Eric Holder's Near Total Lack Of Concern For Digital Rights

from the disappointing-legacy dept

We already discussed Eric Holder's absolute failure on issues related to the press and media, but a great article by Tim Wu in the New Yorker details how Holder's legacy is littered with him totally failing the digital world through a combination of ignorance, neglect and simply poor decision-making. Wu points to the prosecutions of both Chelsea Manning and Aaron Swartz as examples, noting Holder's awful response when asked about the Swartz prosecution:

Holder himself did not run that prosecution, and cannot be blamed directly for it. But, in the aftermath of Swartz’s suicide, he was presented with an opportunity to step back and examine what had happened. He might have taken a careful look at how the Justice Department was enforcing the underlying law, the Computer Fraud and Abuse Act, which, as I and others have argued, is among the worst and most dangerous sections of United States federal law. If he had, he might have noticed that the Swartz prosecution wasn’t the first of its kind and wouldn’t be the last, and pushed for better enforcement guidelines for federal prosecutors.

Holder did not take that path—the kind of reflection, notably, that he would demand of the Ferguson police department. Instead, he blandly defended his prosecutors, and even testified before the Senate that prosecuting Swartz was “a good use of prosecutorial discretion.” In that moment, he lost a good deal of the tech community’s goodwill and respect.

On the question of Ed Snowden and surveillance, Wu notes that Holder failed to uphold the Constitution in blocking the abuses, but rather appears to have signed off on them.

Holder didn’t initiate the bulk collection of phone or e-mail records; nor did he run the N.S.A. But Holder, as the Administration’s top lawyer for half a dozen years, nonetheless bears responsibility for these gross and repeated violations of Constitutional principles. It is ultimately the Justice Department’s duty to stand up for the Constitution when other parts of government want to abandon it, and this Holder failed to do.

There's more in the article as well, but the key point seems to be that Holder just seemed fundamentally unconcerned about digital rights, and that's a problem in an increasingly digital world:

Mainly, in the end, Holder seems to have not truly grasped that our rights matter online as well as offline. He never appeared sensitive to the idea that having our e-mails read by the government can be as intrusive and as unpleasant as having government agents rifle through our desks. Whatever the reason, and even if his commitment to civil rights did not waver, his disregard for digital rights was blatant and painful for those who looked to and hoped for an Obama Administration that would become the much promised “tech Presidency.”

The fact that the rumored "leading" choice to replace Holder is current Solicitor General Donald Verrilli, the former top litigator for both the MPAA and RIAA -- who handled the lawsuits against Grokster, YouTube and Jammie Thomas, among others, doesn't exactly bode well that Holder's successor will be much of a champion of digital rights either. There are, however, some other choices on the table apparently, and it would be nice if future attorneys general actually recognized the importance of digital rights as well.

Filed Under: attorney general, civil rights, digital rights, eric holder, privacy, technology

Eric Holder Was The Worst Attorney General For The Press In A Generation: We Deserve Better

from the but-will-we-get-it dept

Attorney General Eric Holder announced he would resign yesterday, after serving as the nation’s top law enforcement official since President Obama came into office in 2009. Holder will leave behind a complex and hotly debated legacy at the Justice Department on many issues, but one thing is clear: he was the worst Attorney General on press freedom issues in a generation, possibly since Richard Nixon’s John Mitchell pioneered the subpoenaing of reporters and attempted to censor the Pentagon Papers.

Holder presided over the largest legal crackdown on journalists’ sources in American history. Under his watch, the Justice Department prosecuted more sources and whistleblowers under the Espionage Act than all previous administrations combined, and many of those cases directly led to surveillance of reporters. In one, the Justice Department secretly subpoenaed twenty Associated Press phone lines, gathering information on over one hundred AP reporters. In another, the Justice Department accused Fox News reporter James Rosen in court documents of being a “co-conspirator” and “aiding and abetting” State Department employee Stephen Kim in violating the Espionage Act. Both moves by the Justice Department were personally approved by the Attorney General.

After a loud public backlash, the Justice Department recently tightened its media guidelines, but that hasn’t stopped them from attempting to force one of the nation’s best national security reporters, New York Times’ James Risen, into jail for refusing to testify against an alleged source. In Risen’s case, the Justice Department caused the most damage to reporter’s privilege in decades when it convinced the Fourth Circuit to do away with the privilege in its jurisdiction altogether. Shamefully, Holder’s Justice Department argued in front of the Court of Appeals that not only did Risen not qualify for reporter’s privilege, but the privilege did not exist at all, literally comparing reporters who protect sources who tell them about sensitive information to receiving drugs from a drug dealer and refusing to talk about it.

Despite all this, Eric Holder had previously promised that, “As long as I’m attorney general, no reporter who is doing his job is going to go to jail.” How the Justice Department could pursue contempt of court charges against Risen but keep him out of jail was unknown. But now that Holder is stepping down, the Justice Department is not obligated to abide by his promise.

The Justice Department’s pursuit of Risen has led to a petition signed by over 100,000 citizens, and over twenty Pulitzer Prize winners issued statements condemning it. The Justice Department has still refused to drop its pursuit.

And often forgotten in the Justice Department’s awful crackdown on the press, is its sprawling, four-year grand jury investigation into WikiLeaks for publishing classified State and Defense Department documents in 2010 and 2011, under a “conspiracy to commit espionage” theory where WikiLeaks may or may not have asked source Chelsea Manning to send them the documents. Many have referred to it as the largest investigation of a publisher in American history.

Despite the fact that the investigation has been widely condemned by legal experts and Constitutional scholars—former Times general counsel James Goodale said Holder might as well be investigating WikiLeaks for “a conspiracy to commit journalism”—recent court documents show the grand jury is still active.

Any indictment would leave all US newspapers in the perilous position of constantly under threat of prosecution when publishing supposedly “secret” information. But even without an indictment, the open-ended investigation chills WikiLeaks’ work and anyone caught in its wide net.

In addition, the Justice Department's handling of the Freedom of Information Act (FOIA) and its aggressive tactics in court to keep basic information from journalists and the public has been deplorable, especially given Holder's promise to reform FOIA when he first came into office. Holder is also attempting to expand the controversial 'state secrets' privilege to new lengths, after promising to reform that as well.

The next attorney general, whoever it is, will have a lot of issues on his or her plate. But better respecting the rights of reporters and the First Amendment should be at the top of that list.

Reposted from the Freedom of the Press Foundation

Filed Under: attorney general, eric holder, journalism, press freedom

NJ Attorney General's Office Trying To Push State Supreme Court To Overturn Precedent Requiring A Warrant To Access Phone Billing Records

from the any-expectation-of-privacy-is-still-too-much dept

Last year, the New Jersey Supreme Court upheld its state Constitution in finding that warrants were required to obtain cell phone location data. Notably, this ruling was very state-specific. The standing interpretations of New Jersey's Constitution have awarded a greater expectation of privacy than national interpretations of the Fourth Amendment.

State prosecutors aren't happy that the state of New Jersey provides greater protection for the data of its residents than the federal government, and they're hoping to drag the state's laws down to the desiccated level of today's Fourth Amendment. (Warning: registration wall.)

The New Jersey Attorney General’s office is asking county prosecutors statewide for their help in overturning a 32-year-old state Supreme Court precedent that requires a warrant to obtain telephone billing records.

Assistant Attorney General Ronald Susswein wants them to bring test cases where they will likely lose at the trial and Appellate Division levels, in the hope that the issue will eventually percolate up to the high court, according to his June 10 memo, obtained by the New Jersey Law Journal.

Susswein said he thinks the court might be ready to overturn its holding, in State v. Hunt, 91 N.J. 338 (1982), that the warrantless search and seizure of telephone billing records, while permissible under the federal Fourth Amendment, violates the nearly identical provision of the state constitution.

It appears the Attorney General wants to take a lowest common denominator approach to civil liberties. If this reading of rights is too restrictive for the federal government, why should New Jersey prosecutors be subject to tighter guidelines? The memo portrays the warrant requirement as an "unnecessary delay," something that is supposedly harming investigations. But that assertion is completely bogus.

ACDL-NJ vice president Christopher Adams said “if the Attorney General’s office thinks the defense bar and the civil rights bar are going to stand by while they try to strip more of our rights away, they are sadly mistaken.”

Adams, a Holmdel solo, called it intellectually dishonest to say that Hunt causes delays, given that a warrant for phone records can typically be obtained within a few hours.

Defense attorneys and even judges themselves have long noted how ridiculously easy it is to obtain a warrant. Prosecutors and police constantly portray it as an arduous time sink, despite plenty of evidence otherwise. Susswein's memo is aiming to have even this minimal obstacle removed, giving New Jersey law enforcement and prosecutors the same unbounded access enjoyed elsewhere in the US, where a variety of court decisions have determined that nearly any information turned over to a third party carries no expectation of privacy.

The timing of this move could not be worse. A recent district court decision suggested warrants should be required for cell phone location data, aligning this district with New Jersey's more restrictive Constitution. Elsewhere, the battle is being fought to regain a modicum of privacy in third-party interactions, along with a pushback against warrantless surveillance in general.

This move is being viewed as the leading edge of a push for loosened restrictions on obtaining third-party data.

Assistant Public Defender Dale Jones suspected a “larger agenda” to undo the greater protections provided under the state than the federal constitution, with the memo as “the thin edge of a wedge to try and roll back a generation plus of jurisprudence that began with Hunt.”

Which is exactly how these things start. You don't just ask for access to everything without a warrant. You start with small stuff, arguing that no one has any expectation of privacy to phone numbers called or received. But is it really that unacceptable that New Jersey law enforcement will need to continue to use warrants? Is it that unimaginable that the state's citizens could be afforded slightly more protection than the rest of the nation? Apparently so. Even with all the exceptions afforded law enforcement for those times when it's just too much of a hassle to get a warrant, the State Attorney's office still feels a minimal amount of effort is too much.

The argument here revolves around phone billing records, but that's only a starting point. Sooner or later, the "wedge" stops meeting resistance, and at that point, there's very little hope that the collection of small judicial concessions that has now morphed into a cohesive, dangerous whole will ever be rolled back.

Filed Under: 4th amendment, attorney general, new jersey, phone records, privacy, ronald susswein, warrant

Australian Attorney General Wants To Make It A Criminal Offense To Not Turn Over Private Encryption Keys

from the a-disaster-waiting-to-happen dept

The Attorney-General's department in Australia is apparently pushing for new laws down under that would force anyone who's asked to hand over their private encryption keys -- and that covers both end users and service providers. Buried in the middle of a submission concerning revising Australia's wiretapping laws, the AG's office notes:

The Department is also advised that sophisticated criminals and terrorists are exploiting encryption and related counter-interception techniques to frustrate law enforcement and security investigations, either by taking advantage of default-encrypted communications services or by adopting advanced encryption solutions.

The Department’s current view is that law enforcement, anti-corruption and national security agencies should be permitted to apply to an independent issuing authority for a warrant authorising the agency to issue ‘intelligibility assistance notices’ to service providers or other persons. The issuing authority should be permitted to impose conditions or restrictions on the scope of this authority.

[....]

Under this approach, the person receiving a notice would be required to provide ‘information or assistance’ to place information obtained under the warrant into an intelligible form. The person would not be required to hand over copies of the communication in an intelligible form, and, a notice would not compel a person to do something which they are not reasonably capable of doing. Failure to comply with a notice would constitute a criminal offence, consistent with the Crimes Act.

The above approach is consistent with the approach taken by the United Kingdom, which permits officials of law enforcement and national security agencies to, where authorised under a warrant, issue a notice requiring a person to provide assistance in connection with accessing encrypted communications. Similarly, South African law permits agencies to apply to a judicial officer for a direction requiring a person to provide information to the agency to enable the agency to decrypt lawfully intercepted communications.

The Orwellian nature of "intelligibility assistance notices" is fairly striking. Basically, this says if you don't make encrypted communication "intelligible" upon request, you would have violated criminal law. It's kind of funny how it claims this doesn't require anyone to hand over communication in an intelligible form... because it just asks for the encrypted content and the key to decrypt them. Which, you know, is basically the same damn thing.

Meanwhile, at the same time as part of the same discussion over wiretapping laws, there's an effort under way in Australia to force service providers into a big data retention scheme, forcing them to hold onto all sorts of data for law enforcement purposes. Incredibly, Australian officials seem to be using the NSA/Snowden leaks as the impetus for this.

Intelligence agency ASIO is using the Snowden leaks to bolster its case for laws forcing Australian telecommunications companies to store certain types of customers' internet and telephone data for a period of what some law enforcement agencies would like to be two years.

ASIO also, like the AG's office, seems quite concerned about you damn kids and all your encrypting:

"Since the Snowden leaks, public reporting suggests the level of encryption on the internet has increased substantially," ASIO said.

"In direct response to these leaks, the technology industry is driving the development of new internet standards with the goal of having all web activity encrypted, which will make the challenges of traditional telecommunications interception for necessary national security purposes far more complex."

So, even if everything's getting encrypted, certain law enforcement interests seem hell-bent on having everything collected and easy (forced) availability of private keys. If you happen to live in Australia, you might want to speak up about what's about to happen to what you thought were your private communications and browsing activity.

Filed Under: asio, attorney general, australia, data retention, encryption, privacy, wiretapping

Mississippi Attorney General Jim Hood Thinks Google Is To Blame For Infringement On The Web

from the because-Google-uploads-infringing-material-and-whatnot-*eyeroll* dept

Mississippi state attorney general Jim Hood has returned to his old punching bag, Google, for another workout. Back in June, Hood decided it was Google's fault that he could find copyright infringement and counterfeit items on the web. Back then, he complained that Google "gave" him "easy access" to illicit goods and then wondered aloud why it could work its magic with Nazi photos and child porn but somehow couldn't rid the web of infringement as well. He then threatened to issue subpoenas if Google didn't scrub the web clean by his next irate press conference.

Not much has changed, apparently. Hood is again blaming Google for copyright infringement and is using his familiar standard rhetorical props. In a letter to Google counsel Kent Walker, Hood asks why Google "allows" bad things to happen to good people (MPAA, RIAA, etc.).

Hood accused Google of being “unwilling to take basic actions to make the Internet safe from unlawful and predatory conduct, and it has refused to modify its own behavior that facilitates and profits from unlawful conduct.” His letter cites not just piracy of movies, TV shows and music but the sale of counterfeit pharmaceuticals and sex trafficking.

He also pointed out several instances in which Google has screened out criminal content, like child pornography. Nazi-related content, he noted, was removed from search results in Germany, and spam and malware are blocked because they can be damaging to users.

“Google can and does take action against unlawful or offensive conduct — when Google determines it is in its business interests to do so,” Hood wrote.

While a lot of what Hood claims is mostly wrong, the last sentence is especially disingenuous. The Nazi content he's referring to was taken down in order to comply with German and French laws, not because Google felt doing so would be good for the bottom line. Its efforts to curb child pornography are also adding nothing to its profits. It's a collaborative effort done mainly as a public service, but it also is the result of considerable political pressure from various politicians.

Google would presumably take other content down as well if ordered to by a court. As it stands now, Google does make an effort to curb infringement, but despite the fact that it removed 57 million web pages last year (with an average turnaround time of 6 hours), the MPAA (in particular) continues to claim it's not doing enough. What goes unacknowledged is the fact that Google neither encourages infringement nor contributes to infringement. It simply indexes the web.

Google has also made efforts to alter its algorithms to give so-called "rogue sites" lower rankings and it deploys ContentID at YouTube to help filter infringing content out of the 100 hours of video uploaded every minute.

But it's still not enough for critics like Jim Hood. Because Google can filter out child porn (still not 100% -- nor will it ever be), certain people feel filtering out infringing content should be just as "simple." But infringement isn't like child porn and there's simply too much of it out there to expect Google to handle with its human verification system that sorts the child porn from the "kids taking a bath" pictures. Copyright enforcers can't even build a list of rogue sites without grabbing a few false positives. (Hood makes a mention of this in his letter, building off the clearly wrong assumption that defining a rogue site is a simple task.) How's Google supposed to handle 57 million+ allegedly infringing pages without plenty of others sneaking past the detection systems?

Hood also makes these demands in his letter:

— Tailor search results to make websites providing illegal goods or services disappear or appear much lower.
— Program its auto-complete function to prevent suggestions related to illegal activity.
— Promote sites authorized to provide content, including possibly giving them an icon in search results.
— Not sell ads to illegal businesses.

Some of this Google has already done, including altering its search algorithms and stripping certain terms from autocomplete. (I assume Hood's use of the word "tailor" in this context means tailoring search results to make him happy -- rather than, say, adjust weighting, etc.) While I'm sure the MPAA, et al would love to have their preferred sites given preferable ranking, actually doing so would make a mockery of Google's ranking system. As for the ads, Google has taken steps in that direction as well.

When it comes to rogue sites that specialize in online piracy, other anti-piracy strategies will have limited effect so long as there is money to be made by their operators. As a global leader in online advertising, Google is committed to rooting out and ejecting rogue sites from our advertising services, to ensure that they are not being misused to fund these sites. In 2012, we disabled ad serving to more than 46,000 sites for violating our copyright policies, the vast majority detected through our proactive efforts.

What Hood is proposing is to turn Google into a search engine that's only as good as politicians and certain industries will allow it to be. When it starts altering rankings based on political pressure, its flagship offering will become worthless. The danger of allowing a foot in the door is that it encourages the body behind it to follow it inside.

The problems Hood sees in Google are present in all search engines. If it's on the web, it can be indexed (unless instructed otherwise by sites themselves). Sites rise and fall based on algorithms that (supposedly) reflect popularity and trustworthiness. Hood and others like him want a search engine to present a sanitized 'net -- one free of everything that might infringe, offend or cater to illicit tastes. What Hood wants is commonly called "censorship," but his letter attempts to lay the blame for everything that's "wrong" with the web at the feet of the world's most popular search engine. Google's job isn't to make sure everyone with an axe to grind is satisfied with their search results. Its job is to provide a useful, searchable index of the web. Period.

Filed Under: attorney general, jim hood, liability, mississippi, search engines, secondary liability
Companies: google

NY's Attorney General Demands All Data On NYC AirBNB Rentals

from the chilling-effects dept

What is it with states attorneys general and their attacks on innovation? The latest news is that NY's AG, Eric Schneiderman, is demanding data from AirBnB on all 15,000 users in NYC who have rented out their place. This comes after a ruling back in May saying that an apartment owner renting out his place was guilty of running an illegal hotel (that was just overturned). Of course, the very day that original ruling happened, I'd been trying to rent a place in NYC on AirBnB -- and I even had a guy who had agreed to rent me the place pull back, saying that because of the legal issues he was removing his apartment from the site. I'm about to go to NYC again, and have another AirBnB place lined up -- but am now nervous that this one, too, will disappear.

The NY AG's office claims that they're only going after a small number of "bad" AirBnB users, mainly "landlords doing long-term illegal rentals," but if that's the case, why does it need information on 15,000 users. If anything, that's going to create massive chilling effects. Services like AirBnB provide tremendous amount of value on both sides of the equation -- homeowners are able to make extra cash (sometimes significant amounts) while travelers are able to rent out nice places at lower rates than hotels. It's a good deal that's pretty efficient across the board. The NY AG's office claims that this leaves out neighbors who may be impacted, but it seems like there are much better ways to deal with neighbor problems than having to go trolling through all of AirBnB's records.

Filed Under: attorney general, eric schneiderman, landlords, ny, nyc, rentals
Companies: airbnb

Mississippi Attorney General Says Its Google's Fault He Can Find Infringing & Counterfeit Items

from the really-now? dept

We've discussed in detail in the past how different states' attorneys generally work: they pick a company they want to shame, for their own political benefit and just start making accusations against them and demanding they "answer" for them, even when they have no legal basis to their arguments whatsoever. Usually, one AG will start this, and then dozens of the others pile on as well, and they just keep putting on more and more pressure -- again, without any legal basis whatsoever -- until companies feel the need to "settle" to shut the AGs up, and then the AGs celebrate with lots of press coverage about how they brought down some big, bad company. It's kind of amazing how often we see this same pattern.

It appears the latest target of a bogus attack from Attorneys General, starting with Mississippi's Attorney General Jim Hood, is Google. Hood, apparently, has found some infringing and counterfeit goods online (shock! horror!) and has decided that Google is responsible for this:

"On every check we have made, Google's search engine gave us easy access to illegal goods including websites which offer dangerous drugs without a prescription, counterfeit goods of every description, and infringing copies of movies, music, software and games," Hood said. "This behavior means that Google is putting consumers at risk and facilitating wrongdoing, all while profiting handsomely from illegal behavior."

Hood didn't buy Google's explanations that it only removes content from search results in a narrow set of circumstances, pointing out that Google blocks child pornography and has removed content that glorifies the Nazi party. "Why will Google not remove websites or de-index known websites that purport to sell prescription drugs without a prescription or provide pirated content?" Hood asked.

Of course, Hood has no legal mandate over copyright. At all. But, what the AGs normally do -- and Hood is doing here -- is use their broad, vague mandates towards "consumer safety" to pretend they have a mandate.

What Hood is really doing, however, is not protecting consumers, but showing off his own technological ignorance of how search works. Yes, you can find infringing works via Google. But finding that content isn't Google's fault, but the fault of those who put that stuff up on the internet. A good Attorney General would use that information to go after the people actually breaking the law by putting such works up. But, you know, that takes work and actually proving someone broke the law. By blaming Google instead, it takes away all of the actual work and having to prove that someone actually was guilty of counterfeiting/infringement. And, of course, it can only lead to censorship. If Google is somehow ordered to magically know how to stop such content from being found, the only way to do that is to vastly overblock, removing tons of legal content.

Filed Under: attorney general, copyright, counterfeit, jim hood, mississippi
Companies: google

Reporters Tell Attorney General Eric Holder They Won't Agree To 'Off The Record' Meeting As Scale Of Journalist Spying Expands

from the thousands-and-thousands dept

A few quick updates on the continuing saga of the DOJ's highly questionable spying on the communications of reporters. First up, we find out that the AP is claiming that the DOJ's scooping up of phone records wasn't nearly as limited as some people have suggested, but rather contained records for "thousands and thousands" of phone calls. Remember, the DOJ's own guidelines say that any such record retrieval must be very targeted rather than broad.

Of course, as all of this was happening, a sympathetic story leaked to the press, claiming that Eric Holder feels tremendous remorse for the specific case of the spying on James Rosen. Though, as you read the details, it sure sounds a lot more like "political expediency" rather than honest "remorse."

The sweeping seizure of the AP phone records had thrown Justice on the defensive. But at least in that case Holder had some personal insulation; having been interviewed by the FBI, he'd recused himself from the investigation and, thus, had not personally signed off on the subpoenas. In the Fox case, however, Holder knew he bore a direct measure of responsibility. He had approved a search-warrant application that equated a reporter's newsgathering activities with criminal conduct. That put Holder at the center of the brewing controversy, all while the Obama administration was being buffeted over allegations that the IRS had targeted conservative groups and by the continuing Benghazi tempest.

By week's end, Holder knew he had to be proactive in stemming the criticism and restoring the department's credibility with the press. He and his advisers began exploring ways to reform the Justice Department's internal guidelines for investigating leaks to safeguard the media against overly intrusive tactics. (Obama announced a review of the guidelines during a major speech on counterterrorism last Thursday.) Meanwhile, on Friday, Holder made a round of calls to Capitol Hill in an attempt to mollify concerned lawmakers. In calls to Sens. Charles Schumer (D-NY), Dick Durbin (D-Ill.), and Lindsey Graham (R-SC), Holder said he understood why there had been such an outcry over his department's actions. As one of Holder's advisers put it, the message was: "Look we get it. We understand why this is so controversial, and we're ready to make changes to find the right balance." At the same time, Holder enlisted their help to get a media-shield law passed in Congress. (On Sunday, Schumer announced the formation of a bipartisan "gang of eight" to press for the legislation.)

However, he supposedly is upset that his public image is not reflective of what he thinks of himself.

But sources close to the attorney general says he has been particularly stung by the leak controversy, in large part because his department's—and his own—actions are at odds with his image of himself as a pragmatic lawyer with liberal instincts and a well-honed sense of balance—not unlike the president he serves.

Of course, one way to avoid being accused of such things is... you know... not to do them in the first place.

In response, Holder announced that he'd be holding a meeting with news organizations to go over the DOJ's guidelines on getting access to such information. But, he couldn't even do that correctly. After announcing that this meeting would be off-the-record, a variety of news organizations, including the NY Times and the Associated Press announced they would not attend.

Of course, they could just attend and then "leak" the results. What would Holder do in response?

Filed Under: attorney general, eric holder, off the record, reporters, spying
Companies: associated press, ny times

Vermont Declares War On Patent Trolls; Passes New Law And Sues Notorious Patent Troll

from the wow dept

I've always liked the state of Vermont -- but mainly because it was a nice place to visit. But, now the state appears to be declaring war on patent trolls. A new anti-patent trolling law has been quietly enacted, H.299, which targets patent trolls. Or, as it says "bad faith assertions of patent infringement." It does this by amending the state's consumer protection laws, to give tools to judges to recognize when patent litigation is done in bad faith (i.e., for trolling, rather than legitimate reasons). Eric Goldman summarizes the law this way:

Vermont’s law (H.299, to be codified at 9 V.S.A. § 4195-4199) is entitled “Bad Faith Assertions of Patent Infringements.” However, it doesn’t define “bad faith patent assertion.” Instead, it enumerates factors to help judges distinguish legitimate from illegitimate patent assertions. Factors that suggest a bad faith patent assertion include not identifying the patent(s)-at-issue, the patent owner, and exactly how the recipient’s behavior violates the patent; demanding too quick a response or too much money; and making deceptive or meritless assertions. Factors that suggest a legitimate patent assertion include commercializing the patented invention; being either the original inventor (i.e., not having bought the patent for assertion purposes) or an educational institution; and having successfully enforced the patent in court.

The law would allow those threatened by trolls to sue back and seek damages, even if no lawsuit has been filed. In other words, it helps those who are being shaken down and don't want to settle. That's a nice feature, but there are some reasons to be skeptical. It also allows the state Attorney General to go after patent trolls. While the law may scare of some patent trolls, I think Eric Goldman is right that a state-based solution is neither a good idea for this, nor is it probably legal. Patent law is a federal law, and federal preemption likely means that state laws that impact patents aren't allowed. This tries to hide it as a consumer protection law, which is an interesting strategy, but I could easily see this law being tossed out.

Of course, even before the law was officially on the books, it looks like Vermont's Attorney General has already sued a patent troll under existing consumer protection laws (raising questions as to why the new law is necessary). In this case, the troll is one we've written about a few times. Remember the series of rotating shell companies that had claimed that businesses who had a networked scanner need to pay $1,000 per employee? Yeah, that one.

The Vermont Attorney General claims that many of the statements made in the threat letters sent out by the rotating set of shell companies include "deceptive statements" and "deceptive practices" that violate consumer protection laws:

Defendant engaged in unfair trade practices in commerce in violation of the Vermont Consumer Protection Act, 9 V.S.A. § 2453(a) including:

a. Stating that litigation would be brought against the recipients, when Defendant was neither prepared nor likely to bring litigation;
b. Using legal counsel to imply that Defendant had performed a sufficient pre-suit investigation, including investigation into the target business and their potentially infringing activities, that would be required to justify filing a lawsuit;
c. Targeting small businesses that were unlikely to have the resources to fight patent-litigation, or even to pay patent counsel;
d. Sending letters that threatened patent-infringement litigation with no independent evidence that the recipients were infringing its patents;
e. Shifting the entire burden of the pre-suit investigation onto the small businesses that received the letters;
f. Propounding burdensome information demands on any business that claimed not to infringe the patents; and
g. Using shell corporations in order to hide the true owners of the patents, avoid liability, and encourage quick settlements.

Defendants engaged in deceptive trade practices in commerce in violation of the Vermont Consumer Protection Act, 9 V.S.A. §2453(a), by making deceptive statements in the threatening letters which would likely lead consumers to believe the following:

a. Defendant would sue the target business if they did not respond within two weeks;
b. Defendant would sue the target business if they did not pay money;
c. Defendant had a reasonable basis for identifying the target businesses as infringing its patents;
d. Subsidiary Shell LLCs were exclusive licencees able to enforce the patents;
e. Target companies were within the sending Shell LLC's alleged area of exclusivity;
f. Defendant's licensing program had received a positive response from the business community;
g. Many or most businesses were interested in promptly purchasing a license from Defendant;
h. Based on prior licensing agreements, the fair price of a license was between $900 and $1200 per employee;
i. Target businesses were receiving a third letter, which refers to two prior letters, when in many cases recipients had received no prior letters.

The lawsuit also claims that lawyer Jay Mac Rust is really the person who owns the patents via the company MPHJ. As you may recall, last month we wrote about Mac Rust after Joe Mullin at Ars Technica interviewed him in connection with the case. At the time, Mac Rust claimed that he was just one lawyer working for the owner of the patent, but who handled the "irate" recipients. So it's interesting to see the claim that he's really the guy behind MPHJ. As we've noted, there's long been an assumption that the use of shell companies is often done to hide the fact that it's the patent lawyers themselves who own the patents being used.

The use of consumer protection law in response to patents is an interesting strategy. I'm skeptical as to how well it will actually work in court, but there's no denying that many of the claims made in threat letters are, in fact, untrue and could be deemed deceptive (this kind of thing might work against copyright trolls as well). No matter what, this is going to be a key case to follow.

Filed Under: attorney general, consumer protection, jay mac rust, networked scanners, patent trolls, patents, scanning, vermont
Companies: mphj, paperless post

Attorneys General Upset That Craigslist Is Profiting From Procedure He Forced Craigslist To Put In Place

from the banging-your-head-on-the-virtual-wall dept

The grandstanding of some Attorneys General never ceases -- even when they created the "problem" they're now grandstanding against. Case in point: Connecticut Attorney General Richard Blumenthal and his crusade against Craigslist. Two years ago, Blumenthal blamed Craigslist for prostitution ads that appear on the site. Blumenthal, as the state Attorney General should know about the law, right? He should know that he has no legal basis for this complaint, and that under Section 230 of the CDA, Craigslist is not liable for the actions of its users. In fact, legal attempts to pin the blame for such ads on Craigslist have been quickly dismissed on just those grounds. Even more importantly, from a common sense standpoint, Blumenthal should realize that when police work with Craigslist in partnership, they're able to use it as an effective tool to track down lawbreakers who use the site.

But that doesn't get headlines.

Instead, Blumenthal, based on no legal basis whatsoever, used his soapbox (along with some other attorneys general) to get Craigslist to changing its policies on "adult" advertisements. Whereas, previously, those ads had been free, Craigslist now required that anyone putting up such ads pay for them with a valid credit card, eliminating many of the ads and making it much, much easier to track down whoever placed them in the first place. You would think that would make the AGs happy. Six months later, however, the AGs were still upset, and got Craigslist to change again, boosting the fee on such ads from $5 to $10 and reviewing more of the ads.

Almost all of these moves came in response to public posturing and baseless legal threats from Blumenthal. So what's he doing now?

He's apparently doing more public posturing and issuing more baseless legal threats, because Craigslist stands to make an awful lot of money from these ads -- the very same ads that Craigslist only started charging for because of Blumenthal's pressure:

"I believe Craigslist acted irresponsibly when it unilaterally decided to keep the profits from these posts," Mr. Blumenthal wrote in the letter...

Yes, and I believe Blumenthal acted irresponsibly when he put bogus grandstanding pressure on Craigslist to put in place the tollbooth in the first place. At what point does he recognize that Craigslist isn't the target here. It's the people using Cragslist to break the law -- and that Craigslist is more than willing to help law enforcement track down those law breakers?

Filed Under: attorney general, connecticut
Companies: craigslist