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July 15, 2008

YouTube Privacy Deal? [9:35 am]

How good a deal remains to be seen. There’s anonymized data and then there’s really anonymized data: Lawyers in YouTube lawsuit reach user privacy deal (pdf)

Defendants and plaintiffs in two related copyright infringement lawsuits against YouTube have reached a deal to protect the privacy of millions of YouTube watchers during evidence discovery, a spokesman for Google Inc said on Monday.

Earlier in July, a New York federal judge ordered Google to turn over YouTube user data to Viacom Inc and other plaintiffs to help them to prepare a confidential study of what they argue are vast piracy violations on the video-sharing site.

Google said it had now agreed to provide plaintiffs’ attorneys for Viacom and a class action group led by the Football Association of England a version of a massive viewership database that blanks out YouTube username and Internet address data that could be used to identify individual video watchers.

“We have reached agreement with Viacom and the class action group,” Google spokesman Ricardo Reyes said. “They have agreed to let us anonymize YouTube user data,” he said.

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iPod Touch and iPhone 2.0 Software [7:16 am]

I had been hesitant about investing in another upgrade for my Touch software, particularly after the January upgrade was mysteriously expunged from iTunes a while ago, making it impossible to “Restore” my Touch following a sync problem, but I had become far too reliant upon the email tool to really pass up a $10 (re)purchase.

But I have been stunned by the new Map tool. Not that it generates maps, of course. Rather, it’s the spooky way that my Touch can locate itself on those maps. The techniques for geolocation using cellphone towers are pretty much a CSI staple these days, but as far as I know, the Touch doesn’t use those towers (I’m not an AT&T cell user, for example). So, all it has to go on is the IP address of the wifi station it connects to, right?

The fact that it locates me at MIT is a little spooky, but not too much so. MIT has class A address block, so once you know that the first number in the address is 18, you know that you’re at MIT. Moreover, the second number of the IP address roughly corresponds to a building, so the fact that it located me in E40 and in the Au Bon Pain around the corner is not too amazing a feat.

But, last night I tried it at my home, where I have Verizon DSL — with a DHCP-assigned address that changes over time (I haven’t sprung for the business account, which fixes the address). Despite that, the Touch Map application located me on the map with a precision equal to what Google Earth will do given a street address — meaning that, in some way, the Map application gets Verizon to query its DHCP logs and then associate my IP address with my billing address! (Unless it’s delegated that association to Apple/Yahoo!)

Spooky — and a little scary. More testing required, of course, but I clearly need to learn more….

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Trademark and the Internet [7:05 am]

Court Clears eBay in Suit Over Sale of Counterfeit Goods

In a long-awaited decision in a four-year-old trademark lawsuit against eBay brought by the jeweler Tiffany & Company, Judge Richard J. Sullivan of the Federal District Court in Manhattan ruled that the online retailer does not have a legal responsibility to prevent its users from selling counterfeit items on its online marketplace.

The verdict reaffirms that Internet companies do not have to actively filter their sites for trademarked material. Rather, they can rely on intellectual property holders to monitor their sites, as long as they promptly remove material when rights holders complain.

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July 12, 2008

Why I’ve Been In Such A Bad Mood Since Wednesday [12:52 pm]

Glenn Greenwald’s Torture and the rule of law, albeit a little long, explains it really well.

The New Yorker’s Jane Mayer, one of the country’s handful of truly excellent investigative journalists over the last seven years, has written a new book — “The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals” — which reveals several extraordinary though unsurprising facts regarding America’s torture regime. [...]

This is what a country becomes when it decides that it will not live under the rule of law, when it communicates to its political leaders that they are free to do whatever they want — including breaking our laws — and there will be no consequences. There are two choices and only two choices for every country — live under the rule of law or live under the rule of men. We’ve collectively decided that our most powerful political leaders are not bound by our laws — that when they break the law, there will be no consequences. We’ve thus become a country which lives under the proverbial “rule of men” — that is literally true, with no hyperbole needed — and Mayer’s revelations are nothing more than the inevitable by-product of that choice.

[...] That’s the inevitable outcome when a country’s political establishment decrees itself exempt from the rule of law. If the rule of law doesn’t constrain the actions of government officials, then nothing will. Continuous revelations of serious government lawbreaking have led not to investigations or punishment but to retroactive immunity and concealment of the crimes. Judicial findings of illegal government behavior have led to Congressional action to protect the lawbreakers. The Detainee Treatment Act. The Military Commissions Act. The Protect America Act. The FISA Amendments Act. They’re all rooted in the same premise: that our highest government leaders have the power to ignore our laws with impunity, and when they’re caught, they should be immunized and protected, not punished.

When our political and media elite aren’t defending the Bush administration’s lawbreaking, they’re dismissing its importance. [...]

[...] That warped mentality — as much as the most lawless elements of the Bush administration — is what is responsible for the destruction of our fundamental national character over the last seven years. “Laws” and “crimes” are only for the common people and for other countries. We’re too magisterial a country, our political leaders are too Important and too Good, to subject them to punishment when they break our laws. That’s the mentality that has created the climate of Lawlessness that defines who we are.

[...] It will never stop being jarring that Pulitzer-Prize-winning revelations from the New York Times that the President and the telecom industry were committing felonies for years culminated in the full-scale protection of the lawbreakers and retroactive legalization of the criminality by the “opposition party” which controls the Congress.

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July 11, 2008

Kevin Martin Didn’t Get The Memo?! [10:14 am]

It’s up to the market to deal with net neutrality, right? People who are worried about a limitation should just switch service providers — oh, right. FCC chief says Comcast violated Internet rules (pdf)

The head of the Federal Communications Commission said Thursday he will recommend that the nation’s largest cable company be punished for violating agency principles that guarantee customers open access to the Internet.

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Scott Bateman’s Latest FISA Broadside [8:00 am]

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July 10, 2008

You Suck At Photoshop [10:13 am]

In an Iranian Image, a Missile Too Many

As news spread across the world of Iran’s provocative missile tests, so did an image of four missiles heading skyward in unison. Unfortunately, it appeared to contain one too many missiles, a fact that had not emerged before the photo appeared on the front pages of The Los Angeles Times, The Financial Times, The Chicago Tribune and several other newspapers as well as on BBC News, MSNBC, Yahoo! News, NYTimes.com and many other major news Web sites.

If you haven’t seen the series (which, happily, has recently seen the release of a new episode), take some time and check them out as soon as you can — You Suck At Photoshopepisode #3, if no other

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Fair Use? [9:44 am]

Isn’t it interesting that, once we accept the fact that the US Government tortures people, we can have serious discussions of process? The banality of evil, indeed. Barney the purple torturer? (pdf)

Some months ago, Mother Jones magazine put together what it called a “torture playlist” of songs that American interrogators have used in their sessions with detainees during the last few years. “Torture’s Top 10″ was what one newspaper called it.

I have no idea whether the list is accurate. It includes mostly the kinds of songs you might expect — by Metallica, Drowning Pool, Deicide, Eminem. The top song on the list included an extremely obscene reference to the religion of others.

But I must admit I was surprised to see that one of the songs supposedly used to break the will of terrorist suspects and cause them to confess to crimes against humanity was the well-known “I Love You” from the “Barney” TV series. That’s a song that I produced and arranged in the 1990s (to the tune of “This Old Man”). And this is certainly not a use I ever would have dreamed of for it.

[...] Ultimately, the real issue here does not have to do with the morality of the music being played but with the morality of the people who are playing it. And there’s not a thing that I or any other composer or songwriter can do about that.

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A Nice Summation [9:36 am]

Why is YouTube hoarding data? (pdf)

Stanton’s order is a reminder that websites shouldn’t retain personally identifiable data any longer than the law or their services require. Google argues that the data enable it to improve its services, combat fraud and personalize offerings. Its approach, though, reflects an engineer’s habit of hoarding information for the sake of as-yet-unimagined features, not the cautious practices of a privacy-conscious company. If YouTube really needs to keep months’ worth of data about what users do, the least it can do is remove the links to who’s doing it. In the meantime, users should remove the links themselves by following instructions on the site for erasing their viewing histories.

Also there’s the AP piece: Privacy protections disappear with a judge’s order (pdf)

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The NYT Finds A New Windmill To Tilt At [9:14 am]

After yesterday, who really expects anyone in the US Government to act as if electronic privacy merits protection? The Government and Your Laptop

The Department of Homeland Security is routinely searching laptops at airports when Americans re-enter the United States from abroad. The government then pores over or copies the laptop’s contents — including financial records, medical data and e-mail messages. These out-of-control searches trample the privacy rights of Americans, and Congress should rein them in.

[...] Congress should pass a law that allows the government to look at data on laptops and other portable electronic devices only when it has a reasonable suspicion about the specific person being searched — something the law does not currently require. To copy data or seize devices, the government should be required to show probable cause, an even higher standard.

Congress should force the government to spell out the rules governing its searches and report on how many it conducts. The law should also require the government to destroy data that does not lead to criminal charges.

At this point, the only hope is the Judicial branch, it appears. And we know what’s been going on there for the past couple of decades. Orwell would be mightily shocked that his predictive abilities were so good, and that his warnings have been so completely ignored.

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July 9, 2008

A Day of Mourning — And Anger [12:01 pm]

Want to know how to lose an election? Pretend your base will vote for you no matter what. The problem is not that the disaffected will vote for the opposition — they just won’t vote at all because, in the end, what difference does it really make? *sigh* Today’s cover-up of surveillance crimes and Barack Obama

[T]oday, the Democratic-led Congress — with the support of both John McCain and Barack Obama, neither of whom will even bother to show up and vote — will cover-up those crimes. Law Professor and Fourth Amendment expert Jonathan Turley was on MSNBC’s Countdown with Rachel Maddow last night and gave as succinct an explanation for what Democrats — not the Bush administration, but Democrats — will do today. Anyone with any lingering doubts about what is taking place today in our country should watch this:

As Turley says, and as I’ve written many times over the last two weeks, what is most appalling here beyond the bill itself are the pure falsehoods being spewed to the public about what Congress is doing — and those falsehoods are largely being spewed not by Republicans. Republicans are gleefully admitting, even boasting, that this bill gives them everything Bush and Cheney wanted and more, and includes only minor changes from the Rockefeller/Cheney Senate bill passed last February (which Obama, seeking the Democratic Party nomination, made a point of opposing).

Rather, the insultingly false claims about this bill — it brings the FISA court back into eavesdropping! it actually improves civil liberties! Obama will now go after the telecoms criminally! Government spying and lawbreaking isn’t really that important anyway! — are being disseminated by the Democratic Congressional leadership and, most of all, by those desperate to glorify Barack Obama and justify anything and everything he does.

Thomas’ summary for H.R.6304

Later: Congress votes to immunize lawbreaking telecoms, legalize warrantless eavesdropping; Senate Backs Wiretap Bill to Shield Phone Companies

I think the worst thing about this, and the real long term problem for the Democratic Party, is that, up until today, they had deniability — they could always say that they hadn’t been given the whole story or were steam-rollered or were lied to. But no Democrat who voted for this bill has that excuse this time around. Instead, we have been treated with the spectacle of watching the Party leadership lie to themselves (and, by the way, to their constituents) to satisfy political expediency. Given that kind of intellectual and ideological dishonesty, I am left with this ugly question — what’s the difference between someone who is opposed to my political ideology and someone who shares my political ideology, but won’t act on it? Who’s the more honest actor?

Ah, well — time to give money to the ACLU and the EFF so they can continue the fight. And, see ; Constitutional Drift: Obama Veers to the Right, But Does He Need to Take the Constitution With Him?.

Later: more fallout: Was Obama’s FISA vote “calculated?”; The Audacity of Listening; Democrats take Obama shift in stride (pdf); Democrats’ strategy: Strength through bowing; Interview with ACLU re: constitutional challenge to new FISA law; Betrayed by Obama. From the last one:

Of course, the only thing more offensive than Obama’s yes vote on FISA was McCain’s decision to skip the vote entirely — and then trash Obama for “flip-flopping” on FISA. Unfortunately, Obama did flip-flop on FISA, but McCain didn’t bother to show up. So far, this has been a really dispiriting campaign. Part of the problem, I think, is that the two finalists are guys beloved by the media, who’ve had a fairly free ride to here. With their rivals out of the way, they’re getting more scrutiny, and it’s not all adoring. Having won impressive underdog victories, neither campaign seems ready for prime time. I know one thing, I’d really like to vote for the guy who said this:

“This Administration has put forward a false choice between the liberties we cherish and the security we demand. When I am president, there will be no more illegal wire-tapping of American citizens; no more national security letters to spy on citizens who are not suspected of a crime; no more tracking citizens who do nothing more than protest a misguided war. Our Constitution works, and so does the FISA court.”

Too bad Obama doesn’t believe that anymore.

Later — the letters to the NYTimes editor are pretty striking, too — The Day of the New Surveillance Law

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Privacy Hearing Today [8:45 am]

Privacy Implications of Online Advertising

Individuals and businesses are becoming increasingly dependent upon the Internet for social, entertainment, research and business activities. This has created the incentive and opportunity for companies to collect, use, and disseminate data regarding online users. There is concern, however, that tracking individuals’ Internet activity and gathering information from online users violates their expectations of privacy. Individuals often are unaware what information is being collected about them, how it is being used and to whom it is disseminated.

In this hearing, the Committee will consider the current state of the online advertising industry and that market’s impact on users’ privacy. Witnesses are expected to focus on the key factors driving online behavioral advertising, the methods of online behavioral advertising employed by industry, and the protections the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) should adopt to protect consumers from unwanted or unnecessary invasions of their privacy.

Also Congress studies how people track your online use (pdf); Ad-Targeting Companies and Critics Prepare for Senate Scrutiny

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Why Abuse of State Secrets Privilege Is So Terrifying [7:06 am]

A distressing writeup by a lawyer from the Al-Haramain Islamic Foundation Inc. v. Bush case — a suit against the President (rather than the telecom companies) over warrantless wiretapping. And yet, a strangely inspirational one, suggesting that intelligent men of good will and a judicial system that still seems to work can work miracles sometimes: Suing George W. Bush: A bizarre and troubling tale

The story of how Al-Haramain’s lawyers negotiated the journey thus far to Judge Walker’s ruling — a team of seven lawyers that includes me — sheds light on how much is at stake for the Bush administration and the country. It is a surreal saga, involving a top-secret document accidentally released by the government, a showdown between Bush lawyers and a federal judge, the violent destruction of a laptop computer by government agents, and possibly even the top-secret shredding of a banana peel.

Call me Alice — because this is a tale directly from Government Secrecy Wonderland, the bizarre and unnerving adventures of suing President Bush for apparently violating a federal law. I’ll swear under penalty of perjury that what follows is true and correct. Otherwise, you might not even believe it.

[...] I can’t publicly reveal what’s in the Document because, well, it’s a secret. I would be committing a crime — a violation of the Espionage Act of 1917 — if I were to do so. But we assert the Document as proof of allegations we have made that in March and April of 2004 the National Security Agency conducted warrantless electronic surveillance of attorney-client communications between a representative of Al-Haramain and two of its attorneys, and that in May of 2004 the NSA gave logs of those surveilled communications to OFAC.

[...] Rebutting arguments you’ve not been allowed to see is a talent that isn’t taught in law school. I consulted Kafka’s “The Trial,” looking for helpful tips, but found none. I tried guessing at what might be in the government’s secret brief and then hazarding a response in our own. Because of Judge King’s prior order, we had to confer with the DOJ attorneys on the logistics of how to do this secret filing.

[...] We went forward without Nelson, drafting our secret appellate brief in a DOJ office, on a DOJ computer, under the watch of a DOJ security officer — that is, under the auspices and control of our adversary in the legal case. We could print out drafts but couldn’t take them from the room; instead, we were to leave the drafts on the table to be shredded by Hogarty later. When the brief was done, we were to print out five copies: one for each of the three judges on the panel that would decide the appeal, one for the DOJ attorneys and one to be put in a special safe under Hogarty’s supervision. She would personally give the judges their copies, which nobody else — not the court clerks, not the judges’ staff attorneys — would be permitted to see. We would not be allowed to keep a copy of what we had written; the brief in Hogarty’s safe was “our” copy.

Hogarty explained that anything we wrote down that contained classified information, then or later, would instantly become “derivatively classified” and thus unlawful for us to possess. I wondered whether this meant that the portion of my brain that remembers the Document is also “derivatively classified,” making its presence in my skull unlawful.

Goldberg and I spent about three hours writing our response to the secret government brief we had not been allowed to see. [...]

[...] It’s hardly a secret that the Al-Haramain plaintiffs were spied upon — it’s been reported in Salon, the New York Times, the Washington Post, the Los Angeles Times and the New Yorker magazine, among others. The reality is that the Al-Haramain case doesn’t threaten national security; it threatens only the “unitary executive” theory and the notion that presidents can disregard an act of Congress at their pleasure. Yet we have had to litigate the Al-Haramain case in the shadow of secrecy, where the government wants the case to die quietly — without a court ruling on whether the president of the United States has broken the law.

We, the members of the Al-Haramain legal team — Ashlee Albies, Steven Goldberg, Bill Hancock, Zaha Hassan, Tom Nelson and I — cannot let that happen without fighting to the end.

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July 8, 2008

More Horsesh*t on FISA [7:57 am]

Unbelievably, there are still apologists who are willing to go on record supporting this mess. Of course, the defense is a variation of the false choice between being shot or being hung: Listening to Compromise

The compromise legislation that will come to the Senate floor this week is not the legislation that I would have liked to see, but I disagree with those who suggest that senators are giving in by backing this bill.

The fact is that the alternative to Congress passing this bill is Congress enacting far worse legislation that the Senate had already passed by a filibuster-proof margin, and which a majority of House members were on record as supporting.

What’s more, this bill provides important safeguards for civil liberties. [....]

As someone whose civil liberties were violated by the government, I understand this legislation isn’t perfect. But I also believe — and here I am speaking only for myself — that it represents our best chance to protect both our national security and our civil liberties. For that reason, it has my personal support.

Wow, buddy, don’t stick your neck out too far — so, you’re in favor, and you got the bully pulpit of the NYT Op-Ed page, but you don’t even believe it strongly enough to try to convince anyone else? I guess the Times had to find someone to take a position in opposition to its own editorial, which is: Compromising the Constitution

Congress has been far too compliant as President Bush undermined the Bill of Rights and the balance of powers. It now has a chance to undo some of that damage — if it has the courage and good sense to stand up to the White House and for the Constitution.

The Senate should reject a bill this week that would needlessly expand the government’s ability to spy on Americans and ensure that the country never learns the full extent of President Bush’s unlawful wiretapping.

I’ve been overwhelmed these last couple of days (and for a few more), but I will get back to posting soon. Sorry.

Of course, as we enter the campaign season in earnest, I expect we’ll see more of this kind of infantilizing of political dialog and I, for one, am really getting sick of it. I doubt we’re going to see either candidate ever speak to us as if we were adults.

See also August 8, 1974 v. July 9, 2008

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