detective recommended -- sending the teens home to their parents. If any discipline was needed for these actions, it's well within the remand of their respective legal guardians, not the state that has decided people of a certain age aren't allowed to own any part of themselves until the government says its OK.

Filed Under: laws, sexting, teens

Are People Passing Around Images Of Lenny Kravitz's Wardrobe Malfunction Violating Revenge Porn Laws?

from the well... dept

As you may have heard... a couple weeks ago during an onstage performance, rocker Lenny Kravitz had something of a wardrobe malfunction (potentially NSFW link), in which his pants split open and he exposed himself to the audience. This has resulted in lots of discussion about a variety of topics, including from the person who is taking credit for the piercing we now all know Kravitz has.

And while Kravitz initially appeared to laugh it off, soon after, his lawyers started going after anyone sharing the images or videos, tossing out just about any ridiculous legal argument they could think of including "copyright, human rights, right-of-publicity and performer's rights." In case you're wondering, basically none of those apply, though the specifics may matter in that there may be some very, very marginal cases where some of the images may go against some right. But mostly, the lawyers are spewing nonsense. The "human rights" claim is laughable. The copyright claim is so bizarre no one's even sure what copyright he's claiming (if you're wondering, the music he was playing at the time was a cover song, so he doesn't hold the copyright on that either), but it's certainly not in the photos themselves, where the copyright belongs to the photo taker. Rights-of-publicity depend state to state, but generally are focused on things like the use of a famous person's likeness to endorse a product. That's not happening here. As for "Performer's Rights" those are, generally speaking, about rights to be reimbursed for the use of a performance -- and almost never include a right to exclude usage. A recent paper on performers' rights in Europe (where the malfunction happened...) makes it clear:

Equitable remuneration rights and the remuneration granted under exceptions and limitations to certain exclusive rights do not give rightholders the possibility to authorise or to prohibit the exploitation of their work but do at least ensure them an income.

But here's the thing: I'm somewhat surprised that Kravitz's lawyers aren't trying to argue that this is "revenge porn" and breaking the law that way? Revenge porn, or nonconsensual pornography, laws are popping up all over the US, and a federal revenge porn bill has been rumored for many, many, many, many months -- with the promise always being that it's coming "next month." In fact, just a few days ago we got the latest such promise. The latest rumors are that the bill will make it a criminal act to share a "non-consensual" image of someone's naked bits.

Which raises the question: could anyone who shared or linked to the images of videos of Lenny Kravitz's junk... possibly be a criminal?

Right now, it would depend on the state law in question. Arizona's law, which has thankfully been put on hold after the court's realized it was unconstitutional, would almost certainly make anyone in Arizona who shared the image guilty of a criminal act. It says that it's "unlawfully to intentionally disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording of another person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to the disclosure." And while there's an exception for "images involving voluntary exposure in a public or commercial setting," from the statements by Kravitz's lawyer, I think they'd argue this was hardly "voluntary." Arizona's law also makes the crime more serious "if the depicted person is recognizable," which, you know, he is. That would make it a "class 4 felony" subjecting someone to between six months and two years in prison for sharing the photo. Yikes. Thankfully, that law is on hold.

How about California's revenge porn law, which leaves the issue not entirely clear. Under that law, "Any person who intentionally distributes the image of the intimate body part or parts of another identifiable person," may be violating the law, but there is a caveat that might create an out. It only applies only in situations where:

"the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress."

Do the people agree that it should remain private? Probably not, but perhaps that's an issue that Kravitz's lawyers could fight over in court. But the last line is more troubling. So long as Kravitz's lawyer argue that the distribution of the image caused "emotional distress" perhaps there's a claim here. And that seems pretty problematic. There are a few other exemptions under the law, including if "the distribution is made in the course of reporting an unlawful activity," but it's not clear that applies here either. At the very least, it seems like this could get tied up in court while people argue about it.

As for the federal law that Rep. Jackie Speier is pushing, we still don't know the specific details, but most reports say that she's been working closely with Professor Mary Anne Franks on it (note: Franks dislikes Techdirt and will all too regularly lob ad hominem attacks our way). Franks has written some draft legislation that she would like to see enacted. Under her draft bill, thankfully, Kravitz and his lawyers would have a bit more trouble putting random tweeters in jail, but it still might get dicey. It does criminalize "transferring, publishing, distributing or reproducing" an image or video that includes "intimate parts" which "means the naked genitals" -- but it has some vague exceptions:

(1) Images involving voluntary exposure in public or commercial settings; or

(2) Disclosures made in the public interest, including but not limited to the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment.

Again, Kravitz's lawyers would clearly argue that it's not a voluntary exposure. Then that would leave open the discussion of whether or not people reposting the image did so "in the public interest." It doesn't clearly fall into any of the listed "public interest" areas, but the draft law clearly states that things are not "limited" to those areas.

And that's where it begins to get pretty damn dicey on First Amendment grounds. You end up in a position where, say, someone who retweeted such an image is not only facing potential criminal charges, but then is in the position of having the burden placed on them to argue that retweeting an amusing image of Lenny Kravitz's junk is "in the public interest." And, that's the kind of thing the First Amendment is supposed to prevent. No one should be in court needing to argue that their expression is "in the public interest." Because that's a massive can of worms.

Now, contrary to what Franks has falsely said about myself and others, I don't think that "violations of sexual privacy" are okay. But I do worry that in the rush to criminalize activity that we all agree is ridiculous and problematic, that we end up overcriminalizing things, including issues related to free expression. I'm quite happy to see that most revenge porn sites in the US are now out of business, following various legal efforts (almost none of which relied on revenge porn laws...). I'm quite happy to see folks like Adam Steinbaugh expose and ridicule those behind revenge porn sites, shining a spotlight on people who can only be described as scum of the earth for thinking such things are okay.

However, thinking that non-consensual porn is immensely problematic does not mean that we should just toss aside the First Amendment concerns with the bills that are proposed to criminalize the practice. In this case, I'm using the example of Lenny Kravitz and his wardrobe malfunction to hopefully highlight that this is not such a simple problem, and -- contrary to the argument of Franks and others -- could have some very real world consequences on issues of the First Amendment and free expression.

Filed Under: first amendment, laws, lenny kravitz, nonconsensual porn, revenge porn

State Of Georgia Sues Carl Malamud For Copyright Infringement For Publishing The State's Own Laws

from the that-seems...-unwise dept

Update: We've written a new post about this case, which notes an important error we made in the analysis below. We claimed that the annotations were relied upon by the courts, which turns out not to be true. We apologize for the error, and we should have done more research initially. It is true, however, that multiple parts of the Georgia government do point to the annotated code as "the law" of the state and reference parts of that same annotated code. In our updated post, we do a more thorough analysis of the legal arguments -- yet we still regret and apologize for the initial error in this post.

Two years ago, we wrote about the state of Georgia ridiculously threatening to sue Carl Malamud and his site Public.Resource.org for copyright infringement... for publishing an official annotated copy of the state's laws. This followed on a similar threat from the state of Oregon, which wisely backed down. Malamud has spent the last few years of his life doing wonderful and important work trying to make sure that the laws that we live by are actually available to the public. The specific issue here is that while the basic Georgia legal code is available to the public, the state charges a lot of money for the "Official Code of Georgia Annotated." The distinction here is fairly important -- but it's worth noting that the courts will regularly rely on the annotations in the official code, which more or less makes them a part of the law itself the state points directly to the annotated version as the official laws of the state. Furthermore, the annotations are very important in understanding and applying the relevant interpretations and case law (case law is a part of the law, after all). And then, the question is whether or not the law itself should be subject to copyright restrictions. Malamud has long argued no, while the state has obviously argued yes, probably blinded by the revenue from selling its official copy of the annotated code. Update: In the original post, I overstated the claim that the courts would directly rely on the annotations. While the annotations are often used to better understand the relevant case law, it does not appear that the courts directly refer to the annotations themselves.

It took two years, but the state has now done the absolutely ridiculous thing of suing Malamud. It is about as ridiculous as you would expect again focusing on the highly questionable claim that the Official Code of Georgia Annotated is covered by federal copyright law -- and that not only was Malamud (*gasp*) distributing it, but also... creating derivative works! Oh no! And, he's such an evil person that he was encouraging others to do so as well!

This action for injunctive relief arises from Defendant’s systematic, widespread and unauthorized copying and distribution of the copyrighted annotations in the Official Code of Georgia Annotated (“O.C.G.A.”) through the distribution of thumb drives containing copies of the O.C.G.A. and the posting of the O.C.G.A. on various websites. Defendant has facilitated, enabled, encouraged and induced others to view, download, print, copy, and distribute the O.C.G.A copyrighted annotations without limitation, authorization, or appropriate compensation. On information and belief, Defendant has also created unauthorized derivative works containing the O.C.G.A. annotations by re-keying the O.C.G.A. in order to make it possible for members of the public to copy and manipulate the O.C.G.A., thereby also encouraging the creation of further unauthorized derivative works.

Believe it or not, the State of Georgia is actually claiming that it needs the copyright protections here to incentivize it to create these annotated copies of the law. Apparently, without copyright, Georgia's law would remain sadly unannotated.

Each of these annotations is an original and creative work of authorship that is protected by copyrights owned by the State of Georgia. Without providing the publisher with the ability to recoup its costs for the development of these copyrighted annotations, the State of Georgia will be required to either stop publishing the annotations altogether or pay for development of the annotations using state tax dollars. Unless Defendant’s infringing activities are enjoined, Plaintiff and citizens of the State of Georgia, will face losing valuable analysis and guidance regarding their state laws.

This is ridiculous. In what world does making the law require copyright protection?

The State is particularly upset that Malamud ran some crowdfunding and donation campaigns seeking to raise money to keep his operations running, saying that he raised this money "to assist the Defendant in infringing the State of Georgia's copyrights." The State also complains that he uploaded the code to the Internet Archive under a CC 0 public domain dedication, saying (incorrectly) that this implies that he claimed that he was the owner of the annotations. That's not true at all. He's claiming that everyone owns them, because they're the law.

Later, the lawsuit makes Malamud out to be some sort of horrible person on a "crusade" to make the laws free, and to "control the accessibility of U.S. government documents."

On information and belief, Carl Malamud has engaged in an 18 yearlong crusade to control the accessibility of U.S. government documents by becoming the United States’ Public Printer – an individual nominated by the U.S. President and who is in control of the U.S. Government Printing Office. Carl Malamud has not been so nominated.

It takes a special kind of ridiculousness to argue that someone seeking to make the laws of the land more accessible to the public is somehow looking to "control the accessibility" of those laws. But, welcome to the State of Georgia, apparently home to just that kind of special ridiculousness.

The complaint further submits as an exhibit this Columbia Journalism Review article about Malamud from 2009 in order to support Georgia's ridiculous claim that Malamud sees what he's doing as a form of "terrorism." The lawsuit says the following:

Carl Malamud, has indicated that this type of strategy has been a successful form of “terrorism” that he has employed in the past to force government entities to publish documents on Malamud’s terms

Of course, all that's likely to really do is further educate the court about what Malamud is really looking to do: make the laws of the land more publicly accessible.

Either way, this seems like a ridiculous move for Georgia. Going after Carl Malamud for copyright infringement for helping to make the public more aware of the law in the state of Georgia just seems ridiculous. And for all of the state's repeated claims in the lawsuit that it's doing this to protect taxpayers, one has to ask why it's spending taxpayer revenue on filing such a ridiculous lawsuit?

Back when the state of Georgia first threatened Malamud two years ago, he responded as such:

It is a long-held tenet of American law that there is no copyright in the law. This is because the law belongs to the people and in our system of democracy we have the right to read, know, and speak the laws by which we choose to govern ourselves. Requiring a license before allowing citizens to read or speak the law would be a violation of deeply-held principles in our system that the laws apply equally to all.

This principle was strongly set out by the U.S. Supreme Court under Chief Justice John Marshall when they stated “the Court is unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this Court, and that the judges thereof cannot confer on any reporter any such right.” Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834). The Supreme Court specifically extended that principle to state law, such as the Ofcial Code of Georgia Annotated, in Banks v. Manchester (128 U.S. 244, 1888) , where it stated that “the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute.”

This still applies, and it seems that the State of Georgia might want to re-evaluate its choice of targets here.

Filed Under: annotations, carl malamud, copyright, georgia, laws, regulations
Companies: lexisnexis, public.resource.org