Congress Decides To Ignore Trump's Ridiculous Veto Threat If Military Authorization Doesn't Wipe Out Section 230

from the good-for-them dept

This always seemed like the the most likely outcome, but Trump had complicated things with his temper tantrum demands and his threat to veto the National Defense Authorization Act (NDAA) if it didn't include a clause wiping out Section 230. However, Congress has come to its senses and leaders of both parties have said they'll ignore his impotent veto threat and move forward with the bill as is.

The final version of the National Defense Authorization Act that will soon be considered by the House and Senate won’t include Trump’s long-sought repeal of the legal immunity for online companies, known as Section 230, according to lawmakers and aides.

Key to this was Senate Armed Services Chair Jim Inhofe pointing out the obvious:

"First of all 230 has nothing to do with the military."

That's both first of all and last of all. The whole attempt to use the NDAA to attack CDA 230 was just bizarre.

Inhofe did say he still thinks that 230 should go, but not as a part of the NDAA. A few other Republicans are finally speaking up as well.

Still, Republicans on Wednesday showed some signs of exasperation with the president’s latest effort. As one GOP lawmaker put it: “Republicans are sick of this shit.”

Sen. Mike Rounds (R-S.D.), who sits on the Senate Armed Services Committee, put it more delicately. While he said he understood the president’s frustrations with Section 230, it was not worth imperiling the broader defense bill.

“The NDAA is so important to the men and women that wear the uniform that this should not be an item to veto the act over,” he said. “So I would hope he would reconsider his position on it.”

And Senate Majority Whip John Thune (R-S.D.) said his “preference” would be to pass the NDAA and then address Section 230 separately.

Democratic critics of Section 230 were equally as annoyed. Remember, Senator Richard Blumenthal has been one of the most vocal critics of Section 230 going back to the time before he was a Senator and when he was stymied in trying to sue Craigslist by Section 230 (he was upset that sex workers use Craigslist, and wanted to blame Craigslist for the fact that sex workers exist).

Sen. Richard Blumenthal (D-Conn.), a co-sponsor of the only bipartisan bill targeting Section 230 to advance out of committee this Congress, called the veto threat "deeply dangerous and just plain stupid.”

He added, “Reforming Section 230 deserves its own debate — one that I’ve helped lead in Congress, and which I look forward to continuing with a more serious, thoughtful administration in January.”

In another article, Rep. Frank Pallone stated the obvious:

House Energy and Commerce Committee Chairman Frank Pallone said in a statement that Trump is "holding a critical defense bill hostage in a petulant attempt to punish Twitter for fact-checking him. Our military and national security should not suffer just because Trump's ego was bruised."

There is still plenty of appetite to attack Section 230. And there will be lots of dumb fights about it, but it's not going down this way.

Filed Under: congress, donald trump, ndaa, section 230, threat, veto

Lawyer Deploys Faulty Subpoena Demanding Evidence Preservation, Fails To Impress Lawyer Receiving It

from the getting-hassled-by-the-person-suing-The-Man dept

When a lawyer sends a demand to another lawyer, the one doing the sending had better be on top of their law game. Otherwise, things will go badly. And when they go badly, they end up being discussed here.

Conservative blogger (and lawyer) Scott Johnson got hit with a subpoena ordering him to preserve evidence possibly relevant to a legal challenge of Trump's travel ban from a courtroom halfway across the country. The advance subpoena informed Johnson of his pending obligation to preserve (with production expected later) certain notes pertaining to certain blog posts pertaining to his attendance of a reception for conservative writers held by Trump at the White House.

The problem with the proposed subpoena and evidentiary preservation demands is they weren't actually, you know, legal.

On June 10, I was served with a letter and draft subpoena from Tana Lin of the Keller Rohrback law firm’s Seattle office alerting me to my “document preservation obligations with respect to documents that are relevant or potentially relevant to this litigation.” Lin represents plaintiffs in Doe v.Trump, venued before Judge James Robart in the federal district court for the Western District of Washington.

Though the lawsuit had been stayed, pending a recently issued ruling from the Ninth Circuit in the parallel Hawaii v. Trump “travel ban” case, Judge Robart authorized Lin to notify me of the lawsuit and seek my confirmation by June 15 that I would preserve potentially relevant documents until such time as she sends me a formal subpoena or the lawsuit is formally resolved.

The "potentially relevant documents" included any notes Johnson might have taken during this meeting and specifically referenced the same notebook Johnson referenced in his detailed post about the reception. To wit:

Although there was some degree of difficulty writing while standing, I took notes on the questions and Trump’s answers in my new notebook from CVS.

Johnson -- who knows a few things about federal procedures -- immediately fired a letter back to Tana Lin, telling her she had the wrong statute.

The final sentence of your letter in bold type cites Rule 34(a) of the Federal Rules of Civil Procedure. Rule 34(a) applies to a “party” to litigation. I am not a party. I am a “nonparty.” As such, Rule 34(c) would apply to me. Unless I am missing something, I find your instruction to me that I am “required” to do anything under Rule 34(a) highly misleading.

He also informed her the correct statute wasn't going to be of much help either.

Rule 34(c) cross references Rule 45. As a distant nonparty to the litigation, Rule 45 gives me certain rights once you serve me with a valid subpoena. Yet the draft subpoena you have served on me is a nullity.

[...]

Once I have objected to the subpoena under Rule 45, the rule would require you to seek an order enforcing compliance in the United States District Court for the District of Minnesota. I understand that Minnesota Attorney General Lori Swanson has joined you in the litigation. Perhaps you can assign enforcement of the subpoena to Ms. Swanson. I’m sure Minnesota taxpayers would enjoy the opportunity to see up close and personal how she is expending the resources of her office to hound a journalist for his utterly superfluous notes in the service of your litigation.

Lin called the reference to the wrong statute a "typo," but it really makes no difference which statute was cited: Johnson is a private individual who just happened to be invited to a reception thrown by the president. It's not like he had some preexisting obligation to retain the notebook for X number of years just in case someone might need it for future litigation. As he points out, he's not a government agency. He took notes for a planned blog post. He had no "duty" to preserve them then and there's not much in the proposed subpoena showing any legal reason why he can't throw them out now.

What's concerning about this -- no matter which side of the travel ban you come down on -- is that litigants fighting an executive order somehow feel private non-parties should be compelled to turn over their private notes on the off-chance there might be something damning hidden in them. Johnson calls it "harassment" and he's not wrong. This is no different than anyone in any situation using the weight of the government to compel journalists to produce information about sources and contacts when they're not party to ongoing lawsuits or expected to serve as witnesses.

Beneath it all is a lawyer who slid a subpoena request past an inattentive judge, citing statutes that don't say what she thinks they say. That's a lot of power to be wielding badly, considering it's mostly bad things that wait for those who reject a judge's advances.

Filed Under: doe v. trump, fishing, scott johnson, subpoena, tana lin, threat, travel ban

Senator John McCain Weighs In On 'Going Dark' Debate -- Insists That He Understands Cryptography Better Than Cryptographers

from the maverick dept

Who knew that Senator John McCain understood encryption better than actual cryptographers? Late last week, he wrote an op-ed for Bloomberg View, in which he trots out all the usual talking points on how Silicon Valley just needs to nerd harder to solve the "Going Dark" problem. There's lots of cluelessness in the piece, but let's focus on the big one:

Top cryptologists have reasonably cautioned that “new law enforcement requirements are likely to introduce unanticipated, hard to detect security flaws,” but this is not the end of the analysis. We recognize there may be risks to requiring such access, but we know there are risks to doing nothing.

Actually, it kind of is "the end of the analysis" because the core element of that analysis is the fact that any attempt to backdoor encryption doesn't just make security weaker, it puts basically everyone at much greater risk. It introduces cataclysmic problems for any system that stores information that needs to be kept secure and private.

The following sentence is equally inane, in which he tries to place the "risks" of backdooring encryption on the same plane as the risk of ISIS using encryption. Let's be clear here: the risk of backdooring encryption isn't just significantly larger than the risk of ISIS using encryption, they're not even in the same universe. Even worse, by backdooring encryption, you are almost certainly increasing the risk of ISIS as well, by giving them a massive vulnerability to attack and exploit. Trying to suggest that this is an "on the one hand, on the other hand" situation is so ridiculously ignorant, one wonders who the hell is advising Senator McCain on this topic.

The fact is that there are always some risks. Tens of thousand of people die in car accidents in the US every year, yet you don't hear Senator McCain weighing the risks of driving versus the risks of banning cars. And that's a much more reasonable position to stake out, because banning cars would actually reduce automobile deaths — but it would also cripple the economy. But here's the thing: backdooring encryption has the potential to do much more damage to the economy than banning automobiles, because it would create vulnerabilities that could really completely shut down our economy. So, for McCain to pretend that there are somewhat equal risks on either side isn't just ignorant and meaningless, it's dangerous.

Some technologists and Silicon Valley executives argue that any efforts by the government to ensure law-enforcement access to encrypted information will undermine users’ privacy and make them less secure. This position is ideologically motivated and profit-driven, though not without merit. But, by speaking in absolute terms about privacy rights, they bring the discussion to a halt, while the security threat evolves.

Honestly, this is not true. I know that Comey's favorite line these days is that using strong encryption is a "business model decision," but Silicon Valley's interest in strong encryption doesn't appear to be driven by their own bottom lines, frankly. If it was, they would have adopted it much earlier. Strong encryption actually undermines some companies' business models, in that it makes it more difficult for them to collect the data that many of them rely on. The move towards stronger encryption has mostly been the result of a few things: (1) the fact that the NSA broke into their data centers and put their legitimate users at risk, (2) a better understanding of the wider risks from malicious attackers of what happens when you have weak encryption and (3) user demands for privacy. The last one may have indirect business model benefits in that it keeps users happier, but to argue that keeping users happy is somehow a purely money-driven decision, and frame it as somehow a bad thing, is pretty damn ridiculous.

And, honestly, while there are some activists who speak in absolute terms about "privacy rights," you rarely hear that from Silicon Valley companies. In fact, those who have absolute views on privacy tend to be the most critical of Silicon Valley companies for taking a much less principled view on "privacy rights." McCain pretending that this is driven by some sort of "privacy rights" advocacy suggests he's (again) woefully misinformed on this issue.

To be clear, encryption is often a very good thing. It increases the security of our online activities, provides the confidence necessary for economic growth through the Internet, and protects our privacy by securing some of our most important personal information, such as financial data and health records. Yet as with many technological tools, terrorist organizations are using encryption with alarming success.

Actually, they're not using encryption with "alarming success." There are very, very, very, very few examples of terrorists using encryption successfully. The Paris attackers? Unencrypted SMS. San Bernardino? Unencrypted social media communication.

The jihadists' followers and adherents use encryption to hide their communications within the U.S. FBI Director James Comey recently testified that the attackers in last year's Garland, Texas, shootings exchanged more than 100 text messages with an overseas terrorist, but law enforcement is still blinded to the content of those texts because they were encrypted.

Notice that this is the only example that comes up in these discussions. That's because it's the only example. And it's not even a very good one. Because, as with most encrypted communication, the metadata was still perfectly accessible. That's why they know that the attackers exchanged messages with a terrorist. Sure, they may not be able to understand the direct contents of the message, but the same thing would have been true if the attacker and the people he communicated with had worked out a code before hand. Or, you know, if they had met and talked in person. Is McCain going to ban talking in person too?

Finally, McCain's "solution" to all of this is to make a law telling Silicon Valley to nerd harder and solve the problem... or else:

As part of this effort, Congress should consider legislation that would require U.S. telecommunications companies to adopt technological alternatives that allow them to comply with lawful requests for access to content, but that would not prescribe what those systems should look like. This would allow companies to retain flexibility to design their technologies to meet both their business needs and our national security interests.

In other words, despite the fact that all of the best cryptographers in the world have said that what you're asking for is basically impossible and would make everyone less safe, just do it anyway -- and do it in a way that when it falls apart and everyone is made more vulnerable, Congressional leaders like John McCain can spin around and blame the companies rather than themselves.

We have to encourage companies and individuals who rely on encryption to recognize that our security is threatened, not encouraged, by technologies that place vital information outside the reach of law enforcement. Developing technologies that aid terrorists like Islamic State is not only harmful to our security, but it is ultimately an unwise business model.

Does John McCain seriously not employ a single knowledgeable staffer who could point out to him that basically every encrypted technology that ISIS uses is not made by an American company? Seriously, look at the list of ISIS's preferred encryption technologies: So who, exactly, is developing technologies that "aid terrorists like Islamic State" and need their encryption undermined?

Meanwhile, we haven't even touched on the biggest issue, as was highlighted in that big paper from Harvard last week. And it's this: the whole Going Dark thing is a total myth, because for the tiny, tiny, tiny bit of information that is now blocked out by strong encryption, there's a mountain of other data that is now accessible to law enforcement and the intelligence community. Things have been getting lighter and lighter and lighter for decades.

Shouldn't a sitting Senator understand these basic facts?

Filed Under: benefits, costs, cryptography, encryption, going dark, isis, john mccain, national security, risk, security, threat

Hollywood Narrow-Mindedly Sees Google Fiber As A Threat, Not A World Of New Opportunities

from the glass-half-full dept

Most reasonable people and businesses are excited about how Google Fiber is shaking up the uncompetitive broadband industry, and bringing new opportunities to a select few cities. That doesn't include Hollywood (with its deep love of Google in tow), which apparently thinks Google Fiber is a bad thing because it might spike piracy rates. Leaked data suggests that Warner Brothers and Sony Pictures Entertainment launched a survey back in 2012 to track piracy rates before and after Google Fiber deployment in Kansas City. About 2,000 individuals between the ages of 13 and 54 were asked about Google Fiber, piracy, and their media consumption habits.

Unsurprisingly, more than half of those surveyed said they were interested in signing up for $70, 1 Gbps connections (or Google's 5 Mbps connection, which is free after a $300 installation fee). Of those survey participants who said they pirated content, roughly a third stated that they'd likely pirate more often with a connection of that speed. In traditional entertainment industry logic, each instance of infringement is counted as a sale loss, and therefore the survey magically concludes that Google Fiber would be responsible for $1 billion in additional piracy losses annually:The survey continues and ties piracy rates directly to downstream broadband speeds, proclaiming this is "another indication that piracy becomes more attractive with Google Fiber":If you haven't come to this conclusion yet on your own, all of this logic is utterly stupid, given that faster speeds result in an overall increase in all online behavior, including the use of legitimate content services. Everything becomes more attractive with better broadband connections. The survey even notes this, 39% of the respondents stating they would use paid streaming subscription services more, and 34% stating they would rent and purchase online videos more frequently. Unsurprisingly, the entertainment industry doesn't bother to calculate these potential sales, nor does it calculate the potential sale opportunities created by offering better services that would only work on ultra-fast connections.

It's yet another example of the entertainment industry's ridiculously narrow thinking when it comes to, well, everything. A reasonable businessman (or woman) would look at those ultra-fast speeds and see opportunity. The entertainment industry looks at these same connections and can only see menace and bogeymen.

Filed Under: broadband, google fiber, hollywood, opportunity, piracy, threat
Companies: google, mpaa

Supreme Court May Take A Shot At Defining The Point At Which Protected Speech Becomes An Unprotectable 'Threat'

from the yes,-there's-a-lousy,-dark-humored-joke-in-that-headline dept

The Supreme Court may take up the question of whether or not communicated threats are still threats even if the person making the statement doesn't necessarily have the ability or the intent to carry them out. In short, at what point does it turn from protectable speech into something the First Amendment won't cover?

The latest case involving the legal parameters of online speech before the justices concerns a Pennsylvania man sentenced to 50 months in prison after being convicted on four counts of the interstate communication of threats. Defendant Anthony Elonis' 2010 Facebook rant concerned attacks on an elementary school, his estranged wife, and even law enforcement.

"That's it, I've had about enough/ I'm checking out and making a name for myself/ Enough elementary schools in a ten mile radius/ to initiate the most heinous school shooting ever imagined/ and hell hath no fury like a crazy man in a Kindergarten class/ the only question is … which one?" read one of Elonis' posts.

This is a subject we've discussed several times previously. People (mainly teens) have made statements and comments via social media that have veered close to being threats, but once investigated, turn out to be nothing more than stupid kids being stupid. Prosecutors and law enforcement have made some questionable decisions in their attempts to portray youthful indiscretions as the words of would-be killers, such as withholding the surrounding context or willfully misreading the words themselves.

Elonis' case is a bit more complicated. For one, Elonis is 30 years old. While growing older doesn't necessarily make you immune from stupidity, the expectations are a bit higher in terms of online discourse. It's a little harder to claim you're running on the same high-octane concoction of hormones and blood displacement that teenage boys are. Not that all youthful indiscretions are excusable, but given that age group's tendency towards disproportionate drama in all things, it does make it more understandable.

In addition, Elonis' statements were directed at a variety of targets, any of which would seem to be a viable recipient for his anger. Not only did Elonis mention shooting up a school (specifically a kindergarten), but he also apparently had dire "plans" for his wife and local law enforcement. Again, the post-Sandy Hook law enforcement/judicial mentality further clouds the issue, raising the question that if Elonis had left out the part about the school shooting, would he still be facing 30 months in prison? (Of course, threatening law enforcement tends to create just as much of a legal mess, usually one far worse than simply threatening your estranged spouse does…)

But the odds are fairly long that the Supreme Court will find the ability to carry out the threat matters as much as the perception of everyone else but the person making the statement.

Only one federal appeals court has sided with Elonis' contention that the authorities must prove that the person who made the threat actually meant to carry it out. Eight other circuit courts of appeal, however, have ruled that the standard is whether a "reasonable person" would conclude the threat was real.

This long shot is also reliant on another long shot: that the administration will support this appeal. A similar case involving an Iraq War vet was greeted by the White House with a written petition asking the Supreme Court to reject the case. These two obstacles make it unlikely that the judicial system will start treating so-called "threats" any differently than they have in the past. And it's a very long past. David Kravets at Ars Technica points out that the statute being applied to these cases originated in 1932.

There are legitimate threats and these are rightly not treated as free speech. But there are others that are treated as legitimate threats even when there's no evidence the person uttering them has the ability, much less the intention to back up their unfortunate statements. Applying a 1932 statute to the wide open discourse platform that is the internet is doing little more than putting loudmouths and idiots in jail. Those who mean actual harm to others generally don't enlighten their future targets via Twitter, Facebook and forum posts.

By all means, potential threats should be investigated, but the courts need to come to the realization that these statements cannot be entirely robbed of their context (including intent and ability) and presented "as is" to the hypothetical "reasonable person." Reasonable people are completely capable of understanding that not every hurtful word can actually hurt someone, nor do they believe every "threat" is the sign of impending danger. Not only should the statute be reconsidered, but so should the court's "reasonable person" ideal.

Filed Under: first amendment, free speech, speech, supreme court, threat

Video Game Developers Say That Piracy Really Isn't A Big Threat To Business

from the good-for-them dept

Well this is a bit of a surprise. For all the talk we keep hearing about how piracy is destroying the video game industry, and news stories with video game execs talking up DRM and the threat of piracy, a recent study of video game developers had only 10% saying that piracy was a threat to their business. Plenty were concerned about it as an issue they had to deal with, but most seemed to have some perspective on the relative risk of the threat. In fact, other parts of the survey note that about 50% are adapting to the marketplace, saying that "piracy" will change the way they do business, with it mostly meaning more "piracy-proof" business models. On the DRM front, there isn't a whole lot of interest. 50% called it irrelevant with another 20% describing DRM as a part of the problem. I have to admit I'm a bit surprised by the findings (which makes me wonder a bit about the methodology), but it's nice to see at least some suggestion that developers are adapting, rather than threatening and blaming.

Filed Under: piracy, threat, video games

Politicians Overreacted To Terrorist 'Threat' Online

from the moral-panic dept

It seems that with every new communications tool online, we get some politicians absolutely freaked out about how "terrorists" will use it to communicate, and how that must be stopped. In just the past few months, we've seen politicians freak out about terrorists supposedly using Second Life, YouTube and Twitter -- and how each of these need to be stopped. Every time this has come up, it has seemed pretty ludicrous for a variety of reasons. First, these are communication tools. They can be used for good or bad purposes -- but it seems pretty ridiculous to freak out over the fact that some might possibly use them for bad purposes. But, even more importantly, the idea that these tools would help "recruit" new terrorists seemed particularly silly. If someone is going to be convinced to become a terrorist based on a YouTube video, there's a bigger problem.

And, in fact, that's exactly what a new report is finding. The whole "freaking out about terrorists online" thing is totally overblown. The study found little evidence that terrorists were effectively recruiting people online, and even if they were, they found no conceivable way to stop such tools from being used by terrorists at all -- and pointed out how pointless it was to even try. At best, they would get some content taken down from a few websites, which would only serve to draw more attention to the content, which would quickly appear on other websites instead. But, of course, most politicians don't care. They need to create such moral panics so it looks like they're actually doing something to "protect the children" in order to get re-elected.

In the meantime, if they were really concerned about "terrorists" using technology, they might actually want to focus on getting the folks who hate us to use the technology even more. At least that's the feeling I get after reading this article about a Taliban leader and former Guantanamo prisoner, who's now obsessed with his iPhone. I have to admit, most of the article reads like an Onion-style parody ("'It's easy and modern and I love it,' Zaeef said as he pinched and pulled his fingers across the iPhone's touch screen last week. 'This is necessary in the world today. People want to progress.'"), but it does show that perhaps using enabling technology to allow people to better their lives, gets them a lot less focused on looking for ways to kill us.

Filed Under: moral panic, online, politicians, terrorists, threat