stories filed under: "loopholes"

DOJ's New Restrictions On Surveilling Journalists Contain Exception For National Security Letters

from the super-secret-loopholes dept

Mon, Jan 25th 2016 3:24am — Tim Cushing

In 2013, it was revealed the DOJ had added First Amendment-trampling to its always-cavalier treatment of the Fourth Amendment by gathering journalists' phone records. Under the guise of investigating leaks, the DOJ crossed over into totalitarian territory. Following the backlash, the DOJ "revised" its rules on surveilling the press.

How much revision actually took place is still a secret. The Freedom of the Press Foundation sued the DOJ last year for its refusal to release its secret rules on surveilling journalists. The DOJ released some documents but they were redacted into near-complete opacity, prompting the Foundation's FOIA litigation.

According to information obtained since the meeting between then-DOJ head Eric Holder and two of the targeted press entities (AP and Fox), limitations were placed on the agency's use of subpoenas to obtain information on journalists. But these new limits are mostly meaningless because they include a sizable loophole for the FBI's favorite paperwork. David McGraw at Just Security has more details.

The revised guidelines, released early in 2015, were intended to strengthen the protection afforded news gathering.

Fairly read, the revised guidelines do that — but even as the revisions were being hammered out in discussions between DOJ and representatives of the press, DOJ made clear that the guidelines would not apply to NSLs. It is a carve-out that cuts deeply.

It is not just that NSLs, typically used to obtain communication records from third parties, have none of the judicial oversight that attends to subpoenas. There is also the damaging impact of secrecy. An important element of the DOJ subpoena guidelines is providing news organizations with notice when their records are sought, subject to some specified exceptions. Notice gives an opportunity not only to make legal objections in court, but also to invite public scrutiny of government overreach.

The use of NSLs means everything is hidden and will remain so for years. Those targeted won't be informed of the government's actions until years later, if at all. The FBI has a long history of abusing NSLs, and there's no reason to believe the new guidelines the DOJ put in place will act as a deterrent towards future abuse.

NSLs operate in an accountability black hole thanks to their inherent secretive nature. The ongoing lawsuit against the DOJ has resulted in more released documents, but very little that details the use of NSLs for spying on journalists.

DOJ has said that the NSLs are “subject to an extensive oversight regime.” But it is impossible to know whether the kinds of procedures baked into the subpoena guidelines — for instance, a showing by the prosecutor of proven need and a lack of alternative ways of getting the information sought — are mirrored in NSL guidelines. If they are not, there is every incentive for investigators to look to NSLs and avoid the restrictions of the subpoena process. (In my experience, leak investigations overwhelmingly arise from reporting about national security, making them NSL-eligible.) But the classification of the NSL rules takes meaningful discussion of even such a threshold concern off the public agenda.

One of the few things that can be confirmed from the released documents is that the FBI believes the new guidelines have zero effect on National Security Letters. Beyond that, the DOJ has released nothing that would further clarify the rules put into place after its surveillance efforts were exposed. The Freedom of the Press Foundation has posted some of the documents it has liberated via litigation and they contain "useful" information like:

and:

Without further information, the released documents appear to show the FBI is issuing NSLs to obtain journalists' records. At the very least, they confirm the FBI will use NSLs to route around restrictions. And as long as it does that, the First and Fourth Amendment will just have to take a backseat to the national security concerns cited in documents no one will be able to examine for years to come.

Filed Under: doj, journalists, loopholes, national security letters, nsls, surveillance

19 Comments

The European Union's New Net Neutrality 'Protections' Are A Joke

Broadband

from the blind-and-beholden dept

Tue, Oct 27th 2015 9:33am — Karl Bode

After months of negotiations (read: ISP lawyer and lobbyist rewrites), the European Union has voted to approve new net neutrality rules (pdf) that for many nation states may be worse than having no net neutrality protections at all. As we've noted, the rules ignore zero rating, carve out massive loopholes for "specialized services," "class-based discrimination," and even include provisions allowing ISP throttling and discrimination provided it's addressing phantom congestion that hasn't even happened yet. In short, these rules effectively protect ISPs looking to creatively violate net neutrality, not European consumers.

European Parliament members completely ignored last-minute suggested amendments that would have closed these loopholes. They also completely ignored opposition to the rules by the likes of BitTorrent, EyeEm, Foursquare, Kickstarter, WordPress, Netflix, Reddit, Transferwise, Vimeo, the EFF and Tim Berners-Lee (who penned a lengthy blog post outlining his opposition to the rules). Similarly, only 50 MEPs out of the European Parliament's total of 751 could be bothered to even attend a superficial "debate" preceding the approval vote.

These pathetic protections were accepted in part because they were sold as part of a Telecoms Single Market package that was to include significant abolition of steep European roaming fees on wireless networks. Many MEPs didn't fight harder on net neutrality because they thought they were at least getting some decent wireless market reform. But as German Pirate Party MEP Julia Reda notes, even the roaming provisions appear to have been notably gutted from the final offering:

"Despite all this, the regulation was passed unchanged by a majority in plenary today, a decision that may have been influenced by the public’s attention for the provision on the elimination of roaming surcharges that was included in the legislative package. Unfortunately, the Telecoms Single Market package doesn’t deliver in that respect either. The plan to place an end to roaming surcharges in Europe has been adopted pending a review of pricing and consumption patterns. Even if the review is completed by the 15 June 2017 deadline, roaming surcharges will only be suspended up to a ‘fair use’ limit beyond which they still apply and continue to hinder the breaking down of barriers within Europe."

In other words, even the carrot on a stick used to lure European Parliament members into voting for bad net neutrality rules wound up being rotten. Of course, European ISPs shouldn't pat themselves on the back just yet. The EU's flimsy rules strongly resemble the original, pathetic net neutrality rules passed here in the States in 2010. Those rules, all but written by AT&T, Verizon and Google, were so obviously useless that consumer outrage forced the government to revisit an issue they honestly believed they'd put to bed. The U.S. now has notably tougher net neutrality rules than ever, assuming they aren't dismantled by the courts.

As EU member residents realize their new net neutrality rules actually protect ISPs, you'll likely see a strong push for the entire issue to be revisited down the road, much to the chagrin of ISP lawyers who believe they've just put the issue to bed.

Filed Under: broadband, eu, eu parliament, europe, loopholes, net neutrality, roaming, telcos, zero rating

The EU Prepares To Vote For Awful, Loophole-Filled Net Neutrality Rules

Broadband

from the semantic-overdrive dept

Mon, Oct 26th 2015 3:34am — Karl Bode

On Tuesday, the European Union is expected to vote on new net neutrality rules, the end result of months of debate between the European Commission, European Parliament, and the EU Council. Of course just like here in the States, heavy lobbying pressure by ISPs has the lion's share of politicians supporting loopholes that will let giant ISPs do pretty much everything they want. The rules at first glance look very similar to the flimsy, 2010 rules proposed in the U.S. back in 2010 -- allowing ISPs to engage in anti-competitive shenanigans -- provided the carrier vaguely insists it's for the safety and security of the network.

Like in the States, the rules prohibit the outright blocking of websites and content (something no ISP in its right mind would do anyway). And while that's a marginal improvement for some EU members, it's a step backward for places like the Netherlands, Slovenia and Norway where tougher rules currently exist.

As Stanford Professor Barbara van Schewick notes, the rules fail terribly on four major fronts. One, they fail to prevent or even police the zero rating of apps, something we've repeatedly noted lets companies with deeper pockets pay to have their traffic exempted from usage caps -- immediately putting smaller companies and non-profits at a disadvantage. This has been something American consumers have had a hard time understanding, since such systems are usually framed as "1-800 numbers for data" or the data equivalent of free shipping. But van Schewick does a good job explaining the bad precedent set:

"Research shows that zero-rated applications are far more attractive to users than those that are not. In a study commissioned by the CTIA, 74% of users said that they would be more likely to watch videos offered by a new provider if the content did not count against their monthly bandwidth caps. When the online magazine Slate experimented with zero-rating, it told some users that the podcast did not count against their cap. People who were offered the zero-rated podcast were 61% more likely to click on the link. Thus, zero-rating has the same impact as technical discrimination: it gives ISPs power to make certain applications more attractive than others and pick winners and losers on the Internet."

Another problem, which we've noted previously, is that the EU rules carve out huge semantic exemptions for "specialized services," which then aren't really properly defined. The end result are bigger companies paying to have their traffic given priority, those companies passing on these charges to consumers, while, and like zero rating, smaller companies and non-profits are being forced to putter along on the second-class fringes of the Internet:

"If established companies can pay so that their content loads faster or does not count against users’ monthly bandwidth caps, then those who can’t pay don’t have a chance to compete. Many of today’s most popular applications — Google, Facebook, Yahoo, eBay — were developed by innovators with little or no outside funding. In a world where such innovations are stuck in the slow lane, they would never have seen the light of day."

Van Schewick also notes the rules allow for "class-based discrimination," or the throttling of entire classes of traffic like BitTorrent -- regardless of whether congestion actually makes it necessary. As we've seen historically (with say Rogers in Canada), when encryption prevents ISPs from using deep packet inspection to snoop on user packets, they'll sometimes just throttle all encryption for good measure. But van Schewick also notes that class-based discrimination can also be abused to hinder competition:

"When ISPs are free to define classes, they have a lot of discretion to discriminate against certain applications. ISPs could use this power to deliberately distort competition. For example, an ISP could offer low delay to online gaming to make it more attractive, but it could decide not to offer low delay to online telephony because that would allow Internet telephony to better compete with the ISP’s own telephony offerings. Although both services are sensitive to delay, ISPs could argue that there are other, technical differences that justify distinguishing between them."

Most of these are semantic loopholes we've seen time and time again in countries trying to get some basic rules of the neutral road on the books. But give the EU telcos credit; they've managed to convince European regulators into a special exemption I'd not seen yet -- one that allows them to engage in anti-competitive behavior -- just as long as they argue it was necessary to thwart congestion that hasn't even happened yet:

"The proposal allows ISPs to use the same tools to prevent 'impending' congestion. Since the meaning of 'impending' is not clearly defined, this provision opens the floodgates for managing traffic at all times. It makes it easier for ISPs to discriminate among classes of applications even if there is no congestion, using the justification that congestion was just about to materialize."

Again, you'll notice a theme with all the loopholes: they allow ISPs to engage in all manner of bad behavior just as long as they provide some semantically-rich, faux-technical excuse justifying the action. This is exactly what the U.S. FCC did back in 2010, and it resulted in an unprecedented public backlash and a demand for better (but still not perfect) U.S. rules. Granted this is all easily fixed, and EU consumer advocates have offered a list of loophole-closing amendments (pdf) that the majority of European Parliament members (376 of the 751) need to adopt ahead of Tuesday's vote if they want the rules to actually mean anything.

Filed Under: broadband, eu, europe, loopholes, net neutrality, zero ratings

Verizon's Screwing New Jersey Even Harder Than Previously Believed

Broadband

from the regulatory-capture dept

Thu, Sep 17th 2015 6:12am — Karl Bode

We've previously discussed how in 1993 Verizon conned the state of New Jersey into giving the telco all manner of subsidies and tax breaks in exchange for a promise to wire the majority of the state with symmetrical fiber. Fast forward to 2015, most of New Jersey remains on aging DSL, and the state decided it would be a wonderful idea to simply let Verizon walk away from its obligations. Of course this isn't new: Verizon's regulatory capture allowed it to do the exact same thing in Pennsylvania, and it's currently busy trying to dodge New York City FiOS build out requirements as well.

But apparently, New Jersey is getting screwed harder than state residents even knew. In addition to the sham 1993 agreement, Verizon got New Jersey officials to sign off on a 2006 statewide franchise agreement that also let the company wiggle out of FiOS deployment obligations. Essentially, Newark and Fulop Mayors began noticing that many buildings in their cities were waiving their right to have FiOS installed, something not happening in more affluent areas:

"Mayor Steven Fulop of Jersey City and Mayor Ras Baraka of Newark are expected to call a press conference to discuss whether Verizon is fulfilling its obligations under the act. Public records show that 21,392 different properties in Newark have waived their access rights under the franchise agreement, opting out of any right to FiOS availability. In Jersey City, that number climbed to 25,311, nearly a fifth of the city’s properties. In richer municipalities like Trenton, Weehawken, and Hackensack, that number never climbed above 3,000."

Verizon's 2006 franchise agreement required that the telco make its fiber-based FiOS service available to New Jersey's 70 densest municipalities, including poor areas in Newark and Jersey City that might not otherwise see coverage. But Verizon appears to be abusing a loophole in the franchise agreement that allows it to add buildings to an acceptable "waiver" list of exemptions should Verizon run into trouble during installs. But Verizon appears to be making it intentionally difficult for landlords in poorer cities to successfully contact and schedule installs with Verizon:

"What we understand the practice to be is that, if you're in a wealthy high-rise next to the water in Jersey City, they will bend over backwards trying to get into that building," says Seth Hahn of the Communication Workers of America union, which has supported the mayors in their efforts to get more cable laid. "But if you live on the other end of the tracks, they'll send you a letter saying, 'We'd like access to your building.’" After a labyrinth of phone calls and offerings, the landlord will often end up on a waiver list without realizing it, Hahn says."

None of this is to say landlords can't be difficult. In a 2013 PSC filing with the state of New York (pdf), Verizon claims many landlords refused the telco access to building infrastructure, and some even tried to charge the telco for building access. But looking at the data, it seems somewhat obvious that there's a big discrepancy among waiver totals in poorer cities: Verizon Waivers

Now this could be coincidental, but given Verizon's history on this front, claims that Verizon's using landlords as a bogeyman to justify failure to adhere to obligations seem very likely. You'd need to investigate to be sure, but since New Jersey is already pretty lax on holding Verizon accountable, it's painfully unlikely that the state will ever bother. And letting Verizon get away with this kind of stuff isn't unique; this same story plays out in dozens of states nationwide. Repeatedly.

But the core of this problem is again regulatory capture and these statewide TV franchise agreements. The new laws were pushed by AT&T and Verizon in dozens of states around ten years ago, and were quickly rammed through by campaign-cash soaked state legislatures under the promise of new jobs and lower TV prices thanks to increased competition. But most if not all of the agreements were written by telco lobbyists and lawyers. As such, most of them are basically phone company wishlists, and in some places like Wisconsin, went so far as to gut all consumer protections and even some eminent domain rights.

So yeah, if you didn't realize it already companies like AT&T and Verizon all but own many state legislatures, as evident by the fact they literally write the laws governing their behavior. The end result of that may not be surprising, but the fact that we never seem to learn from decades of this kind of behavior should be.

Filed Under: fiber, fios, fulsop, loopholes, new jersey, newark, poor, waivers
Companies: verizon

24 Comments

Flimsy Last Ditch Effort To Derail Real Net Neutrality Protections Launches In Congress

Broadband

from the let's-play-make-believe dept

Tue, Jan 20th 2015 7:54am — Karl Bode

With Title II based net neutrality rules pretty much a sure thing, the mega-ISPs have been engaged in a last-ditch attempt to derail the FCC ahead of an expected February 26 announcement and vote. This has included significant pressure on lawmakers to rewrite the Communications Act with a core focus on hamstringing the FCC by eroding both their authority -- and their budget. ISPs are also pushing well compensated Congressfolk to pass new, weaker neutrality rules in an effort to preempt tougher Title II provisions.

At the vanguard of this latter effort sit Senator John Thune and Representative Fred Upton. The two have been busily firing up an utterly adorable stage play the last week in which they profess to love net neutrality so much, they're starting a "public conversation" about new, bi-partisan neutrality rules they hope to pass. As part of this campaign, the two took to the Reuters op/ed page last week to convince the public that while they once saw neutrality rules as a "solution in search of a problem," they now think we need tough, comprehensive, bipartisan rules crafted after a painstaking public conversation:

"In the coming days, we plan to pursue a public process to draft and enact bipartisan legislation that would protect the open Internet. We hope FCC Chairman Tom Wheeler and the public will join Congress in working to build and enact a shared set of principles that will protect Internet users, promote innovation, encourage investment — and withstand legal challenge.

We have made this an early priority of this Congress, demonstrating we can come together on a bipartisan basis to protect the vitality of the Internet — now so indispensable to our economy and way of life. Enduring, long-term protections for our digital freedoms are something we should all support."

Clearly this is an amazing, unprecedented example of Congress working through its traditional partisan dysfunction and coming together to ensure the Internet is protected from the lack of last mile competition, nurturing a more robust Internet economy for generations to come. Just kidding. It's all bullshit.

What's actually happening here is Thune and Upton are trying to force through a law written by ISP lawyers that is actually weaker than the original FCC rules AT&T and Comcast supported (but Verizon sued to overturn). By "public conversation," they mean a series of public hearings in which the usual assortment of think tankers, fauxcademics, sock puppets and other ISP-payrolled policy folk gush over the proposal as a more "sensible" solution than Title II. Except when you actually bother to read their proposal (pdf), you'll note that the rules are so stuffed with loopholes, they fail to protect net neutrality whatsoever.

The bill's language leaves the FCC with less flexibility and authority to enforce net neutrality than ever before. It exempts anything having to do with copyright infringement, allows prioritization of a company's own content (provided payments aren't made), doesn't address discrimination via access charges, and has a painfully ambiguous definition of "reasonable network management." It also fails to cover the areas where the most important anti-competitive gatekeeper shenanigans are occurring right now: usage caps, payment schemes to bypass those caps (like AT&T's Sponsored Data), and interconnection.

Consumer groups like Public Knowledge note the proposal only prohibits the kind of ham-fisted offenses ISPs were never even considering (blocking websites or services outright). Otherwise it's a giant wishlist for all of the "creative" gatekeeper pricing efforts carriers have been cooking up for several years, while leaving the FCC largely powerless to protect consumers from them:

"For example, these principles would not have prevented AT&T from limiting FaceTime to particular tiers of service – as it tried to do in 2012. It would not address discriminatory use of data caps, such as Comcast has used to favor its own streaming content over that of rivals. It would not address potential issues arising at Internet interconnection, the gateway to the last mile. Even worse, by eliminating any flexibility on rulemaking or enforcement, the bill would prevent the FCC from addressing any new forms of discrimination and threats to openness that arise."

Still, some folks in the press were impressed that neutrality opponents were striking a "conciliatory note," seemingly portraying Thune and Upton as courageous for reaching across the aisle. That's giving this effort way too much credit, as they're just pantomiming according to a provided script. Worse, the two discard the last four years of progress in net neutrality discussions by actually making their proposal weaker than the rules crafted with Google, Verizon and AT&T's heavy participation in 2010. Thune and Upton's efforts are little more than a mule in a dress trying to do a Marilyn Monroe impression, and it's huge step backward for those interested in meaningful neutrality protections.

Filed Under: broadband, congress, fcc, fred upton, isps, john thune, loopholes, net neutrality, title ii, title x

Like The NSA And GCHQ, Germany's Foreign Intelligence Agency Uses A Legal Loophole To Spy On Its Own Citizens

Privacy

from the well,-fancy-that dept

Wed, Dec 3rd 2014 1:12am — Glyn Moody

One of the striking features of the responses to Edward Snowden's leaks about the snooping being carried out by the NSA and GCHQ is the insistence that everything is, of course, quite "legal." But gradually, it has emerged that this "legality" is achieved through the use of loophole after loophole after loophole after loophole. Now it has been revealed that Germany's intelligence agency, the BND, has also been using this trick to enable it to spy on its own citizens -- something that was assumed to be off-limits for it: The agency, known by its German acronym BND, is not usually allowed to intercept communications made by Germans or German companies, but a former BND lawyer told parliament this week that citizens working abroad for foreign companies were not protected.

The German government confirmed on Saturday that work-related calls or emails were attributed to the employer. As a result, if the employer is foreign, the BND could legally intercept them.
This latest story in the Guardian adds to the impression that widespread domestic surveillance is taking place because of a willful disregarding of the rules through the use of these loopholes. Maybe one way to start to rein in spy agencies would be to insist that they followed the spirit as well as the letter of the law -- and if they don't, to bring in even more stringent definitions of permissible activities in an attempt to close as many of these gaping loopholes as possible.

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

Filed Under: bnd, loopholes, privacy, surveillance

10 Comments

Time Warner Cable's Contractual Loophole Allows It To Tell Local Politicians It Has Received Zero Complaints

Failures

from the which-is-the-least-likely-thing-to-ever-have-happened dept

Tue, Apr 22nd 2014 5:39am — Tim Cushing

How plausible is it for a company that routinely ranks at the bottom of customer satisfaction surveys to claim it has had "no complaints?" Time Warner Cable did exactly that on its way to extending its franchise agreement with Keene, New Hampshire through 2023. Broadband Reports has the details:

Last month in Keene, New Hampshire, the Keene City Council was voting on whether to add a second local channel (which would give the city more revenue) through Time Warner Cable. In exchange, Time Warner Cable wanted to extend the franchise agreement with the city for an additional five years, or the year 2023. While the rest of the council agreed to give Time Warner Cable the extension, one Councilor had a bit of an issue with the way that Time Warner Cable was running their business.

Even though the Council voted 4-1 in favor of the second channel, Councilor Terry M. Clark expressed his disappointment with Time Warner Cable on their refusal to adhere to the original franchise agreement signed with the city years back that forces Time Warner Cable to tell the City Council about any complaints that they receive from customers:

"They reported back that they had no complaints," Clark said at last week’s meeting. "I asked, ‘Why?’ They said because they weren't required to write them down."

Yes, that last part is true. TWC's franchise agreement contains some language that allows it to whitewash its horrible track record. Bill Neilson at Broadband Reports spoke with the objecting council member, who forwarded him the no-problems-here contractual clause.

Except as limited by federal law or FCC regulations concerning privacy, Franchisee shall maintain a record of all such complaints and such records shall be available at Franchisee's local offices for at least two years for inspection by the Franchising Authority as it may from time to time request, during regular business hours and upon reasonable notice. Nothing herein shall be deemed to require Franchisee to maintain records of oral complaints, which can be handled to the customer's satisfaction in the course of the initial conversation in which the complaint is made or does not require technical field response. Upon request, the Franchisee shall provide to the Franchising Authority an accounting of the number and nature of such complaints.

Oral complaints apparently don't need to be recorded for posterity if they are handled with a single phone call, or if a technician is never sent out. The key here would seem to be "to the customer's satisfaction," but it appears TWC isn't going to let itself get bogged down by discussions about whether or not the end user was actually satisfied. Presumably, "handled in a single phone call" is still valid (and unrecordable) even if the person is bounced from useless rep to useless rep for hours or simply spends an unimaginable amount of time on hold. As long as someone on TWC's end can put a check in the "resolved" box at the end of the conversation (and keep technicians from leaving the building), the complaint is off the record.

If the person calls back, presumably a new record is opened for that single call and, again, dismissed once the problem is "resolved." This is cooking the books on low heat and since TWC is the custodian of the records, there's little anyone can do to point out where complaints are being vanished into the ether.

Councilman Clark strongly feels TWC just isn't being honest.

"It's my contention that most call-in complaints are not resolved in the course of the initial conversation and that they are required to account for the nature of all complaints," said Councilor Terry M. Clark.

But if only one council member is going to ask questions, it's highly unlikely TWC will suddenly become a model of corporate responsibility. Until there's danger of it losing the contract, it's not going to live up to even the most basic level of accountability. This is the other danger of cableco monopolies and duopolies: even cities themselves have no leverage against the only game in town.

It takes a humongous amount of chutzpah to claim you've had no complaints, when all of the following is on the record (gathered by Broadband Reports):

Ranker.com ranked TWC 2nd worst with customer service.

Ranker.com youth-users ranked TWC dead last with customer service.

Consumer Reports stated that TWC ranked "very poorly with consumers when it comes to value for the money and have earned low ratings for customer support" and "Time Warner Cable ranked 16th overall for television service with particularly low ratings for value, reliability, and phone / online customer support."

According to YouGov, Time Warner Cable has the poorest brand perception of the major pay TV service providers, with a score of -10.

The American Customer Satisfaction Index (ACSI) ranked TWC second to last among Internet service providers. The picture wasn’t much rosier on ACSI’s list of pay-TV providers, with TWC ranking second to last in the subscription television industry.

This statement by TWC is the company daring the city council to call bullshit on its claims. But the city won't. The funds the city collects from every TWC subscriber (much of which goes to support local TV channels) won't be easy to replace, especially if an incumbent cable company poisons the well before leaving town. TWC has a good thing going and has fought the council every step of the way to ensure its profit margins stay intact.

Time Warner offered an adapter box for free through Dec. 18, after which customers had to purchase the adapter from the cable company. The box will also come with a monthly $1 fee beginning Jan. 1, 2015.

Clark convinced his fellow councilors to ask Time Warner to consider waiving the $39.99 installation fee for subscribers who couldn’t install the adapter themselves, but the company refused.

“There are many other things that we’ve asked of Time Warner,” Clark said last week. “They’re not willing to give rate payers anything unless it’s required by law, and even if it is required by law, it has to be pushing and shoving before they’ll acquiesce to that. I don’t think they deserve (a contract extension).”

Clark has been outvoted and TWC has another nine years to continue fighting city hall and tossing complaints in the trash. Does anyone (other than Comcast) think merging it with another cable company with an equally horrendous customer service record will really improve things?

Filed Under: customer complaints, customer satisfaction, customer service, keene, loopholes, new hampshire
Companies: time warner cable

23 Comments

Key Loophole Allows NSA To Avoid Telling Congress About Thousands Of Abuses

Politics

from the oversight! dept

Mon, Aug 19th 2013 8:22am — Mike Masnick

As we've noted, one of the key claims by NSA surveillance defenders was that the program had strong oversight from Congress. However, with the revelations last week about thousands of abuses, it's become quite clear that this isn't true. Late on Friday, Rep. Jim Himes, who is on the House Intelligence Committee, claimed that he was unaware of those violations, was told that there were "no abuses" and that these kinds of abuses are unacceptable:

Possibility of 1000s of NSA violations unacceptable. Many intel comm members unaware of this report. In fact, we have been told no abuses.
— Jim Himes (@jahimes) August 16, 2013

Remember, this isn't just a Congressional Rep, but a member of the Intelligence Committee, who is in charge of overseeing the NSA surveillance program. Hell, he's even on the oversight subcommittee, and no one told him about any abuses, despite thousands happening per year. That's astounding, and highlights how the claims of Congressional oversight are clearly bogus. Furthermore, it makes a mockery of the statement that House Intelligence Committee chair Mike Rogers put out on Friday, claiming that "The Committee has been apprised of previous incidents." Himes says that's completely untrue.

How is this happening? Marc Ambinder explains the "loophole" that the NSA has used to avoid telling Congress about these abuses. It's a bit convoluted, but basically, the NSA believes that Congressional oversight only covers spying done under FISA -- the law that covers any spying done on Americans, for which a court order is needed. FISA doesn't cover spying on non-US persons (i.e., foreigners who are outside the country at the time of surveillance). And that's where some of the abuses came in, and the NSA believes that since those aren't "FISA" related, and Congress is only overseeing "FISA," they don't have to report those mistakes.

Since the focus of oversight efforts has been on FISA compliance, NSA gives Congress detailed narratives of violations of the FISA-authorized data sets, like when metadata about American phone records was stored too long, when a wrong set of records was searched by an analyst or when names or “selectors” not previously cleared by FISA were used to acquire information from the databases. In these cases, the NSA’s compliance staff sends incident reports to the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence for each “significant” FISA violation, and those reports include “significant details,” the official said.

But privacy violations of this sort comprise just one third of those analyzed by the inspector general. Of the 2,776 violations reported by the NSA from May 2011 to May 2012, more than two-thirds were counted as E.O. 12333 incidents. And the agency doesn’t provide Congress detailed reports on E.O. 12333 violations.

Now, you can argue these are very different circumstances, but Ambinder points out that's not really true in many cases:

In some ways, it’s a distinction without a difference: it does not matter to U.S. citizens whether their phone call was accidentally intercepted by an analyst focusing on U.S.-based activities or those involving a foreign country. But the difference is relevant as it keeps Congress uninformed and unable to perform its oversight duties because the NSA doesn’t provide the intelligence committees with a detailed narrative about the latter type of transgressions.

For example, if someone’s e-mails were inadvertently obtained by the NSA’s International Transit Switch Collection programs, it would count as 12333 error and not a FISA error, even though the data was taken from U.S. communication gateways, and NSA would not notify Congress.

So, basically, any "error" that involves spying on Americans doesn't "count" as an abuse, as far as the NSA tells Congress (who keep claiming they're in charge of oversight), because they "obtained" it outside the US, and the "error" is considered outside of FISA. That's a pretty massive loophole through which the NSA can hide its abuse of programs from Congress.

Filed Under: abuses, congress, foreign intelligence, house intelligence committee, jim himes, loopholes, nsa, nsa surveillance, oversight, violations

16 Comments

Court Not Impressed With ivi's Legal Loopholes, Shoots Online TV Broadcaster Down

from the playing-games-with-the-law dept

Tue, Feb 22nd 2011 4:03pm — Mike Masnick

A few months back, we wrote about a company called ivi, which was trying to use some legal loopholes to stream broadcast TV online. It was basically trying to use a part of the law (Section 111 for those playing along with the home game) that was designed to make it easier for cable stations to rebroadcast network TV. However, the court is not buying it and has issued a preliminary injunction ordering the site to shut down its service. The court points out that ivi isn't just playing a single loophole game, but it's really trying to thread the needle through two separate loopholes. For the strategy to work, not only does Section 111 have to apply to the internet provider, but at the same time, it has to exempt itself from the Communications Act. The court suggests this tapdance is too much to take:

In other words, defendants argue that ivi is a cable system for purposes of the Copyright Act, and thus may take advantage of the compulsory license, but that it is not a cable system for purposes of the Communications Act, and thus it need not comply with the requirements of that Act and the rules of the FCC promulgated thereunder.

The thing is, the more I read the details, the more I actually think that ivi's legal argument makes sense, even if the court disagrees. The problem here is the way the laws are written. A strict reading of Section 111 certainly suggests that ivi probably qualifies and can rebroadcast network TV with a nominal payment to the Copyright Office. At the same time, it's true that the Communications Act almost certainly doesn't apply to ivi, because it doesn't cover the internet. In other words, ivi's careful loophole threading seems to make sense. The more reasonable response from the court wouldn't have been to shut it down, but to allow it to go forward -- and for Congress to determine if that loophole should or should not exist (meaning the TV industry lobbyists step in and Congress shuts the loophole).

All that said, this whole fight seems pretty silly. I still don't understand why the TV networks are that upset by ivi, and I still don't see how ivi has a business model that's particularly compelling or sustainable. The networks might have been better served by just letting ivi flop on its own. I can't see too many people willing to pay up just to get broadcast TV...

Filed Under: broadcast, cable, copyright, loopholes
Companies: ivi

French Culture Minister Unilaterally Tries To Change Hadopi Rules To Close Loophole

Politics

from the that's-how-democracy-works? dept

Thu, Oct 14th 2010 7:25am — Mike Masnick

We recently wrote about how the French ISP Free was using a loophole in the Hadopi "three strikes" rules to protect its subscribers. Basically, the law says that ISPs should pass along the notices, but does not have any penalties if the ISP does not pass the notices along to users. So Free simply chose not to pass along the notices, even if it did send user info to the agency. But the problem is that the law says that users can't be cut off unless they've been notified, so without the notification, there can be no kicking people off the internet, which was the entire point of Hadopi.

In response, it appears that French culture minister Frederic Mitterand decided to unilaterally decided to issue a "decree" clarifying Hadopi and extending the fines for not handing over info to not passing along the notices. Of course, that raises all sorts of questions about the French lawmaking process, and Free is insisting that such a decree, issued quickly with no review or vote is simply not legal. Also, it's been pointed out that EU law requires that members notify the EU regulatory bodies of any new laws that would punish ISPs if they don't comply -- and clearly this didn't happen in this case.

As Zeropaid points out in the link above, it is pretty clear that Free is playing a semantic game, and it's likely that the law will be changed eventually to close that loophole, but that certainly doesn't mean it's okay for the French culture minister to unilaterally change a law without any review or oversight, just because the original law makers left a loophole in.

Filed Under: france, frederic mitterand, hadopi, loopholes, three strikes
Companies: free

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