No Warrant, No Problem: The Government Can Still Get Your Data

from the privacy?-what's-that? dept

Pro Publica has done it again. They've put together a great report on how the government can usually get your digital data without bothering to get a warrant. On top of that, they line it up with what the law actually says about the subject. Here are just a couple examples, but check out the whole thing: Beyond phone records and location data, they explain how law enforcement can get IP addresses, emails, email drafts (treated differently than emails), text messages, general cloud data and social media information. And... the shorthand version is that the government can pretty much look at an awful lot of your data with very little judicial oversight.

Filed Under: data, government, privacy, warrant

Panama Considering Legislation That Allows The Copyright Office To Pursue Filesharers Directly -- And Keep All The Fines

from the somewhere-in-DC,-Lamar-Smith-experiences-inexplicable-arousal dept

From SOPA/PIPA to the Digital Economy Act to ACTA to the DMCA, there's no shortage of bad legislation built to serve various copyright-driven industries. But just when you thought you'd seen the very edge of how far legislators were willing to go, someone comes along and tops it.

Technollama brings news that Panama is attempting to raise/lower the "bad legislation" bar (not sure which direction the bar would actually be traveling...) with its Proyecto 510-2012 bill, dealing with copyright and related rights.

The 510 Bill gives new powers to an administrative branch of the Ministry of Commerce and Industry called the General Copyright Directorate (Dirección General de Derecho de Autor, henceforth DGDA). Unlike similar copyright administrative offices around the world, the DGDA will have the power to impose fines on infringers without prejudice of further criminal or civil actions.

It's exactly what it looks like: the Panamanian copyright office is being given the power to chase down filesharers and fine them up to $100,000 PAB ($100,000 USD). In addition, the "without prejudice" portion means that filesharers can still be pursued by rights holders, even if the government has already levied a fine.

The bill goes even further than this astounding bit of rent-seeking:

[T]he DGDA has the power to unilaterally haul any alleged infringer, ask them to mount a defence within 15 days, impose fines of up to $100k USD ($200k for re-offenders), and on top of that this person may still have another civil case against them added to the administrative fine. Adding insult to injury, they also have to pay for the publication of the fine so that everyone knows what a nasty pirate they are.

So, you have a government entity pursuing citizens for copyright infringement (a civil matter, or so it used to be...), an act which opens them up to further civil action from the rightsholders. With this kind of enforcement, the Panamanian creative industries should be rolling in extracted filesharer dough. Or so you would think, if this bit of wording wasn't present in the bill:

The funds accrued by the General Copyright Directorate from the fees for the services it provides and the fines imposed in the exercise of its powers, will be aimed at improving its operational infrastructure and to boost the performance of its officers, complementary to the funds that the State Budget reserves for the operation of the entity[...]. The amounts corresponding to each official, shall not exceed fifty percent (50%) of the total basic salary monthly remuneration.

That's right, none of it goes back to the rightsholders. These fines get fed right back into the system that levied them. Not even back into the government in general, but directly back to the DGDA. Wow. How could that possibly be abused?

This is what I think will happen if the law passes as it stands. The DGDA will immediately try to monitor all torrent use in Panama, be it legitimate or not, and all people identified with IP addresses will be summoned and summarily fined. After all, the institution and its employees will have a direct financial incentive to assume guilt. Then those same people will be sent again and again, as there will be clear incentive to fine re-offenders.

Well, that's sounds like all the fun of copyright trolls combined with the "answer to no one" power of the government all rolled up into big ball of perverse incentives. I suppose the government will turn these filesharers over to the rightsholders once it's drained them of money to toy with the drained corpse through civil proceedings.

Meanwhile, the industries seeking this sort of protection will find that no one has any money left to purchase their products, much less pay off another set of hefty fees. While this may provide the rightsholders with some sort of second-hand vindictive high, it's hard to see how this betters their financial situation in the least.

Technollama calls the legislation "toxic." It is. And more than that, it's completely perverse in every sense of the word. It hooks an agency up to an IV full of money and trusts it not to repeatedly press the "dispense" button. Sure, it may cut down on infringement, but once a government agency is hooked on steady income, it usually comes up with new (and worse) ways to keep the buzz going. The dollar amount of the fines will be ratcheted up and the definition of "infringing activity" will become broader, perhaps encompassing such maximalist wet dreams as embedded video. It's ugly, any way you slice it.

Filed Under: copyright, fines, government, incentives, panama

UK Government Censors Copyright Consultation Submission About How Awful Collection Societies Are

from the the-wrong-kind-of-evidence dept

When the UK Hargreaves Review of intellectual monopolies in the digital age came out last year, Techdirt noted that one of its innovations was an emphasis on basing policy on evidence. The fact that this was even notable shows how parlous the state of policy-making has become. One important way to gather evidence is through public consultations, and in the wake of the Hargreaves Review, the UK government conducted a major exercise in gathering views and information in this field.

The responses to that consultation have now been published -- all 471 of them. That's a surprisingly high number for what was once an arcane area of interest only to a few lawyers, and a measure of just how important the subject has become. On that Web page there's the following slightly unusual statement:

in the course of reviewing the responses received, it became clear that a small number of respondents had advanced criticisms or inappropriately criticised the activities of others in the sector. The Government has now carefully reviewed the submissions to establish any potentially defamatory material and has redacted any inappropriate or defamatory comments.

One of the people whose submissions were redacted is Andrew Norton. He's written a fascinating blog post detailing what exactly was taken out. The first and biggest redaction occurs in his answer to the following question:

What aspects of the current collective licensing system work well for users and rights holders and what are the areas for improvement? Please give reasons for your answers

Here's what the UK government published of Norton's response:

Almost no aspects work well for users or rights holders. The standard operating system for collecting societies is to demand all, demand often. There have been many cases in the recent past where agencies have gone above and beyond their mandate, and targeted people in shakedowns.

XXXXXXXXXXXXXX

In short, what aspects work well? None. What needs to be done? First of all, an audit needs doing, to ensure compliance with the law. Then, shut them down. At the very least start a new, independent one with significant oversight, because this one just DOES NOT WORK.

So what exactly did the UK government think was "inappropriate or defamatory"? This, apparently:

… and targeted people in shakedowns.

In the past few years, there have been reports of UK Collection societies calling up small businesses, and threatening them if they hear music in the background (https://www.techdirt.com/articles/20090202/0128383597.shtml), carollers, charities (http://torrentfreak.com/charity-forced-to-pay-copyright-police-so-kids-can-sing-071209/) have been targeted for fees, as have schools (http://torrentfreak.com/uk-copyright-cops-target-kids-schools-community-centers-081015/). Even people who sing to themselves have been targeted because they're doing so at work (http://news.bbc.co.uk/2/hi/uk_news/scotland/tayside_and_central/8317952.stm) and let's not forget their targeting of employers like Kwik Fit (http://news.bbc.co.uk/2/hi/uk_news/scotland/edinburgh_and_east/7029892.stm) and even the police (http://torrentfreak.com/police-chief-faces-high-court-anti-piracy-action-120608/). Incidentally, The EU Court of Justice just ruled that in cases like these, there are no fees to pay (http://euobserver.com/871/115621#.T2cCyGfYteQ.twitter)

That's just one of three such paragraphs, all linking to external sites. As you may have noticed, the first link above is to Techdirt, and the others are to sites like the BBC, El Pais, Die Welt and TorrentFreak. None of them is defamatory, since they are all reporting on established facts. This means that the UK government must think that these facts are somehow "inappropriate". That's a pretty extraordinary state of affairs. The UK government has taken it upon itself to hide what UK collection societies get up to, in an absolutely key consultation, one of whose purposes is surely to get the facts about what's happening in this sector.

What makes this censorship of linked information even more striking is that alongside the main consultation document itself (pdf) the UK government also published guidance on providing "open and transparent evidence" (pdf), where we read:

When you draw on other work, a reference, and link to the original work should be included. References to other people’s work should have the relevant web link

That is, the guidelines specifically ask for precisely the kind of scrupulous linking to sources that Norton provided, and yet the UK government censored them all because it didn't like the unequivocally dire situation they delineated.

This does not augur well for the results of the consultation. It suggests that the UK government is happy to gloss over one of the key failings of the present copyright system -- the UK collection societies -- and is seeking to present a very partial view of the real situation. It also undermines confidence in the whole consultation process: if the UK government has arbitrarily redacted true information that it finds inconvenient once, what's to say it hasn't done so multiple times elsewhere? If people aren't allowed to provide all the evidence what's the point of conducting a consultation in the first place?

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Filed Under: censorship, collection societies, comments, government, redacted, uk

Should Software Created By The Federal Gov't Be Open Source Licensed... Or Public Domain?

from the debate-time dept

Anil Dash recently alerted me to a White House petition to get "government-developed software" under an open source license for the sake of allowing others to build on it and approve it.

Top Three Reasons to Mandate Open Sourcing of Custom Federal Software:

Openness: Open Sourcing ensures basic fairness and transparency by making software and related artifacts available to the citizens who provided funding, consistent with the President’s 2009 declaration that “Information maintained by the Federal Government is a national asset.”

Economic Multiplier: Making Provides an economic stimulus by serving as the raw material that supports a competitive software development and services industry.

Supports the Federal “Shared First” Agenda: Maximizes value to the government by significantly increasing reuse and collaborative development between federal agencies and the private sector, consistent with the current Office of Management and Budget (OMB) “Shared First” initiative.

While I certainly share the sentiment expressed in those reasons, I got into a bit of a debate on Twitter about this, because existing law (i.e., 17 USC 105) already says that "Copyright protection under this title is not available for any work of the United States Government." In other words, anything created by the US government is already public domain. Of course, public domain and open source are two different things -- but if something is public domain, it could preclude the ability to then slap a license on it, since those licenses are effectively built off of copyright, and claim specific limitations, which the government might not be able to actually claim over the software. Of course, they don't always seem to follow this, as we noted recently in our post about the NSA open sourcing its database technology, Accumulo.

The flip side, of course, is that even if something is public domain, the government could still keep it a secret -- as is the case with many Congressional Research Service (CRS) reports. So you can see the argument for pushing for an open source license, rather than just an admission of public domainness. Furthermore, as amac helpfully pointed out, there are significant exceptions to the rules saying the feds can't copyright (for example, contractors or just those funded by the government can copyright their works and then even assign them to the federal government). Furthermore, it may only be seen as public domain in the US, rather than elsewhere.

And, on top of that, Dash made a reasonable point that his focus is on advocating pragmatism in dealing with this -- and he believes that pushing for open source licenses is, perhaps the most pragmatic.

I don't disagree with Dash, but I fear the idea of setting up the belief that the federal government needs to set a particular license for a work to be useful to the public to build on. It only increases the idea that public domain works can be "owned" and limited in ways that is simply not true. I would think that a much more useful solution is a two-fold one: first an admission that government-created software is, in fact, public domain and second, a policy decision and statement that not only will such works be public domain, but, as a matter of standard procedure, that the federal government will also release the code for others to build on with no particular limitations and with encouragement to then share the results in kind.

Filed Under: copyright, government, open source, public domain, software

Digital Native Government Agency Embraces The Power Of Open Source

from the open-source-for-open-government dept

The Consumer Financial Protection Bureau is a young federal agency (founded in July 2011), and as such has a history of getting it when it comes to the digital world. They launched by taking online suggestions, they run an active blog, and now they've revealed their internal software policy and its dedication to open source, both as a user and a contributor (emphasis in the original):

We agree, and the first section of our source code policy is unequivocal: We use open-source software, and we do so because it helps us fulfill our mission.

Open-source software works because it enables people from around the world to share their contributions with each other. The CFPB has benefited tremendously from other people’s efforts, so it’s only right that we give back to the community by sharing our work with others.

This brings us to the second part of our policy: When we build our own software or contract with a third party to build it for us, we will share the code with the public at no charge. Exceptions will be made when source code exposes sensitive details that would put the Bureau at risk for security breaches; but we believe that, in general, hiding source code does not make the software safer.

We’re sharing our code for a few reasons:

• First, it is the right thing to do: the Bureau will use public dollars to create the source code, so the public should have access to that creation.
• Second, it gives the public a window into how a government agency conducts its business. Our job is to protect consumers and to regulate financial institutions, and every citizen deserves to know exactly how we perform those missions.
• Third, code sharing makes our products better. By letting the development community propose modifications , our software will become more stable, more secure, and more powerful with less time and expense from our team. Sharing our code positions us to maintain a technological pace that would otherwise be impossible for a government agency.

The CFPB is serious about building great technology. This policy will not necessarily make that an easy job, but it will make the goal achievable.

While governments around the world have been moving to embrace open source for a long time, adoption has been pretty slow in the U.S., though it is steadily growing as more federal agencies revise their guidelines and regulations, and some states pass laws requiring the consideration of open source options. But as a new agency that actively pursues the opportunities presented by technology, the CFPB is ahead of the curve. TechCrunch's Scott Merrill got additional details, like the fact that they are trying to lead by example:

I asked Willey what kind of advocacy — if any — the CFPB was doing (or planning to do) for open source software within the government. He shared that they’re using GitHub Enterprise internally, and have fielded a number of questions from other agencies about how they procured that and set it up. “It’s hard for us to have these conversations with other agencies without implicitly advocating an open source philosophy,” Willey told me. “So instead of trying to sell open source to other agencies on principle, we’re finding that it’s a lot easier to prove the value of open source software by showing our colleagues the great results it has gotten us.”

I was curious whether the CFPB’s policy is the natural result of more digital natives taking government jobs. According to Willey, it was “simply the byproduct of building a government organization from scratch in the information age: we are able to craft our technology philosophy with a modern perspective.”

It's good to see people in government placing an emphasis on staying at the forefront of technology, especially in terms of open source. The entire philosophy of open source is perfectly matched to the ideals of a transparent, accountable government that serves and belongs to its citizens, and hopefully the CFPB will lead more agencies in that direction.

Filed Under: cfpb, github, government, open source, software

Dutch Government: Make European Copyright Exceptions More Flexible

from the didn't-see-that-coming dept

Well, here's a turn-up for the books. At a time when the European Commission is insisting that the copyright ratchet should be tightened up a few notches by bringing in ACTA, with its perilously vague terms that potentially criminalize even low-level acts of online sharing, here's the Dutch government planning to go in the opposite direction:

The Dutch government wants to change copyright law so new media users can continue to do "creative remixes" of protected content. [It] will no longer wait for the European Commission to find a compromise.

The Dutch government made that clear at a conference it had organized, entitled "Towards Flexible Copyright," where one of the speakers was Bernt Hugenholtz of the Dutch state committee on copyright law. On the subject of YouTube, he said:

"Many of the videos we find there are creative remixes of material protected under copyright. They're mostly for laughs or political commentary, or they're simply absurd. If we applied the law today strictly, we would not be allowed to do these things."

Also speaking at the conference, Netherland's Deputy Justice Minister Fred Teeven said he was exploring "a more flexible system of copyright exceptions that would also work in a European context." One solution would be to replace the limited set of European exceptions to copyright, which are laid down by law and allow no flexibility, with a system more akin to US fair use, which gives courts a certain leeway to determine what exactly is permissible.

Of course, that's an eminently sensible thing to do, not least because it wouldn't require a radical overhaul of European copyright, just some tinkering at the edges. Despite that, the idea is likely to meet stiff resistance -- and not just from the industry dinosaurs that reflexively resist any change that might reverse the copyright ratchet by even a few degrees.

At a time when the European Commission is hell-bent on getting ACTA ratified by the European Parliament, it won't take kindly to national governments going their own way on exceptions. That's particularly the case since the Commission is also drafting a new directive specifically designed to harmonize EU copyright law.

The Dutch government will be well aware of all those countervailing pressures, which makes this unexpected move all the more bold. Let's hope it inspires other EU countries to lend their weight to this much-needed initiative to make European copyright laws fit for the digital age.

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

Filed Under: copyright, exceptions, flexibility, government, netherlands

Why The Government Doesn't Get Technology

from the well,-one-of-many-reasons dept

There's been lots of talk in the past few months about the sheer ignorance of those in goverment on technology issues -- in some cases where elected officials are gleefully, willfully ignorant. Some of them are just out of touch (or old, old-fashioned and have no desire to be in touch). Others, however, do seem to want to keep up on the latest technology. But there's a problem there. The technology the government gives them is so out of date, in many cases they don't understand the technology because they don't know the technology. Now, to be fair, there actually are some government staffers who are really clued in, and who understand all of this stuff deeply. In fact, I recently met some federal government IT staffers, who were quite well informed. But those tend to be the kind of "tech native" folks who would follow technology no matter what, even if their jobs didn't depend on it. Those are the tech natives, the early adopters, etc.

But the problem is in the much larger group outside of the "tech native" people. It's in the group of folks who want to know about and understand technology, but don't follow it closely. And the big problem here is that the government makes it exceedingly difficult to get new technology in front of these people. Clay Johnson recently had a great post about how this became clear, quite graphically, among techies in the federal government. They'd have two computers on their desks -- an ancient one that the government gave them (with a screensaver showing, because it wasn't actually being used) and a late model Macbook... that they had bought personally to bring into the office to actually do some work. He found out that just the process of buying an official new computer through the government procurement system required at least an 18-month wait. That may seem like a typical "cobbler's children have no shoes" issue, but the implication for those making our laws is tremendous:

I think this "two computer problem" is a symptom of a much larger issue. For those of you that are unfamiliar with Moore's law, it's general principal is that technology gets twice as good every 18 months. So if it takes government about 18 months to do anything expensive (by expensive I mean: something that costs more than a few thousand dollars) with technology, we've built in that government must be at least one cycle behind the private sector when it comes to Moore's law. Compounding this is the sunk-cost fallacy: In order to stay just one cycle behind the rest of society, government would have to begin the purchasing process again as soon as new computers hit desks. But they won't do that, because "you just got a new computer!"

Thus, a great gap has built up, not just with the pace of work, but in the access to technology. But the thing that makes this frightening is that Moore's law isn't linear, it's exponential. With every cycle of Moore's law, the difference between two points on the curve doubles. Being one cycle behind the curve 18 months from now is twice as bad as it is today.

This is a big problem. Understanding where innovation is heading is a difficult enough business when you're deeply immersed in today's technologies. But it's ridiculously more difficult when you're basing your understanding of where technology will be tomorrow... on a knowledge of technology that is, in all reality, multiple generations out of date.

You can understand, of course, how things got this way. There are budgets and spending limitations that the government has to deal with -- and since it's such a massive bureaucracy, things take time and have to be checked, double checked, triple checked, sent out for bid, quadruple checked, etc. But it really does show a symptom of how things get to be this way with politicians making bad laws that show an ignorance of technology. They don't use it. They don't comprehend what it means. At best, they think it's just a tool, like a hammer, rather than something much more powerful than that.

Filed Under: bureaucracy, government, technology

A Good Step: House Oversight Committee Puts Hearing Archive Video Online

from the nicely-done dept

The House Oversight Committee in Congress has done a cool thing that pretty much every committee in Congress should have done long ago: put a ton of its archived video of Committee hearings online. You can see them all on YouTube. The actual project was done by Carl Malamud -- and as we've noted in the past, if Malamud is involved in a project, it's almost certainly a good thing. Malamud is a leading force in terms of open government and government transparency, and it's great that Rep. Darrell Issa and the House Oversight Committee worked with him on this project. All in all, they put up 1,139 videos, ranging back as far as March of 1993 (and right up to December 16th of 2011). This is a "pilot project," so hopefully it means the same thing will be done with other Congressional video as well.

Filed Under: carl malamud, congress, darrell issa, government, open access, oversight committee

Candidates Starting To Turn SOPA Into A Campaign Issue: Karen Kwiatkowski Goes After Bob Goodlatte

from the don't-mess-with-the-internet dept

We recently pointed out that it was likely that candidates running against SOPA supporters (especially in the House) would start using SOPA as a campaign issue -- which could draw the attention and support of the netroots community, like the folks at Reddit, who are just itching to support candidates who oppose SOPA supporters. Well, here's one they might want to check out. Karen Kwiatkowski is running against Rep. Bob Goodlatte in Virginia, and is using SOPA as a key campaign talking point, noting accurately that Goodlatte both was in charge of putting SOPA together for much of the year (though, towards the end, Lamar Smith took over) and that he's become Smith's go to guy in ushering the bill through the House. Karen sees this as a big problem:

Bob Goodlatte spent 2011 CO-AUTHORING and INTRODUCING the Stop Online Piracy Act (SOPA). SOPA makes the federal government EVEN BIGGER.

If passed, SOPA will dramatically increase the federal government’s role in our lives, online and offline. It authorizes the Attorney General to block websites accused of copyright infringement from search engines and ISPs. And it allows the Attorney General to “commence action” against them without a court order. SOPA will result in fewer independent websites, blogs, media sources, start-ups and tech industry jobs. And as a result, lower quality.

How will it do this, you ask? Simple. It increases the cost of doing business for U.S. tech firms, payment network providers and advertisers.

In addition to increasing legal and compliance costs for small businesses, it also increases the size and scope of the federal government.

SOPA expands the State Department, Attorney General's Office, Copyright Office and other agencies and creates a new set of bureaucrats. One we have never heard of before is the “intellectual property attache.” IP Attaches will be trained and appointed to regional bureaus, embassies and diplomatic missions throughout the world. And they work with copyright holders at the expense of taxpayers.

With the Reddit community so actively looking for candidates to support, perhaps it's time to check out Karen.

Filed Under: bob goodlatte, campaign issue, free speech, government, karen kwiatkowski, sopa