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  1. US regulator tries to hide embarrassment behind series of sudden announcements Comment The Federal Communications Commission (FCC) is asking the American public to tell it if its decision in 2017 to scrap net neutrality regulations was dumb or not. In a striking piece of irony – and one that the FCC is distinctly unhappy about – the watchdog is legally obliged to seek public comment on three issues: how its decision has threatened public safety, damaged broadband infrastructure rollout, and prevented poor people from getting access to fast internet access. That obligation is the result of a legal challenge to the FCC's decision to tear up net neutrality rules covering internet access in America. That attempt last year failed in court, largely because federal regulators are given significant leeway to decide their own rules, even when it comprises overturning their own rules made just two years earlier, in 2015. However, the court noted some serious concerns about the FCC scrapping its own rules, and so told the regulator it needs to gather public feedback on those issues and to consider what it needs to do to alleviate concerns. Normally this wouldn’t be a problem. It is simply a case of the judicial process carrying out its proper function: identifying issues, and seeking to get them rectified. But the net neutrality issue has become so ideological and partisan – thanks largely to the behavior of the FCC commissioners who pushed through a pre-decided outcome and actively ignored public opposition to their plans – that being forced to ask the public where it screwed up is in itself embarrassing. It is a virtual certainty that net neutrality advocates will gleefully take the opportunity to rail against the FCC, in just one more battle of words over the safeguards. Petty In a reminder of just how petty federal telecoms regulation has become, the FCC can’t even take this implicit rebuke professionally. And so it attempted to hide the reality of the situation by flooding its announcements website on Wednesday with suddenly important news and describing the public comment period in the most obscure terms possible. That’s why, this week, we were treated to a string of PR spin and quotes about how the FCC is doing a great job by opening up spectrum. “What They're Saying About Chairman Pai's C-Band Plan,” reads one announcement that features nothing but quotes from people like Vice-President Mike Pence and “Former Chairman of the House Permanent Select Committee on Intelligence Mike Rogers.” The next announcement covers the extremely important news that the FCC is closing an application to renew several radio stations. What else does the FCC have for us? Well, the vital fact it has decided on the membership of the Advisory Committee on Diversity and Digital Empowerment. That also gets its own press release and official announcement. Anything else? Yep. Here’s an entire release talking about how one FCC commissioner “applauds 5G workforce development grant.” We’re serious. Here we have Brendan Carr waxing lyrical about how he’s “thrilled that [Dept of Labor] has recognized the critical role of tower techs, linemen, and other 5G workers in building our country’s information infrastructure.” And in today's actual news... As for the only piece of real news this week – the public comment period on public safety sparked by the net neutrality decision – you could be forgiven for missing it altogether. While all the other headlines are extremely clear, this one is confusingly titled: “WCB Seeks Comment on Discrete Issues Arising from Mozilla Decision.” Not even a mention of net neutrality. The explanatory document is not much better. It is titled: “Wireline Competition Bureau Seeks to Refresh Record in Restoring Internet Freedom and Lifeline proceedings in light of the DC Circuit’s Mozilla decision.” (This is a reference to Firefox maker Mozilla's legal campaign against the FCC.) It’s hard to imagine a more obtuse explanation. Anyway, dig hard enough and the details are all in there: is there a risk to public safety communications due to packet prioritization? Would harmful conduct have been prohibited under the rules that were in place but were scrapped? Are there other ways to deal with potential public safety concerns? The FCC has clumped more convoluted versions of these questions together in long paragraphs, rather than break them out into clear and numbered questions as it frequently does when it is doing its job properly. There are other questions about pole attachments – which sounds dull but is critically important as one case currently in front of the Ninth Circuit makes clear. And on the Lifeline program that subsidizes broadband to low-income families. Rosenworcel to the rescue Now we’d love to tell you, Reg readers that we spotted this important public comment period despite the FCC’s best efforts to hide it because we are so attuned to telecoms policy and the FCC that it immediately threw up red flags. But the truth is that we only noticed thanks to FCC Commissioner Jessica Rosenworcel who remains the voice of sanity at the federal regulator. She saw what her colleagues were trying to do, and so put out her own release, which all commissioners are entitled to do. That release was titled “Rosenworcel On FCC Seeking Public Comment On Net Neutrality Remand.” Which was pretty clear. In her release, Rosenworcel speaks plainly. “The FCC got it wrong when it repealed net neutrality. The decision put the agency on the wrong side of history, the American public, and the law. And the courts agreed. That’s why they sent back to this agency key pieces regarding how the rollback of net neutrality protections impacted public safety, low income Americans, and broadband infrastructure,” she neatly summarizes. She goes on: “Today, the FCC is seeking comment on how best to move forward. My advice? The American public should raise their voices and let Washington know how important an open internet is for every piece of our civic and commercial lives. The agency wrongfully gave broadband providers the power to block websites, throttle services, and censor online content. The fight for an open internet is not over. It’s time to make noise.” To file a public comment, see the obfuscated info here [PDF] and submit your thoughts here, quoting proceedings 17-108 for net neutrality aka restoring internet freedom, by the end of March. Source
  2. A Federal Court of Appeals judge today temporarily blocked the Pentagon’s $10 billion cloud computing contract that was awarded to Microsoft Corp. last year. The Joint Enterprise Defense Initiative or JEDI contract had been expected to be awarded to Amazon Web Services Inc. The Amazon.com Inc. cloud company last year sued the Department of Defense and asked for an injunction, charging that political interference resulted in the award to Microsoft despite AWS’ greater cloud capabilities. CNBC reported that a court notice announcing the injunction was filed today. It wasn’t made public, and it wasn’t clear why documents were sealed. The first substantive work order had been scheduled to start tomorrow. The judge also told Amazon and the Pentagon to get together by Feb. 27 to determine what parts of the opinion can be released publicly. Amazon has agreed to post $42 million to pay for any costs in case its injunction is determined to be wrongfully issue. AWS and the Pentagon haven’t yet commented on the decision by Judge Patricia E. Campbell Smith, but Frank Shaw, Microsoft’s corporate vice president of communications, issued this statement: “While we are disappointed with the additional delay we believe that we will ultimately be able to move forward with the work to make sure those who serve our country can access the new technology they urgently require. We have confidence in the Department of Defense, and we believe the facts will show they ran a detailed, thorough and fair process in determining the needs of the warfighter were best met by Microsoft.” AWS filed a request for a temporary restraining order on Jan. 19. “It is common practice to stay contract performance while a protest is pending,” the company explained in a statement. In this case, the protest is an ongoing lawsuit through which AWS is challenging the decision to award the deal to Microsoft. AWS contends the decision was tainted by “egregious errors” and political interference from President Donald Trump. Filings unsealed ahead of the ruling today revealed the counterarguments the Pentagon used to convince the court not to halt work on JEDI. Lt. Gen. Brad Schwedo, the Joint Staff’s chief information officer, wrote in a declaration that delaying the project would negatively affect national security. “The men and women of the U.S. military must have access to the right technology at the right time to fight and win wars,” Schwedo told the court in a filing. “Delaying implementation of a cloud solution will negatively affect DoD’s efforts to be victorious in contested environments and retain global influence over our near-peer competitors.” Underscoring the need for the project to be completed as soon as possible, Schwedo laid out some of the advantages the DOD expects to gain from JEDI. “The U.S. military operates globally and must have a means to effectively perform if our communications are threatened or disrupted,” he wrote. “An enterprise cloud capability, with tactical edge technology, can retain its last known data update and continue operating locally in degraded, denied, disrupted, intermittent, or low bandwidth environments.” Another declaration submitted by the DOD, attributed to a contracting official whose name was not disclosed, made a financial argument against suspending the JEDI work. The DOD “anticipates a financial harm of between $5 [million] and $7 million dollars every month that performance of the JEDI contract is delayed,” the official wrote. There were no immediate details on why the judge granted the temporary restraining order. However, some observers believe DOD’s argument of the need for swift implementation of JEDI was undercut somewhat by the program’s own delays on the project, which had originally been expected to be granted early last year. Those delays included one for three months last year when Defense Secretary Mark Esper took another look at the proceedings. In October, he removed himself from the review process, ostensibly because one of his sons worked for onetime bidder IBM Corp., and the DOD granted the contract to Microsoft shortly shortly after that. Indeed, Amazon went after the urgency argument even more strongly in filings this week, noting that JEDI has already been delayed by two other legal challenges and an internal probe. “DoD did not display the urgency it now chums after it closed that investigation,” AWS said in one of the filings. “Rather than awarding the contract to allow performance by July 2019, DoD initiated a ‘review’ of the JEDI procurement by Defense Secretay Mark Esper. Before Secretary Esper even commenced his review, he publicly confirmed there was no ‘hard timeline’ for its completion, and certainly did not indicate imminent urgency for national security.” The DOD’s arguments in the documents unsealed on Wednesday also went beyond AWS’ request for a temporary restraining order. Officials took aim at a separate motion in which the Amazon subsidiary has requested that Trump and other senior officials testify about the contract. “The relevant question in this protest is not whether the president dislikes Amazon, but rather whether the source selection officials — the government personnel who actually evaluated AWS’s and Microsoft’s proposals and decided which offeror would receive the JEDI contract — exhibited bias against AWS in this procurement,” the DOD wrote. Moreover, the documents revealed at least one detail about JEDI that apparently wasn’t known until now: specifics on how much the Pentagon plans to spend on the project in the next two years. In a section spotted by Federal News Network, the declaration from the unnamed contracting official who cited the financial harm of the project disclosed that the DOD plans to spend $45 million this year and $165 million in fiscal 2021. Source
  3. The e-mail provider Tutanota advertises to be the “world’s most secure e-mail service”. The company offers encrypted e-mail communication and claims to have six million customers relying on this security promise. However, on October 2, 2018, the district court of Itzehoe asked managing director Matthias Pfau to provide the e-mails of Tutanota unencrypted and in real time to the police [4]. Why? In the previous months hackers blackmailed several companies based in Schleswig-Holstein, using an e-mail address from Tutanota. So the investigators wanted to read the e-mails to get the cyber criminals on the track. So this case leads to a dispute between security authorities, who claims that too secure encryption methods avoids the tracking of suspect, and privacy advocates, who want more data to be encrypted to better protect citizens and businesses from criminals, espionage and data hunger by tech companies. How Tutanota works? Tutanota’s service works like this: when two users write an e-mail, it is automatically protected with the most secure end-to-end encryption. Only sender and receiver can read the message. However this works only between tutanota users: mail providers like Google or Hotmail do not have such protection. If a customer receives an e-mail from a person who does not have a Tutanota account, according to provider FAQ, the message was automatically encrypted as soon as it lands on Tutanota servers. The court request Therefore, the district court asked to Tutanota that the entire contents of the e-mails be sent out without end-to-end encrypted. The company initially refused, however, five months later, the court ruled that Tutanota must hand over the data and imposed a fine of $ 1,000. Now Tutanota has to program a new function for the prosecutors: If an account has a valid legal order from a German court, the company must also create a copy of the e-mails that the investigators can read. Obiously, authorities still cannot read mails sent with end-to-end encryption between Tutanota users. So what? In this reddit thread on /r/privacytoolIO [1], Tutanota team attended the conversation, basically confirming concerns of privacy conscious users: Hi there, Tutanota team here. We came across this discussion and would like to clarify some points: End-to-end encrypted emails are not affected. End-to-end encrypted data (calendar, contacts, etc) are not affected. This applies only to non-encrypted emails received/sent after the court has been issued. A valid German court order is required for this, 4 have been issued in the first half of 2019. This applies only to non-encrypted emails received So all emails received from every other email provider except for tutanota? Yes, unless they use the e2e feature, which also works with external email addresses. My 2 cents In a privacy context, relying on just one security layer is wrong. Thinking that with a secure provider your messages are secured and confidential means overstimate your privacy model. So, reinforce every sensible message with an additional layer of security, using (for example) PGP encryption [2], suitable also from webmails and with providers less privacy-focused (like Gmail), using a specific browser extension [3]. References Tutanota seems to be forced to provide access to emails soon. The GNU Privacy guard Mailvelope Gericht zwingt E-Mail-Anbieter, Daten herauszugeben – Digital – Süddeutsche.de Source
  4. BRUSSELS (Reuters) - Facebook will face Austrian privacy activist Max Schrems next week at Europe’s top court in a landmark case that could affect how hundreds of thousands of companies transfer personal data worldwide as well as Europeans’ privacy rights. FILE PHOTO: Austrian lawyer and privacy activist Max Schrems prepares his laptop during a Reuters interview in a cafe in Vienna, Austria, May 22, 2018 At issue is standard contractual clauses used by Facebook and other companies to transfer personal data to the United States and other parts of the world and whether these violate Europeans’ fundamental right to privacy. Cross-border data transfers worth billions of dollars are a fact of life for businesses ranging from banks to carmakers to industrial giants. Schrems, an Austrian law student, successfully fought against the EU’s previous privacy rules called Safe Harbour in 2015. He is now challenging Facebook’s use of such standard clauses on the grounds that they do not offer sufficient data protection safeguards. Facebook’s lead regulator, the Irish Data Protection agency, took the case to the High Court in Ireland which subsequently sought guidance from the Luxembourg-based Court of Justice of the European Union (ECJ). Facebook was not immediately available to comment. The court ruling will have a global impact, Tanguy Van Overstraeten, global head of data protection at law firm Linklaters, said. “The whole data transfer system would be impacted and could impact the global economy,” he said. “There are alternatives to the standard clauses, including the derogations set out in the GDPR such as consent, contractual necessity and others but they are strictly interpreted and difficult to apply in practice.” Van Overstraeten said hundreds of thousands of companies would be hit if the ECJ rules against the clauses compared to some 4,500 companies affected when Safe Harbour was struck down. Safe Harbour was replaced in 2016 by the EU-U.S. Privacy Shield which was designed to protect Europeans’ personal data transferred across the Atlantic for commercial use. Data privacy has become a major concern since revelations in 2013 by former U.S. intelligence contractor Edward Snowden of mass U.S. surveillance which triggered outrage among politicians in Europe. The EU adopted the GDPR data protection laws last year. The case is C-311/18 Data Protection Commissioner V Facebook Ireland Ltd, Maximillian Sc Source
  5. An American and three Europeans have been charged with racketeering conspiracy and conspiracy to commit wire fraud and bank fraud for allegedly distributing malware on the now-defunct Darkode computer hacking forum. A District of Columbia federal court this week unsealed an indictment against the four individuals, who are identified as Thomas McCormick (aka fubar), 26, of Washington state; Matjaz Skorjanc (aka iserdo and serdo), 32, of Maribor, Slovenia; Florencio Carro Ruiz (aka NeTK and Netkairo) 40, of Vizcaya, Spain; and Mentor Leniqi (aka Iceman), 35, of Gurisnica, Slovenia. The indictment was originally filed under seal on Dec. 4, 2018. McCormick, who is also charged with five counts of aggravated identity theft, was arrested last Dec. 10, but the three remaining suspects remain fugitives. McCormick was allegedly was among the last administrators of Darkode, while Skorjanc is accused of being the underground marketplace’s founder and first administrator. According to the indictment, the first charge of racketeering conspiracy stems from a series of alleged acts involving bank fraud, wire fraud, access device fraud, identity theft, hacking and extortion. Justice officials say the invitation-only group was responsible for $4.5 million in victim losses between September 2008 and December 5, 2013, at which time the FBI first contacted McCormick about his alleged role in the operation. Ultimately, Darkcode was taken down by international law enforcement officials in a July 2015 crackdown called Operation Shrouded Horizon. “Darkode was a criminal organization built around an online password-protected criminal forum where high-level international hackers and cybercriminals convened to develop, buy, sell, trade and share hacking tools, information and ideas,” the indictment says. “The schemes included selling and using tools – malware – to hack into victim computers and steal personally identifying information (‘PII’), bank account and other login credentials, and credit cards,” the indictment continues. “The schemes also included developing and selling tools – malware – for taking over victims’ computers and using them to attack victims’ web sites; hold victims’ websites for ransom; and hide the criminals’ identities on the internet.” For instance, Skorjanc is accused of creating a bot software called Butterfly Bot or BFBOT and selling it on Darkode. The indictment describes a forum posting that said the bot runs on Windows NT-based systems and can steal usernames and passwords for online financial services from Firefox and Internet Explorer users. The bot was also said to launch DDoS attacks and alter text entered into MSN Messenger. Other malware programs allegedly put up for sale by one or more of the defendants included the Mariposa botnet (a modified version of BFBOT), and the Zeus trojan known for stealing banking credentials. The Darkode members also allegedly sold access to compromised computers. Source
  6. On Thursday, December 6th, Louisiana Judge Keith Comeaux of the 16th judicial district court ruled that Energy Transfer Partners (ETP, also known as Energy Transfer Equity,) had the right to seize privately held-land in order to continue construction of the controversial Bayou Bridge pipeline through the Atchafalaya Basin. The lawsuit was brought to court after three landowners, Theda Larson Wright, Peter K. Aaslestad, and Katherine Aaslestad alleged that EPT had trespassed on their land and cut down trees in order to begin building the pipeline through their land parcels, without their permission. Atchafalaya Rising On Thursday, December 6th, Louisiana Judge Keith Comeaux of the 16th judicial district court ruled that Energy Transfer Partners (ETP, also known as Energy Transfer Equity,) had the right to seize privately held-land in order to continue construction of the controversial Bayou Bridge pipeline through the Atchafalaya Basin. The lawsuit was brought to court after three landowners, Theda Larson Wright, Peter K. Aaslestad, and Katherine Aaslestad alleged that EPT had trespassed on their land and cut down trees in order to begin building the pipeline through their land parcels, without their permission. The Atchafalaya basin, apart from being home to thousands of native species of plants, animals, fungi and other living beings, is also an ancestral home to some of the native peoples of Louisiana, as well as one of the last places where crawfish are fished in the wild. Even to those who do not accept the swamp as intrinsically valuable, must recognize that it provides a home, as well as economic and environmental services to the people of Louisiana in the form of stormwater absorption, air and water purification, and crawfish harvests. Although the Judge’s verdict acknowledged that ETP did indeed trespass on the privately-held land, the ruling states that ETP has the right to continue construction, and now has the right to construct on the disputed land. Though couched in the lofty, Latinate language of the law, the ruling shows a clear bias towards the so-called “necessity” of fossil fuel and its supporting infrastructure. The ruling went so far as to equate the oil with a “public utility common carrier”. ETP is not a public utility, and the oil in the pipelines is not a publicly held good. In fact, it is neither publicly held nor objectively good for the community. The verdict asserts, for instance, that “making Louisiana energy independent of foreign oil or tanker transportation of oil.” However, this statement falsely posits that fossil fuel is the only path to energy independence. It is not. At times, the verdict seemed to actively disrespect the landowners, calling the testimony of an environmental advocate “self-serving”, and noting that “although all the defendants claim some mental anguish for this property, no party has sought medical attention and all the defendants are self-admitted advocates against pipelines”. The latter bit is a tautology—if the defendants are already opposed to the pipeline, then (the judge’s logic goes) they cannot have a legitimate reason to oppose the pipeline. The verdict did, however, quote both an employee of ETP and an expert from the LSU Center for Energy Studies (which has accepted large donations from various petrochemical and fossil fuel companies) The landowners also argued that the “merchantable” value of the destroyed trees was $2854.05. Comeaux’s ruling states that “The Court agrees with Bayou Bridge [ETP] that the fair market value of the tract is zero due to the nonmarket-ability of the tract”. Never mind why it is “nonmarketable.” So long as combustion reactions continue to emit carbon dioxide, fossil fuels will pose an enormous risk to Louisiana’s future. The Southeast is a region that has seen increases in the number of “danger days” where the temperature poses risks to human health. The rise in temperature also strengthens hurricanes and makes downpours heavier, and the warming of the ocean creates sea-level rise, which floods Louisiana’s shores. Doubling down on fossil fuel infrastructure, which is literally what is happening in St. Martin Parish today (as the pipeline is being built on top of another one), is exactly the opposite of what needs to happen to combat climate change. ETP was ordered to pay each landowner $150 for their troubles. Last year, ETP/ Energy Transfer Equity, made a profit of 4 billion dollars. In a statement to Big Easy, Cherri Foytlin, the founder of the L’eau Est La Vie protest Camp, said: Source
  7. from the that's-not-how-it-works dept While there has been plenty of attention paid to the BMG v. Cox case, in which Cox was found not to be protected by the DMCA's safe harbors in dealing with repeat infringers, it's increasingly looking like the ruling in that case (which eventually led to a "substantial" settlement) was fairly unique to Cox's situation. Specifically, while much was made of Cox's "13 strikes" repeat infringer policy, in the end the nature of the policy wasn't what sunk Cox: it was the fact that Cox didn't follow its own policy. In other cases, courts seem willing to grant much more latitude to the ISPs to make their own calls. We wrote about the 9th Circuit and its ruling in the Motherless case, which made it clear that a platform gets to set its own policy, and that policy need not be perfect. Meanwhile, down in Texas, there's the UMG v. Grande Communications case, which many had seen as a parallel case to the BMG v. Cox case. This was another case that involved an ISP being bombarded with shakedown (not takedown) notices from Rightscorp, in which Righscorp and its clients felt that ISP was not willing to pass on those notices (thus denying Rightscorp and its clients the ability to collect money in exchange for a promise not to sue). As we noted back in April, while still in the district court, the Grande case wasn't going nearly as smoothly as the Cox case for those wishing to copyright troll. The magistrate judge was quite skeptical, and had tossed out entirely the claims of vicarious infringement (while somewhat skeptically allowing the claims of contributory infringement to move forward). Vicarious and contributory infringement are often lumped together, but they are different. For there to be vicarious infringement, you have to show that the party being sued both had the right and ability to supervise the activity, and that it would directly financially benefit from the infringement. The court rejected that in the case of Grande, noting that just because Grande makes money from its subscribers, that's not enough to show that it was profiting from the infringement. Universal Music tried to amend the complaint to show that it had "more evidence" that Grande and its management company, Patriot, were still vicariously liable -- but the magistrate judge says it's just trying to re-litigate what it lost last time. The recommendation makes fairly quick work of UMG's arguments: This is important. For years, the legacy copyright players have continually tried to expand what third parties could be liable for when it came to infringement. It's always been a stretch to use both vicarious and contributory infringement claims in these ways, and it's good to see courts pushing back (though, in this case, the contributory infringement claims still have a chance...). The court directly pointing out that just because a company makes money from a client, that doesn't mean the money is from infringement is an important point that many among the copyright legacy world would like to ignore. Source
  8. from the with-an-eye-on-undermining-all-encrypted-messaging-services dept The DOJ's war on encryption continues, this time in a secret court battle involving Facebook. The case is under seal so no documents are available, but Reuters has obtained details suggesting the government is trying to compel the production of encryption-breaking software. The request seeks Facebook's assistance in tapping calls placed through its Messenger service. Facebook has refused, stating it simply cannot do this without stripping the protection it offers to all of its Messenger users. The government disagrees and has asked the court for contempt charges. Underneath it all, this is a wiretap order -- one obtained in an MS-13 investigation. This might mean the government hasn't used an All Writs Acts request, but is rather seeking to have the court declare Messenger calls to be similar to VoIP calls. If so, it can try to compel the production of software under older laws and rulings governing assistance of law enforcement by telcos. Calls via Messenger are still in a gray area. Facebook claims calls are end-to-end encrypted so it cannot -- without completely altering the underlying software -- assist with an interception. Regular messages via Facebook's services can still be decrypted by the company but voice calls appear to be out of its reach. Obviously, the government would very much like a favorable ruling from a federal judge. An order to alter this service to allow interception or collection could then be used against a number of other services offering end-to-end encryption. It's unknown what legal options Facebook has pursued, but it does have a First Amendment argument to deploy, if nothing else. If code is speech -- an idea that does have legal precedent -- the burden falls on the government to explain why it so badly needs to violate a Constitutional right with its interception request. This is a case worth watching. However, unlike the DOJ's very public battle with Apple in the San Bernardino case, there's nothing to see. I'm sure Facebook has filed motions to have court documents unsealed -- if only to draw more attention to this case -- but the Reuters article says there are currently no visible documents on the docket. (The docket may be sealed as well.) There is clearly public interest in this case, so the presumption of openness should apply. So far, that hasn't worked out too well for the public. And if the DOJ gets what it wants, that's not going to work out too well for the public either. Source
  9. VPN provider Private Internet Access, which has a strict no-logging policy, has proven once again that it is unable to link online activities with a user's identity. The conclusion, which was revealed as part of a hacking trial in San Jose federal court, is the second time that the provider's claims have been successfully tested in public. In April 2017, San Francisco resident Ross M. Colby was arraigned in U.S. District Federal Court in San Jose following an FBI investigation into alleged hacking offenses. The 34-year-old was accused of hacking into several local media websites owned by Embarcadero Media Group including the Palo Alto Weekly and the Almanac. He was charged with intentional damage to a computer, attempted damage, and misdemeanor computer intrusion. According to the indictment, Colby illegally accessed Embarcadero Media email accounts in July 2015. Then, in September 2015, several of the company’s websites were hacked to display the Guy Fawkes image associated with Anonymous. The message “Unbalanced Journalism for profit at the cost of human right. Brought to you by the Almanac” was also left behind. Facing more than two decades in prison and fines totaling several hundred thousand dollars, Colby pleaded not guilty and was freed on bail. On May 29, 2018, Colby’s trial began in federal court in San Jose. Palo Alto Online has been reporting (1,2) on the case, which has thrown up something of interest to VPN users. According to evidence provided by FBI Special Agent Anthony Frazier, between July and September 2015, IP addresses operated by VPN provider Private Internet Access (PIA) were used to access email accounts and systems belonging to Embarcadero Media. A former Colby roommate claims that the pair discussed computer security and frequently had discussions about the use of VPNs. He had even helped Colby set one up, he said. Last Friday, the San Jose Federal Court also heard that Colby told his roommate that he’d hacked a news website for pay. Also giving testimony was John Allan Arsenault, general counsel for London Trust Media, the owner of Private Internet Access. According to Almanac News, Arsenault told the Court that some VPN companies, PIA included, do not retain logs of customers’ Internet activities. This means they are unable to produce useful information in response to a subpoena. Arsenault told the Court that PIA accepts several payment methods, including cryptocurrency, but doesn’t keep records of customers’ names and addresses. The only thing the company holds is the email address used when the customer signs up. There was no record of Ross Colby signing up to PIA with his two known email addresses, Arsenault said. “We’re limited to search by what the government gives us. Just because we can’t find it doesn’t mean they didn’t use the VPN service,” he said. “Someone could create a throw-away (email) account to subscribe to us,” he added. But while PIA could not connect Colby’s IP addresses to any illegal activity, the same could not be said of other companies. Evidence presented to the Court showed that in addition to the PIA addresses that were used to access the Embarcadero Media email accounts, an IP address belonging to Comcast was also used on 20 occasions. Records provided by Comcast showed that John Colby, Ross Colby’s father and a retired Massachusetts state trooper, was assigned that particular IP address between June 2015 and October 2015, the date of the FBI’s subpoena to Comcast. John Colby further testified that his son stayed with him for about 10 days in July 2015, a period which coincided with the email breaches at Embarcadero Media. Evidence provided by the FBI also showed that an IP address used by Ross Colby at his home in San Francisco was used to access Embarcadero accounts, as was an IP address registered to a cafe frequently used by Colby. The case highlights some important points for those interested in Internet security. The most interesting for privacy advocates is that this is the second time that Private Internet Access’s “no-logging” policy has been tested in court. Such claims are notoriously difficult to prove but PIA has now passed twice with flying colors. However, the big lesson is that if an Internet crime is serious enough to involve the FBI, IP address evidence will be just part of the equation, with testimony from family and associates playing a major role too. The final decision on Colby’s plea lies with the jury, which is yet to render its decision. Source
  10. The people behind TVAddons and the ZemTV Kodi addon have failed to have their case dismissed. The defendants asked the Texas court to drop the case because they are foreign nationals with no connection to the state. However, the court disagrees which means that the legal battle continues. Last year, American satellite and broadcast provider Dish Network targeted two well-known players in the third-party Kodi add-on ecosystem. In a complaint filed in a federal court in Texas, add-on ZemTV and the TVAddons library were accused of copyright infringement. As a result, both are facing up to $150,000 in damages for each offense. While the case was filed in Texas, neither of the defendants live there, or even in the United States. The owner and operator of TVAddons is Adam Lackman, who resides in Montreal, Canada. ZemTV’s developer Shahjahan Durrani is even further away in London, UK. Screenshot of The owner and operator of TVAddons Adam Lackman/ AKA Eleazar Coding According to the legal team of the two defendants, this limited connection to Texas is reason for the case to be dismissed. They filed a motion to dismiss in January, asking the court to drop the case. “Lackman and Durrani have never been residents or citizens of Texas; they have never owned property in Texas; they have never voted in Texas; they have never personally visited Texas; they have never directed any business activity of any kind to anyone in Texas […] and they have never earned income in Texas,” the motion reads. Dish saw things differently, however. The broadcast provider replied to the motion, submitting hundreds of pages of evidence documenting TVAddons and ZemTV’s ties to the United States. Among other things, Dish pointed the court towards TVAddons own data, which showed that most of its users came from the United States. More than one-third of the total user base were American, it argued. “The United States was Defendants’ largest market with approximately 34% of all TV Addons traffic coming from users located in the United States, which was three times the traffic from the second largest market.” Late last week District Court Judge Vanessa Gilmore ruled on the motion to dismiss from both defendants, which is denied. At the time of writing, there is no additional information available as to how Judge Gilmore reached her decision. However, it is clear that the case will now move forward. This lawsuit is one of several related to Kodi-powered pirate steaming boxes. While TVAddons and ZemTV didn’t sell any fully loaded boxes directly, Dish argues that they both played a significant role in making copyright-infringing content available. Earlier this year, the manufacturer of the streaming device DragonBox was sued in a separate case by Netflix, Amazon and several major Hollywood studios. A few days ago Dragon Media denied all piracy allegations in the complaint, but the lawsuit remains ongoing. The same is true for a related case against Tickbox, another Kodi-powered box manufacturer. Source
  11. A Federal Court of Appeals (FCA) judge has allowed an appeal by Bell, Rogers, Videotron and TVA Group, in a copyright court case regarding Kodi media player add-ons. In a decision delivered on February 20th, 2018, FCA judge Yves De Montigny ruled that the search and seizure order obtained by Bell, Rogers, Videotron and TVA Group to investigate Montreal resident Adam Lackman’s home was done so lawfully and that the original Federal Court of Canada’s ruling regarding its unlawfulness should be set aside. Lackman was responsible for TVAddons.ag — a website designed to provide internet users with access to Kodi media player add-ons. Bell’s issue with the website was that it supplied users with access to add-ons that infringe on Canadian copyright, as well as add-ons that the FCA judged dubbed “non-infringing.” “The appellants have established a [strong case] of copyright infringement.” Additionally, the TVAddons website hosted the ‘Indigo’ tool, which automated the installation of Kodi add-ons, including some add-ons that infringed on Canadian copyright. Furthermore, the TVAddons site developed, supported and provided users with links to the ‘FreeTelly’ app, which came installed with 28 add-ons, including many that infringed on copyright. In his February 20th ruling, De Montigny also issued an interlocutory injunction, preventing Lackman from accessing the website or its related social media accounts. “The appellants have established a [strong case] of copyright infringement for the purposes of the Anton Piller order sought, and the judge’s conclusion to the contrary was based on a misapprehension of the case law and of… the Copyright Act… and on overriding and palpable errors in construing the facts,” said De Montigny, in his February 20th, 2018 FCA ruling. Addressing some legal terminology An Anton Piller order is a court order that provides individuals or groups of individuals with the legal right to search or seize assets without prior warning in order to prevent the destruction of those assets in a way that prevents them from being used as evidence. Bell was concerned that Adam Lackman was destroy evidence of his connection to the TVAddons website, thereby preventing a fair and speedy civil court case. Interlocutory injunctions are court orders that compel or prevent a party from carrying out certain actions until the final determinations of a case. Bell sought out an interlocutory injunction to prevent Lackman from making the add-ons found on TVAddons available to the public. The Federal Court of Appeals’ ruling In a lengthy ruling, FCA judge De Montigny argued that the decision delivered by Federal Court judge Rene LeBlanc failed to take into account the complete set of circumstances surrounding Lackman’s involvement with the TVAddons website. LeBlanc’s June 29th, 2017 decision favoured Lackman, arguing that he was treated unfairly by Bell and other Canadian telecoms with media assets during the legal process. In contrast, De Montigny allowed the Bell, Rogers, Videotron, TVA Group appeal, and set aside the June 2017 order issued by LeBlanc. One of De Montigny’s central arguments had to do with the TVAddons website as a “content neutral” conduit of information to the Canadian public. A 2004 Supreme Court of Canada case determined that internet service providers would be able to claim conduit status — and thus avoid persecution for the actions of their users — so long as the ISP existed as a content neutral entity. “[Lackman] cannot credibly assert that his participation is content neutral and that he was not negligent in failing to investigate, since at a minimum he selects and organizes the add-ons that find their way onto his website,” wrote De Montigny. De Montigny also drew comparison between the TVAddons website and the pre-loaded Android set-top boxes that the Federal Court previously issued an interlocutory injunction against in 2016. “The service offered by the respondent through the TVAddons website is no different from the service offered through the set-top boxes,” wrote De Montigny. “The means through which access is provided to infringing content is different… but they both provided unauthorized access to copyrighted material without authorization of the copyright owners.” “There is no principled reason to distinguish one from the other, as neither one of these services can be credibly considered to be a mere neutral conduit.” In response to the FCA ruling A Bell spokesperson told MobileSyrup via email that the company is “very pleased with the outcome of this appeal.” “Content piracy is theft and it’s extremely harmful to Canadian creators and the entire Canadian broadcasting ecosystem,” said Bell. The spokesperson added that this case only addresses the piracy of a single individual rather than an institutional solution, “which is why Bell supports FairPlay Canada’s application to the CRTC.” A statement posted to the TVAddons website expressed disappointment in the FCA’s ruling. “This is a major blow to internet rights in Canada.” “This is a major blow to internet rights in Canada, as it confirms the fact that under Canadian law there are no safe harbours protecting community-based platforms from abuse by website visitors,” reads an excerpt from the TVAddons statement. “This decision severely threatens innovation in Canada. Disruptive technologies have always been a thorn in the side of the status-quo, who will generally stop at nothing to destroy their competition.” University of Ottawa internet law professor told MobileSyrup via email “that the decision highlights yet again how Canada already has some of the toughest anti-piracy laws in the world and why the proposed site blocking system is so ill-advised.” It’s important to note that the Bell-Lackman case took place in civil court, and not criminal court. Unlike criminal court, where guilt must be determined beyond a reasonable doubt, civil court decisions must be made based on a balance of probabilities. Sources: Federal Court of Appeals & mobilesyrup.com
  12. Embedding a Tweet Can be Copyright Infringement, Court Rules A New York federal court has ruled that people can be held liable for copyright infringement if they embed a tweet posted by a third party. The case was filed by Justin Goldman, whose photo of Tom Brady went viral and eventually ended up at several news sites, which embedded these 'infringing' tweets. Nowadays it’s fairly common for blogs and news sites to embed content posted by third parties, ranging from YouTube videos to tweets. Although these publications don’t host the content themselves, they can be held liable for copyright infringement, a New York federal court has ruled. The case in question was filed by Justin Goldman whose photo of Tom Brady went viral after he posted it on Snapchat. After being reposted on Reddit, it also made its way onto Twitter from where various news organizations picked it up. Several of these news sites reported on the photo by embedding tweets from others. However, since Goldman never gave permission to display his photo, he went on to sue the likes of Breitbart, Time, Vox and Yahoo, for copyright infringement. In their defense, the news organizations argued that they did nothing wrong as no content was hosted on their servers. They referred to the so-called “server test” that was applied in several related cases in the past, which determined that liability rests on the party that hosts the infringing content. In an order that was just issued, US District Court Judge Katherine Forrest disagrees. She rejects the “server test” argument and rules that the news organizations are liable. “[W]hen defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result,” Judge Forrest writes. Judge Forrest argues that the server test was established in the ‘Perfect 10 v. Amazon’ case, which dealt with the ‘distribution’ of content. This case is about ‘displaying’ an infringing work instead, an area where the jurisprudence is not as clear. “The Court agrees with plaintiff. The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have “displayed” a work within the meaning of the Copyright Act.” As a result, summary judgment was granted in favor of Goldman. Rightsholders, including Getty Images which supported Goldman, are happy with the result. However, not everyone is pleased. The Electronic Frontier Foundation (EFF) says that if the current verdict stands it will put millions of regular Internet users at risk. “Rejecting years of settled precedent, a federal court in New York has ruled that you could infringe copyright simply by embedding a tweet in a web page,” EFF comments. “Even worse, the logic of the ruling applies to all in-line linking, not just embedding tweets. If adopted by other courts, this legally and technically misguided decision would threaten millions of ordinary Internet users with infringement liability.” Given what’s at stake, it’s likely that the news organization will appeal this week’s order. Interestingly, earlier this week a California district court dismissed Playboy’s copyright infringement complaint against Boing Boing, which embedded a YouTube video that contained infringing content. A copy of Judge Forrest’s opinion can be found here (pdf). SOURCE
  13. An Illinois federal court has denied a motion to dismiss the criminal case against alleged KickassTorrents owner Artem Vaulin. Among other things, the defense argued that torrent files themselves are not copyrighted content. The court decided, however, that the US Government's case is strong enough, so it will move forward. Last summer, Polish law enforcement officers arrested Artem Vaulin, the alleged founder of KickassTorrents. Polish authorities acted on a criminal complaint from the US Government, which accused Vaulin of criminal copyright infringement and money laundering. While Vaulin is still awaiting the final decision in his extradition process in Poland, his US counsel tried to have the entire case thrown out with a motion to dismiss submitted to the Illinois District Court late last year. One of the fundamental flaws of the case, according to the defense, is that torrent files themselves are not copyrighted content. In addition, they argued that any secondary copyright infringement claims would fail as these are non-existent under criminal law. After a series of hearings and a long wait afterwards, US District Judge John Z. Lee has now issued his verdict (pdf). In a 28-page memorandum and order, the motion to dismiss was denied on various grounds. The court doesn’t contest that torrent files themselves are not protected content under copyright law. However, this argument ignores the fact that the files are used to download copyrighted material, the order reads. “This argument, however, misunderstands the indictment. The indictment is not concerned with the mere downloading or distribution of torrent files,” Judge Lee writes. “Granted, the indictment describes these files and charges Vaulin with operating a website dedicated to hosting and distributing them. But the protected content alleged to have been infringed in the indictment is a number of movies and other copyright protected media that users of Vaulin’s network purportedly downloaded and distributed..,” he adds. In addition, the defense’s argument that secondary copyright infringement claims are non-existent under criminal law doesn’t hold either, according to the Judge’s decision. Vaulin’s defense noted that the Government’s theory could expose other search engines, such as Google, to criminal liability. While this is theoretically possible, the court sees distinct differences and doesn’t aim to rule on all search engines in general. “For present purposes, though, the Court need not decide whether and when a search engine operator might engage in conduct sufficient to constitute aiding and abetting criminal copyright infringement. The issue here is whether 18 U.S.C. § 2 applies to 17 U.S.C. § 506. The Court is persuaded that it does,” Judge Lee writes. Based on these and other conclusions, the motion to dismiss was denied. This means that the case will move forward. The next step will be to see how the Polish court rules on the extradition request. Vaulin’s lead counsel Ira Rothken is disappointed with the outcome. He stresses that while courts commonly construe indictments in a light most favorable to the government, it went too far in this case. “Currently a person merely ‘making available’ a file on a network in California wouldn’t even be committing a civil copyright infringement under the ruling in Napster but under today’s ruling that same person doing it in Illinois could be criminally prosecuted by the United States,” Rothken informs TorrentFreak. “If federal judges disagree on the state of the federal copyright law then people shouldn’t be criminally prosecuted absent clarification by Congress,” he adds. The defense team is still considering the best options for appeal, and whether they want to go down that road. However, Rothken hopes that the Seventh Circuit Court of Appeals will address the issue in the future. “We hope one day that the Seventh Circuit Court of Appeals will undo this ruling and the chilling effect it will have on internet search engines, user generated content sites, and millions of netizens globally,” Rothken notes. For now, however, Vaulin’s legal team will likely shift its focus to preventing his extradition to the United States. Article
  14. The U.S. National Security Agency has been allowed to continue to collect phone records in bulk of people in the country, while lawmakers consider new legislation that would block the agency from collecting the data. The government's application for reauthorization of the program for a period of 90 days was approved by the Foreign Intelligence Surveillance Court (FISC), according to a joint statement Friday by the Department of Justice and Office of the Director of National Intelligence. The government argued that it was seeking the extension as the relevant legislation has not been enacted yet. The bulk collection of phone metadata in the U.S. by the NSA was first disclosed in June last year by former agency contractor, Edward Snowden, through news outlets. In the wake of criticism of the surveillance program, President Barack Obama proposed in January changes in the program, including requiring that the government should not collect or hold the data in bulk, and deciding that, except in an emergency situation, the FISC will have to approve any queries to the phone records database. Obama also decided that the government should pursue phone calls that are two-steps removed from a number associated with a terrorist group, instead of the three hops previously authorized. In March, Obama said that the data should remain with the telephone companies, but said that Congress would have to pass the appropriate legislation. The U.S. Freedom Act, which was passed in May by the U.S. House of Representatives, addresses issues relating to access to phone records by the NSA. It now awaits consideration by the Senate. The version of the bill that was passed by the House has loopholes that could end with the NSA having the authority to continue to access phone data in bulk, according to civil rights groups. Groups like the Electronic Frontier Foundation are, for example, concerned about the new definition of "specific selection term," which describes and limits who or what the NSA is allowed to monitor. (Originally defined in the legislation as "a term used to uniquely describe a person, entity, or account," the expression is now defined as referring to "a discrete term, such as a term specifically identifying a person, entity, account, address, or device." The broader definition could allow for the use of broad selection terms such as a "zip code, an area code, the physical address of a particular email provider or financial institution, or the IP address of a web hosting service that hosts thousands of web sites," Kevin Bankston, policy director of the New America Foundation's Open Technology Institute, wrote in May. The Obama administration had backed the passing of the bill by the House in its diluted form, though some tech companies said they could not support the legislation as it had loopholes. The groups are now hoping that the Senate will restore the legislation to its previous form, particularly on the selection term for searches. The joint statement by the DOJ and ODNI urged the Senate to swiftly consider the legislation, adding that the administration remains ready to work with Congress to clarify that the bill prohibits bulk collection. The new reauthorization of bulk collection under Section 215 of the Patriot Act expires on Sept. 12. The court has previously reauthorized the program and its decisions were declassified and made public since the Snowden revelations. Source
  15. Today, the Court of Appeals of The Hague rendered its judgment in the appeal of internet service providers XS4ALL and Ziggo against anti-piracy organization BREIN. In first instance, the District Court allowed Breins claims: an IP-block and DNS-block. Purpose of the block was to prevent the subscribers of the providers to access The Pirate Bay-website. The Court of Appeals overturned the ruling, since the providers could show that the block had not been effective since the first ruling. In applying the case law from the European Court of Justice (ECJ), the Court of Appeal held that an access provider is not under an obligation to take measures that are disproportional and/or ineffective. XS4ALL was represented by Christiaan Alberdingk Thijm and Caroline de Vries of bureau Brandeis. http://bureaubrandeis.com/duly-noted/court-appeals-denies-ip-block
  16. By MANNY FERNANDEZJAN. 24, 2014 Erick Munoz, the husband of Marlise Munoz, at the Tarrant County courthouse in Fort Worth on Friday. Larry W. Smith/European Pressphoto Agency FORT WORTH — A Texas judge ruled Friday that a Fort Worth hospital may not keep a brain-dead pregnant woman on life support against her family’s wishes, and ordered doctors to take her off the machines by 5 p.m. on Monday. The ruling gives the family of the woman, Marlise Muñoz, their first legal victory in a two-month battle over the fate of her body that has raised an emotionally charged national debate over end-of-life care, abortion and a Texas law that prohibits medical officials from withdrawing life support from a pregnant patient. The judge, R. H. Wallace Jr. of 96th District Court in Tarrant County, ruled that Ms. Muñoz, 33, who has been on life support at John Peter Smith Hospital since November and is now 22 weeks pregnant, was legally dead, agreeing with the family’s lawyers that the hospital had erred in its decision to keep her on life support. The hospital had said the Texas law addressing life support for pregnant women prevented it from granting the family’s wish, but the judge said the law did not apply to Ms. Muñoz because she is dead. Judge Wallace set the 5 p.m. Monday deadline, saying he wanted to give the hospital time to file an appeal. A spokeswoman for the county-owned hospital, which was represented by the Tarrant County district attorney’s office, said it would be consulting with its lawyers. The hospital appeared to be considering an appeal. Lawyers for Ms. Muñoz’s husband, Erick Muñoz, said they were provided with medical records that showed the fetus was “distinctly abnormal” and suffered from hydrocephalus — an accumulation of fluid in the cavities of the brain — as well as a possible heart problem. The hospital acknowledged in court documents that the fetus was not viable. The hearing Friday, at a courthouse three miles from the hospital, touched on the larger political issues that have underscored her case. In legal filings and in the courtroom, the lawyer for the hospital, Larry M. Thompson, said that Ms. Muñoz met the clinical criteria for brain death two days after she arrived there. But he argued that the law still applied to her, and that the Texas Legislature’s passage of the law showed that the state had a compelling interest in protecting unborn children. Mr. Thompson wrote in court papers that the Texas Penal Code’s definition of an individual stated that an unborn child was alive at every stage of gestation, from fertilization until birth. And he pointed to a bill backed by Gov. Rick Perry that lawmakers passed last year that banned abortions after 20 weeks of pregnancy, based on the theory that the fetus can feel pain at that stage. “Given the strong interest of the Texas Legislature in protecting the life of unborn children, it is unlikely the Legislature contemplated only the welfare of the mother” when it enacted the law prohibiting the withdrawal of life support for pregnant patients, Mr. Thompson wrote. He added that it was reasonable to infer that the law was meant to “protect the unborn child against the wishes of a decision maker who would terminate the child’s life along with the mother’s.” But a lawyer for Mr. Muñoz said Mr. Thompson’s argument amounted to a sweeping public policy declaration with broad implications. The lawyer, Heather L. King, said that if the state indeed had such an interest, paramedics who arrived at crash scenes would be required to give dying women pregnancy tests to ensure they were following the law. Ms. King apologized in the courtroom for putting it so crudely, but told the judge that pregnant women “die every day,” adding: “When they die, their fetus dies with them. That is the way it’s always been, and the way it should be.” Moments after Judge Wallace made his ruling, Mr. Muñoz, 26, who had been sitting in a bench behind his lawyers, slumped in his seat and began weeping. He was embraced by his relatives. “There’s nothing happy about today,” Ms. King said outside the courtroom. “This was a sad situation all the way around. We are relieved that Erick Muñoz can now move forward with the process of burying his wife.” The hearing dealt largely with the blunt issue of Ms. Muñoz’s death. Brain death — the total loss of all brain functions — amounts to a legal state of death. As part of his ruling, the judge ordered the hospital to pronounce Ms. Muñoz dead. Though Mr. Muñoz did not speak at the hearing, he said in court papers that it has been painful to watch his wife deteriorate from the woman he knew to what he described as a corpse being kept alive against his wishes. “Over these past two months, nothing about my wife indicates she is alive,” he said in an affidavit. “When I bend down to kiss her forehead, her usual scent is gone, replaced instead with what I can only describe as the smell of death. As a paramedic, I am very familiar with this smell, and I now recognize it when I kiss my wife. In addition, Marlise’s hands no longer naturally grip mine for an embrace. Her limbs have become so stiff and rigid due to her deteriorating condition that now, when I move her hands, her bones crack, and her legs are nothing more than dead weight.” Mr. Muñoz’s lawyers had asked the judge to declare the Texas law unconstitutional, arguing that it violated Ms. Muñoz’s rights under the 14th Amendment to make medical decisions about her own body. The judge said since the law did not apply to Ms. Muñoz, he would make no ruling on its constitutionality. Ms. Muñoz, who was trained as a paramedic, lived with her husband and their 15-month-old son, Mateo, in nearby Haltom City. She was at home in the middle of the night on Nov. 26 when she collapsed from an apparent blood clot in her lungs. She had gone to the kitchen to prepare a bottle for Mateo. Her husband later found her on the kitchen floor. She had stopped breathing, but was alive when she arrived at the hospital, according to court documents. Her parents and her husband’s lawyers said she was not breathing for an unknown length of time, possibly as long as an hour or more, which severely harmed the fetus by depriving it of oxygen. http://www.nytimes.com/2014/01/25/us/judge-orders-hospital-to-remove-life-support-from-pregnant-woman.html?hp Comment: Brain dead already occurred, no point keep going, right legal decision as hospital can not remove support by itself w/o court order
  17. FRANKFURT Fri Jan 24, 2014 8:22am EST Surfboards lean against a wall at the Google office in Santa Monica, California, October 11, 2010. Credit: Reuters/Lucy Nicholson (Reuters) - A German court has ordered Google to block search results in Germany linking to photos of a sex party involving former Formula One boss Max Mosley. The court said on Friday that although Google had not taken the pictures it was responsible as a distributor of the images. "The court is of the opinion that the banned pictures of the plaintiff severely violate his private sphere, as they show him active in sexual practices," the court said. The ruling comes more than two months after a French court ordered Google to find a way to remove recurring links to images of Mosley, who was photographed in 2008 at an orgy with prostitutes. The dispute in the Hamburg court relates to photographs of Mosley published by the defunct British tabloid News of the World that were accompanied by an article suggesting he had organized a "sick Nazi orgy". Mosley has acknowledged that he engaged in sado-masochistic activity with the five women and paid them 2,500 sterling ($4,000), but denied the orgy was Nazi-themed. The decision is another setback for Google as it tries to defend a global stance that the search engine is merely a platform that delivers links to content and it should not be responsible for policing them. Although Google can delete images on its website, it cannot prevent others reposting them, resulting in a constant game of catch-up. Google said on Friday it would appeal the ruling. "It could mean that Internet providers are required to monitor even the smallest components of content they transmit or store for their users. We believe this is contrary to European law," a Google spokesman said. In a blog post published in September, Google said it had already removed "hundreds of pages for Mr. Mosley" as part of a process that helps people delete specific pages from Google's search results after they have been shown to violate the law. (Reporting by Harro ten Wolde and Nikola Rotscheroth; Editing by Catherine Evans) http://www.reuters.com/article/2014/01/24/us-google-germany-court-idUSBREA0N0Y420140124
  18. Robinson Meyer Jan 21 2014, 3:49 PM ET Tech bloggers—who are also journalists—at an Instagram event last year (Lucas Jackson/Reuters) One of the great questions of our time came closer to resolution last week, when a federal court ruled that bloggers are journalists—at least when it comes to their First Amendment rights. The Ninth Circuit ruled as such on Friday in Obsidian Finance Group v. Crystal Cox, a complicated case first decided in 2011. The court found that even though someone might not write for the “institutional press,” they’re entitled to all the protections the Constitution grants journalists. Background That Is Not About Are Bloggers Journalists In 2010, Crystal Cox—an “investigative blogger”—published a series of angry posts about Obsidian Finance Group and its partners, alleging tax fraud, money laundering, and other crimes. The posts appeared on a set of aptly (and memorably) named websites, including “obsidianfinancesucks.com.” Obsidian and one of its partners, Kevin Padrick, sued Cox, alleging defamation. Only statements of apparent fact can be ruled defamation. When the case went to trial, Oregon district court Judge Marco Hernandez ruled that most of Cox’s entries were too hyperbolic to count as anything but opinion, and thus could not be considered defamation—except for one post, which the Oregon district decided was sufficiently factual. A jury awarded Obsidian and Padrick $2.5 million in damages for the libel. The New York Times’s media reporter David Carr wrote about the case that year, ruling it less about journalism than Right and Wrong: “She didn’t so much report stories,” he said of Cox, “as use blogging, invective and search engine optimization to create an alternative reality.” Other things were going on in the case. Cox claimed that her sources for the tax fraud claim were secret, and that Oregon’s media shield law protected her from revealing them. Hernandez decided that she did not qualify for shield protection under the law, partly because she had offered to take down the offending posts for $2,500 per month. But this new appeal ruling, the one on Friday, turned on something else—the intersection of two pre-existing piece of case law, New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc. Both dictate what kinds of speech qualify as defamation. In the landmark 1964 Sullivan, the Supreme Court ruled that public figures can only seek claims for defamation if false information was published with “actual malice.” In 1974’s Gertz, meanwhile, the same court ruled that false information about private individuals qualified as defamation if it was negligently published. Taken together, the two cases establish a meshing precedent: To count as defamation, false information about public figures must be published with malign intent. False information about private figures, meanwhile, must merely be published negligently. Cox claimed that Obsidian and its partners were public figures, an assertion the Ninth Circuit nixed. Writing for the court, Judge Andrew Hurwitz said that her posts, while about private figures, covered a topic of public concern. They fell, he said, under the domain of Gertz. The information contained in them could not be merely wrong: It had to be negligently published. Crucially, the jury in the 2011 trial, Hurwitz said, had never been informed of such a stipulation. The Bloggers and Journalists Part Cox might not qualify for Gertz’s protections if she was not part of a media organization. If Cox is a blogger, not a journalist, and if only journalists are entitled to the protections of negligent publications, then Cox might not qualify for Gertz at all. Was Cox, a self-titled blogger, in fact a journalist? On this, Hurwitz was clear. “Although the Supreme Court has never directly held that the Gertz rule applies beyond the institutional press, it has repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers,” he wrote. In one case, he said, “the Court expressly noted that ‘we draw no distinction between the media respondents and’ a non-institutional respondent.” Hurwitz goes on, extending journalistic protections to all those liberated of their institutions: The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media . . . the line between the media and others who wish to comment on political and social issues becomes far more blurred.” So bloggers—even slimy ones—are, at least legally, journalists. Cox’s case will get a new trial in Oregon’s district court, and the jury will be appropriately informed of the Gertz rule. Perhaps the award of damages will be reduced. And we, those following the case at home, can change into our pajamas, order pizza to our various apartments, and blog away. We will not just be bloggers—we will be, according to the law, journalists. http://www.theatlantic.com/technology/archive/2014/01/us-court-bloggers-are-journalists/283225
  19. Earlier today, San Diego court commissioner John Blair found there was no evidence supporting the claim that the device was operating at the time of the traffic stop. In addition, Blair dismissed the speeding citation since an expert wasn’t available to testify if the patrolman’s speed detector was properly calibrated prior to the stop. Speaking about the win after the court session, Abadie said “I believe we have to start experimenting with devices like this. As a hands-free device, it is safer than a cell phone.” Interestingly, the ruling does provide a bit of a instructional loophole for Google Glass owners. As long as a driver turns off Google Glass prior to a police officer walking up to the driver’s side window of the vehicle, there’s no way to prove that Google Glass was operating during the drive. The ruling could also help encourage more development of integrated driving applications, perhaps designed by the car manufacturer to display data such as current speed or turn-by-turn directions. That being said, California lawmakers could simply outlaw use of Google Glass while driving and make the device illegal to wear when behind the wheel. Legislators in Illinois, Delaware, New Jersey and West Virginia have already considered similar legislation that would make wearing Google Glass illegal while operating a motor vehicle. Source
  20. Both Samsung and Apple will appear before Judge Lucy Koh on January 30th. The issue this time, is a request by Samsung for an extension to answer Apple's post-appeal request for a permanent injunction. With word that both sides are working on a settlement, Samsung wanted to have the talks on the record by asking the judge to allow it to conduct discovery relating to these talks. Apple opposed, which you might expect it would, and Judge Koh agreed with them. Late Tuesday, she ordered both sides to appear on the 30th and ruled that Samsung cannot depose an Apple witness on the settlement talks. Obviously, Samsung believes that there is something involved with the settlement talks that would benefit its position in the case. Koh's order does make some sense in that Samsung, as a party to the settlement talks with Apple as they discuss a licensing deal, would seem to already be aware of any "concessions" made by Apple and thus, would not seem to require discovery. Interested in the Patent Issues, You can play legal beagle by downloading a transcript of Koh's order below. 14-01-17 Source
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