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Enslaving Speech and Thought

“[...] I suggested in 'Repressive Tolerance' the practice of discriminating tolerance in an inverse direction, as a means of shifting the balance between Right and Left by restraining the liberty of the Right, thus counteracting the pervasive inequality of freedom (unequal opportunity of access to the means of democratic persuasion) and strengthening the oppressed against the oppressed [sic, should be "oppressors" -AMPP Ed.]. Tolerance would be restricted with respect to movements of a demonstrably aggressive or destructive character (destructive of the prospects for peace, justice, and freedom for all). Such discrimination would also be applied to movements opposing the extension of social legislation to the poor, weak, disabled. [...]”
-Herbert Marcuse, in a
1968 postcript to his 1965 essay "Repressive Tolerance"

Hear John McCain say “talking about campaign finance reform....I know that money corrupts....I would rather have a clean government than one where quote First Amendment rights are being respected, that has become corrupt. If I had my choice, I'd rather have the clean government.” on the Don Imus Show (MSNBC), 2006-Apr-21, Portsmouth, NH, video courtesy of VMSdigital.com.

Read Lawrence Lessig's new (2004-Mar-26) book: Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (PDF download). Lessig's bio (from lessig.org) opens: ``Lawrence Lessig is a Professor of Law at Stanford Law School and founder of the school's Center for Internet and Society. Prior to joining the Stanford faculty, he was the Berkman Professor of Law at Harvard Law School. Lessig was also a fellow at the Wissenschaftskolleg zu Berlin, and a Professor at the University of Chicago Law School. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court.''

Also read Defending the First Amendment from Antidiscrimination Laws, adapted from the book You Can't Say That!: The Growing Threat to Civil Liberties from Antidiscrimination Laws (Cato 2003), by David E. Bernstein.

Editor's note on free speech and the Internet: The Internet is like New York City, or in fact all the cities and towns and secluded cult and militia compounds in the world - plus, of course, all the libraries - all just milliseconds away. Parents of young children, indeed all adults entrusted with them, need to respect the Internet the way they respect the real world it reflects. It is their profound responsibility to do so. The state pursues lawbreakers whether the laws are broken on city streets or on the Internet, but it is neither a responsibility, nor indeed a permissible role, for the state to make city streets or the Internet safe for young children to explore and experience, unaccompanied and unguided by responsible, attentive adults. Children must not be left to fend for themselves in the marketplace of ideas. The Internet is not like a video game. When a young child sits in front of a networked computer, there should always be either a non-bypassable access control system gating network access (so that the child can only contact and be contacted by people approved by responsible adults, and web sites audited and approved by responsible adults), or a responsible adult at his side.


com.mis.sar \'ka:m-*-.sa:r\ n [Russ komissar, fr. G kommissar, fr. ML
   commissarius] 1a: a Communist party official assigned to a military unit to 
   teach party principles and policies and to ensure party loyalty 1b: one 
   resembling a political commissar in attempting to control public opinion or 
   its expression 2: the head of a government department in the U.S.S.R. until 
   1946

from the Wall Street Journal, 2014-Apr-3, by James Taranto:

Welcome to the Collective
Justice Breyer turns the First Amendment on its head.

In his plurality opinion in yesterday's free-speech case, McCutcheon v. Federal Election Commission, Chief Justice John Roberts notes an anomaly in contemporary "liberal" First Amendment jurisprudence: "If the First Amendment protects flag burning, funeral protests, and Nazi parades--despite the profound offense such spectacles cause--it surely protects political campaign speech despite popular opposition."

We'd take the point a step further. The examples Roberts cites all involve fringe political expression. But the First Amendment also protects outré speech outside the political realm--most notably pornography, the subject of a great deal of Supreme Court jurisprudence over the past few decades, in which judicial liberals took the lead in expanding free-speech rights.

In recent years something of a consensus has emerged. When the court extended First Amendment protection to "depictions of animal cruelty" (U.S. v. Stevens, 2010) and violent video games (Brown v. Entertainment Merchants Association, 2011), the decisions were written by Roberts and Justice Antonin Scalia, respectively, for 8-1 and 7-2 majorities.

So why have the court's "liberals" adopted a hostile attitude toward political speech, which has long been understood as being at the core of First Amendment protection? In his McCutcheon dissent, Justice Stephen Breyer elaborates the theory behind this odd development.

We should note that Breyer has proved more willing than his liberal colleagues to uphold restrictions on nonpolitical speech. He was one of the two dissenters (with Justice Clarence Thomas) in Brown v. EMA, which involved a statute restricting sales of games to minors. He also dissented in U.S. v. Playboy Entertainment Group (2000), which invalidated limits on sexually explicit cable TV programming.

But in both those cases Breyer was alone among the court's liberals. In McCutcheon, his dissent gained the support of Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. It's a familiar pattern: A series of high court rulings pitting campaign finance restrictions against free speech, beginning in 2007, have been decided 5-4, with the same majority as in McCutcheon and the identity of the dissenters varying only by virtue of changes in the court's personnel.

Yesterday's decision was fairly narrow. It invalidated a statutory provision limiting the total contributions an individual could make to congressional candidates, party committees and political action committees during an election cycle. But it let stand the limits on contributions to each candidate or committee. That means, among other things, that a contributor may now give to as many candidates as he wants, but only $5,200 apiece ($2,600 each for the primary and general election). Thomas argued for striking down the individual limits too, which is why Roberts's opinion did not command a majority.

In making the case for the constitutionality of restrictions on campaign contributions, Breyer advances an instrumental view of the First Amendment. He quotes Justice Louis Brandeis, who in 1927 "wrote that the First Amendment's protection of speech was 'essential to effective democracy,' " and Brandeis's contemporary Chief Justice Charles Evans Hughes, who in 1931 argued that " 'a fundamental principle of our constitutional system' is the 'maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people" (emphasis Breyer's).

After citing Jean-Jacques Rousseau's (!) views on the shortcomings of representative democracy, Breyer quotes James Wilson, one of the Founding Fathers, who argued in a 1792 commentary that the First Amendment's purpose was to establish a "chain of communication between the people, and those, to whom they have committed the exercise of the powers of government." Again quoting Wilson, Breyer elaborates: "This 'chain' would establish the necessary 'communion of interests and sympathy of sentiments' between the people and their representatives, so that public opinion could be channeled into effective governmental action."

And here's how Breyer sums it all up: "Accordingly, the First Amendment advances not only the individual's right to engage in political speech, but also the public's interest in preserving a democratic order in which collective speech matters."

The emphasis on "matters" is again Breyer's. We'd have italicized "collective" as the key concept. As with the Second Amendment, he and the other dissenters assert a "collective" right, the establishment of which is purportedly the Constitution's ultimate purpose, as a justification for curtailing an individual right.

In this case they at least acknowledge the individual right exists. But then the First Amendment, unlike the Second, has no prefatory clause explaining its purpose; it simply says "Congress shall make no law . . ." Breyer has to venture outside the text to find a reason to read that prohibition equivocally.

It's important to note that when Breyer refers to "collective" rights, what he does not have in mind is individuals exercising their rights by voluntarily collecting themselves into organizations. In fact, the prevailing left-liberal view, most notably with respect to Citizens United v. FEC (2010), is that collections of individuals, at least when they take corporate form, have (or should have) no rights.

The only "collective" that matters to Breyer is the one from which you cannot opt out except by the extreme measure of renouncing your citizenship: "the people" or "the public" as a whole. In Breyer's view, the purpose of the First Amendment is to see that (in Chief Justice Hughes's words) "the will of the people" is done. Individual rights are but a means to that end. To the extent they frustrate it, they ought to be curtailed. You will be assimilated.

That resolves the conundrum we noted atop this column. Fringe political speech like flag burning, funeral protests and Nazi parades is so broadly unappealing as to have no effect on "the will of the people." The same is true of nonpolitical forms of expression such as pornography, violent video games and depictions of animal cruelty. (Breyer's willingness to countenance restrictions of the first two has to do with the protection of children, not of the body politic.)

Only mainstream political expression has the potential to thwart the "collective" will, and thus, in the view of Breyer and his fellow dissenters, it alone is deserving of restriction on such a rationale. That stands the First Amendment on its head. Its purpose may be to "make government responsive," as Wilson argued, but the means by which it does so is the limitation of government power and protection of individual freedom.

The Puffington Host has a revealing quote from a politician who objects to yesterday's ruling, Rhode Island's Sen. Sheldon Whitehouse:

"This is a court that knows essentially nothing about elections. It's the first court in a long time on which no one has ever run for office," said Whitehouse, comparing the five justices who ruled for businessman Shaun McCutcheon to "the ultimate amateur . . . who says, 'I know how to eat, so I can open a restaurant.' "

Whitehouse is arguing that the political process should be controlled by professional politicians. As Roberts notes in responding to Breyer's dissent: "The degree to which speech is protected cannot turn on a legislative or judicial determination that particular speech is useful to the democratic process." To do so would impose the will of politicians or judges on the people, not the other way around.

from the Washington Post, 2014-Apr-10, by Charles Krauthammer:

Thought police on patrol

Two months ago, a petition bearing more than 110,000 signatures was delivered to The Post, demanding a ban on any article questioning global warming. The petition arrived the day before publication of my column, which consisted of precisely that heresy.

The column ran as usual. But I was gratified by the show of intolerance because it perfectly illustrated my argument that the left is entering a new phase of ideological agitation — no longer trying to win the debate but stopping debate altogether, banishing from public discourse any and all opposition.

The proper word for that attitude is totalitarian. It declares certain controversies over and visits serious consequences — from social ostracism to vocational defenestration — upon those who refuse to be silenced.

Sometimes the word comes from on high, as when the president of the United States declares the science of global warming to be “settled.” Anyone who disagrees is then branded “anti-science.” And better still, a “denier” — a brilliantly chosen calumny meant to impute to the climate skeptic the opprobrium normally reserved for the hatemongers and crackpots who deny the Holocaust.

Then last week, another outbreak. The newest closing of the leftist mind is on gay marriage. Just as the science of global warming is settled, so, it seems, are the moral and philosophical merits of gay marriage.

To oppose it is nothing but bigotry, akin to racism. Opponents are to be similarly marginalized and shunned, destroyed personally and professionally.

Like the CEO of Mozilla who resigned under pressure just 10 days into his job when it was disclosed that six years earlier he had donated to California’s Proposition 8, which defined marriage as between a man and a woman.

But why stop with Brendan Eich, the victim of this high-tech lynching? Prop 8 passed by half a million votes. Six million Californians joined Eich in the crime of “privileging” traditional marriage. So did Barack Obama. In that same year, he declared that his Christian beliefs made him oppose gay marriage.

Yet under the new dispensation, this is outright bigotry. By that logic, the man whom the left so ecstatically carried to the White House in 2008 was equally a bigot.

The whole thing is so stupid as to be unworthy of exegesis. There is no logic. What’s at play is sheer ideological prejudice — and the enforcement of the new totalitarian norm that declares, unilaterally, certain issues to be closed.

Closed to debate. Open only to intimidated acquiescence.

To this magic circle of forced conformity, the left would like to add certain other policies, resistance to which is deemed a “war on women.” It’s a colorful synonym for sexism. Leveling the charge is a crude way to cut off debate.

Thus, to oppose late-term abortion is to make war on women’s “reproductive health.” Similarly, to question Obamacare’s mandate of free contraception for all.

Some oppose the regulation because of its impingement on the free exercise of religion. Others on the simpler (nontheological) grounds of a skewed hierarchy of values. Under the new law, everything is covered, but a few choice things are given away free. To what does contraception owe its exalted status? Why should it rank above, say, antibiotics for a sick child, for which that same mother must co-pay?

Say that, however, and you are accused of denying women “access to contraception.”

Or try objecting to the new so-called Paycheck Fairness Act for women, which is little more than a full-employment act for trial lawyers. Sex discrimination is already illegal. What these new laws do is relieve the plaintiffs of proving intentional discrimination. To bring suit, they need only to show that women make less in that workplace.

Like the White House, where women make 88 cents to the men’s dollar?

That’s called “disparate impact.” Does anyone really think Obama consciously discriminates against female employees, rather than the disparity being a reflection of experience, work history, etc.? But just to raise such questions is to betray heretical tendencies.

The good news is that the “war on women” charge is mostly cynicism, fodder for campaign-year demagoguery. But the trend is growing. Oppose the current consensus and you’re a denier, a bigot, a homophobe, a sexist, an enemy of the people.

Long a staple of academia, the totalitarian impulse is spreading. What to do? Defend the dissenters, even if — perhaps, especially if — you disagree with their policy. It is — it was? — the American way.

from the Wall Street Journal, 2014-Apr-2, by Charles G. Koch:

I'm Fighting to Restore a Free Society
Instead of welcoming free debate, collectivists engage in character assassination.

I have devoted most of my life to understanding the principles that enable people to improve their lives. It is those principles—the principles of a free society—that have shaped my life, my family, our company and America itself.

Unfortunately, the fundamental concepts of dignity, respect, equality before the law and personal freedom are under attack by the nation's own government. That's why, if we want to restore a free society and create greater well-being and opportunity for all Americans, we have no choice but to fight for those principles. I have been doing so for more than 50 years, primarily through educational efforts. It was only in the past decade that I realized the need to also engage in the political process.

A truly free society is based on a vision of respect for people and what they value. In a truly free society, any business that disrespects its customers will fail, and deserves to do so. The same should be true of any government that disrespects its citizens. The central belief and fatal conceit of the current administration is that you are incapable of running your own life, but those in power are capable of running it for you. This is the essence of big government and collectivism.

More than 200 years ago, Thomas Jefferson warned that this could happen. "The natural progress of things," Jefferson wrote, "is for liberty to yield and government to gain ground." He knew that no government could possibly run citizens' lives for the better. The more government tries to control, the greater the disaster, as shown by the current health-care debacle. Collectivists (those who stand for government control of the means of production and how people live their lives) promise heaven but deliver hell. For them, the promised end justifies the means.

Instead of encouraging free and open debate, collectivists strive to discredit and intimidate opponents. They engage in character assassination. (I should know, as the almost daily target of their attacks.) This is the approach that Arthur Schopenhauer described in the 19th century, that Saul Alinsky famously advocated in the 20th, and that so many despots have infamously practiced. Such tactics are the antithesis of what is required for a free society—and a telltale sign that the collectivists do not have good answers.

Rather than try to understand my vision for a free society or accurately report the facts about Koch Industries, our critics would have you believe we're "un-American" and trying to "rig the system," that we're against "environmental protection" or eager to "end workplace safety standards." These falsehoods remind me of the late Sen. Daniel Patrick Moynihan's observation, "Everyone is entitled to his own opinion, but not to his own facts." Here are some facts about my philosophy and our company:

Koch companies employ 60,000 Americans, who make many thousands of products that Americans want and need. According to government figures, our employees and the 143,000 additional American jobs they support generate nearly $11.7 billion in compensation and benefits. About one-third of our U.S.-based employees are union members.

Koch employees have earned well over 700 awards for environmental, health and safety excellence since 2009, many of them from the Environmental Protection Agency and Occupational Safety and Health Administration. EPA officials have commended us for our "commitment to a cleaner environment" and called us "a model for other companies."

Our refineries have consistently ranked among the best in the nation for low per-barrel emissions. In 2012, our Total Case Incident Rate (an important safety measure) was 67% better than a Bureau of Labor Statistics average for peer industries. Even so, we have never rested on our laurels. We believe there is always room for innovation and improvement.

Far from trying to rig the system, I have spent decades opposing cronyism and all political favors, including mandates, subsidies and protective tariffs—even when we benefit from them. I believe that cronyism is nothing more than welfare for the rich and powerful, and should be abolished.

Koch Industries was the only major producer in the ethanol industry to argue for the demise of the ethanol tax credit in 2011. That government handout (which cost taxpayers billions) needlessly drove up food and fuel prices as well as other costs for consumers—many of whom were poor or otherwise disadvantaged. Now the mandate needs to go, so that consumers and the marketplace are the ones who decide the future of ethanol.

Instead of fostering a system that enables people to help themselves, America is now saddled with a system that destroys value, raises costs, hinders innovation and relegates millions of citizens to a life of poverty, dependency and hopelessness. This is what happens when elected officials believe that people's lives are better run by politicians and regulators than by the people themselves. Those in power fail to see that more government means less liberty, and liberty is the essence of what it means to be American. Love of liberty is the American ideal.

If more businesses (and elected officials) were to embrace a vision of creating real value for people in a principled way, our nation would be far better off—not just today, but for generations to come. I'm dedicated to fighting for that vision. I'm convinced most Americans believe it's worth fighting for, too.

Mr. Koch is chairman and CEO of Koch Industries.

from the Wall Street Journal, 2014-Apr-18, by Michael A. Carvin and Yaakov M. Roth:

Courts Should Stay Out of Political Fact-Checking
At least 15 states prohibit 'false' political statements in campaigns. That's the kind of judgment best left to voters.

The U.S. Supreme Court will hear oral arguments on April 22 in Susan B. Anthony List v. Driehaus, a case raising important constitutional questions about laws that purport to prohibit "false" political statements. At least 15 states, including Ohio—where this case originated—have such laws on the books, often carrying criminal penalties.

Some reporters have called this a lawsuit about the "right to lie." That is a tendentious and inaccurate depiction of what the case involves. The issue is not whether campaigns should lie. Of course they should not. Rather, the question is who should decide whether a political campaign advertisement is true—courts, wielding the power to impose fines or imprisonment, or the American people, wielding the power to elect or turf the competing candidate. The stakes for free speech and the democratic process are very high.

People often disagree about what is the "truth," particularly in the political context. While websites such as PolitiFact purport to fact-check claims by politicians, even it characterizes many statements as "half-true"—one-sided, perhaps, or simply open to reasonable interpretation. The problem with a law prohibiting "false" statements about candidates is that it threatens to chill free political discourse, by silencing speakers who believe they are speaking truth but are fearful of being subjected to burdensome, costly legal proceedings by their political adversaries.

Supreme Court Justices across the political spectrum are alert to the danger. In 2012 in United States v. Alvarez, the court threw out the conviction of a man who violated the federal Stolen Valor Act by falsely claiming to have been awarded the Medal of Honor. The court ruled that the First Amendment may protect even false statements in order to protect true statements.

As Justice Stephen Breyer wrote in a concurring opinion, "criminal prosecution [of falsity] is particularly dangerous" in the "political arena," because it can "inhibit the speaker from making true statements, thereby 'chilling' a kind of speech that lies at the First Amendment's heart."

Justice Samuel Alito agreed in his dissenting opinion, warning that "any attempt by the state to penalize purportedly false speech" in political contexts "would present a grave and unacceptable danger of suppressing truthful speech."

Susan B. Anthony List v. Driehaus presents a vivid example of this "chilling" phenomenon. The Susan B. Anthony List and the Coalition Opposed to Additional Spending and Taxes—the two advocacy organizations that are petitioners in this case—wanted to criticize Rep. Steve Driehaus (D., Ohio), for his 2010 vote in favor of the Affordable Care Act. The groups believe that the law includes taxpayer-funded abortion because (among other things) it subsidizes insurance plans that may include abortion coverage.

That is a perfectly reasonable characterization of the Affordable Care Act. But Mr. Driehaus argued that the law would not use federal dollars to subsidize abortion because insurers were required to "segregate" federal subsidy dollars from funds used to pay most abortion providers. Since money is fungible, that segregation rule was an accounting gimmick. Nonetheless, the Ohio Elections Commission, a panel of political appointees, voted along partisan lines that this criticism was probably "false" and thus could subject the groups to fines or even imprisonment under Ohio's false-statement law.

While the Susan B. Anthony List organization continued to press its message through radio ads, the two advocacy groups were unable to fully disseminate their message during the 2010 midterm campaign or subsequent elections. A billboard company, for example, refused to post their message after threats of legal action.

The relevant question is thus not whether there is a constitutional "right to lie," but rather whether the state may force citizens to defend the "truth" of their political critiques before bureaucrats who may well have been appointed by the politicians being criticized. Such a regime imposes substantial burdens on core political speech and therefore chills robust political debate.

The premise of the First Amendment is that the people should decide what is "true" and what is "false" in the political arena, and punish or reward political candidates at the ballot box. Political fact-checking is not a task for courts of law. Criminal penalties should not hang over the heads of speakers who disagree with their version of political "truth."

The Supreme Court will not decide this year whether Ohio's false-statement law violates the Constitution. Rather, the issue before the court now is whether groups like the Susan B. Anthony List and the Coalition Opposed to Additional Spending and Taxes are even entitled to bring a First Amendment challenge to the regulatory scheme that is chilling their speech, before they are actually charged or convicted.

A favorable decision by the Supreme Court will set the stage for a full consideration of the constitutional implications of state-sponsored "truth" commissions like Ohio's. Other states with laws like Ohio's include Colorado, Florida, Michigan and Wisconsin. That vital question should be considered directly, and decided in favor of free speech.

Messrs. Carvin and Roth are attorneys at Jones Day, and represent the petitioners in Susan B. Anthony List v. Driehaus.

from the Wall Street Journal, 2014-Mar-18, by L. Gordon Crovitz:

America's Internet Surrender
By unilaterally retreating from online oversight, the White House pleased regimes that want to control the Web.

The Internet is often described as a miracle of self-regulation, which is almost true. The exception is that the United States government has had ultimate control from the beginning. Washington has used this oversight only to ensure that the Internet runs efficiently and openly, without political pressure from any country.

This was the happy state of affairs until last Friday, when the Obama administration made the surprise announcement it will relinquish its oversight of the Internet Corporation for Assigned Names and Numbers, or Icann, which assigns and maintains domain names and Web addresses for the Internet. Russia, China and other authoritarian governments have already been working to redesign the Internet more to their liking, and now they will no doubt leap to fill the power vacuum caused by America's unilateral retreat.

Why would the U.S. put the open Internet at risk by ceding control over Icann? Administration officials deny that the move is a sop to critics of the National Security Agency's global surveillance. But many foreign leaders have invoked the Edward Snowden leaks as reason to remove U.S. control—even though surveillance is an entirely separate topic from Internet governance.

According to the administration's announcement, the Commerce Department will not renew its agreement with Icann, which dates to 1998. This means, effective next year, the U.S. will no longer oversee the "root zone file," which contains all names and addresses for websites world-wide. If authoritarian regimes in Russia, China and elsewhere get their way, domains could be banned and new ones not approved for meddlesome groups such as Ukrainian-independence organizations or Tibetan human-rights activists.

Until late last week, other countries knew that Washington would use its control over Icann to block any such censorship. The U.S. has protected engineers and other nongovernment stakeholders so that they can operate an open Internet. Authoritarian regimes from Moscow to Damascus have cut off their own citizens' Internet access, but the regimes have been unable to undermine general access to the Internet, where no one needs any government's permission to launch a website. The Obama administration has now endangered that hallmark of Internet freedom.

The U.S. role in protecting the open Internet is similar to its role enforcing freedom of the seas. The U.S. has used its power over the Internet exclusively to protect the interconnected networks from being closed off, just as the U.S. Navy protects sea lanes. Imagine the alarm if America suddenly announced that it would no longer patrol the world's oceans.

The Obama administration's move could become a political issue in the U.S. as people realize the risks to the Internet. And Congress may have the ability to force the White House to drop its plan: The general counsel of the Commerce Department opined in 2000 that because there were no imminent plans to transfer the Icann contract, "we have not devoted the possibly substantial staff resources that would be necessary to develop a legal opinion as to whether legislation would be necessary to do so."

Until recently, Icann's biggest controversy was its business practice of creating many new domains beyond the familiar .com and .org to boost its revenues. Internet guru Esther Dyson, the founding chairwoman of Icann (1998-2000), has objected to the imposition of these unnecessary costs on businesses and individuals. That concern pales beside the new worries raised by the prospect of Icann leaving Washington's capable hands. "In the end," Ms. Dyson told me in an interview this week, "I'd rather pay a spurious tax to people who want my money than see [Icann] controlled by entities who want my silence."

Icann has politicized itself in the past yearby lobbying to end U.S. oversight, using the Snowden leaks as a lever. The Icann chief executive, Fadi Chehadé, last fall called for a global Internet conference in April to be hosted by Brazilian President Dilma Rousseff. Around that time, Ms. Rousseff, who garnered headlines by canceling a White House state dinner with President Obama, reportedly to protest NSA surveillance of her and her countrymen, also denounced U.S. spying in a speech at the United Nations. Mr. Chehadé said of the speech: "She spoke for all of us that day."

The Obama administration has played into the hands of authoritarian regimes. In 2011, Vladimir Putin —who, as Russia took over Crimea in recent days, shut down many online critics and independent media—set a goal of "international control over the Internet."

In the past few years, Russia and China have used a U.N. agency called the International Telecommunication Union to challenge the open Internet. They have lobbied for the ITU to replace Washington as the Icann overseer. They want the ITU to outlaw anonymity on the Web (to make identifying dissidents easier) and to add a fee charged to providers when people gain access to the Web "internationally"—in effect, a tax on U.S.-based sites such as Google and Facebook. The unspoken aim is to discourage global Internet companies from giving everyone equal access.

The Obama administration was caught flat-footed at an ITU conference in 2012 stage-managed by authoritarian governments. Google organized an online campaign against the ITU, getting three million people to sign a petition saying that "a free and open world depends on a free and open web." Former Obama aide Andrew McLaughlin proposed abolishing the ITU, calling it "the chosen vehicle for regimes for whom the free and open Internet is seen as an existential threat." Congress unanimously opposed any U.N. control over the Internet.

But it was too late: By a vote of 89-55, countries in the ITU approved a new treaty granting authority to governments to close off their citizens' access to the global Internet. This treaty, which goes into effect next year, legitimizes censorship of the Web and the blocking of social media. In effect, a digital Iron Curtain will be imposed, dividing the 425,000 global routes of the Internet into less technically resilient pieces.

The ITU is now a lead candidate to replace the U.S. in overseeing Icann. The Commerce Department says it doesn't want to transfer responsibility to the ITU or other governments, but has suggested no alternative. Icann's CEO, Mr. Chehadé, told reporters after the Obama administration's announcement that U.S. officials are "not saying that they'd exclude governments—governments are welcome, all governments are welcome."

Ms. Dyson calls U.N. oversight a "fate worse than death" for the Internet.

The alternative to control over the Internet by the U.S. is not the elimination of any government involvement. It is, rather, the involvement of many other governments, some authoritarian, at the expense of the U.S. Unless the White House plan is reversed, Washington will hand the future of the Web to the majority of countries in the world already on record hoping to close the open Internet.

Mr. Crovitz, a former publisher of The Wall Street Journal, writes the weekly Information Age column.

from the Wall Street Journal, 2014-Mar-23, by L. Gordon Crovitz:

How to Save the Internet
Congress can override the president's decision to hand over control of Web addresses and domains to an international body.

It's been a good month for Vladimir Putin : He got Crimea and the Internet.

Gallows humor is not the only possible response to the Obama administration plan to give up U.S. control of the Internet to a still-to-be-determined collection of governments and international groups. Congress should instruct President Obama that if the Internet ain't broke, don't fix it.

Authoritarian governments led by Russia and China long ago found ways to block access to the Internet for their citizens. Under the new Obama plan, these regimes could also block access to the Internet for Americans.

There is recent precedent: Authoritarian governments tried to block new Internet top-level domains beyond the familiar .com and .org and .net. Saudi Arabia sought to veto the addition of .gay as being "offensive." It also tried to block .bible, .islam and .wine. Under U.S. control, the Saudis were denied their wishes. With some new post-U.S. system of governance, will .gay websites be removed from the Internet?

The plan announced on March 14 would have the U.S. give up control of the "root zone file" of the Internet and the Internet Corporation for Assigned Names and Numbers, or Icann. This root of the Internet stores all the names and addresses for websites world-wide, while Icann controls Web addresses and domains. The U.S. has used this control to ensure that websites operate without political interference from any country and that anyone can start a website, organize on Facebook or post on Twitter without asking permission.

It's easy to imagine a new Internet oversight body operating like the United Nations, with repressive governments taking turns silencing critics. China could get its wish to remove FreeTibet.org from the Internet as an affront to its sovereignty. Russia could force Twitter to remove posts by Ukrainian-Americans criticizing Vladimir Putin.

The plan announced by the Commerce Department set off enough alarm bells that officials felt obliged last week to issue a follow-up news release denying the U.S. is "abandoning the Internet" and pledging "nothing could be further from the truth." But it still has no plan to safeguard the Web against authoritarian governments. Nor is there any reassurance in a letter to the editor in Monday's Wall Street Journal from the head of Icann, Fadi Chehade. He says the Internet's "billions of diverse stakeholders all deserve a voice in its governance," and he remains on record saying that "all governments are welcome" in whatever the new governance process turns out to be.

Hearings on U.S. protection for the Internet were quickly called for the House starting in early April. One topic should be whether the executive branch of government has the unilateral authority to transfer control over Internet addresses and root zone management of domains.

Congress doubted that the president could do this on his own when the issue was considered in 2000. The General Accounting Office, now called the Government Accountability Office, concluded it was "uncertain" whether Congress has to pass a law. The Property Clause of the Constitution says Congress must pass legislation to effect a transfer of government property. Arguably the president could no more transfer the valuable control over the naming and domains of the Internet than he could give Alaska back to Russia.

Contacted by this columnist last week, a spokesman for the Commerce Department's National Telecommunications and Information Administration said the agency reviewed this legal issue and concluded the administration can act without Congress but refused to share a copy of the legal analysis. Congress should ask for a copy and do its own analysis.

Congress also could tell the Commerce Department not to carry out its plan. In 2012, both the Senate and House passed a unanimous resolution to keep the Internet "free from government control." That happened as the Obama administration was being outfoxed by Russia and China, which hijacked the U.N.'s International Telecommunication Union to legitimize control over the Internet in their countries. Protecting the Internet may be the most bipartisan issue in Congress.

Meanwhile, at a meeting over the weekend in Singapore to plan a post-U.S. system, sources say Icann's Mr. Chehade upset the "multistakeholders" in attendance by presenting a PowerPoint slide dictating a new structure that minimizes accountability for Icann. After pushback, Mr. Chehade withdrew his slide, but his intentions are clear.

The alternative to continued U.S. authority is control by an international body dominated by authoritarian regimes. In a law review article about Icann in 2000, "Wrong Turn in Cyberspace," Michael Froomkin wrote that "It is hard to see how an undemocratic solution based on the international system in which a tyranny's vote is as valid as a democracy's vote would be a material improvement on Icann itself."

Congress should quickly come to the same conclusion and act to save the Internet.

from the Wall Street Journal, 2014-Apr-1, by Karl Borden:

Get Ready for the Internet Robber Barons
If the United Nations ends up in charge, it would have a chokehold on the global economy.

Do you remember the original robber barons? No, they were not the great American industrialists/philanthropists of the late 19th century—men who were unfairly tagged with the moniker. I mean the originals: the German barons of the 13th century who controlled the Rhine River, which was the primary channel of commerce and communications for central Europe. Their castles overlooked the river, and they exacted tribute from every passing ship.

The barons ignored customary "just" tolls, charged whatever the commerce would bear, exacted payment "in kind" from cargoes, and exercised power by controlling strategic territory. These Raubritter provided no real service other than the extortion implicit in allowing safe passage past their own weapons.

The world may see history repeat itself with the Internet, and the unintended consequences are likely to be profound. The United Nations has long craved the power to tax, and the Obama administration's decision to give up U.S. oversight of the domain-name system and the Internet Corporation for Assigned Names and Numbers, or Icann, may end up giving the U.N. that power.

As far back as 2001, a U.N. report, "Financing the Global Sharing Economy," proposed that the U.N. be given the authority to levy a tax on "speculative currency transactions" with a projected revenue stream north of $150 billion. Should the U.N. get control of the Internet and the global commerce it carries, that figure will be chump change.

There are political and strategic issues—involving security, privacy and censorship—associated with international control of the Internet. Should the U.N. end up in charge, it would have a chokehold on the global economy and a vast stream of revenue that would make it even more unaccountable than it already is.

All this would start modestly, of course, and it would never be called a tax. Instead, it might begin with a small fee associated with access to an obscure technical mechanism, or a small transaction charge for certain types of traffic.

But if history is any guide, the run-up to big dollars will be stunningly rapid. One need only reference the increases in U.S. federal revenues and expenditures after passage in 1913 of the 16th Amendment establishing the federal income tax. The top 1913 rate of 7% more than doubled by 1916 to 15%, then rocketed to 67% in 1917 and 77% in 1918. It always starts small.

Power follows the money, and bureaucratic appetites are voracious. Who will there be to stop the process, after all? Where is the elected legislative body that will answer to the world's population that finally pays these "fees"?

Among the many disingenuous justifications being touted for this colossal strategic mistake is that no "government control" will be imposed on the Internet. But democratic "government control" is exactly what will be needed, and it will be absent. Constitutional governments are the means by which citizens delegate the job of protecting their individual rights, and allow them to retain at least some ability to avoid tyranny. With constitutional government it becomes at least possible for citizens to say "No—No more!" No such checks are in place for a global bureaucracy that will have the power to reach into every pocket on earth.

Can anyone doubt that within just the next few decades the Internet will be the essential infrastructure for participation in even the smallest segment of the global economy? The revenue potential associated with controlling the "rivers" of the 21st-century-and-beyond will be enormous and will finance an ever-expanding international bureaucracy, likely under the aegis of the United Nations.

The robber barons of the 13th century were finally stopped only when the Rhine League, consisting of merchants and aristocrats, banded together to tear down their castles and hang them. The robber barons of the 21st century may be much more difficult to deal with.

Mr. Borden is a professor of financial economics at the University of Nebraska/Kearney.

from the Wall Street Journal, 2014-Feb-12, by James Taranto:

OmertèCare
The first rule: You do not talk about perverse incentives.

You've no doubt heard about the latest ObamaCare "delay"--the announcement that the Internal Revenue Service will waive fines on certain employers that do not provide workers with medical insurance. That "employer mandate," which by law took effect this year, had already been put off until 2015. Now it won't be enforced until 2016 for companies with between 50 and 99 employees, and those with 100 or more will escape fines if they offer insurance to 70% of their employees rather than the 95% stipulated in the law.

Because most big employers already cover workers, "the employer mandate is not an especially important policy lever in the Affordable Care Act," shrugs the Washington Post's Sarah Kliff. The "lever" metaphor--something that moves--seems precisely chosen. The employer mandate's main intent would seem to be to prevent companies from dropping coverage, not to induce them to start. It's meant as a constraint, not a lever. Anyway, Kliff concludes that while the new delay "can matter politically," in terms of its effect on the insurance market, it "will likely amount to a relatively small, if non-existent, change." We think she means "if existent."

One problem with the employer mandate is that it creates perverse incentives. Businesses with fewer than 50 employees aren't subject to the mandate, which means that for a company on the cusp, the marginal cost of hiring the next employee could run into the tens of thousands of dollars--or, for one just above the threshold, the marginal savings from firing a worker can be considerable. Employers can also reduce their liability by replacing full-time workers with part-time ones. The exact workings of the mandate are complicated; the National Federation of Independent Business, appellant in the 2012 Supreme Court case that upheld most of ObamaCare, charts some scenarios.

By adding a new threshold--100 workers as well as 50--the new delay creates an additional perverse incentive. At least until 2016, a company that doesn't offer insurance is better off not hiring the 100th worker--or firing him. But as Fox News Channel's Chris Stirewalt points out, the regulations for the new delay attempt to forestall the latter possibility:

Obama officials made clear in a press briefing that firms would not be allowed to lay off workers to get into the preferred class of those businesses with 50 to 99 employees. How will the feds know what employers were thinking when hiring and firing? Simple. Firms will be required to certify to the IRS--under penalty of perjury--that ObamaCare was not a motivating factor in their staffing decisions. To avoid ObamaCare costs you must swear that you are not trying to avoid ObamaCare costs. You can duck the law, but only if you promise not to say so.

The specific regulation is on page 124 of this PDF from the Federal Register. It stipulates that the full exemption for the mandate applies if "the employer does not reduce the size of its workforce or the overall hours of service of its employees in order to satisfy the workforce size condition"--that is, if it doesn't fire workers to get below 100:

A reduction in workforce size or overall hours of service for bona fide business reasons will not be considered to have been made in order to satisfy the workforce size condition. For example, reductions of workforce size or overall hours of service because of business activity such as the sale of a division, changes in the economic marketplace in which the employer operates, terminations of employment for poor performance, or other similar changes unrelated to eligibility for the transition relief provided in this section XV.D.6 are for bona fide business reasons and will not affect eligibility for that transition relief.

Legal or regulatory changes that affect the cost of labor would fall into the category of "changes in the economic marketplace in which the employer operates." So it would be more precise to say that employers may cut back employment for any bona fide business reason except to take advantage of the ObamaCare mandate delay.

The administration thus acknowledges that its policy creates a perverse incentive and orders employers not to act upon it. But that can't be enforced. A business will take into account all relevant factors, including the additional costs imposed by ObamaCare, in making decisions about hiring and firing, including whether to terminate employees for poor performance, sell a division, etc. In practice, the new rule is a ban--under threat of criminal liability--on acknowledging the perverse incentive. Call it OmertèCare, a government-imposed conspiracy of silence.

from the Wall Street Journal, 2014-Mar-11, by James Taranto:

Speak of the Devil
The silly, sinister campaign against the Koch brothers.

"New Democratic Strategy Goes After Koch Brothers," announced a New York Times headline last week. Here's how the story began:

Charles G. and David H. Koch, the billionaire brothers who are perhaps the best-known patrons of conservative Republican politics, are bespectacled and in their 70s. They look genial enough.
But Democrats are embarking on a broad effort that aims to unmask the press-shy siblings and portray them, instead, as a pair of villains bent on wrecking progressive politics.
On Thursday, the Democratic Senatorial Campaign Committee is starting a digital campaign that will use Internet ads and videos, as well as social media, to tie Republican Senate candidates to the policies and actions of the Koch brothers. Its slogan: "The G.O.P. is addicted to Koch" (pronounced coke).

There are some clues here that this campaign isn't aimed at a mass audience. The Kochs are so obscure, even to Times readers, that the reporter felt obliged to identify them right off the bat, necessitating a yawner of a lead paragraph. They're also sufficiently unknown that the pun on their name needs a pronunciation guide, which deprives the joke of all its sting.

This is a play to the base--and are they ever base. Back in February 2011 we noted an anti-Koch rally in California where various "progressives" were captured on video calling for the assassination of Supreme Court justices who voted to uphold the right to free speech. Establishment Democrats like Senate Majority Leader Harry Reid haven't gone that far, but they are joining in the demonization of private citizens, following Saul Alinsky's 13th rule: "Pick the target, freeze it, personalize it, and polarize it. "

The Weekly Standard's Daniel Halper scooped the Times by more than a week when he noted this Reid floor speech Feb. 26;

"Despite all that good news, there's plenty of horror stories being told. All of them are untrue, but they're being told all over America," said Reid.
"The leukemia patient whose insurance policy was canceled [and] could die without her medication, Mr. President, that's an ad being paid for by two billionaire brothers. It's absolutely false. Or the woman whose insurance policy went up $700 a month--ads paid for around America by the multibillionaire Koch brothers, and the ad is false.
"We heard about the evils of Obamacare, about the lives it's ruining in Republicans' stump speeches and in ads paid for by oil magnates, the Koch brothers. But in those tales, turned out to be just that: tales, stories made up from whole cloth, lies distorted by the Republicans to grab headlines or make political advertisements.
"Mr. President, these two brothers are trying to buy America. They not only funnel money through their Americans for Prosperity, they funnel money into all kinds of organizations to do the same thing that they're doing. They're trying to buy America. I don't believe America is for sale. We'll see, Mr. President."

We're torn between finding this effort sinister and ridiculous, and the truth is it's both. Alinskyite tactics were meant to be applied against the powerful by the powerless. When applied by powerful men, like Reid, who are supposed to be public servants, they take on the character of tyranny rather than rebellion.

No doubt the Kochs can take it, but note that his attack aimed not only at them but also at ordinary Americans who have been victimized by ObamaCare and spoken out about it. The aim is clearly to intimidate others and thereby suppress information about ObamaCare's failures.

On the ridiculous side, the Washington Free Beacon reports on an anti-Koch protest over the weekend staged by a pair of unions, the New York State Nurses Association and the Service Employees International Union Local 1199, along with the state chapter of the NAACP. They were protesting a new hospital wing.

Yes, you read that right. They objected to "the soon-to-be-built David H. Koch Center at New York-Presbyterian Hospital," for which the eponymous donor gave $100 million:

The donation was the largest in the hospital's history, and will presumably create a fair number of new nursing jobs. So why are the usual suspects up in arms? Well, the agitators were apparently agitated because this particular hospital didn't need all the money. Oh yeah, and because it was International Women's Day, and the Kochs are the primary funders of the "war on women's reproductive rights . . . and many other issues of concern to American women." They're also behind "the effort to defeat and repeal healthcare to all Americans," whatever that means.

It means that they oppose ObamaCare, of course. And you can't fault Obama partisans for defending ObamaCare, except on the merits. But the people who staged this protest merely called attention to David Koch's nonpolitical philanthropic efforts, with which no reasonable person can find fault, and in turn to their own unreasoning hatred.

Also ridiculous, if duller, is an editorial in today's New York Times titled "The Democrats Stand Up to the Kochs":

Democrats are starting to fight back, deciding they should at least try to counter the tycoons with some low-cost speech of their own. Democrats may never have the same resources at their disposal--no party should--but they can use their political pulpits to stand up for a few basic principles, including the importance of widespread health-insurance coverage, environmental protection and safety-net programs.
The leader of this effort has been Senator Harry Reid, the majority leader, who has delivered a series of blistering attacks against the Kochs and their ads on the Senate floor over the last few weeks. In addition, the Democratic Senatorial Campaign Committee has set up a website, www.kochaddiction.com, to remind voters of just what the Kochs stand for, and why they raised $407 million in the 2012 election. And individual candidates are making sure voters know who is paying for the ad blitz.

The Democrats are not quite as outmatched as all that. Along with the "political pulpits" afforded by the White House and the Senate majority, they also have a $2.5 billion corporation that is happy to disseminate their propaganda free of charge.

That same company won a landmark court case half a century ago that expanded corporate free-speech rights. As the Times recounted in a Sunday editorial:

How is society to preserve open criticism of the government, while also protecting individuals from libel, or the publication of damaging false statements?
Fifty years ago this Sunday, the Supreme Court answered that question with a landmark decision in New York Times [Co.] v. Sullivan. The ruling instantly changed libel law in the United States, and it still represents the clearest and most forceful defense of press freedom in American history.
The case involved an ad that had appeared in The Times in 1960.

The Times generally opposes free speech in political ads, a position this column deplores. But Times v. Sullivan was a great victory, and we salute the company for having done the right thing. If we didn't, we'd be as silly as the people protesting the David H. Koch Center at New York-Presbyterian Hospital.

from the Huffington Post, 2014-Feb-12, by Jack Mirkinson:

US Plummets In Press Freedom Rankings

The United States plunged 14 places in the annual Press Freedom Index released by Reporters Without Borders on Wednesday. The group said it was "one of the most significant declines" in press freedom it had tracked during 2013.

The US in now ranked 46th on the RWB list, in between Romania and Haiti. It was ranked 32nd in the 2013 index. (Finland tops the entire list.)

The press freedom group was blunt in its explanation. It cited increased efforts to track down whistleblowers and the sources of leaks, mentioning Chelsea Manning and Edward Snowden in particular. It also condemned the Justice Department's surveillance of reporters, and the continued leak battle facing New York Times journalist James Risen.

RWB also criticized the United Kingdom for what it said were its "disgraceful" threats against the Guardian newspaper, and for its detention of Glenn Greenwald's partner, David Miranda.

"Both the US and UK authorities seem obsessed with hunting down whistleblowers instead of adopting legislation to rein in abusive surveillance practices that negate privacy, a democratic value cherished in both countries," the group wrote.

The decision by RWB to rank the UK 13 places higher than the US, at 33, drew a great deal of skepticism from many in the media:

Ryan Gallagher ✔ @rj_gallagher

UK being 13 above US in press freedom index isn't reality. US has far greater protections b/c of 1st amendment. http://www.huffingtonpost.com/josh-stearns/us-plummets-in-global-pre_b_4770182.html …
3:11 AM - 12 Feb 2014
17 Retweets 6 favorites

The US also came under fire from the Committee to Protect Journalists, which, in its annual Attacks on the Press report, said that press freedom had "dramatically deteriorated" in 2013.

The US was 20th on the list just a few years ago. It fell 27 places in the 2012 index thanks to the harassment and arrest of journalists covering Occupy Wall Street, before climbing 15 places in 2013.

Read the full RWB report here.

from the Wall Street Journal, 2014-Jan-16, by Kimberley A. Strassel:

IRS Targeting and 2014
Democrats are working hard to make sure conservative groups are silenced in the 2014 midterms.

President Obama and Democrats have been at great pains to insist they knew nothing about IRS targeting of conservative 501(c)(4) nonprofits before the 2012 election. They've been at even greater pains this week to ensure that the same conservative groups are silenced in the 2014 midterms.

That's the big, dirty secret of the omnibus negotiations. As one of the only bills destined to pass this year, the omnibus was—behind the scenes—a flurry of horse trading. One of the biggest fights was over GOP efforts to include language to stop the IRS from instituting a new round of 501(c)(4) targeting. The White House is so counting on the tax agency to muzzle its political opponents that it willingly sacrificed any manner of its own priorities to keep the muzzle in place.

And now back to our previously scheduled outrage over the Chris Christie administration's abuse of traffic cones on the George Washington Bridge.

The fight was sparked by a new rule that the Treasury Department and the IRS introduced during the hush of Thanksgiving recess, ostensibly to "improve" the law governing nonprofits. What the rule in fact does is recategorize as "political" all manner of educational activities that 501(c)(4) social-welfare organizations currently engage in.

It's IRS targeting all over again, only this time by administration design and with the raw political goal—as House Ways and Means Chairman Dave Camp (R., Mich.) notes—of putting "tea party groups out of business."

Congressional sources tell me that House Appropriations Chairman Hal Rogers (R., Ky.) had two priorities in the omnibus negotiations. One was getting in protection for groups that morally oppose ObamaCare's contraception-coverage requirement. The other was language that would put a hold on the IRS rule.

The White House and Senate Democrats had their own wish list, including an increase in funding for the International Monetary Fund, the president's prekindergarten program and more ObamaCare dollars.

Yet my sources say that throughout the negotiations Democrats went all in on keeping the IRS rule, even though it meant losing their own priorities. In the final hours before the omnibus was introduced Monday night, the administration made a last push for IMF money. Asked to negotiate that demand in the context of new IRS language, it refused.

That's a lot to sacrifice for a rule that the administration has barely noted in public, and that then-acting IRS Commissioner Danny Werfel claimed last fall when it was introduced is simply about providing "clarity" to nonprofits. It only makes sense in a purely political context. The president's approval ratings are in the toilet, the economy is in idle, the ObamaCare debate rages on, and the White House has a Senate majority to preserve. With one little IRS rule it can shut up hundreds of groups that pose a direct threat by restricting their ability to speak freely in an election season about spending or ObamaCare or jobs. And it gets away with it by positioning this new targeting as a fix for the first round.

This week's Democratic rally-round further highlights the intensely political nature of their IRS rule. It was quietly dropped in the runup to the holiday season, to minimize the likelihood of an organized protest during its comment period. That 90-day comment period meantime ends on Feb. 27, positioning the administration to shut down conservative groups early in this election cycle.

Mr. Camp's committee has meanwhile noted that Treasury appears to have reverse-engineered the carefully tailored rule—combing through the list of previously targeted tea party groups, compiling a list of their main activities and then restricting those functions.

And an IRS rule that purports to—as Mr. Werfel explained—"improve our work in the tax-exempt area" completely ignores the biggest of political players in the tax-exempt area: unions. The guidance is directed only at 501(c)(4) social-welfare groups—the tax category that has of late been flooded by conservative groups. Mr. Obama's union foot soldiers—which file under 501(c)(5)—can continue playing in politics.

Treasury is also going to great lengths to keep secret the process behind its rule. Cleta Mitchell, an attorney who represents targeted tea party groups, in early December filed a Freedom of Information Act request with Treasury and the IRS, demanding documents or correspondence with the White House or outside groups in the formulation of this rule. By law, the government has 30 days to respond. Treasury sent a letter to Ms. Mitchell this week saying it wouldn't have her documents until April—after the rule's comment period closes. It added that if she didn't like it, she can "file suit." The IRS has yet to respond.

Mr. Camp has now authored stand-alone legislation to rein in the IRS, though the chance of Majority Leader Harry Reid (D., Nev.) allowing a Senate vote is approximately equal to that of the press corps paying attention to this IRS rule.

So that puts a spotlight on newly sworn-in IRS Commissioner John Koskinen, who vowed during his confirmation hearing to restore public trust in the agency, and now must decide whether to aid in a new and blatantly political abuse of IRS powers. The White House is using the agency to win an election this fall. They gave the proof this week.

from the Wall Street Journal, 2014-Feb-4:

Taking the IRS Fifth
If everything was kosher, why won't Lois Lerner talk to Congress?

Liberals are celebrating President Obama's claim that "not even a smidgen of corruption" occurred when the IRS targeted conservative groups for additional scrutiny in an election season. Less enthused must be Lois Lerner, the former director of tax-exempt organizations who invoked her Fifth Amendment right not to testify before a House committee last May.

Asked by Fox News's Bill O'Reilly whether there was any corruption in the IRS handling of groups applying for tax-exempt status, Mr. Obama said "absolutely not," adding that the policy that delayed hundreds of applications by conservative groups was a case of "some bone-headed decisions out of a local office." By local he means Cincinnati.

The President's clairvoyance is extraordinary, since neither the Justice Department nor Congress has finished investigations. The congressional probes have conducted interviews with dozens of employees from the IRS and Treasury Department and reviewed hundreds of thousands of pages of documents. They have already revealed that the tea-party cases, including intrusive questionnaires, were systematically reviewed by lawyers in the IRS Washington office.

But hey, if the President says it's all kosher and the FBI doesn't intend to pursue criminal charges in its probe of the selective IRS screening procedures, why should Ms. Lerner take the Fifth? Perhaps we'll get to hear what Ms. Lerner meant when she wrote in February 2011 emails that the tea party matter was "very dangerous" and that "Cincy should probably NOT have these cases."

Meantime, the IRS has decided to reinstate bonuses for employees. Judging by the President's vote of confidence, maybe Ms. Lerner could get a retroactive performance bonus for following the IRS rule of omerta.

from the Wall Street Journal, 2014-Jan-28, by James Taranto:

Enemies of Friends of Abe
How the IRS chills freedom of association.

These days "IRS Targets Conservative Group" is a dog-bites-man story. But this one was man-bites-dog by virtue of its placement: on the front page of the New York Times, a newspaper that is usually supportive of this administration's efforts to suppress domestic dissent. Put it down to a sudden outbreak of news judgment.

The news value to the Times may lie more in the nature of the organization than its trouble with the IRS. "In a famously left-leaning Hollywood, where Democratic fund-raisers fill the social calendar, Friends of Abe stands out as a conservative group that bucks the prevailing political winds," reads the lead paragraph.

But Friends of Abe--as in Lincoln--has sought nonprofit status under Section 501(c)(3) of the U.S. Tax Code, which would allow it to collect tax-deductible contributions. The IRS has been reviewing the application for some two years, seeking information about meetings where politicians spoke. A 501(c)(3) is prohibited from engaging in campaign activity, such as hosting a fundraiser, but as the Times notes, "tax-exempt groups are permitted to invite candidates to speak at events."

The most troubling revelation in the Times account is that at one point the IRS "included a demand--which was not met--for enhanced access to the group's security-protected website, which would have revealed member names." The Times points out that FOA "keeps a low profile and fiercely protects its membership list, to avoid what it presumes would result in a sort of 21st-century blacklist" and that "tax experts said that an organization's membership list is information that would not typically be required."

With the possible exception of academia, show business is about as totalitarian a subculture as you will find in America. Conservatives are a tiny minority, and they fear for their livelihoods if exposed. A few high-profile celebrities are exceptions--the Times mentions Gary Sinise, Jon Voight, Kelsey Grammer and Lionel Chetwynd--but for lesser-known actors and people who work in off-camera jobs, confidentiality is crucial.

This column obtained a letter that Jeremey Boreing, FOA's executive director, sent members last week in response to the Times story. Its tone demonstrates how seriously the group takes its members' privacy:

At one point, as we were pushing to get the situation resolved, the IRS asked for access to those portions of our website that contain the names of our members. We refused to give them this access, and we will continue to refuse it.

At present, that is no longer one of the demands that they are making. . . .

We will not name names in Hollywood--not for the New York Times and not for the IRS. If the day should come that the IRS makes seeing the list an essential demand for our determination, we will simply remove our request for exemption and structure the organization in a different manner. This office will never reveal the names of our members, and we ask that none of our members reveal their fellows either.

We should note that, true to his word, Boreing names no names in the letter.

FOA members have good reason to fear being identified to the IRS. Last year the agency was revealed to have leaked confidential donor information about the National Organization for Marriage to the Human Rights Campaign, an antagonist in the debate over same-sex marriage. HRC promptly posted the purloined information online. LifeSiteNews.com reported in October that congressional investigators had identified the leaker, "but in an ironic twist, the Internal Revenue Service is forbidden from disclosing whether the employee has been prosecuted, fired, or even reprimanded."

The IRS's intrusive tactics thus have a chilling effect on people who wish to exercise their First Amendment right of free association without attracting public attention--or, more precisely, the attention of vicious ideological antagonists. Even calling attention to those tactics can compound the problem, as illustrated by FOA's need to reassure its members in the wake of the Times story. The gradual accretion of power by a vast administrative state, combined with an administration intolerant of dissent, has produced a clear and present danger to basic American freedoms.

from the New York Times, 2014-Jan-22, printed 2014-Jan-23, p.A1, by Michael Cieply and Nicholas Confessore:

Leaning Right in Hollywood, Under a Lens

LOS ANGELES — In a famously left-leaning Hollywood, where Democratic fund-raisers fill the social calendar, Friends of Abe stands out as a conservative group that bucks the prevailing political winds.

A collection of perhaps 1,500 right-leaning players in the entertainment industry, Friends of Abe keeps a low profile and fiercely protects its membership list, to avoid what it presumes would result in a sort of 21st-century blacklist, albeit on the other side of the partisan spectrum.

Now the Internal Revenue Service is reviewing the group's activities in connection with its application for tax-exempt status. Last week, federal tax authorities presented the group with a 10-point request for detailed information about its meetings with politicians like Paul D. Ryan, Thaddeus McCotter and Herman Cain, among other matters, according to people briefed on the inquiry.

The people spoke on the condition of anonymity because of the organization's confidentiality strictures, and to avoid complicating discussions with the I.R.S.

Those people said that the application had been under review for roughly two years, and had at one point included a demand — which was not met — for enhanced access to the group's security-protected website, which would have revealed member names. Tax experts said that an organization's membership list is information that would not typically be required. The I.R.S. already had access to the site's basic levels, a request it considers routine for applications for 501(c)(3) nonprofit status.

Friends of Abe — the name refers to Abraham Lincoln — has strongly discouraged the naming of its members. That policy even prohibits the use of cameras at group events, to avoid the unwilling identification of all but a few associates — the actors Gary Sinise, Jon Voight and Kelsey Grammer, or the writer-producer Lionel Chetwynd, for instance — who have spoken openly about their conservative political views.

The I.R.S. request comes in the face of a continuing congressional investigation into the agency's reviews of political nonprofits, most of them conservative-leaning, which provoked outrage on the right and forced the departure last year of several high-ranking I.R.S. officials. But unlike most of those groups, which had sought I.R.S. approval for a mix of election campaigning and nonpartisan issue advocacy, Friends of Abe is seeking a far more restrictive tax status, known as 501(c)(3), that would let donors claim a tax deduction, but strictly prohibits any form of partisan activity.

The group is not currently designated tax-exempt, but it behaves as a nonprofit and has almost no formal structure, people briefed on the matter said. The I.R.S. review will determine whether Friends of Abe receives tax-exempt status that would provide legal footing similar to that of the People for the American Way Foundation, a progressive group fostered by the television producer Norman Lear and others. If not, Friends of Abe could resort to the courts, or it might simply operate as a nonprofit, but it would be unable to receive tax-deductible contributions.

Jeremy Boreing, executive director of Friends of Abe, declined on Wednesday to discuss details of the tax review, but said the group would continue regardless of outcome.

“Certainly, it's been a long process,” he said.

“Friends of Abe has absolutely no political agenda,” he added. “It exists to create fellowship among like-minded individuals.”

People for the American Way, Mr. Lear's group, stands as something of a liberal counterpart to Friends of Abe, though the organization is far larger, with an affiliate that spends millions of dollars a year on issue advocacy in Washington and beyond. But the entertainment industry has been crisscrossed by progressive groups like the Natural Resources Defense Council, which maintains a tax-exempt educational adjunct under the 501(c)(3) provision, and includes the producer Laurie David and the actor Leonardo DiCaprio among its trustees. Another, the American Foundation for Equal Rights, is a nonprofit that supports marriage rights for gay people and counts the producer Bruce Cohen and the writer Dustin Lance Black among its founders.

In the request last week, tax officials combined broad questions about membership criteria and social events, according to the people briefed on the matter, with pointed queries about meetings with a Los Angeles mayoral candidate, Kevin James, and Republican politicians like Mr. Ryan, Mr. Cain and Rick Santorum.

Officials particularly wanted to know why a speech introducing Mr. Cain at a Friends of Abe event in November 2011 — when he was a presidential candidate — should not be regarded as potentially prohibited political campaign support.

While tax-exempt groups are permitted to invite candidates to speak at events, it is not uncommon for the I.R.S. to scrutinize such activities to determine whether they cross the line into partisan election activity. One issue is whether the organization invites all the qualified candidates.

“The I.R.S. would say that if you are inviting only conservative candidates, that's a problem,” said Marcus S. Owens, a former director of the I.R.S.'s exempt organizations division. “But it's never really been litigated.”

Ofer Lion, a lawyer representing Friends of Abe in its application for tax-exempt status, declined to comment.

Friends of Abe began about nine years ago as little more than an email chain linking conservative stars, filmmakers and other Hollywood figures who were generally reluctant to openly discuss their views. The name is a take on Friends of Bill, the circle of loyalists who have adhered to Bill Clinton over the years.

Mr. Sinise was a leading voice among those who in early 2005 gathered at Morton's Steakhouse here for an informal dinner that members have since identified as the group's closest approach to an actual founding moment.

As Friends of Abe grew, however, Mr. Sinise withdrew from active leadership, and Mr. Boreing, a film producer and director, took charge.

Membership has been defined mostly by access to a private website (there are no dues, but enhanced online access requires a small fee), and attendance at a growing number of events that have included meetings with political operatives like Karl Rove and Frank Luntz; politicians like Michele Bachmann and John Boehner; and media figures like Ann Coulter, Dennis Miller and Mark Levin.

The recent I.R.S. query did not mention the earlier request for access to the names of members, people briefed on the query said.

But a remaining question is whether at least some of the group's politically oriented encounters will be interpreted as campaign activity, and weigh against its bid for tax exemption as a 501(c)(3) organization, devoted to educational or charitable work.

A spokesman for the I.R.S. on Wednesday said it was prohibited from commenting on specific taxpayer activity.

Tax officials and congressional overseers have been embroiled in a debate over the enforcement of rules that restrict campaign activity by tax-exempt groups since last year, when an I.R.S. official acknowledged that officers had improperly targeted Tea Party groups for extra scrutiny. But most of those groups were seeking recognition as so-called 501(c)(4) groups, whose ability to conduct a limited amount of campaign activity is governed by a vague patchwork of rules and standards. In November, in an effort to make the process both more transparent and more rigorous, the I.R.S. announced that it would begin formulating new rules.

Michael Cieply reported from Los Angeles and Nicholas Confessore from New York.

from BBC News, 2014-Feb-12, by Soutik Biswas:

Why did Penguin recall a book on Hindus?

"Now here's this book. And there will be more. After half a century of studying and engaging with Hinduism, I'm not about to be silenced by a few (bad) eggs," academic Wendy Doniger wrote in her latest book On Hinduism, published last year.

Doniger, who teaches at the University of Chicago and has written nearly half a dozen books on Hinduism, including a translation of the Kama Sutra, was writing about how her 2009 book The Hindus: An Alternative History quickly became a lightning rod for Hindu anger.

Doniger wrote that bloggers had accused her of attacking Hinduism and sexualising Hindus, flooded Amazon with their "lurid opinions of the book" and sent her obscene and threatening emails. There was even a protest outside the US embassy in Delhi calling for the book, which was climbing the best-seller non-fiction list, to be banned. The book had also prompted a legal challenge from Hindu groups and attracted at least two separate criminal complaints.

But Tuesday's news of her publisher Penguin India deciding to recall and destroy all remaining copies of The Hindus is being seen as the unkindest cut of all.

The publisher appears to have come to an out-of-court agreement with a little-known Hindu campaign group called Shiksha Bachao Andolan (Save Education Movement), which had filed cases against the book.

The man behind the campaign is Shiksha Bachao Andolan leader Dinanath Batra, a former teacher and school principal. After retirement, he told a newspaper, he began to devote his time to a "mission to see distortions removed from books taught to schoolchildren".

Since then, he says, he has filed some 10 lawsuits involving "objectionable passages" from various textbooks. He filed another demanding an essay on Ramayana by the late poet and scholar AK Ramanujan be dropped from the history syllabus of Delhi University. That was followed by a legal notice to a newspaper for publishing a story on Hindu terrorism. Then he trained his guns on the Doniger book.

"The book is in a bad taste right from the beginning," Mr Batra told a BBC Hindi colleague on Wednesday. "If you see the front page [cover], the picture there is also objectionable since it portrays a deity in a vulgar pose. The book is slanderous and even facts have been distorted."

The Hindus is a magisterial 779-page work that attempts a narrative that is different to the one constituted by the famous texts in Sanskrit, the literary language of ancient India.

Doniger writes that it also tells an alternate history to "show how much the groups that conventional wisdom says were oppressed and silenced and played no part in the development of the [Hindu] tradition - women, untouchables [Dalits]- did actually contribute to Hinduism". Reviewers who liked the book described it as "history as entertainment" and "staggeringly comprehensive". They praised Doniger's "vast erudition, insight, graceful writing laced with gentle wit".

Mr Batra doesn't think so.

He finds it objectionable that Doniger writes in the book that independence hero Mahatma Gandhi had a "habit of sleeping beside girls young enough to be called jailbait in the United States"; and that 19th Century Hindu monk Swami Vivekananda "set himself against all forms of caste distinction and advised people to eat beef".

Mr Batra's pride is also hurt by Doniger's assertion that Maharashtrian queen Lakshmi Bai "claimed loyalty to the British" and sought their help when a local rival to the throne invaded her kingdom. And he also does not believe Doniger when she writes that "there is no Hindu canon", and that ideas about major issues such as vegetarianism, non-violence, even caste, are "subjects of a debate, not a dogma".

The fact that a top publisher has acceded to the demands of a fringe Hindu group has come as a shock to many. (Penguin has refused to comment so far.)

"This is deeply disappointing," historian Ramachandra Guha tweeted. "Penguin should have appealed in a higher court."

Journalist and commentator Swapan Dasgupta said he was "very uneasy" about Penguin's decision. "Ideas and academic studies, however contentious, can't be handled by censorship."

Doniger has, however, has been kinder to her publisher.

She said in a statement that she did not blame Penguin Books, which had made an effort to save the book by defending it in the courts for four years - both as a civil and criminal suit - unlike other publishers, which have quietly withdrawn books.

What's seen as a bigger worry is the erosion of India's liberal tradition.

Academic Pratap Bhanu Mehta writes that the country's reputation as a bastion of liberal values is "dimming by the day".

He makes the point that the courts have also failed liberal India "because of a law that signals that it is open to banning books", a point Doniger also makes in her statement. Mr Mehta despairs that liberal India has also been "silenced" by "professional offence mongers". He blames the educators for the "extraordinary failure of the project of liberal education".

Mr Mehta writes: "Wendy Donniger could not have damaged Hindus. But if liberal India dies, Hinduism will die as well. It's a frightening message for one of the world's largest religions."

from the Wall Street Journal, 2014-Feb-4, by Lee E. Goodman:

Lee E. Goodman: The Feds Flirt With Reining in TV Talk
A TV station invites two candidates to debate. Has it made an illegal contribution to their campaigns?

David Gregory and George Stephanopoulos should be concerned. The same Federal Election Commission that represented to the Supreme Court that it could ban books now claims the authority to censor Sunday-morning news programs.

This startling assertion of government power became public in December when the FEC released an enforcement file in the case of a Boston television station's regular Sunday-morning news program, "On the Record." The station, WCVB, had invited two congressional candidates (a Democrat and a Republican) into its studio to appear on "On the Record" in the weeks leading up to the 2012 election and formatted the joint appearance as a 30-minute debate.

Another candidate (a libertarian) who was not invited filed a complaint alleging that the value of WCVB's production costs and airtime constituted unlawful corporate contributions to the two candidates who were invited. Corporate contributions to federal candidates are illegal and people who make them face stiff fines, injunctions, and can even go to prison.

The Federal Election Campaign Act, which established the FEC, regulates money in federal campaigns to protect American citizens from corrupt politicians. It also expressly forbids the agency from regulating the press. Congress enacted this "press exemption" to protect the profoundly important First Amendment right of the press to inform the public about campaigns and candidates without government interference.

WCVB invoked the First Amendment and the campaign act's press exemption. When the FEC considered the matter in November 2013, the staff recommended that the agency disregard both. The FEC proceeded to sit in judgment of the news directors' editorial criteria for choosing the candidates to appear to debate on the station's Sunday morning program. Ultimately the FEC decided that the editorial criteria were sufficiently objective and thus the station had not made an unlawful corporate contribution. It dismissed the case.

Based on this outcome, Messrs. Gregory and Stephanopoulus might rest easy. They shouldn't, which is why I took issue with the FEC's ostensible beneficence. A decision to approve implies the power to disapprove. And in the case of FEC regulatory authority over corporate contributions, the power to investigate, punish and even enjoin is the power to censor news programs like "On the Record," "Meet the Press" and "This Week." The upshot of the WCVB decision is that every television newsroom must look over its shoulder whenever it invites two or more candidates to a joint appearance.

Tellingly, Congress forbade even the Federal Communications Commission, an agency expressly empowered to regulate broadcast television stations, to dictate such news judgments. But the FEC appears to be intent upon meddling in TV newsrooms.

History is rife with government efforts to disrupt, investigate and even silence dissenting published opinion. From early colonial times when royal governments punished and shuttered printers critical of royal governors, to film-review-board censorship, attempts to enjoin the printing of the Pentagon Papers and, more recently, government prying into journalists' telephone records, government power has proved to be a dangerous threat to freedom of the press.

The judgments of six FEC commissioners—who are by law appointed by partisan affiliation—can be biased too. A few examples from recent years (several predating current commissioners' tenures) are revealing. The FEC voted unanimously in 2008 to recognize a technology company's (Melothe Inc.) right to launch a new Web campaign channel devoted exclusively to pro-Democratic coverage, endorsements of Democratic candidates and even solicitations for contributions on behalf of Democratic candidates. Six commissioners also voted to recognize former Democratic Sen. Jean Carnahan's right to launch an online publication in 2005 devoted exclusively to pro-Democratic commentary free from regulation.

But in 2010, three commissioners voted to find that "The Sean Hannity Show" violated the law when the radio program endorsed a Republican candidate for Congress and emailed its endorsement and a solicitation of support to the show's distribution list.

Likewise, there were six unanimous votes in 2004 on the commission to dismiss complaints against Michael Moore, Harvey Weinstein and their production companies for expending corporate funds to produce, advertise and exhibit the anti-Bush editorial film "Fahrenheit 9/11," but only four votes in 2010 to recognize the press rights of Citizens United to make conservative documentary films. Also in 2010, the commission deadlocked three to three when filmmaker RG Entertainment Ltd. sought to advertise and distribute the conservative documentary "I Want Your Money."

The point is that government officials cannot be trusted to regulate journalists fairly and without bias. For precisely that reason, Congress prohibited the FEC from regulating the news media's exercise of editorial discretion—and that manifestly includes any attempt to second-guess a TV news program's criteria for hosting two candidates for elective office to debate.

While some in the media advocate more aggressive enforcement of campaign-related speech, they should pay close attention to what aggressive FEC regulation of WCVB's "On the Record" signifies for their own First Amendment rights.

Mr. Goodman, a Republican, was appointed to the Federal Election Commission in October 2013 and elected as chairman in December. The opinions expressed do not necessarily represent the views of the FEC.

from Politico, 2014-Jan-24, by Tal Kopan:

Right wing: Dinesh D'Souza charges red flag

In the wake of the indictment of conservative author and filmmaker Dinesh D'Souza for alleged fraud, conservatives are crying foul that it is evidence of the Obama administration punishing its critics.

Ranging from questions about selective enforcement of laws to outright accusations of manipulation, many bloggers, writers and pundits on the right raised flags about the arrest of the prominent critic of President Barack Obama and creator of the controversial film “2016: Obama's America,” released in 2012.

D'Souza's co-producer on “2016” called the arrest politically motivated in an interview with The Hollywood Reporter.

“In America, we have a long tradition of not doing what is commonly done in too many other countries — criminalizing dissent through the selective enforcement of the law,” Greg Molen said. “In light of the recent events and the way the IRS has been used to stifle dissent, this arrest should send shivers down the spines of all freedom-loving Americans.”

His thoughts were echoed by prominent conservatives, including influential Drudge Report founder Matt Drudge, who sent out a conspiracy-stoking tweet.

MATT DRUDGE
✔ @DRUDGE
They are going after the Obama critics with indictments. VA Gov. Now Dinesh D'souza. Holder unleashing the dogs...
11:51 PM - 23 Jan 2014
569 Retweets 143 favorites

D'Souza has been accused of making straw donations to the campaign of the opponent of Sen. Kirsten Gillibrand (D-N.Y.) in the 2012 election, and in a press release, the U.S. Attorney's Office said the indictment came out of a “routine review” by the FBI, which was seized upon by the blogosphere.

“A routine review, eh? At the very least, the report raises a few questions,” Ed Morrissey wrote on HotAir. “The race, although not specified, appears to be the Senate election between Kirsten Gillibrand and Wendy Long in New York, in which Long lost to Gillibrand by forty-five points (72% to 27%). Why would D'Souza try to push illegal contributions in the low five figures and risk criminal prosecution in a race where tens of millions of dollars were spent, and where the challenger was utterly doomed? For that matter, why use straw men when D'Souza could have just bundled for Long instead, or set up a PAC?”

Morrissey critiqued campaign contribution laws as inherently flawed and acknowledged D'Souza could have broken the law, but he said that doesn't lower the red flags.

“How many of these cases involve Obama boosters rather than critics? How did prosecutors decide to look into D'Souza's activities in the first place?” Morrissey wrote.

Conservative website The Daily Caller published a story with the headline, “Obama administration indicts conservative filmmaker critical of Obama,” which cited Molen's comments to THR and implied there could be motives behind the indictment.

“`2016: Obama's America' was a surprise box-office smash, raking in $33 million in revenue. The documentary is currently the second-most-popular political documentary in American history behind `Farenheit 9/11,' a 2004 movie by leftist documentarian Michael Moore which thrashes the foreign policy of Obama's predecessor, George W. Bush. Bush administration officials never indicted Moore,” the article read.

Writing on Reason.com, senior editor Brian Doherty also used the indictment to criticize campaign finance laws, wielding sarcasm to question any possible motives in D'Souza's arrest.

“Is it a good thing that someone should face fines and/or jail time for deciding to express his support of a political candidate by reimbursing people he knows for the amounts of money they donated to that candidate? The correct answer is no,” he wrote. “Yet, in this land of free speech and democracy, where political expression is highly valued, you can and indeed do face criminal charges for such actions. See the fate today of conservative politico and writer (and anti-Obama filmmaker, but we can be sure that had nothing to do with this) Dinesh D'Souza.”

He continued: “Expressing your support for a candidate above an arbitrary legislative limit—or, even, giving some cash to friends of yours for whatever reason you want, money is fungible—is corruption of the electoral process. That laws like this exist to slam enemies of the regime when such laws might be needed, well, that's just politics.”

Some bloggers took their criticism farther, with Pamela Gellar of Atlas Shrugged comparing the Obama administration to fascists in the pre-World War II era.

“The ongoing persecution of Republicans and conservatives mirrors the attacks by the fascists of Europe on their opponents in the 1930s. Punishing Obama's political adversaries claims another victim,” Gellar wrote in a post. “The latest attacks are against conservative authors and/or groups that share a philosophy based on individual rights. Dinesh D'Souza is the latest target.”

from the Wall Street Journal, 2013-Aug-22, p.A13, by David B. Rivkin Jr. and Lee A. Casey:

The True Lesson of the IRS Scandal
There should be less federal regulation of political speech.

President Obama and his political allies have dismissed as "phony scandals" mounting evidence that the Internal Revenue Service and other federal agencies hindered and punished conservative advocacy groups. Meanwhile, efforts are under way to impose even more regulation on core political speech. The government's abuses are very real, but the scandal's lessons are not appreciated: The federal regulation of political speech has already gone further than can be justified by existing law, let alone the Constitution. The debate about political speech has so far focused on a particular type of nonprofit entity: social-welfare organizations exempt from federal income tax under section 501(c)(4) of the Internal Revenue Code. A group qualifies for this exempt status if it is "operated exclusively for the promotion of social welfare." This means its efforts cannot inure to the benefit of specific individuals, members or private clubs. On Wednesday, Rep. Chris Van Hollen (D., Md.) filed a federal lawsuit seeking to force the IRS to tighten the eligibility rules for politically active groups seeking 501(c)(4) status. Yet "social welfare" is a capacious term that includes many policy and political goals—from preserving historic battlefields to repealing laws for or against same-sex marriage. The IRS has long recognized this by permitting such groups, if consistent with their stated social-welfare purpose, to engage primarily or even wholly in public-issue advocacy or lobbying. In other words, they are permitted to engage in political speech directed at government officials. At the same time, however, the IRS says that political campaign activities cannot account for more than half of a 501(c)(4)'s expenditures. But the statute itself contains no such limitation. In short, the IRS effectively robs social-welfare organizations of one half of their potential political speech. This distinction between lobbying and election advocacy is entirely arbitrary. Electing candidates who support an organization's principles and goals may be the most effective (and in some cases the only) means of achieving that organization's social-welfare purpose. Yet the IRS rules here are consistent with the federal government's overall approach to regulating elections since at least the 1970s. Bizarre as it may be in the world's leading democracy, federal election laws treat the most effective form of political speech as the most disfavored. Stricter regulations like those sought by Rep. Van Hollen and others would only worsen the problem. Until recently, the Supreme Court largely supported this system, interpreting the Constitution's free-speech guarantees to permit these limitations in order to avoid corruption or its appearance. Even so, the court rejected efforts to control political activities, including expenditures, in support of a candidate but made independently of a candidate's own campaign organization. The exception was corporations, which could not make independent expenditures. In Citizens United v. FEC (2010), a majority of the court more sensitive to the First Amendment invalidated restrictions on independent political campaign expenditures by corporations, associations and labor unions. Since Citizens United, the use of 501(c)(4) organizations to engage in political speech has burgeoned—largely because such groups need not disclose their donors as purely political organizations still must. Calls for the IRS to close this supposed "loophole" also have multiplied. That is a bad idea, not supported by the statutory language, and it is unconstitutional to boot. Although the Supreme Court has held that there is no duty to subsidize political speech through tax exemptions, there is no plausible basis on which the IRS (or Congress) can limit tax-exempt status to groups that eschew independent campaign spending while permitting other forms of political speech, such as lobbying. Where the potential for corruption—for example, giving money to a candidate in exchange for favors—is absent, as the Citizens United ruling found with regard to independent expenditures, treating one form of political speech differently than others is not rational. It fails even the most deferential judicial review standard, much less the more exacting compelling governmental interest ordinarily applied under the First Amendment. The IRS-created 50% limit is vulnerable to challenge on the same grounds. It should make no difference under the existing statutory language what form the political speech of a 501(c)(4) takes; the organization should be able to spend 100% of its funds on independent campaign spending. There also are sound policy reasons to cut 501(c)(4)s loose from such regulations. Such groups allow ordinary people to compete with the better-funded media industry, political parties, celebrities and other wealthy players, in the marketplace of ideas. Constraining the activities of 501(c)4s would not, as "progressives" claim, protect the little guy and level the playing field. Instead it would protect entrenched interests and, most of all, incumbents who can raise money simply because they hold public office. Congress could abolish the 501(c)(4) status entirely. However, neither the IRS nor Congress can produce a result in which some groups, whose social-welfare purposes can be advanced through nonpolitical speech (such as promoting botany or historical research), can use 100% of their resources to do so, while others groups, whose social-welfare purposes can be advanced only through political speech, cannot. To conclude otherwise would enable the government to engage in content-based restrictions on speech that have always been viewed as the most insidious violation of the First Amendment. The Supreme Court also has long made clear that Congress cannot deploy tax subsidies as a means of suppressing "dangerous ideas." The IRS scandal is a moment of reckoning. It offers the country a unique opportunity to free a substantial portion of political speech from government regulation. This is an opportunity not to be wasted. Republicans should broaden their oversight inquiries into the constitutional and statutory basis on which the IRS has limited 501(c)(4) expenditures in the past—and force the agency to justify any plans it has to continue or expand those limits. Messrs. Rivkin and Casey served in the Justice Department during the Reagan and George H.W. Bush administrations. They are partners in the Washington, D.C., office of Baker & Hostetler LLP.

from the New York Times, 2013-Nov-26, by Nicholas Confessore, with Eric Lipton contributing:

New Rules Would Rein In Nonprofits' Political Role

The Obama administration on Tuesday moved to curb political activity by tax-exempt nonprofit organizations, with potentially major ramifications for some of the biggest and most secretive spenders in American politics.

New rules proposed by the Treasury Department and the Internal Revenue Service would clarify both how the I.R.S. defines political activity and how much nonprofits are allowed to spend on it. The proposal covers not just television advertising, but bread-and-butter political work like candidate forums and get-out-the-vote drives.

Long demanded by government watchdogs and Democrats who say the flow of money through tax-exempt groups is corrupting the political system, the changes would be the first wholesale shift in a generation in the regulations governing political activity by nonprofits.

The move follows years of legal and regulatory shifts, including the Supreme Court's Citizens United ruling in 2010, that have steadily loosened the rules governing political spending, particularly by those with the biggest bank accounts: corporations, unions and wealthy individuals.

But the proposal also thrusts the I.R.S. into what is sure to be a polarizing regulatory battle, with some Republicans immediately criticizing the proposal on Tuesday as an attack on free speech and a ploy to undermine congressional investigations into the agency's handling of applications from Tea Party groups.

“Before rushing forward with new rules, especially ones that appear to make it harder to engage in public debate, I would hope Treasury would let all the facts come out first,” said Representative David Camp of Michigan, the chairman of the House Ways and Means Committee.

Political spending by tax-exempt groups — from Crossroads Grassroots Policy Strategies, co-founded by the Republican strategist Karl Rove, to the League of Conservation Voters — skyrocketed to more than $300 million in 2012 from less than $5.2 million in 2006, according to the Center for Responsive Politics. Much of the money has been funneled through chains of interlinked nonprofit groups, making it even harder to determine the original source.

And unlike political parties and “super PACs,” political nonprofits are permitted to keep the names of donors confidential, making them the vehicle of choice for deep-pocketed donors seeking to influence campaigns in secret.

The new rules would not prohibit political activity by nonprofits. But by seeking to establish clearer limits for campaign-related spending by groups claiming tax exemption, the I.R.S. proposal could have an enormous impact on some of the biggest groups, forcing them to either limit their election spending or register as openly political organizations, such as super PACs.

A spokesman for Crossroads declined to comment, as did officials at other political nonprofits.

Nick Ryan, the founder of the American Future Fund, which spent at least $25 million on political advertising last year, said, “Unfortunately, it appears that the same bureaucrats that attempted to suppress the speech of conservative groups in recent years has now put together new rules that apply to (c)4 groups but do not apply to liberal groups like labor unions.”

“I wish I could say I am surprised,” Mr. Ryan added, “but I am not."

The final rules are unlikely to be issued until after the 2014 election, after a public comment period.

The administration's proposal would apply to nonprofits organized under Section 501(c)4 of the tax code, which are granted tax exemption in exchange for devoting themselves to the promotion of “social welfare.”

Under current rules, promoting social welfare can include some political activity, along with unlimited amounts of lobbying. Some of the largest political nonprofits — like Americans for Prosperity, backed by the conservative philanthropists Charles and David Koch — have used that provision to justify significant expenditures on political ads.

But under the new proposal, a broad swath of political work would be classified as “candidate-related political activity” and explicitly excluded from the agency's definition of social welfare. Those activities include advertisements that mention a candidate within 60 days of an election as well as grants to other organizations making candidate-related expenditures.

“Depending on the details, this could be dramatic,” said Marcus S. Owens, a former chief of the I.R.S.'s exempt organizations division.

The rules could also affect more traditional conservative and liberal advocacy organizations, including Tea Party groups whose complaints of harassment by I.R.S. employees prompted the resignation of several high-ranking I.R.S. officials last spring. Distributing voter guides, for example, would automatically count as political activity.

Jay Sekulow, a lawyer representing more than three dozen of the groups in a federal lawsuit against the I.R.S., described the new proposal as a further attack on free speech. “This is a feeble attempt by the Obama administration to justify its own wrongdoing with the I.R.S. targeting of conservative and Tea Party groups,” he said in a statement.

Administration officials described the new proposal as a response to widespread complaints that the existing regulations were too vague, leading to inconsistent or arbitrary enforcement. The I.R.S. would be better equipped to enforce the rules, the officials said, if they were clearer, while nonprofit groups would be better able to comply.

“This proposed guidance is a first critical step toward creating clear-cut definitions of political activity by tax-exempt social welfare organizations," said Mark J. Mazur, the assistant Treasury secretary for tax policy.

In addition to clarifying what activities count toward assessing a tax-exempt group's primary purpose, the final guidance could include a more precise definition of how much political activity a 501(c)4 group is permitted to engage in while still maintaining its tax exemption.

Many election lawyers and their clients use an unofficial rule of thumb: If a tax-exempt group spends less than 50 percent of its budget on political activity, then its primary purpose is not winning campaigns.

Some activists have argued that a rule requiring 501(c)4s to spend no more than 10 percent to 15 percent of their budgets on political activities would be closer to the letter and spirit of existing law.

Some lawyers said they worried that the new rules, particularly those that could apply to grass-roots organizing, could unfairly burden bona fide social welfare groups. Others suggested that tighter restrictions on social welfare groups would only hasten the migration of political money into other kinds of entities whose campaign spending is not subject to I.R.S. jurisdiction.

Mr. Owens, now a tax lawyer in Washington, said the I.R.S. proposal would have one certain consequence: more business.

“I'm looking forward to a very profitable New Year,” he said.

from the New York Times, 2013-May-10, by Jonathan Weisman:

I.R.S. Apologizes to Tea Party Groups Over Audits of Applications for Tax Exemption

WASHINGTON — The Internal Revenue Service apologized to Tea Party groups and other conservative organizations on Friday for what it now says were overzealous audits of their applications for tax-exempt status.

Lois Lerner, the director of the I.R.S. division that oversees tax-exempt groups, acknowledged that the agency had singled out nonprofit applicants with the terms “Tea Party” or “patriots” in their titles in an effort to respond to a surge in applications for tax-exempt status between 2010 and 2012.

She insisted that the move was not driven by politics, but she added, “We made some mistakes; some people didn't use good judgment.”

“For that we're apologetic,” she told reporters on a conference call.

Republicans seized on the acknowledgment, demanding more information and adding it to a growing list of steps by the Obama administration that they say prove political interference, from allegations of hiding the terrorist origins of the attack in Benghazi, Libya, to the demand for disclosure of donors to conservative “super PACs.”

Senator Mitch McConnell of Kentucky, the Republican leader, called for “a transparent, governmentwide review aimed at assuring the American people that these thuggish practices are not under way at the I.R.S. or elsewhere in the administration against anyone, regardless of their political views.”

The White House press secretary, Jay Carney, said the events in question happened while the I.R.S. was under the directorship of a Bush administration appointee and regardless, it is an agency run independently of White House oversight. He also said the matter is already under investigation by the agency's inspector general.

The apology and the ensuing reaction could be a turning point for the I.R.S., which has been caught between Congressional Democrats pressing the agency to more aggressively protect tax-exempt status from overtly political groups and conservative groups claiming harassment.

Campaign finance watchdogs have said for years that 501(c)(4) tax exemptions are widely abused by conservative and liberal groups whose primary purpose is to influence elections, not to promote “social welfare,” as tax-exempt status mandates.

But Ms. Lerner said the examinations of the Tea Party groups were not a response to such pressure. She portrayed it more as a bureaucratic mix-up. Between 2010 and 2012, applications for 501(c)(4) tax exemptions nearly doubled, to more than 2,400. As the agency has done in the past, it centralized the processing of the surge at its Cincinnati office, where about 300 were flagged for further examination.

Staff members at that office singled out the terms “Tea Party” and “patriot,” she said, but not out of political bias; it was “just their shortcut.” Only about a quarter of the 300 cases flagged for scrutiny were Tea Party-related, she said, but she called the singling out of those groups “absolutely inappropriate and not the way we should do things.”

Ms. Lerner indicated that no disciplinary action had been taken against the low-level employees she said were responsible; when pressed, she said she could not comment on personnel matters. But, she said, policy changes had been made to ensure that similar episodes would not occur. For instance, high-level I.R.S. officials must now approve efforts to lump similar applications or audits into one centralized location for processing.

To the conservative groups and their defenders, the acknowledgment confirmed their worst accusations. In early 2012, numerous Tea Party-affiliated groups came forward to charge the I.R.S. with harassment for demanding that they fill out extensive — and intrusive — questionnaires before their tax-exempt applications could be approved. The questionnaires demanded detailed membership lists, donors, contact information, logs of activities and other information about the groups' intentions.

Many of those groups found representation with the conservative American Center for Law and Justice and its outspoken lead lawyer, Jay Sekulow, who accused the I.R.S. of “McCarthyism” intended to stifle conservative speech.

The center called the apology “a significant victory for free speech.”

But the leader of one of the groups that cried foul, the Kentucky 9/12 Project, said he had received no such admission from the agency. Eric Wilson, the group's director, said he never complied with the I.R.S. questionnaire.

Nonetheless, the I.R.S. sent the group a one-paragraph letter on April 1 granting nonprofit status, with no explanation for the protracted process and no regrets, he said.

Organizations that had been pressing for more aggressive enforcement of tax-exemption laws reacted with alarm. Lisa Gilbert, the director of Public Citizen's Congress Watch division, said the I.R.S. should not be targeting any particular political ideology. But, she said, questioning applicants for tax exemption to determine whether they were primarily political was entirely proper and should be more widely pursued.

“We don't think it's inappropriate to ask questions,” she said. “Tax-exempt groups are abusing their tax status to pursue political agendas.”

Under current law, tax-exempt 501(c)(4) organizations are supposed to be “primarily” engaged in social welfare work. In practice, groups like the conservative Crossroads GPS and the liberal Priorities USA appear to spend virtually all their efforts trying to sway elections.

Last year, Senate Democrats began pressing the I.R.S. to more aggressively target such groups. As the Tea Party questionnaires surfaced, the agency released a statement saying, “To be tax-exempt as a social welfare organization described in Internal Revenue Code (IRC) section 501(c)(4), an organization must be primarily engaged in the promotion of social welfare. The promotion of social welfare does not include any unrelated business activities or intervention in political campaigns on behalf of or in opposition to any candidate for public office.”

But pressure will now come from the other direction. Representative Dave Camp of Michigan, the House Ways and Means Committee chairman, announced Friday that he would hold hearings on the matter. Representative Eric Cantor of Virginia, the House majority leader, promised an investigation.

Senator Orrin G. Hatch of Utah, the ranking Republican on the Senate Finance Committee, rejected the apology as insufficient, demanding “ironclad guarantees from the I.R.S. that it will adopt significant protocols to ensure this kind of harassment of groups that have a constitutional right to express their own views never happens again.”

from Reuters, 2014-Jan-24, by Harro ten Wolde and Nikola Rotscheroth with editing by Catherine Evans:

German court orders Google to block Max Mosley sex pictures

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.

from Bloomberg, 2013-Nov-26, by Nicole Gaouette in Washington, edited by John Walcott:

NSA Spying Risks $35 Billion in U.S. Technology Sales

International anger over the National Security Agency's Internet surveillance is hurting global sales by American technology companies and setting back U.S. efforts to promote Internet freedom.

Disclosures of spying abroad may cost U.S. companies as much as $35 billion in lost revenue through 2016 because of doubts about the security of information on their systems, according to the Information Technology & Innovation Foundation, a policy research group in Washington whose board includes representatives of companies such as International Business Machines Corp. (IBM) and Intel Corp. (INTC)

“The potential fallout is pretty huge given how much our economy depends on the information economy for its growth,” said Rebecca MacKinnon, a senior fellow at the New America Foundation, a Washington policy group. “It's increasingly where the U.S. advantage lies.”

Any setback in the U.S. push to maintain an open Internet also could inflict indirect damage on companies such as Apple Inc. (AAPL) and Google Inc. (GOOG) that benefit from global networks with few national restrictions.

Almost 40 percent of the world's population, or 2.7 billion people, are online, according to the International Telecommunication Union, a Geneva-based United Nations agency.

Cisco Systems Inc. (CSCO), the world's largest maker of computer-networking equipment, said this month that the NSA disclosures are causing some hesitation among customers in emerging markets.

Orders in China fell 18 percent in the three months ended Oct. 26. Elsewhere, Robert Lloyd, head of development and sales, said on a conference call Nov. 13, “it's not having a material impact, but it's certainly causing people to stop and then rethink decisions.”

`Serious Damage'

News about U.S. surveillance disclosed by former NSA contractor Edward Snowden has “the great potential for doing serious damage to the competitiveness” of U.S. companies such as Cupertino, California-based Apple, Facebook Inc., and Microsoft Corp., Richard Salgado, Google's director for law enforcement and information security, told a U.S. Senate panel Nov. 13. “The trust that's threatened is essential to these businesses.”

The spying revelations have led governments around the world to consider “proposals that would limit the free flow of information,” Salgado said. “This could have severe unintended consequences, such as a reduction in data security, increased cost, decreased competitiveness, and harm to consumers.”

Brazil, Germany

Countries such as China and Russia that are seeking to impose more national controls on the Internet are finding their views gaining ground. Rising economic powers, including India, Mexico and South Korea, are weighing further limits. Brazil's President Dilma Rousseff, a target of NSA surveillance, is calling for a new conversation about Internet governance with support from Germany, whose chancellor, Angela Merkel, also was an NSA target.

The uproar in Germany will probably hurt Akamai Technologies Inc. (AKAM)'s business there, according to Tom Leighton, chief executive officer of the Cambridge, Massachusetts-based company that helps corporate customers deliver online content faster.

“It's clearly bad for American companies,” Leighton said Nov. 20 at “The Year Ahead: 2014,” a two-day conference in Chicago hosted by Bloomberg LP. “It's particularly bad now in Germany, where it's really being played up, to whip up anti-American corporate sentiment. We'll probably lose some business there.”

Data Flows

Technology companies aren't the only ones facing potential damage from disclosure of the NSA's surveillance, said Myron Brilliant, an executive vice president with the U.S. Chamber of Commerce in Washington. Studies show products and services that rely on cross-border data flows are expected to add an estimated $1 trillion in value to the U.S. economy annually over the next 10 years, he said.

“This is a priority issue, not just for technology or Web-based companies, but also small- and medium-sized businesses,” Brilliant said, listing finance, manufacturing, health care, education, shipping “and other areas not commonly thought of as Internet companies.”

Information technology companies were the first to see fallout after Snowden fled to Hong Kong in May and began releasing details of U.S. surveillance programs. Snowden is now living in Russia.

Cisco in China

Facing a backlash that's already crimping sales in China, San Jose, California-based Cisco may be locked out of future purchases if the Chinese government cites security concerns to favor domestic companies in a projected surge of IT spending, to $520 billion in 2015, to increase urban broadband speeds and expand rural Internet access.

The cloud computing market will be valued at $207 billion by 2016, according to the Information Technology & Innovation Foundation.

A survey by the Cloud Security Alliance, an industry group, found that 10 percent of its non-U.S. members have canceled contracts with U.S.-based cloud providers since May. Fifty-six percent said they'd be less likely to use one.

“People aren't going to trust the U.S. and U.S. companies as much,” said Jason Healey, director of the Cyber Statecraft Initiative at the Atlantic Council, a Washington-based policy group. “You're going to see national boundaries begin in cyberspace.”

Internet Regulation

For years, the U.S. has lobbied against such an approach, advocated by countries including China and Russia. In 2011, they submitted a proposed “Internet code of conduct” to the United Nations. The U.S. has pushed back, “trying hard to get up-and-coming countries like Brazil to trust us, not the Chinese, about how the Internet should look,” Healey said.

A top-down intergovernmental approach “would hamper the pace of innovation and hamper global economic development, and it could lead to unprecedented control over what people say and do online,” Daniel A. Sepulveda, the U.S. State Department's coordinator for international communications and information policy, said in a Nov. 6 phone briefing.

Today, a UN panel adopted a resolution sponsored by Brazil and Germany expressing concern over the “negative impact” of Internet surveillance. The 193-member General Assembly will vote next month on the document, which calls for a report by next year on privacy protections “in the context of domestic and extraterritorial surveillance and/or interception of digital communications and collection of personal data.”

`Political Message'

The move sends a “political message” that “the right to privacy has to be protected” even though the resolution isn't legally binding, Peter Wittig, Germany's ambassador, told reporters after the resolution's adoption.

Since Snowden's disclosures revealed that the NSA was monitoring exchanges between Rousseff and her top aides, the Brazilian president has led an effort to establish Internet protections.

Brazil is considering legislation that would require companies such as Mountain View, California-based Google to use local data centers or equipment developed by the government. A preference for non-U.S. providers could hurt companies such as Sunnyvale, California-based Juniper Networks Inc. (JNPR), which accounted for 10 percent of Brazil's router revenue in the first half of the year, or Cisco, which holds 56 percent.

German E-Mail

In Germany, Bonn-based Deutsche Telekom AG (DTR) is part of an alliance of companies promoting a system to keep German e-mail and Web searches within the country.

“The private sector is very worried about this because it messes with what might be most economic way to route message flows and traffic,” said Gene Kimmelman, project director for human rights and Internet policy at the New America Foundation, a Washington policy group. “If you're forced to have equipment in a certain country, by law, it might add significant expense to an operation.”

European Union legislators set to negotiate a trade agreement with the U.S. want to include strict rules for American companies handling EU citizens' data and fine them heavily for violations.

Some of the anger over the NSA is disingenuous, given that there's “a substantial awareness that surveillance goes on” in many countries, Kimmelman said.

Even so, Google's Salgado said international reaction to the NSA's surveillance risks changing the nature of the Internet.

He said proposals being advanced could lead to the “creation of a splinter net, broken up into smaller national regional pieces with barriers around it to replace the global Internet that we know today.”

from BBC News, 2013-Aug-18:

Snowden case: Brazil 'concerned' after UK detention

Brazil says the detention under British terror laws of one of its citizens at London's Heathrow airport caused "grave concern" and was "unjustified".

David Miranda, the partner of Guardian journalist Glenn Greenwald who published documents leaked by Edward Snowden, was held at Heathrow for nine hours on his way to Rio de Janeiro.

He reportedly had his mobile phone, laptop, DVDs and other items seized.

Mr Miranda was later released by British authorities.

Mr Greenwald called his partner's detention an "intimidation" and a "profound attack on press freedoms".

Under the Terrorism Act 2000, UK police can hold someone at an airport for up to nine hours - but the power must be used appropriately and proportionately and is subject to independent scrutiny.

Amnesty International says the incident shows the law can be abused for what it described as "petty and vindictive reasons".

'Serious threat'

"At 08:05 on Sunday 18 August 2013 a 28-year-old man was detained at Heathrow Airport under Schedule 7 of the Terrorism Act 2000. He was not arrested. He was subsequently released at 17:00," said a statement issued by the Metropolitan Police.

"To detain my partner for a full nine hours while denying him a lawyer, and then seize large amounts of his possessions, is clearly intended to send a message of intimidation to those of us who have been reporting on the NSA [United States National Security Agency] and GCHQ [Government Communications Headquarters]," he wrote in The Guardian.

Mr Greenwald said the British authorities' actions were a "serious threat to journalists everywhere".

The Brazilian government issued an official statement soon after the release of David Miranda. Glenn Greenwald, US journalist Mr Greenwald called his partner's detention a "serious threat to journalists"

The foreign ministry document says there was no justification for detaining an "individual against whom there are no charges that can legitimate the use of that [anti-terror] legislation".

It also says Brazil expects incidents "such as the one that happened to the Brazilian citizen today" not to be repeated.

Mr Miranda was flying back from the German capital, Berlin, to Rio de Janeiro, where he lives with Mr Greenwald, when he was detained in transit through Heathrow.

In Germany, he had met US film-maker Laura Poitras, who has also been working on the Snowden files with Greenwald and the Guardian. according to the newspaper.

Following his detention at Heathrow, Brazilian government officials and Guardian lawyers were called to the airport, The Guardian says.

The NSA has broken privacy rules and overstepped its legal authority thousands of times in the past two years, according to documents leaked by Edward Snowden.

The incidents resulted in the unauthorised electronic surveillance of US citizens, it is alleged.

Mr Snowden, a former NSA contractor, has leaked top secret documents to the US and British media.

He has been given asylum in Russia.

from CNN, 2013-Nov-29, by Shawn Nottingham and Mariano Castillo:

U.S. man in hot water in Dubai over parody video

It was intended as a piece of comedy, but it's turned into a drama.

A young American living in the United Arab Emirates has been imprisoned since April, his family says, for posting what was intended to be a funny video on the Internet.

Now, the family of Shezanne "Shez" Cassim wants to bring attention to his case ahead of a hearing December 16.

The video in question is a 19-minute short that pokes fun at a clique of Dubai teens who are influenced by hip-hop culture. In the 1990s, the label "Satwa G" was coined for a group of suburban teens who were known to talk tougher than they really were.

The video depicts a look at a "combat school" in the suburb of Satwa, where these "gangsters" are trained. The training includes how to throw sandals at targets, using clothing accessories as whips, and how to call on the phone for backup.

"It's like someone in the U.S. making a parody video of a Brooklyn hipster and getting thrown in jail for it and being held in jail for months without bail," Cassim's brother, Shervon Cassim, told CNN affiliate KARE. "That's what's going on here."

Cassim's family says Shez, 29, has been charged with endangering national security, but they've not been told what about the video endangered security.

UAE authorities did not respond to CNN requests for details about what charges Cassim may be facing and why.

"It's just a straightforward silly comedy video. And he's being treated like some sort of dangerous criminal, high security criminal that they need to keep under maximum security conditions," Shervon Cassim told KARE about his brother.

Shez Cassim has lost a lot of weight, but is otherwise in good physical condition, his brother told CNN.

Cassim, from Woodbury, Minnesota, moved to Dubai in 2006 after graduating college to work for PricewaterhouseCoopers.

He and some friends made and posted the video online in 2012. He was arrested in April 2013.

According to the family, Cassim and eight friends have been charged under a cybercrimes law for endangering public order. This law, the family says, wasn't passed until after the video had been released.

Two attempts by Cassim's lawyers to get him released on bail have been rejected.

The U.S. State Department is providing consular services to Cassim, a department official said, and has attended all his court hearings.

"The U.S. Embassy and Consulate General have engaged with UAE counterparts to urge a fair and expedient trial and judgment," the official said.

The Satwa G's, the family said in a statement, were known as wanna-be gangsters, and that's how Cassim portrayed them.

"These 'gangstas' were known for their decidedly mild behavior and were seen as the total opposite of actual criminals," the statement said. "The fictional training depicted in the video teaches techniques that include the best way to throw a sandal at a newspaper (target) and, ultimately, how to use the mobile phone when in trouble."

At the last hearing, the judge in the case asked for an Arabic translation of the video, giving the family some hope that the authorities will realize that it was a parody.

"I just want my son home for Christmas," said Cassim's mother, Jean Cassim, in a statement. "He's a good young man with a great career and has never been in trouble. Now he's being held for no reason. I've been praying, going to mass and lighting candles, and that's what I'm going to keep doing."

An average of about 2,500 Americans are jailed abroad every year, and about a third of those arrests are related to illegal drugs, the U.S. State Department says. "In 2010 alone, consular officers conducted more than 9,500 prison visits, and assisted more than 3,500 Americans who were arrested abroad," the State Department's website says.

U.S. travelers in foreign countries are subject to the laws of those countries, and there's a limit to how much help they can get from the U.S. Embassy or Consulate there.

U.S. diplomatic corps officials "cannot represent you in legal proceedings or pay your legal fees or other expenses. But they can perform many vital services such as providing a list of attorneys, assisting in contacting your family, helping your family to send money, and monitoring your health and welfare," the State Department says.

from the Washington Examiner, 2013-Aug-9, by Paul Bedard:

IRS agent: Tax agency is still targeting Tea Party groups

In a remarkable admission that is likely to rock the Internal Revenue Service again, testimony released Thursday by House Ways and Means Committee Chairman Dave Camp reveals that an agent involved in reviewing tax exempt applications from conservative groups told a committee investigator that the agency is still targeting Tea Party groups, three months after the IRS scandal erupted.

In closed door testimony before the House Ways & Means Committee, the unidentified IRS agent said requests for special tax status from Tea Party groups is being forced into a special "secondary screening" because the agency has yet to come up with new guidance on how to judge the tax status of the groups.

In a redacted transcript from the committee provided to Secrets, a Ways & Means investigator asked: "If you saw -- I am asking this currently, if today if a Tea Party case, a group -- a case from a Tea Party group came in to your desk, you reviewed the file and there was no evidence of political activity, would you potentially approve that case? Is that something you would do?"

The agent said, "At this point I would send it to secondary screening, political advocacy."

The committee staffer then said, "So you would treat a Tea Party group as a political advocacy case even if there was no evidence of political activity on the application. Is that right?" The agent admitted, "Based on my current manager's direction, uh-huh."

Camp called the renewed targeting of Tea Party groups "outrageous."

Added a committee aide, "In plain English, the IRS is still targeting Tea Party cases."

During 2010-2012 period when the anti-Obama Tea Party groups faced special scrutiny from the president's IRS, agents used a "be on the lookout," or BOLO, list which said groups with words like "Tea Party" in their title should face special, secondary screening for political activities that might hamper their special tax status.

When the scandal erupted after a Treasury Department inspector general revealed the improper political scrutiny, the acting head of the IRS, Danny Werfel, said the BOLO list had been suspended. That was six weeks ago.

But because there is nothing in its place, agents apparently either don't know how to handle Tea Party tax exempt applications, or are too scared to make a decision.

Asked by the committee how it handles Tea Party applications, the agent said, "If a political advocacy case came in today, I would give it -- or talk about it to my manager because right now we really don't have any direction or we haven't had any for the last month and a half."

Camp, the Michigan Republican, told Secrets, "It is outrageous that IRS management continues to target Tea Party cases without any justification. The harassment, abuse and delays these Americans have faced over the last few years has been unwarranted, unprovoked and, at times, possibly illegal. The fact that the IRS still continues to treat the Tea Party differently and subject them to additional targeting is outrageous and it must stop immediately."

In response, the IRS reiterated Werfel's pledge to not target groups because of political labels. "The IRS has taken decisive action to eliminate the use of inappropriate political labels in the screening of 501(c)(4) applications. We look forward to seeing the full transcript to gain a fuller understanding of the context of the interview," they said early Friday.

Werfel, called in to fix the scandal, directed the IRS to eliminate the use of BOLO lists. The statement said that "IRS policy is now clear that screening is based on activity, not words in a name. The new steps and current policies...specifically spells out that political campaign intervention will be reviewed without regard to specific labels. The IRS will not tolerate any deviation from this."

In an IRS review, the plan was that after the BOLO lists were removed, political labels would be ignored by the "Determinations Unit" as they screened for information for those seeking tax exempt status.

-----

Below is the Ways & Means Committee transcript of the IRS official.

Wednesday, August 1, 2013

Committee: Today, currently, how do you analyze advocacy cases. If, for example, Tea Party of Arkansas came in today, how would you handle it?

IRS agent: Well, the BOLO list doesn't exist anymore.

Committee: Sure.

IRS: If a political advocacy case came in today, I would give it -- or talk about it to my manager because right now we really don't have any direction or we haven't had any for the last month and a half.

------

Committee: If you saw -- I am asking this currently, if today if a Tea Party case, a group -- a case from a Tea Party group came in to your desk, you reviewed the file and there was no evidence of political activity, would you potentially approve that case? Is that something you would do?

IRS agent: At this point I would send it to secondary screening, political advocacy.

Committee: So you would treat a Tea Party group as a political advocacy case even if there was no evidence of political activity on the application. Is that right?

IRS agent: Based on my current manager's direction, uh-huh.

Paul Bedard, The Washington Examiner's "Washington Secrets" columnist, can be contacted at pbedard@washingtonexaminer.com.

from the Wall Street Journal, 2013-Jul-11, printed 2013-Jul-13, p.A11, by Kimberley A. Strassel:

Another IRS Scandal Waiting to Happen
Federal Elections Commissioner Donald McGahn wants to rein in the bureaucracy of this sensitive agency. The political left is furious.

The Obama administration claims it wants to ensure that the rank political abuse perpetrated by the Internal Revenue Service is never repeated. Ask Donald McGahn how that's going.

Mr. McGahn is a Republican appointee to the Federal Election Commission, an agency with every bit as much potential for partisan meddling as the IRS. Due to leave the agency soon, Mr. McGahn's parting gift is a campaign to rein in an out-of-control FEC bureaucracy. But the left is fighting that oversight and is determined to keep power in the hands of unaccountable staff.

The FEC was created in the wake of Watergate, in part to remove primary power over political actors from the Justice Department. It sports an equal number of Democratic and Republican commissioners, so that neither side can easily impose a partisan agenda. This means a lot of deadlocks, a situation that infuriates the left, which prefers a fire-and-brimstone regulator.

It also frustrates the FEC's staff, which has responded by going around the commissioners. The Federal Election Campaign Act (FECA), for instance, makes it clear that staff may not commence investigations until a bipartisan majority (four members) of the commission votes that there is a "reason to believe" a violation has occurred. In theory, this provision should guard against IRS-like witch hunts.

Except that over the years staff have come to ignore the law, and routinely initiate their own inquiries—often on little more than accusations they find on blogs or Facebook . For a sense of how these investigations can go off the rails, consider that Lois Lerner—before serving as the center of today's IRS scandal—was the senior enforcement officer at the FEC. A Christian Coalition lawyer has testified that during a (sanctioned) FEC investigation in the 1990s—in addition to generating endless subpoenas, depositions and document requests, Ms. Lerner's staff demanded to know what Coalition members discussed at their prayer meetings and what churches they belonged to. Once staff gets rolling, there is little to stop them.

More troubling to some FEC commissioners has been the staff's unsanctioned and growing ties to the Obama Justice Department. In September 2011, Tony Herman was named FEC general counsel. Mr. Herman in early 2012 brought in Dan Petalas, a Justice prosecutor, as head of the agency's enforcement section. FECA is clear that a bipartisan majority of commissioners must vote to report unlawful conduct to law enforcement. Yet FEC staff have increasingly been sending agency content to Justice without informing the commission.

For instance, when a complaint is filed with the FEC against a political actor, the general counsel is required to write a report for the commissioners on whether there is a "reason to believe" the actor committed a violation. This report is confidential and never made public until a case is closed. Yet FEC staffers have sent these reports to Justice, in one case before the report was considered by the commissioners.

In a June memo, Mr. Herman defended staff supremacy with the astonishing argument that big decisions are best made by "non-partisan, career leadership." (No joke.) That way, the commission is shielded from "claims that it is deciding whether to assist DOJ criminal prosecutions" on the basis of "political considerations." Better, apparently, to keep the public completely in the dark.

These ties are disturbing, since the Obama campaign pioneered the tactic of demanding that Justice pursue criminal investigations of its political opponents as a means of intimidation. The FEC's info-funneling to Obama Justice raises the obvious question of whether Obama Justice wasn't in turn influencing FEC reports. (It also raises another question: If Justice had this kind of pipeline to the FEC, did it have one to the IRS?)

These questions are why election law requires bipartisan diligence over investigations and information sharing. Mr. McGahn is attempting to right the ship by getting the commission to adopt a new enforcement manual that would require uniform procedures. Yet FEC Chairman Ellen Weintraub has been uncharacteristically quiet on the issue, and liberal groups such as the Center for American Progress (via its Think Progress blog) have launched howling accusations that Mr. McGahn is trying to "block enforcement" and "weaken the agency." Some have suggested he's trying to ram through the change while the commission has a temporary 3-2 Republican majority.

In fact, Mr. McGahn hasn't forced this issue, because he's intent on getting all his colleagues to stand up for institutional responsibility. He's made clear he's not trying to end the relationship with the DOJ, or to stop investigations. As he told me this week, the only question is who will make the decisions: "The presidentially appointed, Senate-confirmed commissioners who answer to the public, or an unaccountable staff?"

The left wants the latter, since it provides more latitude to use the FEC to their political ends. This has worked to their benefit at agencies like the (currently illegitimate) National Labor Relations Board, where (Acting) General Counsel Lafe Solomon is single-handedly running U.S. labor policy, much to their liking.

But Americans, and the FEC commissioners, need only recall our recent experience of letting federal employees meddle in politics. Mr. McGahn deserves great credit for trying to avoid the potential for another IRS scandal. Let's see if the Obama team is just as serious.

from the Guardian, 2013-Jun-17, by Jeff Jarvis:

I fear the chilling effect of NSA surveillance on the open internet
Snowden's NSA leak revelations are changing people's assumptions about online privacy, killing trust in web freedom

I fear the collateral damage the NSA's spying via technology will do to that technology. The essential problem is not the internet or internet companies or even the spies. The real problem is the law and what it does not prevent the American government from doing with technology, and how it does not protect the principles upon which this nation was founded.

The damage to the net and its freedoms will take many forms: users may come to distrust the net for communication, sharing, and storage because they now fear – with cause – that the government will be spying on them, whether or not they are the object of that surveillance. International users – properly concerned that they are afforded even less protection than Americans – may ditch American platforms. The European Union and other national governments, which already were threatening laws targeting US technology companies, will work harder to keep their citizens' data away from the US. Technologists may find it necessary to build in so many protections, so much encryption and caution, that the openness that is a key value of the net becomes lost.

If we trust the net less, will we use it less? Will it become less of an engine for innovation and economic development? Will it be a diminished tool for speech and assembly among citizens?

If governments use this event as an excuse to exercise more oversight and control over the net, will that not then, in turn, reduce citizens' trust in the net and their freedom using it? Governments present themselves as the protector of our privacy, but as the NSA story demonstrates, governments present the greatest threat to our privacy as they have the means both to surveil us and to use our information against us.

And note well that governments' relationship with the net is necessarily influenced by the net's disruptive force on government: witness the internet's use in organizing protests against governments in Turkey, Brazil, Egypt, Tunisia, Iran, and more nations by the day. Isn't a weakened, controlled, distrusted net in governments' interests?

So far, much of the negative coverage and emotion in this story have centered on the technology companies alleged by Edward Snowden's leaked PowerPoint slides to have cooperated with the NSA. The Washington Post has yet to correct its contention that the NSA and FBI are "tapping directly" into the servers of internet companies, though that simplistic characterization has been soundly denied by Google, Facebook, and others. The Associated Press has given a more nuanced and sensible interpretation of the slides, explaining that some Prism data is the product of warrants served on those companies, producing data from their servers that is delivered by file transfer, or disc in Google's case, and some is the result of apparent wholesale eavesdropping on internet fibre.

That tapping into the net's full flow of communications is far more troubling even than the US government's secret warrants. For a savvy description of how that can occur, listen to security expert Steve Gibson's podcast. I've yet to hear internet bandwidth providers (Level3, Verizon, et al) questioned as internet service companies have been about whether and how they are cooperating with the spies. That is a next phase of this story.

What the NSA is doing may be legal, made so by the Patriot Act. But even on Fox News, regular contributor Andrew Napolitano has questioned whether its actions and this law are constitutional. That is the key question Edward Snowden and company now put before us: what principles are being violated or upheld by the government's actions? That is the discussion we must have. I see these core principles at stake.

First, privacy: in the United States, first-class letters and parcels are protected from search and seizure except by warrant. That should be the case, but is not, for any private communication using any technology: other classes of mail, email, internet telephony, Twitter direct message, or means yet to be invented.

Second, the balance of powers: the NSA is overseen by a secret court and gagged legislators. Thus, save for Snowden's leaking, we the people are excluded from the information we need and the opportunity we deserve to keep our representatives and agents in check.

A third principle riding atop these is transparency: the notion that government should be transparent by default and secret by necessity (and there are necessary secrets). Today, government is secret by default and transparent by force, whether from whistleblowers and journalists. When government threatens to torture the whistleblowers and prosecute the journalists who share information with us, then that puts a chill on speech and a choke on the transparency citizens depend upon to assure their rights and monitor their governments.

The first two are principles enshrined in the US constitution: in the fourth amendment that guarantees freedom from unreasonable searches and seizures; and in the structure of American government itself. The third is a principle whose value I have learned from the net and the power it gives any citizen to speak publicly; to find, organize, or join a public; and ultimately, to choose what is public and what is not. The NSA's actions and the laws that enable them – as well as some occasionally overblown conjecture around this – threaten to diminish the power and freedom of the net.

I worry that the damage is done.

Jeff Jarvis is journalism professor at the City University of New York.

from National Review Online and VictorHanson.com, 2013-Jun-11, by Victor Davis Hanson:

Pick Your Scandal
Violating Americans' privacy while failing to identify the terrorists among us.

All can agree that the Obama administration is mired in myriads of scandals, but as yet no one can quite figure out what they all mean and where they will lead.

Benghazi differs from all the other scandals — and from both Watergate and Iran-Contra — because in this case administration lapses led to the deaths of four Americans. Nine months later, the administration's problems of damage control remain fourfold: (a) there was ample warning that American personnel were in danger in Libya, and yet requests for increased security were denied; (b) during the actual attack, the American tradition of sending in relief forces on the chance that fellow Americans could be saved was abrogated; (c) the president and his top officials knowingly advanced a narrative of a culpable filmmaker that they knew was not accurate; (d) a through c are best explained as resulting not from honest human error or the fog of war, but from a methodical effort to assure the public in the weeks before the election that “lead from behind” in Libya had been a successful venture and that the death of Osama bin Laden had made al-Qaeda–inspired terrorism rare. All other concerns became secondary, including the safety of Americans in Libya.

Until someone proves that the administration was not wrong in failing to beef up our posts, was not wrong in not ordering immediate succor, was not wrong in blaming the violence on a filmmaker, and was not wrong in covering up the truth by promoting a demonstrably false narrative, the scandal will not go away.

Other questions remained unanswered. What role was the “consulate” actually playing? Who gave the stand-down order despite the calls for help? Who dreamed up the filmmaker-as-guilty-party yarn? Did General David Petraeus's post-Benghazi testimony square with the CIA talking points, and were any of these events related to his post-election resignation? And does Jay Carney face any consequences for blatantly lying to the press corps when he asserted that the administration had made a single adjustment to its Benghazi talking points — when there were, in fact, twelve substantive revised drafts?

In the AP and Fox News scandals, it cannot have been leaks per se that prompted the administration to go after journalists, given that the administration itself had leaked key classified information about the Stuxnet virus, the drone program, the bin Laden hit, and the Yemeni double agent. The suspect reporters were not so much enemies as rivals. They were monitored not because the administration wanted all leaks stopped so as to ensure that national security was not endangered, but because it wished to retain a monopoly on them: In-house favorable leaks were okay; unauthorized ones by others were grounds for surveillance. Note in all these scandals that when the Obama administration begins demonizing an opponent — Fox News since 2009; the Tea Party in 2010 — then usually the government finds a way unlawfully to go after it. For now, the public wonders how does Eric Holder explain his conflicting testimony to Congress, and will those in the administration who leaked favorable classified information to pet reporters be prosecuted? Will granting exclusive access to the bin Laden trove to a reporter like David Ignatius, who could be expected to present a narrative laudatory of the administration, have any repercussions?

The AP/Fox scandal affects not only the reporters involved but also the way the news is disseminated, and the IRS mess potentially affects every American. When the IRS comes calling, Americans cannot employ the sort of obfuscation and dissimulation that the IRS itself now employs. Try taking the Fifth Amendment with an IRS auditor or claiming that a suspicious visit to a business associate was due to an Easter-egg roll, and then see how well your audit goes. Because the system of voluntary tax compliance collapses without honesty and nonpartisanship, our entire tax-collection apparatus is now suspect. Every prominent conservative from now on, every tea-party-like nonprofit organization, every Republican political donor will assume, rightly or wrongly, that the next IRSletter in the mail is not legitimate, but prompted by Obama-era politics.

I don't see how the reputation of the IRS can quite recover, especially given reports of its repugnant waste of money on entertainment and frivolity, at a time of sequester belt-tightening (e.g., why do travelers suffer airline delays supposedly due to thinned-out air-traffic controllers, while IRS agents play-act Captain Kirk and Mr. Spock in a $60,000 parody video?), coupled with the fact that 47 percent of the public pays no federal income tax at all. Add it all up, and there is now a historic opportunity for principled reformers to do away with the IRS as we know it, and to rebrand it as a collection agency for a flat federal income tax. Will a new gang of eight address “comprehensive tax-collection reform”?

So far, we know that the administration's story that IRS malfeasance was confined to a single regional office cannot be true. If it turns out that Washington IRSofficials were communicating with the Obama administration about inordinate scrutiny of political opponents, then the scandal will reach Nixonian proportions.

The problem with the NSA monitoring is not just Obama's hypocrisy of once decrying elements of the Patriot Act only to embrace them, or indeed expand upon them. By now, everyone knows that what Obama demagogued in 2008 was what he adopted in 2009. Nor is the problem that the U.S. does not have a need to monitor the communications of potential terrorists who plan attacks through the Internet, e-mail, and cell phones. Rather, the dilemma for the Obama administration is that the apparently vastly expanded NSA surveillance came at a time when, in high-profile terrorist cases — the Tsarnaev bombing, Major Hasan's murder spree — U.S. officials did not use the intelligence in their possession to preempt terrorist acts. Fairly or not, there is the impression that a James Rosen of Fox News or the tea-party affiliates were more likely to earn unlawful federal attention than was a possible terrorist. In the present climate, the NSA will be presumed guilty of something until proven innocent.

And of course the NSA disclosures do not appear in a vacuum, but amid a multitude of other scandals in which the administration's initial explanations have proven deceptive. In other words, if even a few cases emerge in which those who by no stretch of the imagination could be suspected of terrorism were monitored, then the NSA disclosures will prove by far the most damaging of all the scandals.

Finally, the common denominator in these transgressions is that they all predated the 2012 election, were kept secret from the public, and emerged only once Barack Obama was safely elected. In that regard, they were successful operations that ensured that the voters went to the polls with the impression that al-Qaeda–inspired terror was rare, Libya was secure, the Tea Party had deflated and disappeared, and their unheralded president was, as the good leaks showed, in the shadows successfully fighting terrorists by drone, computer, SEAL teams, and double agents. The later whistle-blowers — the State Department's Gregory Hicks, the NSA's Edward Snowden, and Lois Lerner of the IRS in her psychodramatic response to the set-up questioner – were supposed Obama supporters and came forward only after the election. Note also the clear administration lying: Susan Rice reiterating the false story about a culpable filmmaker and a spontaneous demonstration; Jay Carney sticking to his lie about a single change in administration talking points; Eric Holder misleading Congress by assuring the House Judiciary Committee that he would not do what he in fact did in the James Rosen case; James Clapper insisting to Congress that the NSA collects data only under strict court supervision.

Paranoia over reelection, in classic Nixon style, is the common key that unlocks much of the mystery surrounding the administration's reckless, unethical, and often unlawful behavior.

NRO contributor Victor Davis Hanson is a senior fellow at the Hoover Institution.

from the Associated Press via USA Today, 2013-Sep-11:

Fla. pastor arrested as he prepped to burn Qurans

MULBERRY, Florida (AP) — Law enforcement arrested a Florida pastor Wednesday as he drove to a park to light nearly 3,000 Qurans on fire to protest the 2001 terrorist attacks.

Sheriff's deputies arrested Pastor Terry Jones, 61, and his associate pastor, Marvin Sapp Jr., 34, on felony charges as he drove a pickup truck towing a large barbecue-style grill filled with Qurans soaked in kerosene. He had said he was heading to a nearby park to burn 2,998 Qurans — one for every victim of the Sept. 11, 2001, terrorist attacks. Sheriff's officials said they would hold a news conference later Wednesday to discuss specific charges.

Mulberry's mayor, along with area elected officials, a sheriff's deputy and several Polk County residents have talked about the need to express love and tolerance for all faiths on Sept. 11.

Jones is the pastor of a small evangelical Christian church. He first gained attention in 2010 when he planned to burn a Quran on 9/11, although he eventually called it off. His congregation did burn the Muslim holy book in March 2011 and last year he promoted an anti-Muslim film. All three incidents sparked violence in the Middle East and Afghanistan.

The most violent protest happened after the 2011 Quran burning as hundreds of protesters stormed a U.N. compound in Mazar-i-Sharif in northern Afghanistan, killing seven foreigners, including four Nepalese guards.

Jones has repeatedly ignored pleas from the U.S. military asking him not to stage his protests. Military officials say his actions put American and Western troops in Afghanistan and elsewhere in danger.

Mulberry is a town of about 3,000 between Orlando and Tampa and has no connection to Jones' church, which recently moved out of its Gainesville building.

An Egyptian court convicted Jones, along with seven Egyptian Coptic Christians in absentia, sentencing them to death on charges linked to the film. The ruling was seen as largely symbolic because Jones and the other defendants live outside of Egypt.

Just last week, a federal judge in Michigan issued a summary judgment in favor of Jones and his organization, Stand Up America Now, against the city of Dearborn for requiring Jones and his organization to sign a city-issued agreement in order to speak on public property in front of a Dearborn mosque in 2012.

Earlier Wednesday, about 75 people gathered In Mulberry for an interfaith prayer service to counter Jones' actions.

Mike Ghouse, who has organized a 9/11 prayer service in his home state of Texas for nine years, brought his event to Mulberry because of Jones' planned Quran burning. He initially had planned to hold the service in Texas but teamed with a group of Mulberry residents who had organized an anti-Jones Facebook page.

"Everyone has a right to believe what they believe," said Ghouse, adding that it was Jones' right as an American to express himself. Others said that while Jones was free to say or do whatever he wanted, the people of Mulberry didn't want the world to think that the residents condone or agree with Jones' views.

"We don't buy what Jones is selling," said Polk County resident Butch Rahman.

from PC Magazine, 2013-Nov-7, by Stephanie Mlot:

Google Ordered to Block Formula One Star's Orgy Pics

A French court on Wednesday ruled that Google must remove from its search results photos of a former Formula One racing chief participating in an orgy.

Max Mosley, one-time president of the International Automobile Federation, sued Google in 2011, requesting that the company automatically filter links to a 2008 British newspaper report that included photos and a video of Mosley participating in a Nazi-themed sex party.

Mosley argued that French law prohibits the taking or distribution of images of an individual in a private space without his or her consent. But Google argued that that reasoning limits free speech.

As part of this week's settlement, the tech giant must filter nine images of Mosley from its worldwide search results, and pay him €1 in compensation. Beginning in 2014, the company will also be fined €1,000 every time a salacious photo of Mosley is found in its search engine.

Google did not immediately respond to PCMag's request for comment, but told the New York Times that it plans to appeal the decision.

"The law does not support Mr. Mosley's demand for the construction of an unprecedented new Internet censorship tool," Google Associate General Counsel Daphne Keller said in a September statement. She pointed to repeated European court rulings that found filters to be "blunt instruments that jeopardize lawful expression and undermine users' fundamental right to access information."

A filter may not even solve Mosley's problem, Keller added, explaining that pages removed from search results remain live on the Web, accessible to users by other means, like following links on social networks or navigating to a specific address in a browser.

"It's a fair decision," Clara Zerbib, a Parisian lawyer who represented Mosley, told the Times. "This case isn't about censoring information, but about complying with French law."

There is no word on just how much of a trickle-down effect this week's French court ruling will have on the tech giant, but Keller argued in September that it will leave a mark.

"This is not just a case about Google, but the entire Internet industry," she said. "Any start-up could face the same daunting and expensive obligation to build new censorship tools — despite the harm to users' fundamental rights and the ineffectiveness of such measures."

In 2008, Mosley was awarded £60,000 ($96,000) in a successful suit against England's now-defunct News of the World, which published the photos.

from the Guardian, 2013-Jun-17, by Juli Zeh:

NSA surveillance: what Germany could teach the US
Data protection is to the communication age is what environmental protection was for the age of industrialisation. We must not leave it too late to act

At the end of the G8 meeting in Northern Ireland on Tuesday night, Barack Obama and Angela Merkel will hop on a plane bound for Berlin together. Merkel has already boasted that she will make their meeting an awkward one, promising to ask uncomfortable questions about the Prism affair. The image that comes to my mind is that of a pinscher yapping at a great dane, while the great dane just benignly gazes into the distance.

Of course, the pinscher has every reason to bark its lungs out. Surveillance of worldwide internet communications, as practised by the National Security Agency (NSA) through Prism, is the stuff of Orwellian nightmares. Any democratic system rests on the idea that its citizens can think and act freely – but no individual can act and think freely while being watched. The very fact of being watched means that we act differently. Unsupervised communication between individuals is an essential precondition for a functioning democracy.

There will always be people who dismiss complaints about state surveillance as hysteria. Since 11 September 2001 it has become increasingly easy to discourage those who care about their fundamental rights. Just insist that a new measure will aid the fight against terrorism, and that legitimises it. Particularly in Britain and the US, many people seem surprisingly blase about the idea of the state watching over them.

I despair at such indifference. Germany endured two totalitarian systems in the 20th century. Not just Nazism, but the GDR too, built a dictatorship on the surveillance, registration and selection of individuals. People became objects who were divided into nebulous categories. The fight against terror requires a similar division of civil society according to sex, age, ethnicity, religion and politics. The problem with such machine-led screening methods is not only that it is very hard for people to escape them once they get caught, but that they no longer presume innocence – everyone is now a potential suspect.

Because of this, Germans have traditionally been more sensitive to assaults on their private sphere. There are fewer CCTV cameras, and Google's Street View project was met with widespread resistance in 2010: click yourself through a map of Germany and you'll still find large areas still pixelated. A few weeks ago, Germany published its first post-reunification census – the previous ones in the 1980s were widely boycotted on ethical grounds. But that Germany hasn't reached the level of the US is not thanks to politicians' sense of history, but to the so-called "basic law" that anchors our constitution and the federal constitutional court that protects it. One "security law" after the next has been proposed and then rejected by the court for infringing on civil rights.

But being a little more sensible on civil rights issues than other European states will no longer do. On the contrary: with its unique historical background, Germany should be leading the charge against any form of Big Brother system.

Having been raised in East Germany, Merkel especially should know what is at stake here. She experienced in her youth how long-term surveillance can demoralise the human spirit and distort the character of a society.Explaining that to her American counterpart would be a start for Merkel. She should explain to him that there is a lesson for the rest of the world in Germany's history. In the 21st century, modern technology will take the possibility for total surveillance to a completely new level. Compared with what Prism allows you to do, Stasi activities look like child's play: the size and speed of the data flow threatens to overwhelm the lawmakers who are meant to control it.

My fear is that Merkel's protest will be hard to take seriously, and that Obama will notice this. Since 9/11, Merkel's government has also passed laws that allow the state to virtually x-ray its citizens. Der Spiegel recently reported that Germany's equivalent of the NSA, the BND, is planning to expand its web monitoring programme over the next five years.

Ultimately, Merkel's emphatic concern about the Prism affair stems from the fact there will a federal election in Germany in September. It's a convenient chance to demonstrate a bit of political spine. Once the pinscher's done with the yapping, the great dane will give her a kindly smile and assure her that everything is happening within the law. After that, the excitement about Prism will soon evaporate, and they in America and we in Europe will continue collecting data.

Data protection is to the communication age what environmental protection was for the age of industrialisation. Back then, we lost decades because we didn't realise how severe the damage we were causing really was. Let's try not to make the same mistake twice.

Juli Zeh is an award-winning German novelist. Her novel Dark Matter (Harvill Secker) is longlisted for the 2011 Independent Foreign Fiction Prize

• This article was amended on Tuesday 18 June. Angela Merkel was born in Hamburg, not East Germany, as the seventh paragraph originally stated. She was raised in East Germany.

from McClatchy, 2013-Jul-9, updated 2013-Jul-15, by Jonathan S. Landay and Marisa Taylor:

Experts: Obama's plan to predict future leakers unproven, unlikely to work

WASHINGTON — In an initiative aimed at rooting out future leakers and other security violators, President Barack Obama has ordered federal employees to report suspicious actions of their colleagues based on behavioral profiling techniques that are not scientifically proven to work, according to experts and government documents.

The techniques are a key pillar of the Insider Threat Program, an unprecedented government-wide crackdown under which millions of federal bureaucrats and contractors must watch out for “high-risk persons or behaviors” among co-workers. Those who fail to report them could face penalties, including criminal charges.

Obama mandated the program in an October 2011 executive order after Army Pfc. Bradley Manning downloaded hundreds of thousands of documents from a classified computer network and gave them to WikiLeaks, the anti-government secrecy group. The order covers virtually every federal department and agency, including the Peace Corps, the Department of Education and others not directly involved in national security.

Under the program, which is being implemented with little public attention, security investigations can be launched when government employees showing “indicators of insider threat behavior” are reported by co-workers, according to previously undisclosed administration documents obtained by McClatchy. Investigations also can be triggered when “suspicious user behavior” is detected by computer network monitoring and reported to “insider threat personnel.”

Federal employees and contractors are asked to pay particular attention to the lifestyles, attitudes and behaviors – like financial troubles, odd working hours or unexplained travel – of co-workers as a way to predict whether they might do “harm to the United States.” Managers of special insider threat offices will have “regular, timely, and, if possible, electronic, access” to employees’ personnel, payroll, disciplinary and “personal contact” files, as well as records of their use of classified and unclassified computer networks, polygraph results, travel reports and financial disclosure forms.

Over the years, numerous studies of public and private workers who’ve been caught spying, leaking classified information, stealing corporate secrets or engaging in sabotage have identified psychological profiles that could offer clues to possible threats. Administration officials want government workers trained to look for such indicators and report them so the next violation can be stopped before it happens.

“In past espionage cases, we find people saw things that may have helped identify a spy, but never reported it,” said Gene Barlow, a spokesman for the Office of the National Counterintelligence Executive, which oversees government efforts to detect threats like spies and computer hackers and is helping implement the Insider Threat Program. “That is why the awareness effort of the program is to teach people not only what types of activity to report, but how to report it and why it is so important to report it.”

But even the government’s top scientific advisers have questioned these techniques. Those experts say that trying to predict future acts through behavioral monitoring is unproven and could result in illegal ethnic and racial profiling and privacy violations.

“There is no consensus in the relevant scientific community nor on the committee regarding whether any behavioral surveillance or physiological monitoring techniques are ready for use at all,” concluded a 2008 National Research Council report on detecting terrorists.

“Doing something similar about predicting future leakers seems even more speculative,” Stephen Fienberg, a professor of statistics and social science at Carnegie Mellon University in Pittsburgh and a member of the committee that wrote the report, told McClatchy.

The emphasis on individual lifestyles, attitudes and behaviors comes at a time when growing numbers of Americans must submit to extensive background checks, polygraph tests and security investigations to be hired or to keep government or federal contracting jobs. The U.S. government is one of the world’s largest employers, overseeing an ever-expanding ocean of information.

While the Insider Threat Program mandates that the nearly 5 million federal workers and contractors with clearances undergo training in recognizing suspicious behavior indicators, it allows individual departments and agencies to extend the requirement to their entire workforces, something the Army already has done.

Training should address “current and potential threats in the work and personal environment” and focus on “the importance of detecting potential insider threats by cleared employees and reporting suspected activity to insider threat personnel and other designated officials,” says one of the documents obtained by McClatchy.

The White House, the Justice Department, the Peace Corps and the departments of Health and Human Services, Homeland Security and Education refused to answer questions about the program’s implementation. Instead, they issued virtually identical email statements directing inquiries to the Office of the Director of National Intelligence, declined to comment or didn’t respond.

Caitlin Hayden, a spokeswoman for the White House National Security Council, said in her statement that the Insider Threat Program includes extra safeguards for “civil rights, civil liberties and privacy,” but she didn’t elaborate. Manning’s leaks to WikiLeaks, she added, showed that at the time protections of classified materials were “inadequate and put our nation’s security at risk.”

Reply from the National Security Council

Even so, the new effort failed to prevent former National Security Agency contractor Edward Snowden from taking top-secret documents detailing the agency’s domestic and international communications monitoring programs and leaking them to The Guardian and The Washington Post newspapers.

The initiative goes beyond classified information leaks. It includes as insider threats “damage to the United States through espionage, terrorism, unauthorized disclosure of national security information or through the loss or degradation of departmental resources or capabilities,” according to a document setting “Minimum Standards for Executive Branch Insider Threat Programs.”

McClatchy obtained a copy of the document, which was produced by an Insider Threat Task Force that was set up under Obama’s order and is headed by Director of National Intelligence James Clapper and Attorney General Eric Holder. McClatchy also obtained the group’s final policy guidance. The White House, the Justice Department and the Office of the Director of National Intelligence declined requests for both documents, neither of which is classified.

Although agencies and departments are still setting up their programs, some employees already are being urged to watch co-workers for “indicators” that include stress, divorce and financial problems.

When asked about the ineffectiveness of behavior profiling, Barlow said the policy “does not mandate” that employees report behavior indicators.

“It simply educates employees about basic activities or behavior that might suggest a person is up to improper activity,” he said.

“These do not require special talents. If you see someone reading classified documents they should not be reading, especially if this happens multiple times and the person appears nervous that you saw him, that is activity that is suspicious and should be reported,” Barlow said. “The insider threat team then looks at the surrounding facts and draws the conclusions about the activity.”

Departments and agencies, however, are given leeway to go beyond the White House’s basic requirements, prompting the Defense Department in its strategy to mandate that workers with clearances “must recognize the potential harm caused by unauthorized disclosures and be aware of the penalties they could face.” It equates unauthorized disclosures of classified information to “aiding the enemies of the United States.”

All departments and agencies involved in the program must closely track their employees’ online activities. The information gathered by monitoring, the administration documents say, “could be used against them in criminal, security, or administrative proceedings.” Experts who research such efforts say suspicious behaviors include accessing information that someone doesn’t need or isn’t authorized to see or downloading materials onto removable storage devices like thumb drives when such devices are restricted or prohibited.

“If you normally print 20 documents a week, well, what happens if the next week or the following week you have to print 50 documents or 100 documents? That could be at variance from your normal activity that could be identified and might be investigated,” said Randy Trzeciak, acting manager of the Computer Emergency Response Team Insider Threat Center at Carnegie Mellon University’s Software Engineering Institute.

“We’ve come up with patterns that we believe organizations might be able to consider when determining when someone might be progressing down the path to harm the organization,” said Trzeciak, whose organization has analyzed more than 800 cases and works with the government and private sector on cyber security.

But research and other programs that rely on profiling show it remains unproven, could make employees more resistant to reporting violations and might lead to spurious allegations.

The Pentagon, U.S. intelligence agencies and the Department of Homeland Security have spent tens of millions of dollars on an array of research projects. Yet after several decades, they still haven’t developed a list of behaviors they can use to definitively identify the tiny fraction of workers who might some day violate national security laws.

“We are back to the needle-in-a-haystack problem,” said Fienberg, the Carnegie Mellon professor.

“We have not found any silver bullets,” said Deanna Caputo, principal behavioral psychologist at MITRE Corp., a nonprofit company working on insider threat efforts for U.S. defense, intelligence and law enforcement agencies. “We don’t have actually any really good profiles or pictures of a bad guy, a good guy gone bad or even the bad guy walking in to do bad things from the very beginning.”

Different agencies and departments have different lists of behavior indicators. Most have adopted the traditional red flags for espionage. They include financial stress, disregard for security practices, unexplained foreign travel, unusual work hours and unexplained or sudden wealth.

But agencies and their consultants have added their own indicators.

For instance, an FBI insider threat detection guide warns private security personnel and managers to watch for “a desire to help the ‘underdog’ or a particular cause,” a “James Bond Wannabe” and a “divided loyalty: allegiance to another person or company or to a country besides the United States.”

A report by the Deloitte consulting firm identifies “several key trends that are making all organizations particularly susceptible to insider threat today.” These trends include an increasingly disgruntled, post-Great Recession workforce and the entry of younger, “Gen Y” employees who were “raised on the Internet” and are “highly involved in social networking.”

Report from Deloitte

Some government programs that have embraced behavioral indicators have been condemned as failures. Perhaps the most heavily criticized is the Transportation Security Administration’s Screening of Passengers by Observation Techniques, or SPOT, program.

The program, which has cost $878 million and employs 2,800 people, uses “behavior detection officers” to identify potential terrorists by scrutinizing airline passengers for signs of “stress, fear or deception.”

DHS’ inspector general excoriated the program, saying in a May 2013 report, “TSA cannot ensure that passengers at United States airports are screened objectively, show that the program is cost-effective or reasonably justify the program’s expansion.”

Interviews and internal complaints obtained by The New York Times quoted TSA officers as saying SPOT has led to ethnic and racial profiling by emphasizing certain profiles. They include Middle Easterners, Hispanics traveling to Miami and African-Americans wearing baseball caps backward.

Another problem with having employees report co-workers’ suspicious behaviors: They aren’t sure which ones represent security threats.

“Employees in the field are not averse to reporting genuine security infractions. In fact, under appropriate conditions they are quite willing to act as eyes and ears for the government,” said a 2005 study by the Pentagon’s Defense Personnel Security Research Center. “They are simply confused about precisely what is important enough to report. Many government workers anguish over reporting gray-area behaviors.”

Even so, the Pentagon is forging ahead with training Defense Department and contractor managers and security officials to set up insider threat offices, with one company emphasizing how its course is designed for novices.

“The Establishing an Insider Threat Program for Your Organization Course will take no more than 90 minutes to complete,” says the proposal.

Officials with the Army, the only government department contacted by McClatchy that agreed to discuss the issue, acknowledged that identifying potential insider threats is more complicated than relying on a list of behaviors.

Response from the Army

“What we really point out is if you’re in doubt, report, because that’s what the investigative personnel are there to do, is to get the bottom of ‘is this just noise or is this something that is really going on?’” said Larry Gillis, a senior Army counterintelligence and security official.

The Army implemented a tough program a year before Obama’s executive order after Maj. Nidal Hasan, a U.S.-born Muslim, allegedly killed 13 people in a 2009 rampage at Fort Hood, Texas. Hasan, who has not gone on trial, has said he was defending the Afghan Taliban.

Gillis said the Army didn’t want a program that would “get people to snitch on each other,” nor did it want to encourage stereotyping.

“We don’t have the luxury to make up reasons to throw soldiers out,” Gillis said. “It’s a big deal to remove a soldier from service over some minor issue. We don’t want to ruin a career over some false accusation.”

But some current and former U.S. officials and experts worry that Obama’s Insider Threat Program could lead to false or retaliatory accusations across the entire government, in part because security officials are granted access to information outside their usual purview.

These current and former U.S. officials and experts also ridiculed as overly zealous and simplistic the idea of using reports of suspicious behavior to predict potential insider threats. It takes years for professional spy-hunters to learn their craft, and relying on the observations of inexperienced people could lead to baseless and discriminatory investigations, they said.

“Anyone is an amateur looking at behavior here,” said Thomas Fingar, a former State Department intelligence chief who chaired the National Intelligence Council, which prepares top-secret intelligence analyses for the president, from 2005 to 2008.

Co-workers, Fingar said, should “be attentive” to colleagues’ personal problems in order to refer them to counseling, not to report them as potential security violators. “It’s simply because they are colleagues, fellow human beings,” he said.

Eric Feldman, a former inspector general of the National Reconnaissance Office, the super-secret agency that oversees U.S. spy satellites, expressed concern that relying on workers to report colleagues’ suspicious behaviors to security officials could create “a repressive kind of culture.”

“The answer to it is not to have a Stasi-like response,” said Feldman, referring to the feared secret police of communist East Germany. “You’ve removed that firewall between employees seeking help and the threat that any employee who seeks help could be immediately retaliated against by this insider threat office.”

CORRECTION: An earlier version of this story gave the wrong name and title for Deanna Caputo, the principal behavioral psychologist at MITRE Corp.

from the Wall Street Journal, 2013-May-23, printed 2013-May-24, p.A13, by Theodore J. Boutrous Jr.:

Theodore J. Boutrous Jr.: A Radical Departure on Press Freedom
By the Justice Department's logic, doing basic reporting is committing a crime.

The Justice Department has completely lost sight of the First Amendment. The situation looked grim when the public found out that the department had subpoenaed two months of the Associated Press's phone records for one leak investigation. The latest revelations—the secret tracking and search warrant for the personal email ofFox NewsWashington correspondent James Rosen—show a shocking insensitivity to freedom of the press that is premised on the radical theory that traditional news gathering violates federal criminal laws. On Thursday, NBC News reported that Attorney General Eric Holder had signed off on the warrant.

In June 2009, based on unnamed sources, Mr. Rosen reported that the CIA had learned from someone inside North Korea that Pyongyang planned to conduct nuclear tests in response to United Nations sanctions. In August 2010, the Justice Department indicted State Department security adviser Stephen Jin-Woo Kim for violating the Espionage Act of 1917 by leaking the information. (Mr. Kim pleaded not guilty.)

As the Washington Post first reported on Sunday, the prosecutors—unknown to Mr. Rosen or Fox News—built their case against Mr. Kim by using electronic security badge data to track Mr. Rosen's and Mr. Kim's movements in and out of the State Department and by scouring phone records showing communications between them. The prosecutors also persuaded a federal judge to issue a search warrant for Mr. Rosen's private Gmail account. Fox News is now reporting that they also appear to have tracked Mr. Rosen's parents' phone records, though the Justice Department denies this.

The FBI affidavit, submitted in May 2010 asking the court to issue a search warrant for Mr. Rosen's emails, emphasizes that Mr. Rosen cajoled Mr. Kim to disclose the classified information. He did this by "employing flattery and playing to Mr. Kim's vanity and ego," and by using signals and code names to ensure confidentiality. Remember Deep Throat and the red flag in the flowerpot? Flattering sources and using code are basic techniques reporters use to gather information that the government wants to keep secret. In the words of the Supreme Court in Times-Picayune Publishing Co. v. United States (1953), the press is tasked with "vigilantly scrutinizing" the government "as a potent check on arbitrary action or abuse."

Apparently none of this matters to the prosecutors. Instead, they tracked Mr. Rosen's movements like he was a terrorist and labeled his garden-variety, constitutionally protected reporting techniques a crime. The affidavit declares that there is "probable cause" that Mr. Rosen violated the Espionage Act "at the very least, either as an aider, abettor and/or co-conspirator." This stunning assertion was reiterated to Politico by an unnamed Justice Department spokesperson on Monday.

Search warrants involving journalists are exceedingly rare—and rightfully so. Such warrants, which allow immediate physical or electronic seizure of journalistic materials, pose a clear threat to the First Amendment. (Warrants are worse than subpoenas, since journalists can ordinarily object to and fight subpoenas in court before producing any materials or testifying.)

Congress was so concerned about the potential for abuse of search warrants that in 1980 it enacted the Privacy Protection Act "to limit searches for materials held by persons involved in First Amendment activities." The law provides strong protections for journalists against search warrants. In the case of Mr. Rosen, the government invoked one of the law's few exceptions by accusing him of "committing a crime." The "crime" was asking a government official questions about national security and then publishing the answers.

The Supreme Court, however, has repeatedly made clear that the First Amendment forbids the government from making it a crime for a reporter who lawfully obtains information of public concern to publish it—even if he knows his source may have committed a crime by leaking the information. As the court explained in Bartnicki v. Vopper (2001)—a case in which a radio station broadcast the tape of a cellphone conversation it knew had been illegally recorded and disclosed in violation of federal wiretapping laws—"a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern." To conclude otherwise, the court added, would encourage "timidity and self-censorship."

In Bartnicki, the justices rejected arguments for deeming journalistic activities "unlawful" and thus outside First Amendment protection. The federal appeals court in Washington, which will preside over any appeals in Mr. Kim's case, did the same in another wiretapping case, Boehner v. McDermott, in 2007. And the Supreme Court ruled in Smith v. Daily Mail Publishing Co. (1979) that the First Amendment prohibits punishing reporters who use "routine newsgathering techniques"—asking questions— aimed at causing law-enforcement officials to divulge information that criminal law purports to bar them from publishing.

No U.S. court has ever enforced the Espionage Act against a journalist. As its title makes clear, the statute targets officials who engage in espionage by disclosing government secrets to foreign governments or enemies. To stretch its amorphous language to apply to journalists would violate both the First Amendment and due process.

In short, the Justice Department knows better than to suggest that Mr. Rosen committed a crime. This claim was a pretext to get a search warrant and rummage through Mr. Rosen's emails without regard to constitutional and statutory restrictions and the department's own policy guidelines that govern the less invasive subpoena process.

This episode is part of a pattern. The Obama administration is prosecuting a record number of Espionage Act cases against alleged leakers, and along the way it is running roughshod over long-standing precedent and policies regarding journalists.

In the AP matter, the department took the subpoena route but ignored its own guidelines, which require compelling need and surgical precision in seeking information from journalists. It also ignored the requirement to give journalists advance notice to challenge subpoenas in court before records are turned over to prosecutors.

In another pending case, a federal district court in Virginia quashed a subpoena to New York Times reporter James Risen, but a Justice Department lawyer has argued on appeal that the First Amendment provided no protection because Mr. Risen was an "eyewitness to a crime," i.e., the leak of classified information. The lawyer analogized the situation to that of someone who receives illegal drugs from a drug dealer and refuses to testify about it.

This analogy is ludicrous, and the appeals court should reject it. It is disturbing that the government is even making such an argument.

Early Thursday, President Obama said that he is "troubled" about intrusions on press freedom, and that Attorney General Holder will review his department's policies. But given that later in the day Mr. Holder's involvement in the Rosen matter was revealed, a review is not likely to clear the air. Only an immediate repudiation of the misguided policy that has been fueling these leak prosecutions will suffice.

Mr. Boutrous is a partner at Gibson, Dunn & Crutcher LLP. He has represented Dow Jones, the AP and other media organizations in the past.

from the Wall Street Journal, 2013-May-20, printed 2013-May-21, p.A16:

A Journalist 'Co-Conspirator'
The feds accuse a Fox reporter of criminal behavior for doing his job.

Ok, we've learned our lesson. Last week we tried to give the Obama Administration the benefit of the doubt over its far-reaching secret subpoenas to the Associated Press, and now we learn that was the least of its offenses against a free press. No attempt to be generous to this crowd goes unpunished.

The latest news, disclosed by the Washington Post on Monday, is that the Justice Department targeted a Fox News reporter as a potential "co-conspirator" in a leak probe. The feds have charged intelligence analyst Stephen Jin-Woo Kim with disclosing classified information to Fox reporter James Rosen. That's not a surprise considering that this Administration has prosecuted more national-security cases than any in recent history.

The shock is that as part of its probe the Administration sought and obtained a warrant to search Mr. Rosen's personal email account. And it justified such a sweeping secret search by telling the judge that Mr. Rosen was part of the conspiracy merely because he acted like a journalist.

In a May 2010 affidavit in support of obtaining the Gmail search warrant, FBI agent Reginald Reyes declared that "there is probable cause to believe that the Reporter has committed or is committing a violation" of the Espionage Act of 1917 "as an aider and abettor and/or co-conspirator." The Reporter here is Mr. Rosen.

And what evidence is there to believe that Mr. Rosen is part of a spy ring? Well, declares Mr. Reyes, the reporter published a story in June 2009 saying that the U.S. knew that North Korea planned to respond to looming U.N. sanctions with another nuclear test. That U.S. knowledge was classified. But the feds almost never prosecute a journalist for disclosing classified information, not least because reporters can't be sure what's classified and what isn't.

We can recall only a single such prosecution of a journalist under the Espionage Act in 95 years. Julian Assange of WikiLeaks, who isn't a journalist, published far more damaging leaks but has never been indicted for it.

To add to his cloak-and-dagger hype, Mr. Reyes also makes much of the fact that Mr. Rosen used an alias, "Alex," while his alleged source Mr. Kim used the alias, "Leo." Believe it or not, Mr. Rosen also disclosed in one email that he is interested in "breaking news ahead of my competitors." And he even went so far as to urge "Leo" to help him "expose muddle-headed policy when we see it—or force the administration's hand to go in the right direction, if possible."

On the evidence of five years in office that isn't possible, but trying isn't a criminal motive. And if working with a source who uses an alias is now a crime, we've come a long way from the celebration of Bob Woodward and "Deep Throat."

The best face on these accusations is that Mr. Reyes was playing up the conspiracy angle to get the judge to approve a more sweeping search, which he did. The feds were then able to read widely in Mr. Rosen's personal email account, and thus potentially use it against him.

As with the AP subpoenas, this search is overbroad and has a potentially chilling effect on reporters. The chilling is even worse in this case because Mr. Rosen's personal communications were subject to search for what appears to be an extended period of time. At least in the AP case, the subpoena was for past phone logs during a defined period. The message is that anyone who publishes a story the Administration dislikes can be targeted for email searches that could expose personal secrets.

Mr. Reyes is far exceeding his brief here, but the larger fault lies with higher-ups. U.S. Attorney Ronald Machen, who is conducting the AP and Kim leak investigations, clearly has little regard for normal Justice standards and protocol for dealing with the media. Such a sweeping probe should also have been approved by senior Justice officials, at least by the Deputy Attorney General.

With the Fox News search following the AP subpoenas, we now have evidence of a pattern of anti-media behavior. The suspicion has to be that maybe these "leak" investigations are less about deterring leakers and more about intimidating the press. We trust our liberal friends in the press corps won't mute their dismay merely because this time the target is a network they love to hate.

from Politico, 2013-May-21, by Josh Feldman:

Fox's Bret Baier Reveals That DOJ Also Seized Phone Records For James Rosen's Parents

During a panel discussion on the Department of Justice seizing the phone records of Fox News' James Rosen, Bret Baier revealed that the seizure included the phone records of Rosen's parents. The entire panel agreed the scandal was an outrage, with Kirsten Powers pointing out that there have been a number of high-profile leaks from the Obama administration, but the only ones they seem interested in going after are the ones that make them look bad.

Charles Krauthammer found it amazing that the government would make such a “huge assault on the first amendment” in trying to go after Rosen for doing his job. Baier pointed out that Rosen was never formally charged nor contacted by the government. Powers accused the Obama administration of being overconcerned with prosecuting whistleblowers while not going after leakers who reveal positive information about the administration.

Baier then highlighted documents revealing that the seized phone records also included “records [that] relate to James' parents' home in Staten Island.”

Tucker Carlson went after the press for being silent when the White House was trying to basically kick Fox News out of the press room, and warned that the scandal could get bigger with the revelation that a CBS reporter's computer was compromised.

h/t Twitchy

from the Wall Street Journal, 2013-May-20, by David B. Rivkin Jr. and Lee A. Casey:

The IRS and the Drive to Stop Free Speech
Such a scandal was bound to happen after the government started trying to rule the expression of political views.

The unfolding IRS scandal is a symptom, not the disease.For decades, campaign-finance reform zealots have sought to limit core political speech through spending limits and disclosure requirements. More recently, they have claimed that it is wrong and dangerous for tax-exempt entities to engage in political speech.

The Obama administration shares these views, especially when conservative, small-government organizations are involved, and the IRS clearly got the message. While the agency must be investigated and reformed, the ultimate cure for these abuses is to unshackle political speech by all groups, including tax-exempt ones, from arbitrary and unconstitutional government regulation.

Beginning in March 2010, the IRS engaged in an unprecedented campaign of harassment against conservative groups, either through denials or delays in approving their tax-exempt-status applications, or through endless and burdensome audits.

In notable contrast, liberal and "progressive" organizations got approvals with remarkable speed. The most conspicuous example involves the Barack H. Obama Foundation, which was approved as tax exempt within a month by the then-head of the IRS tax-exempt branch, Lois Lerner. From media reports and firsthand accounts, we also know that the IRS disproportionately audited donors to conservative causes and leaked confidential tax information concerning conservative groups in violation of federal law.

This IRS politicization is not an isolated problem. It is an inevitable result of the broader efforts to regulate and, in fact, suppress political speech.

The IRS crackdown on tax-exemption approvals for conservative groups was directed at nonprofit social-welfare groups, often called 501(c)(4)s after the Internal Revenue Code section granting them tax-exempt status. Such groups do not have to disclose their donors and are exempt from most taxation, although donations to them generally aren't tax deductible.

Social-welfare organizations are permitted to engage in a range of political activities promoting their causes or beliefs, so long as these activities aren't their "primary purpose." This has been generally understood to mean that they must spend less than 50% of their total resources on political activities.

The IRS had little interest in 501(c)(4) political activities until the 2002 McCain-Feingold campaign-finance reform. That law barred dedicated political-advocacy groups from soliciting and spending soft money—funds that aren't subject to tight federal campaign-contribution limits and are used for issue advocacy and party-building.

This IRS restraint was doubtless reinforced by the fact that virtually all politically active (c)(4)s, mostly labor and environmental groups, were ideologically liberal and their activities were not attacked in the mainstream media or by the political establishment. Meanwhile, Republicans financed their political activities largely through candidate-specific campaigns and party and congressional committees.

Yet McCain-Feingold had the unintended effect of making 501(c)(4) political activities far more important than they had been, since the law's ban on soft money doesn't apply to such groups. Thus, it prompted the creation of conservative 501(c)(4)s—although there is little hard evidence of improper political activities by any such groups, whether liberal or conservative.

The Supreme Court's 2010 decision in Citizens United further increased the importance of the groups by invalidating the restrictions against much political speech by corporations. This freed 501(c)(4) groups, which ordinarily are organized as corporations, to engage in the express advocacy of political causes and candidates.

The Obama administration made clear its deep dislike of Citizens United and of the various new conservative groups spawned by the "tea party" movement. The IRS bureaucrats took the hint. No express order from senior administration officials would have been necessary. Like other federal enforcement agencies, the IRS has always been well-attuned to even subtle guidance from the White House, Congress and the political establishment.

Thus, the IRS crackdown on conservative organizations was a direct and inevitable consequence of political and policy messaging by the Obama administration, and by the campaign-finance reformers who share these views. Congressional Democrats are also to blame, since many of them have publicly—as with Max Baucus, chairman of the Senate Finance Committee, which oversees the IRS—or privately urged the IRS to go after conservative tax-exempt organizations.

Ignoring their own share of responsibility, campaign-finance reformers and their allies are now pressing to broaden the IRS crackdown to apply to all tax-exempt organizations. In their view, the problem is not only with express political advocacy, but with all tax-exempt activities that might have political overtones, or be related to political issues. Indeed, many argue that such organizations should be conspicuously apolitical.

This is wrong as a matter of law and policy. Congress doesn't have to provide tax-exempt status to social-welfare organizations, but having done so it cannot discriminate by the kind of advocacy in which such groups engage. To say that such activities can have no political implications is an insult to common sense. In a vibrant democracy, every major policy debate has political implications.

The spirited debate about policy issues should be at the core of social-welfare organizations. Politics is how we govern ourselves and political speech is essential to self-governance. The fact that 501(c)(4) group contributors aren't subject to campaign disclosure requirements is a good thing.

There is nothing inherently evil about anonymous political speech. It is firmly anchored in our political and legal culture and was used by the Framers during the founding. Hamilton, Madison and Jay published their Federalist Papers under a pseudonym. The fact that the IRS was able to target conservative donors—similar to the way donors to the NAACP were targeted at the height of the civil-rights battles—shows how disclosure can lead to speech-suppressing government actions.

The courts have long held that the IRS cannot use subjective, "value-laden" tests in administering nonprofit status. As the Court of Appeals for the D.C. Circuit stated in one leading case, Big Mama Rag, Inc. v. United States (1980): "although First Amendment activities need not be subsidized by the state, the discriminatory denial of tax exemptions can impermissibly infringe free speech."

The proper lessons of the unfolding IRS scandal are twofold. First, any effort to have the IRS police advocacy activities of social-welfare organizations is bound to be clumsy and prone to degenerate into either selective or broad witch hunts. Second, the remedy is not to further limit political speech by nonprofit entities—which would certainly raise significant constitutional issues—but to encourage such speech by imposing fewer restrictions.

Messrs. Rivkin and Casey served in the Justice Department during the Reagan and George H.W. Bush administrations. They are partners in the Washington, D.C., office of Baker & Hostetler LLP.

from the Associated Press, 2013-May-19:

AP CEO: Phone Search was 'Unconstitutional'

The president and CEO of The Associated Press says the government's seizure of AP journalists' phone records was "unconstitutional" and already has had a chilling effect on newsgathering.

Gary Pruitt, speaking on CBS' "Face the Nation," says the Justice Department's secret subpoena of reporters' phone records has made sources less willing to talk to AP journalists.

The Justice Department disclosed the seizure of two months of phone records in a letter the AP received May 10. The letter did not state a reason, but prosecutors had said they were conducting a leaks investigation into how the AP learned about an al-Qaida bomb plot in Yemen before it was made public last year.

Pruitt said the AP story contradicted the government's claim at the time there was no terrorist plot.

from NewsMax, 2013-May-14, by David Yonkman:

Carl Bernstein: AP Phone Scandal a 'Nuclear Event'

Washington -- Investigative reporter Carl Bernstein on Tuesday called the scandal involving the Department of Justice securing telephone records of Associated Press reporters and editors a "nuclear event."

"This is outrageous," Bernstein said on MSNBC's "Morning Joe." "It is totally inexcusable. This administration has been terrible on this subject from the beginning.

"The object of it is to intimidate people who talk to reporters," he said. "This was an accident waiting to become a nuclear event, and now it's happened."

The AP reported late Monday afternoon that the "Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press."

The organization was not told the reason for the seizure. But the timing and the specific journalistic targets strongly suggest they are related to a continuing government investigation into the leaking of information a year ago about the CIA's disruption of a Yemen-based terrorist plot to bomb an airliner, The New York Times reported.

The development represents the latest collision of news organizations and federal investigators over government efforts to prevent the disclosure of national security information, and it comes against a backdrop of an aggressive policy by the Obama administration to rein in leaks, according to The New York Times.

Under President Barack Obama, six current and former government officials have been indicted in leak-related cases, twice the number brought under all previous administrations combined.

"The numerical thing doesn't matter," said Bernstein, a former Washington Post reporter who, along with Bob Woodward, broke the Watergate scandal that brought down President Richard Nixon. "What matters is, this is a matter of policy. It is known to the president of the United States that this is the policy. To say that there was no knowledge, in quotes, specifically about this in the White House is nonsense."

"This is a policy matter, and this does go to the president and the people around him," he said. "The idea is to try and make an example of those people who talk to reporters, especially on national security matters. National security is always the false claim of administrations trying to hide things that people ought to know."

That the Justice Department sought records of phone calls made over congressional phone lines could also raise a separation of powers issue between the administration and legislative branches of government.

"The First Amendment is first for a reason," House Speaker John Boehner spokesman Michael Steel tells Newsmax. "If the Obama administration is going after reporters' phone records, they better have a damned good explanation."

from the Wall Street Journal, 2013-Jan-30, printed 2013-Jan-31, p.A13, by Daniel Henninger:

Obama's Thunderdome Strategy
The president's goal is to make Republican ideas intolerable.

Few are the men and women in American public life who haven't heard Mr. Dooley's famous aphorism: "Politics ain't beanbag." John Boehner, currently serving out his community service as speaker of the House, appears to have been meditating on Mr. Dooley's cautionary wisdom. At the Ripon Society last week he said the Obama administration was trying "to annihilate the Republican Party."

Better late than never, Speaker Boehner now sees that Barack Obama's notion of political competition is Mad Max inside the Thunderdome: "Two men enter, one man leaves."

Last week during the president's second inaugural address, if one can employ that hallowed phrase to describe this speech, Mr. Obama used the occasion to defend entitlement programs by whacking his defeated presidential opponent: "They do not make us a nation of takers."

This was the second time Mr. Obama used a traditionally elevated forum to take down his opposition. His 2010 State of the Union speech will be remembered in history for nothing other than an attack on members of the Supreme Court seated before him. Justice Samuel Alito's whispered "Not true" would prove a prophetic comment on the Obama modus operandi.

Subsequent targets of the president's contempt have included the members of Congress's deficit-reduction supercommittee, the Ryan budget ("antithetical to our entire history"), repeated attacks on the "well off" and bankers, and famously a $100 million dump-truck of vilification on Mitt Romney.

When he won, the rationalization was that it was all a shrewd if brutal campaign strategy. But it kept coming. What is striking about the Obama technique is that it's not so much criticism as something closer to political obliteration, driving his opposition out of the political arena altogether.

After the inaugural speech, Obama communications director Dan Pfeiffer said that Democrats don't have "an opposition party worthy of the opportunity." Even among the president's supporters, one is hard put now to find anyone who doesn't recognize that Mr. Obama's original appeal to hope and change has given way to search and destroy.

Conventional wisdom holds that these unorthodox tactics are a mistake, that he's going to need GOP support on immigration and such. And by now it's conventional wisdom that when our smiling president transforms into Mr. Hyde he is merely channeling Saul Alinsky, deploying the tactics of community-organizing campaigns, the only operational world he knew before this.

The real pedigree, though, is a lot heavier than community organizing in Chicago.

Speaking last Saturday, Rep. Paul Ryan said that for Barack Obama to achieve his goals, "he needs to delegitimize the Republican Party." Annihilate, delegitimize—it's the same thing. The good news is that John Boehner and Paul Ryan recognize that their relationship with this White House is not as partners in anything. They are prey.

Back in 1965, when American politics watched the emergence of the New Left movement—rebranded today as "progressives"—a famous movement philosopher said the political left should be "liberated" from tolerating the opinions of the opposition:"Liberating tolerance would mean intolerance against movements from the Right and toleration of movements from the Left."

That efficient strategy was the work of Herbert Marcuse, the political theorist whose ideas are generally credited with creating the basis for campus speech codes. Marcuse said, "Certain things cannot be said, certain ideas cannot be expressed, certain policies cannot be proposed." Marcuse created political correctness.

But let's talk about Marcuse in the here and now. He also proposed the withdrawal of toleration "from groups and movements . . . which oppose the extension of public services, social security, medical care, etc."

Barack Obama in his "gloves-off" news conference Jan. 14: "They have suspicions about Social Security. They have suspicions about whether government should make sure that kids in poverty are getting enough to eat or whether we should be spending money on medical research."

Marcuse called this "the systematic withdrawal of tolerance toward regressive and repressive opinions." That, clearly, is what President Obama—across his first term, the presidential campaign and now—has been doing to anyone who won't line up behind his progressivism. Delegitimize their ideas and opinions.

A Marcusian world of political intolerance became a reality on U.S. campuses. With relentless pushing from the president, why couldn't it happen in American political life? Welcome to the Thunderdome.

The original argument for the Obama presidency was that this was a new, open-minded and liberal man intent on elevating the common good. No one believes that now. This will be a second term of imposition. As he said in the inaugural: "Preserving our individual freedoms ultimately requires collective action." That is Marcusian.

If the opposition is looking for one word to shape its role now, it would be this: Dissent.

from the Wall Street Journal, 2012-Nov-16, by Sohrab Ahmari:

How Free Speech Died on Campus
A young activist describes how universities became the most authoritarian institutions in America.

New York

At Yale University, you can be prevented from putting an F. Scott Fitzgerald quote on your T-shirt. At Tufts, you can be censured for quoting certain passages from the Quran. Welcome to the most authoritarian institution in America: the modern university—"a bizarre, parallel dimension," as Greg Lukianoff, president of the Foundation for Individual Rights in Education, calls it.

Mr. Lukianoff, a 38-year-old Stanford Law grad, has spent the past decade fighting free-speech battles on college campuses. The latest was last week at Fordham University, where President Joseph McShane scolded College Republicans for the sin of inviting Ann Coulter to speak.

"To say that I am disappointed with the judgment and maturity of the College Republicans . . . would be a tremendous understatement," Mr. McShane said in a Nov. 9 statement condemning the club's invitation to the caustic conservative pundit. He vowed to "hold out great contempt for anyone who would intentionally inflict pain on another human being because of their race, gender, sexual orientation, or creed."

To be clear, Mr. McShane didn't block Ms. Coulter's speech, but he said that her presence would serve as a "test" for Fordham. A day later, the students disinvited Ms. Coulter. Mr. McShane then praised them for having taken "responsibility for their decisions" and expressing "their regrets sincerely and eloquently."

Mr. Lukianoff says that the Fordham-Coulter affair took campus censorship to a new level: "This was the longest, strongest condemnation of a speaker that I've ever seen in which a university president also tried to claim that he was defending freedom of speech."

I caught up with Mr. Lukianoff at New York University in downtown Manhattan, where he was once targeted by the same speech restrictions that he has built a career exposing. Six years ago, a student group at the university invited him to participate in a panel discussion about the Danish cartoons depicting the Prophet Muhammad that had sparked violent rioting by Muslims across the world.

When Muslim students protested the event, NYU threatened to close the panel to the public if the offending cartoons were displayed. The discussion went on—without the cartoons. Instead, the student hosts displayed a blank easel, registering their own protest.

"The people who believe that colleges and universities are places where we want less freedom of speech have won," Mr. Lukianoff says. "If anything, there should be even greater freedom of speech on college campuses. But now things have been turned around to give campus communities the expectation that if someone's feelings are hurt by something that is said, the university will protect that person. As soon as you allow something as vague as Big Brother protecting your feelings, anything and everything can be punished."

You might say Greg Lukianoff was born to fight college censorship. With his unruly red hair and a voice given to booming, he certainly looks and sounds the part. His ethnically Irish, British-born mother moved to America during the 1960s British-nanny fad, while his Russian father came from Yugoslavia to study at the University of Wisconsin. Russian history, Mr. Lukianoff says, "taught me about the worst things that can happen with good intentions."

Growing up in an immigrant neighborhood in Danbury, Conn., sharpened his views. When "you had so many people from so many different backgrounds, free speech made intuitive sense," Mr. Lukianoff recalls. "In every genuinely diverse community I've ever lived in, freedom of speech had to be the rule. . . . I find it deeply ironic that on college campuses diversity is used as an argument against unbridled freedom of speech."

After graduating from Stanford, where he specialized in First Amendment law, he joined the Foundation for Individual Rights in Education, an organization co-founded in 1999 by civil-rights lawyer Harvey Silverglate and Alan Charles Kors, a history professor at the University of Pennsylvania, to counter the growing but often hidden threats to free speech in academia. FIRE's tactics include waging publicity campaigns intended to embarrass college administrators into dropping speech-related disciplinary charges against individual students, or reversing speech-restricting policies. When that fails, FIRE often takes its cases to court, where it tends to prevail.

In his new book, "Unlearning Liberty," Mr. Lukianoff notes that baby-boom Americans who remember the student protests of the 1960s tend to assume that U.S. colleges are still some of the freest places on earth. But that idealized university no longer exists. It was wiped out in the 1990s by administrators, diversity hustlers and liability-management professionals, who were often abetted by professors committed to political agendas.

"What's disappointing and rightfully scorned," Mr. Lukianoff says, "is that in some cases the very professors who were benefiting from the free-speech movement turned around to advocate speech codes and speech zones in the 1980s and '90s."

Today, university bureaucrats suppress debate with anti-harassment policies that function as de facto speech codes. FIRE maintains a database of such policies on its website, and Mr. Lukianoff's book offers an eye-opening sampling. What they share is a view of "harassment" so broad and so removed from its legal definition that, Mr. Lukianoff says, "literally every student on campus is already guilty."

At Western Michigan University, it is considered harassment to hold a "condescending sex-based attitude." That just about sums up the line "I think of all Harvard men as sissies" (from F. Scott Fitzgerald's 1920 novel "This Side of Paradise"), a quote that was banned at Yale when students put it on a T-shirt. Tufts University in Boston proscribes the holding of "sexist attitudes," and a student newspaper there was found guilty of harassment in 2007 for printing violent passages from the Quran and facts about the status of women in Saudi Arabia during the school's "Islamic Awareness Week."

At California State University in Chico, it was prohibited until recently to engage in "continual use of generic masculine terms such as to refer to people of both sexes or references to both men and women as necessarily heterosexual." Luckily, there is no need to try to figure out what the school was talking about—the prohibition was removed earlier this year after FIRE named it as one of its two "Speech Codes of the Year" in 2011.

At Northeastern University, where I went to law school, it is a violation of the Internet-usage policy to transmit any message "which in the sole judgment" of administrators is "annoying."

Conservatives and libertarians are especially vulnerable to such charges of harassment. Even though Mr. Lukianoff's efforts might aid those censorship victims, he hardly counts himself as one of them: He says that he is a lifelong Democrat and a "passionate believer" in gay marriage and abortion rights. And free speech. "If you're going to get in trouble for an opinion on campus, it's more likely for a socially conservative opinion."

Consider the two students at Colorado College who were punished in 2008 for satirizing a gender-studies newsletter. The newsletter had included boisterous references to "male castration," "feminist porn" and other unprintable matters. The satire, published by the "Coalition of Some Dudes," tamely discussed "chainsaw etiquette" ("your chainsaw is not an indoor toy") and offered quotations from Teddy Roosevelt and menshealth.com. The college found the student satirists guilty of "the juxtaposition of weaponry and sexuality."

"Even when we win our cases," says Mr. Lukianoff, "the universities almost never apologize to the students they hurt or the faculty they drag through the mud." Brandeis University has yet to withdraw a 2007 finding of racial harassment against Prof. Paul Hindley for explaining the origins of "wetback" in a Latin-American Studies course. Indiana University-Purdue University Indianapolis apologized to a janitor found guilty of harassment—for reading a book celebrating the defeat of the Ku Klux Klan in the presence of two black colleagues—but only after protests by FIRE and an op-ed in these pages by Dorothy Rabinowitz.

What motivates college administrators to act so viciously? "It's both self-interest and ideological commitment," Mr. Lukianoff says. On the ideological front, "it's almost like you flip a switch, and these administrators, who talk so much about treating every student with dignity and compassion, suddenly come to see one student as a caricature of societal evil."

Administrative self-interest is also at work. "There's been this huge expansion in the bureaucratic class at universities," Mr. Lukianoff explains. "They passed the number of people involved in instruction sometime around 2006. So you get this ever-renewing crop of administrators, and their jobs aren't instruction but to police student behavior. In the worst cases, they see it as their duty to intervene on students' deepest beliefs."

Consider the University of Delaware, which in fall 2007 instituted an ideological orientation for freshmen. The "treatment," as the administrators called it, included personal interviews that probed students' private lives with such questions as: "When did you discover your sexual identity?" Students were taught in group sessions that the term racist "applies to all white people" while "people of color cannot be racists." Once FIRE spotlighted it, the university dismantled the program.

Yet in March 2012, Kathleen Kerr, the architect of the Delaware program, was elected vice president of the American College Personnel Association, the professional group of university administrators.

A 2010 survey by the American Association of Colleges and Universities found that of 24,000 college students, only 35.6% strongly agreed that "it is safe to hold unpopular views on campus." When the question was asked of 9,000 campus professionals—who are more familiar with the enforcement end of the censorship rules—only 18.8% strongly agreed.

Mr. Lukianoff thinks all of this should alarm students, parents and alumni enough to demand change: "If just a handful more students came in knowing what administrators are doing at orientation programs, with harassment codes, or free-speech zones—if students knew this was wrong—we could really change things."

The trouble is that students are usually intimidated into submission. "The startling majority of students don't bother. They're too concerned about their careers, too concerned about their grades, to bother fighting back," he says. Parents and alumni dismiss free-speech restrictions as something that only happens to conservatives, or that will never affect their own children.

"I make the point that this is happening, and even if it's happening to people you don't like, it's a fundamental violation of what the university means," says Mr. Lukianoff. "Free speech is about protecting minority rights. Free speech is about admitting you don't know everything. Free speech is about protecting oddballs. It means protecting dissenters."

It even means letting Ann Coulter speak.

Mr. Ahmari is an assistant books editor at the Journal.

from PaidContent.org, 2012-Jan-5, by Staci D. Kramer:

NewsRight Launches With 29 Publishers; `Not A Litigation Shop'

Three years after the Associated Press started the News Registry to help publishers track their content online—and make money from reuse—comes NewsRight, the startup designed to make that work actually pay off.

Headed by David Westin, the former head of ABC News, NewsRight, the new name for AP spinoff NLG, moves into this phase with more than $30 million in cash and in-kind investment from 29 founding news and info publishers covering 841 sites. It also has the rights to license content—not just to track it through the microtag attached to every piece of content on member sites.

The in-kind investment covers the News Registry technology from AP that was spun off into NewsRight's predecessor and other tech assets. Westin, a former AP board member for broadcasting, joined as CEO in April. At ABC (NYSE: DIS) News, Westin ran a large news global organization. At NewsRight, he heads a lean staff spread between San Francisco and New York; he expects to make some sales and product hires soon.

The roster includes Advance, Hearst, the New York Times (NYSE: NYT) and the Washington Post Co. (NYSE: WPO)—but not Gannett (NYSE: GCI) (full list below). No specifics on the amount of cash but there are three different tiers of membership. Each member has one vote and no company has more than one board member; Bob Nutting, president and CEO of Ogden Newspapers, is the chairman.

The News Registry already tracks more than four billion impressions a month from nearly 170 million unique users but NewsRight has yet to sign a single deal. During an interview, Westin said the company was limited to preliminary discussion until it had the full rights clearance from its members.

NewsRight's first target: media monitoring services and others who charge enterprises for collecting news and info. He didn't want to get specific during an interview but for examples think Meltwater, Moreover, Vocus, and BurrellesLuce. He also didn't want to talk specifics about how the economics of a deal would work but said Newsright would get a fee with the bulk going back to publishers based on what they provide.

He hopes going public will encourage people to come up with new products that might have been considered too difficult before NewsRight could offer one-stop licensing across hundreds of sites. NewsRight services also include data and analytics that would show licensees how specific content is being used.

While NewsRight is headed by a lawyer, it would be a mistake to confuse NewsRight with Righthaven or other concepts based on raising money from copyright transgressions. Publishers can use the information provided by NewsRight to pursue their own actions but that's not the startup's mission. “We don't own the copyrights, we couldn't bring a lawsuit if we wanted to,” says Westin. “We really are interested in entering to business relationships and contracts. We're not a litigation shop.”

Full list of NewsRight founding members: Advance Publications, Associated Press, Axel Springer Group, A.H.Belo Management Services, Belo Management Services, Business Wire, Community Newspaper Holdings, El Dia, Galveston Newspapers, Gatehouse Media, The Gazette Company, Hearst Newspapers, Journal Communications (NYSE: JRN), Landmark Media Enterprises, McClatchy (NYSE: MNI), Media General (NYSE: MEG), MediaNews Group, Morris Communications, Morris Multimedia, NPG Newspapers, The New York Times Co., Ogden Newspapers, Pioneer Newspapers, Schurz Communications, E.W. Scripps (NYSE: SSP), Stephens Media, Swift Communications, Times Publishing Co. and Washington Post Co..

from the Atlantic, 2012-Jul/Aug, by Jeffrey Rosen:

The Right to Be Forgotten

For a preview of the titanic clash we're about to witness between privacy and free speech on the Internet, consider the case of Virginia Da Cunha. The Argentinean pop star posed for racy pictures, which found their way to the Internet. Then, thinking better of her decision, she sued Google and Yahoo, demanding they take the pictures down. An Argentinean judge, invoking a version of “the right to be forgotten,” sided with Da Cunha, fined Google and Yahoo, and ordered them to delink all sites with racy pictures that included her name. Claiming that removing only selected pictures was too difficult, Yahoo decided to block all sites even referring to Da Cunha from its Argentinean search engine. Today, when you plug the name Virginia Da Cunha into Yahoo Argentina, you get a blank page and a legal notice that the images have been removed by court order.

Soon, citizens around the world may have the ability to selectively delete themselves from the Internet. At the beginning of this year, Viviane Reding, the European commissioner for justice, fundamental rights, and citizenship, proposed codifying a sweeping version of the right to be forgotten in European data-protection law. The proposal is being strenuously resisted by Facebook and by Google, which could be liable for up to 1 percent of its $37.9 billion annual income if it fails to remove photos or other data that people post about themselves and later think better of, even if the data have been broadly shared.

But the right to be forgotten also gives people the right to demand the removal of embarrassing information that others post about them, regardless of its source, unless Google or Facebook can prove to a European regulator that the information is part of a legitimate journalistic, literary, or artistic exercise. This would transform Facebook and Google from neutral platforms into global censors and would clash directly with the principle, embedded in U.S. free-speech law, that people can't be restricted from publishing embarrassing but truthful information. As a result, the right to be forgotten may precipitate the Internet Age's most dramatic conflict between European conceptions of privacy and American conceptions of free speech.

However the international legal battles are resolved, the impulse to escape your past on the Internet is an understandable one. Who among us doesn't regret a tipsy Facebook photo from Cancún? Perhaps the most effective solution to the drunken-Facebook-photo problem isn't legal but technological. Companies with names like TigerText are already offering the possibility of “disappearing” your data—for example, allowing you to specify, when you send a text message, whether you want it to last for a day or a month. The Europeans may be going overboard in creating a new legal right to escape your past on the Internet, but if the threat of regulation prompts Facebook and Google to explore less heavy-handed ways of empowering users around the globe to clean up their online reputations, perhaps Europe and America can find some kind of common ground after all.

Jeffrey Rosen is a law professor at George Washington University and legal-affairs editor of The New Republic.

from the Daily Mail, 2012-Nov-2, updated 2012-Nov-12, by Dominic Sandbrook:

The new dark age: Across Europe, free speech and democracy face their biggest threat since the Thirties

After a week dominated by the terrible effects of Superstorm Sandy, the increasingly bitter struggle between Barack Obama and Mitt Romney and the continuing fallout from the Jimmy Savile scandal, it was easy to overlook a little story about an obscure Greek journalist called Kostas Vaxevanis.

In its way, though, the ordeal of Mr Vaxevanis, the editor of an Athens magazine, who narrowly escaped prison for publishing the names of suspected tax evaders, is the biggest story of all.

Its themes — the freedom of the Press, the corruption of the establishment, the arrogance of the elite and the terrifying storm engulfing the economies of Europe — go to the heart of a crisis that threatens to tear the Continent apart.

But the Vaxevanis scandal is merely the tip of the iceberg.

From the Leveson Inquiry in London to the attempted comeback of former Italian prime minister Silvio Berlusconi, and from the salons of Paris to the committee rooms of Brussels, there are disturbing signs of a backlash against democracy, free speech and the will of the people — a counter-revolution that could sweep away many of the liberties we take for granted.

For more than half a century after World War II, most of us assumed that life in Europe would always get better. And when the Berlin Wall fell in 1989, it seemed that the tide of freedom was irresistible.

But now, with Europe poised on the brink of a new dark age of austerity, corruption and censorship, I am beginning to wonder if we were wrong all along.

When, many years from now, historians come to explain how it happened, they may well start with the story of Kostas Vaxevanis.

Until this week, few people outside Greece had ever heard of him. His magazine, Hot Doc, is hardly one of the Continent's most prestigious publications.

Last weekend, however, he found himself catapulted into the headlines after publishing a leaked list of some 2,059 rich Greeks who have hidden more than €1 billion in secret Swiss bank accounts.

Given that one of Greece's greatest problems over the last few years has been a corrosive culture of tax evasion — some estimates suggest that the Greek government loses a staggering €15 billion a year in unpaid taxes — it is not surprising that the list aroused an enormous storm.

After all, millions of Greeks are suffering under the most painful austerity regime seen in Europe for generations, with the economy shrinking by almost 5 per cent a year, living standards in freefall and unemployment at a staggering 25 per cent.

Revealingly, the tax evasion list had been doing the rounds of Europe's finance ministries for years.

The French, who got hold of it first, had already passed it to the Greek government — who, living up to their reputation for incompetence and corruption on a world-class scale, did absolutely nothing about it.

But when Mr Vaxevanis leaked the list in his magazine, the Greek people were given a glimpse of their masters' real priorities. Instead of promising to follow up the leads on the list, the governing coalition immediately had him arrested and charged with invading the privacy of the rich plutocrats.

He was, thank goodness, acquitted. Still, his ordeal was reminiscent of something from George Orwell's 1984, or perhaps Franz Kafka's book The Trial, in which an innocent man is arrested and prosecuted by the repressive authorities, without ever being told what he has done wrong. But what makes this even more dangerous is that it comes with the far-Right marching ever more brazenly through the streets of Athens — a frightening reminder that as the political establishment loses its grip, ordinary people turn to the extremes.

In scenes not seen in Europe since the long night of the Thirties, almost every day is bringing new evidence that, in the shattered ruins of the Greek dream, the forces of xenophobia are gathering strength.

In June's general election, the neo-Nazi Golden Dawn party won 18 seats. And earlier this month, uniformed party thugs attacked a theatre in Athens which was staging a show which depicted Jesus and the Apostles as gay men in Texas.

It sounds like something from Hitler's Germany — but it is happening in the heart of Europe in 2012.

A year ago, I warned in these pages that the death agonies of the Eurozone could tip the Continent into its darkest hour since the Thirties. It gives me no satisfaction to see my predictions coming true.

Yet as the case of the magazine editor suggests, the threat to democracy may be subtler, and, therefore, more insidious, than I imagined.

Just look at the situation in Italy. Last November, as its economy imploded, the crooked and inept Silvio Berlusconi was forced out of office and replaced with an unelected, technocratic government answerable to Brussels and Berlin.

From any democratic standpoint, that was pretty bad. What is worse, though, is that despite the appalling revelations about Mr Berlusconi's grotesque sexual depravity, and despite the fact that he has only just been found guilty of fraud and tax evasion, he is now threatening to bring down the government and launch a new bid for office.

Nobody seriously thinks he has Italy's interests at heart. For Mr Berlusconi, the point of returning to the prime ministerial palace would be to castrate his country's corruption laws.

As an ordinary citizen, he might go to jail; as prime minister, he could fix things to ensure he never answers for his crimes. It is easy to dismiss the posturing Mr Berlusconi, with his transplanted hair and populist patter, as merely a buffoon, a comic caricature of everything wrong with Italy's sclerotic, venal, back-scratching civic culture. But the stakes are too high for us to be laughing.

As Europe's fourth biggest economy, Italy is a vital cog in the wheels of continental commerce. Yet in Rome as elsewhere, a vast chasm seems to be opening between a tiny, gilded metropolitan elite, and everybody else.

It speaks volumes, for example, that while Mr Berlusconi has effectively got away with it, several of the country's respected scientists have been jailed for six years for failing to predict an earthquake which killed 309 people in 2009.

How bitterly ironic it was the same Berlusconi who callously remarked that the quake's survivors should treat the experience as a `camping holiday'. But the most frightening irony is that Italy now has a political establishment that jails honest scientists and elevates a convicted fraudster to its highest elected office. What better illustration could there be of a fundamentally rotten system?

The truth is that Berlusconi is a democrat in name only. He only went into politics to protect his corrupt business empire from the long arm of the law.

Worse, he has often spoken openly of his admiration for the Fascist dictator Benito Mussolini — who, according to Berlusconi three years ago, was merely `a benign dictator who did not murder opponents but sent them on holiday'.

Once, it would have been unthinkable for one of Europe's most powerful men to trumpet his admiration for Hitler's chief partner in crime, who colluded in some of the most bloodstained hours in human history. But with supposed statesmen like Mr Berlusconi, who needs the far-Right?

Even in the less anarchic corners of Europe, you can detect signs of the same frightening backlash against the freedom of the Press, the will of the people and the rule of law.

Take, for example, the saga of Valérie Trierweiler, the girlfriend of France's hapless new Socialist president François Hollande. For more than a year, Mme Trierweiler has been trying to stifle press and police investigations into her murky past — so murky, it appears, that nobody outside Paris can be entirely sure what they are investigating.

You might have thought that, in a country that so loudly trumpets its enthusiasm for liberty, the Press would be free to discuss the mysterious affairs of the president's lover. Not a bit of it. Only last June, one of France's best-known commentators, the veteran Philippe Sollers, who has written for the Journal du Dimanche for the last 13 years, was abruptly sacked for criticising the president's mistress.

The cause, explained a rival publication, was `insolence on his part'. In fact, France has some of the most punishing privacy laws in Europe — which explains why it also has some of the most corrupt politicians.

During the Eighties, president François Mitterrand was able to conduct a string of affairs, confident that the Press would never expose him. Indeed, the fact one mistress bore him a secret daughter was not revealed until after his death.

His successor, the shamelessly venal Jacques Chirac, conducted a successful campaign to escape justice for his corruption when he was mayor of Paris.

All of this merely reflects a political culture in France in which power is reserved for a tiny, privileged, self-interested elite, most of whom even attended the same graduate college, the famous Ecole Nationale d'Administration. Mr Hollande's previous lover, for example, was the former Socialist presidential candidate Segolène Royal, who is now conducting an epic feud with Mme Trierweiler. Meanwhile, it has recently emerged that Mme Trierweiler was initially two-timing the president with a minister working for his rival Nicolas Sarkozy.

She even claims to have been chatted up by president Sarkozy himself. So if you ever doubted that French politics was deeply incestuous, think again.

It sounds like the stuff of a cheap Parisian farce. But at a time when the Eurozone is sliding closer to oblivion and voters feel more frightened, alienated and enraged than ever, it is no laughing matter.

We in Britain, meanwhile, have no cause for complacency or self-congratulation.

The awful revelations of the Jimmy Savile affair are a reminder that abuse and corruption can fester within even the most apparently benign institutions, such as the NHS and the BBC.

What is really disturbing is that our political masters seem intent on silencing the free Press that alone can hold them to account.

Yes, some newspapers have behaved terribly badly in recent years. But it is worth remembering that without the courage of Fleet Street, our MPs would still be fiddling their expenses and fleecing the taxpayer.

Remember, too, the Mail's brave campaign to bring Stephen Lawrence's killers to justice. And remember that it was the media, not the government, who exposed Jimmy Savile's appalling abuses.

If the Leveson Inquiry recommends the Government introduces statutory regulation of the Press, then our newspapers' freedom to investigate wrongdoing would be fatally compromised.

Even publications like the satirical magazine Private Eye, which has been exposing the corruption of the rich and powerful for 50 years, would have to answer to state censors.

If this happens, my prediction is that the story of Greek magazine editor Kostas Vaxevanis would become disturbingly familiar.

What would be the result if crusading journalists here tried to expose parliamentary wrongdoing in a few years' time? Might they, too, be threatened with a stretch in prison?

The stark truth is that, as the Eurozone continues to implode, the gulf between rich and poor yawns ever wider and Britain faces a historic decision about its future in Europe, we need a free Press more than ever. The watchwords should be courage and candour, not cowardice and compliance.

Across the board, we need more openness, honesty and principled self-government, not less. Yet with so many crucial decisions being taken in Berlin and Brussels, the principle of democracy itself now feels embattled.

More and more, the scenes on the streets of Athens remind me of the dreadful events of the early Thirties, when economic meltdown, political chaos and a festering sense of resentment paved the way for the greatest tyranny our Continent has ever known.

Yet even in the midst of the economic blizzard, we must hold tighter than ever to the two great principles of free speech and national self-determination. For as Kostas Vaxevanis would tell you, the alternative — a new dark age of repression — is too terrible to contemplate.

from Wired, 2013-Feb-25, by David Kravets:

ISPs Now Monitoring for Copyright Infringement

The nation’s major internet service providers on Monday said they are beginning to roll out an initiative to disrupt internet access for online copyright scofflaws.

The so-called “Copyright Alert System” is backed by the President Barack Obama administration and was pushed heavily by record labels and Hollywood studios.

The plan, more than four years in the making, includes participation by AT&T, Cablevision Systems, Comcast, Time Warner Cable and Verizon. Others could soon join.

After four offenses, the historic plan calls for these residential internet providers to initiate so-called “mitigation measures” (.pdf) that might include reducing internet speeds and redirecting a subscriber’s service to an “educational” landing page about infringement.

The plan does not prevent content owners from suing internet subscribers. The Copyright Act allows damages of up to $150,000 per infringement.

The Center for Copyright Information, the new group running the program, maintains it is not designed to terminate online accounts for repeat offenders. However, the Digital Millennium Copyright Act demands that internet service providers kick off repeat copyright scofflaws.

The program monitors peer-to-peer file-sharing services via internet snoop MarkMonitor of San Francisco. The surveillance was to have been deployed sooner. But the various delays included Hurricane Sandy and ISP reluctance to join.

Peer-to-peer monitoring is easily detectable. That’s because IP addresses of internet customers usually reveal themselves during the transfer of files. Cyberlockers, e-mail attachments, shared Dropbox folders and other ways to infringe are not included in the crackdown.

To be sure, the deal is not as draconian as it could have been.

The agreement, heavily lobbied for by the Recording Industry Association of America and the Motion Picture Association of America, does not require internet service providers to filter copyrighted material transiting their networks. U.S. internet service providers and the content industry have openly embraced that kind filtering. The Federal Communications Commission, in crafting its net neutrality rules, has all but invited the ISPs to practice it.

On a scofflaw’s first offense, internet subscribers will receive an e-mail “alert” from their ISP saying the account may have been misused for online content theft. On the second offense, the alert might contain an “educational message” about the legalities of online file sharing.

On the third and fourth infractions, the subscriber will likely receive a pop-up notice “asking the subscriber to acknowledge receipt of the alert.”

David Kravets is a senior staff writer for Wired.com and founder of the fake news site TheYellowDailyNews.com. He's a dad of two boys and has been a reporter since the manual typewriter days.

from the Wall Street Journal, 2012-Dec-3, p.B7, by Rory Jones:

Nations Meet to Discuss Web Rules

The question of who rules the Internet and how is being debated at a 12-day conference in Dubai.

The World Conference on International Telecommunications, which started Monday, aims to draft a new treaty to underpin international telecommunications regulations. The current rules were put in place in 1988. The conference is sponsored by the International Telecommunication Union, the United Nations agency for information and communication technologies.

[photo with caption: ITU Secretary General Hamadoun Toure, of Mali, spoke Monday.]

The bid to change the rule book has unleashed fears of a grab for centralized control of the Internet by the U.N. The process has also come under criticism for its lack of transparency, with documents unpublished and proposals up for debate kept secret.

Among the most vocal critics are U.S. Internet companies like Google Inc.

Google launched a campaign last month calling for Internet users to lobby their governments to denounce the conference as the wrong forum to decide the future of the Internet.

"Only governments have a voice at the ITU," Google wrote on its Take Action website. "This includes governments that do not support a free and open Internet."

A key battleground at the conference will be a proposal from Russia and several African nations to wrest control of the Internet from Internet Corp. for Assigned Names and Numbers, or Icann, an organization that helps oversee the Internet, and other groups that are primarily based in the U.S.

The Russian proposal, leaked onWCITleaks.ORG, a website set up to counter the lack of transparency, calls for countries to "have equal rights to manage their Internet including in regard to the allotment, assignment and reclamation of Internet numbering, naming addressing and identification resources."

Other proposals put forward by India and some countries from Africa and the Middle East include allowing telecom operators to charge Internet content companies—such as Facebook Inc. and Google's YouTube—a premium for transmitting data across national borders.

That would help telecom companies fund the high cost of upgrading networks to enable them to carry the surge in data expected from smartphones capable of streaming video, they argue.

A group of 17 Arab nations, including the United Arab Emirates, is proposing greater control by governments in regulating the Internet and transfer of data. The group is calling for all Internet users to be universally identified, but critics warn of greater monitoring of Internet traffic and censorship in many countries that already block what their citizens can view online.

Last month, the U. A. E passed wide-ranging cyber laws that prescribes jail sentences for anyone using the Internet to insult the country's leaders or to call for unlicensed demonstrations or marches.

"Governments all over the world are seeking to reclaim grip and control that has slipped from them into the hands of empowered individuals," said Marietje Schaake, a member of the European Parliament.

"Some of the proposals made are considered threats to the open Internet, to net neutrality, or to free speech if adopted," she added.

The European Parliament said last month that the International Telecommunication Union hosting the conference was "not the appropriate body" to have authority over the Internet.

Despite the political saber-rattling, observers don't expect drastic changes to the way the Internet is run will be agreed on at the Dubai conference. ITU Secretary-General Hamadoun Touré has said any changes must be agreed upon by all countries involved.

In a last-minute turnaround Monday, the ITU reversed its stance and said it would publish the conference documents.

"The conference documents will be published tomorrow," said Sarah Parkes, head of public relations for the ITU. "I can't guarantee it will be every proposal we ever received, but it is what we are now working with."

But Ms. Schaake of the European Parliament said there may be further challenges ahead.

"The struggle for digital freedom, control and economic gains will not end at the WCIT," she said. "The ITU (conference) is a test bed for power struggles over the Internet that we will face more of in the future."

from the Wall Street Journal's Political Diary, 2012-Nov-2, by Allysia Finley:

California Shakedown
State Attorney General Kamala Harris goes on a politically motivated fishing expedition, with Gov. Jerry Brown's blessing.

Last week California Attorney General Kamala Harris and the state's Fair Political Practices Commission sued the Arizona-based issue advocacy group Americans for Responsible Leadership, which has contributed $11 million to a conservative political action committee, to force it to disclose its financial backers. A Sacramento superior court judge has just ruled in the state's favor, thus stringing the line for a giant fishing expedition.

Judge Shelleyanne Chang wants Americans for Responsible Leadership to submit to a state audit, which means handing over emails, bank statements and other miscellaneous documents to the Fair Political Practices Commission. According to the commission's chair, Ann Ravel, an appointee of Democratic Gov. Jerry Brown, "it's so important for the public to know before they're voting about who the contributors are to campaigns in California."

Liberals hope the audit will expose a vast right-wing conspiracy, which with any luck is tied to the Koch brothers. The audit, however, was unlikely to be concluded until after the election since the group announced it would appeal an unfavorable ruling (and they have). Which makes Ms. Ravel's statement and the state's lawsuit perplexing.

Then again, the real purpose of the lawsuit probably isn't to expose Americans for Responsible Leadership's donors but rather to send a message to other conservative groups that their money is not welcome in the state. That, and to foment public anger at what Mr. Brown describes as a "shadowy" outside group's attempt to swing an election.

Americans for Responsible Leadership's donation is helping finance attack ads on Mr. Brown's tax initiative (Prop. 30) as well as commercials for a paycheck protection ballot measure (Prop. 32) that would bar unions and corporations from withholding money from workers' dues to fund their political spending. The lawsuit helps feed the Democrats' narrative that "shadowy" special interests are trying to subvert the democratic process.

We think Californians ought to be much more concerned about the governor's behavior. He's using the state's enforcement powers to undercut his political opponents.

from syndication via Rasmussen Reports, 2012-Oct-17, by John Stossel:

Bad Rules

We take free speech for granted in America, unlike elsewhere. The furor over that anti-Muslim video is the latest reminder of that.

But freedom of speech is never safe, even here. Many colleges now impose "civility codes." Civility is nice, but enforcing a "civility rule" against offensive speech would put an end to lots of useful provocative speech. As a University of North Carolina student put it, "A picture of Mitt Romney would offend 70 percent of residence hall students."

Taping my Fox Business Network show at UNC, I also learned that the college, to "protect" women, had dropped the word "freshman." The PC term is now "first year." UNC also decreed that no student may "implicitly" or "explicitly" ask for sex. (Then how do students get it?)

Since sexual activity on campus continues, it's clear that such rules are often ignored. But there is danger in selectively enforced rules. They let authorities punish those with unpopular ideas.

While in North Carolina, we ran across other assaults on freedom of speech. Steve Cooksey started a blog about low-carb nutrition, which included "Dear Abby"-style advice. The state told him that giving such advice without a license is illegal! Cooksey stopped, but enlisted help from the Institute for Justice, the libertarian public-interest law group. Together they sued the state for the free-speech violation. Unfortunately, a federal court dismissed the suit, saying that since the state took no formal action, Cooksey was not harmed. IJ will appeal.

My staff ran his advice by a Harvard nutritionist, who said it was reasonable. But even if it wasn't -- even if it was stupid -- people know that there's plenty of garbage on the Internet.

"Why is it against the law to tell people to avoid grains?" Cooksey asked. "To tell diabetics to reduce carbs to help them normalize their blood sugar? Why is that wrong?" It's "wrong" when politicians are eager to control everything -- even speech about food.

IJ lawyer Paul Sherman said "it would cost Steve thousands of dollars, and take years of his life, to get the dietitian license."

Not only that, it would take 900 hours of apprenticeship even after Cooksey got his degree.

"Anyone who wants to can write a book about nutrition. What the state of North Carolina has said is that you can write a book about nutrition, but if you want to give one-on-one advice to someone, that's categorically forbidden."

Sherman points out that licensing rules keep getting more intrusive: "Fifty years ago, only 5 percent of the American population needed a license from government to work in their chosen occupation. Now that number is 30 percent."

Often licensing is imposed because established businesses want to protect their incomes.

"The story that we see again and again is that the industry itself is the one who's calling for regulation," Sherman said. "It's not that the public is afraid that people like Steve are giving dietary advice. It's dietitians (who) don't want Steve competing with them."

Sherman says North Carolina is about average in terms of unnecessary regulations. It takes $120 in fees and 250 days of classes -- a total of two years -- to be able to cut hair legally. It takes three years to become a landscape contractor. Such rules are a reason unemployment stays high.

And there's no proof that the rules make us safer. "A dozen states don't have any licensure requirements for nutritionists," said Sherman. "Are people in those states more in danger than people in North Carolina?"

I supported occupational licensing when I was a young consumer reporter. But now I've wised up. Now I see that it doesn't protect consumers. Competition and reputation are better protection. When you move to a new community, do you choose new dentists or mechanics by checking their licenses? No. You ask neighbors or colleagues for recommendations, or check Consumer Reports and Angie's List. You check because you know that even with licensing laws, there is quackery.

Licensing creates a false sense of security, raises costs, stifles innovation, takes away consumer choice and interferes with the right to earn a living.

And now I see another reason to object to it. It collides with freedom of speech.

John Stossel is host of "Stossel" on the Fox Business Network. He's the author of "Give Me a Break" and of "Myth, Lies, and Downright Stupidity."

from the Associated Press, 2012-Sep-13, by Eileen Sullivan and Stephen Braun:

Feds ID California man's role in anti-Islam film

WASHINGTON — Federal authorities have identified a southern California man once convicted of financial crimes as the key figure behind the anti-Muslim film that ignited mob violence against U.S. embassies across the Mideast, a U.S. law enforcement official said Thursday.

Attorney General Eric Holder said that Justice Department officials had opened a criminal investigation into the deaths of the U.S. ambassador to Libya and three other diplomats killed during an attack on the American mission in Benghazi. It was not immediately clear whether authorities were focusing on the California filmmaker as part of that probe.

A federal law enforcement official said Thursday that Nakoula Basseley Nakoula, 55, was the man behind "Innocence of Muslims," a film denigrating Islam and the Prophet Muhammad that sparked protests earlier in the week in Egypt and Libya and now in Yemen. U.S. authorities are investigating whether the deaths of U.S. Ambassador Chris Stevens and three other Americans in Libya came during a terrorist attack.

The official, who spoke on condition of anonymity because he was not authorized to discuss an ongoing investigation, said Nakoula was connected to the persona of Sam Bacile, a figure who initially claimed to be the writer and director of the film. But Bacile quickly turned out to a false identity and the Associated Press traced a cellphone number used by Bacile to a southern California house where Nakoula was found.

Bacile initially claimed a Jewish and Israeli background. But others involved in the film said his statements were contrived as evidence mounted that the film's key player was a southern Californian Coptic Christian with a checkered past.

Nakoula told The Associated Press in an interview outside Los Angeles Wednesday that he managed logistics for the company that produced "Innocence of Muslims," which mocked Muslims and the prophet Muhammad.

Nakoula denied that he was Bacile and insisted he did not direct the film, though he said he knew Bacile. But federal court papers filed against Nakoula in a 2010 criminal prosecution said that he had used numerous aliases in the past. Among the fake names, the documents said, were Nicola Bacily, Robert Bacily and Erwin Salameh, all similar to the Sam Bacile persona. Other aliases described in the documents included Ahmad Hamdy, Kritbag Difrat and PJ Tobacco.

During a conversation outside his home, Nakoula offered his driver's license to show his identity but kept his thumb over his middle name, Basseley. Records checks by the AP subsequently found that middle name as well as other connections to the Bacile persona.

The AP located Bacile after obtaining his cellphone number from Morris Sadek, a conservative Coptic Christian in the U.S. who had promoted the anti-Muslim film in recent days on his website. Egypt's Christian Coptic populace has long decried what they describe as a history of discrimination and occasional violence from the country's Arab majority.

Pastor Terry Jones, of Gainesville, Fla., who sparked outrage in the Arab world when he burned Qurans on the ninth anniversary of 9/11, said he spoke with the movie's director on the phone Wednesday and prayed for him. Jones said he has not met the filmmaker in person but added that the man contacted him a few weeks ago about promoting the movie. Jones and others who have dealt with the filmmaker said Wednesday that Bacile was hiding his real identity.

"I have not met him. Sam Bacile, that is not his real name," Jones said. "I just talked to him on the phone. He is definitely in hiding and does not reveal his identity. He was quite honestly fairly shook up concerning the events and what is happening. A lot of people are not supporting him. He was generally a little shook up concerning this situation."

The YouTube account under the username "Sam Bacile," which was used to publish excerpts of the provocative movie in July, was used to post comments online as recently as Tuesday, including this defense of the film written in Arabic: "It is a 100 percent American movie, you cows."

Nakoula, who talked guardedly about his role, pleaded no contest in 2010 to federal bank fraud charges in California and was ordered to pay more than $790,000 in restitution. He was also sentenced to 21 months in federal prison and ordered not to use computers or the Internet for five years without approval from his probation officer.

Assistant U.S. Attorney Jennifer Leigh Williams said Nakoula set up fraudulent bank accounts using stolen identities and Social Security numbers; then, checks from those accounts would be deposited into other bogus accounts from which Nakoula would withdraw money at ATM machines.

It was "basically a check-kiting scheme," the prosecutor told the AP. "You try to get the money out of the bank before the bank realizes they are drawn from a fraudulent account. There basically is no money."

Prior to his bank fraud conviction, Nakoula struggled with a series of financial problems in recent years, according to California state tax and bankruptcy records. In June 2006, a $191,000 tax lien was filed against him in the Los Angeles County Recorder of Deeds office. In 1997, a $106,000 lien was filed against him in Orange County.

American actors and actresses who appeared in "Innocence of Muslims" issued a joint statement Wednesday saying they were misled about the project and alleged that some of their dialogue was crudely dubbed during post-production.

In the English-language version of the trailer, direct references to Muhammad appear to be the result of post-production changes to the movie. Either actors aren't seen when the name "Muhammad" is spoken in the overdubbed sound, or they appear to be mouthing something else as the name of the prophet is spoken.

"The entire cast and crew are extremely upset and feel taken advantage of by the producer," said the statement, obtained by the Los Angeles Times. "We are 100 percent not behind this film and were grossly misled about its intent and purpose. We are shocked by the drastic rewrites of the script and lies that were told to all involved. We are deeply saddened by the tragedies that have occurred."

One of the actresses, Cindy Lee Garcia, told KERO-TV in Bakersfield that the film was originally titled "Desert Warriors" and that the script did not contain offensive references to Islam.

She wants her name cleared.

"When I found out this movie had caused all this havoc, I called Sam and asked him why, what happened, why did he do this? I said, 'Why did you do this to us, to me and to us?' And he said, 'Tell the world that it wasn't you that did it, it was me, the one who wrote the script, because I'm tired of the radical Muslims running around killing everyone,'" she said.

Garcia said the director, who identified himself as Bacile, told her then that he was Egyptian.

The person who identified himself as Bacile and described himself as the film's writer and director told the AP on Tuesday that he had gone into hiding. But doubts rose about the man's identity amid a flurry of false claims about his background and role in the purported film.

Bacile told the AP he was an Israeli-born, 56-year-old Jewish writer and director. But a Christian activist involved in the film project, Steve Klein, told the AP on Wednesday that Bacile was a pseudonym and that he was Christian.

Klein had told the AP on Tuesday that the filmmaker was an Israeli Jew who was concerned for family members who live in Egypt.

Officials in Israel said there was no record of Bacile as an Israeli citizen.

When the AP initially left a message for Bacile, Klein contacted the AP from another number to confirm the interview request was legitimate; then Bacile called back from his own cellphone.

Klein said he didn't know the real name of the man he called "Sam," who came to him for advice on First Amendment issues.

About 15 key players from the Middle East — people from Syria, Iraq, Turkey, Pakistan and Iran, and a couple of Coptic Christians from Egypt — worked on the film, Klein said.

"Most of them won't tell me their real names because they're terrified," Klein said. "He was really scared and now he's so nervous. He's turned off his phone."

An official of the Coptic Orthodox Church in Los Angeles said in a statement Thursday that the church's adherents had no involvement in the "inflammatory movie about the prophet of Islam." An official identified as HG Bishop Serapion, of the Coptic Orthodox of Los Angeles, said that "the producers of this movie should be responsible for their actions. The name of our blessed parishioners should not be associated with the efforts of individuals who have ulterior motives."

The Southern Poverty Law Center, which monitors hate groups, said Klein is a former Marine and longtime religious-right activist who has helped train paramilitary militias at a California church. It described Klein as founder of Courageous Christians United, which conducts protests outside abortion clinics, Mormon temples and mosques.

It quoted Klein as saying he believes that California is riddled with Muslim Brotherhood sleeper cells "who are awaiting the trigger date and will begin randomly killing as many of us as they can."

In his brief interview with the AP, the man identifying himself as Bacile called Islam a cancer and said he intended the film to be a provocative political statement condemning the religion.

But several key facts Bacile provided proved false or questionable. Bacile told the AP he was 56 but identified himself on his YouTube profile as 74. Bacile said he is a real estate developer, but Bacile does not appear in searches of California state licenses, including the Department of Real Estate.

Hollywood and California film industry groups and permit agencies said they had no records of the project under the name "Innocence of Muslims," but a Los Angeles film permit agency later found a record of a movie filmed in Los Angeles last year under the working title "Desert Warriors."

A man who answered a phone listed for the Vine Theater, a faded Hollywood movie house, confirmed that the film had run for a least a day, and possibly longer, several months ago, arranged by a customer known as "Sam."

Google Inc., which owns YouTube, pulled down the video Wednesday in Egypt, citing a legal complaint. It was still accessible in the U.S. and other countries.

Klein told the AP he vowed to help make the movie but warned the filmmaker that "you're going to be the next Theo van Gogh." Van Gogh was a Dutch filmmaker killed by a Muslim extremist in 2004 after making a film that was perceived as insulting to Islam.

"We went into this knowing this was probably going to happen," Klein said.

Braun and Sullivan reported from Washington. Associated Press writers Gillian Flaccus, Shaya Tayefe Mohajer and Michael Blood in Los Angeles, Tamara Lush in Tampa, Fla., and AP researcher Rhonda Shafner in New York contributed to this report.

from USA Today via JonathanTurley.org, 2009-Oct-19, by Jonathan Turley:

Just Say No To Blasphemy: U.S. Supports Egypt in Limiting Anti-Religious Speech

Here is today's column in USA Today on the Obama Administration's decision to join the U.N. Human Rights Council and support Egypt in recognizing limits on free speech for those who insult or denigrate religion. While the exception was included in a resolution heralding free speech, it was viewed as a major victory for Muslim countries seeking to establish an international blasphemy law.

Around the world, free speech is being sacrificed on the altar of religion. Whether defined as hate speech, discrimination or simple blasphemy, governments are declaring unlimited free speech as the enemy of freedom of religion. This growing movement has reached the United Nations, where religiously conservative countries received a boost in their campaign to pass an international blasphemy law. It came from the most unlikely of places: the United States.

While attracting surprisingly little attention, the Obama administration supported the effort of largely Muslim nations in the U.N. Human Rights Council to recognize exceptions to free speech for any “negative racial and religious stereotyping.” The exception was made as part of a resolution supporting free speech that passed this month, but it is the exception, not the rule that worries civil libertarians. Though the resolution was passed unanimously, European and developing countries made it clear that they remain at odds on the issue of protecting religions from criticism. It is viewed as a transparent bid to appeal to the “Muslim street” and our Arab allies, with the administration seeking greater coexistence through the curtailment of objectionable speech. Though it has no direct enforcement (and is weaker than earlier versions), it is still viewed as a victory for those who sought to juxtapose and balance the rights of speech and religion.

A `misused' freedom?

In the resolution, the administration aligned itself with Egypt, which has long been criticized for prosecuting artists, activists and journalists for insulting Islam. For example, Egypt recently banned a journal that published respected poet Helmi Salem merely because one of his poems compared God to a villager who feeds ducks and milks cows. The Egyptian ambassador to the U.N., Hisham Badr, wasted no time in heralding the new consensus with the U.S. that “freedom of expression has been sometimes misused” and showing that the “true nature of this right” must yield government limitations.

His U.S. counterpart, Douglas Griffiths, heralded “this joint project with Egypt” and supported the resolution to achieve “tolerance and the dignity of all human beings.” While not expressly endorsing blasphemy prosecutions, the administration departed from other Western allies in supporting efforts to balance free speech against the protecting of religious groups.

Thinly disguised blasphemy laws are often defended as necessary to protect the ideals of tolerance and pluralism. They ignore the fact that the laws achieve tolerance through the ultimate act of intolerance: criminalizing the ability of some individuals to denounce sacred or sensitive values. We do not need free speech to protect popular thoughts or popular people. It is designed to protect those who challenge the majority and its institutions. Criticism of religion is the very measure of the guarantee of free speech — the literal sacred institution of society.

Blasphemy prosecutions in the West appear to have increased after the riots by Muslims following the publication of cartoons disrespecting prophet Mohammed in Denmark in 2005. Rioters killed Christians, burned churches and called for the execution of the cartoonists. While Western countries publicly defended free speech, some quietly moved to deter those who'd cause further controversies through unpopular speech.

In Britain, it is a crime to “abuse” or “threaten” a religion under the Racial and Religious Hatred Act 2006. A 15-year-old boy was charged last year for holding up a sign outside a Scientology building declaring, “Scientology is not a religion, it is a dangerous cult. “In France, famed actress Brigitte Bardot was convicted for saying in 2006 that Muslims were ruining France in a letter to then-Interior Minister (and now President) Nicolas Sarkozy. This year, Ireland joined this self-destructive trend with a blasphemy law that calls for the prosecution of anyone who writes or utters views deemed “grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion; and he or she intends, by the publication of the matter concerned, to cause such outrage.”

`Blasphemy' incidents

Consider just a few such Western “blasphemy” cases in the past two years:

• In Holland, Dutch prosecutors arrested cartoonist Gregorius Nekschot for insulting Christians and Muslims with cartoons, including one that caricatured a Christian fundamentalist and a Muslim fundamentalist as zombies who want to marry and attend gay rallies.

• In Canada, the Alberta human rights commission punished the Rev. Stephen Boission and the Concerned Christian Coalition for anti-gay speech, not only awarding damages but also censuring future speech that the commission deems inappropriate.

• In Italy, comedian Sabina Guzzanti was put under criminal investigation for joking at a rally that “in 20 years, the pope will be where he ought to be — in hell, tormented by great big poofter (gay) devils, and very active ones.”

• In London, an aide to British Foreign Secretary David Miliband was arrested for “inciting religious hatred” at his gym by shouting obscenities about Jews while watching news reports of Israel's bombardment of Gaza.Also, Dutch politician Geert Wilders was barred from entering Britain as a “threat to public policy, public security or public health” because he made a movie describing the Quran as a “fascist” book and Islam as a violent religion.

• In Poland, Catholic magazine Gosc Niedzielny was fined $11,000 for inciting “contempt, hostility and malice”by comparing the abortion of a woman to the medical experiments at Auschwitz.

The “blasphemy” cases include the prosecution of writers for calling Mohammed a “pedophile” because of his marriage to 6-year-old Aisha (which was consummated when she was 9). A far-right legislator in Austria, a publisher in India and a city councilman in Finland have been prosecuted for repeating this view of the historical record.

In the flipside of the cartoon controversy, Dutch prosecutors this year have brought charges against the Arab European League for a cartoon questioning the Holocaust.

What's next?

Private companies and institutions are following suit in what could be seen as responding to the Egyptian-U.S. call for greater “responsibility” in controlling speech. For example, in an act of unprecedented cowardice and self-censorship, Yale University Press published The Cartoons That Shook the World, a book by Jytte Klausen on the original Mohammed cartoons. Yale, however, (over Klausen's objections) cut the actual pictures of the cartoons. It was akin to publishing a book on the Sistine Chapel while barring any images of the paintings.

The public and private curtailment on religious criticism threatens religious and secular speakers alike. However, the fear is that, when speech becomes sacrilegious, only the religious will have true free speech. It is a danger that has become all the more real after the decision of the Obama administration to join in the effort to craft a new faith-based speech standard. It is now up to Congress and the public to be heard before the world leaves free speech with little more than a hope and a prayer.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY's board of contributors.

from ZDNet UK, 2012-Feb-29, by Ben Woods:

Schmidt: UN treaty a 'disaster' for the internet

Internet freedom and innovation are at risk of being stifled by a new United Nations treaty that aims to bring in more regulation, Google's executive chairman Eric Schmidt has warned.

At Mobile World Congress, Google's Eric Schmidt has warned against a new UN treaty that could bring in more internet regulation. Image credit: Stephen Shankland/CNET News

In a question-and-answer session at Mobile World Congress 2012 on Tuesday, Schmidt said handing over control of things such as naming and DNS to the UN's International Telecommunications Union (ITU) would divide the internet, allowing it to be further broken into pieces regulated in different ways.

"That would be a disaster... To some, the openness and interoperability is one of the greatest achievements of mankind in our lifetime. Do not give that up easily. You will regret it. You will hate it, because all of a sudden all that freedom, all that flexibility, you'll find it shipped away for one good reason after another," Schmidt said.

"I cannot be more emphatic. Be very, very careful about moves which seem logical, but have the effect of balkanising the internet," he added, urging everyone to strongly resist the moves.

International governance of the internet

The ITU, which is part of the United Nations, this week began discussing changes to a 1988 treaty that would bring in international governance of the internet. At the moment, web businesses, technology providers, user groups, engineering groups and others collaborate without such oversight to keep the internet running.

The new proposals, thought to be backed by Russia and China, would extend regulation into areas such as cybersecurity and give the ITU dominance over such "ground up" organisations as ICANN, according to US Federal Communications Commissioner Robert McDowell. The proposals will go to a vote by the 193 members of the ITU at a meeting in Dubai in November, after which they could become part of international law.

Google, which has crossed swords with regulators in the EU and elsewhere, has been campaigning against more internet regulation for years. Vint Cerf, chief internet evangelist at the web giant, highlighted an online petition against such moves in a blog post in December 2010.

"There's a lot of concern among the internet community about the transfer of control of the internet to the ITU," Schmidt said at MWC in Barcelona. "The ITU is a magnificent organisation and has done a great job in telecommunications... but the principles of the way that the web has worked are different."

"If the current governance is working pretty well — and I think it is — I wouldn't move it [control of the internet] or if I did I would do it very, very carefully," he added.

Role of regulators

Schmidt acknowledged regulators have a role to play. However, he advised decision makers to consider the future when settling on how to govern the internet over things such as privacy.

"There's a tendency of regulators to regulate what is happening now as opposed to what will be," he said. "If you have to regulate, try to do it for an outcome, not the technology. If there is an outcome you don't like, don't specify in law a specific type of solution, because the technology moves forward."

In addition, regulators should explain more fully the true outcomes of their decisions, he urged.

"The unintended cost of regulation is often the loss of innovation," Schmidt said. "There's a winner and a loser in these regulatory battles... You have to be very careful to frame that correctly, so people understand what they are losing as well as what they are gaining."

from the Sun of Kuala Lumpur Malaysia, 2012-May-21, by Michelle Chun:

Internet users cry foul over amendment to Evidence Act

PETALING JAYA (May 20, 2012): The recently passed Evidence (Amendment) (No 2) Act 2012, whereby internet users are held liable for any content posted through their registered networks or data processing device, is both unfair and an attempt to put fear in people, says civil society.

The amended law will have serious repercussions on internet use as the owner of the site or device is presumed guilty and has to fight to prove his innocence, they say.

What this means is, if an anonymous person posts content said to be offensive on your Facebook wall, or if someone piggybacks your WiFi account and uploads a controversial document, you will be immediately deemed the publisher of the content and subject to prosecution under the relevant laws such as the Sedition Act.

Not only that, if a person starts a blog in your name and publishes content that is red-flagged, you will be considered the publisher unless you can prove otherwise.

All of this is provided for through the insertion of Section 114A into the Act which was recently bulldozed through both houses of Parliament in its last meeting with no debate.

Section 114A, which explains presumption of fact in publication, states:

– a person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.

– a person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.

– Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved. (Computer here means any data processing device, including tablets, laptops and mobile phones.)

Kuala Lumpur Bar Information Technology Committee co-chairman Foong Cheng Leong told theSun these amendments would put fear in people.

“We shouldn't even be discussing this law because it is based on the idea that one is presumed being guilty until proven innocent.

“Why does the owner of a site, or Facebook account, have to take the rap and prove his innocence while being subject to investigation and seizure of property?” he asked.

Minister in the Prime Minister's Department Datuk Seri Nazri Abdul Aziz, while winding up the Bill in Parliament on April 18, had said the use of pseudonyms and anonymity by any party to commit cyber crimes made it difficult for action to be taken against them.

Hence, he said the Evidence Act 1950 had to be amended to address the issue of internet anonymity.

However, Internet Society Malaysian Chapter chairman Julian Vincent told theSun such amendments could be open to abuse by the investigators and force an innocent party to rebut the presumption of guilt at serious risk of wrongful prosecution and injustice.

“In the internet environment where the websites even of the largest organisations are susceptible to hacking and manipulation, it is dangerous to have this presumption in place.

“The society expresses its hope that the cabinet will revise the current text and work to address privacy considerations and protect citizens' rights and civil liberties in any future cyber security legislation,” he said.

Centre for Independent Journalism executive officer Masjaliza Hamzah said the amendments were a definite threat to freedom of expression and media freedom.

“The amendments are clearly an indirect way to control online content as it makes online sites responsible for comments posted by readers; forget about disclaimers on the comment section.

“This may force some sites to stop the comment feature because having to vet comments themselves may become untenable, and if this happens, it has a huge impact on the interactive nature of online media favoured by readers,” she said when contacted.

A blogger known as Obefiend added such amendments would make it difficult for people to prove their innocence because everything is hackable when dealing with the online world.

“There always is ambiguous evidence when dealing with electronic presence, which makes proving you are indeed not the publisher very tough,” said the blogger, who writes on Blog Serius.

“It's very scary and distressing to know that if somebody uses my name, I am automatically presumed guilty and have to prove my innocence,” he said.

from the Wall Street Journal's Political Diary, 2012-Jun-21, by Danielle Charette:

Worst Proposal of the Year?

Liberals are importuning the Supreme Court this week to use a Montana campaign finance case to overturn 2010's Citizens United decision. That's unlikely to happen. But any justices tempted to recant on protecting speech ought to ponder a new proposal that would overturn the First Amendment.

Introduced this week by Democratic Rep. Adam Schiff of California, and drafted by Harvard law professor Laurence Tribe, the amendment overturns Citizens and a slew of other legal precedents. Among them is Buckley v. Valeo, the 1976 case that upheld limits on campaign contributions but said that political spending by individuals is constitutionally protected speech. So much for stare decisis.

So much, too, for the Democratic claims that the problem is corporate spending on politics in the wake of Citizens. For the likes of Mr. Schiff, the problem is the existence of political speech itself, unmediated by the government. "Nothing in this Constitution shall be construed to forbid Congress or the states from imposing content-neutral limitations on private campaign contributions or independent political campaign expenditures," his amendment reads.

In other words, under the Schiff-Tribe amendment, anything political that involves the exchange of money—i.e., everything—would be open to regulation. That's everything from a TV ad to educate the public to a leaflet with a postage stamp. It's newspapers, books, the Internet and much else, too, since there's no exemption for the press.

Naturally Mr. Schiff's amendment has no chance of passage, but it does illustrate the glories of modern liberalism.

from the Wall Street Journal, 2012-Jun-17, by L. Gordon Crovitz:

Crovitz: The U.N.'s Internet Power Grab
Leaked documents show a real threat to the international flow of information.

It's easy to understand why countries like Russia, China and Iran would want to rewire the Internet, cutting off access to their citizens and undermining the idea of a World Wide Web. What's more surprising is that U.S. diplomats are letting authoritarian regimes hijack an obscure U.N. agency to undermine how the Internet works, including for Americans.

The failure by U.S. negotiators to stop attacks on the Internet became known only through documents leaked last week. They concern a U.N. agency known as the International Telecommunications Union. Founded in 1865 to regulate the telegraph, the body (now part of the U.N.) is planning a World Conference on International Telecommunications in December, when the 193 U.N. member countries, each of which has a single vote, could use the International Telecommunications Regulations to take control of the Internet. The U.N. process is mind-numbing, but as Vincent Cerf, one of the founders of the Web, recently told Congress, this U.N. involvement means "the open Internet has never been at a higher risk than it is now."

The process is secret, so it was hard to know what authoritarian governments were plotting or how the U.S. was responding. This column last month detailed some of the proposals, but other commentators doubted that any changes would be material.

Disclosure came when two academics decided to use the openness of the Web to help save the Web. George Mason University researchers Jerry Brito and Eli Dourado earlier this month created a site called WCITLeaks.org. They invited anyone with access to the documents describing the U.N. proposals to post them, so as "to foster greater transparency." These documents are not classified but had not been made public.

The WCITLeaks site hit pay dirt this past Friday. Someone leaked the 212-page planning document being used by governments to prepare for the December conference. Mr. Dourado summarized: "These proposals show that many ITU member states want to use international agreements to regulate the Internet by crowding out bottom-up institutions, imposing charges for international communication, and controlling the content that consumers can access online."

The broadest proposal in the draft materials is an initiative by China to give countries authority over "the information and communication infrastructure within their state" and require that online companies "operating in their territory" use the Internet "in a rational way"—in short, to legitimize full government control. The Internet Society, which represents the engineers around the world who keep the Internet functioning, says this proposal "would require member states to take on a very active and inappropriate role in patrolling" the Internet.

Several proposals would give the U.N. power to regulate online content for the first time, under the guise of protecting against computer malware or spam. Russia and some Arab countries want to be able to inspect private communications such as email. Russia and Iran propose new rules to measure Internet traffic along national borders and bill the originator of the traffic, as with international phone calls. That would result in new fees to local governments and less access to traffic from U.S. "originating" companies such as Google, Facebook and Apple. A similar idea has the support of European telecommunications companies, even though the Internet's global packet switching makes national tolls an anachronistic idea.

Another proposal would give the U.N. authority over allocating Internet addresses. It would replace Icann, the self-regulating body that helped ensure the stability of the Internet, under a contract from the U.S. Commerce Department.

According to notes in the leaked document, the U.S. delegation filed some objections here and there—but politely. The U.S. calls the broad Chinese proposal on regulating the Internet "both unnecessary and beyond the appropriate scope" of U.N. regulation. "The U.S. looks forward to a further explanation from China with regard to the proposed amendments, and we note that we may have further reaction at that time." Notes in the negotiating document say the U.S. delegation also objects to proposals in which "the text suggests that the ITU has a role in content-related issues. We do not believe it does."

These are weak responses even by Obama administration standards. Ever since the pre-Internet era of the 1970s, authoritarian regimes have sought to use the U.N. to establish an "information world order" based on government control, not open flows of information. The U.S. learned during the Cold War that the only way to stop U.N. meddling is to wield a big stick. Washington had to leave Unesco when it played the kind of dangerous game the ITU has now chosen.

It may be hard for the billions of Web users or the optimists of Silicon Valley to believe that an obscure agency of the U.N. can threaten their Internet, but authoritarian regimes are busy lobbying a majority of the U.N. members to vote their way. The leaked documents disclose a U.S. side that has hardly begun to fight back. That's no way to win this war.

from GigaOM.com, 2012-Jun-11, by Bobbie Johnson:

Crazy: Orange censors all blogs, not just GigaOM

Every day millions of British mobile users hit a dead end on their phones, coming across web pages that they are blocked from reading. But it’s not because the sites they’re trying to access are illegal: it’s because they’ve fallen foul of child protection filters.

These filters are used by all of the country’s mobile operators, are generally turned on by default, get removed by a minority of people, and are largely unregulated. All of this has meant that as mobile consumption has boomed, the networks have become the de facto censors of the web in the U.K..

The most important thing to know about these mobile filters, though, is this: they are terrible at their job.

Over the years, many websites have found themselves the victim of a phenomenon known as “overblocking”, where the filters seem to arbitrarily censor them from millions of subscribers. The facts were documented in a recent report that outlined the problem: in their zeal to protect children, operators are screening vast amounts of legitimate content from users.

This may sound like a storm in a teacup (who doesn’t want to look out for kids?) but for many website owners, being hit by an overblock can be more than just irritating: it can be potentially threatening to your business.

Over the last month or so, I’ve been documenting the process we’ve been going through after we discovered that Orange — one of Britain’s biggest mobile operators — was overblocking GigaOM and preventing mobile readers from accessing our site. We did manage to get the block lifted, but what became even more frustrating than the overblock itself was trying to understand why it had happened.

But now, it turns out, we may have an actual answer — and it’s proof positive of the totally ludicrous, crude nature of the filtering that goes on.

Here’s the bottom line: Orange’s child protection filter, Safeguard, simply prevents people from reading anything that looks like a blog.

I’m serious.

The company sent me an official statement explaining their position (my emphasis):

“We would urge websites who feel they have been incorrectly categorised, or those who would like to register a complaint, to use the feedback tool provided on the Orange Safeguard landing page users are presented with when a site is blocked. We will aim to investigate and rectify any problems as quickly as possible.”

“GigaOM was blocked by our third party monitoring system as it was categorised incorrectly as a blog, (and at the moment Safeguard blocks blogs, but it will not block them all when the new Child Safety Safeguard goes live later in the year with a new Light setting) and not a professional tech news site, due to the usage of the word `blog' on the site. This has now been rectified. We would like to sincerely apologise again for any inconvenience caused.”

So, essentially, Safeguard divides the web into categories of content. Some of it is OK: things like news services or big, well-known websites. Meanwhile, pretty much any site that’s categorized as containing user-generated content gets filtered by default — and that includes blogs, forums, chat sites and many more. That’s it.

It’s got nothing to do with what’s on the sites themselves, just what category they fall into. Categorized as a blog, GigaOM was unsafe. Categorized as a news site, it’s available for the whole family to read. Nothing to do with analyzing text, pictures, links or even user feedback.

This is crazy not just because legitimate websites can contain all sorts of murky material that you wouldn’t want your kids to see, while blogs and other sorts of user-generated content can be totally family-friendly. It’s crazy because a blogging platform like WordPress is so vast that it’s now responsible for powering one in eight sites on the web — meaning that, effectively, Orange is making a huge chunk of the web go dark for mobile users and nobody’s doing anything about it.

So there you have it, the real reason Orange blocked GigaOM: because they can’t be bothered to try harder.

from CNN, 2012-Jun-18, by John D. Sutter:

Google reports 'alarming' rise in government censorship requests

Western governments, including the United States, appear to be stepping up efforts to censor Internet search results and YouTube videos, according to a "transparency report" released by Google.

"It's alarming not only because free expression is at risk, but because some of these requests come from countries you might not suspect -- Western democracies not typically associated with censorship," Dorothy Chou, a senior policy analyst at Google, wrote in a blog post on Sunday night.

"For example, in the second half of last year, Spanish regulators asked us to remove 270 search results that linked to blogs and articles in newspapers referencing individuals and public figures, including mayors and public prosecutors. In Poland, we received a request from a public institution to remove links to a site that criticized it. We didn't comply with either of these requests."

In the last half of 2011, U.S. agencies asked Google to remove 6,192 individual pieces of content from its search results, blog posts or archives of online videos, according to the report. That's up 718% compared with the 757 such items that U.S. agencies asked Google to remove in the six months prior.

Overall, Google received 187 requests from United States law enforcement agencies and courts to remove content from its Web properties from July to December, up 103% from the 92 requests the Mountain View, California, company received in the previous reporting period.

In one incident cited in the report, a U.S. law enforcement agency asked Google to take down a blog that "allegedly defamed a law enforcement official in a personal capacity." The company did not comply with that request.

In another, a separate law enforcement group asked Google to take down 1,400 YouTube videos (Google owns YouTube) because of "alleged harassment."

And in Canada, the passport office asked Google to delete a YouTube video "of a Canadian citizen urinating on his passport and flushing it down the toilet," according to the report.

The tech company did not oblige either of those requests but did comply at least in part with 42% of the removal requests from the United States in the last half of 2011, the report says. That number is down considerably compared to previous reports; In the latter half of 2010, for example, Google said it complied with 87% of U.S. requests to remove content.

The biannual transparency report, which includes data to July 2009, also indicates a rise in world governments' requests to take a look at the data Google collects about its users. And with those requests, Google tended to be much more likely to comply.

In the last half of 2011, Google received 6,321 requests for user data from government agencies in the United States and complied at least in part with 93% of them, according to data released in the report.

Those requests for information about Google users come as part of criminal investigations, Google says, and are not unique to the company.

Google complied more frequently with U.S.-based requests for information about users than with requests from other countries, according to the report. It complied or partially complied with only 24% of such requests from Canada, 44% from France and 64% from the United Kingdom, for example.

The number of user data requests Google received from the United States was up 6% over the previous six-month period and 37% compared with the last half of 2010.

Google says this increase "isn't surprising, since each year we offer more products and services, and we have a larger number of users." In the report, the company adds: "We review each request to make sure that it complies with both the spirit and the letter of the law, and we may refuse to produce information or try to narrow the request in some cases."

Writing at Forbes.com, tech columnist Andy Greenberg says that Google "should be applauded for taking a strong stand against censorship" but that "the government's increasingly sticky fingers in Google's databases comes at a sensitive time."

"Google has been criticized for failing to reveal much about its reported partnership with the National Security Agency following a Chinese attack on its systems in 2010," he writes. "And the company has yet to take a stand on the House's recently-passed Cyber Infrastructure Security and Protection Act or its equivalents in the Senate, which are designed to give companies far more leeway to hand data over to government agencies for security purposes."

At Politico, blogger Dylan Byers says the report "will certainly challenge any notions you might have about a free and unregulated Web."

Google says it hopes the data will offer a "small window into what's happening on the Web at large."

from PC Magazine, 2012-Jun-18, by Fahmida Y. Rashid:

India Demands Google Censor Objectionable Content

Google released its latest Transparency Report, which provides insight into the types of data governments around the world have asked the company to scrub from the Internet. The latest report covers the last six months of 2011.

As PCMag.com reported earlier today, Google received 6,321 government requests for disclosure of user data in the U.S., and Google partially or completely complied with 93 percent of those demands in the last six months of 2011. That was up from 5,950 requests in the first half of the year, according to the Google Transparency Report.

"We do hope that by being transparent about these government requests, we can continue to contribute to the public debate about how government behaviors are shaping our Web," Dorothy Chou, the company's senior policy analyst, wrote on the Official Google Blog.

What's Up With India?
India had the largest number of government takedown requests (that weren't court orders) during the reporting period. This is likely related to the ongoing legal wrangle between the search giant and India as part of that country's drive to clean up its cyberspace. Last year, the Indian government accused Google (and Facebook) of failing to failing to block "inappropriate" content in the country.

"The number of content removal requests we received increased by 49% compared to the previous reporting period," Google said, regarding India.

In response, Google decided to restrict users from viewing some videos in areas where local laws banned speech that could stir up “enmity between communities,” but left them viewable elsewhere in the world. It also rejected a request to remove online profiles that criticized a local politician.

In April 2011, India created new rules requiring Internet companies to remove objectionable content when requested. As a result, Google is in the midst of a trial in Indian courts for allegedly hosting content that "seeks to create enmity, hatred, and communal violence," and not removing said objectionable content when notified, according to the criminal complaint. The Delhi High Court will hold a hearing to decide whether or not to dismiss the complaint in August.

There were several other instances where Google chose to restrict access instead of complete removal. For example, Germany requested the company remove 70 YouTube videos for allegedly violating the German Children and Young Persons Act, which attempts to protect minors from "bad influences," such as violence and pornography. Instead of removing the allegedly offending videos, the company "restricted some of the videos from view in Germany in accordance with local laws," according to the report. Google also decided to go this route for 70 percent of the YouTube clips Thailand's Ministry of Information, Communication and Technology claimed insulted the country's monarchy.  

Restricting Political Speech
Governments are increasingly demanding political speech to be removed. Spanish regulators asked Google to take down 270 search results that linked to blogs and articles that discussed public figures. A public institution in Poland wanted links to a site criticizing the organization to be removed. Google denied these requests.

On the other hand, Google complied with requests from UK law enforcement to remove 640 videos posted by five YouTube users on the grounds that they promoted terrorism and violated user terms and conditions.

"[J]ust like every other time before, we’ve been asked to take down political speech," Chou wrote. She noted that many of the requests were from "Western democracies not typically associated with censorship" and called the trend "alarming."

During the latest reporting period, the company received 187 requests from the United States to remove offending content, of which 117 were court orders. The company fully, or partially, complied with 40 percent of court orders, but complied with 70 percent of other requests, such as ones from law enforcement and other government agencies.

from CNET News.com, 2012-Jun-8, by Declan McCullagh:

European telcoms defend leaked proposal for U.N. Internet tax

Requiring content providers to pay based on usage is an "innovative" change to the way the Internet currently works and will create a more "fair" environment, European telecommunications companies claim.

European network providers that want the United Nations to consider a new Internet tax targeting Google, Facebook, Apple, and Netflix today defended their proposal, which was leaked earlier this week.

The idea of requiring content providers to pay fees based on usage is an "innovative" change to the way the Internet currently works and will create a more "fair" environment "where operators' revenues will not be disconnected from the investment needs made necessary by the rapid growth of Internet traffic," the providers said in a statement (PDF).

Last night, CNET reported that the European Telecommunications Network Operators Association, or ETNO, a Brussels-based lobby group representing companies in 35 nations, proposed the idea for debate at a December meeting of a U.N. agency called the International Telecommunication Union. ETNO's members, which unanimously approved the idea, include Deutsche Telekom, France Telecom, Telecom Italia, Swisscom, and Spain's Telefonica.

While this is the first time this proposal been advanced, European network providers and phone companies have complained bitterly about U.S. content providers for some time. France Telecom, Telecom Italia, and Vodafone Group want to "require content providers like Apple and Google to pay fees linked to usage," Bloomberg reported last December.

ETNO refers to it as the "principle of sending party network pays" -- an idea borrowed from the system set up to handle payments for international phone calls, where the recipient's network set the per-minute price. If its proposal is adopted, it would spell an end to the Internet's long-standing, successful design based on unmetered "peered" traffic, and effectively tax content providers to reach non-U.S. Internet users.

Today's statement from ETNO says: "It will be possible to establish new interconnection policies based on the 'value' of the traffic (not only on the 'volume'), enabling new business models and implementing an ecosystem where operators' revenues will not be disconnected from the investment needs made necessary by the rapid growth of Internet traffic." It suggests that "operating agencies shall negotiate commercial agreements to achieve a sustainable system of fair compensation for telecommunications services."

The leaked documents (No. 1 No. 2) were posted by the Web site WCITLeaks, which was created by two policy analysts at the free-market Mercatus Center at George Mason University in Arlington, Va, who stress their Wikileaks-esque project is being done in their spare time. The name, WCITLeaks, is a reference to the ITU's December summit in Dubai, the World Conference on International Telecommunications, or WCIT.

In a rare show of bipartisan unity during an election year, both the Obama administration and Republican members of Congress warned last week that secret negotiations at the ITU over an international communications treaty could result in a radical re-engineering of the Internet ecosystem and allow governments to monitor or restrict their citizens' online activities.

from The Washington Post, 3023-May-30, by Cecilia Kang:

U.S. tech companies warn of threat to Internet from foreign governments

U.S. officials and high-tech business giants have launched an assault against what they view as a massive threat to the Internet and to Silicon Valley's bottom lines: foreign governments.

In a congressional hearing Thursday, they will warn lawmakers of a growing movement led by China, Russia and some Arab states to hand more control of the Web to the United Nations and place rules on the Internet that the U.S. companies say would empower governments to clamp down on civil rights and free speech.

That could mean the Web might look drastically different in other countries than it does in the United States, opponents of the proposals say. An Internet user in Uzbekistan could be more easily tracked by government officials and might get access to only a portion of the Google search results seen in the United States, for example.

In a rare coordinated effort to knock down the proposals, Google, Microsoft, Verizon and Cisco also warn of financial risks to their businesses if new rules are adopted. They say some nations may push forlaws on Internet firms that could lead to tariffs on Internet service providers such as Verizon, or even Web firms such as Facebook that enable people to communicate over the Internet.

“The threats are real and not imagined, although they admittedly sound like works of fiction at times,” said Robert McDowell, a Republican member of the Federal Communications Commission.

The U.S. companies' protests come ahead of a key December meeting in Dubai, where United Nations members will reconsider a 1988 communications treaty. Several foreign governments have argued that the treaty needs to be updated, given the growing influence of Internet communications.

The number of Web users is expected to grow from 2.3 billion today to 3.4 billion in four years, according to a new report by Cisco. Facebook and Twitter proved to be vital for revolutionaries during the Arab Spring protests last year. And in many developing countries, the only outlet to the outside world is what people read online.

“So much has changed since the 1988 revisions, so the global policy and regulatory framework needs to be updated,” Hamadoun Toure, secretary general of the International Telecommunications Union, the U.N.'s telecom authority, said in a speech this month.

Many nations want more say over the shape of the Web. The Internet has been heavily influenced by U.S. firms and American academics who set the standards, they argue. China, in particular, has been critical of the United States' efforts to encourage open Web policies around the world.

The ITU has criticized the U.S. outcry against the proposals by foreign governments. “We are baffled. There is so much misinformation on this,” said Alexander Ntoko, head of corporate strategy for the ITU. He said the Americans are exaggerating how much the U.N. could shape the Web.

Still, U.S. officials have become alarmed at the language foreign leaders are using when they discuss what to do with the Internet.

Russian President Vladimir Putin, for instance, said last year he supported the idea of “international control over the Internet using the monitoring and supervisory capabilities” of the ITU.

Last September, Russia, China, Tajikistan and Uzbekistan wrote a letter to the U.N. General Assembly that called for an “international code of conduct” that would establish “norms and rules guiding the behaviour” of countries overseeing the Web.

In February, several Arab nations proposed that countries should be able to “take measures to ensure that fair compensation is received” for the flow of Internet traffic. Currently, no rules are in place for delivering Internet traffic globally. Telephone companies, in contrast, are required to pay fees to firms in foreign countries for international calls.

“Once upon a time, many countries in the developing world received billions of dollars in hard currencies for terminating telephone calls,” said David Gross, the former State Department coordinator of international communications policy now representing a coalition including AT&T, Cisco, Comcast, Google and Microsoft. “That money has disappeared.”

Russia has suggested cutting off access to the Internet for users who threaten network security. Arab nations have called for privacy protections for users, except for the purposes of law enforcement officials. “Such proposals raise the prospect of policies that enable government controls but greatly diminish the `permissionless innovation' that underlies extraordinary Internet-based economic growth, to say nothing of trampling human rights,” said Vint Cerf, Google vice president and “chief internet evangelist.”

from the Washington Post, 2011-Mar-1, by Ian Shapira:

Obama administration joins critics of U.S. nonprofit group that oversees Internet

The California nonprofit organization that operates the Internet's levers has always been a target for such global heavies as Russia and China that prefer the United Nations to be in charge of the Web. But these days, the Internet Corporation for Assigned Names and Numbers is fending off attacks from a seemingly unlikely source: the Obama administration.

Concerned about the growing movement to cede oversight to the U.N., the U.S. government, which helped create ICANN in 1998, has been reprimanding the nonprofit group to give foreign nations more say over the Web's operations.

The battle has come at a sensitive time for ICANN, which this month is meeting with foreign governments as it pulls off the biggest expansion ever of Web suffixes - including .gay, .muslim and .nazi. Also this fall, the nonprofit organization is seeking to hold on to its federal contract to oversee the Web's master database of addresses - a sweeping power that governments fear could be used to shut down foreign domains that the United States finds unsavory.

"There's a deeper question of how the world is reacting to a small company - even a nonprofit - completely in charge of a key part of the Internet. Is that acceptable? There's no 100 percent comfortable solution here," said Steve Crocker, ICANN's vice chairman, who lives in Bethesda and is the chief executive of Shinkuro, a technology company.

With some Middle East countries shutting down the Internet within their borders to curb uprisings, the question of who runs the Web is increasingly figuring into global foreign policy debates. Some fear that governments such as those of Libya or Iran could more easily crush rebellions if they gained more control over the Internet's inner workings.

ICANN quietly wields vast influence over the Web, a power unfamiliar to many Americans and elected officials. Based in an off-campus University of Southern California building, the company has more than 100 employees and is led by a chief executive and a board of directors comprised of private sector executives and technology experts. ICANN's core function: Decide which Web addresses get seen on the Internet.

In Washington, ICANN remains somewhat mysterious to elected officials, according to Nao Matsukata, a senior policy adviser to the Coalition Against Domain Name Abuse, a grass-roots organization in Washington. Matsukata's main problem, he said, is trying to explain what ICANN is to people on Capitol Hill. His group has met with more than 50 members of Congress.

"Sometimes, when we're in meetings on the Hill, they're just nodding their heads," said Matsukata, a former trade official in the George W. Bush administration. "Very few people understand where all these decisions are coming from and that this is something that impacts us every day of our lives. Someone is determining what is allowed, what is not allowed, and someone is profiting from these things."

The tiny nonprofit group can be especially provocative for a trade press that covers its every move, and for a rival U.N. agency, the International Telecommunications Union. When the ITU, a 145-year-old agency of nearly 200 nations and territories, held its annual meeting in October in Mexico, a Syrian emissary representing Arab states raged against ICANN as if it were an enemy nation.

"Do not surrender to the ICANN!" Nabil Kisrawi yelled during one of the conference's sessions, according to a story in the Register, an online publication on Internet governance. "There is even a representative of the ICANN in this room!" Kisrawi said. (Kisrawi recently died.)

Other nations have been mobilizing against ICANN. China, which monitors dissident activity on the Web, has been leading a campaign among dozens of developing nations to lobby the U.N. for oversight over ICANN, according to former and current ICANN officials. And a coalition of former Soviet states led by a Russian minister has been pushing the U.N. to obtain veto power over ICANN.

Some countries also worry that the new wave of Web suffixes might be too controversial and that others might require companies to spend vast sums to protect their online brands and trademarks. (Who gets .merck? The U.S. drug company? Or the German drug company with the same name?)

Chris Disspain, chairman of an ICANN internal group and an executive who oversees Australian domain names, said the prospect of governments running the Web would be calamitous. "China, Syria, Iran and Saudi Arabia and number of others have said in meetings they believe ICANN shouldn't be in existence, or be replaced by some U.N. body," he said. "Frankly, that would be a disaster."

Some countries fear that the United States has, at the very least, the appearance of too much power by owning the contract to run the master database of Web addresses.

"One concern is that if the U.S. decides Syria is behaving badly, then they could make all Web sites using Syria's country code domain - .sy - point to freedom of expression sites, for example," said Avri Doria, an ICANN group chairman. "Countries say, 'How can we subject ourselves to that?'"

Crocker, the ICANN board's vice chairman, said the chances of the United States tinkering with the master Web database are "nil." ICANN can only request changes in the master database; the U.S. government reviews those decisions, then the Dulles-based company VeriSign executes the change.

The Commerce Department, however, worries that other countries might soon lobby en masse for the U.N. to take over instead. Commerce officials prefer a nimble private-sector organization to run the Web's addressing system, but the government doesn't believe ICANN is listening enough to the international community.

Some ICANN officials worry that, if tensions continue with the Commerce Department, the nonprofit organization might lose its contract to run the Web's master database. That contract, which the Commerce Department last gave to ICANN in a no-bid process, comes up for renewal in the fall. Commerce officials have yet to decide whether they will ask for other organizations to compete for it.

In mid-February at a technology conference in Colorado, Lawrence Strickling, an assistant secretary in the Commerce Department, put ICANN on notice, declaring it "must act" by June on a set of accountability guidelines made by him and international leaders who will continue to "monitor" it. Strickling warned about the "forces at play" lobbying for the United Nations to run the Web.

Strickling said he met privately in December with ICANN board members in Colombia, where he urged ICANN to be more transparent and open to recommendations from foreign nations. "It's not out of hostility . . . but I am trying to nudge ICANN to be its best," Strickling said in an interview. "It's important that this model have buy-in from other governments in order to support the global growth of the Internet."

ICANN scored one minor victory in February. Its advisory body of foreign nations rejected the Obama administration's proposal that would have required ICANN to make it easier for nations to object to controversial new Web suffixes such as .gay or .xxx.

The United States proposed that any country within ICANN's advisory council should be able to recommend eliminating any new domain name. If no other country objected to that nation's veto recommendation, then ICANN's board would have to follow suit. ICANN, however, wants those challenges to go before three experts guiding the International Chamber of Commerce.

But ICANN's advisory body of foreign countries recently decided that any nation's objection will be considered as non-binding advice to ICANN's board.

Commerce Department officials worry that if foreign governments feel they have no role in the process, they will start ignoring ICANN, blocking Web sites and splitting up the Internet so that only certain domains can be accessed, depending on the country.

Critics of the Commerce Department say the agency is bending too much to other nations' preferences. "The U.S. government was pushing hard to give any country the power to object and have that right be decisive," said Milton Mueller, a Syracuse University professor who has chaired and participated in several groups that developed ICANN policies that would be overridden by the U.S. intervention. "We think they were playing a geopolitical game of placating governments."

from the Wall Street Journal, 2012-May-31, by Kimberley A. Strassel:

The Corporate Disclosure Ruse
The outfits warning companies about the risk of political contributions are themselves the source of the risk.

Chances are, you've never heard from Bruce Freed. That's because the founder of the Center for Political Accountability (CPA) is far busier ensuring you never hear from corporate America.

At least not when it comes to political free speech. In the growing liberal war against corporate free speech, its highest-grade weapon these days is "transparency." By pushing disclosure, the left can tee up companies for activist boycotts, protests and other actions designed to make political engagement as painful as possible. Think of this not as disclosure in the name of voter education, but disclosure in the name of mugging.

Cue Mr. Freed's outfit. While the White House and Democratic politicians have been writing their own proposals to force corporate tell-alls, CPA has taken the lead on the boardroom side. The group's particular mission is ginning up shareholder resolutions that demand more corporate political disclosure. Thanks to it and a handful of activist allies, the number of such political spending proposals was up 50% this year among Fortune 200 companies, accounting for 21% of all the shareholder proxies.

The center's particular skill is in presenting itself as nothing more than a selfless advocate of "good governance." Mr. Freed roams the corporate halls, lecturing one and all on the need for "responsible" political spending and warning of the "risk" that companies face by not instituting "board oversight" of its political dollars. "Risk" is the kind of word that grabs CEO attention.

Mr. Freed has also been busy creating the facade of a movement. To listen to CPA, there is a groundswell of support among institutional investors for corporate political disclosure. This in turn, CPA insists, has resulted in a rush by companies to get on board with best practices. Everybody is doing it, goes the center's line, and those who don't are bad actors.

Some companies are buying this, with little investigation into CPA or its motives. While pitching itself as just another campaign-finance watchdog, the center, founded in 2003, is in fact a recipient of hundreds of thousands of dollars from George Soros's Open Society Institute.

Mr. Freed worked for years for Capitol Hill Democrats, and most of the center's staff hails from the liberal-party machine. Its attorney, Karl Sandstrom, once served as general counsel for the Democratic National Committee. Chief financial officer Michael Novelli was in 2008 an Obama campaign director for Maryland. Peter Hardin, one of CPA's writers and editors, moonlights for another Soros-funded operation, Justice at Stake.

If you dig into the proxy proposals, you'll find that most have been pushed by the same three or four groups, including CPA and activist investor groups like NorthStar Asset Management, Trillium and Walden Asset Management. Those voting for the proposals are also the usual suspects, such as union pension funds. Not one of the proxies passed this year.

As for "transparency," the CEO world has mostly been played for dupes. The CPA tactic is to invite companies to voluntarily adopt some greater disclosure and avoid a proxy fight. The group then touts these concessions to other companies, to gull the same result.

Mr. Freed also likes to reference the "Zicklin Index," which scores companies on their political disclosure. This index ostensibly comes from the Zicklin Center at the Wharton School of Business. Less known is that Messrs. Freed and Sandstrom both sit on Zicklin's advisory board and helped create the ranking.

In a conversation, Mr. Freed repeated that his group is only interested in "good corporate governance." He says that while he works with other activist groups, it doesn't mean CPA "agrees with everything they do." He also insists that his group has never "challenged" a company's "right" to give political money.

Then again, the great ruse of this campaign is that the very organizations that claim to want to help corporate America manage its "risk" are themselves the source of the risk.

In a conference call earlier this year that included CPA, Walden, a member of Afscme (the union giant) and others, Christine Jantz of NorthStar acknowledged that her group wanted to highlight "ill-considered" contributions like those to politicians who are "actively working" against gay rights. It was exactly that kind of highlighting that facilitated the liberal protest and boycott against Target Corp., for donating to a Minnesota Republican gubernatorial candidate in 2010.

Having made direct contributions a liability, the groups can concentrate efforts on "disclosure" to third-party trade groups like the Chamber of Commerce. While Mr. Freed claims to believe in a company's right to donate, he nonetheless had this advice in a piece he wrote for a Conference Board publication this winter: "There is no substitute for a clear policy of not giving money to third-party groups for purposes of political spending."

CPA and other groups understand that if companies are too wary to contribute directly, but also see "risk" in giving to a trade group, they truly will have lost any free-speech rights. Now all that's left is for corporate America to catch on to this double-game.

from Dr. Dobb's Journal, 2012-May-1, by Andrew Binstock, Editor in Chief:

Oracle and the End of Programming As We Know It

If Oracle prevails in its claim that APIs can be copyrighted, nearly every aspect of programming will be changed for the worse.

Oracle is a company that's never particularly cottoned to developers. While Microsoft and Google have developer DNA wired deeply into their genes, Oracle is first and foremost a database company that prides itself on ruthlessly pursuing its business agenda with a take-no-prisoners approach. Whether its reckless approach to technology appeals to developers or any other community matters little to the company. Because Oracle stands for nothing but its own interests and because of its long history of aggression, it is feared by all market segments it touches: suppliers, competitors, and its own customers.

There is little surprise then to see it in court in San Francisco fighting Google, claiming patent infringement due to the latter's development of the Android operating system. Google, certainly no stranger to pushing the legal limits in its quest to access as much data as possible, is hardly a friend to licensing and copyright. Its fights with the publishing industry over copyrights are legendary and have generally forced Google to backtrack. Its expansive view of its access to data is at the heart of current uproars over Street View and the newly announced GDrive.

So, it seems almost inevitable that the two behemoths would meet in court one day. Initially, Oracle's suit and Google counter-suit looked to be one of those slow-moving affairs that was fascinating to watch from a distance in much the same way as the trial pitting the U.S. Department of Justice against Microsoft a decade ago.

However, events in San Francisco quickly took a sinister turn when Oracle posited an ominous theory: that Google had violated Oracle's Java copyrights by reimplementing Java APIs in Android. The question of the copyrightability of APIs is the hinge on which the first part of the trial now rests, and it provides a disturbing vision of how software development might look should Oracle prove this claim.

In a nutshell, if the jury sides with Oracle that the copyrights in the headers of every file of the Java source base apply specifically to the syntax of the APIs, then Oracle can extract payment and penalties from Google for having implemented those APIs without Oracle's blessing (or, in more specific terms, without a license).

Should this come to pass, numerous products will suddenly find themselves on an uncertain legal standing in which the previously benign but now newly empowered copyright holders might assert punitive copyright claims. Chief among these would be any re-implementation of an existing language. So, Jython, IronPython, and PyPy for Python; JRuby, IronRuby, and Rubinius for Ruby; Mono for C# and VB; possibly C++ for C, GCC for C and C++ and Objective-C; and so forth. And of course, all the various browsers that use JavaScript might owe royalties to the acquirers of Netscape's intellectual property.

Essentially, every language implementation not issued forth by the copyright holder will be suspect until the copyright owners announce a permanent statement dispensing with any threats to enforce the copyrights. There is no reason to believe that copyright holders will naturally act with such restraint. As we know, Oracle certainly has not. And who's to say the owners of Bell Labs care enough about the negative programming consequences of enforcing language copyrights when they can see possible licensing fees of tens if not hundreds of millions of dollars are a possible result?

The problem does not stop with languages, of course. Would Linux be at risk for all the UNIX APIs it recreated? Or would any of the ports of various libraries be similarly in danger? Probably so.

During the trial, Sun's last two CEOs provided conflicting evidence. In a nutshell, Jonathan Schwartz testified for Google's view (and his email congratulating Google on Android is a crucial piece of testimony), while Scott McNealy testified unequivocally that APIs were copyrightable, copyrighted, and not open to duplication by unlicensed third parties. Both views are in character. McNealy fought the UNIX wars on behalf of Solaris precisely on the basis of the extra libraries and APIs that distinguished it from HP-UX, IRIX, and AIX. I have no doubt that if this case had arrived 15 years ago, McNealy would have testified precisely the same way. Specific libraries and their attendant APIs were crucial means for companies to establish and maintain a competitive advantage.

This role for APIs tends to support Oracle's view that they are the property of the owners and are not intended for free use by unlicensed parties wanting to implement them. And Google's internal deliberations that show an awareness that a license might be necessary would also support the idea that the APIs are property. On this basis and the careful copyrights in each document, I am unwillingly led to conclude that the jury might not deliver good news when it returns from its deliberations. Of course, I deeply hope I'm wrong.

However, a silver lining could present itself: The jury could affirm that the APIs are copyrighted but that the syntax of the function signatures are a fair use exception. This would safeguard the right to reimplement APIs forever without fear of suit for copyright violation. And it would not be an unreasonable finding.

Trials are troublesome events in the course of computing history. They have delivered odder verdicts than one that would side entirely with Oracle. You might recall that the Lotus v. Borland suit (1990) originally resulted in a ruling affirming the copyrightability of a menu hierarchy. Not until the case reached the U.S. Supreme Court in 1996 was that bit of nonsense definitively overturned. Let us hope that there's no need for that much litigation to ensure forever that APIs can be freely copied.

from the Los Angeles Times, 2012-May-29:

Oracle vs. Google
The legal battle between Google and Oracle over the use of Java in Google's Android software is more than just another bruising patent fight between rival tech companies

The legal battle between Google and Oracle over the use of Java in Google's Android software is more than just another bruising patent fight between rival tech companies. The more unusual and disturbing aspect of the dispute is Oracle's claim to hold copyrights to Java's "application programming interfaces," or the bits of code that let apps written in Java work with other programs. Although a federal jury found that Google violated those copyrights (but not Oracle's patents), District Judge William Alsup can still hold that APIs aren't copyrightable. He should.

Sun Microsystems made the Java programming language freely available in 1995, a strategic move designed to boost sales of other products and help defend Sun against competition from Microsoft. The company also distributed a series of Java APIs that enabled developers of software platforms and programs to let their products inter-operate with those written in Java. When Google was creating the Android operating system for smartphones and other portable devices, it included its own version of the Java APIs so developers could write apps for Android devices largely in Java.

Oracle acquired Sun in 2010 and sued Google not long thereafter. It can't claim copyright over Java; a language can't be copyrighted, just creative expressions in that language. Nor could it show that Google copied the actual code in its APIs. So it argued that the Java APIs reflected a form of coding artistry that Google infringed on by copying the "sequence, structure and organization." But under that line of reasoning, any software writing task that could be accomplished in more than one way might be characterized as a creative expression, even if it's done with interchangeable sets of garden-variety code.

Extending copyright protection to programming interfaces would discourage the inter-operability and interaction that are a prime source of innovation. The providers of software platforms could encourage others to implement their APIs to create new Web-based services or apps, then try to extract royalties from the ones that proved popular. The implications are even worse in the case of programming languages such as Java. Giving a company a sweeping claim over a language's APIs, which are crucial to a program's workability, could effectively let it decide what programs can be written in that language. Google earns no plaudits for creating a version of Java that doesn't inter-operate with the ones Sun championed. But that doesn't justify stretching the bounds of copyright law to give Oracle control over Java's APIs.

from CNET, 2012-Apr-4, by Ben Parr:

Why the coming patent crisis is inevitable
The reason is simple: there isn't enough political will or pressure to institute massive patent reform without a crisis to rally around.

A week isn't complete in the tech industry without somebody suing somebody else over patents.

This time, Facebook is countersuing Yahoo, charging that Yahoo violated 10 of its patents. This move, of course, comes less than a month after Yahoo sued Facebook for allegedly infringing on 10 of its patents.

Facebook's countersuit shouldn't surprise anybody; it was always going to fight fire with fire, especially since Yahoo started this unnecessary fight. It's the same reason Facebook purchased 750 patents from IBM last month -- it needed more ammunition in a patent arms race that is quickly escalating.

But I'm shocked by some of the patents over which these two companies are suing each other. One of Yahoo's patents focuses on the "optimum placement of advertisements on a webpage", while Facebook has two patents that cover a "system for controlled distribution of user profiles over a network." Yahoo owns the patent for a "method to determine the validity of an interaction on a network", but "generating a feed of stories personalized for members of a social network" belongs to Facebook.

You really can receive a software patent for almost anything these days, it seems.

Facebook and Yahoo aren't the only ones collecting patents and threatening to use them like stockpiled nuclear weapons, though. Here are just some of the patent disputes that have made headlines in the last two weeks: Apple and Samsung, Microsoft and Motorola, RIM and NXP, Oracle and Google, and Tivo and Motorola.

Patents have played an important role in protecting an inventor's intellectual property and fostering innovation throughout history. However, their usefulness in software is far more limited, and in recent years has simply become damaging to innovation, thanks to patent trolls using IP they've acquired to sue smaller tech companies and make a quick buck.

Patent law simply wasn't designed for the always changing, rapidly developing world of software. Inventing a way for "generating a feed of stories" isn't the same as inventing a new type of fuel injection system or a new ultralight alloy for space travel. But software companies file patents like crazy because companies like Yahoo get desperate and start suing, and your only defense is to have your own stockpile of patents that will help you negotiate a settlement faster.

It's the tech industry's version of mutually assured destruction. And all the while, the patent situation inches closer toward a crisis that will make the SOPA controversy look like a walk in the park. At some point in the future, a company is going to skip the settlement and use the courts to shut down a popular and universal feature on the Web's top domains, simply because it has a patent that says it came up with the notion first. It will be a shock that reverberates all the way to the U.S. government and the World Trade Organization.

I suspect a patent crisis is both necessary and inevitable. The reason is simple: there isn't enough political will or pressure to institute massive patent reform without a crisis to rally around.

That's why the cycle of patents, lawsuits, and settlements isn't ending anytime soon. Now, if you'll excuse me, I'm going to go file a patent for a method of identifying patent trolls, just to see if I can.

from ArsTechnica.com, 2012-May-13, by Timothy B. Lee:

Top judge: ditching software patents a "bad solution"
Former Federal Circuit Judge Paul Michel sees no "magic bullets" for patent reform.

For decades, the courts have struggled to decide what types of innovation are eligible for patent protection. For much of that time, the central institution in that debate has been the United States Court of Appeals for the Federal Circuit, the appeals court that has jurisdiction over patent cases.

The Federal Circuit has been strongly pro-patent since its inception in 1982. It was the court that opened the floodgates for software patents with a series of permissive decisions during the 1990s. And it was the court that gave the green light to patents on medical diagnostic techniques, only to be overruled by the Supreme Court in March.

Why is the Federal Circuit so enthusiastic about extending patent protection to new fields? The court's current members are understandably circumspect, but retired judges can be more candid. So on Friday, Ars Technica traveled to Princeton University to hear a keynote address by retired Judge Paul Michel, as part of a conference on patent law. Michel served on the Federal Circuit form 1988 to 2010, and was its chief judge for the last six years of his tenure. His comments shed light on the motivations behind the dramatic changes in patent law over the last two decades.

"Bad solutions"

In his remarks, Michel argued that policymakers crafting the America Invents Act, last year's patent reform bill, should have focused more on the interests of small, fast-growing technology startups. These firms, the "Apples of the future," are a key source of job creation, he said.

After Michel finished his speech, Ars Technica asked him what seemed to us the obvious question: given that many software startup founders find the patent system to be more of a hindrance than a help, shouldn't excluding software from patent protection be considered as a reform option? The judge didn't agree.

"My view is that broad categories treated pejoratively are going to lead us toward bad solutions," Michael told us. "People say 'We know all business method patents are bogus, so let's just get rid of them.'" He added that people make similar arguments about software and medical diagnostic patents. "I don't think that's a constructive way to proceed. Certainly there are software patents out there that are no good, and that's a shame. We've gotta clean those out. But I'm against these kinds of broad, polemical ways of proceeding."

Michel did concede that software patents don't appear to be very helpful to the software industry. "Software is way less dependent on patents—maybe not dependent at all except in certain areas. How much [patents] retard [software] I'm not so sure. I hear a lot of anecdotes, a lot of scare stories. I'm a facts and figures guy. I'm not for anecdotes and assumptions."

Some scholars have collected facts and figures. For example, a 2008 book by James Bessen and Michael Meurer attempted to compute the costs and benefits of the patent system to various industries. They found that benefits significantly exceeded costs for the pharmaceutical industry, but the costs of litigation exceeded the benefits of holding patents in many other industries. Their work suggests that the patent system has become a net disincentive to innovation in those industries. The problem was particularly severe in software.

Strangely, Michel singled out Bessen and Meurer's book as an example of a text that relied too much on anecdotes and not enough on data, declaring it "very disappointing." We pressed him on this. Michel conceded the problem was less that it was too anecdotal and more that he disagreed with the book's premise—that high litigation costs were a sign the patent system wasn't working.

Just opt out?

Judge Michel seemed unaware of the depth of the software industry's dissatisfaction with the patent system. He suggested the patent system's critics were relatively marginal figures not representative of the views of the broader technology industry. And he didn't seem to understand the dynamics of the patent arms race currently affecting the software industry.

"If software is less dependent on patents, fine then. Let software use patents less as they choose," Michel said. "If other industries are terribly dependent on patents, then let's not wreck the system just because software people are unhappy."

Unfortunately, software firms don't have the option to opt out of the patent system. A firm that chooses not to seek patents will be vulnerable to ruinous lawsuits from its competitors. And so every firm is compelled to participate in the system for defensive reasons even if they'd be collectively better off if none of them participated.

And if Michel is worried about anti-patent agitation from the software industry will "wreck the system" for other industries, that's an argument in favor of creating a carve-out for the software industry. As long as software firms are vulnerable to patent trolling, they'll be exerting pressure to weaken patent protections across the board. Freeing the software industry from the burdens of the patent system will make it easier to fine-tune the system for other industries where patent protection works better.

Hard work needed

Rather than looking for "magic bullets," Michel told us that fixing the patent system would require "a lot of very careful hard work from the lowest examiner to the top of the Supreme Court and all of the rest of them."

This is a common refrain among software patent supporters. In 2008, Doug Lichtman, now a law professor at UCLA, told us that excluding software from patentability was an "odd way to divide up the world."

Judge Randal Rader, the Federal Circuit's current chief judge, also spoke at the conference. He complained about "the patent system coming under attack." "Let's not damage the system that promotes the progress of science and the useful arts," he said.

Rader and Michel's perspectives are likely skewed by the fact they spent their time on the bench surrounded by patent lawyers (who by definition work with firms that have the resources to hire patent attorneys). For the typical software-producing firm, patent lawyers are simply too expensive. Most firms never get patents, and they typically settle patent claims rather than taking them to court. As a result, Judges Michel and Rader rarely hear from smaller firms for whom the patent system is nothing but a burden.

We weren't able to get Judge Michel to clearly articulate why software patents were needed. But at root, his objection to eliminating them seems to be that excluding entire classes of technology from patent law is a clumsy way to solve the system's problems. If you care most about promoting innovation, offering carve-outs from the patent system to certain industries and technologies looks like a pragmatic solution to a serious problem. If, like Michel and Rader, you're emotionally invested in the success of patent law as such, then allowing certain industries to opt out looks like an admission of failure and a horrible hack.

from the Economist, 2012-Mar-29, by G.L.:

The Arab Spring's online backlash

A BILL on “information-technology crimes” with extraordinarily broad wording and harsh punishments is due to come before Iraq's parliament in April, once the dignitaries and television cameras at this week's Arab League summit in Baghdad have departed.

The bill is one of four proposed laws that could severely restrict basic freedoms. (A fifth, on journalists, was passed last summer.) Access Now, a human-rights group with a focus on technology, has a report on it out today. According to an English translation from last August, it includes mandatory life sentences for using computers or the internet to “compromise” the “unity” of the state (Article 3), promote “ideas which are disruptive to public order” (Article 4), or engage in “trafficking, promoting or facilitating the abuse of drugs” (Article 5), which could include merely blogging about them.

Some of the most egregiously loose definitions make it a crime—though at least not one carrying a life sentence—to cause “damage, defect or obstruction to computer hardware, operating systems, software or information networks”, even by mistake; to “intrude, annoy or call computer and information network users without authorisation”; to “benefit unduly from telecommunications services” (all these from Article 14); or to “relate words, images or voices to someone else involving cursing or slander” (Article 22).

The law on journalists and the other three bills, which cover public assembly, telecoms and political parties, are similar in style, notes a report from the Centre for Law and Democracy (CLD), another human-rights group: filled with vague references to “public morals”, “public order”, “national interests”, “threatening” or “insulting” messages, and so on.

Several governments tried temporarily restricting or shutting off the internet during the Arab Spring, and it should be no surprise that they are now looking for more permanent ways to limit its influence. Yet these stem from more than a simple desire to repress.

The problem, says Katherine Maher of Access Now, is that across the Arab world, leaders are “looking around and realising that an entire industry has emerged in the last 10-15 years that has largely evaded any type of regulatory oversight.” Laws are sorely needed to cover such things as identity theft, e-commerce, data security and intellectual-property protection, not to mention the media and free speech. So Iraq's internet law contains some good points. But the rush to catch up, combined with official nerves rattled by the Arab Spring (or, in Iraq's case, its sectarian conflict), has produced a swathe of bad legislation.

Lebanon's government is considering an internet law that, says Ms Maher, is similar to Iraq's in breadth, if not in harshness. The Tunisian Internet Authority—now something of a defender of online freedom, after having been a key tool of repression for the deposed former president—is still fighting a court ruling last year ordering it to censor the web for pornography. Egypt's telecoms ministry is working on plans to do the same.

And in various countries, online journalists and activists continue to be jailed, beaten or killed for expressing views that are unpopular with either the government or the religious authorities. Iraq's law on journalists includes provisions that are supposed to protect them, but these are “simply too vague to be of practical use”, according to the CLD report.

The one bright spot in the picture is Libya, says Courtney Radsch of Freedom House, a group that promotes freedom and democracy around the world. In the north African country, which she has just visited, the thorough disintegration of the old regime has allowed people who believe in an untrammeled internet to get into top jobs. Elsewhere, the revolution has been far less complete.

from Foreign Policy, 2012-Apr-5, by Josh Rogin:

Exclusive: UAE detains foreign NGO workers

In an escalation of the United Arab Emirates' crackdown on foreign NGOs, the UAE government has detained foreign employees of the National Democratic Institute (NDI) and is preventing at least one of them from leaving the country.

Late Wednesday, the director of NDI's Dubai office, Patricia Davis, an American, and her deputy director Slobodon Milic, a Serbian national, were stopped at the Dubai airport by UAE government authorities as they tried to leave the country, according to three sources briefed on the incident. Davis was eventually allowed to leave the UAE, but Milic was not. He was detained by authorities, and subsequently released but is still barred from leaving the UAE. The UAE government has also notified NDI that they plan to file criminal indictments against foreign NGO workers in the UAE for foreign interference in political affairs, the sources said.

"We understand that the deputy director for NDI in the UAE was briefly detained and then released. We are seeking more information from the government of the UAE on the matter," a State Department official told The Cable. "As the Secretary has said many times, we believe NGOs play a valuable and legitimate role in a country's political and economic development. They should be able to operate consistent with regulations and standards and without constraints."

"We will continue to support civil society in the UAE and across the region. NDI is a respected organization that has been working across the region and beyond to promote civil society development and democratic values. The State Department is a firm supporter of NDI's activities," the official said.

The move mirrors the actions taken by the Egyptian government over the past three months, which included barring over a dozen foreign workers from leaving Egypt -- including Americans working for NDI, the International Republican Institute (IRI), and Freedom House -- and subsequently indicting them on criminal charges.

The U.S. government paid $5 million in "bail" money to secure the March 1 release of American NGO workers trapped in Egypt, including Sam LaHood, the Cairo director of the IRI and the son of Transportation Secretary Ray LaHood. Secretary of State Hillary Clinton then waived congressional restrictions on the $1.5 billion of annual U.S. aid to Egypt, which would have required that the State Department certify that Egypt was moving toward democracy and upholding civil rights.

Several of the American NGO workers who were indicted by the Egyptian government were not in Egypt at the time, and the National Journal reported Wednesday that the Egyptian government has asked Interpol to issue international arrest warrants for those NGO workers. Meanwhile, the Obama administration is trying to convince Interpol to reject those requests.

The UAE government shut down and revoked the license of the NDI office in Dubai last week, just days before Clinton visited the region and raised the issue in a meeting with Foreign Minister Sheikh Abdullah bin Zayed Al Nahyan.

"We very much regret it," Clinton said after the meeting. "We are as you know, as anyone who has visited the United States, strong believers in a vibrant civil society ... I expect our discussions on this issue to continue."

A U.S. congressional staff delegation has been in the UAE this week as well, and has been raising the NDI issue with both UAE and American officials on the ground. One congressional staffer in Dubai told The Cable Wednesday that UAE officials argued to the staff delegation that NDI was operating without a license, had no legal right to be operating in UAE, and was writing things that weren't true.

NDI Middle East Director Les Campbell said last week that his organization has no programs in the UAE, and the office "was simply a regional hub which supported programmes in places like Qatar and Kuwait."

The congressional staffers pressed the UAE officials to comment on the rumors that the UAE government was acting on behalf of the Saudi government, which is said to object to NDI's programs for Saudi women. But the UAE officials denied any knowledge of Saudi interference or pressure to the congressional staffers.

The staffer also said U.S. Ambassador to the UAE Michael Corbin downplayed the UAE government's actions in his meeting with the congressional delegation.

"Even more troublesome was [the U.S.] ambassador's statement in response to questions we raised about the shutdown in a meeting on Tuesday. He essentially suggested that it wasn't that big of a deal since NDI doesn't do any work in the UAE," the staffer said. "Moreover, he seemed to sympathize with their concerns given the changing situation in the Middle East and he characterized work that organizations like NDI do as `fomenting' political change."

Officials at NDI's Washington office and the UAE embassy in Washington declined to comment.

from the Associated Press, 2012-Apr-24, by Aya Batrawy:

Egypt comedian found guilty of offending Islam

An Egyptian court on Tuesday upheld a conviction against one of the Arab world's most famous comedians, sentencing him to jail for offending Islam in some of his most popular films.

CAIRO — An Egyptian court on Tuesday upheld a conviction against one of the Arab world's most famous comedians, sentencing him to jail for offending Islam in some of his most popular films.

The case against Adel Imam and others like it have raised concerns among some Egyptians that ultraconservative Muslims who made gains in recent elections after Hosni Mubarak's ouster last year are trying to foist their religious views on the entire country. Critics say the trend threatens to curb Egypt's vibrant film industry and freedom of speech.

Imam was sentenced to three months in jail and fined around $170 for insulting Islam in roles he played in movies such as "The Terrorist", in which he acted the role of a wanted terrorist who found refuge with a middle class, moderate family, and the film "Terrorism and Kabab. "

The actor was also found guilty for his 2007 role in "Morgan Ahmed Morgan," in which Imam played a corrupt businessman who tries to buy a university diploma. The film included a scene parodying bearded Muslim men wearing traditional Islamic clothing.

Author Alaa al-Aswany, whose best-seller "The Yacoubian Building" was turned into a film costarring Imam, said the court ruling sets Egypt back to the "darkness of the Middle Ages."

"This is an unimaginable crime of principle in developed nations," he said in remarks posted on his Twitter account Tuesday.

The case is one of many brought by conservative lawyers in recent months seeking to punish individuals they deem as having offended Islam. Earlier this year, two courts rejected blasphemy cases against Christian media mogul, Naguib Sawiris, after he relayed a cartoon online of Mickey Mouse with a beard and Minnie in a face veil.

The cases highlight the newfound sense of empowerment among followers of the ultraconservative Salafi trend of Islam in Egypt after Mubarak was toppled in a popular uprising. Their newly formed Al-Nour party won 25 percent of seats in parliament, emerging as the second most powerful group in Egypt after the more moderate Muslim Brotherhood.

The mere filing of such blasphemy cases by Salafi lawyers has raised concern among rights groups and liberals about attempts to curb freedom of speech.

Egyptian entertainment reporter Tarek el-Shinnawi said the case against Imam is a setback for Cairo's famed film industry, which has produced the region's most popular films.

"It will make any writer, director or actor think before considering the role of a Muslim figure," el-Shinnawi said.

Imam was initially found guilty in February in a case brought by an ultraconservative Islamist lawyer. He was given a retrial since he was first tried in absentia. He did not appear in court Tuesday but his lawyers did. Imam has the right to appeal.

Under Mubarak, government censors controlled what could be shown in theaters or filmed by major studios. The films Imam starred in were approved by the censors.

El-Shinnawi argued that a legally sound case would involve the writers and directors, and the censors who approved the movies, not just the star of the films.

Imam, 71, has acted in dozens of films in a career that spans nearly 50 years.

Long a beloved figured in Egypt, Imam lost popularity among Egyptian protesters for supporting Mubarak during last year's 18-day revolt.

In one of his most popular roles, Imam played an Arab dictator in a 1998 satirical play called el-Zaeem. The play has since been aired on satellite television across the Arab world, bypassing state censors and gaining popularity through its comedic take of a tyrannical figure.

from TorrentFreak.com, 2012-Mar-24:

Microsoft Censors Pirate Bay Links in Windows Live Messenger

The Pirate Bay is not only the most visited BitTorrent site on the Internet, but arguably the most censored too. Many ISPs have been ordered to block their customers' access to the website, and recently Microsoft joined in on the action by stopping people sharing its location with others. Microsoft's Windows Live Messenger (MSN) now refuses to pass on links to The Pirate Bay website, claiming they are unsafe.

windows pirate logoImagine that you found this great new band sharing their music on BitTorrent for free.

You're actually so excited about this find you want to share the experience with friends, so you paste them a link to the official torrent file via Windows Live Messenger.

Although this might sound like a good idea to some, Microsoft appears to disagree. Those who try to paste a Pirate Bay link to their friends through Windows Live Messenger will notice that it never reaches its destination.

Instead, Microsoft alerts the sender that The Pirate Bay is unsafe. Apparently, the company is actively monitoring people's communications to prevent them from linking to sites they deem to be a threat.

Censored

picture of blocked url in windows live

The same happens in other chat clients such as Pidgin when using a Windows Live Messenger account.

Censored

blocked by pidgin

Whatever Microsoft's reason for monitoring private conversations and then swallowing Pirate Bay links, the Redmond-based company's censorship policies are not very consistent. All of the other large BitTorrent sites remain unaffected, even though they offer content that's identical to The Pirate Bay.

While it's not clear whether the above is related to copyright concerns, censorship is indisputably an up-and-coming tool to protect the interests of the entertainment industries. Taking away your freedom of speech one link at a time.

TorrentFreak attempted to contact Microsoft for a comment on the issue, but we have yet to hear back.

from the Huffington Post, 2012-Mar-9, by Edward J. Black:

UN's ITU Could Become Next Internet Freedom Threat

Internet freedom is again under fire for ostensibly noble reasons. After a narrow escape from Congress's SOPA legislation, Internet freedom is in the international crosshairs of a large group of nations, including many of the world's most undemocratic governments, seeking to give themselves control over Internet policy. Their target is the creation of new international legal rules that would allow them to legitimately impose censorship and monitor users' online activities.

The Internet's ability to empower people is feared by undemocratic countries. It's even a challenge for the governments of democratic countries to resist the temptation to tinker with Internet fixes for various social causes.

Sometimes the reasons for interference with users' activities spring from defendable intentions: stopping crime or blatant copyright abuse as we saw with SOPA. Internet openness would have been collateral damage if Congress had passed that legislation, which would have required U.S. companies to create privatized Internet censorship regimes in hopes of reducing copyright infringement.

However, once filtering, censorship or traffic redirecting tools are developed and deployed, they can be used for a variety of reasons -- not just for the purposes that first got the regulations enacted. Some of the lessons learned from the dangers of legislation like SOPA should be the need for forbearance and a well-researched, multi-stakeholder derived policy to avoid unintended consequences.

We've been concerned about similar efforts that could result in a treaty giving a United Nations agency new power to "manage" the Internet. Russia, along with China, North Korea, Iran and other notably nondemocratic countries, are advocating for international regulation of the Internet through a treaty-based organization in the United Nations -- the International Telecommunications Union (ITU).

These countries are also asking for a "cyber arms control treaty." But the real goal is to give governments the international legal cover to declare information they don't like a "danger to the state" and therefore the equivalent of cyber warfare so they can censor it. An article in the World Affairs Journal outlines Russia's patient, organized effort over more than a decade.

The article warns, "If diplomats are not careful, one by-product of a push to regulate state-on-state cyber conflict could be a new effort to subject Internet activity to political scrutiny." It points to the efforts at the ITU as a telling example of this trend.

These countries have also pushed this agenda in other venues:
• Suggesting at the UN General Assembly in 2011 that a code of conduct for Internet use should be mandated in international law (and conveniently giving the governments of the world the right to determine what is outside the limits of the code);
• Proposing to create a new UN agency that would be a 'super agency' responsible for managing all aspects of Internet policy -- with, naturally, governments having the only vote.

There are warning signs that 2012 is lining up to be particularly important in this fight.

Russian Prime Minister Vladimir Putin met last year with the head of the ITU and said "international control over the Internet" is critical.

As officials plan for a major ITU conference, the World Conference on International Telecommunications (WCIT), countries like China and Russia plan to try to significantly expand the authority of the ITU, according to former U.S. Ambassador David Gross.

Russia, China and their partners are expected to use this conference intended to renegotiate the ITU's telecommunications regulations to expand its mandate to regulate the Internet. To succeed, they need a majority of the 193 member states to agree. The proposals could dramatically change everything from access and affordability of the Internet to oversight by the ITU -- and therefore governments -- of ICANN, the IETF and other organizations responsible for elements of the Internet's architecture. Unlike the ITU, these organizations use a multi-stakeholder approach where all voices are a part of the process of decision-making -- but none control the others.

As FCC Commissioner Robert McDowell pointed out in his Wall Street Journal editorial last month, proponents of Internet freedom need to play offense not just defense by encouraging all interested parties, including governments and the ITU, to examine the economic and social benefits of the open Internet and to broaden the multi-stakeholder approach to managing Internet concerns.

The SOPA/PIPA battle that roused Internet users to the threats to this critical communications tool and awakened politicians to the power of Internet users is a small, though significant part of the growing Internet freedom war. The stakes are high. The outcome of these upcoming negotiations in Geneva, will affect every Internet users' access to information and ultimately the relationship every government has with those they govern.

CCIA has been engaged in this fight for years, on the ground, alongside other companies and NGOs. Those who value Internet freedom around the world need to spread the word and encourage their country to reject upcoming pressure to alter international regulations to control the Internet and its users.

from the Register (UK), 2012-Mar-11, by Richard Chirgwin:

US withdraws IANA RFP, `no suitable responses'
ICANN manages to lose a one-horse race

The Internet's rent-seeking domain name toll-collector ICANN is red-faced following the cancellation of an IANA (Internet Assigned Names and Numbers) RFP from the Department of Commerce.

The RFP (request for proposals) cancellation, reported on CircleID, happened because, according to the National Telecommunications and Information Administration, “we received no proposals that met the requirements requested by the global community”.

The cancellation means that not even ICANN (the Internet Corporation for Assigned Names and Numbers), whose 14-year-old self-serving monopoly experience operating the Internet's naming system has been refined over 14 years, could meet the RFP's requirements. The RFP will now be re-run, with ICANN's contract extended for six months during the process.

Some of those requirements, according to the NTIA's notice issued on March 10, included “the separation of policymaking from implementation, a robust companywide conflict of interest policy, provisions reflecting heightened respect for local company laws, and a series of consultation and reporting requirements to increase transparency and accountability to the international community”.

ICANN has been under growing criticism over key policy decisions; in particular, the processes that make both the .xxx domain and the creation of gTLD “brand” domains look like nothing more than protection rackets designed to extract cash from brand owners either fearful of having their brands polluted by smut-peddlers or squatted by bigger companies.

In entirely coincidental news, the day after the RFP debacle emerged, ICANN announced that it is “seeking expressions of interest for a review of its accountability mechanisms”. It wants to create a committee of “independent experts” to review both its Reconsideration Process and its Independent Review Process.

from Computerworld Kenya via PC Advisor, 2012-Mar-14, by Rebecca Wanjiku:

Domain seizures for copyright infringement likely to go global
Law enforement officials urge ICANN to take steps to ensure compliance with international agreements

Efforts to take down websites for copyright infringement are likely to move beyond U.S.-based registries, with ICANN (the Internet Corporation for Assigned Names and Numbers) promising to more closely cooperate with global law enforcement agencies and governments.

Cooperation to combat copyright infringement has been a hot topic this week at ICANN's international meeting in San José, Costa Rica. There are 22 registries and over 700 registrars accredited by ICANN. Registries contain domain names registered in a top-level domain, while registrars sell domains.

Any domain under a U.S. registry must follow U.S. laws regardless of where the servers are, according to agreements currently in place. The seizure of domains deemed to infringe on copyrights was first carried out by Verisign, the operator of the registry for .net and .com.

During an open session with the Government Advisory Committee (GAC), the ICANN board confirmed that it will enforce its contracts with registrars more effectively in order to meet expectations from governments and law enforcement authorities. The expectations were contained in a 12- page document submitted by the GAC, which also includes representatives from national law enforcement agencies as well as Interpol.

"There has been some agreement on 11 of the 12 recommendations made by law enforcement authorities to the registrar accreditation agreement; we will work to ensure agreement meets expectations and give registrars the incentive to accept recommendations right away," said Kurt Pritz, ICANN senior vice president in charge of stakeholder relations.

Representatives from governments, Interpol and the U.S. Federal Bureau of Investigationsaid they felt that ICANN's failure to enforce its own contractual agreements was damaging to Domain Name System users as well as end users.

Some of the 12 recommendations relating to registrar agreements was inclusion of a clause that holds registrars responsible through negligence for registering domains engaging in criminal activity. Another recommendation is for registrars to maintain detailed information of domain buyers, including their source IP addresses and transaction information, and validate the contact information given by domain buyers.

Law enforcement officials have also urged ICANN to review registrars' compliance record with enforcement agreements prior to renewing their contracts.

"Complaints on compliance started coming in the last six to nine months, a team of 12 is now in place and will improve the quality of service," said Rod Beckstrom, ICANN CEO and president.

from National Review Online, 2012-Mar-15, by Glenn T. Stanton:

Free Speech: Only for Those Who Agree

The organization GLAAD, which is committed to making sure no one in any media venue ever says anything untoward about homosexuality, has launched a new campaign aimed at a number of my friends and colleagues, as well as myself.

They do not like that media channels have asked any of us about our views on anything having to do with homosexuality and that our answers do not line up with GLAAD orthodoxy. Therefore, they believe we should be silenced. They say their effort is only to hold commentators like us “accountable” for what we say, but nowhere on their site do they try to correct or refute anything that any of us has said.

Most of the comments by the folks they are targeting are just plain, everyday views that many good citizens hold about homosexuality and so-called same-sex marriage. GLAAD is upset that people would say such things out loud and any media source — liberal, conservative, mainstream, Christian, Jewish, whatever — might print them. Read their “smoking-gun” evidence listed under each targeted spokesperson for yourself and see how many of them are really a threat to civil society. A few might not demonstrate the smartest reasoning in the world, but if we ban all unrefined quotes in the media . . .

Most serve to demonstrate GLAAD's unreasonableness. They take Jim Daly, my boss and president of Focus on the Family, to task for having the audacity to say some gay activists want to limit the speech of others. And yes, he did say it.

“Unfortunately, this is becoming a pattern for those that oppose Christianity. They want to control our speech in the public square. . . . It really is a form of fascism.”

Imagine. Doubtful GLAAD fully appreciates the irony of their selection of this quote.

from the Wall Street Journal's Best of the Web, 2012-Mar-12, by James Taranto:

That 70s Show
Elderly feminists try to turn back the clock.

When this column observed last month that contemporary feminism is a totalitarian ideology, we drew a bit of mockery from certain quarters on the left. Yet as if to illustrate our point, three prominent septuagenarian feminists--Jane Fonda, Robin Morgan and Gloria Steinem, co-founders of the Women's Media Center--joined forces over the weekend to demand the suppression of speech they dislike.

Specifically, they called on the the Federal Communications Commission to silence Rush Limbaugh using its regulatory power. "For 20 years, Limbaugh has hidden behind the First Amendment," they complain in a CNN.com op-ed:

Limbaugh doesn't just call people names. He promotes language that deliberately dehumanizes his targets. Like the sophisticated propagandist Josef Goebbels, he creates rhetorical frames--and the bigger the lie, the more effective--inciting listeners to view people they disagree with as sub-humans. His longtime favorite term for women, "femi-Nazi," doesn't even raise eyebrows anymore, an example of how rhetoric spreads when unchallenged by coarsened cultural norms.

We suppose we should mention that we don't care for Limbaugh's term "feminazi" either. While there's no denying its euphony--and euphony counts for a lot in radio--feminism is fundamentally different from National Socialism in that the latter is based on a theory of racial supremacy while the former is based on a false theory of equality. If only there were a catchy portmanteau of "feminism" and "Gramsci."

That said, you have to marvel at Fonda, Morgan and Steinem's chutzpah in comparing Limbaugh to Goebbels and then, in the very next sentence, denouncing him for using a Nazi analogy. The technical term for this sort of thing is "comedy gold."

A deeper irony is that in calling on the FCC to shut Limbaugh down, the troika are actually looking to turn back the clock by at least 40 years. "Are the stations carrying Limbaugh's show in fact using their licenses 'in the public interest'?" they ask. "Spectrum is a scarce government resource. Radio broadcasters are obligated to act in the public interest and serve their respective communities of license."

The scarcity of radio bandwidth provided the U.S. Supreme Court with its rationale for upholding the so-called Fairness Doctrine in Red Lion v. FCC (1969). The doctrine's intent was to ensure a balance of opinion on broadcast radio and television, but its effect was to impose blandness, as broadcasters shunned controversy so as to avoid regulatory complications.

The FCC abolished the Fairness Doctrine less than 20 years later, and the explosion in conservative talk radio followed. Liberals have tried to mimic the success of Limbaugh and his compatriots, but their audience turned out to prefer NPR to Air America. Meanwhile the scarcity argument carries even less force today than it did in the 1980s, what with the growth of cable, satellite and Internet transmission. (CNN, for whose website the trio wrote this piece, launched 32 years ago this June.)

Even in Red Lion, the Supreme Court acknowledged that the FCC did not have the power to censor broadcasts directly:

There is no question here of the Commission's refusal to permit the broadcaster to carry a particular program or to publish his own views; of a discriminatory refusal to require the licensee to broadcast certain views which have been denied access to the airwaves; of government censorship of a particular program . . .; or of the official government view dominating public broadcasting. Such questions would raise more serious First Amendment issues.

Meanwhile, Politico reports that Gloria Allred, another 70-something feminist, wants to turn back the clock even further. On behalf of the Women's Equal Rights Legal Defense and Education Fund, Allred has written a letter to Michael McAuliffe, the chief state prosecutor for Palm Beach County, Fla., asking him to prosecute Limbaugh for defamation.

At issue, of course, are Limbaugh's comments about Sandra Fluke, the young political activist whom Democrats have used as a symbol for the ObamaCare mandate that religious organizations provide their employees with insurance for contraceptives, abortifacient drugs and sterilization procedures. Allred believes Limbaugh violated a Florida statute that provides: "Whoever speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity, shall be guilty of a misdemeanor of the first degree."

For the purpose of this analysis, let's assume that Limbaugh did in fact "impute" to Fluke "a want of chastity." A successful prosecution would still require reversing important 14th Amendment and First Amendment precedents going back almost 50 years.

As blogger Aaron Worthing notes, the statute is facially unconstitutional under the 14th Amendment's Equal Protection Clause because it criminalizes defamation of women and not men. As Justice Sandra Day O'Connor wrote in Mississippi University for Women v. Hogan (1982):

The test for determining the validity of a gender-based classification . . . must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions. Thus, if the statutory objective is to exclude or "protect" members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate.

A sex-neutral law barring false accusations of improper sexual conduct would meet this test, but it might also have a chilling effect on some of Allred's clients.

The First Amendment also poses an insurmountable obstacle to a Limbaugh prosecution. While criminal defamation statutes are not in themselves unconstitutional, they do have to be enforced consistent with New York Times v. Sullivan (1964) and subsequent cases. Since Fluke is a public figure, that means prosecutors would have to show that Limbaugh's comments were made not just with ill intent but with "actual malice"--either knowledge that they were false or reckless disregard for whether or not they were true. Fluke's testimony that she is a single woman in need of birth control would seem to provide Limbaugh with an airtight defense.

Even if one could go back in time to 1962 and try Limbaugh under the legal precedents that prevailed then, Allred's proposed prosecution would effectively put Fluke on trial. Criminal prosecutors must meet a higher standard of evidence than civil plaintiffs in order to win a case. In this instance they would have to prove beyond a reasonable doubt that Limbaugh's imputation of "a want of chastity" was false--or, to put it another way, that Fluke is, in fact, chaste.

One expects that Allred would regard such an inquiry as a repugnant intrusion into Fluke's private life. Indeed, it seems fair to say that such repugnance lies behind her desire to prosecute Limbaugh for his comments. But like the CNN trio with their Nazi analogy, Allred is trying to have it both ways. She wants to use criminal law to enforce standards of gentlemanly behavior while rejecting any reciprocal obligation for women to act ladylike. Thus feminism's theory of equality between the sexes dissolves into incoherence in the face of real life.

Speaking of incoherence, a group called Liberal Ladies Who Lunch, inspired by Aristophanes' play "Lysistrata," last week announced that it "has launched a movement, the 'NO ACCESS SEX STRIKE' to encourage women to cut off sex to their male partners for one week, April 28-May 5, 2012, to make their point":

"Access to affordable family planning is key to a woman's liberty," says Annette Maxberry-Carrara, the founder of Liberal Ladies Who Lunch. "But this is also an important issue for men. American men enjoy the benefits of women making their own choices about when to get pregnant. Men get the advantage of free, easy access sex with young women of child-bearing age. It wasn't like that sixty years ago. If women can't get reliable birth control, they will just have to keep their legs crossed to prevent pregnancy--even married women. I don't think anyone wants that."

The ladies in "Lysistrata" were seeking to end a war, so what exactly is the objective of this "strike"? "Once congress [sic] and insurance agencies agree to cover contraception, we will then resume having sex," according to SexStrike.org. The Ladies who Lunch are demanding something the government has already decreed. They might as well declare victory and go home.

But ponder this revealing yet very sad quote from Maxberry-Carrara: "Men get the advantage of free, easy access sex with young women of child-bearing age." It's a false analogy: Whereas the ObamaCare mandate creates an entitlement to birth control, no man is entitled to "easy access sex." That requires consent.

It is true, however, that contemporary feminism is a sweet deal for hedonistic men who have the social skills to persuade "young women of child-bearing age" to consent to "easy access sex." When you look at it that way, you can understand why feminism's grandes dames are so keen to turn back the clock.

from ArsTechnica.com, 2012-Feb-16, by Nate Anderson:

Takedowns run amok? The strange Secret Service/GoDaddy assault on JotForm (updated)

Popular site JotForm doesn't host music or movies or child pornography, all of which have led US Immigration and Customs Enforcement (ICE) to seize other Internet domain names without advance warning (sometimes making serious mistakes). JotForm also doesn't create content itself. Instead, it helps customers create online forms that can then be embedded in their websites for easy data collection.

But that didn't spare the site from having its entire business shuttered without warning yesterday as the site's domain name was shut down at the request of the US Secret Service. JotForm's domain name registrar, GoDaddy, redirected the site's nameservers to NS1.SUSPENDED-FOR.SPAM-AND-ABUSE.COM—and with that, JotForm.com became unreachable and the site's two million user-created forms all broke.

And it all may have been done without a court order.

When he saw his site was down, JotForm cofounder Aytekin Tank scrambled. He checked in with GoDaddy, which told him that the site had been suspended as part of an ongoing investigation.

GoDaddy has long supported authorities who have concerns about the websites and domains it hosts. In Congressional testimony last year, the company's general counsel Christine Jones noted that "Our staff routinely works with courts and law enforcement from the local to international level to shut down domain names and websites through which infringers and counterfeiters operate. Any time we are notified by a court or a federal or state prosecutor that there is criminally infringing material on our systems, we work rapidly to disable access to that material."

Note the two criteria: a court order or a notification from a prosecutor. That latter category amounts to an unproven allegation—and it's what Tank believes derailed him here. "No, as far as I know, there is no judge order," he told me. "They sent a request to GoDaddy and GoDaddy complied."

But GoDaddy won't say publicly whether the takedown was voluntary or compulsory. When I asked, the company's Director of Network Abuse, Ben Butler, told me that his office complies with "orders from courts, as well as confirmed official requests from law enforcement agencies," but he wouldn't get into specifics in this case.

"We can tell you in general terms, at the specific request of law enforcement, Go Daddy sometimes takes action to prevent further harm being caused by a website hosted on our servers," he added. "This would include things like sites engaged in phishing, malware installation, securities fraud, and so on."

Butler's office acted on whatever request was received and shut down the site's domain, but he did pass the requesting agent's contact info along to JotForm so that the company could work to resolve the issue. According to a copy of an e-mail seen by Ars Technica, GoDaddy told JotForm that "the domain name was suspended as part of an ongoing law enforcement investigation" and that Tank should contact a special agent at the US Secret Service.

Tank, desperate to find out what had happened, called her.

"The agent told me she is busy and she asked for my phone number, and told me they will get back to me within this week," he wrote in an explanation post on Hacker News. "I told them we are a Web service with hundreds of thousands of users, so this is a matter of urgency, and we are ready to cooperate fully. I was ready to shutdown any form they request and provide any information we have about the user. Unfortunately, she told me she needs to look at the case which she can do in a few days. I called her many times again to check about the case, but she seems to be getting irritated with me."

A Secret Service spokesperson had no public comment when reached by Ars Technica, but he promised to look into the episode. No further information was available by publication time.

Caught by a phish-hook?

Though unsure of what the case was even about, Tank suspected a phishing form—something that JotForm has dealt with for quite some time. The company says it runs a Bayesian phishing filter to identity and block accounts being used to harvest various kinds of user information, and that it suspended 65,000 such accounts last year alone.

Such phishing attacks have been ongoing in recent weeks. Perusing the JotForm support forums turns up comments such as this one from the RSA Anti-Fraud Command Center. RSA says that it has "been appointed to assist [South Africa's] Standard Bank in preventing or terminating online activity that targets, or may target Standard Bank’s clients as potential fraud victims" and that "it appears the form service you provide is being used in a phishing attack."

The shutdown of his entire domain, without notice, for something a user had done even after protections were in place against it, seemed hugely unfair to Tank; he made his public case in terms that would also apply to other user-generated sites like YouTube. "We have 2 millions user generated forms," he wrote. "It is not possible for us to manually review all forms. This can happen to any Web site that allows user-generated content."

The first priority for JotForm was restoring some kind of access. Tank decided to migrate everything to jotform.net and make that site live instead. This wouldn't fix anything automatically—existing Javascript that pointed to jotform.com would continue to fail—but site operators who needed the forms could manually tweak their embedding code to point to jotform.net instead. For customers with hundreds of forms, this could take a while.

"When they have suspended jotform.com, and told us that it might take a few days to even take a look into the case, we had to do something to keep our users' forms alive," Tank told me.

"We have 700,000 users and 2,000,000 user-generated forms on our site. So, we had to make jotform.net live and email our users so that their forms will keep working. They have not provided any information about the content they would like us to disable, and we cannot keep 2,000,000 forms down for a few days. They don't seem to care about our concerns or about our customers."

The government also didn't seem to care that a new site with the exact same content was also live on the Internet under a different name; jotform.net remains active.

As for the impact on JotForm's business, Tank doesn't yet know what it will be. "Many users were unhappy and lost trust in us," he added. "We might lose many of our customers. It is hard to say at this point."

Customers blasted the site. "Jotform sucks. Always some sort of problem. I will never again use or recommend Jotform. Already cancelled my subscription and will tell my friend to do so as well," one wrote.

"We are a multimillion dollar Canadian company that has used jotform the last year for customer inquires," said another. "They have been very reliable. However because of what has happened now we will have to implement an internally hosted solution to guarantee this will not happen again and ensure we will not loose [sic] our data. I will now have to question purchasing any more services from US internet related providers."

Numerous commenters blamed the company for using GoDaddy as a registrar. "This is what you get for finically [sic] supporting a domain registrar which has a history of extrajudicial and unjustifiable actions like this," wrote another. "Idiots."

JotForm today moved its domains away from GoDaddy to registrars NameCheap and Hover. Tank still doesn't know why his domain was suspended or when it might be returned; however, a WHOIS search this afternoon revealed that GoDaddy has at last removed the domain from its penalty box.

Not that anyone bothered to tell him this.

"Yes, the site seems to be back now. This made us very happy!" he wrote me by e-mail. "We have been working for the last two days to restore our service for our customers. They have not provided any details. I just found it out from you. Thank you for the great news!"

Update: Secret Service spokesman Brian Leary has confirmed to Ars that, after further investigation, his agency is indeed involved in the JotForm case. The Secret Service has also launched an internal review to "make sure all our policies and procedures were followed" in the matter, he added. He could not comment on any other issues surrounding the case, including whether a court order had been obtained.

from the Hollywood Reporter, 2012-Feb-2, by Stewart Baker:

The SOPA War: Why the GOP Turned on Piracy

For Republicans, opposition to intellectual property laws is starting to look like a political winner, and that should terrify Hollywood as it misreads where the pop-culture power base now lies. The entertainment industry has lost the fight over SOPA, its legislative proposal for stopping Internet piracy. Now some want to try again with a revamped bill and a bigger push. But the same approach could stunt Hollywood's clout in Washington. That's because the industry still doesn't understand its adversary. From the start, studios saw the fight over SOPA as a struggle with a bunch of other companies -- Google and Internet service providers among them -- that were hoping to profit from the Internet travails of the entertainment industry. That turned out to be wrong. In fact, the industry is fighting what amounts to a new popular culture. Unlike the old pop culture Hollywood dominated, this one is largely independent of the music, movie and broadcast industries. In fact, people who spend hours online instead of watching TV or going to movies will probably encounter the entertainment industry only when YouTube videos of their kids dancing to Prince or spoofing Star Wars are pulled down by Hollywood's bots, or when the RIAA threatens to sue them for their college savings, or when digital rights software makes it hard to move their stuff to a new tablet or phone. To the entertainment industry, these episodes might seem like collateral damage in the fight to stop piracy. To the new pop culture, though, collateral damage and misuse of enforcement tools are everywhere, and they threaten everyone. The content industry has made itself into the villain. Increasingly, it looks like an occupying power, obeyed at gunpoint, despised for its ham-handed excesses and resisted from every dark corner. Unfortunately for Hollywood, as its customers migrate to the Internet, it is losing not just their money but their hearts and minds as well. The industry's miscalculation about the source of resistance to SOPA might have led to an even bigger mistake. As long as the campaign for better IP enforcement was an inside-the-beltway, company-versus-company struggle, it could be fought within the Congressional judiciary committees, where Republican and Democratic politicians were wooed and won as individuals. As a result, strengthening intellectual property enforcement has been a bipartisan issue for the past 25 years. But when the fight went from the committees to the floor and Wikipedia went down, every member of Congress was expected to take a stand. The two parties reacted very differently. Despite widespread opposition to SOPA from bloggers on the left, Democrats in Congress (and the administration) were reluctant to oppose the bill outright. The MPAA was not shy about reminding them that Hollywood has been a reliable source of funding for Democratic candidates, and that it would not tolerate defections. But that very public message also reached another audience: Tea Party conservatives. Most of them had never given a second thought to intellectual property enforcement, but many had drawn support from conservative bloggers. They began to ask why they should risk the ire of their Internet supporters to rescue an industry that was happily advertising how much it hated them. Pretty soon, far more Republicans than Democrats had bailed on SOPA, and the Republican presidential candidates had all come out for what they called "Internet freedom." That's what really ought to worry the entertainment industry. For Republicans, opposition to new intellectual property enforcement is starting to look like a political winner. It pleases conservative bloggers, appeals to young swing voters, stokes the culture wars and drives a wedge between two Democratic constituencies, Hollywood and Silicon Valley. We've seen this movie before. Immigration reform, the DREAM Act, free-trade agreements and the USA Patriot Act all commanded impressive bipartisan support -- for a while. Now, not so much. Bills on these topics still come to the floor, and they sometimes even pass, but only after endless partisan point-scoring and amendments driven by talk radio and mass e-mail. The same soon could be true of intellectual property enforcement. SOPA has pushed a generation of Republicans into choosing sides between Hollywood and the Internet. They might never look back. Stewart Baker, a former government official under President George W. Bush, practices security and technology law in Washington D.C. He is the author of Skating on Stilts: Why We Aren't Stopping Tomorrow's Terrorism.

from the Stonegate Institute via the Jerusalem Post, 2012-Feb-7, by Khaled Abu Toameh:

PA: Write only nice things about your leaders on Facebook
Palestinian Authority security forces monitor social media giant; say criticism should be directed against Israel.

Facebook has become a dangerous playground for Palestinians living under the Palestinian Authority in the West Bank.

The US-backed Palestinian Authority security forces belonging to Mahmoud Abbas and Salam Fayyad have been monitoring the activities of Palestinians on Facebook to make sure that no one criticizes them.

The Palestinian Authority wants Palestinians to write only nice things about their leaders. Criticism should be directed only against Israel. Those who fail to toe the line will find themselves either behind bars or without work.

The Palestinian leaders are aware of the power of social networking, especially in light of what happened in Tunisia, Egypt, Libya and Syria.

The Palestinian leadership's clampdown on Facebook users is seen as a pre-emptive measure to prevent the "Arab Spring" from infiltrating into the West Bank.

Rami Samara, a Palestinian journalist from Ramallah, last week found himself under interrogation by two different security agencies in the West Bank: Military Intelligence and General Intelligence.

Samara was detained while at work in the offices of the PLO's official news agency, Wafa. His crime: a comment he posted on his Facebook page.

The comment was about a statement issued by the PLO executive committee holding Israel responsible for the failure of the recent Israeli-Palestinian talks in Jordan.

Samara wrote in his sarcastic comment: "Ok, no joking now, do the members of the 'sole legitimate leadership of the Palestinian people' believe that this announcement is worth their sitting in their seats, turning on the heaters and drinking coffee and tea in their offices in Ramallah?"

The journalist said he was interrogated separately by the two intelligence forces in Ramallah about the comment and his activities on the social networking site. He was released a few hours later following strong protests by other journalists and human rights organizations.

Samara is the second Palestinian journalist to be targeted by security forces loyal to Abbas and Fayyad because of Facebook.

About a year ago, Mamdouh Hamarneh, a TV producer from Bethlehem, was detained for 50 days after comparing Abbas on Facebook to a Syrian actor who portrayed a "traitor" in a popular Syrian soap opera.

This week, a Palestinian woman complained that she too had been summoned for interrogation because of a comment she had posted on her Facebook page. She said she was interrogated by another security agency - Preventive Security - which also belongs to Abbas and Fayyad.

Because of the crackdown on Facebook users, many Palestinians in the West Bank today think twice before they post a comment that could anger the Palestinian leadership in Ramallah.

from the Guardian of London, 2012-Feb-10, by Owen Bowcott:

Interpol accused after journalist arrested over Muhammad tweet
Saudi Arabia used Interpol's system to get journalist arrested in Malaysia for insulting the Prophet Muhammad on Twitter

Interpol has been accused of abusing its powers after Saudi Arabia used the organisation's red notice system to get a journalist arrested in Malaysia for insulting the Prophet Muhammad.

Police in Kuala Lumpur said Hamza Kashgari, 23, was detained at the airport "following a request made to us by Interpol" the international police cooperation agency, on behalf of the Saudi authorities.

Kashgari, a newspaper columnist, fled Saudi Arabia after posting a tweet on the prophet's birthday that sparked more than 30,000 responses and several death threats. The posting, which was later deleted, read: "I have loved things about you and I have hated things about you and there is a lot I don't understand about you … I will not pray for you."

More than 13,000 people joined a Facebook page titled "The Saudi People Demand the Execution of Hamza Kashgari".

Clerics in Saudi Arabia called for him to be charged with apostasy, a religious offence punishable by death. Reports suggest that the Malaysian authorities intend to return him to his native country.

Kashgari's detention has triggered criticism by human rights groups of Malaysia's decision to arrest the journalist and of Interpol's cooperation in the process.

Jago Russell, the chief executive of the British charity Fair Trials International, which has campaigned against the blanket enforcement of Interpol red notices, said: "Interpol should be playing no part in Saudi Arabia's pursuit of Hamza Kashgari, however unwise his comments on Twitter.

"If an Interpol red notice is the reason for his arrest and detention it would be a serious abuse of this powerful international body that is supposed to respect basic human rights (including to peaceful free speech) and to be barred from any involvement in religious or political cases."

He called on Interpol to stand by its obligations to fundamental human rights and "to comply with its obligation not to play any part in this case, which is clearly of a religious nature".

Interpol, which has 190 member countries, has a series of coloured notice systems that police forces around the world use to pass on requests for help. Contacted at its headquarters in Lyon, France, the organisation did not immediately reply to requests for comment on the Kashgari case.

In response to past criticisms of the red notice system, it has said: "There are safeguards in place. The subject of a red notice can challenge it through an independent body, the commission for the control of Interpol's files (CCF)."

Last year Interpol was accused by Fair Trials International of allowing the system to be abused for political purposes when it issued a red notice for the arrest of the Oxford-based leader of an Asian separatist movement, Benny Wenda, who has been granted asylum and has lived in the UK since 2003.

from the Christian Science Monitor online, 2012-Feb-10, by Curt Hopkins:

Malaysia may repatriate Saudi who faces death penalty for tweets

Saudi writer Hamza Kashgari fled Saudi Arabia after a trio of tweets about the prophet Muhammad brought death threats. Malaysian police apprehended him en route to New Zealand, where he was to request asylum.

A 23-year-old Saudi Twitter user, Hamza Kashgari, fled the country Sunday to avoid being arrested for his religious tweets, only to find himself in the hands of the Malaysian police today. He had been heading to New Zealand to request political asylum.

On Saturday, the anniversary of the prophet Muhammad's birthday, Kashgari tweeted three times, expressing his religious beliefs about the founder of Islam. Within hours, he was inundated with violent threats. Despite a full renunciation, a warrant was issued by kingdom authorities for his arrest and the Kingdom's religious Fatwa Council condemned him as an apostate and an infidel, crimes which are punishable by death.

"Blasphemous" Tweets

According to one of Kashgari's friends, who wishes to remain anonymous, these are the three tweets that were the basis for the Saudi arrest warrant.

Kashgari's Twitter account, @Hmzmz, has been shut down.

Kashgari's friend points out that these actions have come after a number of reversals for religious conservatives in the Wahhabi-influenced state. These include a law allowing women to work as salespeople in public lingerie stores, and the replacement of the head of the religious police with a moderate, who ordered restrictions on how the religious police operate. It also happened within the context of the unrest of the Arab Spring.

Hashtags of shame

Kashgari's harassment is not out of the blue, nor, apparently, based on these tweets alone. He has been the target of religious Twitter users for months. "Public shaming through hashtags is now a common Saudi pressure tactic, especially against public officials and government scandals," said his friend.

A hardcore Saudi cleric used YouTube to post his condemnation of the young man. The cleric, Nasser al-Omar, known as the "weeping cleric" for his tendency to burst into tears at the blasphemy done to the prophet, called for Kashgari to be hauled before a sharia court, according to long-time Saudi blogger, Ahmad al-Omran (Saudi Jeans).

"These people [like Kashgari] should be put to trial in sharia courts. It is known that cursing God and his prophet is apostasy. And the fact that he has repented with cold words will not probably save him in the court." (Al-Omram's translation.)

The punishment for apostasy is death.

Saudi Arabia's information minister has commanded that no one publish any of Kashgari's writings. Prior to this incident, he was a columnist with al-Bilad, a newspaper based in the eastern city of Jeddah.

"I have instructed all newspapers and magazines in the kingdom not to allow him to write any thing and we will take legal measures against him."

Kashgari was trying to make a connecting flight to New Zealand when he was apprehended and arrested yesterday in Malaysia at the Kuala Lumpur airport. It has been reported that Malaysia, an officially Islamic state, will forcibly repatriate Kashgar to Saudi Arabia. Malaysia has no formal extradition agreement with the Kingdom of Saudi Arabia.

Curt Hopkins is a production editor and international reporter for the technology blog site, ReadWriteWeb.com, where this blog originally appeared on Feb. 9.

from Gulf News of Dubai, 2012-Feb-14, by Habib Toumi:

Call to try those who supported Saudi blogger
Malaysian minister defends decision to deport Kashgari

Manama People who encouraged a controversial Saudi columnist facing charges of blasphemy could be summoned by the public prosecutor, a report has said.

"The public prosecutor in Jeddah is filing a lawsuit against Hamza Kashgari on charges of disrespecting God and insulting Prophet Mohammad (PBUH) in his Twitter account," sources told Al Hayat daily.

The sources said that public prosecutor in the Red Sea city of Jeddah was likely to summon people who expressed support or agreed with him on the social network, the daily reported yesterday.

"The public prosecutor, as the attorney for the society, has the right to summon anyone who encouraged the defendant or who is connected to matters that motivated his action," Abdul Aziz Al Zamel, a legal consultant, said, quoted by Al Hayat.

The prosecutor is based in Jeddah, the city where Hamza Kashgari posted his tweets on Prophet Mohammad's (PBUH) birth anniversary before fleeing to Malaysia, the sources said.

According to Saudi daily Arab News, "a number of Saudis have called for the trial of all those who tweeted support for Kashgari, saying they were equally guilty."

Differentiate

"Those who supported the contents of Kashgari's tweets are considered criminal exactly like him," Khalid Abu Rashid, a lawyer and a legal consultant, was quoted as saying. The sentence to be passed on Kashgari should be imposed on his supporters too, he said.

The lawyer, however, said it was important to use the written texts to differentiate between two things in this case.

"If the support was for general principles like freedom of expression, then this is a different matter, but if the support was for the attacks on Allah and His Prophet (PBUH), then the supporters should be tried for apostasy," he said in the report quoting Al Eqtisadiah newspaper.

The Arabic daily said that individual and collective calls were made to the Prosecution and Investigations Commission to try Kashgari and all the bloggers who supported him in his blasphemy.

The 23-year-old columnist was deported on Sunday by the Malaysian authorities who arrested him at Kuala Lumpur International Airport.

On Sunday, a Malaysian daily reported that Kashgari was deported back home hours before his lawyers managed to get a High Court injunction to stop the deportation.

The lawyers, led by R. Kesavan, said that they obtained the injunction at 1:30pm on Sunday, but were told that Kashgari has been put on a plane at 10am.

The injunction was an order to the police, the Home Ministry, as well as the Subang and Kuala Lumpur International Airport immigration authorities to stop Kashgari's deportation, the daily said.

However, Home Minister Hesham Al Deen Hussain yesterday denied the claim, saying that no court order was issued to prevent his repatriation.

"There was no injunction. No court order was given to prevent us from returning him to Saudi," the minister told reporters. "If there was a court order, we would abide by it, but there wasn't, so don't make up stories. We have never failed to obey the justice system," he said, quoted by The Malaysian Insider.

The columnist is a Saudi Arabian national wanted by his home country to be tried in the justice system for his offence, the minister said.

No compromise

"I will not compromise. Do not look at Malaysia as a safe transit... Do not think you can come in and out of Malaysia. He is a foreign national, he is wanted by his own country of origin," he said.

Hussain said allegations made by several parties that the columnist would be killed if he was deported were "illogical."

"Allegations that he would be executed, abused, do not make sense. The country being accused is a dignified country. These are serious allegations against Saudi Arabia," Hussain said, quoted by the daily. The home minister said that there were no requests made by Interpol for Kashgari to be returned to his country of origin.

Deportation decisions are made on a case-by-case basis and not all those apprehended are sent back, Hussain said.

from ThomasHawk.com, 2012-Feb-13, by Thomas Hawk:

Think You Can Sell That Photo of Your Cat on Your Living Room Couch as Stock Photography? Think Again.

I just got an email from Getty Images that I suspect is a mass email to all of their various contributors. In the email Getty is asking for help in identifying our photographs that might contain images of designer furniture. The email states that French courts have found in favor of the Le Corbusier rights-holders against Getty in a case where furniture was in the stock photograph.

Here is the email below with emails redacted:

“Attention all Flickr Collection on Getty Images Contributors!

You may have heard about a recent case (actually more than one case) where Getty Images and some of our photographers have had claims lodged against us in French court for images which include designer furniture, even as a minor part of the image.

This is a serious issue that involves potential liability for you as photographers.

The French courts have found in favor of the Le Corbusier rights-holders who initiated these claims. While we disagree with the decision and we are appealing it, we are very mindful that for now, it is a valid decision. It is critical that you understand that any claim like this one is extremely serious and requires action on your part in order to protect your interests, not just ours. We will continue to fight this decision, but in the meantime we must continue to actively pull content from our site that may be deemed infringing. We simply cannot identify all problematic images as quickly without your active participation. And quick action is vital.

Most importantly, if you believe that any of the images you have uploaded to us might possibly include any designer furniture, please email the Getty Images ID numbers to [email redacted] as soon as possible! The sooner we can identify and remove potentially infringing images the better we can reduce potential legal problems.

We are including links to information and FAQs that give more information on this issue and we strongly request that you read them and study the visual guides included.

You can also read the original Le Corbusier complaint here:

In English

Original in French (clearer photos)

Please note: because we are still engaged in litigation, we are very limited in what comments we can make or questions we can answer. If you do have questions please email [email redacted] especially for any specific images you believe may be a problem.

This is only for images you have on the gettyimages.com site. We cannot answer questions about images you have posted on Flickr or elsewhere.

Thank you for your help and attention to this very important matter.”

from USA Today, 2012-Jan-20, by Byron Acohido, with contributions by Yamiche Alcindor, Roger Yu and Matthew Barakat in McLean, Va.; Kevin Johnson in Washington; Associated Press:

Government takedown of Megaupload leads to new fears

Seattle -- The government takedown of Megaupload, a popular file-sharing site, has stoked simmering fears that hard-line enforcement of copyright infringements could profoundly disrupt Internet commerce.

File sharing has become a major way corporations collaborate with employees and partners and interact with customers. It fuels the sharing of rich content across Internet-connected devices in the home and office and distributed to mobile devices and has emerged as a major component of cloud computing, the delivery of content and services across the Web.

"If legitimate content is housed on the same service that might have infringing content, it gets sucked into this vortex and it's gone," says Dennis Fisher, security blogger at Threatpost.com. "I don't know how much the government or these companies (advocating strict anti-piracy enforcement) have thought this through. I would guess not a lot."

Federal authorities shut down Megaupload.com, one of the world's most popular file-sharing sites, Thursday and accused it of costing copyright holders more than $500 million in lost revenue from pirated films, music and other content.

Four executives arrested in New Zealand appeared Friday in an Auckland courtroom to begin extradition proceedings that could take more than a year. Three others remain at large.

According to New Zealand's Fairfax Media, a defense lawyer raised objections to a media request to photograph the proceedings, but his client, Megaupload chief Kim Dotcom, spoke out, saying he would not object "because we have nothing to hide."

The judge granted the media access, and ruled that Dotcom and the three other suspects would remain in custody until Monday, the next scheduled hearing in the case.

The five-count indictment, which alleges copyright infringement as well as conspiracy to commit money laundering and racketeering, described a site designed specifically to reward users who uploaded pirated content for sharing, and turned a blind eye to requests from copyright holders to remove copyright-protected files.

It was unsealed a day after technology companies staged an online blackout to protest two related bills in Congress that would crack down on sites that use copyrighted materials and sell counterfeit goods. Congressional leaders agreed Friday to indefinitely delay action on those bills — Stop Online Priacy Act in the House and Protect IP Act in the Senate.

Critics contend SOPA and PIPA don't so much protect the rights of filmmakers, musicians, writers and artists as they do preserve an antiquated film and music distribution system.

"No law passed in the U.S. is going to have any real effect on whether people steal movies, music and books. That ship has sailed," Fisher says. "The network of underground sites that traffic in pirated movies and music won't disappear. It will simply adapt."

Within 24 hours after U.S. authorities shut down Megaupload servers in Virginia, ABC News reported that the website was accessible again by typing a numeric address in a Web browser. But that address led to a webpage with a message saying work was underway to restore Megaupload, and asking people to spread the word on Facebook and Twitter.

Megaupload may have had a contingency plan with a backup domain and server at the ready to restore services should its main servers go down, something that many Internet companies do, Fisher says.

Al Hilwa, an analyst at research firm IDC, says defining who is responsible for strictly obeying copyright laws is at the heart of the piracy issue. "Shifting that responsibility to the technology providers, networks, hosters and intermediate service providers who make up the file-transfer chain would mean burdening them with escalating costs. That would make them uncompetitive and hurt their growth." he says.

That law enforcement officers were able to coordinate internationally to take action demonstrates that current laws targeting copyright violators work, says Art Brodsky, a spokesman for Public Knowledge, a Washington, D.C.-based communications and technology advocacy group. "They roped in New Zealand police and the FBI flew down there," he said. "So why do you need more laws?"

On Friday afternoon, Twitter and Facebook users continued buzzing about the shutdown of Megaupload. Some posted messages such as "R.I.P. Megaupload," "Missing Megaupload already," and "Let's all have 1 minute of silence for Megaupload."

Meanwhile, federal authorities are investigating disruptions to the Justice Department website and threats to the site maintained by the FBI believed to be prompted by the Megaupload arrests.

The Justice Department website was back online Friday after being hit Thursday evening. An alliance of hackers known as "Anonymous" claimed responsibility.

In a written statement, the Justice Department said its Web server had experienced a "significant increase in activity, resulting in a degradation in service" and that the activity was "being treated as a malicious act."

The enforcement action against Megaupload and actions by hacktivists was not unprecedented. Something similar happened in May 2006 when authorities shut down movie-sharing site Piracy Bay.

Millions of people use websites such as Megaupload and Bit Torrent to transfer TV shows, movies and music. Other file-sharing sites like You Send It and Dropbox focus on file-sharing for workplace collaboration. And newer file-sharing sites like Spotify focus on file-sharing within social media and mobile devices.

If anti-piracy enforcement actions accelerate, hacktivists can be expected to uniformly retaliate, says Josh Shaul, chief technology officer at Application Security.

"We may be looking at a cycle of more enforcement action, more sites being taken down and more retaliation by hacktivists," Shaul says. "People will bring up new file-sharing sites in countries where they can't be taken down, and the cycle will continue."

The hacktivists are getting better at retaliating quickly. Recruits to help execute distributed denial of service (DDos) attacks are trained and equipped to instantly add the processing power of their individual PCs to the cause.

The constant stream of nuisance requests that cut off public access to the Justice Department and motion picture industry websites came from about 5,635 individuals using a networking tool called a "low orbit ion cannon," according to messages posted by Anonymous, which claims this to be the largest such attack ever. PCs likely scattered in multiple nations, using tried-and-true technology to make them difficult to trace, were used.

Such attacks formulate spontaneously in Internet Relay Chat rooms. Participants must use their own initiative to set up their PCs ahead of time so they can't be traced, but the necessary software and training are readily available online.

"The ranks of the hacktivists are swelling," Shaul says. "More people are willing to stick their necks out on the line and start hacking."

While Justice says it is illegal for anyone to download pirated content, its investigation focused on the leaders of the company, not end users who may have downloaded a few movies for personal viewing.

Megaupload.com has 150 million registered users, about 50 million hits daily and endorsements from music superstars. The U.S. indictment said founder Dotcom made $42 million last year alone.

The website allowed users to download some content for free, but made money by charging subscriptions to people who wanted access to faster download speeds or extra content. The website also sold advertising.

The movie industry has fought against the site, saying it is making money off pirated material. Though the company is based in Hong Kong and Dotcom was living in New Zealand, some of the alleged pirated content was hosted on leased servers in Virginia, and that was enough for U.S. prosecutors to act.

New Zealand police seized guns, artwork, more than $8 million in cash and luxury cars valued at nearly $5 million after serving 10 search warrants at several businesses and homes around Auckland.

Dotcom is a resident of Hong Kong and New Zealand and a dual citizen of Finland and Germany who had his name legally changed. The 37-year-old was previously known as Kim Schmitz and Kim Tim Jim Vestor.

Of the three others arrested Thursday, two were German citizens and one was Dutch. Three other defendants — another German, a Slovakian and an Estonian — remained at large.

The Electronic Frontier Foundation, which defends free speech and digital rights online, said in a statement that the arrests set "a terrifying precedent. If the United States can seize a Dutch citizen in New Zealand over a copyright claim, what is next?"

from the Hollywood Reporter, 2012-Jan-20, by Eriq Gardner:

SOPA Defeat Is Not the End Of Hollywood's Ramped-Up Fight Against Piracy (Analysis)

Hollywood still needs Obama. SOPA and the Protect-IP Act could be red herrings. And bigger fights lie ahead. Time to examine the much larger picture...

Today, leaders in both the Senate and House announced the postponement of a procedural vote on controversial anti-piracy bills. As the backlash to SOPA and the Protect-IP Act forces political leaders to reconsider their stances, MPAA head Chris Dodd has signaled that he desperately wants to meet with leaders in the tech sector to look for a compromise.

A truce? Don't speak that word just yet.

Although debate over SOPA has instigated protests and gathered headlines in the past few weeks, the truth is that the legislation would have been only a small part of Hollywood's ongoing attempt to crack down on foreign piracy. Large entertainment studios wanted -- and still want, of course -- codified language that would result in serious efforts by websites to do something about troublesome foreign piracy sites. But even in the absence of such formal legislation, there's a plan to get the intended results anyway.

Here are some key weapons for Hollywood as politicians now do their best to quell the SOPA uproar:

* Federal Enforcement

Many observers have noted the timing of federal authorities dropping the hammer on Megaupload by shutting down the file-sharing site and arresting its leaders on Thursday.

What is not commonly appreciated is the amount of frustration inside Hollywood in the past decade at the Justice Department's refusal to do more about wholesale copyright infringement. Yes, the Hollywood trade organizations and labor guilds issue praising press releases anytime the FBI or ICE makes a major action against copyright pirates. But in our background interviews with Hollywood's fiercest piracy protectors over the years, we've consistently heard how the entertainment industry thinks the executive branch of the government could be doing so much more.

Remember the scene in The Wire when Baltimore cops go into FBI offices in an attempt to get them to make a major drug kingpin crackdown? In that episode, the cops are told that drugs are simply not as big a priority as things like terrorism and political corruption.

That's exactly what happens in real life. Hollywood would love for federal authorities to do everything they can concerning piracy, and to that end, have attempted to connect piracy with terrorism funding. But the Justice Department has limited resources. If the Megaupload raid is a sign of things to come in terms of federal law enforcement reprioritization, it will certainly make Hollywood happy.

* International Enforcement

One thing remarkable about the Megaupload crackdown was the willingness of New Zealand's government to arrest leaders of the company, who were residents of that nation. This was not a simple matter of slapping handcuffs on a few guys. Reportedly, Megaupload founder Kim Dotcom retreated behind a series of electronic locks and barricaded himself in a safe room, gun in hand. In other words, New Zealand decided to puts its own law enforcement in harm's way in the fight against piracy.

The move followed another action in England where 23-year-old British student, Richard O'Dwyer, accused of running a website linking to free films and TV shows, was ordered extradited to the United States. To make this sort of stuff happen requires diplomatic effort. It's not entirely clear that mere linking is illegal so we imagine that British officials had to be convinced that extradition was appropriate.

All the hullabaloo about whether Hollywood will continue to donate money to the campaign of Barack Obama ignores one big reality: They still need him. The Justice Department has discretion on whether to pursue the Megauploads of the world. And the State Department or the U.S. Trade Rep still gets to decide how hard to lean on other countries for cooperation.

* Extraordinary Injunctive Relief

As we discussed last month, even if SOPA doesn't pass, courts could eventually put the effects of the bill into force anyway. Hollywood would surely like this, but in the meantime, judges are issuing all sorts of extraordinary injunctive relief for plaintiffs in intellectual property disputes.

One judge in a case involving a website that marketed counterfeit Chanel merchandise ordered GoDaddy to change registration info and told Google, Twitter, Facebook and Bing to "de-index and/or remove [the domain name] from any search results page." Another judge ordered two advertising networks from assisting a website that was pointing its users to copyright infringing textbooks. (The judge reversed course after hearing an objection.) And yet more judges have ordered search engines, web hosts, registrars and registries to cease facilitating access to websites allegedly participating in trademark infringement.

SOPA protesters roundly cheered when DNS-blocking was taken out of the anti-piracy bills before Congress. But just because Congress won't explicitly approve such measures doesn't mean that they won't happen. In piracy cases going forward, Holllywood can ask sympathetic judges to grant such relief anyway.

* The Boundaries Of Copyright Liability

The debate over SOPA has been marked by heated rhetoric, and perhaps the most overreaching reaction to the controversy is suggestions that some big American-based websites like Wikipedia or Reddit could shutter as a result of a passage. We'll let others argue whether SOPA really poses an existential threat to such operations, but we will propose that the sanctity of free speech isn't the primary reason why some leaders in the tech lobby are fighting so hard.

Rather, the legislation represents yet more burden for them.

The passage of previous anti-piracy laws has compelled these tech companies to have takedown provisions in place, and in many instances, to invest in things like filtering and digital fingerprinting technologies. Now, for better or worse, these companies are dealing with the ramifications of receiving subpoenas and responding to ex parte injunctive relief orders. This is not only a headache and an added expense. It also disrupts relationships with its legitimate customers. Does Facebook, for example, want to explain why it can't protect the secrets of all its users?

Hollywood has stressed that the legislation is intended to fight foreign pirates, but what's got everyone stressing out is the obligations on companies inside American borders. Hollywood has defended the legislation on the idea that nothing will happen without judicial approval, but yes, what then...?

Just because the SOPA fight has been tabled for now doesn't mean that the fight won't continue in the courts over the boundaries of such obligations. Coming soon is the decision in the 2nd Circuit Court of Appeal in Viacom's lawsuit against YouTube. Viacom maintains that YouTube willfully blinded itself to infringements and had an affirmative duty to clean up its servers of copyright infringing material. YouTube says that it is the copyright owner's responsibility to first provide notice of specifically infringing material. That's one case that will shape copyright liability and the burdens of tech companies going forward, but there are others (like MPAA's lawsuit against Hotfile) which will also be important.

Each of these developments will have just as much -- and perhaps more -- impact on innovation, speech, and property protection as the SOPA sweepstakes. Keep perspective.

from TechDirt.com, 2012-Jan-18, by Mike Masnick:

Supreme Court Chooses SOPA/PIPA Protest Day To Give A Giant Middle Finger To The Public Domain
from the ridiculous dept

We've been talking about the Golan case, and its possible impact on culture, for years. If you're unfamiliar with it, it's the third in a line of cases, starting with the Eldred case, to challenge aspects of copyright law as violating the First Amendment. The key point in the case was questioning whether or not the US could take works out of the public domain and put them under copyright. The US had argued it needed to do this under a trade agreement to make other countries respect our copyrights. Of course, for those who were making use of those public domain works, it sure seemed like a way to unfairly lock up works that belonged to the public. It was difficult to see how retroactively taking works out of the public domain could fit into the traditional contours of copyright law... but today, on the day of the big SOPA/PIPA protests... that's exactly what happened (pdf).

The ruling is ridiculously depressing. The Justices basically just keep repeating the mantra they first set forth in Eldred, that as long as Congress says it's okay -- and that the "fair use" and the "idea/expression" dichotomy remain -- all is just dandy. They also claim that since the very first copyright law took works from the public domain and gave them copyright protection, clearly there's nothing wrong with removing works from the public domain. This decision reinforces why the Eldred decision was a complete disaster, and just keeps getting worse. The Eldred ruling basically ignored the fact that copyright had changed entirely in a way that went against the First Amendment... by retroactively granting copyright extension. Now that ruling is being used to take works out of the public domain as well.

First, as with Eldred (and the second case in the trilogy, the Kahle case), I believe that the Court is greatly mistaken in its analysis of copyright law. First it claims that there's little fight between copyright and the First Amendment because the two things were put in place at about the same time. That's a specious argument for a variety of reasons. First, the original copyright law was significantly limited in a way that it was unlikely to really come into conflict with the First Amendment. It was limited to just a few specific areas, and for a very short period of time. It's only now that (1) copyright law has been totally flipped to make just about everything you create covered by copyright, (2) the law has been massively expanded in time and (3) changes in technology make us all create tons of "copyrighted" material all the time -- things have changed an entirely. It's hard to see how the Court can reasonably argue that the traditional contours of copyright law have not changed... but that's exactly what it does. Stunningly, the majority decision here, written by Justice Ginsburg, seems to suggest that there's no First Amendment issue here, because if people want to make use of the works that were previously, but are no longer, in the public domain, they can just buy those rights:

But Congress has not put petitioners in this bind. The question here, as in Eldred, is whether would-be users must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of that work. Prokofiev’s Peter and the Wolf could once be performed free of charge; after §514 the right to perform it must be obtained in the marketplace.

It's a really frustrating decision, because it appears to lack any recognition of just how much copyright law has changed and expanded. It seems to lack -- as it did in Eldred -- any sense of how overreaching copyright law is, in fact, stifling free expression everyday. It's a tone deaf response to what's actually happening.

The dissent, by Justice Breyer (with support from Alito), seems to actually understand this. The rest of the Justices (excluding Kagan, who recused herself due to her role in the case prior to joining the court) just don't seem to want to bother to understand. The dissent, however, kicks off with a quote from Thomas Macaulay's famous speech on the problems of copyright, noting that copyright is, by definition, "a tax on readers for the purpose of giving a bounty to writers." They then note that the decision to remove works from the public domain fails to uphold the basic premise of copyright law:

The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works -- works that have already been created and already are in the American public domain. At the same time, the statute inhibits the dissemination of those works, foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books--books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world.

Breyer -- who has always had a much stronger grasp on copyright than his colleagues -- notes that the whole point of copyright law is to encourage new works, and that the Founders themselves recognized that "monopoly is a two-edged sword, that must be wielded carefully. Breyer quotes the early words of James Madison to Thomas Jefferson, that copyright should be granted, but only "in certain cases.... with caution and guarded with strictness agst abuse" and solely such that it acts as "compensation for a benefit actually gained to the community... which the owner might otherwise withhold from public use."

How taking works out of the public domain accomplishes that goal mystifies Breyer (and me and many others).

Separately, he notes that Congress and the Court have both made it clear in the past that copyright is for the benefit of the public, and not solely to grant rights to authors. The granting of monopolies to authors is the method by which the public might benefit, but not the purpose of copyright law. Retroactively seizing works out of the public domain does not benefit the public. And thus, is unconstitutional. Except... to the six justices who chose not to understand copyright law.

That the Supreme Court released this on the same day of widespread protests against overreaching copyright law is a bit of unfortunate irony. The truth is that Congress is the one who could fix this by actually fixing copyright law and making it clear that the Court's interpretation was wrong. But, instead, because Hollywood pays the bills, they only make copyright law worse. While it's easy to blame this ruling on the Supreme Court, it really implicates Congress. And, thus, it's actually depressingly fitting that this ruling came out today.

from the New York Times, 2012-Jan-18, by Jonathan Weisman:

Web Protests Piracy Bills, and Senators Change Course

WASHINGTON — Online protests on Wednesday quickly cut into Congressional support for online antipiracy measures as lawmakers abandoned and rethought their backing for legislation that pitted new media interests against some of the most powerful old-line commercial interests in Washington.

A freshman senator, Marco Rubio of Florida, a rising Republican star, was first Wednesday morning with his announcement that he would no longer back antipiracy legislation he had co-sponsored. Senator John Cornyn, the Texas Republican who heads the campaign operation for his party, quickly followed suit and urged Congress to take more time to study the measure, which had been set for a test vote next week.

By Wednesday afternoon, Senator Orrin G. Hatch, Republican of Utah and one of the Senate bill’s original co-sponsors, called it “simply not ready for prime time” and withdrew his support.

Their decisions came after some Web pages shut down Wednesday to protest two separate bills, the Stop Online Piracy Act and the Protect Intellectual Property Act. The Stop Online Piracy Act was written by Representative Lamar Smith, the Texas Republican who is chairman of the House Judiciary Committee. Senator Patrick Leahy, the Vermont Democrat who is chairman of the Senate Judiciary Committee, drafted the Protect Intellectual Property Act.

Protests organized in the real world drew far less attention. A rally convened in Midtown Manhattan outside the offices of Senators Charles E. Schumer and Kirsten E. Gillibrand, who co-sponsored some of the proposed legislation, drew a few hundred protesters.

Members of Congress, many of whom are grappling with the issues posed by the explosion in new media and social Web sites, appeared caught off guard by the enmity toward what had been a relatively obscure piece of legislation to many of them. The Senate’s high-tech expertise was mocked in 2006 after the chairman of the Commerce Committee, Senator Ted Stevens of Alaska, called the Internet “not a big truck” but a “series of tubes” — an observation enshrined in the Net Hall of Shame.

In reaction to the pending legislation, the online encyclopedia Wikipedia went dark. Google’s home page had a black banner across it that led to information blasting the bills.

Such new-media lobbying was having an impact.

“As a senator from Florida, a state with a large presence of artists, creators and businesses connected to the creation of intellectual property, I have a strong interest in stopping online piracy that costs Florida jobs,” Mr. Rubio wrote on his Facebook page. “However, we must do this while simultaneously promoting an open, dynamic Internet environment that is ripe for innovation and promotes new technologies.”

Mr. Rubio has outsize influence for a junior senator entering his second year in Congress. He is considered a top contender for the vice presidential ticket of his party’s White House nominee this year, and is being groomed by the Republican leadership to be the face of his party with Hispanics and beyond.

Mr. Cornyn posted on his Facebook page that it was “better to get this done right rather than fast and wrong. Stealing content is theft, plain and simple, but concerns about unintended damage to the Internet and innovation in the tech sector require a more thoughtful balance, which will take more time.”

The moves on Capitol Hill came after the White House over the weekend also backed off the legislative effort.

“While we believe that online piracy by foreign Web sites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk or undermines the dynamic, innovative global Internet,” White House officials said.

With the growing reservations, a bill that passed the Senate Judiciary Committee unanimously and without controversy may be in serious trouble. Senator Harry Reid, the majority leader and Democrat of Nevada, has scheduled a procedural vote on the Leahy version for early next week, but unless negotiators can alter it to satisfy the outraged online world, no one expects it to get 60 votes.

“I encourage Senator Reid to abandon his plan to rush the bill to the floor,” Mr. Rubio wrote on Facebook. “Instead, we should take more time to address the concerns raised by all sides, and come up with new legislation that addresses Internet piracy while protecting free and open access to the Internet.”

Indeed, a senior Senate Republican leadership aide said the Senate version of the bill was dead in its current form, and bipartisan negotiations had begun to revise it considerably. Senators from both parties want to address the Internet piracy issue, but they acknowledged that concerns raised by Google and its online partners would have to be addressed.

At issue is how the bills deal with “DNS filtering.” Web site addresses are converted by the Internet’s domain name server system from typed words into computer language to bring a user to a specific Web site.

The Congressional bills would allow the Justice Department to seek injunctions to prevent domestic Internet service providers from translating the names of suspected pirate sites; the legislation would also require search engines such as Google not to display suspected sites on search results. In effect, the bills would make search engines the enforcers of a law they oppose.

Congressional negotiators are looking at radical revisions to the DNS provisions, but lawmakers may decide the resulting legislation is too neutered to pursue, aides from both parties say.

Support for the legislation on Capitol Hill eroded throughout the day. Another Republican co-sponsor of the Senate bill, Roy Blunt of Missouri, withdrew his support in the early afternoon. Other senators who issued concerns about the legislation as written included Republican Senators Mark Kirk of Illinois and Jim DeMint of South Carolina. Senator Scott Brown, Republican of Massachusetts, had said on Tuesday that he would vote against the measure.

Mr. DeMint called the proposed legislation “misguided bills that will cause more harm than good.”

“In seeking to protect intellectual property rights, we must ensure that we do not undermine free speech, threaten economic growth, or impose burdensome regulations,” he said in a statement.

The media industry has been pushing for a legislative response to online piracy for some time. Groups like the Motion Picture Association of America and the Recording Industry Association of America, as well as giants like News Corporation, are practiced at old-time lobbying — hiring big-name Washington personalities like the former senator Christopher J. Dodd and contributing to campaign funds.

Mr. Dodd, who is now chairman and chief executive of the motion picture association, forcefully denounced the shutdowns in a statement issued on Tuesday.

“Only days after the White House and chief sponsors of the legislation responded to the major concern expressed by opponents and then called for all parties to work cooperatively together, some technology business interests are resorting to stunts that punish their users or turn them into their corporate pawns, rather than coming to the table to find solutions to a problem that all now seem to agree is very real and damaging,” he said.

In the Tea Party era of grass-roots muscle, though, the old school was taken to school, Congressional aides and media lobbyists agree.

“The problem for the content industry is they just don’t know how to mobilize people,” said John P. Feehery, a former Republican leadership aide and executive at the motion picture lobby. “They have a small group of content makers, a few unions, whereas the Internet world, the social media world especially, has a tremendous reach. They can reach people in ways we never dreamed of before.

“This has been a real learning experience for the content world,” Mr. Feehery added.

from the Wall Street Journal, 2012-Jan-18, by Amy Schatz, Siobhan Hughes, Geoffrey A. Fowler and Christopher S. Stewart, with Tom Loftus and Corey Boles contributing:

SOPA Bill Faces New Hurdles

Antipiracy bills in Congress faced new hurdles Wednesday as House Speaker John Boehner said the legislation wasn't ready for a vote and more than a half-dozen senators expressed reservations in some form.

Sen. Orrin Hatch of Utah, the top Republican on the Judiciary Committee, was among the most significant shifts. He said in a statement Wednesday afternoon that the bill is "simply not ready for prime time."

Other senators expressing reservations included Sen. Marco Rubio (R., Fla.), formerly a co-sponsor of the Senate version of the legislation, Sen. Scott Brown (R., Mass.) and Sen. Roy Blunt (R., Mo.). Mr. Rubio said he was withdrawing his support and called for "new legislation that addresses Internet piracy while protecting free and open access to the Internet.

Similar versions of online piracy legislation in the House and the Senate—called the Stop Online Piracy Act, or SOPA, and Protect Intellectual Property Act, or PIPA—are aimed at stopping domestic access and funding to foreign-based websites that offer pirated movies, music and other content. The legislation would give the U.S. attorney general new powers to cut off funding, advertising and access to the sites.

Still, the lead backer of controversial House piracy legislation said he "expects to move forward" with the legislation next month.

House Judiciary Committee Chairman Lamar Smith (R., Texas) said in an interview Wednesday that he wasn't discouraged by the criticisms leveled at him by opponents of the legislation. He said many of their concerns have already been addressed by changes to the bill.

"It's easy to engage in fear-mongering and it's easy to raise straw men and red herrings but if they read the bill they will be reassured," Mr. Smith said.

Protests against the legislation mounted on Wednesday. Online encyclopedia Wikipedia and many other websites went dark in protest against the legislation, which they say will lead to a less open Internet and could lead to new legal liability for U.S. websites that inadvertently host pirated movies, music or other content.

Tiffiniy Cheng, the founder of the activist group Fight for the Future, said that at least 60,000 websites had signed up on Sopastrike.com to say that they would join Wednesday's online "blackout" in some way.

Internet users going to Wikipedia's front page on Wednesday were greeted with this protest banner from the online encyclopedia.

"This is a fundamental struggle that people are waging against corporate copyright holders who want to control the Internet," she said. "Internet users around the world and especially in the U.S. are up in arms about it."

Some famous names in tech joined in the fray on Wednesday, too. Facebook Inc. CEO Mark Zuckerberg posted a status update on his social network about his opposition to the laws. "We can't let poorly thought out laws get in the way of the internet's development. Facebook opposes SOPA and PIPA, and we will continue to oppose any laws that will hurt the Internet," he wrote.

"The world today needs political leaders who are pro-internet. We have been working with many of these folks for months on better alternatives to these current proposals," he added.

Google Inc. executive chairman Eric Schmidt echoed the plea that Google plastered across the front of its search engine by Tweeting, "Take 1 minute to sign Google's petition urging Congress to vote NO on PIPA and SOPA. Defend the web!"

Silicon Valley's own Democrat member of Congress, Rep. Anna G. Eshoo from Palo Alto, joined in the online protest by turning her House website black. "Members of Congress need to hear about the consequences of SOPA, and when they do, they'll learn of the serious consequences to the Internet the bill poses. It's time to pull up the emergency brake on this legislation," she said in a statement.

Rep. Earl Blumenauer (D., Ore.) said he would black out his website for one hour on Wednesday afternoon to show solidarity with online sites. Rep. Peter DeFazio (D., Ore.) went to the House floor to say, "Imagine how some of these user content sites are going to have to try and police things. They can always err on the side of censorship, because there's broad provisions in this bill to allow you in good faith to censor something."

A New York City technology group called NY Tech Meetup, which hosts monthly meetings for start-ups, scheduled a protest for 12:30 p.m. in front of the midtown offices of U.S. Senators Charles Schumer and Kirsten Gillibrand.

As of about noon, 1,500 people had indicated on NY Tech's website that they would be attending the protest. Both Sen. Schumer (D.-N.Y.) and Sen. Gillibrand (D.-N.Y.) are sponsors of PIPA.

"Obviously there's no censorship in the bill and no one can indicate any censorship whatsoever. It's not censorship to want to stop illegal activity," Mr. Smith said Wednesday. "That's all we do. We're trying to impede illegal activity by foreign websites."

The Stop Online Piracy Act is awaiting action in the House Judiciary Committee, which tried to finish work on the bill in December but stopped after opponents proposed dozens of amendments. The House returned this week from its holiday recess. Mr. Smith said Tuesday that he plans to try again to pass the legislation out of committee next month.

Even if he is successful, it's not clear if the legislation would move much further unless changes are made to appease opponents. On Wednesday, House Speaker John Boehner (R., Ohio) told reporters that the piracy legislation wasn't set to come up for a vote anytime soon because "it's pretty clear to many of us that there's a lack of consensus at this point."

"I would hope the committee would continue to work to try and build consensus before this bill comes to the floor," Mr. Boehner said.

Similar legislation has been stalled in the Senate since May but is expected to be on the floor Tuesday for a procedural vote.

Meanwhile, websites including Wikipedia and Craigslist on Wednesday continued to shut down their English-language services to protest the bill. The websites fear that they will wind up as targets for unknowingly linking to pirated content, and wind up facing court orders to shut down links to pirated content or private legal action for hosting allegedly illegal content.

Large media companies say the legislation is tailored to target foreign-based websites, which are currently outside the jurisdiction of U.S. law enforcement officials. But media executives' efforts to rally support for the bill haven't been as visible as their opponents.

Asked about a network going dark as a public stunt in response to Internet blackout day, a media executive said Wednesday, "It's not practical. The only time that we've done anything coordinated like that across networks is in a time of national peril or national disaster. I don't think this qualifies."

The media executive also said that it had not been easy recruiting Hollywood talent for the cause. "Despite common understanding that we control the talent, they do whatever they want."

The executive added that there was some "disappointment" when Ashton Kutcher came out against SOPA. The star of CBS' "Two and a Half Men" came out against the legislation in late December, declaring in a lengthy blog post that "SOPA Is The problem And Not The Solution."

from the Hill, 2012-Jan-14, by Brendan Sasso:

SOPA shelved until 'consensus' is found

House Oversight Chairman Darrell Issa (R-Calif.) said early Saturday morning that Majority Leader Eric Cantor (R-Va.) promised him the House will not vote on the controversial Stop Online Piracy Act (SOPA) unless there is consensus on the bill.

"While I remain concerned about Senate action on the Protect IP Act, I am confident that flawed legislation will not be taken up by this House," Issa said in a statement. "Majority Leader Cantor has assured me that we will continue to work to address outstanding concerns and work to build consensus prior to any anti-piracy legislation coming before the House for a vote."

The announcement comes just hours after Judiciary Chairman Lamar Smith (R-Texas), SOPA's sponsor, made a major concession to the bill's critics by agreeing to drop a controversial provision that would have required Internet service providers to block infringing websites.

SOPA is designed to go after foreign websites that offer illegal copies of music, movies and TV shows with impunity. Even without the provision allowing sites to be blocked, the bill would empower the Justice Department and copyright holders to demand that search engines delete links to sites “dedicated” to copyright infringement. Ad networks and payment processors would be prohibited from doing business with the sites.

The bill has sparked a backlash from Internet freedom advocates and Web companies, including Google, Yahoo and Facebook, who say it would stifle innovation and suppress free speech.

The provision that would have required Internet providers to block infringing websites was one of the most controversial aspects of the bill. Google Chairman Eric Schmidt compared the provision to how China censors political speech online.

Issa, who is a former chairman of the Consumer Electronics Association, is close with the tech community and has been an outspoken critic of SOPA. He had scheduled a hearing for next Wednesday to examine the potential consequences of the bill's site-blocking provision, but he announced in his statement Saturday that he would cancel the hearing in light of Smith's decision to drop the provision.

Issa said that even without the site-blocking provision, the bill is "fundamentally flawed."

"Right now, the focus of protecting the Internet needs to be on the Senate where Majority Leader Reid has announced his intention to try to move similar legislation in less than two weeks," he said.

The Senate bill's sponsor, Sen. Patrick Leahy's (D-Vt.), said on Thursday that he is open to changes to the site-blocking provision.

from Gun Owners of America, 2012-Jan-18:

Senate Moves on Bill to "Muzzle the Web"
Legislation could potentially shut down gun websites

By now, you are no doubt aware that several websites have either gone totally or partially "dark" today in protest of the pernicious internet legislation that will be coming to a vote next week. Wikipedia and Google are just two of the websites which are protesting in this manner.

And while you may have not paid much attention to this story, you need to know that the "muzzle the web" legislation these sites are protesting could also affect your ability to get gun-related information on websites like GOA's.

The reason is that S. 968 could, in its final form, allow the Brady Campaign to partially shut down our GOA website and our organization (plus many other pro-gun websites) with a series of factually accurate, but legally frivolous complaints.

The Senate bill and its House counterpart have accurately been called "a direct attack on the underpinnings of the web."

True, many of the most serious "gun problems" are in the House counterpart. But the reality is this: We are within a few votes of killing the whole concept next week in the Senate with only 41 Senate votes.

But if we allow the so-called "anti-piracy" bill to go forward on the HOPE that the worst provisions will not make it into the final version -- and we fail to eliminate them -- the bill may be unstoppable.

Here are the "gun problems," as we see them: Section 103(b)(1) of H.R. 3261 allows any "holder of an intellectual property right" to demand that PayPal and other payment and advertising services stop providing services to organizations like ours, thereby shutting off our income.

How would they do this? Perhaps by arguing that we were stealing their intellectual property by quoting their lying misrepresentations in our alerts.

Is this legally frivolous? Sure it is. But the Brady Campaign is the King of Frivolous Complaints:

* Remember when the Brady Campaign asked the Federal Election Commission in 2007 to shut down GOA's ability to post its candidate ratings on the Internet? They claimed that we were in violation of the McCain-Feingold Campaign Finance Reform Act. Thankfully, the FEC ruled in GOA's favor, thus enabling us to continue posting candidate ratings without restraint.

* Remember when the Brady Campaign got 36 state and local jurisdictions to bring frivolous lawsuits against gun manufacturers -- not in the expectation of winning, but to drain the resources of the manufacturers in order to halt the manufacture of guns in America?

This "muzzle the web" legislation will throw the doors open to even more frivolous complaints. Could we defend ourselves? Yes, we could. We could file a counter notification under section 103(b)(5) and spend years defending ourselves. But the one thing we did learn during the 36 frivolous lawsuits is that the anti-gun forces in America have very deep pockets.

And the other problem is that, under section 104, our Internet providers would be insulated from liability for shutting us down. But they would receive no comparable insulation from legal liability if they refused to cut us off.

The Senate version, S. 968, has been amended, at the behest of Iowa Senator Chuck Grassley and others, to provide many protections which were not in its initial form.

Under section 3, the Attorney General would go to court and would have to claim that, because of a hyperlink to an offending site, we were "primarily" engaged in the theft of intellectual property.

We would feel a lot better about these protections if the Attorney General were not Eric Holder, a ruthless ideologue who has demonstrated that he will go to any lengths to destroy the Second Amendment.

So the bottom line is this: H.R. 3261 and S. 968 would potentially empower the Brady Campaign and Eric Holder to go after our Internet site. To do so, they would have to make the same frivolous arguments and engage in the same lawless activity that they have done so often in the past.

But -- given that we're within a few votes of snuffing out that risk by killing the bill in the Senate -- we believe it's the better course of action to do so.

from the Stanford Law Review, 2011-Dec-19, by Mark Lemley, David S. Levine, & David G. Post:

Don't Break the Internet

Two bills now pending in Congress—the PROTECT IP Act of 2011 (Protect IP) in the Senate and the Stop Online Piracy Act (SOPA) in the House—represent the latest legislative attempts to address a serious global problem: large-scale online copyright and trademark infringement. Although the bills differ in certain respects, they share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet's addressing system, for the principle of interconnectivity that has helped drive the Internet's extraordinary growth, and for free expression.

To begin with, the bills represent an unprecedented, legally sanctioned assault on the Internet's critical technical infrastructure. Based upon nothing more than an application by a federal prosecutor alleging that a foreign website is “dedicated to infringing activities,” Protect IP authorizes courts to order all U.S. Internet service providers, domain name registries, domain name registrars, and operators of domain name servers—a category that includes hundreds of thousands of small and medium-sized businesses, colleges, universities, nonprofit organizations, and the like—to take steps to prevent the offending site's domain name from translating to the correct Internet protocol address. These orders can be issued even when the domains in question are located outside of the United States and registered in top-level domains (e.g., .fr, .de, or .jp) whose operators are themselves located outside the United States; indeed, some of the bills' remedial provisions are directed solely at such domains.

Directing the remedial power of the courts towards the Internet's core technical infrastructure in this sledgehammer fashion has impact far beyond intellectual property rights enforcement—it threatens the fundamental principle of interconnectivity that is at the very heart of the Internet. The Internet's Domain Name System (DNS) is a foundational block upon which the Internet has been built and upon which its continued functioning critically depends; it is among a handful of protocols upon which almost every other protocol, and countless Internet applications, rely to operate smoothly. Court-ordered removal or replacement of entries from the series of interlocking databases that reside in domain name servers and domain name registries around the globe undermines the principle of domain name universality—the principle that all domain name servers, wherever they may be located across the network, will return the same answer when queried with respect to the Internet address of any specific domain name. Much Internet communication, and many of the thousands of protocols and applications that together provide the platform for that communication, are premised on this principle.

Mandated court-ordered DNS filtering will also have potentially catastrophic consequences for DNS stability and security. It will subvert efforts currently underway—and strongly supported by the U.S. government—to build more robust security protections into the DNS protocols. In the words of a number of leading technology experts, several of whom have been intimately involved in the creation and continued evolution of the DNS for decades:

Mandated DNS filtering would be minimally effective and would present technical challenges that could frustrate important security initiatives. Additionally, it would promote development of techniques and software that circumvent use of the DNS. These actions would threaten the DNS's ability to provide universal naming, a primary source of the Internet's value as a single, unified, global communications network. . . . DNS filtering will be evaded through trivial and often automated changes through easily accessible and installed software plugins. Given this strong potential for evasion, the long-term benefits of using mandated DNS filtering to combat infringement seem modest at best.[1]

Indeed, this approach could actually have an effect directly contrary to what its proponents intend: if large swaths of websites are cut out of the Internet addressing system, those sites—and the users who want to reach them—may well gravitate towards alternative, unregulated domain name addressing systems, making it even harder for governments to exercise their legitimate regulatory role in Internet activities.

The bills take aim not only at the Internet's core technical infrastructure, but at its economic and commercial infrastructure as well. Credit card companies, banks, and other financial institutions could be ordered to “prevent, prohibit, or suspend” all dealings with the site associated with the domain name. Online advertisers could be ordered to cease providing advertising services to the site associated with the domain name. Search engine providers could be ordered to “remove or disable access to the Internet site associated with the domain name,” and to disable all hypertext links to the site.

These drastic consequences would be imposed against persons and organizations outside of the jurisdiction of the U.S. courts by virtue of the fiction that these prosecutorial actions are proceedings in rem, in which the “defendant” is not the operator of the site but the domain name itself. Both bills suggest that these remedies can be meted out by courts after nothing more than ex parte proceedings—proceedings at which only one side (the prosecutor or even a private plaintiff) need present evidence and the operator of the allegedly infringing site need not be present nor even made aware that the action was pending against his or her “property.”

This not only violates basic principles of due process by depriving persons of property without a fair hearing and a reasonable opportunity to be heard, it also constitutes an unconstitutional abridgement of the freedom of speech protected by the First Amendment. The Supreme Court has made it abundantly clear that governmental action suppressing speech, if taken prior to an adversary proceeding and subsequent judicial determination that the speech in question is unlawful,[2] is a presumptively unconstitutional “prior restraint.” In other words, it is the “most serious and the least tolerable infringement on First Amendment rights,”[3] permissible only in the narrowest range of circumstances. The Constitution requires a court “to make a final determination” that the material in question is unlawful “after an adversary hearing before the material is completely removed from circulation.[4]

The procedures outlined in both bills fail this fundamental constitutional test. Websites can be “completely removed from circulation”—rendered unreachable by, and invisible to, Internet users in the United States and abroad—immediately upon application by the government, without any reasonable opportunity for the owner or operator of the website in question to be heard or to present evidence on his or her own behalf. This falls far short of what the Constitution requires before speech can be eliminated from public circulation.

As serious as these infirmities are, SOPA, the House's bill, builds upon them, enlarges them, and makes them worse. Under SOPA, IP rights holders can proceed vigilante-style against allegedly offending sites, without any court hearing or any judicial intervention or oversight whatsoever. For example, SOPA establishes a scheme under which an IP rights holder need only notify credit card companies of the facts supporting its “good faith belief” that an identified Internet site is “primarily designed or operated for the purpose of” infringement. The recipients of that notice will then have five days to cease doing business with the specified site by taking “technically feasible and reasonable” steps to prevent it “from completing payment transactions” with customers. And all of this occurs based upon a notice delivered by the rights holder, which no neutral third party has even looked at, let alone adjudicated on the merits. If they get the assistance of a court, IP owners can also prevent other companies from “making available advertisements” to the site, and the government can prevent search engines from pointing to that site.

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country's tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.

United States law has long allowed Internet intermediaries to focus on empowering communications by and among users, free from the need to monitor, supervise, or play any other gatekeeping or policing role with respect to those communications. Requiring Internet service providers, website operators, search engine providers, credit card companies, banks, Internet advertisers, and others to block access to websites because of their content would constitute a dramatic retreat from that important policy. Laws protecting Internet intermediaries from liability for content on the Internet are responsible for transforming the Internet into the revolutionary communications medium that it is today. They reflect a policy that has not only helped make the United States the world leader in a wide range of Internet-related industries, but that has also enabled the Internet's uniquely decentralized structure to serve as a global platform for innovation, speech, collaboration, civic engagement, and economic growth. These bills would undermine that leadership and dramatically diminish the Internet's capability as a communications medium. As Secretary of State Hillary Clinton noted last year:

[T]he new iconic infrastructure of our age is the internet. Instead of division, it stands for connection. But even as networks spread to nations around the globe, virtual walls are cropping up in place of visible walls. . . . Some countries have erected electronic barriers that prevent their people from accessing portions of the world's networks. They've expunged words, names, and phrases from search engine results. They have violated the privacy of citizens who engage in non-violent political speech. . . . With the spread of these restrictive practices, a new information curtain is descending across much of the world.[5]

It would be not just ironic, but tragic, were the United States to join the ranks of these repressive and restrictive regimes, erecting our own “virtual walls” to prevent people from accessing portions of the world's networks. Passage of these bills will compromise our ability to defend the principle of the single global Internet—the Internet that looks the same to, and allows free and unfettered communication between, users located in Boston, Bucharest, and Buenos Aires, free of locally imposed censorship regimes. As such, it may represent the biggest threat to the Internet in its history.

Copyright and trademark infringement on the Internet is a very real problem, and reasonable proposals to augment the ample array of enforcement powers already at the disposal of IP rights holders and law enforcement officials may serve the public interest. But the power to break the Internet shouldn't be among them.

Mark Lemley is the William H. Neukom Professor at Stanford Law School
David Levine is an Assistant Professor at Elon University School of Law
David Post is a Professor at Beasley School of Law, Temple University

Footnotes

  1. Steve Crocker et al., Security and Other Technical Concerns Raised by the DNS Filtering Requirements in the PROTECT IP Bill, domainincite.com (May 2011), http://domainincite.com/docs/PROTECT-IP-Technical-Whitepaper-Final.pdf.
  2. Freedman v. Maryland, 380 U.S. 51, 58-60 (1965).
  3. Neb. Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976).
  4. Ctr. For Democracy & Tech. v. Pappert, 337 F. Supp. 2d 606, 657 (E.D. Pa. 2004) (emphasis added).
  5. Hillary Clinton, U.S. Sec'y of State, Remarks on Internet Freedom (Jan. 21, 2010), http://www.state.gov/secretary/rm/2010/01/135519.htm.

from Popular Mechanics, 2011-Dec-20, by Adam Savage:

MythBuster Adam Savage: SOPA Could Destroy the Internet as We Know It

Soon the U.S. Congress will reconvene to consider the Protect IP Act and the Stop Online Piracy Act (SOPA). Mythbuster and PM contributing editor Adam Savage says that if these sweeping pieces of legislation pass, the U.S. will join the likes of China and Iran in censoring the Internet, and destroy the openness that made the Web perhaps the most important technological advance of his lifetime.

Right now Congress is considering two bills—the Protect IP Act, and the Stop Online Piracy Act (SOPA)—that would be laughable if they weren't in fact real. Honestly, if a friend wrote these into a piece of fiction about government oversight gone amok, I'd have to tell them that they were too one-dimensional, too obviously anticonstitutional.

Make no mistake: These bills aren't simply unconstitutional, they are anticonstitutional. They would allow for the wholesale elimination of entire websites, domain names, and chunks of the DNS (the underlying structure of the whole Internet), based on nothing more than the "good faith" assertion by a single party that the website is infringing on a copyright of the complainant. The accused doesn't even have to be aware that the complaint has been made.

I'm not kidding.

The Digital Millennium Copyright Act (DMCA), passed in 1998, is a lousy piece of legislation and a very useful lens through which to regard these two new pieces of legislation. Think of all the stories you've read over the past 14 years of people slapping DMCA takedowns of content that they didn't own, just because they didn't like what it had to say. One that comes to mind is Uri Gellar, the popular psychic who performed spoon bending and other tricks on TV in the 1970s. Using a DMCA claim, he had YouTube pull videos of him being humiliated during a 1973 appearance on The Tonight Show with Johnny Carson, when he had no copyright claim to them at all.

This is exactly what will happen with Protect IP and SOPA. We've seen it again and again. Give people a club like this and you can kiss the Internet as you know it goodbye. It's really that bad. And it's a clear violation of our First Amendment right to free speech.

The Internet is probably the most important technological advancement of my lifetime. Its strength lies in its open architecture and its ability to allow a framework where all voices can be heard. Like the printing press before it (which states also tried to regulate, for centuries), it democratizes information, and thus it democratizes power. If we allow Congress to pass these draconian laws, we'll be joining nations like China and Iran in filtering what we allow people to see, do, and say on the Web.

And we're better than that.

Please don't just take my word for it. There's tons of information out there about these two bills out there. Google it. Read the Stanford Law Review's take on it. And read what Cory Doctorow has to say here, here and here.

Educate yourself. Call your congressperson or senator and make your voice heard. You can make a difference.

from Forbes, 2011-Dec-21, by Andy Greenberg:

SOPA Haters Are Already Finding Easy Ways To Circumvent Its Censorship

“The Internet interprets censorship as damage and routes around it,” goes the saying coined by Sun Microsystems coder and EFF founder John Gilmore. Now the Internet's communities of coders and free speech advocates have interpreted the Stop Online Piracy Act (SOPA) as intolerable digital damage before it has even come to a vote, and are already working on tools anyone can use to route around its roadblocks to foreign, copyright-infringing sites.

While Congress has postponed the second half of its hearing of SOPA until next year, a developer named Tamer Rizk has been busy building an add-on for Firefox called DeSopa, which aims to give any Firefox user access to sites that SOPA's copyright protection measures has blocked. “This program is a proof of concept that SOPA will not help prevent piracy,” reads a note including on DeSopa's download page. “If SOPA is implemented, thousands of similar and more innovative programs and services will sprout up to provide access to the websites that people frequent. SOPA is a mistake. It does not even technically help solve the underlying problem, as this software illustrates.”

DeSopa takes advantage of an blatant weakness in how SOPA's controversial filtering mandate would function under the current version of the bill. The new copyright infringement regime would allow editing of the Domain Name System, the registry that converts websites' domains (like Google.com or Yahoo.com) into an Internet Protocol address (like 74.125.157.99 or 98.137.149.56). When you type “Google.com” into your browser, your computer communicates with DNS servers that convert that name into an IP address. But type the IP address directly into your browser, and it works just as well.

Since SOPA would lead to editing American DNS servers' IP lists to insert errors for sites deemed illegal, DeSopa simply checks with foreign DNS servers to find the correct IP address and navigates directly to whatever blocked site the user enters. To avoid incorrect IP addresses in those foreign servers, the program even checks domains with three DNS servers and grabs whichever IP address has at least two agreeing answers. “Similar offshore resolution services will eventually maintain their own cache of websites, without blacklisting, in order to meet the demand created by SOPA,” writes Rizk.

For the last two weeks, users on Reddit have been assembling their own lists of IP addresses for key sites that might be blocked under SOPA, what some of them call the “Emergency List.” Users could simply check the list for the IP address of a blocked site they want to visit and navigate directly to its IP. Or, as the redditors have discussed, they could edit the “hosts” file on their own machines, a locally-stored list that overrides DNS and tells Web browsers which domains correspond with which IP addresses.

Editing hosts files is far from a perfect solution: Because sites' IP addresses frequently change, users would often find certain sites inaccessible and need to go searching for a more current IP. But as DeSopa illustrates, SOPA's thin layer of DNS censorship means users are sure to find a way to keep their locally-stored versions of DNS up to date and visit blacklisted sites.

Just because SOPA's DNS censorship can be defeated, however, doesn't mean the bill won't damage the Internet. Engineers have been warning Congress that monkeying with DNS will make it impossible to implement DNSSEC, a new DNS protocol designed to prevent DNS spoofing attacks that hijack users' browsing and take them to untrusted sites even when they enter the domain of a trusted one. Those security concerns are one reason SOPA's discussion in Congress has been postponed until the new year to allow for more technical research. “No one in Congress intended to break anything,” says Dan Kaminsky, a leading DNS security researcher who has vocally opposed SOPA's proposed changes to the system. “They intended to address a legitimate economic concern. But thanks to the law of unintended consequences, their efforts in DNS filtering run counter to our efforts in DNS authentication.”

The end result of SOPA in its current form, in other words, would be to reinforce the Internet's fundamental security problems without blocking access to copyright-infringing sites for any user savvy enough to use simple software tools. Vint Cerf, one of the founders of the Internet, said as much in his letter to Congress earlier this month, even listing the exact ways DNS filtering would be circumvented. “This collateral damage of SOPA would be particularly regrettable because site blocking or redirection mechanisms are unlikely to make a significant dent in the availability of infringing material and counterfeits online, given that DNS manipulation can be defeated by simply choosing an offshore DNS resolution provider, maintaining one's own local DNS cache or using direct IP address references,” he wrote.

Cerf, after all, helped to design the Internet to be robust above all else, finding its way around physical and digital hurdles to reliably deliver data. Thanks to a few angry geeks, it will likely find its way around any legal hurdles, too.

from the San Francisco Chronicle, 2011-Dec-20, p.D1, by James Temple:

Piracy act debate getting ridiculous

As Congress debates nothing less important than the future of the Internet, our nation's leaders are applying all the intellectual rigor you'd expect from a tween selecting a smart phone.

Her primary philosophical considerations are, of course, what will her friends think and what will her parents pay for? And so it goes for the House Judiciary Committee.

A markup session for the controversial Stop Online Piracy Act last week devolved into high school drama, replete with name calling and a stubborn refusal to let the nerds talk. The debate, if you want to call it that, could resume today.

This column has repeatedly pointed out how the bipartisan bill designed to battle Internet piracy undermines critical legal protections that foster online innovation. Even after some recent improvements, it still grants copyright holders enormous power to cut off access or funds to sites they determine are infringing, with too little judicial oversight or due process.

Technical problems

Meanwhile, a growing chorus of Internet infrastructure experts believe that the specific mechanisms for blocking sites - such as inserting false information into the domain name system - could introduce technical problems and security vulnerabilities.

In other words, the bill could chip away at the underpinnings of the most transformative technology and economic force of our age. But you wouldn't sense the weight of these issues by watching the behavior of our elected officials.

Late last week, Reps. Steve King, R-Iowa, Sheila Jackson Lee, D-Texas, and their colleagues managed to grind the session to a halt as they exchanged taunts that boiled down to: You're boring. Yeah, well, you're offensive! Nu uh, you're out of order!

But the charade of an intellectual debate on the subject didn't stop there. It didn't even start there.

In November, the Judiciary Committee set up a mockery of an open debate by flagrantly stacking the witness deck. One person opposed to the bill, Google policy counsel Katherine Oyama, was left to duke it out against five people from organizations that back the measure, like the Motion Picture Association of America, Pfizer and MasterCard.

Similarly, a major sticking point in the markup session last week was whether the committee should bother to hear from any of the many Internet experts (those "nerds" cited earlier) who could intelligently lay out the security concerns.

Level of ignorance

Rep. Lamar Smith, R-Texas, chairman of the Judiciary Committee and sponsor of the legislation, refused to entertain the idea as he sought to rush the bill onto the floor. Other representatives admitted they didn't understand the technical complexities, but nonetheless felt satisfied with the bill - and apparently their own level of ignorance.

It seems it was enough for them that someone like Motion Picture Association of America Senior Vice President Michael O'Leary said the security concerns were overstated, when he was given a chance to testify. And surely he would know, what with a career spent mostly in government.

Or is it possible that someone like Vint Cerf, considered one of the founding fathers of the Internet, knows a little something worth hearing? He and 82 other "innovators, inventors and engineers" who in various ways helped build the Internet signed a letter strenuously opposing the bill.

"When we designed the Internet the first time, our priorities were reliability, robustness and minimizing central points of failure or control," it read. "We are alarmed that Congress is so close to mandating censorship-compliance as a design requirement for new Internet innovations. This can only damage the security of the network, and give authoritarian governments more power over what their citizens can read and publish."

Late Friday, Smith appeared to reluctantly agree to allow experts to testify, after dozens of amendments and other delays made it clear the bill wouldn't sail through the committee as initially expected.

Questioning methods

Perhaps I'm more dewy-eyed about our political system than I realized, but why wouldn't elected officials at least want to hear what experts have to say on this matter? Even if they're in favor of the ultimate goals of the bill - and no one's out arguing for piracy - couldn't it still be that the methods employed are misguided or dangerous?

It all smacks of the growing strain of anti-intellectualism in this country - and in this Congress. The attitude seems to be: Why would the committee need to hear from any pointy-headed brainiacs about niggling little things like facts and details? Theft is wrong; the media industry says this bill stops theft. Ergo, this bill is right and just.

The real question is, why are the politicians so eager to embrace the media industry's take on this matter?

Here, we come back to our tween picking out that smart phone. In the case of Congress, the media industry seems to be playing the dual roles of influential friend and paying parent. And they're willing to splurge on that shiny new iPhone 4S while the tech industry is only coughing up enough for last year's Android.

The nonpartisan research organization Map Light.org noted that sponsors of the bill have raised four times more money from the media industry than they have from technology sectors: nearly $2 million versus just over $500,000 since the start of the 2010 election cycle.

Aides turn lobbyists

Meanwhile, Politico reported this month that two senior Republican aides who were instrumental in advancing online-piracy bills were just hired by the lobbying firms of the Motion Picture Association and the National Music Publishers' Association. I guess that's what friends are for.

Sen. Ron Wyden, D-Ore., and Rep. Darrell Issa, R-Vista (San Diego County), recently put forth an alternative, the Online Protection and Enforcement of Digital Trade Act. It's designed to narrowly target the blatant infringement by overseas sites that supporters of the Piracy Act have claimed was the sole focus of their bill.

It also hands authority to enforce the measure to the U.S. International Trade Commission, the group already tasked with enforcing international trade rules, rather than the Justice Department and private businesses.

Tech giants' backing

The new bill quickly earned the backing of technology giants strenuously opposed to the original bill, including Google, Facebook, Yahoo, Twitter and others.

"This approach targets foreign rogue sites without inflicting collateral damage on legitimate, law-abiding U.S. Internet companies by bringing well-established international trade remedies to bear on this problem," the companies said in a letter.

But the media industry says it doesn't go far enough.

The proposal "fails to provide an effective way to target foreign rogue websites and goes easy on online piracy and counterfeiting," the motion picture association's O'Leary said in a statement this month. "Hopefully, this draft legislation is not just a delaying tactic to prevent Congress from acting quickly on this serious problem."

Yes, because playing political games when serious issues are at stake would be a horrible thing.

from Fortune, 2011-Dec-21, by Dan Mitchell:

SOPA supporters are cashing the media's checks

Signees to the controversial proposed anti-piracy measure get twice as much campaign cash from media interests as they get from the tech industry, which vehemently opposes the bill.

The media industry, which wants to see the controversial Stop Online Privacy Act (SOPA) passed, has showered cash upon sponsors of the bill, far surpassing the amounts given by the Internet and tech companies that oppose the measure.

Proponents of the bill, which critics say would stifle expression and innovation, skirt due process and possibly create massive technical problems for the Internet, have given more than $1.9 million to SOPA's sponsors since the beginning of the 2010 election season, according to Maplight, a non-profit organization that "reveals money's influence on politics." Tech and Internet firms have given just $525,000 during that time.

The stark difference highlights not only Silicon Valley's relative lack of pull in Washington, but also the vast difference in approaches taken by tech and media when it comes to influencing legislation. Big Media, which has been embedded in national politics since before the silent-film era, relies on old-fashioned high-powered lobbying and money. Silicon Valley often emphasizes grassroots, Internet-based campaigning on behalf of its causes. Hence the loud and ubiquitous online outcry over SOPA, which so far has done little to slow the bill's progress through the House, though it has led to some amendments designed to appease critics, which include firms such as Google (GOOG), Yahoo (YHOO) and Facebook.

So far, not much has changed. A markup session scheduled for Wednesday by the House Judiciary Committee has been postponed, possibly due to scheduling problems related to the continued debate on taxes. The issue will almost certainly blow up again in January.

If the difference between the total political contributions of the two industries appears vast, so are the differences in the cases of many individual House members who have signed on as sponsors of SOPA.

For instance, Republican Lamar Smith of Texas, the Judiciary chairman and lead sponsor of the bill, got $133,050 from the media industry in the two years preceding July 1, according to Maplight. The tech industry has given him $59, 250. His top corporate supporter is Clear Channel Communications, which gave him $26,850. Time Warner Cable (TWC) gave $13,000. (Time Warner owns Fortune.) The National Cable Television Association contributed $16,000. Of his top 10 contributors, four are from the media industry. Smith said recently, "The Stop Online Piracy Act protects the profits, products and jobs that rightly belong to American innovators." (Is the order of those priorities a coincidence?)

Democrat Howard Berman, whose district encompasses Hollywood, got $328,400 from media, and $102,103 from tech and Internet companies. His top contributor was the Directors Guild of America, which gave him $26,899. Five of Berman's top 10 contributors belong to the media industry. Two more are law firms -- Akin Gump and Ziffren Brittenham -- that represent media companies. There is just one tech firm among those 10 -- Oracle (ORCL), which gave him $17,700. That's more than the $16,500 he got from Time Warner (TWX), and less than he got from Disney (DIS), which gave him $24,750.

None of which is to say that SOPA supporters as a group -- or even individually -- are outright bought and paid for by the media industry. Such an assertion would need to be accompanied by evidence of a quid pro quo, and as usual there is no such evidence in this case.

And not all supporters have enjoyed the same comparative levels of media beneficence as Berman or Smith. Bob Goodlatte, Republican of Virginia, got $73,819 from the tech and Internet industries, while media gave him $64,500. His No. 2 giver was Microsoft (MSFT), coming in after the Farm Credit Bureau. Media interests, either as a group or individually, don't even show up among the top givers to John Carter, Republican of Texas, or Jim Cooper, Democrat of Tennessee.

Still, in case after case among House sponsors of the bill, media interests do rank at or near the top, while the presence of tech and Internet interests is usually either minimal or non-existent. That, together with Big Media's lobbying muscle, helps explain why a bill so widely derided for being dangerous actually has a chance of passing at least Judiciary, if not the full House.

from the Washington Post, 2011-Dec-15, by Alexandra Petri:

The nightmarish SOPA hearings

Last night I had a horrifying dream that a group of well-intentioned middle-aged people who could not distinguish between a domain name and an IP address were trying to regulate the Internet. Then I woke up and the Judiciary Committee’s SOPA hearings were on.

It’s exactly as we feared. For every person who appears to have some grip on the issue, there were three or four yelling at him.

“I’m not a nerd,” said Rep. Zoe Lofgren (D- Calif.). “I aspire to be a nerd.”

“I’m a nerd,” said Rep. Darrell Issa (R-Calif.).

If I had a dime for every time someone in the hearing used the phrase “I’m not a nerd” or “I’m no tech expert, but they tell me. . .,” I’d have a large number of dimes and still feel intensely worried about the future of the uncensored Internet. If this were surgery, the patient would have run out screaming a long time ago. But this is like a group of well-intentioned amateurs getting together to perform heart surgery on a patient incapable of moving. “We hear from the motion picture industry that heart surgery is what’s required,” they say cheerily. “We’re not going to cut the good valves, just the bad — neurons, or whatever you call those durn thingies.”

This is terrifying to watch. It would be amusing — there’s nothing like people who did not grow up with the Internet attempting to ask questions about technology very slowly and stumbling over words like “server” and “service” when you want an easy laugh. Except that this time, the joke’s on us.

It’s been a truism for some time that you can tell innovation in an industry has ceased when the industry starts to develop a robust lobbying and litigating presence instead.

As long as there have been new technologies, the entertainment industry has been trying to get them shut down as filthy, thieving pirates. Video cassettes? Will anyone tune into TV again? MP3 players? Why even bother making a record? Digital video recorder that lets you skip ads? That’s a form of theft!

But SOPA is threatening to touch something far more precious than that — the glorious sprawl of the Internet.

SOPA, the Stop Online Piracy Act, is a bill that, in the name of preventing online piracy of copyrighted work, creates a horrifyingly large censorship authority for the Internet. Among other things, it requiresservice providers (which have come out opposing the bill) to block access to entire sites if a user on the site is accused of copyright infringement.

There are dozens of reasons this is wrong. The biggest and most pressing is that not only does the bill not do what it sets out to do, it also creates a horrifyingly blunt instrument to censor the Internet.

One of the underlying assumptions of our system of government has always been that even though people mean well now, that doesn’t mean you give them the authority to do terrible things later. The attorney general now may use SOPA in only the most narrowly tailored of cases. But as the Founders knew, it is unwise to give people more powers than you would like them to use.

There ought to be a law, I think, that in order to regulate something you have to have some understanding of it. And when people are saying things like, “This is just the rogue foreign Web sites” and “This only targets the bad actors” and “So you want universities to host illegal pirated versions of copyrighted content?,” it’s enough to make you claw out large fistfuls of your hair. No! No! Nobody is hosting anything. This bill would require service providers to cut off access to entire Web sites where users are deemed to be engaging in copyright infringement, not take down stolen content they posted themselves. That’s already against the law. But no one seemed to be able to express this.

When you have a signed letter from the engineers responsible for creating the Internet pointing out that this bill would jeopardize our cybersecurity, balkanize the Internet and create a climate of uncertainty that would stifle innovation, it seems odd to ignore it. As a general rule, when the people saying that this will have a horrible, chilling impact on something are the ones who created that thing in the first place, and the people who are saying, “Oh, no, it’ll be fine, it only targets the bad actors” are members of the Motion Picture Association of America, it seems obvious whose opinion you should heed.

And the rush to legislate struck many of the committee members as odd. “Haste makes waste,” Rep. Hank Johnson (D-Ga.) noted. Rep. Dan Lungren (R-Calif.) asked, “Why is there this rush to judgment?,” noting, “I have rarely been part of a committee operation where we have not had . . . technical experts to deal with major concerns that have arisen.”

This is enough to paralyze a person with dread.

When Rep. Jared Polis (D-Colo.) proposed an amendment to exempt colleges and not-for-profit institutions from the unfunded mandate of having to shut off access to certain sites — like freedom, Internet censorship isn’t free — it was shot down 23 to 9. When he proposed another amendment to target the restrictions not at IP addresses (which, as he noted, can be dynamic and assigned to toasters) but at domain names, it fell just as easily.

This afternoon, the hearings continue, with even more amendments. But at the rate it’s going, it looks likely that SOPA will make it to the floor.

I just want the nightmare to be over.

from IDG News / PC World, 2011-Dec-15, by Grant Gross:

House Committee Appears Headed Toward Approving SOPA

The U.S. House of Representatives Judiciary Committee slowly moved toward approval of the controversial copyright enforcement bill Stop Online Piracy Act (SOPA), although the panel was able to debate only a handful of amendments Thursday.

As of 5:30 p.m. the committee, by wide margins, had voted to reject six amendments meant to address concerns by many members of the technology community. The hearing will continue into Friday and maybe longer.

The committee rejected an amendment offered by Representative Darrell Issa that would have stripped out controversial provisions in the bill targeting search engines and Internet service providers.

SOPA would allow the U.S. Department of Justice to seek court orders requiring Internet service providers to filter out the domain names and requiring search engines to block the websites that are accused of infringing copyright. Issa's amendment would have killed the provisions related to the domain name system.

The committee voted 22-12 against the Issa amendment, in a vote that could foreshadow strong support for SOPA in the committee. The Issa amendment would have removed some of the most contentious parts of SOPA, including concerns that the legislation would cause problems with security in the DNS, supporters argued.

If the committee eventually votes to approve SOPA, the legislation would go to the House floor. The legislation would also have to pass through the Senate before going to President Barack Obama for his signature or veto.

SOPA would empower the DOJ and copyright holders to target news sites that link to allegedly infringing sites, Issa said. Once U.S. authorities start blocking links and censoring Web content, "you start a snowball effect to which there is no end," he added.

SOPA's search engine provision would be ineffective, added Representative Zoe Lofgren, a California Democrat. Even if U.S. search engines block links to foreign websites, it would be simple for Web users to find other search engines, she said. "The fact that we would try to disappear a site on a search engine doesn't disappear the site," she said.

SOPA supporters said the other provisions of the bill, which would allow the DOJ and copyright holders to seek court orders blocking payment processors and online advertising networks from doing business with foreign sites accused of infringing copyright, would not be effective enough to fight foreign websites that sell infringing products.

Under U.S. law, there's a "gaping loophole" shielding foreign websites from the reach of the DOJ, said Representative Bob Goodlatte, a Virginia Republican. "While it continues to be a tremendous, transformational medium, the Internet has also made it easier than ever in the history of the world to steal other's ideas and works," he said.

Representative Lamar Smith, the committee chairman and main sponsor of SOPA, said new action is needed to deal with so-called rogue websites based overseas. "The problem of rogue websites is real, immediate and increasing," Smith said. "It harms companies across the spectrum. And its scope is staggering. The resultant economic losses run into the hundreds of billions of dollars each year."

U.S. residents have the "most to lose" if Congress does not act, because the U.S. produces more intellectual property than any other country, Smith said. More than 400 companies and groups have voiced support for SOPA, supporters said.

Opponents of SOPA also listed hundreds of people and groups that have raised concerns.

Issa, Representative Jason Chaffetz, a Utah Republican, and other opponents of SOPA asked Smith to delay the markup of the bill and hold a hearing featuring Internet engineers and their views on whether the bill would harm Internet security. The committee has hosted only one hearing on SOPA, and no engineers or security experts testified, Chaffetz said.

Dozens of Internet security experts have raised concerns about the bill and its effect on implementation of DNSSEC, a set of applications designed to secure the domain name system, Chaffetz said. "Maybe we ought to ask some nerds about what this really does," he said to other committee members. "If you don't know what DNSSEC is, you don't know what you're doing."

There's time to have another hearing, Issa added. Copyright infringement is "not a new problem," he said.

Smith declined to slow the process down. "I have every intention of going forward today, tomorrow and however long it takes," he said.

The markup hearing will continue into Friday and potentially into the new year after the House returns from its holiday break. The committee, faced with more than 60 proposed amendments to the bill, was able to get through fewer than 10 of them by 5:30 p.m. Thursday in a hearing that began at 10 a.m.

At the beginning of the hearing, Lofgren insisted on the committee's clerk reading the entire 71-page substitute amendment offered by Smith late Monday. The public didn't have enough time to digest the amendment before Thursday's hearing began, she said.

The committee hadn't voted on Smith's substitute amendment as of late Thursday.

Late in the day, Representative Sheila Jackson-Lee, a Texas Democrat, stirred up controversy when she called a tweet by committee member Representative Steve King, an Iowa Republican, "offensive." King, watching the hearing on television, posted on Twitter that he was so bored by Jackson-Lee's questions that he was "killing time by surfing the Internet."

The committee took about 15 minutes to sort out demands by Republicans that Jackson-Lee take back the word, "offensive." She finally did, instead calling King's tweet "impolitic and unkind."

from Politico, 2011-Dec-15, by Jennifer Martinez:

SOPA bill markup exposes congressional divide

The gaping divide separating House Judiciary Committee members on the Stop Online Piracy Act was abundantly clear as a marathon markup of the measure got under way Thursday.

The dissension didn't break down by party. Reps. Darrell Issa of California and Jim Sensenbrenner of Wisconsin were among the Republican committee members who criticized the anti-piracy bill championed by House Judiciary Committee Chairman Lamar Smith (R-Texas).

Several members from both parties — including Issa and Reps. Zoe Lofgren (D-Calif.) and Dan Lungren (R-Calif.) — argued that the bill was being pushed through too fast without input from technical experts on what it would mean for the structure of the Internet.

But Smith and Reps. Bob Goodlatte (R-Va.), John Conyers (D-Mich.) and Howard Berman (D-Calif.) said something needs to be done now to protect rights holders from sites that profit from offering illicit content and knockoff products.

In his opening statement, Smith argued that SOPA is needed because the Digital Millennium Copyright Act only provides limited relief for rights holders when it comes to rogue foreign sites.

For example, Smith said DMCA doesn't protect trademark holders and consumers from sites that sell counterfeit goods such as knockoff pharmaceuticals. It also doesn't address the problem that online pirates use ad services and payment processors to fund the sites, he said.

“Laws equip U.S. authorities and right holders to take action against criminals who operate within our borders,” Smith said. “But there is no parallel authority that permits effective action against criminals who operate from abroad.”

Ranking member Conyers, a co-sponsor of SOPA, noted that a broad swath of labor unions, businesses and academics also support the legislation. He questioned the motives of opponents.

“All we're trying to do here is stop online piracy. Since when did opposition get so fierce against this? What could be behind the motives of people or organizations that don't think stopping online piracy is something that we need to deal with?” Conyers said.

Lofgren said the bill would undermine the structure of the Internet, arguing that it would employ the kind of technical measures used by repressive governments to stifle free speech. It would “lead to a Balkanization of the Internet,” she said.

But Berman, whose district encompasses Hollywood, countered that there's a big difference between enforcing intellectual property rights “and seeking to suppress political conduct, political speech and dissent.”

Sensenbrenner, meanwhile, warned that the domain name-related provisions would potentially confuse the Internet security protocol DNSSEC so it could “not tell the difference between sites that have been blocked by law enforcement and those that have been sabotaged by hackers.”

Issa said he worried about the “little guy” Web entrepreneur who could be put out of business if the Justice Department oversteps its bounds and wrongly goes after the domain name of his or her site when it's actually legitimate.

“They're going to be out of money,” he said. “They're going to be destroyed.” Supporters countered that the Justice Department would have to obtain a court order before a domain name could be taken down.

from Slate, 2011-Dec-8, by James Losey and Sascha Meinrath:

The Internet's Intolerable Acts
You should be very afraid of a pair of bills that threaten Internet freedom.

The United States of America was forged in resistance to collective reprisals—the punishment of many for the acts of few. In 1774, following the Boston Tea Party, the British Parliament passed a series of laws—including the mandated closure of the port of Boston—meant to penalize the people of Massachusetts. These abuses of power, labeled the “Intolerable Acts,” catalyzed the American Revolution by making plain the oppression of the British crown.

More than 300 years later, the U.S. Congress is considering bills that would lead to collective reprisals against online communities. The Senate’s PROTECT IP Act and the Stop Online Piracy Act in the House are supposed to address copyright infringement and counterfeiting. In reality, they are so technically impractical that they do little to address these problems. They would, however, undermine participatory democracy and human rights, which is why these bills have garnered near-universal condemnation from both human rights groups and technologists.

The interconnected nature of the Internet fostered the growth of online communities such as Tumblr, Twitter, and Facebook. These sites host our humdrum daily interactions and serve as a public soapbox for our political voice. Both the PROTECT IP Act and SOPA would create a national firewall by censoring the domain names of websites accused of hosting infringing copyrighted materials. This legislation would enable law enforcement to take down the entire tumblr.com domain due to something posted on a single blog. Yes, an entire, largely innocent online community could be punished for the actions of a tiny minority.

If you think this scenario is unlikely, consider what happened to Mooo.com earlier this year. Back in February, the Department of Justice and Department of Homeland Security seized 10 domains during a child-porn crackdown called “Operation Protect Our Children.” Along with this group of offenders, 84,000 more entirely innocent sites were tagged with the following accusatory splash page: “Advertisement, distribution, transportation, receipt, and possession of child pornography constitute federal crimes that carry penalties for first time offenders of up to 30 years in federal prison, a $250,000 fine, forfeiture and restitution." Their only crime was guilt by association: They were all using the Mooo.com domain.

SOPA would go even further, creating a system of private regulation to shut down websites that are accused of not doing enough to prevent infringement. Keep in mind that these shutdowns would happen before a site owner could defend himself in court—SOPA could punish sites without even establishing whether they are guilty of the charges brought against them.

In January 2010, Hillary Clinton launched the State Department’s Internet Freedom initiative, stumping for open access to information worldwide. Though Secretary Clinton has said that “there is no contradiction between intellectual property rights protection and enforcement of expression on the Internet,” PROTECT IP and SOPA create mutually exclusive trajectories for these two priorities. These bills are driven by technologically naive thinking that it’s possible to censor information without affecting freedom of speech. SOPA even goes so far as to make the key circumvention tools used by human rights advocates and democracy organizers throughout the Middle East illegal. While we’re certain that SOPA’s authors did not mean to craft a bill tailor-made to support the future Qaddafis and Mubaraks of the world, that is precisely what they’ve done.

Rather than blocking online copyright infringement, legislation like SOPA and Protect IP would instigate a data obfuscation arms race, making legitimate law enforcement efforts all the more difficult. If the United States decides that copyright infringement must be stopped at any cost, the required censorship regime will depend on ever more invasive practices, such as monitoring users’ personal Web traffic. This counterproductive cat-and-mouse game of censorship and circumvention would drive savvy scofflaws to darknets while increasing surveillance of less technically proficient Internet users.

Given that the Intolerable Acts sparked a revolution, it should be no surprise that this proposed legislation has generated a massive outcry in the United States. However, this attempt to unilaterally censor the Internet has spurred worldwide opposition, with several dozen international organizations signing a letter stating that “[t]hrough SOPA, the United States is attempting to dominate a shared global resource.” Last month, the European Parliament adopted a resolution underscoring “the need to protect the integrity of the global internet and freedom of communication by refraining from unilateral measures to revoke IP addresses or domain names.”

As participants in the Internet community, we must defend against collective reprisals that undermine our rights to access, privacy, and freedom of expression online. SOPA and the PROTECT IP Act are fundamentally incompatible with a free society and with the founding principles of the United States. This truth should be self-evident: Human rights should never be subjugated to copyright.

from the Washington Post online, 2011-Nov-16, by Alexandra Petri:

Stop SOPA

Is this ignorance or malice?

It's called the Stop Online Piracy Act. It's currently being discussed by the House Judiciary Committee. And a similar measure has already passed the Senate Judiciary Committee.

Either the people behind the bill don't realize the horrible possibilities it would leave open, or they're doing it on purpose. I'm not sure which possibility is more frightening.

The phrase “a bill that would open up unprecedented tools for online censorship is currently being discussed by a group of middle-aged people who did not grow up with the Internet” has the same chilling effect on me — and most Internet watchers — as the phrase “your child has just been handed to a drunk bear on a tightrope over a pit of molten lava.” Our palms begin to sweat. We start dashing off letters to everyone you can think of.

And we're right to be terrified.

Generally, the denizens of Silicon Valley fight amongst themselves. Google challenges Facebook. Yahoo snipes at AOL. So when all of them join forces to express their deep, fundamental concern at a proposed measure, you know it's serious.

SOPA certainly is. It is a bill designed to stop online piracy. It is a way of doing that, in the sense that killing the man in the seat next to you is a way to stop his coughing. The tools this bill would make available to censors are absolutely petrifying. If it passed, a copyright holder could shut off an entire web site by complaining to law enforcement that one of its users infringed on his property. The Guardian notes: “At present, if Facebook, You Tube or other leading websites are found to be holding copyright material without permission, then they are told to take it down. Sopa would make it possible for the US to block the website” (italics mine). Not only that, but search engines could be forced to stop listing blacklisted web sites, and services such as PayPal and credit card companies would be required to cut off their access to cash.

A better name for it might be the Bring Internet Censorship To America Act, but that doesn't quite have the same ring to it. How about the Force Search Engines To Censor Their Results Act? Or the Shut Down Entire Websites Over Individual Users' Alleged Copyright Violations Act? Those would all be equally accurate.

I am sympathetic to the desires of content creators to protect what they have wrought. I am one myself. But there are — as Google noted in its testimony to the House Judiciary Committee today — better ways of stopping bad actors and copyright violators than this brutal blunt instrument. Cut off their advertising sources, for instance. Flag individual violators. But this bill goes far beyond that, requiring search engines to remove whole websites from search results, and forcing service providers to cut off access to websites at the drop of a copyright complaint.

This isn't even throwing the baby out with the bathwater. This is bludgeoning the baby repeatedly with a sledgehammer and then throwing out the whole bathroom. This is so far beyond what is required that to call it Orwellian would be putting it mildly.

The coverage that presents this as a battle of lightweight digital Davids against massive corporate Goliaths somewhat overstates the case. Arrayed in its favor are a number of heavy hitters, among them the Motion Picture Association of America, Disney, Viacom, and TimeWarner. But the forces against it are formidable as well, if less entrenched. Nearly all of Silicon Valley. Google, Mozilla, Facebook, Twitter, Yahoo, LinkedIn, and AOL have joined forces against the bill.

No one disputes that content creators need protection. But so does the Internet, and the individual users whom the bill would leave liable for thousands of dollars in fines for something as minor as singing a copyrighted song on Facebook. “But people will be able to challenge these complaints in court!” Have you looked at the price of litigation lately?

Never has the online generation gap been so potentially lethal. The people deciding the fate of this bill overwhelmingly grew up before the Internet. Sure, some of them tweet now, but that may not be enough for them to take sufficiently seriously what's at stake.

So little is going right in the economy these days. One of the few exceptions is the web sector, where innovation and entrepreneurship has borne spectacular fruit.

But more than that, we have spent years delivering powerful, stirring speeches about how free our Internet is and how, unlike other nations that boast elaborate arrays of online censorship, people here can access information freely without the government interposing itself. With this bill, that could change. It is far too blunt an instrument. Even if only used by wise, kind, and temperate individuals, it poses the risk of a serious chilling effect on the kind of collaborative, transformative, creative speech that has made the Internet thrive.

So I hope it's ignorance. Ignorance can be combated before this bill reaches the floor.

Stop SOPA. There are better ways of doing this.

from the Wall Street Journal, 2011-Dec-16, by Paul Sonne and Steve Stecklow:

U.S. Restricts U.A.E. Firm for Web Filter Sale to Syria

The Department of Commerce is placing restrictions on a person and a company in the United Arab Emirates for supplying Syria with Internet-filtering devices made by California-based Blue Coat Systems Inc.

On Thursday, Commerce said it put Waseem Jawad and the Ras Al Khaimah-based company Info Tech, also known as Infotec, on a list of people and institutions determined to "have engaged in activities contrary to U.S. national security and/or foreign policy interests."

The measure restricts Mr. Jawad and Info Tech from receiving or transferring items that fall under U.S. export controls. Export licenses would be required, which likely would be denied by the U.S. government, according to Commerce Department officials. Neither Mr. Jawad nor the company could be reached to comment.

A résumé for a Waseem Jawad recently removed from LinkedIn described him as a U.A.E. network engineer and manager who studied at a Syrian technology school. It said he was most recently a regional manager for a U.A.E. tech service provider. A Facebook page for a Wassem Jawad who studied at the same Syrian school was also removed recently.

The Commerce Department action is part of a probe looking into how a set of at least 13 Blue Coat devices ended up censoring the Internet in Syria, a country subject to strict U.S. trade embargoes. Syrian authorities have been brutally cracking down on uprisings in the country for months.

"It is vital that we keep technology that can be used to further the repression of the Syrian people out of the hands of the Syrian government," said Eric L. Hirschhorn, undersecretary for industry and security. "This investigation is ongoing and additional enforcement actions are likely."

Another Commerce official said, "One of the focuses of our investigation will be to determine which companies had knowledge that these devices were going to Syria."

Blue Coat first acknowledged the devices had ended up in Syria in an interview with The Wall Street Journal in October. The Sunnyvale, Calif.-based company shipped the appliances—which can block websites or record when people visit them—to a distributor in the U.A.E., believing they were destined for a department of the Iraqi government.

But the devices never went to Iraq. According to the Commerce Department, about three days after the distributor transferred ownership of the Blue Coat shipment to Mr. Jawad, the devices were sent to Syria. There, they have been used to block Syrian Web users from accessing a number of Web addresses, including political-opposition sites.

A spokesman for Blue Coat said the company is cooperating fully with the investigation.

Blue Coat, a provider of Web security products, announced on Dec. 9 it entered into a definitive agreement to go private in a transaction valued at $1.3 billion.

from RIA Novosti, 2011-Dec-14, by Maria Kuchma:

Russian internet watchdog proposes bills to fight child porn, online extremism

Russia's League of Internet Security proposed on Wednesday creating a blacklist of websites containing child pornography and “other prohibited information” and oblige internet providers to block such sites.

“There are some people who believe that internet freedom should be absolute,” said Channel One newsreader Pyotr Tolstoi, a member of the Russian Public Chamber and the League's board of trustees.

“But I personally believe that freedom for perverts on the internet is a luxury that we cannot allow to exist,” Tolstoi said at a news conference in Moscow, adding that “immediate action” needed to be taken.

The League's proposal followed its announcement that it had broken up an international ring of 130 alleged pedophiles circulating material via the internet. The League's president, Konstantin Malofeyev, described the ring as “largest in the history of the Russian internet."

Denis Davydov, the League's executive director, said the proposed bills also provide for tracking down “extremist” materials on the web, raising fears among the Russian media and internet community that they could make it easier for the authorities to crack down on dissent under the guise of fighting child abuse.

The League, whose board of trustees is headed by Communications Minister Igor Shchyogolev, proposed creating a special public organization involving experts, representatives of internet providers and search engines to monitor the web in search of suspicious content.

In line with the amendments, which have yet to be submitted to parliament, websites containing child porn are to be blocked as soon as they are identified, while those containing “other prohibited information,” including suspected extremist materials, can only be closed following a court ruling.

Andrei Soldatov, a security analyst from the Agentura think tank, described the amendments as “excessive.

He pointed out that the Communications Agency, Roscomsvyaz, has just launched a special system intended to reveal extremist materials on the internet

“It's not up to public organizations to decide what can be considered pornography and blacklist websites,” he said.

“State structures, whose activities are restricted by law, should deal with this issue, and this should be done based on a court decision,” he said. “Why should a public organization take on the functions of law enforcement?”

Internet control to increase?

The League's initiative follows a number of recent moves and proposals by senior Russian officials and the Federal Security Service (FSB) on internet regulation.

Many internet users and opposition activists have described the moves as an attempt by the state to “introduce censorship” of the internet in order to prevent the spread of protest sentiments amid strong public criticism of the December 4 parliamentary elections.

Numerous videos from polling stations were posted on the internet following the vote, featuring what protesters have described as wide-spread vote fraud in favor of United Russia. The alleged violations triggered mass street protests across the country last week, including a major rally in downtown Moscow last Saturday, which gathered between 25,000 and 50,000 plus protesters, according to various estimates.

The management of Russia's most popular social network Vkontakte reported last week that the Federal Security Service (FSB) had requested them to deactivate accounts of groups that contained posts calling for street protests. The company said it had rejected the request while promising to keep blocking the accounts of specific users who have explicitly called for public disorder. The FSB has declined to comment on the reported request.

Another proposal regarding internet security has been put forward by senior Interior Ministry official Alexei Moshkov, who said anonymous accounts should be outlawed on social networks and online forums to prevent internet fraud, blackmailing and child abuse.

“If you are a just and law abiding person, why would you want to hide?” Moshkov, who heads the ministry's bureau in charge of technical services, said in an interview with the government daily Rossiiskaya Gazeta. “There is no censorship on the internet,” he said.

He also said the police would not “seek and arrest anyone for criticism” of the authorities.

Interior Minister Rashid Nurgaliyev later dismissed the proposal, calling it “nonsense.”

'Rational regulation'

Nikolai Patrushev, the head of the Russian Security Council and a former FSB chief, was reported on Wednesday to have called for the “rational regulation of the internet” in an interview with the Argumenti I Fakti daily.

“Attempts to prevent personal communication are counterproductive, and even immoral,” he said, “but we cannot ignore that the internet is being used by criminals and terrorist gangs.”

“Rational regulation of the internet should take place in Russia, as happens in the United States, China and many other countries,” he added.

Newsreader Tolstoi dismissed media allegations on Wednesday that the amendments proposed by the League could be used to increase pressure on dissent.

“I understand that Bolotnaya Square is more interesting for you,” he told journalists, referring to the site of last Saturday's mass vote protest rally in Moscow. “But we are a different organization, and this is not our remit.”

from TechDirt.com, 2011-Nov-30, by Mike Masnick:

MPAA Pretends To Capitulate On SOPA, Will Offer Changes For 'Legitimate Concerns'
from the yeah,-ok dept

This is barely even worth mentioning, but it's making some news, so we'll point it out. The MPAA's point man on SOPA/PIPA, Michael O'Leary, told the press today that they're willing to "tone down" the legislation in response to the "legitimate concerns" raised:

“We will come forward with language that will address some of the legitimate concerns” of technology companies that have opposed the Stop Online Piracy Act in the House, and a similar Protect I.P. Act in the Senate, Mr. O'Leary said.

First of all, this is nothing new. Rep. Lamar Smith, the official sponsor of the bill had already been on record using that exact same phrase: "legitimate concerns." The thing is, what they consider to be "legitimate concerns" are basically none of the concerns that many people have raised.

The more telling point in all of this is the outright admission that the MPAA is the one writing the bill. We've seen some reports making the rounds where defenders of the bill keep insisting "this bill isn't being written by Hollywood," but in the quote above, you can see that O'Leary is confirming that the MPAA is providing the language. The NYTimes report makes this point even clearer:

He said those who were pushing the far-reaching antipiracy legislation have been huddling with Congressional staff members from both parties and both the House and Senate in the last few days, in an effort to answer some objections raised by Google, Yahoo and others who say the bills reach too far.

Notice who's not included in those discussions? That's right. Everyone who raised objections. How the hell do you address concerns if you don't actually include the people who are concerned? The answer is you don't, and the whole thing is a sham. O'Leary also points out that most of the tech folks still won't be satisfied, which basically is an admission that he doesn't actually care about the concerns. From there he starts making stuff up:

“It's all rhetoric and there are no proposals,” he said of the position staked out by the opponents to the bills. “From where I sit, it's hard to see that as anything but a pretext for running out the clock and preserving the status quo.”

The thing is, O'Leary knows that's untrue. He knows damn well that plenty of folks have presented or are working on alternative proposals. It's just that when they're not allowed in the discussion at all, it's kinda difficult to have those proposals heard. Meanwhile, as we noted earlier, Senator Wyden has already said he's working on an alternative bill. Pretending otherwise is simply false.

from TechDirt.com, 2011-Nov-14, by Mike Masnick:

First Amendment Expert Floyd Abrams Admits SOPA Would Censor Protected Speech, But Thinks It's Okay Collateral Damage
from the not-really dept

Supporters of SOPA/PROTECT IP have been going absolutely nuts in pushing the claim that famed First Amendment lawyer Floyd Abrams has said SOPA does not violate the First Amendment. This wasn't a surprise. First of all, the MPAA is a client of Abrams, as are various other Hollywood trade groups. He didn't write the letter on his own behalf, but was paid by these groups to write the letter. As such, he's speaking as a paid advocate for them, not as an objective independent observer. Given that, it's really quite incredible how timid the letter actually is. The fact that it takes fourteen pages to hem, haw and equivocate away the clear problems of SOPA is quite telling.

While the argument goes on for a while, the really telling part is late in the letter, where Abrams actually admits that SOPA would result in the censorship of protected speech, something that can't be denied, but which many supporters of the bill have refused to admit:

Regardless of the particular standard or definition of foreign infringing sites, court-approved remedies under the Stop Online Piracy Act may result in the blockage or disruption of some protected speech. As discussed above, the bill provides a range of injunctive relief is available, with a court making the final determination as to whether and how to craft relief against a website operator or owner or third party intermediaries. When injunctive relief includes blocking domain names, the blockage of non-infringing or protected content may result.

Setting aside the odd sentence construction ("the bill provides a range of injunctive relief is available"), this really is the key point. Abrams then spends another couple pages trying to explain why it's okay to block protected speech, properly noting that caselaw has said it's okay when that speech is "incidental." What he fails to do is explain how the speech blocked here would be "incidental." And that's really the whole crux of the matter. The exceptionally broad definitions in the bill mean that it won't block just incidental free speech, but wide open forums of free speech. Again, remember that under this bill, it's likely that YouTube would not exist because Viacom sees it as "dedicated to theft of US property" under the definitions in the bill. And under the law Universal Music would make the case that the Internet Archive and a variety of blogs and forums are "dedicated to theft of U.S. property." This would be about shutting down huge forums of free speech, not just incidental free speech.

Abrams ignores all of that.

The letter also presents a long argument about how laws apply on the internet. Well, duh. That's just sleight of hand. It's a favorite bogus talking point of the industry: that those who are worried about overreaching laws really believe that there should be no rule of law online. Everyone agrees that our laws apply online. What we question is how they're applied in an overly broad manner that conflicts with free speech rights. Narrowly targeted laws that seek to stop actually illegal content -- libel or infringement -- are reasonable. Broad legislation that will take down significant non-infringing speech is where we have a problem. Unfortunately, Abrams sullies his distinguished legacy in the space, by more or less brushing aside such concerns in favor of his big clients.

Abrams is also somewhat selective and misleading in his choice of citations. For example, as "evidence" of the right to completely shut down websites over copyright claims, he "cites" the first of ICE's domain seizure "cases," a couple times. While he eventually notes that the legality of these seizures is currently being litigated, he doesn't mention that until after he's brought it up a couple times, and leaves out the fact that the citations he notes in support of such a right refer to a one-sided (and error-filled) affidavit presented by ICE and rubber-stamped by a magistrate judge -- rather than a ruling in any sort of adversarial hearing. Again, this is not a balanced letter on his viewpoints, but a lawyer advocating for some of his biggest clients.

In discussing the specifics of SOPA, Abrams is careful to point to the letter of the law, refusing to acknowledge the actual impact of the law. For example, he notes that "the bill neither compels nor prohibits speech or communication by the four entities regarding any measures they take." This is technically true, but misleading in the extreme. While it does not specifically prohibit speech directly, it is set up in a way that the only way to avoid liability is to massively prohibit non-infringing speech. That's the issue, one totally ignored by Abrams. The vague standards for liability -- the equivalent of how the Great Firewall of China works -- makes it such that in order to avoid liability sites will certainly overblock. While Abrams can brush this off because the law does not directly compel a site to block speech, he's not being intellectually honest in pretending that the actual impact will not block speech.

It's no surprise that the MPAA and its supporters are waving this flag around -- it's about the only serious legal support they've got on this issue. And Abrams is a big and respected name -- but his own letter seems to indicate the failings of his own argument, and the complete avoidance of even digging into the massive expansion of what is dubbed "dedicated to theft," shows why this bill is problematic. When even your biggest "supporter" has to skirt around the issue, admit that the bill would suppress protected speech, and then try to hand-wave it away... you know the bill is bad, bad news. Either way this seems like a sad move by Abrams, who has been taking a number of missteps after a long and distinguished career. Between supporting this and his oddly ill-informed attack on Wikileaks (in which he insisted Wikileaks had done things it had not done), Abrams seems to be putting his legacy at risk.

from National Public Radio, 2011-Nov-15, by Eyder Peralta:

Is Lying On The Internet Illegal?

Today, a subcommittee of the Committee On The Judiciary heard some fascinating testimony about the Computer Fraud and Abuse Act (CFAA). (We know what that sounds like, but bear with us.)

The hearing, titled "Cyber Security: Protecting America's New Frontier," really focused on big cyber threats to the country's infrastructure, but there was another juicier question that came out of the hearing: The way the Justice Department wants to interpret a current law, lying on the Internet would amount to a crime.

Richard Downing, deputy chief of the Computer Crime and Intellectual Property Section at the Department of Justice, argued that in order to properly protect the country, the part of the CFAA that says a person must exceed their "authorized access" to break the law should include a violation of the terms of service.

Here's how Downing put it in his testimony:

"These are just a few cases, but this tool is used routinely. The plain meaning of the term 'exceeds authorized access,' as used in the CFAA, prohibits insiders from using their otherwise legitimate access to a computer system to engage in improper and often malicious activities. We believe that Congress intended to criminalize such conduct, and we believe that deterring it continues to be important. Because of this, we are highly concerned about the effects of restricting the definition of 'exceeds authorized access' in the CFAA to disallow prosecutions based upon a violation of terms of service or similar contractual agreement with an employer or provider."

In English? When you sign up for a Web service, a dating one or even to attain the ability to comment on NPR.org, you usually agree to a long terms of service that we bet most people don't even read. The way the DOJ wants the law interpreted means breaking any of those terms would constitute a crime.

Orin Kerr, a professor of Law at George Washington University, also testified at the hearing and put it more concretely:

"In the Justice Department's view, the CFAA criminalizes conduct as innocuous as using a fake name on Facebook or lying about your weight in an online dating profile. That situation is intolerable. Routine computer use should not be a crime. Any cybersecurity legislation that this Congress passes should reject the extraordinarily broad interpretations endorsed by the United States Department of Justice."

CNET, which broke this story yesterday, reports that CFAA "has been used by the Justice Department to prosecute a woman, Lori Drew, who used a fake MySpace account to verbally attack a 13-year old girl who then committed suicide. Because MySpace's terms of service prohibit impersonation, Drew was convicted of violating the CFAA. Her conviction was later thrown out."

CNET also reports on opposition to the interpretation:

A letter (PDF) sent to the Senate in August by a left-right coalition including the ACLU, Americans for Tax Reform, the Electronic Frontier Foundation, and FreedomWorks warns of precisely that. "If a person assumes a fictitious identity at a party, there is no federal crime," the letter says. "Yet if they assume that same identity on a social network that prohibits pseudonyms, there may again be a CFAA violation. This is a gross misuse of the law."

Downing defended the government's position in his prepared statement. Downing said while the government appreciates the concern that a wide interpretation of the law would allow prosecutions of "mere" violations of a website's terms of service, "we are concerned that that restricting the statute in this way would make it difficult or impossible to deter and address serious insider threats through prosecution."

Update at 3:39 p.m. ET. An Example:

Just as an example, here's a bit from Facebook's Terms of Service:

  1. You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission.
  2. You will not create more than one personal profile.
  3. If we disable your account, you will not create another one without our permission.

from TorrentFreak.com, 2011-Nov-17,

EU Adopts Resolution Against US Domain Seizures

The European Parliament has adopted a resolution which criticizes domain name seizures of “infringing” websites by US authorities. According to the resolution these measures need to be countered as they endanger “the integrity of the global internet and freedom of communication.” With this stance the European Parliament joins an ever-growing list of opposition to the Stop Online Piracy Act.

Starting in 2010, US authorities have used domain name seizures as a standard tool to take down websites that are deemed to facilitate copyright infringement.

Despite fierce criticism from the public, legal experts and civil liberties groups, taking control of domain names is now one of the measures included in the pending Stop Online Piracy Act (SOPA), legislation designed to give copyright holders more tools to protect their rights against foreign sites.

Opposition to SOPA has been swelling in recent days, and today the European Parliament adds its voice by heavily criticizing the domain seizures that are part of it.

A resolution on the EU-US Summit that will be held later this month stresses “the need to protect the integrity of the global internet and freedom of communication by refraining from unilateral measures to revoke IP addresses or domain names.”

If SOPA does indeed become law the US would be able to shut down domains worldwide, as long as they are somehow managed by US companies. This includes the popular .com, .org and .net domains, and thus has the potential to affect many large websites belonging to companies in EU member states.

This can lead to problematic situations.

During one of the seizure rounds earlier this year, US authorities took the domain name Rojadirecta, which belongs to the Spanish company Puerto 80. The site in question had been declared legal in Spain by two courts, but it only took a simple warrant for ICE to take it offline.

Puerto 80 is currently involved in a legal battle in the US to get their domain back, and has reportedly suffered significant losses in traffic and revenue from their streaming portal.

This notice appears on seized sites.

seized

If SOPA passes and these seizures become common practice, thousands of companies will face the threat of losing their domains.

The RIAA and MPAA for example pointed out that they consider the Russian social networking site VKontakte and the Chinese media portal Xunlei as potential targets. These two companies employ hundreds, if not thousands of people, and both are even considering going public on the American stock exchange.

By adopting a resolution against domains seizures the European Parliament recognizes the dangerous precedent the pending SOPA legislation would set, and it wouldn't be a surprise if more foreign criticism follows.

No country should have the ability to simply take over international domain names, and surely the US would feel the same if this plan was put in motion by a foreign country. Or as some 60 press freedom and human rights advocate groups put it in their letter to the US representatives:

“This is as unacceptable to the international community as it would be if a foreign country were to impose similar measures on the United States.”

from TechCrunch.com, 2011-Nov-24, by Robin Wauters:

EU Court Rules ISPs Can't Be Forced To Filter Out Illegal Content

The European Court of Justice this morning ruled that content owners can not strong-arm Internet service providers (ISPs) into filtering out copyright-infringing content.

This case has its origin in a dispute between ISP Scarlet and SABAM, a Belgian management company responsible for authorizing the use by third parties of the musical works of authors, composers and editors. In 2004, the right-holders group established that users of Scarlet's services were downloading such musical works from its catalogue by means of peer-to-peer (p2p) file-sharing networks.

Belgium's Court of First Instance ordered Scarlet, on pain of a periodic penalty, to bring those copyright infringements to an end by making it impossible for its customers to send or receive in any way electronic files – a filter, in other words. Scarlet appealed the decision, claiming the ruling was incompatible with EU law as well as the e-Commerce Directive.

Indeed, EU law says national authorities must not adopt measures which would require an ISP to carry out general monitoring – let alone filtering – of the information that it transmits on its network.

Thus, Europe's highest court this morning ruled:

The Court finds that, in adopting the injunction requiring Scarlet to install such a filtering system, the national court would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the right to receive or impart information, on the other.

Accordingly, the Court's reply is that EU law precludes an injunction made against an internet service provider requiring it to install a system for filtering all electronic communications passing via its services which applies indiscriminately to all its customers, as a preventive measure, exclusively at its expense, and for an unlimited period.

The European Court of Justice said the filtering system would also be liable to infringe the fundamental rights of an ISP's customers, namely their right to protection of their personal data and their right to receive or impart information.

The court also said that while intellectual property rights are enshrined in EU law, there is “nothing whatsoever in the wording of the Charter or in the Court's case-law to suggest that that right is inviolable and must for that reason be absolutely protected”.

Common sense, really, but always good to see a court agree with it.

from the Telegraph of London, 2011-Nov-18, by Victoria Ward and Nick Collins:

EU bans claim that water can prevent dehydration
Brussels bureaucrats were ridiculed yesterday after banning drink manufacturers from claiming that water can prevent dehydration.

EU officials concluded that, following a three-year investigation, there was no evidence to prove the previously undisputed fact.

Producers of bottled water are now forbidden by law from making the claim and will face a two-year jail sentence if they defy the edict, which comes into force in the UK next month.

Last night, critics claimed the EU was at odds with both science and common sense. Conservative MEP Roger Helmer said: “This is stupidity writ large.

“The euro is burning, the EU is falling apart and yet here they are: highly-paid, highly-pensioned officials worrying about the obvious qualities of water and trying to deny us the right to say what is patently true.

“If ever there were an episode which demonstrates the folly of the great European project then this is it.”

NHS health guidelines state clearly that drinking water helps avoid dehydration, and that Britons should drink at least 1.2 litres per day.

The Department for Health disputed the wisdom of the new law. A spokesman said: “Of course water hydrates. While we support the EU in preventing false claims about products, we need to exercise common sense as far as possible."

German professors Dr Andreas Hahn and Dr Moritz Hagenmeyer, who advise food manufacturers on how to advertise their products, asked the European Commission if the claim could be made on labels.

They compiled what they assumed was an uncontroversial statement in order to test new laws which allow products to claim they can reduce the risk of disease, subject to EU approval.

They applied for the right to state that “regular consumption of significant amounts of water can reduce the risk of development of dehydration” as well as preventing a decrease in performance.

However, last February, the European Food Standards Authority (EFSA) refused to approve the statement.

A meeting of 21 scientists in Parma, Italy, concluded that reduced water content in the body was a symptom of dehydration and not something that drinking water could subsequently control.

Now the EFSA verdict has been turned into an EU directive which was issued on Wednesday.

Ukip MEP Paul Nuttall said the ruling made the “bendy banana law” look “positively sane”.

He said: “I had to read this four or five times before I believed it. It is a perfect example of what Brussels does best. Spend three years, with 20 separate pieces of correspondence before summoning 21 professors to Parma where they decide with great solemnity that drinking water cannot be sold as a way to combat dehydration.

“Then they make this judgment law and make it clear that if anybody dares sell water claiming that it is effective against dehydration they could get into serious legal bother.

EU regulations, which aim to uphold food standards across member states, are frequently criticised.

Rules banning bent bananas and curved cucumbers were scrapped in 2008 after causing international ridicule.

Prof Hahn, from the Institute for Food Science and Human Nutrition at Hanover Leibniz University, said the European Commission had made another mistake with its latest ruling.

“What is our reaction to the outcome? Let us put it this way: We are neither surprised nor delighted.

“The European Commission is wrong; it should have authorised the claim. That should be more than clear to anyone who has consumed water in the past, and who has not? We fear there is something wrong in the state of Europe.”

Prof Brian Ratcliffe, spokesman for the Nutrition Society, said dehydration was usually caused by a clinical condition and that one could remain adequately hydrated without drinking water.

He said: “The EU is saying that this does not reduce the risk of dehydration and that is correct.

“This claim is trying to imply that there is something special about bottled water which is not a reasonable claim.”

from WJXT Jacksonville, 2011-Dec-1:

Teen stopped at airport for design on purse
17-year-old missed flight to Jacksonville after agents inspected gun replica

JACKSONVILLE, Fla. - A teenage girl's sense of style got her in trouble at the airport.

Vanessa Gibbs, 17, claims the Transportation Security Administration stopped her at the security gate because of the design of a gun on her handbag.

Gibbs said she had no problem going through security at Jacksonville International Airport, but rather, when she headed home from Virginia.

"It's my style, it's camouflage, it has an old western gun on it," Gibbs said.

But her preference for the pistol style didn't sit well with TSA agents at the Norfolk airport.

Gibbs said she was headed back home to Jacksonville from a holiday trip when an agent flagged her purse as a security risk.

"She was like, 'This is a federal offense because it's in the shape of a gun,'" Gibbs said. "I'm like, 'But it's a design on a purse. How is it a federal offense?'"

After agents figured out the gun was a fake, Gibbs said, TSA told her to check the bag or turn it over.

By the time security wrapped up the inspection, the pregnant teen missed her flight, and Southwest Airlines sent her to Orlando instead, worrying her mother, who was already waiting for her to arrive at JIA.

"Oh, it's terrifying. I was so upset," said Tami Gibbs, the teen's mom. "I was on the phone all the way to Orlando trying to figure out what was going on with her. It was terrifying. I don't ever want to go through it again."

Vanessa and her mom said it's hard to believe anyone could mistake the design on the purse for a real gun because it's just a few inches in size and it's hollow, not to mention Vanessa has taken it on planes before.

"I carried this from Jacksonville to Norfolk, and I've carried it from Norfolk to Jacksonville," Vanessa said. "Never once has anyone said anything about it until now."

TSA isn't budging on the handbag, arguing the phony gun could be considered a "replica weapon." The TSA says "replica weapons have prohibited since 2002."

It's a rule that Vanessa feels can't be applied to a purse.

"Common sense," she said. "It's a purse, not a weapon."

A TSA official at JIA said it's not that uncommon for passengers to wear something that could be considered a gun replica, but the official encourages everyone to check the prohibited items list, which can be found online or at the airport before going through security.

from Forbes online, 2011-Nov-22, by Alex Knapp:

Librarians Protest Penguin Decision To Limit E-Book Lending
The American Library Association is protesting Penguin's decision to limit library lending of its e-books – many of which libraries had already paid for.

“Librarians are the secret masters of the world. They control information. Don't ever piss one off.”
- Spider Robinson

Penguin Group USA's decision to limit library lending of its new e-books, as well as halt library lending of all of its Kindle editions, took many librarians by surprise. However, they're not taking this decision lying down. The American Library Association has just issued a statement demanding that library access to the e-books impacted by this decision be restored.

“If Penguin has an issue with Amazon, we ask that they deal with Amazon directly and not hold libraries hostage to a conflict of business models,” said ALA President-elect Maureen Sullivan. “This situation is one more log thrown onto the fire of libraries' abilities to provide access to books – in this case titles they've already purchased. Penguin should restore access for library patrons now.”

Sci-fi author and electronic freedom activist Cory Doctorow noted on BoingBoing that there's a bigger issue at stake in this dispute. “The fact that Amazon is capable of doing this — the fact that books can be revoked after they're sold — is a vivid demonstration of the inevitably disastrous consequences of building censorship tools into devices.”

I have to agree with this. I'd freely admit that I like Amazon a great deal, and I adore my Kindle, which is never out of my sight. But the fact that books already purchased by libraries can be locked down like this is troubling, to say the least.

from the Washington Post, 2011-Nov-15, by Cecilia Kang:

Web giants at odds with Chamber of Commerce over piracy bill

Some of Silicon Valley's biggest names are threatening to leave the U.S. Chamber of Commerce over a bill that would make Web companies liable for pirated content that appears on their sites.

Last month, Yahoo quietly quit the powerful business trade group, which supports the legislation. Google and the Consumer Electronics Association, which represents 2,200 firms, are warning they may do the same.

“Given the fact that their mission is to grow the American economy, sponsoring legislation that would harm one sector that is perhaps the brightest spot of the economy is short-sighted,” said CEA senior vice president Michael Petricone. “It makes one wonder what their membership will be like in the future.”

When asked whether CEA would drop its membership, he replied: “We are comfortably reassessing groups we are members of.”

Spats between the Chamber and its members rarely spill out into public view. And it's unclear how an exodus of technology firms would impact the lobbying group's considerable weight in Washington. The group does not disclose the names of its members, many of whom pay substantial amounts for the Chamber's lobbying prowess.

The legislation could punish Web firms if copyrighted movies, songs or software appear on their sites. But it would address long-standing concerns from Hollywood studios, record labels and publishing houses, which lose $135 billion in revenues each year from piracy and counterfeiting, according to Chamber estimates.

The Chamber would not comment specifically on the decisions of individual members. But it argued that the proposals moving through the House and Senate would improve the quality of media content online and thus benefit Web firms.

“This is a common-sense way forward that is good for the whole industry,” said Steve Tepp, chief counsel on intellectual property for the Chamber's Global IP Center.

Many Silicon Valley companies agree that piracy is a problem but say the legislation goes too far. Web giants including Facebook, Google, Yahoo, LinkedIn, eBay, and Mozilla on Tuesday co-wrote a letter to Senate and House lawmakers urging Congress to reconsider the measures. They fear the proposals would invite lawsuits and empower law enforcement to shut down their operations if a copyrighted movie or song appeared on their sites without their authorization.

The House Stop Online Piracy Act, introduced by Rep. Lamar Smith (R-Tex.), will be debated in a House Judiciary Committee hearing Wednesday. A similar bill introduced by Sen. Patrick J. Leahy (D-Vt.), with 40 co-sponsors, was approved by the Judiciary Committee in September.

Novelist Lisa Scottline, author of “Look Again” and dozens of other titles, said new laws are necessary because current enforcement isn't preventing illegal copies of her work from being exchanged on the Web.

“It's appallingly easy and makes it very difficult for any writer trying to make it,” she said.

Opponents of the measures say the new law should protect Web firms that do their best to remove illegal content. And as the bills move closer to approval, Silicon Valley companies have ramped up their lobbying efforts. Investors in companies such as Twitter and Foursquare have recently come to Washington to try to persuade lawmakers to vote against the legislation.

“This is an issue every Web company has to care about, and Google cares about any issue that threatens the nature of the Internet and how it operates,” said a person familiar with Google's thinking, who spoke on the condition of anonymity because of the ongoing debate involving the bill. The person added that Google is “considering options” that could include canceling its membership with the Chamber.

A Yahoo spokeswoman declined to comment on its decision to cancel its membership with the Chamber. People familiar with the company's thinking say the Chamber's advocacy of anti-piracy laws was the final straw in a series of decisions that didn't benefit the firm. They spoke on the condition of anonymity because of Yahoo's business relationships with current Chamber members.

Facebook is a member of the Chamber but declined to comment about the group's position. Twitter is not a member.

from the Washington Post, 2011-Nov-16, by Cecilia Kang:

SOPA, controversial online piracy bill, gains support as lobbying intensifies

Several lawmakers expressed support Wednesday for a controversial bill aimed at curbing online piracy as lobbying over the issue reached a fever pitch.

In a House Judiciary Committee hearing on a bill proposed by committee Chairman Lamar Smith (R-Tex.), a bipartisan group of lawmakers said new laws are needed to help media outlets, software makers and retailers fight the illegal distribution of movies, songs and software.

Smith's Stop Online Piracy Act is aimed at foreign sites dedicated to pirated material, but Web giants such as Google and Facebook and telecommunications firms say his proposal goes too far, making them responsible for shutting down bad actors.

“The problem of rogue Web sites is real, immediate and widespread. It harms all sectors of the economy,” Smith said during the hearing.

Several lawmakers expressed concern that the illegal exchange of copyrighted movies, software and music is draining U.S. media companies and that current laws don't give law enforcement enough power to stop bad actors.

And some questioned the motives of Web giants fighting the legislation.

Opposition is “really about the bottom line,” said Rep. Mel Watt (D-N.C.). “Sites that specialize in stolen goods attract lots of users and lots of ads.”

Supporters and critics of the measure ramped up their lobbying efforts ahead of the hearing.

Google, Facebook, Yahoo and other Web giants launched a media blitz on Wednesday with full-page newspaper ads urging lawmakers to vote against the proposal. Vague language in the bill would force them to shut down the domain names of infringing sites and would lead to lawsuits, they said. Telecommunications firms, including Verizon Communications, complained that the bill would force them to stop Internet traffic that contained illegal content.

Supporters of the legislation, ranging from Hollywood studios to pharmaceutical companies, argued during the hearing that they are losing an estimated $135 billion a year in pirated material.

“Fundamentally, this is about jobs,” said Michael O'Leary, who represented the Motion Picture Association of America at the hearing. He argued that not just actors and directors are affected; piracy also has a ripple effect on thousands of businesses that are associated with the movie business.

Smith has said he hopes to move his legislation to markup before the end of the year. A similar Senate bill passed the Judiciary Committee in September.

The House proposal came about suddenly, critics say, and without consultation from high-tech and telecommunications firms.

“Inexplicably, and almost overnight, SOPA has morphed into a full-on assault against lawful U.S. Internet companies,” said Markham C. Erickson, executive director of NetCoalition, a group representing Web firms and public interest groups opposed to the law. “This makes no sense to us, nor will it to the millions of Internet users who depend on it for communications, commerce and democracy.”

A Verizon executive said in an interview Wednesday that the legislation puts too much of the burden on Internet service providers to create new technologies to monitor and stop illegal consumer use of Web content.

“We have a number of concerns with the bill,” said the executive, who spoke on the condition of anonymity because of the sensitive nature of the legislative push. “And we have been shut out of the process in writing this, even though it is very technical and requires us to use a range of technically difficult things to enforce this legislation.”

from Time Magazine online, 2011-Nov-7, by Jerry Brito:

Congress's Piracy Blacklist Plan: A Cure Worse than the Disease?

Last month, Yahoo quit the U.S. Chamber of Commerce, one of the most powerful lobbies in Washington, over the Chamber's support of a Senate anti-piracy bill known as the PROTECT IP Act. Now Google is considering doing the same over the Stop Online Piracy Act (SOPA), a companion bill recently introduced in the House. These high-profile walkouts are a sign of what's at stake.

For the content industry—including Hollywood and the recording industry—SOPA and PROTECT IP are necessary to fight foreign copyright infringers that usually stand outside the reach of U.S. law. Domestic domains, such as those ending in .com or .net, can already be seized by the government with a court order. However, U.S. authorities don't have the power to seize foreign domains, and such domains are often used by sites that illegally stream movies and sports or offer music for free downloads.

SOPA and PROTECT IP allow the government to target foreign sites by essentially disappearing them. How the bills accomplish the disappearing act is among the issues that rankle the Internet companies.

The Domain Name System (DNS) is what translates easy-to-remember website names, like TIME.com, to their true numerical Internet addresses, like 216.35.74.104. When you type in a website name, your computer queries a DNS server to get the numerical address. Most consumers use a DNS server provided by their ISP, though some use third-party servers like the Google Public DNS.

SOPA and PROTECT IP would allow prosecutors to get a court order declaring a foreign site as infringing, and the order could then be used to require DNS service providers to block the allegedly infringing sites. This means they will essentially be required to keep a blacklist of rogue foreign sites, and when a user tries to get the numerical address for a blacklisted site, the server would have to return either nothing or an error page. As far as the user is concerned, the site will have disappeared.

There are many reasons to dislike these anti-piracy bills—from overly broad definitions of what counts as infringement, to how they may shift the burden of policing from content owners to the service providers—yet the proposed meddling with the Internet's Domain Name System is the most alarming.

First, blacklisting and disappearing sites will likely do little to stop committed pirates. For one thing, a blacklisted site will still exist and will still be accessible from its numerical address.

A quick Google search shows that there already are pirate streaming sites known only by their numerical IP address. There are also browser plugins that will translate a rogue site's name into its numerical address even if the DNS server doesn't (although SOPA would criminalize the distribution of such add-ons). And a committed infringer could also simply switch to using a foreign DNS server not bound by the U.S. blacklist.

As for casual infringement, it's true that some users may well simply give up after an unresponsive query. On the margin, therefore, DNS filtering will no doubt reduce piracy. But what we have to ask ourselves is, at what cost? And that cost is legitimizing government blacklists of forbidden information.

At a moment when Secretary of State Hillary Clinton is urging world governments to keep their hands off the Internet, creating a blacklist would send the wrong message. And not just to China or Iran, which already engage in DNS filtering, but to liberal democracies that might want to block information they find naughty. Imagine if the U.K. created a blacklist of American newspapers that its courts found violated celebrities' privacy? Or what if France blocked American sites it believed contained hate speech? We forget, but those countries don't have a First Amendment.

The result could be a virtually broken Internet where some sites exist for half the world and not for the other. The alternative is to leave the DNS alone and focus (as the bills also do) on going after the cash flow of rogue websites. As frustrating as it must be for the content owners who are getting ripped off, there are some cures worse than the disease.

from the Los Angeles Times, 2011-Oct-26, by Jon Healey:

Technology: A bipartisan attempt to regulate the Internet?

Leaders of the House Judiciary Committee introduced a beefed-up version Wednesday of the Senate Judiciary Committee's proposed Protect IP Act, offering Hollywood new tools to go after foreign piracy hotbeds -- as well as opening online storage, content-sharing and auction sites in the U.S. and elsewhere to attack from copyright and trademark owners.

The 78-page Stop Online Piracy Act (HR 3261) boasts a rare degree of bipartisan support, reflecting the combined influence of such backers as the U.S. Chamber of Commerce and the Motion Picture Assn. of America. But it drew an even sharper outcry from tech-industry advocates than the Protect IP Act.

Both measures would let federal prosecutors seek court orders shutting down foreign websites that are dedicated to piracy. Those orders would require Internet service providers, online advertisers and payment systems to redirect traffic and dollars away from the sites.

There's broad support for cutting off the financial lifeline for piracy hotbeds. But the bills' requirement that ISPs try to block their customers from reaching those sites has drawn opposition from an array of technology companies and networking engineers, who warn that it would encourage consumers to use alternate domain-name servers. That, in turn, would fragment the domain-name system and stymie efforts to make the Net less hospitable to malware.

Tech companies are also concerned about the power the Senate bill would grant to copyright holders to seek injunctions against sites they believe are dedicated to infringing activities -- a description that Viacom's attorneys could well have applied to YouTube before it started automatically checking uploads against a database of copyrighted works. But the private right of action in the House bill makes the Senate provision seem tame by comparison.

Labeling their approach a "market-based system" to protect consumers and property owners, the authors of HR 3261 would require advertisers, credit card companies and other payment processors to stop providing ads or payment services to any site that a copyright or trademark holder claimed was "dedicated to the theft of U.S. property." No court would need to be involved unless the operator of the site filed a counter-notice asserting that it didn't fit the bill's definition of a dedicated infringer.

That definition is so broad, it could snare all sorts of cloud-based services, said Markham Erickson, executive director of the NetCoalition tech advocacy group. The problem starts with the bill's focus on Web "sites," which as a technical matter can be a single page within a domain. An eBay listing could be considered a "site," as could a Facebook timeline, a Flickr page or a Dropbox folder.

Making matters worse, the bill broadens the notion of what it means to be "dedicated to the theft of U.S. property." In addition to sites that are primarily designed or marketed for infringing uses, the bill's definition includes sites whose operators "avoid confirming a high probability" that they will be used to infringe or who had at any previous time promoted infringements.

According to Erickson, the only way for ad networks and payment processors to respond to a notification about a supposedly offending site would be to block service to the entire domain. Hence, "you can shut down YouTube, you can shut down internet commerce sites, you can shut down hosting sites" for infringements on just a fraction of their pages, Erickson said.

The MPAA disagreeswith Erickson's view of what constitutes a "site," arguing that there could be no confusion between what lawmakers are targeting and legitimate online services. But the liability the House bill would create for operators who "avoid confirming a high probability" of infringing uses implies a new duty on Web sites and services to police themselves and their users. Such a duty, Erickson said, would reverse the safeguards provided by the Digital Millennium Copyright Act in 1998. Those safeguards have been crucial to cloud-based services and providers of online platforms.

"This bill is a direct attack on technology," Erickson said. "Technology that allows for sharing of informtation ... anything that could foster infringement can be covered by this bill. To me, that's the headline of this. This is a dramatically different approach from what we've seen."

David Sohn, senior policy council of the centrist Center on Democracy and Technology, offered a similar assessment:

This bill raises serious red flags. It includes the most controversial parts of the Senate's Protect IP Act, but radically expands the scope. Any website that features user-generated content or that enables cloud-based data storage could end up in its crosshairs. ISPs would face new and open-ended obligations to monitor and police user behavior. Payment processors and ad networks would be required to cut off business with any website that rightsholders allege hasn't done enough to police infringement. The bill represents a serious threat to online innovation and to legitimate online communications tools.

Advocates for copyright and trademark owners disagreed, calling the bill an appropriate response to the serious threat posed by overseas piracy hotbeds.

Cary Sherman, head of the Recording Industry Assn. of America, had this to say about HR 3261, which was introduced by House Judiciary Committee Chairman Lamar Smith (R-Texas):

This legislation is a first step towards a brighter day when these rogue offshore websites can no longer duck accountability under U.S. laws, all the while providing a critical boost to the marketplace for legal digital music services.  The Smith bill sensibly requires relevant parties to work together to address the collateral damage caused to everyone involved in legitimate online commerce and appropriately complements other voluntary efforts already underway.  Notably, the bill also allows reasonable flexibility for ISPs in determining the most appropriate technological manner for blocking illegal sites and provides ample legal safeguards for sites accused of infringement.  

Here are a few more examples from supporters:

“Websites that blatantly steal the creativity and innovation of American industries violate a fundamental right to property. Operators of rogue sites threaten American jobs, endanger consumer safety, and undermine the vitality of the online marketplace."

-- Thomas J. Donohue, chief executive of the U.S. Chamber of Commerce

 “Online theft in the U.S. and overseas threatens the independent film industry and must be stopped. For the Independents, who finance films by pre-selling the rights to distributors worldwide, the drastic damage caused by online theft is measured both in films that cannot be produced and in lost returns on investment in films that have been produced.  Independents account for 70% of all U.S. film production, so every independent film that can't be financed and produced has a dramatic impact on jobs and the economy.  We appreciate the House Judiciary Committee's serious bipartisan work in bringing this bill forward to address both rogue websites and felony streaming, and we look forward to working with them to ensure that strong measures are adopted.”

-- Jean Prewitt, chief executive of the Independent Film &Television Alliance

“The Internet is an important tool which has opened opportunities for our industry from distribution to marketing to connecting with fans, but there is a segment of web operators who are criminals, pure and simple, and we must do more to stop them. Current laws tie the hands of both law enforcement and judicial personnel in many instances, to the detriment of American business and consumers. Legislation introduced today in the U.S. House would help fix that, enabling our justice system to go after criminal operatives."

-- David Israelite, chief executive of the National Music Publishers Assn.

The most interesting thing to me about the bill is that, after more than a year of talks among lawmakers, copyright and trademark interests and tech-industry lobbyists, Smith offered a bill that pushes the sides even further apart. The measure isn't likely to run into the usual partisan snarl that kills so many pieces of legislation these days; copyright issues don't break down along party lines. Instead, this one will test the relative clout of copyright and trademark holders against Google, Silicon Valley entrepreneurs and the hands-off-the-Internet crowd. There's consensus to be had on combating the likes of The Pirate Bay, but it's not to be found in HR 3261.

from ArsTechnica.com, 2011-Oct-26, by Nate Anderson:

House takes Senate's bad Internet censorship bill, tries making it worse

Imagine a world in which any intellectual property holder can, without ever appearing before a judge or setting foot in a courtroom, shut down any website's online advertising programs and block access to credit card payments. The credit card processors and the advertising networks would be required to take quick action against the named website; only the filing of a “counter notification” by the website could get service restored.

It's the world envisioned by Rep. Lamar Hunt (R-TX) in today's introduction of the Stop Online Piracy Act in the US House of Representatives. This isn't some off-the-wall piece of legislation with no chance of passing, either; it's the House equivalent to the Senate's PROTECT IP Act, which would officially bring Internet censorship to the US as a matter of law.

Calling its plan a “market-based system to protect US customers and prevent US funding of sites dedicated to theft of US property,” the new bill gives broad powers to private actors. Any holder of intellectual property rights could simply send a letter to ad network operators like Google and to payment processors like MasterCard, Visa, and PayPal, demanding these companies cut off access to any site the IP holder names as an infringer.

The scheme is much like the Digital Millennium Copyright Act's (DMCA) "takedown notices," in which a copyright holder can demand some piece of content be removed from sites like YouTube with a letter. The content will be removed unless the person who posted the content objects; at that point, the copyright holder can decide if it wants to take the person to court over the issue.

Here, though, the stakes are higher. Rather than requesting the takedown of certain hosted material, intellectual property owners can go directly for the jugular: marketing and revenue for the entire site. So long as the intellectual property holders include some “specific facts” supporting their infringement claim, ad networks and payment processors will have five days to cut off contact with the website in question.

The scheme is largely targeted at foreign websites which do not recognize US law, and which therefore will often refuse to comply with takedown requests. But the potential for abuse—even inadvertent abuse—here is astonishing, given the terrifically outsized stick with which content owners can now beat on suspected infringers.

Blockade

One thing private actors can't do under the new bill is actually block a site from the Internet, though it hardly matters, because the government has agreed to do it for them. The bill gives government lawyers the power to go to court and obtain an injunction against any foreign website based on a generally single-sided presentation to a judge. Once that happens, Internet providers have 5 days to “prevent access by its subscribers located within the United States to the foreign infringing site.”

The government can also go after anyone who builds a tool designed for the "circumvention or bypassing" of the Internet block. Such tools already exist as a result of the US government's ongoing campaign to seize Internet domain names it believes host infringing content; they can redirect visitors who enter the site's address to its new location. The government has already asked Web browser makers like Mozilla to remove access to these sorts of tools. Mozilla refused, so the new bill just tries to ban such tools completely. (Pointing your computer's browser to a foreign DNS server in order to view a less-censored Internet still appears to be legal.)

Search engines, too, are affected, with the duty to prevent the site in question “from being served as a direct hypertext link.” Payment processors and ad networks would also have to cut off the site.

Finally, and for good measure, Internet service providers and payment processors get the green light to simply block access to sites on their own volition—no content owner notification even needed. So long as they believe the site is “dedicated to the theft of US property,” Internet providers and payment processors can't be sued.

"Industry norms"

The House bill is shockingly sympathetic to a narrow subsection of business interests. For instance, buried deep in the back of the >70-page document is a requirement that the US Intellectual Property Enforcement Coordinator prepare a study for Congress. That study should analyze “notorious foreign infringers” and attempt to quantify the “significant harm inflicted by notorious foreign infringers.” (Talk about assuming your conclusions before you start.)

The report, which is specifically charged to give weight to the views of content owners, requests a set of specific policy recommendations that might “encourage foreign businesses to adopt industry norms to promote the protection of intellectual property globally.” Should the bill pass, the US government would be explicitly charged with promoting private “industry norms”—not actual laws or treaties—around the world.

In the request for the report, we can also see the IP maximalist lobby preparing for its next move: shutting off access to US capital markets and preventing companies from "offering stock for sale to the public" in the US.

Call it what it is

Not all censorship is bad—but we need to have an honest discussion about when and how to deploy it, rather than wrapping an unprecedented set of censorship tools in meaningless terms like "rogue site," or by calling a key section of the new bill the "E-PARASITE Act."

You don't have to support piracy—and we don't—to see the many problems with this new approach. Just today, the RIAA submitted to the US government a list of "notorious markets." As part of that list, the RIAA included "cyberlockers" like MegaUpload, which are "notorious services" that "thumb their noses at international laws, all while pocketing significant advertising revenues from trafficking in free, unlicensed copyrighted materials."

It's not hard to imagine how long it would take before such sites--which certainly do host plenty of user-uploaded infringing content--are targeted under the new law. Yet they have a host of legal uses, and cyberlockers like RapidShare have been declared legal by both US and European courts.

Not surprisingly, the new bill is getting pushback from groups like NetCoalition, which counts Google, Yahoo, and small ISPs among its members. "As leading brands of the Internet, we strongly oppose offshore 'rogue' websites and share policymakers' goal of combating online infringement of copyrights and trademarks," said executive director Markham Erickson in a statement.

"However, we do not believe that the solution lies in regulating the Internet and comprising its stability and security. We do not believe that it is worth overturning a decade of settled law that has formed the legal foundation for all social media. And finally, we do not believe that it is worth restricting free speech or providing comfort to totalitarian regimes that seek to control and restrict the Internet freedoms of their own citizens."

Dozens of law professors have also claimed the original PROTECT IP Act, which contains most of the same ideas, is unconstitutional. But the drumbeat for some sort of censorship is growing louder.

from TechDirt.com, 2011-Oct-27, by Mike Masnick:

E-PARASITES Bill: 'The End Of The Internet As We Know It'
from the this-gets-worse-and-worse dept

We already wrote about the ridiculously bad E-PARASITES bill (the Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation Act), but having now had a chance go to through the full bill a few more times, there are even more bad things in there that I missed on the first read-through. Now I understand why Rep. Zoe Lofgren's first reaction to this bill was to say that "this would mean the end of the Internet as we know it."

She's right. The more you look at the details, the more you realize how this bill is an astounding wishlist of everything that the legacy entertainment gatekeepers have wanted in the law for decades and were unable to get. It effectively dismantles the DMCA's safe harbors, what's left of the Sony Betamax decision, puts massive liability on tons of US-based websites, and will lead to widespread blocking of websites and services based solely on accusations of some infringement. It's hard to overstate just how bad this bill is.

And, while its mechanisms are similar to the way China's Great Firewall works (by putting liability on service providers if they fail to block sites), it's even worse than that. At least the Chinese Great Firewall is determined by government talking points. The E-PARASITES bill allows for a massive private right of action that effectively lets any copyright holder take action against sites they don't like. (Oh, and the bill is being called both the Stop Online Piracy Act (SOPA) and E-PARASITES (which covers the PROTECT IP-like parts of the bill, SOPA refers to the larger bill that also includes the felony streaming part).

Some of the key problems with the bill, beyond what we discussed yesterday:

About the only good thing is that the insanity and out-and-out censorship and hindering of the internet that this bill provides appears to have scared off co-sponsors of the bill. Despite a massive lobbying effort from the US Chamber of Commerce and the MPAA (among some others), Rep. Lamar Smith was only able to wrangle up eleven co-sponsors. For a bill of this nature, this is woefully low. Even more surprising is that they couldn't even get Rep. Mel Watt to co-sponsor the bill, despite being the ranking Democrat on the IP subcommittee of the House Judiciary Committee. Instead, they had to settle for Howard Bermand, the Representative from Disney. In other words, it appears that many Congressional reps have heard the massive concerns of the public, technologists, entrepreneurs, investors, artists, human rights activists, and many others who are quite afraid of how this bill will break the internet. And that means that it can only help to continue to speak out and reach out to your representatives about how awful this bill is, and how much harm it would do.

from Reuters, 2011-Nov-2, by Adrian Croft and Georgina Prodhan, with additional reporting by Peter Apps, Michael Holden and writing by Peter Apps:

UK, U.S. talk tough on web freedom at cyber talks

LONDON - Britain and the United States strongly rejected calls from China and Russia for greater Internet controls on Tuesday at a major conference on the future of cyberspace, although Western states too faced accusations of double standards.

While Western states worry about intellectual property theft and hacking, authoritarian governments are alarmed at the role the Internet and social media played in the protests that swept the Arab world this year.

In September, China, Russia, Tajikistan and Uzbekistan proposed to the United Nations a global code of conduct including the principle that "policy authority for Internet-related public issues is the sovereign right of states".

Cyber security experts say western Nations hoped to fend off those calls for a "cyber treaty" and to prompt China, Russia and others to rein in hackers. Speaking by video link after U.S. Secretary of State Hillary Clinton pulled out of the two-day London meeting for family reasons, Vice President Joe Biden was particularly direct.

"What citizens do online should not, as some have suggested, be decreed solely by groups of governments making decisions for them somewhere on high," he said. "No citizen of any country should be subject to a repressive global code when they send an email or post a comment to a news article. They should not be prevented from sharing their innovations with global consumers simply because they live across a national frontier. That is not how the internet should ever work in our view."

To impose such controls on the Internet, Biden said, would stifle innovation. If countries wanted the economic benefits of connectivity, he they needed openness.

Britain faced some criticism at the conference following Prime Minister David Cameron's suggestion this August after England's riots that government might impose controls on some social media platforms. But Foreign Secretary William Hague struck a similar tone to Biden.

"Too many states around the world are seeking to go beyond legitimate interference or disagree with us about what constitutes 'legitimate' behaviour," Hague told the meeting of ministers, tech executives and Internet activists.

"The idea of freedom cannot be contained behind bars, no matter how strong the lock."

On Wednesday, delegates will continue to discuss potential international co-operation to tackle online crime, child pornography and other threats -- seen by many as the most likely area on which some agreement might be reached.

At a press conference organised by his delegation, Russian official Igor Shchegolev denied the "code of conduct" was part of a plan to censor the Internet, saying it was simply about refreshing now outdated telecommunications treaties.

"We in Russia are convinced that it is impossible to block or censor the Internet," he said. "Some countries in Europe declare that some social disturbance takes place they will close access to Twitter and Facebook. Russia doesn't even consider this possibility."

WESTERN STATES CRITICISED

Some other speakers at the conference said Cameron's suggested block of at least some social media platforms had put the West in an awkward position.

"It's very easy to defend this case of black and white human rights against dictatorships around the world, but as soon as our own Western-style stability of the state is called into question then freedom of expression is expendable. There should be one rule for all, including Western governments," said John Kampfner, chief executive of Index on Censorship.

Around 60 countries, including China, Russia and India, were represented at the conference as well as tech industry figures such as Jimmy Wales, founder of Wikipedia, and senior executives from Facebook and Google.

Wales told the conference he believed many attempts to regulate the flow of information -- such as British court "superinjunctions" which celebrities have used to block discussion of embarrassing stories -- were "bad law".

"We see all the time these kinds of laws," he said. "Maybe there are better ways than to rely on government control."

In a closed session, government and business officials discussed cybersecurity, with a mounting number of cyber attacks and hacking attempts seen high on the agenda.

On the eve of the conference, the head of Britain's communications spy agency said UK government and industry computer systems faced a "disturbing" number of cyber attacks, including a serious assault on the Foreign Office's network.

In his speech to the conference, Prime Minister Cameron described such attacks as "unacceptable". Whilst he did not refer directly to his riots comments, he said future prosperity and peace depended on managing cyberspace properly.

"Governments must not use cyber security as an excuse for censorship, or to deny people the opportunities that the internet represents," Cameron said. "The balance we've got to strike is between freedom and a free-for-all."

from the Weekly Standard, 2011-Oct-7, printed 2011-Oct-17, by Mark Hemingway:

The Perils of Donating to Perry
The SEC's curious role in campaign finance.

Last week, the Rick Perry campaign announced with great fanfare that the Texas governor had raised $17 million for his presidential campaign in the July-September quarter. That's more than any other GOP hopeful, and since Perry was a recent entrant to the presidential race, he raised that sum in just 49 days.

But here's why Perry's fundraising achievement is really impressive: In March, the SEC enacted “pay-to-play” rule 206(4)-5. The regulation prohibits investment advisers who contribute more than $350 to state or local officials who can influence their state's investment decisions from receiving payment from that state government for two years.

According to the Los Angeles Times, in 2008 securities firms alone gave Republican presidential candidates $20 million. Thanks to the new rule, that fundraising reservoir may remain largely untapped by the Perry campaign, for fear that donating to the Texas governor would prevent financial professionals from doing business with the second-largest state in the country.

Perry's campaign admits this has made fundraising more difficult. “As the only sitting governor in the race for the White House, Perry is much more negatively impacted by the SEC rules than anyone else in the race,” says campaign communications director Ray Sullivan. “It has and will continue to hamper our efforts to raise money, especially from the financial sector. It has made things quite challenging in New York, for example.”

And while this new ruling primarily affects Perry at the presidential level, it could have far-reaching consequences going forward, since it applies to every state office holder seeking federal office from here on out.

The new SEC regulation comes on top of an existing Municipal Securities Rulemaking Board (MSRB) regulation of the financial service industry​—​known as rule G-37​—​that restricts campaign donations to state office holders by those dealing in municipal bonds. (The MSRB is subject to SEC oversight.)

“Its genesis goes back to 1994 when the SEC began to regulate political contributions made to officials of issuers, who are basically mayors and governors and others who appoint people who select those who write or underwrite municipal bonds,” says Kenneth A. Gross, an expert on campaign law compliance at the law firm Skadden, Arps, Slate, Meagher & Flom. “There were many scandals in the late '80s, early '90s involving Orange County and other places where big firms on Wall Street were getting underwriting business because they made contributions to the right people in the right amounts.”

Like the association of scandal with municipal bonds, a regulatory crackdown on the cozy relationships between state politicians and investment advisers is not without precedent. In 2010, the Quadrangle Group agreed to pay $12 million to the state of New York after it emerged that Quadrangle cofounder Steve Rattner had paid significant sums to an adviser of New York State comptroller Alan Hevesi. Quadrangle subsequently received a $150 million investment from the state's pension fund. (Rattner went on to serve in the Obama administration as the White House's “car czar,” helping broker bailouts for U.S. auto companies.)

According to Gross, former SEC chairman Arthur Levitt had proposed extending pay-to-play rules to cover investment advisers back in 1999, but the regulations weren't pursued by Bush administration SEC appointees. The idea was revived by the Obama administration after the Quadrangle arrangement drew public scrutiny to the ties between state officials and investment advisers.

Nobody really disputes that the new SEC pay-to-play rules have the potential to clean up the political process. The perceived problem, however, is that the new rule makes it unduly difficult for state officeholders to raise money to challenge federal incumbents.

Between those dealing in municipal bonds and the hedge funds, private equity firms and other financial institutions restricted by the new SEC regulations​—​the gatekeepers of nearly $5 trillion of America's wealth​—​are now severely restricted from donating to the campaigns of state officeholders.

The fact that these regulations apply to some presidential candidates and not to others is not lost on the Perry campaign. “It does seem curious and unbalanced to heavily regulate and undermine the ability of state officials to legally raise funds and leave federal officials comparatively exempt from those regulations,” says Sullivan.

In the era of Dodd-Frank legislation, Congress and the White House have taken a great interest in banking regulations, and they have been lobbied heavily in response. It's hard to argue that cracking down on financial industry donors to state officeholders is warranted but that Congress shouldn't be subject to similar regulations.

And as it happens, Dodd-Frank is yet another example of federal regulations restricting fundraising for state officeholders. “Dodd-Frank has two new pay-to-play laws that will be on the books and in effect before this election is over having to do with municipal advisers, including banks, and perhaps accounting firms and engineering firms,” says Gross. “So we're going to have four federal pay-to-play laws that largely regulate nothing but state and local officials.”

There are currently no pay-to-play rules that apply to federal incumbents, despite any number of scandals similar to those used to justify the regulation of state officials. For instance, Rep. Barney Frank, the Massachusetts Democrat of the eponymous banking legislation, was involved in a romantic relationship with a Fannie Mae executive while the government-sponsored mortgage backer was making lavish political donations and successfully lobbying Frank's congressional banking committee to loosen mortgage standards.

This double standard is highlighted by the Perry campaign. “Congress does have a habit of exempting themselves and treating federal elected officials better than state and local officials. It is ironic that much of the financial crisis, to the extent that government was involved, they were federal agencies, federal bureaucrats, and federal officials that set the ground rules,” says Sullivan.

The SEC has a wide amount of discretion in how they enforce these campaign donation regulations. With both the MSRB's G-37 rule and the SEC's 206(4)-5 rule, direct and indirect contributions to officials are restricted. And what exactly constitutes an “indirect contribution” to a political campaign isn't strictly defined.

“There are certain things we can definitely say are indirect contributions that are problematic. For example, having your spouse write the check because you can't. Or having your neighbor write the check and reimbursing them,” says Melissa L. Laurenza, an election law attorney at Akin, Gump, Hauer and Feld. But beyond that, “the MSRB said they specifically weren't going to give any more guidance because they wanted the ability to review things on a case by case basis, and the SEC basically says the same thing in their rulemaking.”

Which raises the $64,000, or in this case the $350 question: How will the SEC rule on contributions to super PACs? Contributions to super PACs are currently considered independent expenditures by the FEC and could be a way to circumvent the new SEC restrictions. “The Securities and Exchange Commission, which has much broader rules and unfair dealing rules and much more discretion in interpreting these constitutional issues that the Federal Election Commission gets all spun up about, may well determine that's problematic,” says Gross.

Gross wonders if the SEC's determinations on super PACs will come down to how the individual PACs are operated​—​who set them up, who operates them, who does the soliciting. But that could require the SEC to make unprecedented political investigations and judgments.

If the SEC starts making decisions that are seen as becoming a determinative factor in who wins elections, the agency runs the risk of a political backlash. An SEC investigation might also carry the whiff of scandal, particularly when they're enforcing regulations that don't apply to the opposing candidates.

Many would like to see the SEC's rules clarified, especially with regard to super PACs. “That's probably one area that causes some discomfort​—​if I give to a [hypothetical super PAC called] Citizens for Perry, am I going to trigger a ban on doing business in Texas?” wonders Laurenza.

Whether these regulations are necessary for clean elections or simply amount to an incumbent-protection racket remains to be seen. The regulations appear to provide the financial services industry an incentive to concentrate their lobbying efforts at the federal level.

No one is certain how major campaign donors will respond to the new regulatory reality. Gross sent a memo to Skadden's influential clientele saying that “covered firms, employees and their PACs should avoid making contributions to Governor Perry's presidential campaign. .  .  . Moreover, they should avoid soliciting or coordinating contributions on his behalf, such as serving on his finance committee.”

Laurenza has more heartening news for the Perry campaign. “I've heard some people say that they feel so strongly they've just decided they're not going to do business in Texas. They say, `For the next two years, Texas is off the table and we're going to go like gangbusters for Perry,' ” she says. “For some people it's a big problem, and for others they just say, `To heck with it.' ”

The Perry campaign is no doubt hoping a lot more donors simply decide to say the heck with it. You could say they're banking on it.

from CNET News, 2011-Oct-14, by Declan McCullagh:

Free-trade pacts export U.S. copyright controls

President Obama called the approval of free-trade agreements with Colombia, Panama, and South Korea this week "a major win for American workers."

What he didn't add is that the deals, which were given final approval on Wednesday by the U.S. Congress, are also a major win for the motion picture industry and other large U.S. copyright holders. Other portions specify that consumers can have their choice of computer software, but "subject to the needs of law enforcement."

You won't find this highlighted on the administration's Web site (really, Web sites), but the three free-trade agreements export some of the more controversial sections of U.S. copyright law.

One chapter of the complex agreements echoes the Digital Millennium Copyright Act (DMCA), which the U.S. enacted in 1998 over the objections of librarians and computer scientists. It's been used to threaten college professors, stymie research into HP security vulnerabilities, and jail a Russian programmer who created an e-book conversion utility.

Now Colombia, Panama, and South Korea will be required to prohibit circumventing any "technological measure that controls access to a protected work"--meaning that making a backup copy of a DVD or video game will become illegal, and, depending on the details, a crime as well.

The language of Chapter 18 (PDF), the intellectual property section, does not include the limited safeguards that Americans enjoy. The U.S. DMCA, for instance, allows the U.S. Copyright Office to consider the state of computer technology and create exceptions, a requirement that is not exported to the signatories.

In the U.S., it's not against the law "for a person to engage in an act of security testing." That authorization is missing in the free-trade agreements. Also absent are most of the exemptions created by the Copyright Office, including ones relating to bypassing e-book and video game security in some cases, circumventing dongle-based restrictions, and copying clips from DVDs for documentary filmmaking.

Which is probably one reason why copyright holders were so enthusiastic about the free-trade agreements' passage yesterday. The Recording Industry Association of America said it was "extremely pleased."

To the Motion Picture Association of America, which said it "thanks Congress for approving these trade agreements," the deals will curtail "the content theft that hinders our industry's growth abroad." Even the Entertainment Software Association, representing video game publishers, predicted Congress' action "boosts exports, opens prospects for new markets and grows high-paying jobs."

In other words, the central "anti-circumvention" sections of the DMCA are exported, but not some of the protections designed to protect researchers and other people who make legitimate use of copyrighted material.

This kind of paracopyright-law export doesn't sit well with Sherwin Siy, deputy legal director at the advocacy group Public Knowledge, which has been critical of the DMCA in the past.

"It's definitely worth noting, and we've long been leery of quasi-legislation through international agreements," Siy said.

The U.S. Chamber of Commerce, which applauded the passage of the trade deals through Congress, downplayed the significance of the DMCA-esque language. Steve Tepp, chief counsel for the Chamber's Global IP Center, said it was "virtually verbatim from provisions of U.S. law enacted in the DMCA in 1998."

To be sure, there are plenty of sections of the trade deals that are likely to be applauded by even the most ardent skeptic of copyright law. Chapter 15, on electronic commerce, limits customs duties on any "digital product transmitted electronically." Electronic authentication and digital signatures are also explicitly permitted.

Bush administration trade negotiators routinely inserted DMCA-like language into bilateral agreements. It appeared in a 2003 pact with Singapore, and another a year later with Australia. These deals, the first negotiated by the Obama administration, show it's following suit.

A law enforcement veto?
Another section (PDF) of the trade deal seems to recognize only a limited right by Americans to create and use computer programs of their choice.

It says: "Each party recognizes that consumers in its territory should be able to...run applications and services of their choice, subject to the needs of law enforcement."

A U.S. trade official, who did not want to be named, told CNET that the language is "hortatory" and therefore not binding--in other words, it's a recognition, not a commitment to actually do anything.

"The intent is to make sure device makers and telcos do not introduce technology that could thwart a CALEA--an existing U.S. law--requirement to build into networks lawful interception capability," the trade official said. "Who decides? In the first instance, the law enforcement community."

The language--"subject to the needs of law enforcement"--dates back to a Federal Communications Commission "policy document" from the Net neutrality wars of 2005. It also echoes the late 1990s, when the FBI was lobbying for a law banning encryption without backdoors for the Feds. (A House of Representatives committee approved such a bill but it did not clear the Congress.)

"As followers of the Net neutrality debate will recognize, this text is partly a dog whistle for placating Hollywood about piracy," says Matt Schruers, vice president for law and policy at the Computer and Communications Industry Association.

from ArsTechnica.com, 2011-Oct-11, by Sean Gallagher:

Verisign wants power to shut sites down upon law enforcement request

In a request made yesterday to the Internet Corporation for Assigned Names and Numbers, Verisign outlined a new “anti-abuse” policy that would allow the company to terminate, lock, or transfer any domain under its registration jurisdiction under a number of circumstances. And one of those circumstances listed was “requests of law enforcement.”

The request, submitted through ICANN's Registry Services Evaluation Process on October 10, proposes a new malware scanning service for domains as well as a new Verisign Anti-Abuse Domain Use Policy. In the request letter, Verisign stated that its policy would help the registrar align with requirements ICANN is placing on new generic top level domains. “All parts of the internet community are feeling the pressure to be more proactive in dealing with malicious activity,” Verisign explained. “ICANN has recognized this and the new gTLD Applicant Guidebook requires new gTLDs to adopt a clear definition of rapid takedown or suspension systems that will be implemented.”

In part, the policy is aimed at empowering Verisign to act quickly to take down sites that are harboring malware, launching phishing attacks, or otherwise being used to launch attacks across the Internet. The scanning service, which registrars can opt into voluntarily, would scan sites on all .com, .net and .name sites for “known malware,” and inform the registrar and the site owner when malware is detected. Verisign has been soliciting domain registrars to participate in a pilot of the program, derived from the company's Verisign Trust Seal program, since March.

But the request also asks for authority to take down sites quickly for a number of reasons beyond malware, including “to protect the integrity, security and stability of the DNS; to comply with any applicable court orders, laws, government rules or requirements, requests of law enforcement or other governmental or quasi-governmental agency, or any dispute resolution process; (and) to avoid any liability, civil or criminal, on the part of Verisign, as well as its affiliates, subsidiaries, officers, directors, and employees... Verisign also reserves the right to place upon registry lock, hold or similar status a domain name during resolution of a dispute.”

Verisign said it has been piloting takedown procedures with US law enforcement agencies, cybersecurity experts, US government Computer Emergeny Readiness Teams, and domain registrars to establish baseline procedures, and has begun planning pilots with European government agencies and registrars. Just what those baseline procedures are—and what recourse domain holders who run afoul of them have—hasn't been spelled out. Verisign says it "will be offering a protest procedure to support restoring a domain name to the zone."

Aden Fine, senior attorney with the ACLU, said in an interview with Ars Technica that the "protest procedure" is cause for concern. "The default shouldn't be 'take down first'," he said. "Any time the government is involved in seizing websites, that raises serious First Amendment issues. It doesn't matter if it's a private company pushing the button."

Electronic Frontier Foundation media relations director and digital rights analyst Rebecca Jeschke told Ars Technica that Verisign's proposal is "an extraordinarily bad idea." "We've already seen how problematic domain seizures are through the ICE (Immigration and Customs Enforcement) shutdowns," she said. "It's similar to things the US government is trying to get through congress with the Protect IP Act, though there's a little more oversight in Protect IP. The key is if you're going to do something as drastic as taking a whole site offline, you at least need some meaningful court review. "

[By October 13, Verisign had with withdrawn their proposal, as indicated at http://www.icann.org/en/registries/rsep/, re: proposal #2011008. -AMPP Ed.]

from the Wall Street Journal, 2011-Sep-27, by Gary Fields and John R. Emshwiller:

The Animal Enterprise Terrorism Act Sets an Unusual Standard for Crime

In response to attacks on researchers by animal-rights activists, Congress in 2006 passed the Animal Enterprise Terrorism Act. The bill made a critical change to the legislation it replaced: Demonstrators could now earn a sentence in federal prison if the target of their attention felt threatened, regardless of the protesters' actual intention.

The law has emerged as a central example of how Congress has eroded the legal concept of mens rea, which is Latin for "guilty mind"—a long-held protection that says a defendant must know they've done something wrong to be found guilty of it.

The 2006 act was cited in a joint study by the conservative Heritage Foundation and the National Association of Criminal Defense Lawyers as an example of an overly broad law, particularly the way it clashed with First Amendment free-speech protections. The first case brought under its provisions was tossed in federal court.

For a controversial topic, the legislation received scant attention in Congress. Under Congress's sometimes arcane voting rules, the bill passed both chambers with fewer than 10 members voting in total, out of a possible 535. Because of the voting method, no record was kept of the exact number.

The bill was a redo of the Animal Enterprise Protection Act of 1992, which focused on attacks on "animal enterprises" such as zoos, research labs, circuses, stockyards and pet stores. Rep. Thomas Petri (R., Wis.) introduced the bill in the House in November 2005 with nearly four dozen co-sponsors from both parties.

At a House Judiciary subcommittee hearing in May 2006 victims talked about being targeted and threatened at their homes. One received a hoax telephone call telling her to come to the local morgue to identify a family member.

Sen. Dianne Feinstein (D., Calif.) with input from counterterrorism experts from the Federal Bureau of Investigation and the Justice Department, introduced an amended Senate version.

Norman Reimer, executive director of the National Association of Criminal Defense Lawyers, said the bill can turn a simple protest into a criminal act if it causes fear in the target. The crime then turns on the victim's mental state, regardless of what the defendant intended.

In February 2009, four defendants in California were charged with participating in demonstrations at the homes of college professors who used animals in biomedical research. According to the criminal complaint, the four were among protesters who picketed and chanted outside the researchers' homes, calling them murderers. In one instance they went online to download information about researchers they left on fliers in a Santa Cruz café.

Federal District Judge Ronald Whyte dismissed the case, saying the indictment didn't make clear exactly what criminal behavior the defendants were supposed to have exhibited. "Any defendant—constitutionally presumed to be innocent—would be hard-pressed to discern" from the indictment, the judge said, "what it is that he or she has done that is alleged to have violated the law."

from the Wall Street Journal, 2011-Jul-12:

The Taxman Retreateth
The IRS stops its attack on political donors, at least for now.

The IRS last week abandoned its plan to audit major political donors just in time for the 2012 election season to begin in earnest. We're glad to see the agency back down from this ill-conceived campaign, but it's a shame it took a public backlash to deter its apparent ambition to be a political watchdog.

In May, the IRS sent letters to five big-time political donors advising that their donations to nonprofit groups that register under section 501(c)(4) of the tax code were subject to gift taxes, which might be owed retroactively. The letters were a shot at conservative political advocacy groups, which outspent liberal groups in the 2010 election cycle for the first time since 1994.

The backtracking is good news for the donors who were targets of the political dragnet, at least for now. The IRS stopped short of promising not to pursue similar claims in the future, saying only that it wouldn't do anything more while it "review[s] the need for additional guidance or legislation" and that any future action will be "prospective and after notice to the public." The escapade may also have costs for donors who have since paid gift taxes on their contributions to ensure they were abiding by the law. IRS spokesman Frank Keith was noncommittal on whether they'd be getting refunds.

Since the Supreme Court's 2010 decision in Citizens United restored the First Amendment rights of businesses and unions to donate to independent political groups, Democrats have been desperate to find a way to control all the irritating new speech flooding the political arena. They've tried to pass the Disclose Act to impose new disclosure requirements on political donors and encouraged the Federal Communications Commission to force disclosure on groups that run political ads.

This spring, the Obama Administration even drafted an executive order requiring disclosure for anyone bidding on a federal contract. When the draft order conveniently disappeared under a pile of papers at the White House after its contents were leaked, California Representative Anna Eshoo tried to attach it as an amendment to the 2012 Defense authorization bill last week.

Montana Senator Max Baucus had been pushing the IRS to crack down on political donors. But the IRS has maintained that all of this was the work of career gnomes and that the Administration knew nothing about it. Mr. Keith said last week that "decisions to open, suspend and close the audits were made by career civil servants and were not the result of any outside influence."

Whoever gets credit for this delightful interlude, the effect of the investigation was to make an example of high-dollar donors and discourage political speech. By leaving open the possibility of future investigations, the IRS has also left a lingering atmosphere of uncertainty among current donors. We doubt that's unintended.

from the Wall Street Journal, 2011-Jul-2, by Neil Strauss:

The Insidious Evils of 'Like' Culture
In our age of online view counts and retweets, conformity is becoming the rule

If you happen to be reading this article online, you'll notice that right above it, there is a button labeled "like." Please stop reading and click on "like" right now.

Thank you. I feel much better. It's good to be liked.

Don't forget to comment on, tweet, blog about and StumbleUpon this article. And be sure to "+1" it if you're on the newly launched Google+ social network. In fact, if you don't want to read the rest of this article, at least stay on the page for a few minutes before clicking elsewhere. That way, it will appear to the site analytics as if you've read the whole thing.

Once, there was something called a point of view. And, after much strife and conflict, it eventually became a commonly held idea in some parts of the world that people were entitled to their own points of view.

Unfortunately, this idea is becoming an anachronism. When the Internet first came into public use, it was hailed as a liberation from conformity, a floating world ruled by passion, creativity, innovation and freedom of information. When it was hijacked first by advertising and then by commerce, it seemed like it had been fully co-opted and brought into line with human greed and ambition.

But there was one other element of human nature that the Internet still needed to conquer: the need to belong. The "like" button began on the website FriendFeed in 2007, appeared on Facebook in 2009, began spreading everywhere from YouTube to Amazon to most major news sites last year, and has now been officially embraced by Google as the agreeable, supportive and more status-conscious "+1." As a result, we can now search not just for information, merchandise and kitten videos on the Internet, but for approval.

Just as stand-up comedians are trained to be funny by observing which of their lines and expressions are greeted with laughter, so too are our thoughts online molded to conform to popular opinion by these buttons. A status update that is met with no likes (or a clever tweet that isn't retweeted) becomes the equivalent of a joke met with silence. It must be rethought and rewritten. And so we don't show our true selves online, but a mask designed to conform to the opinions of those around us.

Conversely, when we're looking at someone else's content—whether a video or a news story—we are able to see first how many people liked it and, often, whether our friends liked it. And so we are encouraged not to form our own opinion but to look to others for cues on how to feel.

"Like" culture is antithetical to the concept of self-esteem, which a healthy individual should be developing from the inside out rather than from the outside in. Instead, we are shaped by our stats, which include not just "likes" but the number of comments generated in response to what we write and the number of friends or followers we have. I've seen rock stars agonize over the fact that another artist has far more Facebook "likes" and Twitter followers than they do.

Because it's so easy to medicate our need for self-worth by pandering to win followers, "likes" and view counts, social media have become the métier of choice for many people who might otherwise channel that energy into books, music or art—or even into their own Web ventures.

The same is true of the productivity of already established writers and artists. I was recently on a radio show with an author who, the interviewer said, had tweeted, on average, every 20 minutes for the past two years. Yet, despite all the time and effort spent amassing and catering to followers, as soon as a social network falls out of use, like MySpace, all that work collapses like a castle built of sand.

The psychoanalyst Erich Fromm presciently wrote over 60 years ago that man has "constructed a complicated social machine to administer the technical machine he built…. The more powerful and gigantic the forces are which he unleashes, the more powerless he feels himself as a human being. He is owned by his creations, and has lost ownership of himself."

So let's rise up against the tyranny of the "like" button. Share what makes you different from everyone else, not what makes you exactly the same. Write about what's important to you, not what you think everyone else wants to hear. Form your own opinions of something you're reading, rather than looking at the feedback for cues about what to think. And, unless you truly believe that microblogging is your art form, don't waste your time in pursuit of a quick fix of self-esteem and start focusing on your true passions.

And please, despite what I said earlier, do not +1, tweet, StumbleUpon, like or comment on this article. You'll only be making it worse.

—Mr. Strauss is the author of seven best-selling books. His latest book is "Everyone Loves You When You're Dead: Journeys Into Fame and Madness."

from eWeek.com, 2005-Mar-23, by Steven Vaughan-Nichols:

Software Patents and Mutually Assured Destruction

Opinion: The Cold War policy of MAD was that things could never get too ugly between the United States and the Soviet Union because if one of us went too far, the other could bomb it into the stone age … and vice-versa. That may be where we're

Have I mentioned that I hate software patents?

Why, yes, I have. Many times.

Im also a realist. Maybe someday, PUBPAT (the Public Patent Foundation) and other patent-reform groups such as the Electronic Freedom Foundations Patent-Busting Project will succeed in getting rid of software patents, but Im not holding my breath.

Even with Microsoft backing some software patent reform, amazing but true, I just cant see significant changes to U.S. patent law happening anytime soon.

And lest we forget, Microsoft isnt exactly the most trustworthy company in the world when it comes to patents.

Just this week, Microsoft announced that a new, integrated IPv4/IPv6 network stack would be in its upcoming Longhorn operating system. At the same time, lawyers for the Public Patent Foundation and the Software Freedom Law Center are concerned over a patent about automatic generation of IP addresses to facilitate simple network connections.

If my network-savvy readers say that sounds a bit like some of the features of IPv6 and DHCP (Dynamic Host Configuration Protocol), well yes it does, doesnt it.

Now, IPv6 isnt that important in North America at this time, but sooner or later, everyone on a TCP/IP network connected with the Internet is going to have to deploy it. Some people, with good reason I think, are concerned that Microsoft might use that patent to try to place a tariff on all programs that access the next generation of the Internet.

This is only part of what many see as a pattern of Microsoft getting ready to retroactively claim IP (intellectual property) rights over many of the Internets basic protocols.

Maybe they are, but Darl McBride, the CEO of The SCO Group, made me think that that may not be the case. We were talking about patents on Tuesday—no, SCO is not getting ready with a surprise patent lawsuit—and he said he didnt think Microsoft would dare use its patents in such a broad way.

His logic was that the technology world is a lot like the world situation of the 50s through the 80s, when the Soviet Union and the United States never went to outright war with each other because of the cynical but all too practical notion of MAD (mutually assured destruction).

In a nutshell, the policy of MAD was that things could never get too ugly between the United States and the Soviet Union because if one of us went too far, the other could bomb it into the stone age … and vice-versa.

How that applies to todays computing world is that if Microsoft started really throwing its patent weight around, IBM or Novell could retaliate in kind. Thus, if any one company tried to really strangle a large part of the market with an overly aggressive patent enforcement, they would be blasted by other companies with large patent portfolios. The end result would be that all of the companies involved would be locked into a software development doomsday, where nothing could be developed.

This isnt just idle speculation. After talking with McBride, I contacted several other people. Both a senior Novell executive and a prominent open-source attorney told me that if Microsoft ever tries to push too hard with its patents, other companies are more than ready to counter-attack with their own patent portfolios.

Lets take this analogy a little further. The peaceful coexistence based on MAD between the Soviets and the Americans meant that we didnt see World War III. We did, however, see lots of brushfire wars in Afghanistan, Angola and Vietnam.

Thus, just because the big companies may never go too far with their patents with each other and worldwide technologies such as the Internet doesnt mean that smaller companies or open-source developers wont be attacked. They will be.

Of course, as the good people at Black Duck Software will tell you, a patent holder doesnt actually have to sue you for a violation. Just the mere threat is enough to stop a company from developing or marketing a program if it doesnt have the legal protection or deep pockets needed to fight a patent battle in the courts.

So, while I now think that were unlikely to see any truly broad attempts to abuse software patents, I still believe that software patents are bad in general and that, in specific, small companies and open-source developers are still vulnerable to the bullying of software-patent superpowers.

from National Public Radio, 2011-Jul-22:

When Patents Attack

Update, July 26: This story from Planet Money's Alex Blumberg and NPR's Laura Sydell aired this weekend on This American Life. (Check out TAL's "Ways to Listen" page to find how you can hear the story.) A shorter version of the piece is also airing today on All Things Considered. Here's the story.

Nathan Myhrvold is a genius and a polymath. He made hundreds of millions of dollars as Microsoft's chief technology officer, he's discovered dinosaur fossils, and he recently co-authored a six-volume cookbook that "reveals science-inspired techniques for preparing food."

Myhrvold has more than 100 patents to his name, and he's cast himself as a man determined to give his fellow inventors their due. In 2000, he founded a company called Intellectual Ventures, which he calls "a company that invests in invention."

But Myhrvold's company has a different image among many Silicon Valley insiders.

The influential blog Techdirt regularly refers to Intellectual Ventures as a patent troll. IPWatchdog, an intellectual property site, called IV "patent troll public enemy #1." These blogs write about how Intellectual Ventures has amassed one of the largest patent portfolios in existence and is going around to technology companies demanding money to license these patents.

Patents are a big deal in the software industry right now. Lawsuits are proliferating. Big technology companies are spending billions of dollars to buy up huge patent portfolios in order to defend themselves. Computer programmers say patents are hindering innovation.

But people at companies that have been approached by Intellectual Ventures don't want to talk publicly.

"There is a lot of fear about Intellectual Ventures," says Chris Sacca, a venture capitalist who was an early investor in Twitter, among other companies. "You don't want to make yourself a target."

Sacca wouldn't say if Intellectual Ventures had been in contact with any of the companies he's invested in.

"I tried to put you in touch with other people in this community to talk to you about this and they almost uniformly said they couldn't talk to you," Sacca told us. "They were afraid to." IV has the power to "literally obliterate startups," Sacca says.

Not surprisingly, Nathan Myhrvold (pictured above) has a very different story about Intellectual Ventures. When we ask him if IV is a patent troll, he laughs.

"That's a term that has been used by people to mean someone they don't like who owns patents," he says. "I think you'd find almost anyone who stands up to their patent rights has been called a patent troll."

Intellectual Ventures, says Myhrvold, is just the opposite. It's on the side of the inventors. It pays inventors for patents. It gathers patents together into a huge warehouse of inventions that companies can use if they want. It's sort of like a department store for patents: Whatever technology you're looking for, IV has it.

The company even has its own massive lab, with people walking around in white lab coats, mixing chemicals in beakers and looking at stuff under microscopes. There's a machine shop. A nanotechnology section. It's like a playground for scientists and engineers.

IV says it has invented a nuclear technology that's safer and greener than existing technologies. A cooler that can keep vaccines cold for months without electricity. And the world's most high-tech mosquito zapper.

But the lab is a tiny fraction of what IV does. The company has received about 1,000 patents on stuff it's come up with at the lab; it's purchased roughly 30,000 patents from other people. In fact, nothing that's come out of this lab — not the mosquito zapper, not the nuclear technology — has made it into commercial use.

IV, for its part, says its job is to encourage invention, not to bring products to market.

Imagine an inventor out there — someone with a brilliant idea, a breakthrough. This inventor has a patent, but companies are stealing his idea. And this inventor doesn't have the money or legal savvy to stop them. That's where IV comes in. It buys this inventor's patent, and it makes sure that companies who are using the idea pay for it.

When we asked for an example of an inventor in this situation, someone with a breakthrough, who wasn't getting paid for it, two separate people at IV pointed us to a guy named Chris Crawford.

Joe Chernesky, a vice-president at Intellectual Ventures, said:

The neat thing about Chris is he had no idea how to get money for his patents. He had this great idea. These patents were immensely valuable because every technology company was adopting the technology. Yet he didn't know how to get paid. He eventually found Intellectual Ventures. So we bought those patents

So we went to talk to Chris Crawford. But that turned out to be harder than we thought — and it led us on a five month journey, where things did not quite fit the story Intellectual Ventures was telling.

***

When we followed up with IV to get Chris Crawford's contact info, the company told us it no longer owned Chris Crawford's patent. And Crawford probably wouldn't want to talk right now anyway, the company said, because he was in the middle of litigation.

We started digging around and found Chris Crawford in Clearwater, Florida. As predicted, he never responded to our many emails and phone calls. You'll never hear from him in this story. But we were able to locate Chris's patent — number 5771354.

He got it in 1998. And the way IV explained the patent to us, Chris Crawford invented something that we do all the time now: He figured out a way to upgrade the software on your home computer over the Internet. In other words, when you turn on your computer and a little box pops up and says, "Click here to upgrade to the newest version of iTunes," that was Chris Crawford's idea.

But when we looked at the patent, it seemed to claim a lot more than that. The name of the actual invention is "an online back-up system." The patent says this invention makes it possible to connect to an online service provider to do a bunch of stuff — software purchases, online rentals, data back ups, information storage. The patent makes it seem like Chris Crawford invented a lot of the most common things we do on the Internet.

We weren't sure what to make of all this, so we went to see David Martin, who runs a company called M-Cam. It's hired by governments, banks and business to assess patent quality, which the company does with a fancy piece of software. We asked Martin to assess Chris Crawford's patent.

At the same time Crawford's patent was being prosecuted, more than 5,000 other patents were issued for "the same thing," Martin says.

Crawford's patent was for "an online backup system." Another patent from the same time was for "efficiently backing up files using multiple computer systems." Yet another was for "mirroring data in a remote data storage system."

And then there were three different patents with three different patent numbers but that all had the same title: "System and method for backing up computer files over a wide area computer network."

Martin says about 30 percent of U.S. patents are essentially on things that have already been invented. In 2000, for example, the patent office granted a patent on making toast — patent number 6080436, "Bread Refreshing Method."

We also asked Rick Mc Leod, a patent lawyer and former software engineer, to evaluate Chris Crawford's patent.

"None of this was actually new," he told us.

Mc Leod looked to see if anyone else in the field was already doing the thing Chris Crawford claimed to invent in 1993, when he first filed his patent. Here's what he found:

There were institutions, both academic and businesses, that used computers in this way, and I think it's a very interesting collection of things that were well known in the 1980s, with the exception that it adds the word "Internet."

Mc Leod said he didn't think the patent should have been issued in the first place.

***

For a long time, the patent office would have agreed with Rick Mc Leod. For a long time, the patent office was very reluctant to grant patents for software at all.

For decades, the patent office considered software to be like language. A piece of software was more like a book or an article. You could copyright the code, but you couldn't patent the whole idea.

In the 1990s, the Federal courts stepped in and started chipping away at this interpretation. There was a couple big decisions, one in 1994 and another in 1998, which overturned the patent office completely.

A flood of software patents followed. A lot of people in Silicon valley wish that had never happened, including a very surprising group: computer programmers.

"I worked on a whole bunch of patents in my career over the years and I have to say that every single patent is nothing but crap," says Stephan Brunner, a programmer.

Brunner says software patents on his own work don't even make sense to him.

I can't tell you for the hell of it what they're actually supposed to do. The company said we have to do a patent on this. ... Personally, when I look at them, I'm not proud at all. It's just like mungo mumbo jumbo that nobody understands and makes no sense from an engineering standpoint whatsoever.

(For the record, Stephan Brunner has a patent for a "configurator using structure and rules to provide a user interface.")

We met Stephan randomly one afternoon in South Park, a park in San Francisco where lots of tech people eat lunch.

That same afternoon, we talked to a half dozen different software engineers. All of them hated the patent system, and half of them had patents in their names that they felt shouldn't have been granted. In polls, as many as 80 percent of software engineers say the patent system actually hinders innovation. It doesn't encourage them to come up with new ideas and create new products. It actually gets in their way.

Many patents are so broad, engineers say, that everyone's guilty of infringement. This causes huge problems for almost anyone trying to start or grow a business on the Internet.

"We're at a point in the state of intellectual property where existing patents probably cover every behavior that's happening on the Internet or our mobile phones today," says Chris Sacca, the venture capitalist. "[T]he average Silicon Valley start-up or even medium sized company, no matter how truly innovative they are, I have no doubt that aspects of what they're doing violate patents right now. And that's what's fundamentally broken about this system right now."

***

This brings us back to Chris Crawford's patent, the patent Intellectual Ventures cited as an example of how they encourage innovation by ensuring that inventors get paid. As we've said, this patent also seems to cover a big chunk of what happens on the Internet: upgrading software, buying stuff online, and what's called cloud storage. If you have a patent on all that, you could sue a lot of people.

And, in fact, that's what's happening with Chris Crawford's patent. Intellectual Venures sold it to a company called Oasis research in June of 2010. Less than a month later, Oasis Research used the patent to sue over a dozen different tech companies, including Rackspace, GoDaddy, and AT&T.

We called Oasis several times, but no one ever answered the phone. For a while, the company's voice mail message directed all questions to John Desmarais , a lawyer in New York.

He didn't return our phone calls, but we did track him down at an intellectual property conference in San Francisco.

He cited attorney-client privilege, and wouldn't tell us anything — not even who owns Oasis Research. (He did say he's a big fan of NPR.)

There was hardly any public information about Oasis Research. No way to know who owned it, or how many employees it had.

One of the few details that was available was an address: 104 E. Houston street, suite 190, Marshall, Texas.

So we went to Marshall. The door to Oasis's office was locked, and through the crack under the door we could see there were no lights were on inside.

It's kind of a cliche to knock on the door of the empty office. But we'd flown a long way. So we knocked. No one answered.

The office was in a corridor where all the other doors looked exactly the same —locked, nameplates over the door, no light coming out. It was a corridor of silent, empty offices with names like "Software Rights Archive," and "Bulletproof Technology of Texas."

It turns out a lot of those companies in that corridor, maybe every single one of them, is doing exactly what Oasis Research is doing. They appear to have no employees. They are not coming up with new inventions. The companies are in Marshall, Texas because they are filing lawsuits for patent infringement.

Patent lawsuits are big business in Marshall, which is part of the eastern district of Texas.

Many people say that juries in Marshall are friendly to patent owners trying to get a large verdict. A local lawyer who has argued on both sides of numerous patent cases says it's actually because cases go to trial more quickly in Marshall than in other places.

In any case, thousands of lawsuits are filed there, claiming that there's an inventor whose invention is being used without permission. But there are no inventors in Marshall, just corridors of empty offices.

***

We did find one key detail about Oasis Research. It was in a legal document called a Certification of Interested Parties, which lists all the entities with a financial interest in Oasis. Tom Ewing, an intellectual property lawyer who makes a business of tracking IV, brought it to our attention.

The Oasis document lists the usual parties — the plaintiff, the defendants, the attorneys involved. But it also includes one other name: Intellectual Ventures.

Peter Detkin, an attorney who co-founded Intellectual Ventures with Nathan Myhrvold, told us that IV likely has a "back-end arrangement" with Oasis.

In other words, Detkin said, "We sell for some amount of money up front, and we get some percentage of the royalty stream down the road that is generated from these assets."

That means it's likely that Intellectual Ventures is taking a cut of whatever money Oasis gets from its lawsuits. Oasis is a company with no operations, no products, and, as far as we can tell, no employees, that is using a very broad patent from 1998 to sue over a dozen companies.

As it happens, Detkin is the man who coined the term "patent troll." He came up with it back in in 1999, when he was working for Intel.

We asked him how it feels to make money from an entity that's behaving much like the patent trolls he once condemned. He said:

These are patents we used to hold, we no longer hold. And we ensure that we have no control over the actions of these third parties. They are independent actors. They are not Intellectual Ventures. They may be monetizing in ways we disagree with, but it's not our call.

...we believe in our heart that litigation is a highly inefficient way to do licensing. But let's not lose sight that litigation is just licensing by other means.

In other words, we try to license these patents in a friendly way. But sometimes, you have to sue. Detkin then repeated the company line we heard from a lot of people at IV: The mission of Intellectual Ventures is to help inventors bring great ideas into the world.

We asked if he could point us to a patent that was languishing, but then got licensed and built.

"There were two deals that were done," he said. "One was with a toy company. The other was... I can't remember the technology, it was out there last Christmas, but I don't know how it's done."

He continued:

The fact is the bulk of our patents, the bulk of our revenue is from people ... [who] were using it before we bought it, they were using it after we bought it, but we provided an efficient way for them to get access to the invention rights.

This is a good thing, Detkin says, because it means inventors — the people who hold the patents — get paid. This, in turn, creates an incentive for people to come up with new inventions.

But IV is not buying inventions. It's buying patents. And most software engineers will tell you, at least when it comes to software, a patent and an invention are not the same. Lots of patents cover things that people who write software for a living wouldn't consider inventions at all.

***

All the big tech companies have started amassing troves of software patents — not to build anything, but to defend themselves. If a company's patent horde is big enough, it can essentially say to the world, "If you try to sue me with your patents, I'll sue you with mine."

It's mutually assured destruction. But instead of arsenals of nuclear weapons, it's arsenals of patents. And this was a problem Intellectual Ventures founder Nathan Myhrvold said he was trying to solve when he first started the company. A problem that he and others from his company talked about at investor meetings around Silicon Valley. Chris Sacca attended one of those meetings a few years back.

The pitch he heard was, basically, Intellectual Ventures helps defend against lawsuits. Intellectual Ventures has this horde of 35,000 patents — patents that, for a price, companies can use to defend themselves.

Technology companies pay Intellectual Ventures fees ranging "from tens of thousands to the millions and millions of dollars ... to buy themselves insurance that protects them from being sued by any harmful, malevolent outsiders," Sacca says.

There's an implication in IV's pitch, Sacca says: If you don't join us, who knows what'll happen?

He says it reminds him of "a mafia-style shakedown, where someone comes in the front door of your building and says, 'It would be a shame if this place burnt down. I know the neighborhood really well and I can make sure that doesn't happen.' "

Sacca continues:

Here's what's funny: When I've seen Nathan speak publicly about this and when I've seen spokespeople from IV they constantly remind us that they themselves don't bring lawsuits, that they themselves aren't litigators, that they are a defensive player. But the truth is the threat of their patent arsenal can't actually be realized, it can't be taken seriously, unless they have that offensive posture, unless they're willing to assert those patents. And so it's this very delicate balancing act that is quite reminiscent of scenes you see in movies when the mafia comes and visits your butcher shop and they say, "Hey, It would be a real shame if they came and sued you. Tell you what: pay us an exorbitant membership fee into our collective and we'll keep you protected that way." A protection scheme isn't credible if some butcher shops don't burn down now and then.

In an email to us, Peter Detkin called the comparison to the mafia "ridiculous and offensive." Detkin wrote:

We're a disruptive company that's providing a way for patent-holders to recognize value that wasn't available before we came on the scene, and we are making a big impact on the market. That obviously makes people uncomfortable. But no amount of name-calling changes the fact that ideas have value. (See Detkin's full response here.)

True enough. But you can see why many people feel like lots of butcher shops have been burning. As we were reporting this story, more and more Intellectual Ventures patents started showing up in the hands of companies like Oasis, companies without employees or operations, that were formed for the purpose of filing lawsuits. They're known as non-practicing entities, or NPEs.

One former IV patent was used by an NPE to sue 19 different companies, a broad assortment that included Dell, Abercrombie & Fitch, Visa, and UPS.

These companies all have websites where, when you scroll your mouse over certain sections, pop-up boxes appear. The NPE said, "We have the patent on that." Which would make pretty much the entire Internet guilty of infringing the patent.

Another group of former IV patents is being used in one of the most controversial and talked about cases in Silicon Valley right now. An NPE called Lodsys is suing roughly three dozen companies developing apps for the iPhone and for Android phones. Lodsys says it owns the patent on buying things from within a smartphone app.

One interesting wrinkle about that case: The address for Lodsys is 104 E. Houston street, Marshall Texas, suite 190. The same exact address, down to the suite number, as Oasis Research.

***

For this story, we called people who had licensing arrangements with IV, we called people who were defendants in lawsuits involving IV patents, we called every single company being sued by Oasis Research. No one would talk to us.

Part of this is probably fear. Part of it is the fact that agreements with Intellectual Ventures include a non-disclosure agreement that's rumored to be the strictest in Silicon Valley.

The Oasis Research case is still ongoing, but many of the original defendants seem to have settled.

Michael Smith, the attorney in Marshall, Texas, represented one of those defendants. He was pretty sure they would have won the case if they'd gone to trial. But his client settled anyway. He says sometimes it makes more sense to settle and pay a license fee than to spend $2 million to $5 million on a court case.

Tom Ewing, the lawyer who tracks Intellectual Ventures, says it's likely we'll see plenty more of these cases in the future. In order to purchase its 35,000 patents, Intellectual Ventures raised more than $5 billion from investors.

Since its founding in 2000, Intellectual Ventures has generated $2 billion in revenue. But to keep its investors happy over the next 10 years, Ewing says, it's going to have to do a lot better than that:

"Intellectual Ventures seems to have signed a number of deals," Ewing says. "If the stream of deals they're signing doesn't increase significantly, I imagine they would be forced to file more litigation, in order to achieve their revenue targets."

Ewing's prediction already seems to be coming true. Earlier this month, Intellectual Ventures itself filed a lawsuit in federal court against several companies it claimed were infringing some semiconductor patents it owns.

***

In early July, the bankrupt tech company Nortel put its 6,000 patents up for auction as part of a liquidation. A bidding war broke out among Silicon Valley powerhouses. Google said it wanted the patents purely to defend against lawsuits and it was willing to spend over $3 billion to get them. That wasn't enough, though.

The portfolio eventually sold to Apple and a consortium of other tech companies including Microsoft and Ericsson. The price tag: $4.5 billion dollars. Five times the opening bid. More than double what most people involved were expecting. The largest patent auction in history.

That's $4.5 billion on patents that these companies almost certainly don't want for their technical secrets. That $4.5 billion won't build anything new, won't bring new products to the shelves, won't open up new factories that can hire people who need jobs. That's $4.5 billion dollars that adds to the price of every product these companies sell you. That's $4.5 billion dollars buying arms for an ongoing patent war.

The big companies — Google, Apple, Microsoft — will probably survive. The likely casualties are the companies out there now that no one's ever heard of that could one day take their place.

from Gizmodo, 2011-Jul-20, by Mat Honan:

This Is Where the Patent Trolls Live

This American Life had an amazing story this past weekend about patent trolls. It was pegged to Intellectual Ventures, and various others who litigate rather than innovate. But the real patent trolls are being traded on the NYSE.

As This American Life reports, from 2004 to 2009 patent infringement lawsuits rose 70 percent while licensing fee requests went up by 650 percent. The system is broken. And it's got to be fixed before it kills everyone in the business of making something new.

To make that happen, we need to get the big players in the patent system on board. Sadly, right now they're part of the problem.

Software patents are often flim-flam, won almost by lottery, that benefit no one other than lawyers and shakedown artists. Take Lodsys, for example, the company hammering iOS developers over patent number 7,222,078. Here's its abstract:

"In an exemplary system, information is received at a central location from different units of a commodity. The information is generated from two-way local interactions between users of the different units of the commodity and a user interface in the different units of the commodity. The interactions elicit from respective users their perceptions of the commodity."

It's utterly ridiculous. There is nothing non-obvious or novel about the patent it is seeking to enforce. Anyone who finds it innovative is naive, intellectually dishonest, or, sadly, a patent examiner at the USPTO.

Like many software patents, it's essentially several hundred words of typo-riddled gibberish, much of which might as well be lorem ipsum text. And yet, it passed. So now this patent, which mostly talks about market research, is being used to shakedown iOS developers for in-app purchases.

The epicenter of this slow death of American invention is Marshall, Texas. Marshall is the town Technology Review called "a haven for patent pirates." Many offices there are, effectively, mail drops established for the purpose of filing lawsuits. The Lodsys office is nary a block from the U.S. District Court for the Eastern District of Texas.

The courthouse itself looks bucolic in this Google streetview map, with rays of sunlight arcing over its roofs. Until you realize that the light is coming from the West, and what you are looking at is the sunset of American innovation.

A Nexis search of 104 E. Houston Street, the building where Lodsys and Oasis Research, LLC (a company profiled in the This American Life report) are headquartered, reveals suite upon suite of patent trolls and weasels. Companies like Software Rights Archive LLC, whose Google footprint is basically a history of lawsuits.

These are the tapeworms crawling through the nutrient-rich belly of American innovation, full of bile and shit, slowly starving us to death.

104 E. Houston also houses a hive of lawyers, the kind who can file a multi-thousand word lawsuit but can't even bothered to take the dummy text off their websites. Others, who aren't actually headquartered there, brag of their Marshall office—because it is "blessed with outstanding judges who employ a "fast track" docket system for resolving disputes quickly and efficiently."

Yes. A true blessing for us all.

But the thing is, the problem isn't Lodsys or Innovation Solutions or even the litigation-prone attorneys. They're just taking advantage of a broken system. The problem is driven by the ones who perpetuate it. It's Apple. It's Microsoft. It's Sony. It's Samsung. It's HTC. It's Google.

Instead of spending obscene fortunes stockpiling patents or suing the shit out of each other at every available opportunity, these large companies that depend on innovation could actually do something constructive for society.

If the biggest players in technology and the American economy tell Washington to write a bill, it gets written. The Patent Reform Act, that passed the House in June—which awards patents to the first applicant, not the first inventor—is basically the exact opposite of what patent reform should look like. It needs to be harder to get a patent issued. The patent re-examination process needs to be more vigorous. And it needs to be easier for small players to participate. If the Apple-Microsoft-Rim-Sony consortium spent a fraction of the $4.5 billion it plunked down for the Nortel patent portfolio on lobbying, we'd have very different patent laws. And we need them desperately.

It wasn't always like this. Even as recently as 20 years ago we had a better patent system. We need to totally overhaul it now, so that patents once again foster innovation, rather than prevent it.

As Marco Ament noted, perhaps it's a good thing that Google didn't win the Nortel patent portfolio, because not owning a trove of patents could motivate the company to challenge the system. Until that happens, until large corporations fight to fix the status quo instead of lawyering up and buying every patent on the market, they're the problem, and they're the ones we should be focusing our outrage on.

Raging against Lodsys and Oasis Research and Software Rights Archive and even Innovation Solutions feels good, but is ultimately useless. They're lampreys. Yeah, we should be rid of them. But the only way to do that is to get rid of all the sharks.

from the International Business Times, 2011-Aug-17, by Jay Akasie:

U.A.E. Slaps Severe Limits on Social Networking

The United Arab Emirates is enforcing a law that can slap a 10-year prison sentence on anyone it thinks is spreading rumors through social media outlets.

The Peninsula, an English-language newspaper in the nearby Persian Gulf country of Qatar, reports that social networking sites in the region are heating up with debates arguing if such a law is needed and if more Gulf countries should follow suit.

The U.A.E., which includes the glitzy city of Dubai, has banned the use of the Internet, Twitter and Facebook and as well as gadgets such as the BlackBerry for spreading rumors and propaganda. The U.A.E. put five bloggers on trial because they called for democratic reforms there during the Arab Spring uprisings.

The director of organized crime-combating unit of Dubai Police, Abdul Rahim Shafei, told local media that law enforcement agencies will deal strictly with people who use social media forums or technologies to spread "baseless rumors" and hurl insults at the members of the royal family or senior bureaucrats.

The tiny Gulf country, home to a vast expat population of South Asians and Westerners, becomes the first member-state of the Gulf Cooperation Council to implement a law to curb what analysts describe is Internet activism, according to The Peninsula. Most social network commentators said free expression through the Internet trumps rumor-mongering.

"Media reports about the U.A.E. law have, though, evoked mixed reactions in Qatar with many commentators writing on social networking sites that rumor-mongering must be dealt with strictly. But there were others who said that although spreading rumors should be discouraged, it is important to have free expression on social media," according to The Peninsula.

Outside the Middle East, China has been among the first countries to have to clamp down on Internet activism. When the Web population in that country crossed the 400 million-mark, China enforced an anti-rumor mongering law, according to The Peninsula.

from the Guardian of London, 2011-Aug-11, by Josh Halliday and Juliette Garside:

Rioting leads to Cameron call for social media clampdown
Role of Facebook, Twitter and BlackBerrys in UK violence to be examined by home secretary Theresa May

Facebook has responded to David Cameron's calls for a clampdown on social networking sites by saying it has already actively removed several "credible threats of violence" related to the riots across England.

The prime minister told parliament on Thursday that Facebook, Twitter and Research in Motion (Rim), the maker of BlackBerry devices, should take more responsibility for content posted on their networks, warning the government would look to ban people from major social networks if they were suspected of inciting violence online.

The home secretary, Theresa May, is to hold meetings with the three companies within weeks.

The police have promised to track down those suspected of inciting the violence on Twitter, but much of the planning for the disturbances took place in the relatively private world of the BlackBerry Messenger service.

A Facebook spokeswoman said: "We look forward to meeting with the home secretary to explain the measures we have been taking to ensure that Facebook is a safe and positive platform for people in the UK at this challenging time.

"In recent days, we have ensured any credible threats of violence are removed from Facebook and we have been pleased to see the very positive uses millions of people have been making of our service to let friends and family know they are safe and to strengthen their communities."

Mike Conradi, partner and telecoms specialist at the London law firm DLA Piper, said that emergency measures to stop rioters communicating on social media sites would require legislation and threaten free speech.

Conradi said: "What David Cameron appears to be wanting is a police power to trawl through millions of messages – ideally in real time – to prevent possible criminal activity. I don't believe that any such power exists and nor would I want there to be one. Parliament would have to pass new legislation and I would certainly warn against that. That gets the balance wrong in terms of free speech and security.It would certainly put the UK in a difficult position in terms of talking to authoritarian regimes and trying to convince them not to turn off their networks."

Current powers allow Rim and others to identify people who may be worth further investigation and potential prosecution without looking at the contents of their messages.

Cameron's move to curb social media was backed by the opposition. Ivan Lewis, the shadow culture secretary, said: "Free speech is central to our democracy but so is public safety and security. We support the government's decision to undertake a review of whether measures are necessary to prevent the abuse of social media by those who organise and participate in criminal activities."

The only organisation which regularly removes illegal content from websites within hours of its discovery is the Internet Watch Foundation, which combats images of child abuse. Funded by internet service providers, mobile operators and other web businesses, it has no legal powers. Any co-operation is voluntary.

It uses "notice and take down procedures", which have been widely adopted in the US and Europe to protect internet publishers from being held liable for hosting illegally copied material. Most websites, if contacted with a complaint about their content, take down the material.

Efforts to control messaging during riots are likely to focus on social media rather than mobile phone companies, because there is no simple procedure for police to cut off individual phones at short notice.

Vodafone Group communications director Matt Peacock said: "It is not possible to cut off access to an individual subscriber if the police don't even know who that person is, as would seem highly likely in the middle of a riot with hundreds of masked youths running around the streets.

"In any case, the police must follow a legal process in order to require operators to disclose individual subscriber information. It's an important process, designed to protect customers' privacy, and it's proven and robust. However, it isn't designed to operate in the context of this kind of fast-moving and highly volatile civil disorder."

Powers do exist in the UK and most other countries to order the shut down of entire networks or individual base stations, blocking all traffic in a particular area. These are seen as a last resort.

Vodafone and other carriers were widely criticised for shutting their Egyptian networks during anti-government demonstrations.

from CNET News, 2011-Jul-7, by Greg Sandoval:

Top ISPs agree to become copyright cops

Some of the top ISPs, including Comcast, Cablevision, Verizon, and Time Warner Cable, have officially agreed to step up efforts to protect the rights of copyright owners, a move first reported last month by CNET.

"Leaders from the movie, television, music and Internet service provider communities today announced a landmark agreement on a common framework for 'Copyright Alerts,'" the parties said today in a statement. Copyright Alerts "will educate and notify Internet subscribers when their Internet service accounts possibly are being misused for online content theft. This voluntary landmark collaboration will educate subscribers about content theft on their Internet accounts, benefiting consumers and copyright holders alike."

Many file-sharing fans and proponents of free content are to sure mock the assertion that this is a benefit to them.

This agreement hands the music and film sectors a big new stick with which to fight online illegal downloading of copyrighted works. The deal doesn't affect illegal streaming services. The film, music, and software sectors claim that online piracy costs the U.S. economy billions in lost revenue and jobs.

The Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA), the respective trade groups for the four major record companies and six top Hollywood film studios, have labored for years to persuade ISPs to take a tougher antipiracy position. The RIAA, led by CEO Mitch Bainwol, said in December 2008 that the group would cease filing lawsuits against individual file sharers and would instead enlist the help of the large bandwidth providers. These companies are recognized as some of the Web's most powerful gatekeepers. It took nearly three years to convince the ISPs to agree.

The new system of enforcement looks a lot like the old system. The ISPs send out a series of notifications and warnings--which many ISPs have done for years--to someone suspected of illegally downloading films and music. What is new is that if the warnings are ignored, then the ISPs will eventually implement a series of tougher measures.

Those suspected of chronic abuse of copyright laws will face penalties. Multiple warnings are supposed to be followed up by one of several responses that ISPs can choose from, such as throttling down an accused user's Web-connection speed to blocking them from surfing the Web altogether.

"These Mitigation Measures may include, for example: temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright," the parties said in a statement.

It's obvious that the ISPs wanted to move deeper into copyright protection as gingerly as they could to avoid alienating young customers. But this new system of "mitigation" is just lipstick on the "graduated response" policy that the entertainment companies have pushed for years.

"Consumers have a right to know if their broadband account is being used for illegal online content theft, or if their own online activity infringes on copyright rules...so that they can correct that activity," said James Assey, vice president of the National Cable & Telecommunications Association, a trade group that represents ISPs. "We are confident that, once informed that content theft is taking place on their accounts, the great majority of broadband subscribers will take steps to stop it."

ISPs had balked at adopting a graduated response plan for years. But last month, CNET reported that the White House was instrumental in encouraging the parties to reach an agreement, sources with knowledge of the talks said at the time. President Obama has said intellectual property is important to the country's economy and has vowed to step up the fight against piracy and counterfeiting.

His administration has lobbied Congress for the past several years to pass new pro-copyright legislation while instructing federal law enforcement to make antipiracy a priority.

from the Wall Street Journal, 2011-Mar-28, by Paul Sonne and Steve Stecklow, with Marc Champion, Christopher Rhoads, Nicholas Casey and Loretta Chao contributing:

U.S. Products Help Block Mideast Web

As Middle East regimes try to stifle dissent by censoring the Internet, the U.S. faces an uncomfortable reality: American companies provide much of the technology used to block websites.

McAfee Inc., acquired last month by Intel Corp., has provided content-filtering software used by Internet-service providers in Bahrain, Saudi Arabia and Kuwait, according to interviews with buyers and a regional reseller. Blue Coat Systems Inc. of Sunnyvale, Calif., has sold hardware and technology in Bahrain, the United Arab Emirates and Qatar that has been used in conjunction with McAfee's Web-filtering software and sometimes to block websites on its own, according to interviews with people working at or with ISPs in the region.

A regulator in Bahrain, which uses McAfee's SmartFilter product, says the government is planning to switch soon to technology from U.S.-based Palo Alto Networks Inc. It promises to give Bahrain more blocking options and make it harder for people to circumvent censoring.

Netsweeper Inc. of Canada has landed deals in the UAE, Qatar and Yemen, according to a company document.

Websense Inc. of San Diego, Calif., has a policy that states it "does not sell to governments or Internet Service Providers (ISPs) that are engaged in government-imposed censorship." But it has sold its Web-filtering technology in Yemen, where it has been used to block online tools that let people disguise their identities from government monitors, according to Harvard University and University of Toronto researchers.

Websense's general counsel said in a 2009 statement about the incident: "On rare occasion things can slip through the cracks."

Web-filtering technology has roots in the 1990s, when U.S. companies, schools and libraries sought to prevent people from surfing porn, among other things.

Today, that U.S. technology is now among the tools used in the clampdowns on uprisings across the Middle East. In Egypt, Syria, Tunisia and elsewhere, bloggers have been jailed and even beaten as governments try to repress online expression.

In Bahrain, Nabeel Rajab, head of the banned Bahrain Human Rights Center, which runs a website the government blocks, says he was briefly thrown in a car and roughed up after authorities raided his house last week. The men threatened him with a pipe, he says, and slapped him when he refused to say he loved Bahrain's king and prime minister.

For the U.S., the role of Western companies in Internet censorship poses a dilemma. In a speech last year, Secretary of State Hillary Rodham Clinton said, "Censorship should not be in any way accepted by any company from anywhere. And in America, American companies need to take a principled stand."

Lately the State Department has spent more than $20 million to fund software and technologies that help people in the Middle East circumvent Internet censorship that is sustained by Western technology.

Asked about that policy, a senior State Department official said the U.S. is responding to "a problem caused by governments abusing U.S. products." When governments repurpose U.S.-made tools "to filter for political purposes, we are involved in producing and distributing software to get around those efforts."

A Bahrain official defended censorship. "The culture that we have in the Middle East is much more conservative than in the U.S.," says Ahmed Aldoseri, director of information and communication technologies at the Telecommunications Regulatory Authority.

Freedom of speech is guaranteed in Bahrain, Mr. Aldoseri says, "as long as it remains within general politeness."

Makers of Web-filtering technology say they can't control how customers use their products. "You can add additional websites to the block list," says Joris Evers, a McAfee spokesman. "Obviously what an individual customer would do with a product once they acquire it is beyond our control." A spokesman for Blue Coat made similar points.

There are no special export restrictions on Web-filtering technology. Anti-censorship advocates say there needs to be a way for companies to track how their filtering software is used.

"They could build into the software something that signals and, in fact, sends back to them exactly what kind of filtering is taking place," says Jonathan Zittrain, a professor of law and computer science at Harvard Law School. "There's no rocket science there, it's just their customer wouldn't like it."

Web-blocking companies declined to name their Middle Eastern customers, but The Wall Street Journal identified a number of them through interviews with ISPs, a reseller and former employees. In addition, OpenNet Initiative, made up of Harvard and University of Toronto researchers who study Internet filtering, identified three ISPs in Yemen, Qatar and the UAE that were using Netsweeper in January. ISPs provide Internet access to households and companies.

A Netsweeper official said the company doesn't comment on its clients.

According to a forthcoming report from OpenNet, ISPs in at least nine Middle East and North African countries have used "Western-made tools for the purpose of blocking social and political content, effectively blocking a total of over 20 million Internet users from accessing such websites."

Employees at ISPs in the Middle East said in interviews that government ministries give them databases of Internet addresses, including, at times, antigovernment sites, for blocking and that they must comply. The number of requests varies by country.

Mishary Al-Faris, quality assurance manager at Qualitynet in Kuwait, says his ISP, which uses SmartFilter, receives several requests a year from the government to block content deemed religiously offensive. "It's kind of a gentlemanly understanding: 'We're going to honor your requests,'" he says.

Web-filtering isn't exclusively a tool of Internet censorship. As companies like McAfee, Blue Coat and Netsweeper note, their technology can prevent youngsters from encountering pornography and protect ISPs from malicious cyber attacks.

In recent years, American companies aggressively have sought new customers abroad.The global Web-security market, including filtering, was valued at $1.8 billion in 2010, according to Phil Hochmuth of market-research firm IDC. The Middle East and Africa accounted for about $46 million and is growing at about 16% a year, he says.

China is considered the king of Web filtering, with its elaborate censorship system dubbed the "Great Firewall." China's technology remains unclear but its reach is vast: Local Chinese sites must be licensed and are required to remove any content the government deems objectionable. In addition, some major foreign sites, including Facebook, Twitter and Google Inc.'s YouTube, have been blocked for more than a year.

Middle East Web blocking has some differences. Government licenses for websites typically aren't required. Another difference: In the Middle East the ISP will generally show an explicit notice saying a site has been blocked, whereas in China it is often unclear why a site becomes inaccessible.

Blocking websites can be done with hardware, specialized software or a combination of the two. On a basic level, Web filtering works this way: First, a list is built that groups websites into categories such as "gambling," "dating" or "violence." Netsweeper says it has categorized more than 3.8 billion Web addresses and adds 15 million a day. Then, a user of the software can use that list to block access to specific sites or categories.

Companies like Websense and Netsweeper can now scan and categorize the content of an uncategorized page in real time. They can also block pieces of a site, rather than whole pages, if only a certain image or text is considered objectionable.

The use of filtering to block websites could be seen this month in Bahrain, where a group of mostly Shia protesters took aim at the country's Sunni ruling family and met a violent crackdown. Batelco, Bahrain's main ISP, filters the Web using McAfee SmartFilter software and Blue Coat technology, according to Ali AbuRomman, who works on the network team. He says the government regularly uploads lists of websites to block, including some political sites, to the country's ISPs.

In a test on a Batelco connection in Bahrain in recent days, The Wall Street Journal found that online-community forums for Shia villages and the websites of at least two human-rights groups were censored.

"Site blocked," the screen read in English and Arabic when a Journal reporter tried to view the sites. "This website has been blocked for violating regulations and laws of Kingdom of Bahrain."

Since 2009, Bahrain has had the power to order the blocking of websites for "transgressing local values and impairing national unity," according to the U.S. State Department.

Also blocked during the Journal test was Malkiya.net, a news site and discussion forum for Malkiya, a mostly Shia fishing town that has seen antigovernment protests in recent years. Its owner, Ali Mansoor Abbas, says the site also was blocked after it covered protests over the seizure of part of a local beach by a cousin of Bahrain's king.

Mr. Aldoseri, the Bahrainian telecom official, says his country plans to switch in the next few months from SmartFilter to technology from Palo Alto Networks. It can block activities within websites, like video or photo uploading, or Internet tools that let users bypass blocking altogether, which are illegal in Bahrain.

Middle East Web filtering has sparked a cat-and-mouse game to outfox the censors. Website owners like Mr. Abbas of Malkiya.net sometimes create "mirror" sites, with slightly different names.

Walid Al-Saqaf, a graduate student and former journalist from Yemen who now lives in Sweden, engineered his own circumvention tool after his news-aggregation site, YemenPortal.net, which included antigovernment content, was blocked by the country's filters. Known as Alkasir, the Arabic word for "circumventor," his free program has attracted at least 16,000 users in Yemen, China, Iran and elsewhere, he says.

Two years ago, OpenNet Initiative researchers found that Yemen was using filtering software from Websense to block privacy tools. In response, the company said it stopped providing the ISPs involved with its latest website-block lists since the ISPs violated its anticensorship policy.

The new OpenNet report says Websense tools and services appeared to still be used in Yemen as recently as August. The company declined to comment. The report also found that in January, new filtering software was being used in Yemen from Canadian firm Netsweeper.

"Filtering decisions are made by the entity that decides to filter," says Scott O'Neill, Netsweeper's director of sales and marketing. "Much as Ford Motor Co. can't decide how [its customers] are going to drive their cars."

An informational company document says telecom companies can use Netsweeper to "block inappropriate content using [a] pre-established list of 90+ categories to meet government rules and regulations—based on social, religious or political ideals."

Emirates Integrated Telecommunications Co., or Du, one of the UAE's main ISPs, decided last year to switch to Netsweeper from the filtering system it had been using with Blue Coat devices, says Abul Hasan Jafery, a technical consultant who helped implement Netsweeper's filtering system there.

"We block malware, alternative lifestyles, profanity," says Mr. Jafery. "If something is offensive to the religion, we block it."

Until recently, Tunisia had some of the most pervasive Internet filtering in the world, according to OpenNet. Then, a January popular revolt forced the resignation of the country's president—triggering the wave of protests that have spread across the Middle East.

Tunisia has since pulled the plug on its Web-blocking gear. The new head of the Tunisian Internet Agency, Moez Chakchouk, says he was astounded when he recently visited a secured room at the state telephone company where the filtering equipment was kept.

The room was full of unfamiliar gear, says the 36-year-old computer engineer, who took the job last month. "I don't know" what it all does, he says. Mr. Chakchouk says the Interior Ministry controlled the filtering equipment since 2004, and the entire country's Internet traffic flowed through it.

For several years, according to Mr. Chakchouk, the Tunisian government used SmartFilter, which McAfee acquired in 2008. The McAfee spokesman confirmed the product has been sold in Tunisia, but declined to disclose its customers.

For better or worse, says Mr. Chakchouk, part of the legacy of Tunisia's former regime has been to leave Tunisia with some of the most sophisticated Internet-filtering equipment in the world. "I had a group of international experts from a group here lately, who looked at the equipment and said: 'The Chinese could come here and learn from you.'"

from Bloomberg, 2011-Aug-11, by Amy Thomson and Robert Hutton, with editing by Kenneth Wong:

U.K. May Block Twitter, BlackBerry Services in Future Riots

London -- David Cameron, the U.K. prime minister, said the government is considering whether it should block social-networking websites and messaging services during violent unrest after the country's worst riots since the 1980s.

The government is working with police, the intelligence services and companies to look at “whether it would be right to stop people communicating via these websites and services when we know they are plotting violence, disorder and criminality,” Cameron said today in parliament. He mentioned Research In Motion Ltd. (RIM)'s BlackBerry Messenger service as one of the tools that were used by rioters.

Police have said they are investigating the use of social- networking services such as those operated by Twitter Inc., Facebook Inc. and BlackBerry Messenger. Three people were arrested by police in Southampton, England, on suspicion of using social media and messaging to encourage rioting.

“If you try to stop people communicating, you create more of a problem,” said Jim Killock, executive director of the Open Rights Group, an organization promoting freedom of expression on the Internet. “People are angry because their freedoms are threatened.”

RIM “welcomes the opportunity for consultation” with the British government and other technology companies, according to an e-mailed statement. RIM, based in Waterloo, Ontario, also said it continues to respect both U.K. privacy laws and the Regulation of Investigatory Powers Act, which allows police to gather encrypted information that might otherwise be private as part of an investigation. Twitter spokespeople couldn't immediately be reached.

Temptations

Tactics such as blocking social networks invite comparisons with toppled Egyptian President Hosni Mubarak, said Daniel Hamilton, director of Big Brother Watch, a civil liberties group that argues for privacy and the reduction of government monitoring. The U.K. government must “avoid the temptation to engage in populist authoritarianism,” in response to the riots.

All social media will be reviewed, Cameron's spokesman Steve Field told reporters. The government is still investigating how useful and practical blocking the websites and services would be and hasn't reached any conclusion, he said.

More than 1,300 people have been arrested in the U.K. since the disorder began on Aug. 6, with 888 of those in London.

“Free flow of information can be used for good, but it can also be used for ill,” Cameron said today. “When people are using social media for violence, we need to stop them.”

from the Washington Examiner, 2011-Jun-21, by Michael Barone:

Feds crack down on campus flirting and sex jokes

When I was growing up it was widely believed that colleges and universities were the part of our society with the widest scope for free expression and free speech. In the conformist America of the 1950s, the thinking ran, few people dared to say anything that went beyond a broad consensus. But on campus anyone could say anything he liked.

Today we live in an America with enormous cultural variety in which very few things are considered universally verboten. But on campus it's different. There saying something considerably milder than some of the double entrendres you heard in cable news coverage of the Anthony Weiner scandal can get you into big trouble.

These reflections are inspired by a seemingly innocuous 19-page letter on April 4 from the Department of Education's Office of Civil Rights to colleges and universities. The letter was given prominence by Greg Lukianoff, president of the Foundation for Individual Rights in Education, which has done yeoman work opposing restrictive speech codes issued by colleges and universities.

OCR's letter carries great weight since there are few things a university president fears more than an OCR investigation, which can lead to loss of federal funds -- which amount to billions of dollars in some cases.

The OCR letter includes a requirement that universities adopt a "preponderance of the evidence" standard of proof for deciding cases of sexual harassment and sexual assault. In other words, in every case of alleged sexual harassment or sexual assault, a disciplinary board must decide on the basis of more likely than not.

That's far short of the requirement in criminal law that charges must be proved beyond a reasonable doubt. And these disciplinary proceedings sometimes involve charges that could also be criminal, as in cases of alleged rape.

But more often they involve alleged offenses defined in vague terms and depending often on subjective factors. Lukianoff notes that campus definitions of sexual harassment include "humor and jokes about sex in general that make someone feel uncomfortable" (University of California at Berkeley), "unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people" (Iowa State University) or "elevator eyes" (Murray State University in Kentucky).

All of which means that just about any student can be hauled before a disciplinary committee. Jokes about sex will almost always make someone uncomfortable, after all, and usually you can't be sure if flirting will be welcome except after the fact. And how do you define "elevator eyes"?

Given the prevailing attitudes among faculty and university administrators, it's not hard to guess who will be the target of most such proceedings. You only have to remember how rapidly and readily top administrators and dozens of faculty members were ready to castigate as guilty of rape the Duke lacrosse players who, as North Carolina Attorney General Roy Cooper concluded, were absolutely innocent.

What the seemingly misnamed Office of Civil Rights is doing here is demanding the setting up of kangaroo courts and the dispensing of what I would call marsupial justice against students who are disfavored by campus denizens because of their gender or race or political attitude. "Alice in Wonderland's" Red Queen would approve.

As Lukianoff points out, OCR had other options. The Supreme Court in a 1999 case defined sexual harassment as conduct "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." In other words, more than a couple of tasteless jokes or a moment of elevator eyes.

Lukianoff and FIRE have an admirable record of defending students' and faculty members' free speech regardless of their point of view, but anyone familiar with their work knows that the most frequent targets of campus disciplinary groups are male, conservative, religious or some combination thereof.

I wonder whether there is some connection between this and the dwindling percentage of men who enroll in and graduate from college. Are we allowing -- and encouraging -- our university administrators to create an atmosphere so unwelcoming and hostile to males that we are missing out on the contributions they could make with a college or graduate degree?

Education Secretary Arne Duncan has shown an admirable openness to argument and intellectual debate. Perhaps someone will ask him whether he wants his department to be encouraging kangaroo courts and marsupial justice on campuses across the country.

from Volokh.com, 2011-Jun-6, by Eugene Volokh:

Crime to Post Images That Cause “Emotional Distress” “Without Legitimate Purpose”

Friday, a new Tennessee law was changed to provide (new material italicized):

(a) A person commits an offense who intentionally:

(4) Communicates with another person or transmits or displays an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim by [by telephone, in writing or by electronic communication] without legitimate purpose:

(A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or

(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and

(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.

So the law now applies not just to one-to-one communication, but to people's posting images on their own Facebook pages, on their Web sites, and in other places if (1) they are acting “without legitimate purpose,” (2) they cause emotional distress, and (3) they intend to cause emotional distress or know or reasonably should know that their action will cause emotional distress to a similarly situated person of reasonable sensibilities. So,

  1. If you're posting a picture of someone in an embarrassing situation — not at all limited to, say, sexually themed pictures or illegally taken pictures — you're likely a criminal unless the prosecutor, judge, or jury concludes that you had a “legitimate purpose.”
  2. Likewise, if you post an image intended to distress some religious, political, ethnic, racial, etc. group, you too can be sent to jail if governments decisionmaker thinks your purpose wasn't “legitimate.” Nothing in the law requires that the picture be of the “victim,” only that it be distressing to the “victim.”
  3. The same is true even if you didn't intend to distress those people, but reasonably should have known that the material — say, pictures of Mohammed, or blasphemous jokes about Jesus Christ, or harsh cartoon insults of some political group — would “cause emotional distress to a similarly situated person of reasonable sensibilities.”
  4. And of course the same would apply if a newspaper or TV station posts embarrassing pictures or blasphemous images on its site.

Pretty clearly unconstitutional, it seems to me.

from the Washington Examiner online, 2011-Jun-27, by Conn Carroll:

Supreme Court overturns Arizona campaign finance law

In a 5-4 decision, the Supreme Court held Monday that Arizona's public-financing election law violated the First Amendment. The Justices split along ideological lines with Chief Justice John Roberts authoring a majority opinion joined by Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Sam Alito. Justice Elena Kagan authored the dissenting opinion and was joined by Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.

Under the Arizona law, candidates who agreed to certain campaign spending restrictions were eligible for an initial grant of tax payer money to run their campaigns. Publicly-funded candidates were also granted additional dollar-for-dollar matching funds if they were outspent by a privately-financed rival, or an outside group. Matching funds topped out at two times the initial grant.

The majority found that the Supreme Court's 2008 Davis v. Federal Election Commission decision, invalidating the “Millionaire's Amendment” of the McCain-Feingold campaign finance law, dictated the decision in the Arizona case. In Davis, the Court held that the McCain-Feingold law, which permitted candidates whose opponents spent more than $350,000 in personal funds to collect triple the federal contribution limit, unconstitutionally forced a candidate “to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations.”

The majority acknowledged that while the Arizona law was distinguishable from the McCain-Feingold law, the differences only made the First Amendment violation worse. First, while McCain-Feingold only altered campaign contribution limits, the Arizona law directly gave the publicly-financed candidate funds. Second, the possibility of multiple publicly-financed candidates in a single race made the privately financed candidate's punishment even worse. Finally, the Arizona law also covered expenditures of outside groups meaning that privately-funded candidates could not even control whether or not publicly-funded candidates qualified for more money.

In dissent, Justice Kagan writes: "The First Amendment's core purpose is to foster a healthy, vibrant political system full of robeust discussion and debate. Nothing in Arizona's anti-corruption statute ... violates this constitutional protection."

from CNET News, 2011-Jun-27, by Declan McCullagh:

Supreme Court nixes violent video game law

In a ringing endorsement of free speech and new technology, the U.S. Supreme Court this morning struck down a California law that restricts the sale or rental of violent video games to minors.

"Even where the protection of children is the object, the constitutional limits on governmental action apply," Justice Antonin Scalia wrote in the majority opinion (PDF). The ruling was 7-2.

The Supreme Court's ruling unambiguously reaffirms that video games, which have become increasingly complex and in some cases more expensive to produce than movies, also qualify for full First Amendment protection.

Scalia noted that books often viewed as suitable for high school students are full of violent material. "Certainly the books we give children to read--or read to them when they are younger--contain no shortage of gore: Grimm's Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers 'till she fell dead on the floor, a sad example of envy and jealousy.'"

The Entertainment Software Association, which represents the U.S. computer and video game industry, welcomed the ruling.

"Today, the Supreme Court affirmed what we have always known--that free speech protections apply every bit as much to video games as they do to other forms of creative expression like books, movies and music," said Michael D. Gallagher, ESA's president and CEO of the ESA, in a statement. "The Court declared forcefully that content-based restrictions on games are unconstitutional; and that parents, not government bureaucrats, have the right to decide what is appropriate for their children."

California is one of a string of states that enacted similar laws restricting minors' rights to buy violent video games--legislation that has been repeatedly rejected by lower courts. Laws in Illinois and Michigan were blocked by federal judges on First Amendment grounds in 2005, and earlier laws in Indianapolis and Missouri's St. Louis County were also shot down.

Although California's law doesn't target a specific game by name, government lawyers did single out Postal 2, which allows players to go on murderous rampages, by name. And the Federal Trade Commission has previously targeted the makers of Grand Theft Auto: San Andreas for having sexually explicit content.

The California law slaps anyone who sells or rents a "violent video game" to a minor with a $1,000 fine. That was defined as a game in which the player has the option of "killing, maiming, dismembering, or sexually assaulting an image of a human being" in offensive ways. Parents or guardians are still permitted to buy those games for minors.

Then-California Gov. Arnold Schwarzenegger signed the video game law in October 2005, but a federal judge blocked it from taking effect a few months later. The U.S. Ninth Circuit Court of Appeals upheld that decision.

In May 2009, the state of California asked the Supreme Court to overturn those decisions, saying they were incorrectly decided.

"Like other forms of unprotected speech recognized to date, the extremely violent video games at issue here serve 'no essential part of any exposition of ideas, and are of such slight social value as a step to the truth' that the government must be allowed to regulate their dissemination to minors based upon content, without running afoul of the First Amendment," California said at the time, quoting a famous 1942 Supreme Court opinion.

The Video Software Dealers Association, which subsequently changed its name to Entertainment Merchants Association, argued that the state is unreasonably trying to extend obscenity regulations--aimed at explicit pornography--to computer software.

Justices Clarence Thomas and Stephen Breyer dissented from today's ruling. Thomas said the original view of the First Amendment at the time the Bill of Rights was enacted "does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians."

Breyer's dissent took a different approach. He wrote: "California's law imposes no more than a modest restriction on expression. The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help."

from the Australian, 2011-Jun-21, by James Allan:

Misguided legislation puts the big chill into freedom of speech

LAST night nearly 600 people in Melbourne paid to attend an evening in support of free speech. The audience and speakers were also there to support columnist Andrew Bolt who has been taken to court for an opinion he voiced in the Herald Sun. The legislation that allows that sort of speech-stifling action is terrible legislation in my view, and so I was happy to be one of five invited speakers.

The gist of my remarks were that the fight for free speech and the liberty to speak up on public issues - issues not excluding who we want to receive affirmative action or group rights-type benefits that attach only to a special few in society - is a fight that will never go away. As former US president Andrew Jackson put it, "eternal vigilance is the price of liberty".

And those who attended were not just supporting Bolt but freedom of speech and of liberty more generally. Because let me blunt. In my view this Racial Discrimination Act, the part amended by the Racial Vilification Act that gives us section 18C and in some circumstances makes hurting someone else's feelings, is awful.

Think about it. Someone's subjective sense of being offended or humiliated has been made determinative of whether an unlawful act has been committed, subject to a few exemptions in section 18D.

That's a terrible statutory provision. It ought to be repealed. Now. Yes, a judge may, perhaps, find the exemptions apply. Yes, there is some wiggle room. But even forcing someone to have to litigate constitutes a massive chilling effect on free speech. Let's face it. Not everyone has Bolt's cojones (and I know that may not have been the most felicitous way of putting the point). And not everyone has the resources of a big employer to back this sort of egregious litigation. These provisions create a sort of half-baked right not to be offended, a big mistake in my view.

So the fault lies with the legislature for passing these statutory provisions, not with the judges who have to interpret them. This is politically correct, pandering, group rights-inspired legislation.

The only sort of free speech that matters is the sort that offends some people somewhere. In a situation where all is agreement and harmony and people sitting in circles, holding hands, and singing Kumbaya, the concept of liberty and free speech does nothing. You will never have to fight for it meaning a freedom only to act or speak within the bounds of agreed opinion, good taste and proper decorum just isn't valuable. It doesn't carry with it any obvious good consequences.

The threat to our freedom of speech in the West today does not come from some Soviet-style secret police. No, it comes from turf-protecting bureaucrats who find themselves all of a sudden in the human rights game; it comes from people who want to create a right not to be offended.

Or at least not to be offended about the things that matter to them, because almost all the sorts of people who like the legislation being deployed against Bolt would be horrified to think that those in the US who are offended by the burning of the American flag ought to be able to prosecute the burners for their offended sensibilities. So what they really want is a right not to be offended, as long as it's the sort of things a good chardonnay-sipping member of the progressive elite ought to be offended about, nothing else.

But plain and simple that's a mistake. The only kind of free speech worth anything is the kind that leads to speech that offends people. And I say that knowing full well that none of us can be absolutists and there will always have to be some limits on speech, against counselling murder, say, or detailing how to make biological weapons.

But we ought to want as much scope as possible for people in a democracy to speak their minds. And precluding people from having and expressing an opinion on the problems with self-identifying as an indigenous person, or on who ought to be able to benefit from positive discrimination laws, well that's ridiculously inhibiting of free speech in my view.

I think that in any well-functioning democracy it is incumbent on all citizens to grow a thick skin. If you're offended, tell us why the speaker is wrong. Tell us why he or she is misguided or has defective moral antennae. Don't go to court and seek a court-ordered apology, or orders prohibiting publication of views you find offensive, or some two-bit judicial declaration.

And as a legislator under no circumstances pass statutes that allow for the creation of this mutant, half-baked right not to be offended. The very fact that people can be dragged through the courts - whatever the ultimate outcome - has a massive chilling effect on free speech. I know it. You know it. And our legislators ought to know it too, and do something about repealing this terrible piece of legislation.

At the end of the day those of us who want a considerable amount of scope for people to speak their minds are the optimists. We're the ones who are in the tradition of John Stuart Mill.

Recall the main ground that Mill gave for preferring very few limits indeed on what people can say. It was a consequentialist ground or justification. Leave people almost always free to speak as they like and in the ensuing battle of ideas truth will out, or in less hopeful terms, it is more likely to emerge than if people are silenced and issues are resolved by self-styled human rights experts or government appointees.

So for the benefit of getting at truth and true assertions we override hurt feelings, we ignore offended sensibilities, we discount the possibility of outright lies being spread, and we choose not to have our legislation accord with the world view of grievance industry mongers. Short of obvious, concrete, unavoidable harm to others, we let speech alone.

And underlying that rationale for lots of scope to speak our minds is a clear optimism about truth emerging in the tussle of ideas and ultimately an optimism about the views of the ordinary voter in a democracy.

In my opinion too many of the people who push these speech-limiting laws have simply lost faith in the views and beliefs of their fellow citizens. They have even lost a bit of faith in democracy itself.

Theirs is not the optimistic position. Ours is.

We are the citizens of one of the world's oldest and greatest democracies; we are not a collection of victims too offended to muster up the resources to reply on our own behalf when we disagree with others.

It is a badge of honour to live in a society that protects differences of opinion, including ones with which we vehemently disagree.

Which was why I was so delighted to have been asked to speak last night in Melbourne. James Allan is Garrick Professor of Law at the University of Queensland.

from the Inquirer UK, 2011-Jun-16, by Dean Wilson:

British student faces extradition to US over copyright infringement
Vows to fight charges

A 23-YEAR-OLD BRITISH COMPUTER STUDENT faces possible extradition to the US for linking to copyrighted content on his website.

The student, Richard O'Dwyer, was accused of copyright infringement after setting up the website TV Shack, which had links to thousands of films and tv shows, but did not directly host them.

The website was seized by US Immigration and Customs Enforcement. O'Dywer was arrested on May 23, brought to Wandsworth prison and then released on a £3,000 bail paid by his aunt.

Now he faces extradition to the US, where he could get up to five years in jail if found guilty of infringing copyrighted material, according to the Metro newspaper.

He has vowed to fight the extradition attempt and his mother has pleaded with the UK government to "bring some common sense" to the entire affair and end the extradition demands, which she called disproportionate, unnecessary and deeply truamatic.

She said that her son was foolish in not understanding the implications of copyright and said he was talented with web design, a skill he likely gained during his computer sciences studies at Sheffield Hallam University. Not properly understanding the law is unlikely an excuse that will wash with the courts, however.

O'Dywer's lawer is Ben Cooper, who is also defending alleged military hacker Gary McKinnon, who equally faces extradition to the US. This is a much less serious crime than McKinnon's and Cooper has prepared a number of defence arguments, including the fact that O'Dwyer never hosted the copyright content himself and that the server was not based in the US and therefore he should not be extradited to there.

O'Dwyer is due in court again on September 12.

from New Scientist, 2011-Jun-3, by Jacob Aron:

New media laws could mean jail for ordinary users

Regulating the internet is no easy task, as a recent string of technology-related bills proposed by US legislators shows. Poor wording and a lack of understanding of the underlying technology could put ordinary internet users at risk of breaking the law - even though supporters of the new bills say they wouldn't be targeted.

One bill, put forward by Senators Amy Klobuchar, John Cornyn and Christopher Coons, aims to make it a crime to stream copyrighted material, but as Techdirt points out, the wording of the bill as it currently stands could make simply embedding a YouTube video an illegal act.

The bill is intended to target streaming websites that provide entire movies for free, but uses the phrase "public performance by electronic means" without clearly defining it. Is embedding a video a performance? It's an important question, because the bill also imposes a jail term of up to five years for ten such "performances".

Another bill, recently signed into law by the governor of Tennessee, makes it illegal to share your password for media streaming services such as Netflix or Hulu. Anyone who allows friends or families to use their login details to access these services could potentially face a one-year jail sentence and a $2500 fine for stealing media worth $500 or less.

The new law updates existing legislation that makes it illegal to use services such as cable television or restaurants without paying, updating the wording to include "entertainment subscription services", but it seems Netflix doesn't see the need for such an update. The compoany told MediaBeat:

These flawed bills come shortly after the proposal of the controversial Protect IP Act, which would give the US Department of Justice the power to block non-US websites hosting copyright-infringing material. The Act would also require search engines to remove links to such sites.

Google's chaiman, Eric Schmidt, has spoken out against the bill, saying it "sets a very bad precedent".

from TechDirt,com, 2011-Jun-1, by Mike Masnick:

Senators Want To Put People In Jail For Embedding YouTube Videos
from the not-understanding-the-technology dept

Okay, this is just getting ridiculous. A few weeks back, we noted that Senators Amy Klobuchar, John Cornyn and Christopher Coons had proposed a new bill that was designed to make "streaming" infringing material a felony. At the time, the actual text of the bill wasn't available, but we assumed, naturally, that it would just extend "public performance" rights to section 506a of the Copyright Act.

Supporters of this bill claim that all it's really doing is harmonizing US copyright law's civil and criminal sections. After all, the rights afforded under copyright law in civil cases cover a list of rights: reproduce, distribute, prepare derivative works or perform the work. The rules for criminal infringement only cover reproducing and distributing -- but not performing. So, supporters claim, all this does is "harmonize" copyright law and bring the criminal side into line with the civil side by adding "performance rights" to the list of things.

If only it were that simple. But, of course, it's not. First of all, despite claims to the contrary, there's a damn good reason why Congress did not include performance rights as a criminal/felony issue: because who would have thought that it would be a criminal act to perform a work without permission? It could be infringing, but that can be covered by a fine. When we suddenly criminalize a performance, that raises all sorts of questionable issues.

Furthermore, as we suspected, in the full text of the bill, "performance" is not clearly defined. This is the really troubling part. Everyone keeps insisting that this is targeted towards "streaming" websites, but is streaming a "performance"? If so, how does embedding play into this? Is the site that hosts the content guilty of performing? What about the site that merely linked to and/or embedded the video (linking and embedding are technically effectively the same thing). Without clear definitions, we run into problems pretty quickly.

And it gets worse. Because rather than just (pointlessly) adding "performance" to the list, the bill tries to also define what constitutes a potential felony crime in these circumstances:

the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works

So yeah. If you embed a YouTube video that turns out to be infringing, and more than 10 people view it because of your link... you could be facing five years in jail. This is, of course, ridiculous, and suggests (yet again) politicians who are regulating a technology they simply do not understand. Should it really be a criminal act to embed a YouTube video, even if you don't know it was infringing...? This could create a massive chilling effect to the very useful service YouTube provides in letting people embed videos.

from IDG News Service, 2011-May-26, by Grant Gross:

Senate panel approves controversial copyright bill

A U.S. Senate committee has unanimously approved a controversial bill that would allow the U.S. Department of Justice to seek court orders requiring search engines and Internet service providers to stop sending traffic to websites accused of infringing copyright.

The Senate Judiciary Committee approved the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, or PROTECT IP Act, which would also allow copyright holders to seek court orders requiring payment processors and online ad networks to stop doing business with allegedly infringing websites.

The bill, introduced two weeks ago, now awaits approval by the full Senate.

The legislation will allow the DOJ to target the "worst of the worst" foreign websites dedicated to digital piracy or selling counterfeit goods, said Senator Patrick Leahy, a Vermont Democrat and lead sponsor of the bill. Intellectual property theft is "unacceptable," Leahy, chairman of the committee, said in a statement.

"Few things are more important to the future of the American economy and job creation than protecting our intellectual property," Leahy added. "At a time where our country is beginning to regain its economic footing, businesses face an additional hurdle, the severity of which is increasing by the day -- digital theft."

Several groups criticized the bill. A recent paper from five Internet engineers said the bill could "threaten the security and stability of the global DNS" by encouraging widespread circumvention of DNS (domain name system) filters.

The bill would do little to stop copyright infringement online while opening up payment processors and online ad networks to multiple lawsuits from copyright holders, added Sherwin Siy, deputy legal director for Public Knowledge, a digital rights group.

The PROTECT IP Act "threatens the security and global functioning of the Internet, and opens the door to nuisance lawsuits while doing little if anything to curb the issues of international source of illegal downloads the bill seeks to address," he said in a statement.

The bill would create a list of blocked Internet sites, added Ed Black, president and CEO of the Computer and Communications Industry Association, a tech trade group. "At a time when U.S. businesses are increasing[ly] confronted with barriers to Internet trade and censorship abroad, a government committed to Internet openness should not be in the business of blacklisting Internet sites," he said in a statement.

Several other groups, including the Motion Picture Association of America and the U.S. Chamber of Commerce, applauded the committee's vote, however.

The National Cable and Telecommunications Association, a trade group representing ISPs that could be targeted by court orders authorized in the bill, also voiced support for the legislation.

"By cracking down on rogue websites that have for too long encouraged the theft of valuable content and intellectual property, the PROTECT IP Act of 2011 sends a strong message that this illicit practice will no longer be tolerated," NCTA President and CEO Michael Powell said in a statement.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

from the Wire Report of Canada, 2011-May-27:

U.S. Protect IP Act stalls in Senate

Democratic Senator Ron Wyden announced Thursday that he is blocking a Senate committee motion to proceed with U.S. anti-piracy bill S. 968, the Protect IP Act, citing concerns about freedom of speech and technological innovation.

“Consistent with Senate Standing Orders and my policy of publishing in the Congressional Record a statement whenever I place a hold on legislation, I am announcing my intention to object to any unanimous consent request to proceed to S. 968, the PROTECT IP Act, Wyden said in a statement.

He said the costs of the legislation, similar to a bill introduced last year known as the Combating Online Infringement and Counterfeits Act, outweigh the benefits.

“I understand and agree with the goal of the legislation, to protect intellectual property and combat commerce in counterfeit goods, but I am not willing to muzzle speech and stifle innovation and economic growth to achieve this objective. At the expense of legitimate commerce, [the Protect IP Act] takes an overreaching approach to policing the Internet when a more balanced and targeted approach would be more effective. The collateral damage of this approach is speech, innovation and the very integrity of the Internet,” he said.

The Senate Judiciary Committee unanimously approved the legislation Thursday but Wyden's objection puts it on hold.

The Protect IP Act is intended to provide powers to the U.S. Attorney General to bring court actions against “rogue sites” that infringe copyright or facilitate its infringement.

Web service companies such as Google Inc., Yahoo! Inc., Ebay Inc., and PayPal oppose the bill.

But a coalition of about 170 businesses and associations, including Nike Inc., Ford Motor Co., the Motion Picture Association of America and NBC Universal, have sent a letter to the committee expressing their support for the legislation.

The Conservative government's former omnibus copyright reform legislation, Bill C-32, contained a similar provision to limit web services that enable copyright infringement.

The bill is expected to be reintroduced in the fall.

from the Wall Street Journal, 2011-Apr-27, by David Marston and John Yoo:

Political Privacy Should Be a Civil Right
In NAACP v. Alabama the Supreme Court upheld the right to free and discreet association.

Suppose that during the civil rights movement segregationist governors ordered all state contractors to disclose their political donations in an attempt to expose civil rights supporters to harassment and retaliation. The Supreme Court would have had none of it.

In NAACP v. Alabama (1958), the court barred Alabama from forcing the NAACP to disclose its members. Those justices would have struck down a similar effort to force the release of the NAACP's financial supporters. They would have rightly viewed it as an infringement of the constitutional right to free association and free speech.

Today President Obama is ignoring the lessons of the civil rights era he claims to revere. According to a draft executive order leaked last week, Mr. Obama plans to require any company seeking a federal contract to disclose its executives' political contributions over $5,000—not just to candidates, but to any group that might make "independent expenditure" or "electioneering communication" advertisements.

If a small businesswoman wants to sell paper clips to the Defense Department, Mr. Obama would force her to reveal contributions to groups such as Planned Parenthood or the National Rifle Association. These donations are obviously irrelevant to whether she made the most reliable bid at the lowest price. The only purpose of the executive order is to dangle the specter of retaliation (by losing her contracts) and harassment (from political opponents).

It would be comforting if this order had been some aberration produced from somewhere deep in the bowels of the federal bureaucracy. Unfortunately, it was not. This order represents the latest salvo in the Obama administration's war on the First Amendment rights of its political opponents.

The conflict goes back to January 2010, with the Supreme Court's decision in Citizens United v. Federal Election Commission. The court held as unconstitutional the McCain-Feingold Act's limits on the political spending of corporations, unions and other groups. Mr. Obama struck back, claiming that the decision "strikes at our democracy itself." He trotted out the usual suspects—"big oil, Wall Street banks, health-insurance companies and other powerful interests"—as the winners. He promised that the White House would "talk with bipartisan congressional leaders to develop a forceful response to this decision."

There was no bipartisanship, but there was certainly a forceful response. Democrats proposed the Disclose Act, which would have muzzled political speech by prohibiting federal contractors from making contributions to federal candidates or parties. Though the act failed to overcome a filibuster last year in the Senate, its supporters remain undeterred.

Having failed to undo Citizens United by legislation, Mr. Obama apparently believes that he can veto the Supreme Court by naked presidential fiat. But before the administration barrels through with this attempt to suppress corporate political activity, it would do well to revisit NAACP v. Alabama.

The court declared that the privacy of group membership and political activity were critical to the "effective advocacy of both public and private points of view, particularly controversial ones." Privacy can be critical for free speech. "Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs," Justice John Marshall Harlan wrote for a unanimous court.

The court went on to recite a litany of potential retaliation—"economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility"—that could deter people from publicly supporting the NAACP. It did not matter, the justices observed, that the harassment would likely come from "private community pressures." What mattered is that such pressure would be prompted by "the initial exertion of state power."

Our era of instant mass communication exponentially multiplies this threat. Supporters of California's Proposition 8, which bars gay marriage, have faced relentless harassment after a federal court refused to bar the disclosure of their identities in 2009. Opponents promptly created a website that used the Prop 8 list to create a map of donors' homes. Widespread intimidation followed: Some Prop 8 supporters were fired from their jobs, and several of their businesses were boycotted.

Mr. Obama's executive order threatens to replicate the Prop 8 experience on a nationwide scale. In fact, it requires the release of contractors' political contributions in a publicly available electronic database to be posted online as soon as possible. It shouldn't matter here that disclosure would be the price for doing business with the government. In Boy Scouts of America v. Dale (2000), the Supreme Court made it clear that a group did not have to give up its right to associate in exchange for some government benefit.

Civil libertarians and liberals have so far been mum in the face of Mr. Obama's executive order. They're likely justifying their silence on the basis that businesses—not unions—will suffer. But if the president succeeds in reducing the free-speech rights of business today, it will be far easier to limit the same rights of other Americans tomorrow.

Imagine the outcry we'll hear from self-described First Amendment supporters when every professor applying for a government research grant has to disclose his political donations.

Mr. Marston is a lawyer and former U.S. attorney in Philadelphia. Mr. Yoo, a law professor at the University of California Berkeley and a scholar at the American Enterprise Institute, served in the George W. Bush Justice Department.

from the New York Times, 2011-May-12, printed 2011-May-13, p.A1, by Stephanie Strom:

I.R.S. Moves to Tax Gifts to Groups Active in Politics

Big donors like David H. Koch and George Soros could owe taxes on their millions of dollars in contributions to nonprofit advocacy groups that are playing an increasing role in American politics.

Americans for Prosperity, a libertarian group that opposes many of President Obama's policies, has been generously financed by David H. Koch, a billionaire.

Invoking a provision that had rarely, if ever, been enforced, the Internal Revenue Service said it had sent letters to five donors, who were not identified, informing them that their contributions may be subject to gift taxes depending on whether the donations exceeded limits under the tax laws.

These advocacy groups have been drawing more scrutiny, from President Obama as well as others, as they have proliferated and funneled vast sums of money in support of campaigns and causes, without having to publicly disclose their donors.

During the midterm cycle, for example, groups like Crossroads GPS, which has ties to the Republican strategist Karl Rove, and Americans for Prosperity, backed by Mr. Koch and his brother Charles, were heavily involved in politicking, spurring campaign finance watchdogs to complain that they were flouting election and nonprofit laws.

Spokesmen for the Koch brothers and for Mr. Soros would not comment as to whether they had paid gift taxes on these types of donations, or whether they had received letters from the I.R.S.

These organizations were established as nonprofit corporations under a section of the tax law, 501(c)(4), and the rules governing them say their primary purpose cannot be political.

The timing of the agency's moves, as the 2012 election cycle gets under way, is prompting some tax law and campaign finance experts to question whether the I.R.S. could be sending a signal in an effort to curtail big donations.

“There are a whole heck of a lot of people misusing (c)(4) groups as a means of getting around campaign finance regulations, and we lack a coherent system of laws to deal with that,” said Donald B. Tobin, a legal expert on campaign finance and tax laws at the Moritz College of Law at Ohio State University. “Now here's a stick, frankly, that says there are consequences for doing that.”

In a statement released Thursday, Michelle L. Eldridge, a spokeswoman for the I.R.S., said that the inquiries were initiated by agency employees, not White House or other Obama administration officials, “as part of their increased efforts in the area of nonfiling of gift and estate tax returns.”

The letters informed donors that investigations had been opened to determine why a gift tax form had not been filed, and requested that donors submit records of all donations in the year 2008, according to a redacted copy obtained by The New York Times.

While tax lawyers who learned of the investigations have been issuing warnings to clients of potential trouble on a broader scale, the I.R.S. statement denied casting a wider net, “These examinations are not part of a broader effort looking at donations to 501(c)(4)'s.”

The White House would not comment. Some members of Congress have been asking the I.R.S. to investigate the tax-exempt status of these groups, too, although lawmakers have also cautioned that since the Nixon years, the agency has been strictly prohibited from what could be considered politically motivated inquiries.

Still, experts are sensing that the message being sent may deter large donations to these groups, at a time when big corporate, union and like-minded political contributions are expected to flood the election cycle through the barriers lifted by last year's Supreme Court ruling in the Citizens United case.

Both major political parties and candidates have benefited from these types of organizations, but the Republican groups grew in force and size after the 2008 election, partly in recognition of Mr. Obama's proficiency at fund-raising. For example, Mr. Rove's group, one of the best known from the 2010 midterm cycle, raised $70 million. Americans for Prosperity, a libertarian group that is opposed to many of President Obama's policies, has been generously financed by David Koch.

Democrats have embraced the model, too. Bill Burton, Mr. Obama's former deputy press secretary, was skewered by critics of these groups for creating Priorities USA Action to help Democrats. In 2009 and 2010, Mr. Soros, the billionaire investor, donated more than $12 million to advocacy groups.

In general, individuals incur gift taxes of 35 percent on any amount exceeding $13,000 in a year, with a limit for couples of $26,000. A lifetime exemption covers $5 million in gifts — to be reduced to $1 million in 2013 — but experts say many wealthy donors are likely to have used that in their estate plans.

The I.R.S. definitively declared these gifts taxable in 1982. “That was their last word on it, so these letters just look like a sort of trap for the unwary, which is not fair,” said Ofer Lion, a lawyer who has written about the issue.

In December, after the 2010 midterm elections, officials with the I.R.S. division that oversees tax-exempt organizations indicated it would pay closer attention.

But at a meeting of an American Bar Association subcommittee last Friday, they were surprised to learn that their colleagues in the estate and gift tax unit also had an increased interest, according to lawyers who were there.

“I don't know how extensive this effort is, but I have one such client and I've spoken with others with clients who have received similar letters,” said Gregory L. Colvin, a lawyer specializing in nonprofit law.

Other groups rarely receive donations big enough to incur the gift tax, which is why many of them have established affiliated charities. Charities, unlike almost all other tax-exempt organizations, offer their donors a tax deduction and so attract large gifts.

Big donations to the largely unregulated 527 groups that were influential in the 2004 election cycle are not subject to the gift tax. “Congress specifically exempted donors to 527 organizations from the gift tax in 2000, but it didn't exempt contributions to (c)(4) groups because there wasn't an issue at the time,” said Alan P. Dye, a lawyer who represents a number of conservative advocacy groups. Now that the Citizens United case permits big donors like corporations and unions to spend money in elections, Mr. Dye added, “I think it's going to be really interesting to see how this plays out in Congress or the courts.”

In the meantime, Marcus S. Owens, a lawyer who represents nonprofits and who formerly headed the I.R.S. division that oversees tax-exempt organizations, predicted that the tax agency's moves would be watched warily by contributors. “The lack of clarity and the potential for not-insignificant taxation on these gifts will cause many of the biggest donors to think twice,” he warned.

from the Wall Street Journal, 2011-May-18:

The IRS Gets Political
The taxman goes after campaign donors.

We're starting to see a pattern here. Since the Supreme Court restored the First Amendment rights of businesses and unions in last year's Citizens United ruling, Democrats have been searching for a way to claw back control over political speech. The latest bureau to get the memo is the Internal Revenue Service, which may retroactively tax top donors to political advocacy groups.

In the crossroads, er, cross-hairs, are nonprofit groups that register under section 501(c)(4) of the tax code and spent millions on political advertising in the last election cycle. Big donations to those groups, the agency now says, should have been subject to gift taxes and may be owed retroactively. In a letter to one donor, the IRS noted that it "had received information that you donated cash to . . . an IRC Section 501(c)(4) organization . . . and your contribution should have been reported on your 2008 federal gift tax return."

The letters are especially odd since the purpose of the gift tax has traditionally been used in coordination with the estate tax, to prevent people from avoiding the tax by divesting their wealth before they die. Contributions to 501(c)(4)s aren't a routine death tax avoidance mechanism, and the contributions now under scrutiny are a pittance compared to overall gift tax revenues. So, hmmm, what could be the reason to start asserting the provision now, and only against a handful of high-profile political donors?

IRS spokesman Michelle Eldridge said in a statement last week that the letters are the idea of career IRS employees, not the White House, and that they are part of a larger investigation of gift tax compliance. Count us skeptical that a new targeted enforcement plan, likely coordinated between at least two of the highly compartmentalized divisions of the IRS, was just cooked up by some career guys.

But even if the Obama Administration doesn't deserve primary credit for this idea to chill political activity, it will still serve the Democrats' purpose in time for 2012 fundraising. A tax probe of donations given by a specific class of political donors is a boldfaced attempt to punish and discourage political speech.

The IRS also says the investigations into a few deep-pocketed donors isn't the prelude to a broader offensive against the groups. Nah, that would mean they were taking their cues from liberal campaign finance groups like Democracy 21, which has been flogging this idea as a way to impose greater disclosure requirements. Last September, Montana Democrat Max Baucus wrote a letter to IRS Commissioner Doug Shulman to suggest he start investigating the political groups.

We wish we were shocked, but the plan is merely the latest play by Democrats to crack down on donors who support their opponents. In 2010 they tried and failed to pass the Disclose Act, which would have forced disclosure on business donations but left unions alone.

This year they've turned to harassment by regulation, first asking the Federal Communications Commission to require groups that run political ads to disclose their high-dollar donors. The Obama Administration is also working up an executive order to require anyone bidding for a federal contract to disclose if the company or its executives donated more then $5,000 to independent groups.

Now comes the 501(c)(4) net, which may catch the likes of liberal uber-donor George Soros, though we'd bet he's happy to lend his name to the project to create an appearance of nonpartisanship. The real targets of the disclosure project are conservative groups like Crossroads GPS and Americans for Prosperity, which have seen their fundraising and influence grow in recent years.

All this is done in the name of "transparency," which is a nice way of saying, we know where you live. The real goal is to intimidate business and big donors from giving money to Republicans. The draft executive order aiming to wrest disclosure from federal contractors appears to make no such demands on federal labor unions, which had their free speech rights restored alongside business in Citizens United.

Our support for donor disclosure over the years has always been contingent on ending all restrictions on campaign donations. But the campaign finance scolds who are allied with Democrats, such as Democracy 21 and Norm Ornstein of the American Enterprise Institute, are trying to use disclosure as a political weapon now that the Supreme Court has declared their other ideas illegal. Unleashing the IRS is an especially nasty turn.

from Politico.com, 2011-Apr-19, by Kenneth P. Vogel:

W.H. mulls limits to anonymous gifts

The Obama administration is considering a number of measures to compel disclosure of the kind of anonymous campaign contributions that helped finance millions of dollars of attack ads against Democrats during the 2010 elections.

The White House last week began circulating a draft executive order that would require companies seeking government contracts to disclose contributions – including those that otherwise would have been secret – to groups that air political ads attacking or supporting candidates.

The proposed order follows several actions by regulatory agencies that have a similar intent of making corporate and individual donations more transparent.

Last month the Securities and Exchange Commission issued a decree that could result in shareholders having more say in corporate election spending. Democratic appointees to the Federal Communications Commission and Federal Election Commission are pushing measures that could make public currently anonymous contributions to outside groups.

The Democratic FEC commissioners are also trying to restrict political spending by U.S. subsidiaries of foreign corporations.

Taken together, the moves represent a broad administrative push to implement reforms that Congress failed to pass last year to blunt the impact of the Supreme Court’s decision in Citizens United vs. FEC in January 2010.

That decision prompted a deluge of outside advertising that liberals say favored Republicans in the 2010 midterm elections.

Administration critics, including the powerful U.S. Chamber of Commerce, are seizing on the White House’s draft executive order, in particular, as evidence of an attempt to use executive power to punish or silence political adversaries, while rewarding supporters.

Calling the draft executive order “an affront to the separation of powers … (and) to free speech,” chamber spokeswoman Blair Latoff said it “lays the groundwork for a political litmus test for companies that wish to do business with the federal government” and is “less about disclosure than intimidation.”

But congressional Democrats and White House allies applauded the draft executive order as an overdue effort to prevent the 2012 elections from being hijacked by undisclosed big moneyed special interests – on both sides of the partisan divide.

“The fact that congressional Republicans may oppose disclosure does not mean that efforts to obtain it are, by definition, partisan,” said Fred Wertheimer, president of Democracy 21, a non-profit group that pushes for stricter campaign finance rules, and that opposed Citizens United in its Supreme Court challenge.

Wertheimer pointed out that Democrats are planning their own big spending groups to counter those established by Republicans in the wake of Citizens United and called “disclosure of secret contributions being spent to influence federal elections … essential public policy.”

Craig Holman, a campaign finance lobbyist for Public Citizen, acknowledged that the Republican takeover of the House and narrowing of the Democratic majority in the Senate in the 2010 midterms puts the onus on the Obama administration to use executive power to tighten campaign finance disclosure and other rules.

“I would have liked to see (Obama) play a more active role administratively on a lot of these reform efforts, but I hope this (executive order) is a signal that the White House is going to get more involved in the regulatory approach, because they can achieve a great deal through executive order,” said Holman.

Holman worked with the administration and its congressional allies last year on a bill to respond to the Citizens United decision by forcing groups airing certain ads to name their top five donors on screen and on their websites. That bill would also have limited political ad spending by companies with government contracts or that received government bailouts from the Troubled Asset Relief Program, as well as those with more than 20 percent foreign ownership.

The bill, called the DISCLOSE Act (short for “Democracy Is Strengthened by Casting Light On Spending in Elections”) last year passed the Democratic-controlled House, but died in the Senate.

A related House bill to require shareholder approval before a publically traded corporation could spend money on politics never came up for a full House vote.

One Democratic congressional aide, who requested anonymity to talk about interactions with the White House, said that Democratic House members had made clear that “there was interest in the House in trying to get the White House to do whatever they could do within their constitutional power” to move the issue.

The draft executive order, which the White House is circulating for comment among agencies, says its goal is to “increase transparency and accountability” and “ensure the integrity of the federal contracting system” by requiring companies submitting bids for federal work to disclose contributions made within the last two years by their officers and directors to federal candidates and parties.

Such contributions already have to be reported to the FEC, but the executive order also would require disclosure of contributions or expenditures made by a company’s officers and directors, as well as the company and its affiliates, to support candidates, including those “made to third party entities with the intention or reasonable expectation that parties would use those contributions to make independent expenditures or electioneering communications.”

That last phrase seems an effort to directly address spending by groups registered under sections of the tax code that don’t require disclosure of donors, such as the chamber – which is registered under section 501(c)6 – and Crossroads Grassroots Policy Strategies, which is registered under section 501(c)4.

An administration official stressed that the executive order, which cites state “pay-to-play” laws as a model, “is a draft ... that is still moving through the standard review and feedback process” and “is not a final document.” But the official, who requested anonymity to discuss the working draft, said Obama “is committed to an overhaul of government contracting policies to promote accountability, transparency and competition.”

The executive order seems likely to quiet some criticism Obama has been facing from advocates for stricter campaign finance regulations. They contend Obama has failed to live up to his campaign promise to reduce the influence of big money in politics.

They have also criticized him for not overhauling the perpetually gridlocked FEC or the presidential public financing system, and for signaling that he will again bypass the public financing system and won’t discourage outside groups from raising and spending huge sums of cash to support his reelection effort.

Hans von Spakovsky, a former GOP appointee to the FEC who first revealed the circulating draft, pointed out that it does not seem to apply to Democratic-allied groups that either receive grants from the federal government, or unions that negotiate contracts with it.

“The fact is that they’re only extending it to the one group that they think is probably going to hurt them politically, as opposed to unions and groups like Planned Parenthood, which are going to help them, shows that there is a political agenda for doing this,” he told POLITICO.

“This president in two years hasn’t made the transition from being a candidate to being a president and I think this is just also evidence of that,” he said of the executive order, asserting that it, combined with the regulatory processes at play at the FEC, SEC and FCC, represent a “very anti-democratic” circumvention of Congress.

“When the Democrats can’t get something through Congress, they turn to these regulatory agencies and try to get them to implement what they couldn’t get through legislation,” he said.

The SEC staff issued a letter late last month that cleared shareholders to learn about and vote on one corporation’s political spending, but which shareholder rights’ advocates believe will clear the way for similar actions at other corporations.

But pushes to implement aspects of the DISCLOSE Act at the FEC and FCC have been less fruitful.

At the FEC, three Democratic commissioners (all of whom predate Obama’s presidency) have tried to compel disclosure of certain secret contributions and to bar political spending by U.S. subsidiaries of foreign corporations. But their effort has been blocked by the three Republican commissioners, fueling calls for Obama to replace the commissioners from Wertheimer, Holman and other advocates for stricter campaign finance rules.

At the FCC, a petition by an advocacy group asking the agency to require on-air identification of funders of political advertisements has the support of two Democratic commissioners, but the Obama-appointed chairman, Julius Genachowski, has yet to weigh in.

Still, Sean Parnell of the anti-regulation non-profit group Center for Competitive Politics, said the technically independent regulatory processes at play at the FEC, SEC and FCC, should be viewed along with the draft executive order as “a concerted and coordinated effort to try to stifle certain voices ahead of the 2012 elections.”

Parnell, whose group filed a brief supporting Citizen United’s lawsuit against the FEC, explained “there’s simply too much activity in different corners all aimed at in one way or another undoing or limiting the First Amendment rights recognized in the Citizens United decision to believe that it’s a coincidence.”

from the Wall Street Journal, 2011-Apr-25:

The White House Wants a List
Want a federal contract? Show politicians the money.

Here's another reason to think the 2012 campaign is underway with a vengeance: If a company wants a federal government contract, from now on it will first have to disclose if the company or its executives gave more than $5,000 in political donations.

This latest federal rule comes courtesy of a new executive order now being drafted in the White House. The order would implement parts of last year's Disclose Act, which failed to pass Congress but was a favorite of Democrats because it would deter political contributions by business after last year's Citizens United v. FEC Supreme Court decision. White House press secretary Jay Carney confirmed last week that the order is in the works after former Federal Election Commission official Hans von Spakovsky obtained a copy of the draft.

The draft of the executive order describes the rule's purpose as a way to ensure the federal contracting system is free from the influence of "political activity or political favoritism." Hmmm. Last we checked, government contractors were already required to disclose contributions to candidates. The new twist here is the disclosure of donations to independent groups, a category in which conservatives outspent liberals for the first time in the last election cycle.

And what do you know? The draft order doesn't cover federal employee labor unions, the Democratic allies whose free speech rights were recognized alongside corporations in Citizens United. Nor do the disclosure requirements extend to recipients of federal grants, which often run into the millions of dollars. These donees are usually Democrats too.

Federal contracts are supposed to go to the lowest bidder, so it's hard to see how disclosure of political contributions would help contract decisions. Mandatory disclosure would impose politics on federal procurement choices as never before.

Even GOP strongman Tom DeLay never tried this one during his K Street heyday, though you can imagine the howls if he had. The closest we can come to something comparable is former Nixon henchman John Dean's memo during the Watergate era that the point of keeping an "enemies list" was to "determine what sorts of dealings these individuals have with the Federal Government and how we can best screw them (e.g., grant availability, federal contracts, litigation prosecution, etc.)."

These days the White House proxies on the political left will do the enemy listing. Disclosure may sound nice, but the real point is to put companies on notice that their political contributions will have, well, consequences. When the Disclose Act was before Congress, New York Democrat and co-sponsor Chuck Schumer made clear the bill was designed to "embarrass companies" out of exercising the rights recognized in Citizens United. "The deterrent effect should not be underestimated," he said.

Exhibit A was last year's campaign against Target Corp. When the retailer donated $150,000 to an independent group running ads in the Minnesota governor's race, MoveOn.org smeared the company as antigay, threatened a boycott, and said Target needed to be made an example of or such donations could be "the tip of the iceberg." Target stopped donating to that group.

The executive order is only the latest Democratic effort to intimidate business donors. Last month, the liberal Media Access Project asked the Federal Communications Commission to begin requiring groups that run political ads to disclose their major donors on the air, a wacky interpretation of the 1934 Communications Act. Last week, Maryland Democrat Chis van Hollen sued the FEC to demand donor disclosure.

The point of all this is to discourage political speech by certain speakers. Citizens United was a landmark victory for liberty because it blew a huge hole in the architecture of campaign finance limits that had increasingly restricted political speech. Having failed to overrule Citizens United in Congress, Democrats now want to do it via executive diktat. Remember when Barack Obama campaigned as a postpartisan who'd stop all that Washington nastiness?

from the New York Times, 2011-Apr-29, printed 2011-Apr-30, p.A1, by Jim Rutenberg:

Groups Form to Aid Democrats With Anonymous Money

MANCHESTER, N.H. — A group including former White House officials, union leaders and one of Hollywood's biggest producers have joined forces to start an outside effort to help President Obama and Congressional Democrats in 2012 by using the very sort of anonymous, unlimited donations from moneyed interests that the president has so deplored.

Co-founded by the former White House deputy press secretary Bill Burton and with seed money from the Service Employees International Union and the film producer Jeffrey Katzenberg, the group's entrée into the early 2012 contest all but ensures that the presidential race will be awash in cash from undisclosed corporate and labor sources with huge stakes in Washington policy making.

At the heart of the effort, introduced Friday morning, are two groups: Priorities USA Action, which will engage directly in electioneering backed by donors who will have to be identified but can give unlimited amounts, and Priorities USA, which will advertise about related campaign issues using money from undisclosed sources.

The effort is modeled on the one Republicans started last year — with help from the Republican strategist Karl Rove — that attacked Democrats with a barrage of advertisements, mailings and phone calls. It was widely credited with helping the party to take control of the House and diminish the Democrats' edge in the Senate last fall. One of those groups, Crossroads GPS, was set up under a section of the tax code that allowed its donors to remain anonymous, leading Mr. Obama to refer to such groups collectively as “a threat to democracy” for the way they had shielded corporate interests from view as they sought to sway elections.

Democrats had eschewed the formation of such groups last year at Mr. Obama's public urging, but after the elections in November prominent liberals vowed to form with outside groups of their own to combat the likes of Crossroads.

Speaking aboard Air Force One on Friday, the White House press secretary, Jay Carney, said that the president's views had not changed and that the administration had nothing to do with the new groups.

“We don't control outside groups,” Mr. Carney said. “These are not people working for the administration.”

The Priorities USA organizers said they hoped to raise enough money to keep pace with the Crossroads groups, which have set a goal of raising $120 million for the 2012 election cycle.

The organizers said they would coordinate their efforts with a series of other liberal groups that have formed in recent months to bolster Democrats and Mr. Obama and attack Republicans and conservatives, much the way the Crossroads groups have coordinated with like-minded organizations against Democrats.

The announcement brought immediate criticism from groups calling for tighter campaign finance restrictions, and broader adherence to existing law, that Democrats were now getting into the act themselves.

Former Senator Russ Feingold, Democrat of Wisconsin and a co-sponsor of the landmark legislation of 2002 that had placed tight restrictions on corporate giving but has since been chipped away by court rulings, said in a statement that efforts to imitate the “right-wing tactics” of Mr. Rove and others “do our nation no favors.”

Fred Wertheimer, president of the group Democracy 21, said his group was looking into filing a complaint with the Internal Revenue Service questioning the tax status of Priorities USA, saying that he was skeptical that it was serving anything other than a political purpose intended to influence the upcoming election. (The section of the tax code it was formed under — 501(c) (4) — is for groups that are not seeking to directly affect elections). He has registered a similar complaint against Crossroads GPS.

Mr. Wertheimer predicted that the 2012 campaign would have more anonymously donated money working for or against the election of federal candidates than any other has since the Watergate scandal kicked off the decades-long effort to reform the system — unless, he said, new legislative steps are taken to force greater transparency (an unlikely seeming eventuality for now given that both parties are getting so deeply involved in soliciting secret money).

Republicans seized on the formation of the group and its connections to the White House via Mr. Burton and the other co-founder of the groups, Sean Sweeney, a onetime deputy to the former White House chief of staff Rahm Emanuel, as an example of hypocrisy.

Crossroads GPS publicized Mr. Obama's remarks in Philadelphia in October questioning anonymous donations that were spent in the service of Republicans. “The American people deserve to know who's trying to sway their elections, and you can't stand by and let the special interests drown out the voices of the American people,” Mr. Obama said then.

An aide to the Senate minority leader, Senator Mitch McConnell of Kentucky, sent an e-mail quoting Mr. Burton as saying last year, “The president thinks that if you're going to participate in politics, you ought to be transparent about it.”

Coordination between outside groups and federal candidates is strictly prohibited, if hard to prove and harder still to enforce.

Asked if he had any contact with the White House on the formation of the groups, Mr. Burton said in an e-mail, “We will be clear that we cannot coordinate with anyone at the White House or on the campaign.”

Asked if the issue had come up during his time at the White House, Mr. Burton said, “Outside groups were obviously a topic of conversation” there, but “We decided to do this on our own, after we left the White House and spent a considerable amount of time thinking about it.”

He said the groups were planned strictly as a reaction to the formation of groups by Mr. Rove and the Koch family, among others, adding, “We don't think progressives should live by a different set of rules than conservatives.”

Advisers to the groups include Harold Ickes, a former Clinton White House deputy chief of staff; Ellen Malcolm, founder of Emily's List, which supports candidates favoring abortion rights; and Robert McKay, chairman of Democracy Alliance, which took a leading role in organizing liberal groups.

from the Wall Street Journal, 2010-Oct-10:

Shutting Up Business
Democrats unleash the IRS and Justice on donors to their political opponents.

If at first you don't succeed, get some friends in high places to shut your opponents up. That's the latest Washington power play, as Democrats and liberals attack the Chamber of Commerce and independent spending groups in an attempt to stop businesses from participating in politics.

Since the Supreme Court's January decision in Citizens United v. FEC, Democrats in Congress have been trying to pass legislation to repeal the First Amendment for business, though not for unions. Having failed on that score, they're now turning to legal and political threats. Funny how all of this outrage never surfaced when the likes of Peter Lewis of Progressive insurance and George Soros helped to make Democrats financially dominant in 2006 and 2008.

Chairman Max Baucus of the powerful Senate Finance Committee got the threats going last month when he asked Internal Revenue Service Commissioner Douglas Shulman to investigate if certain tax exempt 501(c) groups had violated the law by engaging in too much political campaign activity. Lest there be any confusion about his targets, the Montana Democrat flagged articles focused on GOP-leaning groups, including Americans for Job Security and American Crossroads.

Mr. Baucus was seconded last week by the ostensibly nonpartisan campaign reform groups Democracy 21 and the Campaign Legal Center, which asked the IRS to investigate whether Crossroads is spending too much money on campaigns. Those two outfits swallowed their referee whistle in the last two campaign cycles, but they're all worked up now that Republicans might win more seats. Crossroads GPS, a 501(c)(4) affiliate of American Crossroads supported by Karl Rove, is a target because it has spent millions already in this election cycle.

Last Tuesday, the liberal blog ThinkProgress, run by the Center for American Progress Action Fund, reported that the U.S. Chamber of Commerce had collected some $300,000 in annual dues from foreign companies. Since the money went into the Chamber's general fund, the allegation is that it could have been used to pay for political ads, which would violate a ban on foreign companies participating in American elections. The Chamber says it uses no foreign money for its political activities and goes to great lengths to raise separate funds for political purposes.

That didn't stop President Obama from raising the issue in a Maryland speech last week, saying that "groups that receive foreign money are spending huge sums to influence American elections." Within hours of the ThinkProgress report, the bully boys at MoveOn.org asked the Department of Justice to launch a criminal investigation of the Chamber. In a letter to the Federal Election Commission, Minnesota Senator Al Franken expressed his profound concern that "foreign corporations are indirectly spending significant sums to influence American elections through third-party groups." From the man who stole his Senate election in a dubious recount, this is rich.

Even Mr. Franken admits in his letter that the Chamber's commingling of funds in its general accounts is not "per se illegal," but apparently he thinks it's fine to unleash federal investigators because the Chamber cash might contribute to the defeat of fellow Democrats.

The outrage over the Chamber is especially amusing considering the role of foreigners in U.S. labor unions. According to the Center for Competitive Politics, close to half of the unions that are members of the AFL-CIO are international. One man's corporate commingling is another's union dues.

Unions and liberal groups are hardly cash poor this year in any case. The Campaign Media Analysis Group looked at the combined spending of candidates, their parties and outside groups and found that Democrats outspent Republicans $47.3 million to $40.8 million in a recent 60-day period.

Democrats claim only to favor "disclosure" of donors, but their legal intimidation attempts are the best argument against disclosure. Liberals want the names of business donors made public so they can become targets of vilification with the goal of intimidating them into silence. A CEO or corporate board is likely to think twice about contributing to a campaign fund if the IRS or prosecutors might come calling. If Democrats can reduce business donations in the next three weeks, they can limit the number of GOP challengers with a chance to win and reduce Democratic Congressional losses.

The strategy got a test drive in Minnesota earlier this year after Target Corporation donated $100,000 cash and $50,000 of in-kind contributions to an independent group that ran ads supporting the primary candidacy of Republican gubernatorial candidate Tom Emmer. MoveOn.org accused the company of being anti-gay, organized a petition, and crafted a TV ad urging shoppers to boycott Target stores. Target made no further donations, and other companies that once showed an interest have since declined to contribute.

***

Then there's the curious reference to the tax status of Koch Industries by White House chief economist Austan Goolsbee. In a late August conference call with reporters, Mr. Goolsbee cited the closely-held Koch as an example of "really giant firms" that pay no corporate income tax because they file under other tax rules. But how in the world would Mr. Goolsbee know Koch's tax status? Could his knowledge be related to the White House-liberal campaign against Koch for contributing to Americans for Prosperity, a group that is supporting free-market candidates for Congress this year?

In an August 9 speech, Mr. Obama personally trashed Americans for Prosperity, hinting that it was funded by "a big oil company." He had to mean Koch, which makes no secret of its support for Americans for Prosperity.

The White House didn't respond to queries about Mr. Goolsbee's remark for weeks until GOP Senators requested an investigation. The Treasury's inspector general for tax matters has since announced such a probe, and last week White House spokesman Robert Gibbs finally got around to explaining that Mr. Goolsbee's statement "was not in any way based on any review of tax filings" and that he won't use the example again.

We're glad to hear it, but pardon our skepticism given the ferocity of this White House-led campaign against businesses that donate to political campaigns. Faced with electoral repudiation as the public turns against their agenda, Democrats are unleashing government power to silence their political opponents. Instead of piling on, the press corps ought to blow the whistle on this attempt to stifle political speech. This is one more liberal abuse of power that voters should consider as they head to the polls.

from Ars Technica, 2011-May-10, by Nate Anderson:

Revised 'Net censorship bill requires search engines to block sites, too

Surprise! After months in the oven, the soon-to-be-released new version of a major US Internet censorship bill didn't shrink in scope—it got much broader. Under the new proposal, search engines, Internet providers, credit card companies, and ad networks would all have cut off access to foreign "rogue sites"—and such court orders would not be limited to the government. Private rightsholders could go to court and target foreign domains, too.

As for sites which simply change their domain name slightly after being targeted, the new bill will let the government and private parties bring quick action against each new variation.

Get ready for the "PROTECT IP Act."

Targeting Google

A source in Washington provided Ars with a detailed summary of the PROTECT IP Act, which takes its acronym from "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property." This beats the old acronym, COICA; who can be against protection? The actual legislation should be introduced shortly.

The bill is an attempt to deal with foreign sites which can be difficult for US enforcement to reach, even when those sites explicitly target US citizens.

The PROTECT IP Act makes a few major changes to last year's COICA legislation. First, it does provide a more limited definition of sites “dedicated to infringing activities.” The previous definition was criticized as being unworkably vague, and it could have put many legitimate sites at risk.

But what the PROTECT IP Act gives with one hand, it takes away with the other. While the definition of targeted sites is tighter, the remedies against such sites get broader. COICA would have forced credit card companies like MasterCard and Visa to stop doing business with targeted sites, and it would have prevented ad networks from working with such sites. It also suggested a system of DNS blocking to make site nominally more difficult to access.

The PROTECT IP Act adds one more entity to this list: search engines. Last week, when the Department of Homeland Security leaned on Mozilla to remove a Firefox add-on making it simple to bypass domain name seizures, we wondered at the request. After all, the add-on only made it easier to do a simple Google search, and we wondered "what the next logical step in this progression will be: requiring search engines to stop returning results for seized domain names?"

Turns out that's exactly what's being contemplated. According to the detailed summary of the PROTECT IP Act, this addition "responds to concerns raised that search engines are part of the ecosystem that directs Internet user traffic and therefore should be part of the solution."

Rightsholders also score a major victory with the new legislation, which grants them a private right of action—something Google publicly trashed as a terrible idea earlier this year. Copyright and trademark holders don't have to badger the government into targeting sites under the new bill; they are allowed to seek court orders directly, though these orders would only apply to payment processors and advertising networks (not to ISPs or search engines).

Help us out, please

The emphasis here is on forcing intermediaries to get involved in policing such sites. Rightsholders have had difficulty suing the millions of end users engaged in infringement, and they have had difficulty suing the sites themselves when they are based abroad. But MasterCard and Google? Those are easy, US-based targets who will comply will any law Congress passes.

The PROTECT IP Act goes even further than forcing these intermediaries to take action after a court order; it actively encourages them to take unilateral action without any sort of court order at all. The bill summary makes clear that ad networks and payment processors will be protected if they “voluntarily cease doing business with infringing websites, outside of any court ordered action.” If a search engine decides that the next YouTube is a copyright infringer—and rightsholders have often sued sites like Veoh and YouTube in the past—it can simply cut off advertising for that reason and be immunized under the law. So can Visa.

The bill also encourages everyone—domain name registries, search engines, payment processors, and ad networks—to cut off access to infringing sites that "endanger the public health." That is, online pharmacies (which are often hotbeds of counterfeiting).

Given the strong opinions elicited by the earlier COICA, the expansion of powers here is a bit surprising, but the continued presence of the legislation is not. That's because, no matter how much power and money Congress devotes to intellectual property, rightsholders are back every couple of years for more—as the NET Act, DMCA, Sonny Bono Term Extension Act, PRO-IP Act, and Anti-Counterfeiting Trade Agreement (ACTA) remind us. Each is "essential"—but somehow never quite enough.

from the Guardian of London, 2011-May-18, by Josh Halliday:

Google boss: anti-piracy laws would be disaster for free speech
Eric Schmidt claims search giant would fight attempts to restrict access to sites such as the Pirate Bay

Google's executive chairman, Eric Schmidt, warned on Wednesday that government plans to block access to illicit filesharing websites could set a "disastrous precedent" for freedom of speech.

Speaking to journalists after his keynote speech at Google's Big Tent conference in London, Schmidt said the online search giant would challenge attempts to restrict access to the Pirate Bay and other so-called "cyberlocker" sites that encourage illegal downloading – part of government plans to fight online piracy through controversial measures included in the Digital Economy Act.

"If there is a law that requires DNSs [domain name systems, the protocol that allows users to connect to websites] to do X and it's passed by both houses of congress and signed by the president of the United States and we disagree with it then we would still fight it," he added. "If it's a request the answer is we wouldn't do it, if it's a discussion we wouldn't do it."

Schmidt, who became Google's executive chairman last month after a decade as its chief executive, described website blocking as akin to China's restrictive internet regime.

"I would be very, very careful if I were a government about arbitrarily [implementing] simple solutions to complex problems," he said. "So, 'let's whack off the DNS'. Okay, that seems like an appealing solution but it sets a very bad precedent because now another country will say 'I don't like free speech so I'll whack off all those DNSs' – that country would be China.

"It doesn't seem right. I would be very, very careful about that stuff. If [the UK government] do it the wrong way it could have disastrous precedent setting in other areas."

Speaking at the same conference, the culture minister, Jeremy Hunt, said plans to block access to illicit filesharing websites were on schedule. He admitted that a "challenge" of the controversial measure is deciding which sites get blocked.

Ofcom is due to present its report on the practicability of the site-blocking measures included in the DEA to Hunt in the coming weeks.

Responding to questions about Facebook secretly hiring the public relations firm Burson-Marsteller to plant scare stories over Google's privacy policies in the US media, Schmidt said he would not comment.

However, he added: "A lot of people – not Google employees – have looked at these claims and generally found them to be false."

from IT World / IDG News Service, 2011-May-5, by Robert McMillan:

Mozilla defies DHS, won't remove Mafiaa Fire add-on
The open-source browser maker has asked for proof that its redirecting add-on is illegal

The open-source Mozilla project said Thursday it won't comply with a U.S. Department of Homeland Security request to remove a Firefox add-on that helps redirect Web traffic for sites that have been seized by the government.

At issue is the Mafiaa Fire add-on, designed to reduce the effectiveness of an antipiracy campaign by DHS's Immigration and Customs Enforcement (ICE) division. When users try to visit a website whose Internet domain has been seized by ICE, Mafiaa Fire redirects them to a working site set up to replace the seized domain.

That's a problem for the DHS, which is trying to knock these sites offline permanently. "The ICE Homeland Security Investigations unit alleged that the add-on circumvented a seizure order DHS had already obtained against a number of domains," wrote Harvey Anderson, vice president and general counsel for Mozilla, in a blog post Thursday.

In recent months, ICE has shut down a large number of websites suspected of selling illegally copied music, movies or counterfeit products. Some free-speech experts have said the seizures may violate freedom-of-speech protections in the U.S. Constitution.

The DHS did not come to Mozilla with a court order, and the group pushed back, asking for proof that Mafiaa Fire is illegal, or at least a legal reason justifying the removal of the add-on.

"To date we've received no response from Homeland Security nor any court order," Anderson said. While content companies see obvious reasons to keep these sites offline, Mozilla sees it as a question of government censorship, and whether agreeing to these informal requests might somehow "threaten the open Internet," Anderson said.

The DHS's ICE division could not immediately be reached for comment Thursday. Neither could Mafiaa Fire developers nor Mozilla's Anderson.

from TechDirt.com, 2011-Jun-2, by Mike Masnick:

The One Situation Where Record Labels Fear Federal Copyright: Old Sound Recordings
from the keep-the-public-domain-away! dept

Last year, we were among those who noted a significant problem for sound recordings from about a century ago. While under federal copyright law, works published before 1923 are in the public domain, when it comes to sound recordings, it's a different story. That's because, for quite some time, Congress did not even believe copyright law could apply to sound recordings (which is kind of funny when you realize how many in the recording industry now seem to assume that copyrights on recordings are some sort of birthright). Instead, however, various state laws covered the gap... and did so by creating copyright laws that were even more ridiculous than the federal one. Because of that, many old sound recordings may never enter the public domain, or if they do it won't be for another 50 or 60 years. And, in the meantime, many of those recordings will disappear.

This is of big concern to those who wish to preserve and share the culture from a century ago. After this issue started to get some attention, the Copyright Office agreed to look into things and just held some hearings on the issue. Copycense attended the event and shared copious tweets on the events. As an experiment, I'm going to try to collate some of the more interesting tweets, embedded below, but provide commentary here. There are a few key statements that were made that I'll address in separate posts, but this one will cover the general discussions held during the day.

What becomes clear is that there's a big divide between the legacy industry (record labels & publishers) and librarians and cultural researchers who fear that these works are dying. The people actually concerned about preserving the works are horrified at what's happening, noting that culture is disappearing -- and predominantly impacting "people of color," whose work would be freely available for all to hear if their recordings had been covered by traditional copyright, or done in any other country. Others point out that if librarians can't preserve these works, they may disappear forever.

The response from the music business guys is ridiculous -- but expected. They insist that covering these works under traditional copyright would harm artists (seriously). Rich Bengloff, the head of A2IM (mini-RIAA), insisted that covering these works under federal copyright law would "bring less investment to roots music." Huh? How does that make any sense? The RIAA also worried that there would be "costs" associated with covering these works by copyright, and that it would "raise ownership questions." This is laughable. There are already "ownership" questions, which is why we're stuck in this quagmire in the first place. The RIAA pointed out that "we have concerns that federalization would negatively affect economic value."

That, of course, is ridiculous. First, the vast majority of the works we're talking about no longer are being marketed in any way shape or form. They're disappearing. The few works that are still an issue would still have federal copyright law, which is already pretty strict. The only works that would really have a change are those from before 1923, and that's fine. It's what's good about the public domain. Thankfully, one of the representatives from library groups pointed out that work that goes into the public domain "increases value to the public," which is what copyright is supposed to be about. Furthermore, as others quite reasonably pointed out, just because something is in the public domain, it doesn't mean you can't make money off of it. Just look how many publishers make money selling public domain works.

The RIAA then tried a different tack, insisting that the libraries concerned about all this are being silly, because "according to our research," no library has been sued over this issue. Isn't that comforting? Of course, you never know when a lawsuit might be filed, and the law clearly allows one to be filed. Most libraries wouldn't take that risk. Thankfully, the brand new Registrar of Copyrights, Maria Pallante, was quick to point out that simply wishing libraries become less risk averse is not a reasonable answer here.

Hilariously, the National Music Publishers Association people (NMPA) responded to a question about how taking away 50 different state laws, and moving these works under the single, well-known, standard of federal copyright law would make things "more confusing" by claiming that it would create "uncertainty." Huh?!? On the one hand, we have 50 different, confusing and rarely tested laws. On the other, we have federal copyright law and loads of caselaw. And the NMPA is actually claiming that federal copyright law would be more confusing? Even more ridiculous is Bengloff's claim that because under those state laws most works will go into the public domain in 2067, it "makes it easy to know what we're working with." Except we also know what we're working with under federal copyright law.

Later, Bengloff claims that there's a risk because labels have "invested millions of dollars" in these works. Again, this is misleading and ridiculous. The works still covered by federal copyright would remain in the control of the copyright holders. Furthermore, someone from the Library of Congress properly pointed out that the LOC (and other libraries) have also invested millions in trying to preserve these works. A representative from libraries reminded people that the public is a stakeholder here as well (though apparently not directly represented at the hearing).

Finally, at the end of the day, the real issue makes itself known. The labels and publishers want to avoid "federalization" because they know that this would bring back "termination rights" for the musicians themselves. As you hopefully know, the labels have been vigorously fighting the fact that the musicians themselves can reclaim their own copyrights by "terminating" the copyright assignment. A decade ago, the RIAA was able to sneak a law through Congress (literally by adding a line in the middle of the night that no one noticed until after the bill passed) that turned all such recordings into "works made for hire," which removed termination rights. An outcry from artists (for once) resulted in Congress fixing that "mistake" quickly, but the labels are still infatuated with this, and are gearing up for legal fights over termination rights soon.

It appears the real issue here is that under these state laws, there are no termination rights, meaning the artists themselves can't reclaim the copyrights, and the labels and publishers get to hang onto them for a few more decades. Putting things under federal copyright law would open up an opportunity for artists to get their copyrights back. And, we can't have that.

What's really appalling here is that the label/publisher representatives still pretend to represent artists here -- and one even declares that the labels interests really are aligned with artists' interests, when the subtext of this debate shows that's not true at all.

from the Daily Mirror of London, 2011-Apr-25, by Steve Myall:

Imogen Thomas: Tory MP blurts out Premier League star's name on Have I Got News For You

A TOP Tory MP blurted out on a TV show the identity of the Premier League star who had an affair with Imogen Thomas – forcing the BBC to bleep her comments.

Louise Bagshawe, 39, a novelist and MP for Corby, came close to breaching a High Court injunction on current affairs quiz show Have I Got New For You.

She had just been shown four blacked-out images of people who have taken out injunctions in the “odd one out” round.

Miss Bagshawe said: “You're not allowed to know who they are.

“They may or may not have done something with ladies who are not their wives. One of them definitely doesn't rhyme with… even though he is a footballer.” Ian Hislop & MP Louise Bagshawe (Pic:BBC)

The BBC muted the sound while team captain Ian Hislop said: “Can somebody call the police. I'm sitting here next to a Conservative MP who's trying to break a series of super- injunctions. I'm absolutely appalled.”

Miss Bagshawe said she was considering using parliamentary privilege to name in the Commons the 30 footballers, actors and TV presenters who have won injunctions in recent weeks.

But if her comments had been broadcast on Friday she may have breached the injunction and faced a prison sentence.

Oblivious to the row her comments sparked, she later tweeted: “Thoroughly enjoyed #HIGNFY, laughed so much thought I might get a stitch.”

She later said: “The BBC were rightly cautious. I mumbled something that may or may not have rhymed with this man's name. I wasn't breaking the injunction. I had no desire to go to jail.”

Tory leader David Cameron has accused judges of using the Human Rights Act to usher in a privacy law by the back door.

The BBC declined to comment.

from Gulf News of Dubai, 2011-May-1, by Abdul Nabi Shaheen:

Royal decree issued to amend Saudi media law
Saudi Press and Publications Law protects religious figures from being targeted

Riyadh: In what is seen as a move to protect senior figures in religious establishment and other senior public officials amid growing media and internet criticism, the Saudi monarch King Abdullah Bin Abdul Aziz on Friday issued amendments to the Saudi Press and Publications Law.

The royal decree amended five articles in the Law which was issued in 2000.

One of the amendments stipulates that responsible persons in the publishing field shall be bound by objective and constructive criticism based on facts and that this criticism should be for the public interest.

The amendments make it a crime to publish any material that damages the reputation or cause insult to the kingdom's grand mufti, members of the Council of Senior Religious Scholars and government officials.

Moreover, the amendments stipulate that those in charge of publishing should not publish any materials violating Sharia, inciting division between citizens, promoting crimes or damaging the homeland's public affairs.

Penalty

According to the royal decree, whoever is found guilty can be fined up to 500,000 Saudi riyals (Dh490,000) or 1 million riyals for repeat offenders and/or a ban on their works being published or appearing in the press.

It added that establishments found guilty of violating this law will be asked to shut down temporarily or permanently. Moreover, if the violation is not deemed serious enough for closure, the establishment which publishes false information or accusations will be asked by law to publish retractions and apologies.

A special court will look at violations that are deemed to be an affront to Islam, the amendments said.

from the Wall Street Journal, 2011-Mar-7, by Paul Sonne, Max Colchester and David Roman:

Plastic Surgeon and Net's Memory Figure in Google Face-Off in Spain

In 1991, the Spanish newspaper El País published an article centered on a dispute between Madrid plastic surgeon Hugo Guidotti Russo and one of his patients over an allegedly botched breast surgery. The headline: "The Risk of Wanting to Be Slim."

Nearly 20 years later, Dr. Guidotti Russo, backed by Spain's privacy regulator, contends that the tale of the dispute is personal information and wants to purge the article from Google, where it shows up on the first page of results when his name is searched.

His complaint accounts for one of about 80 instances in which the Spanish regulator has told U.S.-based Google Inc. to remove personal information about individuals from its search results.

Google says it plans to challenge most of those orders, arguing that the agency is overstepping its authority.

In January, a Spanish court heard the first five complaints that Google is contesting, including Dr. Guidotti Russo's. Now, after weeks of deliberation, the Spanish court is considering referring the matter to the European Court of Justice in Luxembourg to clarify European privacy law, according to a person familiar with the situation.

"We're pleased that the [Spanish] court is considering asking guidance from Europe's top court on whether Spain's [data-protection agency] has overridden European law. It shows that key issues are at stake," Peter Barron, Google's head of European external relations, said in a statement.

Such a referral could pave the way for a major Europe-wide ruling on the indexing of personal data on the Web—but it also could delay a resolution for years. European lawmakers in Brussels, meanwhile, are working on an overhaul of the same European Union data-protection law the Luxembourg court could be asked to interpret.

The legal wrangle between Google and the Spanish regulator comes amid a broader debate about how much control individuals should have over their private data and reputations in the era of the Internet.

A movement has cropped in parts of Europe to create a "right to be forgotten," which would let individuals excise personal information from the Web on privacy grounds. The European Commission, as part of its data-protection overhaul, has proposed recognizing such a right. France's Senate has also approved similar proposals, which have yet to be ratified by the National Assembly.

Though freedom-of-expression provisions of Spanish law protect newspapers, legal gazettes and other publishers from government censors, the Spanish data regulator contends the protections don't extend to Internet search engines like Google.

The idea is that the Internet shouldn't retain, or remember, a citizen's personal data and leave it accessible in perpetuity.

The Spanish regulator says that in situations where having material included in search results leads to a massive disclosure of personal data, the individual concerned has the right to ask the search engine to remove it on privacy grounds. Google calls that censorship.

"Spain has always taken an extremely strong line over privacy," says Malcolm Bain, a lawyer at ID Law Partners in Barcelona who specializes in information-technology law.

That stance could benefit people like Dr. Guidotti Russo. The El País article from two decades ago says he was accused of medical malpractice in connection with the allegedly botched surgery, and that the 21-year-old plaintiff the equivalent of around $4 million in damages; it isn't clear whether she received any money. El País, which identified the plaintiff in its article only by her initials, says it stands by its article.

The newspaper isn't being asked to remove it from its own website.

Dr. Guidotti Russo, who still has his practice, says he was cleared of the charge of reckless endangerment, but declined to discuss the matter further.

The Spanish court where the legal dispute described in the 1991 article took place said the records of the proceedings were impossible to retrieve because they dated from before the country digitized court records.

Dr. Guidotti Russo's lawyer, Gabriel Gómez, says his client was cleared of any criminal wrongdoing. He argues, however, that the outcome of the 20-year-old case isn't relevant.

Mr. Gómez says that what's at stake is an individual's right to remove personal information he objects to—whether it is accurate or not.

Javier Aparicio, a lawyer representing Google, said at a Jan . 19 Spanish court hearing that Spain is the only country where the company is forced to remove links to Web pages that don't have illegal content of any kind.

In other countries, courts have asked the company to delete links to pages with material such as illegal pornography or bootleg movies or songs.

With the EU's 15-year-old data-protection law slated for overhaul within the next year or two, the issue of how to reconcile the freedom of expression with the right to privacy has become a recurrent theme in Europe. Viviane Reding, EU commissioner for justice, fundamental rights and citizenship, has introduced her own version of a right to be forgotten.

Her proposal, which is still taking shape, could allow Internet users to force websites like Facebook Inc. to permanently erase personal data about them, such as photos and e-mail addresses.

"God forgives and forgets," Ms. Reding said in a November speech. "But the Web never does." Her proposal will be up for debate for at least a year before EU lawmakers vote on a final draft.

Some privacy specialists say there is a difference between information that is part of the public record and personal data or photos submitted to a social-networking site.

"It may be that there should be a right to have your name removed from a social network where you volunteered it in the first place," says Richard Thomas, a former British data-privacy commissioner, who is now a strategy adviser to international law firm Hunton & Williams LLP. "But that's rather different from deleting altogether a record, for example, of a crime that you committed or something embarrassing from your past."

from TorrentFreak.com, 2011-Mar-7, by "enigmax":

Fox DMCA Takedowns Order Google to Remove Fox DMCA Takedowns

Sending DMCA takedown notices in bulk has become increasingly fashionable during recent years but thanks to the database at Chilling Effects, we are able to see who is sending what to whom. As concerns mount over the amount of checking carried out before items are taken down, it appears that Fox has managed to get Google to delist DMCA complaints on Chilling Effects, which were originally sent by Fox themselves and submitted to Chilling Effects by Google.

The Chilling Effects web archive was founded in 2001 as a response to the usually secretive practice of sending so-called `takedown notices' to have content removed from the web. This, according to the activists involved, was having a `chilling effect' on free speech.

In a show of openness, big companies such as Google, Yahoo, Twitter and Digg began sending DMCA takedown notices they received to Chilling Effects. In 2010 the clearing house received more than 12,000 such cease-and-desist notices which in turn contained thousands of links to content to be removed. At times this archive makes fascinating reading, as highlighted today by occasional TorrentFreak contributor SearchFreak.

The URL http://chillingeffects.org/dmca512c/notice.cgi?NoticeID=31773 shows a DMCA notice sent by Twentieth Century Fox Film Corporation to Google which contains a list of URLs which allegedly link to the movie Avatar. Fox demanded that Google should take them all down from its index, which it appears to have done.

However, if one enters this URL into a Google search, the only results listed are where other pages refer to this URL. The actual page with this URL is nowhere to be found. Indeed, as can be seen from the screenshot below, Google has removed the result due to a DMCA takedown complaint.

Fortunately we can see what this complaint was about and who sent it by, ironically, going to ChillingEffects. The DMCA complaint in question was sent by Fox to Google and contains dozens of links its anti-piracy division has culled from the web, allegedly linking to their movie Avatar.

However, deep into the complaint Fox has demanded that Google take down links to two pages on Chilling Effects (1) (2). Their crime? Containing links to the Avatar movie.

So, let's have a little recap since this is becoming like an episode from Soap.

Chilling Effects is setup to stop the `chilling effects' of Internet censorship. Google sees this as a good thing and sends takedown requests it receives to be added to the database.

Fox sends takedown requests to Google for pages which the company says contain links to material it holds the copyright to. Those pages include those on Chilling Effects which show which links Fox wants taken down.

Google delists the Chilling Effects pages from its search engine, thus completing the circle and defeating the very reason Chilling Effects was set up for in the first place.

Fox has repeated this somewhat ridiculous `error' several times (1) (2) (3) (4) but they are not on their own. It seems that the UFC have also been trying to have ChillingEffects notices removed (1) (2) (3) (4) (5) but currently they remain listed by Google.

While the Fox takedowns happened a while ago, those sent by UFC are just a few weeks old. Let's hope that when receiving these requests in future Google simply throws them in the trash, where they belong.

from the New York Times Media Decoder blog, 2010-Nov-17, by Brian Stelter:

Senator Asks: Can't Fox and MSNBC Just Go Away?

There's a part of Senator Jay Rockefeller, Democrat of West Virginia, that would like to see Fox News Channel and MSNBC vanish.

At a Senate committee hearing about television retransmission consent on Wednesday, Mr. Rockefeller spoke broadly about the ways he believes television is ailing, and in doing so, he singled out the “endless barking” of cable news.

He said: “There's a little bug inside of me which wants to get the F.C.C. to say to Fox and to MSNBC, `Out. Off. End. Goodbye.' It would be a big favor to political discourse; to our ability to do our work here in Congress; and to the American people, to be able to talk with each other and have some faith in their government and, more importantly, in their future.”

There is little the Federal Communications Commission can say about Fox News or MSNBC since the channels are on cable, not delivered over the broadcast airwaves.

The comments about Fox News and MSNBC were not in Mr. Rockefeller's prepared remarks. In those remarks, he also said:

When it comes to developing content, our entertainment machine is too often in a race to the bottom. Even worse, our news media has all but surrendered to the forces of entertainment. Instead of a watchdog that is a check on the excesses of government and business, we have the endless barking of a 24-hour news cycle. We have journalism that is always ravenous for the next rumor, but insufficiently hungry for the facts that can nourish our democracy. As citizens, we are paying a price.

Beyond the news media, Mr. Rockefeller also questioned why consumers have to buy bundles of channels, rather than ordering the channels they want and nothing else.

“The old adage of `500 channels and nothing on' has never been so true as it is today,” he said.

from NewsMax, 2010-Nov-24:

Sharpton Wants FCC to Ban Limbaugh

Liberal firebrand Rev. Al Sharpton is telling audiences that the Federal Communications Commission should take Rush Limbaugh off the airwaves because of perceived offenses toward racial minorities and other groups.

The attack was only the latest in a series of attacks by Democrats, including President Obama, who suggest that America's political discourse is being crippled by talk radio and cable news shows.

al,sharpton,rush,limbaugh,fccSpecifically, Sharpton suggested that the FCC should establish "guidelines" or "standards" to regulate speech.

"You've got to remember that those stations that Rush Limbaugh is on and others are regulated by FCC, granted by FCC; they go back to them to get waivers," Sharpton said on his own radio show on Nov. 19th

"They go back to them to get consolidation," Sharpton continued. "They have the right to set standards. That does not impair your right to speak what you believe, but it does say that you are not going to do that to offend groups of Americans based on their race, their gender, their sexual status - none of that."

Sharpton's broadside followed a similar attack last week by Sen. Jay Rockefeller. The West Virginia Democrat went after both right-leaning Fox News and left-leaning MSNBC.

Said Rockefeller during a Senate hearing: "There's a little bug inside of me which wants to get the FCC to say to Fox and to MSNBC, 'Out. Off. End. Goodbye.' It would be a big favor to political discourse; to our ability to do our work here in Congress; and to the American people, to be able to talk with each other and have some faith in their government and, more importantly, in their future."

And earlier this year President Obama himself lamented what he described as the sad state of political discourse hampered by iPods and cable TV shows.

"And with iPods and iPads; and Xboxes and PlayStations - none of which I know how to work - information becomes a distraction, a diversion, a form of entertainment, rather than a tool of empowerment, rather than the means of emancipation," Obama said during a commencement address at Hampton University in Virginia. "So all of this is not only putting pressure on you; it's putting new pressure on our country and on our democracy."

Conservatives and civil libertarians are concerned by what they see as a growing tolerance by liberals to regulate and even censor the airwaves, especially as outlets like Fox News and shows like Limbaugh's grow ever more popular.

Limbaugh is the most listened to radio host in the nation with more than 15 million weekly visitors. Fox News continues to trounce its cable news rivals CNN and MSNBC in ratings.

"This is scary stuff," lamented an editorial in Investors Business Daily. "Strong speech has always been quintessentially American.

With the airwaves and cyberspace replacing soapboxes, it's more vital than ever to protect it against politicians favoring a new 'fairness doctrine' that would keep voters from being armed with the information and analysis that can be used to unseat them."

from the New York Times, 2011-Mar-21, printed 2011-Mar-22, p.A4, by Sharon LaFraniere and David Barboza:

China Tightens Censorship of Electronic Communications

BEIJING — If anyone wonders whether the Chinese government has tightened its grip on electronic communications since protests began engulfing the Arab world, Shakespeare may prove instructive.

A Beijing entrepreneur, discussing restaurant choices with his fiancée over their cellphones last week, quoted Queen Gertrude's response to Hamlet: “The lady doth protest too much, methinks.” The second time he said the word “protest,” her phone cut off.

He spoke English, but another caller, repeating the same phrase on Monday in Chinese over a different phone, was also cut off in midsentence.

A host of evidence over the past several weeks shows that Chinese authorities are more determined than ever to police cellphone calls, electronic messages, e-mail and access to the Internet in order to smother any hint of antigovernment sentiment. In the cat-and-mouse game that characterizes electronic communications here, analysts suggest that the cat is getting bigger, especially since revolts began to ricochet through the Middle East and North Africa, and homegrown efforts to organize protests in China began to circulate on the Internet about a month ago.

“The hard-liners have won the field, and now we are seeing exactly how they want to run the place,” said Russell Leigh Moses, a Beijing analyst of China's leadership. “I think the gloves are coming off.”

On Sunday, Google accused the Chinese government of disrupting its Gmail service in the country and making it appear as if technical problems at Google — not government intervention — were to blame.

Several popular virtual private-network services, or V.P.N.'s, designed to evade the government's computerized censors, have been crippled. This has prompted an outcry from users as young as ninth graders with school research projects and sent them on a frustrating search for replacements that can pierce the so-called Great Firewall, a menu of direct censorship and “opinion guidance” that restricts what Internet users can read or write online. V.P.N.'s are popular with China's huge expatriate community and Chinese entrepreneurs, researchers and scholars who expect to use the Internet freely.

In an apology to customers in China for interrupted service, WiTopia, a V.P.N. provider, cited “increased blocking attempts.” No perpetrator was identified.

Beyond these problems, anecdotal evidence suggests that the government's computers, which intercept incoming data and compare it with an ever-changing list of banned keywords or Web sites, are shutting out more information. The motive is often obvious: For six months or more, the censors have prevented Google searches of the English word “freedom.”

But other terms or Web sites are suddenly or sporadically blocked for reasons no ordinary user can fathom. One Beijing technology consultant, who asked not to be identified for fear of retribution against his company, said that for several days last week he could not visit the Web site for the Hong Kong Stock Exchange without a proxy. LinkedIn, a networking platform, was blocked for a day during the height of government concerns over Internet-based calls for protests in Chinese cities a few weeks ago, he said.

Hu Yong, a media professor at Peking University, said government censors were constantly spotting and reacting to new perceived threats. “The technology is improving and the range of sensitive terms is expanding because the depth and breadth of things they must manage just keeps on growing,” Mr. Hu said.

China's censorship machine has been operating ever more efficiently since mid-2008, and restrictions once viewed as temporary — like bans on Facebook, YouTube and Twitter — are now considered permanent. Government-friendly alternatives have sprung and developed a following.

Few analysts believe that the government will loosen controls any time soon, with events it considers politically sensitive swamping the calendar, including a turnover in the Communist Party's top leadership next year.

“It has been double the guard, and double the guard, and you never hear proclamations about things being relaxed,” said Duncan Clark, chairman of BDA China, an investment and strategy consultancy based in Beijing, and a 17-year resident of China. “We have never seen this level of control in the time I have been here, and I have been here since the beginning of the Internet.”

How far China will clamp down on electronic communications is unclear. “There's a lot more they can do, but they've been holding back,” said Bill Bishop, a Internet expert based in Beijing. Some analysts suggest that officials are exploring just how much inconvenience the Chinese are willing to tolerate. While sentiment is hard to gauge, a certain segment of society rejects censorship.

For many users, an inoperable V.P.N. is an inconvenience, not a crisis. But Internet consultants said interfering with an e-mail service on which people depend every day is more serious. “How people respond is going to be more intense, more visceral,” one consultant said.

Google began receiving complaints from Gmail users and its own employees in China about a month ago, around the time anonymous Internet posts urged people unhappy with the government to gather every Sunday. Some Gmail users found their service disconnected when they tried to send or save messages.

Engineers determined that there were no technical difficulties on Google's end, Google said; rather, the hand of the Chinese government was at work. China's Foreign Ministry did not respond Monday to calls or faxed questions about Google's statement.

Disrupting Web sites and Internet connections is a standard tactic in dealing with companies that fall out of government favor. Mark Seiden, an Internet consultant, said Chinese officials typically left the companies and users to guess the reason.

In the Google case, an article on the Web site of People's Daily, the Communist Party's official publication, offered a strong hint. The March 4 article, attributed to a netizen, called Google a tool of the United States government. Like Facebook and Twitter, the article said, Google has “played a role in manufacturing social disorder” and sought to involve itself in other nations' politics.

China has treated Google as a threat for some time. Last year, Google closed its search service and redirected Chinese users to Google's Hong Kong site after the company said China was behind a cyberattack aimed partly at Gmail accounts.

But Mr. Moses, the Beijing analyst, said the latest clampdown on electronic communications went further. “The model for this government is that every day is a new challenge and a new opportunity to show the strength of the state here,” he said. “There is clear confidence in the capability of the political authorities to maintain order.”

Jonathan Ansfield contributed reporting from Beijing, and Claire Cain Miller from San Francisco. Jonathan Kaiman and Li Bibo contributed research from Beijing.

from the New York Times, 2010-Nov-26, printed 2010-Nov-27, p.B2, by Ben Sisario:

U.S. Shuts Down Web Sites in Piracy Crackdown

In what appears to be the latest phase of a far-reaching federal crackdown on online piracy of music and movies, the Web addresses of a number of sites that facilitate illegal file-sharing were seized this week by Immigration and Customs Enforcement, a division of the Department of Homeland Security.

By Friday morning, visiting the addresses of a handful of sites that either hosted unauthorized copies of films and music or allowed users to search for them elsewhere on the Internet produced a notice that said, in part: “This domain name has been seized by ICE — Homeland Security Investigations, pursuant to a seizure warrant issued by a United States District Court.”

In taking over the sites’ domain names, or Web addresses, the government effectively redirected any visitors to its own takedown notice.

“ICE office of Homeland Security Investigations executed court-ordered seizure warrants against a number of domain names,” said Cori W. Bassett, a spokeswoman for ICE, in a statement. “As this is an ongoing investigation, there are no additional details available at this time.”

Among the domains seized were torrent-finder.com and those of three sites that specialized in music: onsmash.com, rapgodfathers.com and dajaz1.com. TorrentFreak, a news blog about BitTorrent — a file-sharing system that has tended to elude the authorities because it is decentralized — said that at least 70 other addresses had been seized, most belonging to sites related to counterfeit clothing, DVDs and other goods.

On Friday, torrent users were already discussing new sites that had popped up to serve them.

The takedown notices are similar to those that went up on nine sites in June as part of an initiative against Internet counterfeiting and piracy that the agency called Operation in Our Sites.

In announcing that operation, John T. Morton, the assistant secretary of ICE, and representatives of the Motion Picture Association of America called it a long-term effort against online piracy, and said that suspected criminals would be pursued anywhere in the world. “American business is under assault from counterfeiters and pirates every day, seven days a week,” Mr. Morton said. “Criminals are stealing American ideas and products and distributing them over the Internet.”

Ms. Bassett would not comment on whether the latest raids were part of Operation in Our Sites, and a spokesman for the Recording Industry Association of America, which represents the major recording labels, declined to answer questions.

The new seizures also come as a new bill, the Combating Online Infringements and Counterfeits Act, is making its way through Congress. The bill, which was approved by a Senate committee last week, would allow the government to shut down sites that are “dedicated to infringing activities.”

Critics have said the law is too broad, and could affect sites that have nothing to do with file-sharing; the Electronic Frontier Foundation, an online civil liberties group, has called it “an Internet censorship bill.” Waleed A. GadElKareem, who operated Torrent Finder from Egypt, said his site was shut down on Thursday without any notice.

“My Web site does not even host any torrents or direct-link to them,” Mr. GadElKareem wrote in an e-mail, adding that he only links to other sites. “I am sure something is wrong!”

He added that his server was up and running at a different address.

from the Washington Examiner, 2010-Sep-10, by Michael Barone:

Gangster government stifles criticism of Obamacare

"There will be zero tolerance for this type of misinformation and unjustified rate increases."

That sounds like a stern headmistress dressing down some sophomores who have been misbehaving. But it's actually from a letter sent Thursday from Health and Human Services Secretary Kathleen Sebelius to Karen Ignagni, president of America's Health Insurance Plans -- the chief lobbyist for private health insurance companies.

Secretary Sebelius objects to claims by health insurers that they are raising premiums because of increased costs imposed by the Obamacare law passed by Congress last March.

She acknowledges that many of the law's "key protections" take effect later this month and does not deny that these impose additional costs on insurers. But she says that "according to our analysis and those of some industry and academic experts, any potential premium impact . . . will be minimal."

Well, that's reassuring. Er, except that if that's the conclusion of "some" industry and academic experts, it's presumably not the conclusion of all industry and academic experts, or the secretary would have said so.

Sebelius also argues that "any premium increases will be moderated by out-of-pocket savings resulting from the law." But she's pretty vague about the numbers -- "up to $1 billion in 2013." Anyone who watches TV ads knows that "up to" can mean zero.

As Time magazine's Karen Pickert points out, Sebelius ignores the fact that individual insurance plans cover different types of populations. So that government and "some" industry and academic experts think the new law will justify increases averaging 1 or 2 percent, they could justify much larger increases for certain plans.

Or as Ignagni, the recipient of the letter, says, "It's a basic law of economics that additional benefits incur additional costs."

But Sebelius has "zero tolerance" for that kind of thing. She promises to issue regulations to require "state or federal review of all potentially unreasonable rate increases" (which would presumably mean all rate increases).

And there's a threat. "We will also keep track of insurers with a record of unjustified rate increases: Those plans may be excluded from health insurance Exchanges in 2014."

That's a significant date, the first year in which state insurance exchanges are slated to get a monopoly on the issuance of individual health insurance policies. Sebelius is threatening to put health insurers out of business in a substantial portion of the market if they state that Obamacare is boosting their costs.

"Congress shall make no law," reads the First Amendment, "abridging the freedom of speech, or of the press."

Sebelius' approach is different: "zero tolerance" for dissent.

The threat to use government regulation to destroy or harm someone's business because they disagree with government officials is thuggery. Like the Obama administration's transfer of money from Chrysler bondholders to its political allies in the United Auto Workers, it is a form of gangster government.

"The rule of law, or the rule of men (women)?" economist Tyler Cowen asks on his marginalrevolution.com blog. As he notes, "Nowhere is it stated that these rate hikes are against the law (even if you think they should be), nor can this 'misinformation' be against the law."

According to Politico, not a single Democratic candidate for Congress has run an ad since last April that makes any positive reference to Obamacare. The First Amendment gives candidates the right to talk -- or not talk -- about any issue they want.

But that is not enough for Sebelius and the Obama administration. They want to stamp out negative speech about Obamacare. "Zero tolerance" means they are ready to use the powers of government to threaten economic harm on those who dissent.

The closing paragraph of Sebelius' letter to AHIP's Karen Ignagni gives the game away. "We worked hard to change the system to help consumers." This is a reminder that the administration alternatively collaborated with and criticized Ignagni's organization. We roughed you up a little but we eventually made a deal.

The secretary goes on: "It is my hope we can work together to stop misinformation and misleading marketing from the start." In other words, shut your members up and play team ball -- or my guys with the baseball bats and tommy guns are going to get busy. As Tyler Cowen puts it, "worse than I had been expecting."

Michael Barone,The Examiner's senior political analyst, can be contacted at mbarone@washingtonexaminer.com. His column appears Wednesday and Sunday, and his stories and blog posts appear on ExaminerPolitics.com.

from the Wall Street Journal, 2010-Oct-23, by Seth Lipsky:

The Real Case for Defunding NPR
My quarrel with government subsidies is that they cast a chill over the markets in which entrepreneurs seek to raise capital for highbrow journalism.

At least one good thing has come out of National Public Radio's firing of Juan Williams. NPR's vice president had barely hung up the phone after informing Mr. Williams that he was being terminated—and refusing to meet with him, a long-time colleague, to discuss the matter—when the calls began for Congress to cut off funding for NPR entirely.

Bill O'Reilly, on whose broadcast Mr. Williams uttered the words that cost him his NPR job—he spoke of his fleeting fears when he gets on a plane and sees a person dressed in Muslim garb—called for "the immediate suspension of every taxpayer dollar going into NPR." Sarah Palin issued a Facebook posting called "Juan Williams: Going Rogue," in which she wrote: "If NPR is unable to tolerate an honest debate about an issue as important as Islamic terrorism, then it's time for 'National Public Radio' to become 'National Private Radio.'"

Then South Carolina Republican Sen. Jim DeMint issued a statement saying that he would introduce a bill to end federal funding of public broadcasting. Most significantly, the man who may be the next House Speaker, John Boehner, told National Review Online: "We need to face facts—our government is broke. Washington is borrowing 37 cents of every dollar it spends from our kids and grandkids. Given that, I think it's reasonable to ask why Congress is spending taxpayers' money to support a left-wing radio network—and in the wake of Juan Williams' firing, it's clearer than ever that's what NPR is."

All these sentiments strike me as eminently reasonable, but my own view of the contretemps is slightly different. I have no quarrel with NPR being a left-of-center news source or with the authority of NPR's president, Vivian Schiller, to fire Mr. Williams. The First Amendment right to decide what is aired on NPR—that is, the right that Congress is prohibited by the First Amendment from abridging—belongs not to the talent that wants to go on the air but to the owner of the radio network that airs them. The government and its subsidy receivers, as far as I'm concerned, can be as left-wing as the voters will put up with.

My quarrel with government subsidies to NPR—via grants from the federally funded Corporation for Public Broadcasting—is that they cast a chill over the markets in which private entrepreneurs seek to raise capital for what might be called highbrow journalism. It is hard to quantify this. But it is a conclusion that I have reached after more than two decades spent seeking to raise capital for privately-owned publications competing in this arena.

More than once I have been interrupted, while singing the song of quality journalism to a potential investor, to be asked, "Isn't this already being done by public broadcasting?"

In the instances when that or similar questions were put to me, I was not even seeking to raise capital for broadcasting but rather for small newspapers—the Jewish Forward, in the 1990s, and then the New York Sun. And I wasn't entirely hapless. Many millions of dollars were eventually invested in the two newspapers, and any failures they met were not the fault of the government, but were entirely my own.

I have often wondered, though, what effect the government subsidies have on the broader world, in broadcast and print, of quality journalism. I recognize that the percentage of NPR's funds coming from the taxpayers is but 1% or 2%, or between $1.5 million and $3 million. But whatever the scale, seed capital from a credible investor is an enormous help to any effort, and my own experience is that it would have been easier to raise capital had there been no government-funded competition.

These are questions for Congress to explore when it looks into whether to continue funding for NPR. It's been nearly two generations now since President Lyndon Johnson signed the Public Broadcasting Act of 1967. It's not clear to me, incidentally, what constitutionally enumerated power Congress was relying on to pass such an act. But leave that question aside. What has been the impact on the quality of privately funded journalism of the octopus that government funding of broadcasting helped create?

This question is all the more newsworthy because of the crisis that has overtaken journalism. Print newspaper circulation is, with some exceptions, down. The big television networks are, for the most part, in retreat. Enormous numbers of promising efforts are underway on the Internet. But the jury is out on whether they will find a widely applicable business model.

A small chorus is tuning up to demand not that the government get out of the way but that it actually step up its funding of the press. Last year a report—written by a former editor of the Washington Post, Leonard Downey, and issued under the auspices of the Columbia Journalism School—called for siphoning funds from the Federal Communications Commission's surcharge on phone bills into a Fund for Local News that would underwrite "worthy initiatives in local news reporting."

The president of Columbia University, Lee Bollinger, has emerged as a leading voice for pouring more government money into news gathering. How badly would that chill the capital markets for those who dream of privately funded news gathering, completely independent of oversight by Congress? My guess is that the effect would be a great deal more significant than those who have not been out trying to raise such capital might imagine.

That would be entirely consonant with the school of economics known as public choice theory, which views the government as having its own economic interests and the state as not a protector but a competitor of private enterprise.

Mr. Williams, a distinguished figure, has already landed on his feet, with a multi-year contract and an expanded role at Fox News. When the next Congress takes up the NPR question, I hope it considers the lesser lights who have to go out to raise capital to set up their own platforms. Who is going to give them a leg up if they are having to compete with the government of the United States?

Mr. Lipsky is founding editor of the New York Sun.

from the Wall Street Journal, 2010-Oct-25, by L. Gordon Crovitz:

The Feds vs. Fruit Juice
The FTC goes to war against those who promote the health benefits of the pomegranate.

These days, pomegranates are far down the pecking order of fruits, though some think it was a pomegranate, not an apple, which Eve offered to Adam. Fewer than 4% of Americans had tried the fruit before 2002, when marketing mavens Lynda and Stewart Resnick launched the 100% fruit juice they call POM Wonderful. It's since become a top seller, in its curvy hourglass-shaped bottle.

The Resnicks, who also owns the Teleflora and FIJI water businesses, invested in orchards in California in the 1980s. They've also commissioned research on the anti-oxidant properties of pomegranates—too much research, according to a Federal Trade Commission (FTC) complaint last month alleging deceptive advertising. "Any consumer who sees POM Wonderful products as a silver bullet against all diseases has been misled," said David Vladeck, who runs the agency's Bureau of Consumer Protection.

This is hyberbole—no POM ads claim the pomegranate can cure "all diseases." But the complaint is a stalking horse for the agency's more radical position: that health-food companies now need to get Food and Drug Administration approval for scientific claims, similar to the process pharmaceutical companies follow for drugs.

Ms. Resnick told me last week that the FTC complaint is "a 20th-century idea in a 21st-century world." She says that "there is so much information available that consumers can make up their own minds. They are smarter than the FTC gives them credit for."

POM has sued the FTC, alleging it went beyond its power to monitor deceptive advertising by requiring approval of the scientific accuracy of claims about food. The suit argues that the agency has no power to require "prior FDA approval regardless of whether or not the claims are true or supported by competent, reliable scientific evidence."

Marketing for POM is not a snake-oil pitch. For interested consumers, the product's website provides links to 55 studies, including 16 clinical trials, supported by the company, which hedges its claims by saying "preliminary results have been encouraging and many additional research studies are in progress."

Consumers who want to learn more about the research on the site get this pop-up warning: "You are now leaving the POM Wonderful website. The completed research and studies contained on the following website are provided as a service to the public. They are not intended to make express or implied health or disease claims, as POM Wonderful products are foods, not drugs. They also do not constitute labeling or advertising for any POM Wonderful product. Instead, they are intended solely for general educational and informational purposes."

Ms. Resnick says it's odd that regulators prefer consumers have less information. "One of the points of contention is that we should not be able to talk about our research at all. What motivates natural foods companies to do any research if you can't talk about it?" she says. "It's crazy." Even the advertisements that the FTC included in its complaint have caveats for consumers, with references to "preliminary medical studies" and "hopeful results."

The outspoken Ms. Resnick, who wrote a book last year about marketing called "Rubies in the Orchard," says she'll fight the FTC. "One of the beauties of being privately held is that you can make decisions that do not look so good today but that build your tomorrow," she says. For publicly traded companies with short-term pressures from analysts, "even if you're right you have to settle."

"If we were going to lie," Ms. Resnick says with a laugh, "we'd do what some supplement companies do, by spending a couple of hundred thousand dollars on a silly research project. Why would we spend $35 million on research?" She remains confident that research will show that the benefits of pomegranates include helping reduce heart disease and prostate cancer.

In the meantime, POM recently launched a series of television commercials that avoids scientific claims. One features a scantily clad Eve and another shows a muscled warrior, both with bottles of POM. The information-suppressing FTC is happier with advertising based on sex appeal than advertising based on science.

A smarter approach would be to encourage companies to support strong research, disclose the results and let consumers weigh the findings. The worst thing that can happen with the pomegranate is that people may decide a fruit drink is healthier than, say, a flavored soda.

from the Associated Press, 2010-Oct-14, by Tini Tran, with Min Lee in Hong Kong contributing:

China says backers of Nobel winner support crime

BEIJING — Awarding the Nobel Peace Prize to imprisoned dissident Liu Xiabo encouraged crime in China, the government said Thursday, while telling his supporters to stop interfering in his case.

China has been issuing angry statements and rejecting calls for Liu's release since the Norwegian Nobel Committee honored him Oct. 8 for his more than two decades of advocacy of human rights and peaceful democratic change that started with the demonstrations at Beijing's Tiananmen Square in 1989.

The 54-year-old literary critic is serving an 11-year prison term after being convicted of inciting subversion for his role in writing an influential 2008 manifesto for political reform.

"Liu Xiaobo is a convicted criminal for violating the laws of China. Awarding the Nobel Peace Prize to such a person is equivalent to encouraging crimes in China. It also constitutes a violation of China's judicial sovereignty," Foreign Ministry spokesman Ma Zhaoxu said.

Numerous countries, including the United States, have asked for Liu's release. On Thursday, Japanese Prime Minister Naoto Kan guardedly said it would be "desirable" for China to free Liu, but stopped short of specifically calling for the imprisoned dissident's release.

"I wonder what their true intention is. Is it because they resent China's development path and hate China's political system?" Ma said at a regular news conference.

He accused the Norwegian Nobel Committee of being biased and said "Western governments had no right to interfere" in China.

Liu's winning of the peace prize has caused a diplomatic rift between China and Norway, even though the Norwegian government is not involved in the selection of the winner.

China has canceled a string of meetings with Norwegian officials, and Oslo has pushed Beijing to lift restrictions imposed on Liu's wife, Liu Xia.

The country's state-controlled media have attacked Liu Xiaobo's supporters, with the Global Times issuing an editorial Thursday railing against "the endless ideological wars against China."

It said the peace prize was part of a "concerto supplemented by various NGOs, economic identities and international organizations orchestrated by the developed countries" that hoped to press China to surrender its economic interests.

In the semiautonomous Chinese territory Hong Kong, several pro-democracy lawmakers showed solidarity with Liu on Thursday, displaying his picture in the legislature and wearing headbands inscribed with messages calling for his release.

Lawmaker Leung Kwok-hung asked Hong Kong Chief Executive Donald Tsang to comment on Liu's Nobel award, but the Beijing-backed official declined to do so.

"I've never heard of a leader declining comment during question-and-answer time," Leung retorted. Later, another opposition lawmaker, Albert Chan, held up Liu's portrait as he berated Tsang for dodging the question. Both legislators were kicked out for disrupting order.

The former British colony, governed under a separate system, enjoys freedom of speech, and activists have held several protests at the central Chinese government's liaison office in Hong Kong.

from Reuters, 2011-Jul-4, by Jason Subler and Georgina Prodhan, with additional reporting by Melanie Lee and Samuel Shen and editing by Matt Driskill and Louise Heavens:

UPDATE 4-Baidu picks Microsoft for English search

SHANGHAI/LONDON - China's Baidu is to partner with Microsoft for English-language search, giving the U.S. software giant a chance to expand its tiny Web presence in a market Google has stepped back from, and helping the Chinese company's international ambitions.

The tie-up will direct English searches from Baidu to Microsoft's Bing, which will deliver the results back to Baidu's Web pages, Baidu said in an emailed statement on Monday.

Baidu has about 80 percent of the search market in China -- a nation with almost half a billion Internet users and still only about 30 percent penetration -- after Google left mainland China in a high-profile fallout with Beijing over censorship.

Bing -- which filters out results in China relating to controversial subjects, such as political dissidents, Taiwan or pornography, to be able to operate in the country -- has a negligible share of the market, while Google has nearly 20 percent counting visits to its offshore sites.

Baidu spokesman Kaiser Kuo said Bing was not submitting to any further censorship or restrictions on its English search as a result of the deal "than they already do". Microsoft had no immediate comment beyond confirming the partnership.

Google is losing share to Baidu but is still number two in China. Worldwide, Google runs about 84 percent of Web searches, followed by Yahoo with 6 percent and Bing with 4 percent, according to analytics firm Net Applications.

"Google has potentially shot itself in the foot when it comes to cooperations in the Chinese market," said Daniel Knapp, analyst at media industry research firm Screen Digest.

"Chinese local players like Baidu would be very wary about striking up a relationship with Google, a rogue authority in the eyes of the Chinese authorities. Microsoft has always been very diffident -- for Baidu it's much safer," he added.

The new tie-up, due to be launched later this year, builds on existing cooperation between Baidu and Bing on mobile platforms and page results.

Baidu is beginning to diversify from its core search business to compete in the fast-growing segments of mobile and social networking. It also has a Japanese search service that is currently loss-making.

Search engine marketing company Greenlight said it saw the deal as positive for both sides, and could envisage the new partners dominating the Chinese search-advertising market.

"Whilst it represents an opportunity for Bing to make more money from the Chinese market, Baidu gets what it needs to expand overseas when it is ready to do so," said Greenlight Chief Operating Officer Andreas Pouros.

"Microsoft has entered the Chinese market slowly and has made some friends, in a way that the Chinese government will have no issue with. This should leave Baidu and Bing to control the Chinese search ad market without too much difficulty."

Baidu made $1.2 billion in online marketing revenues last year, up 78 percent from 2009. Microsoft's total online advertising revenue in fiscal 2010, including a small contribution from Bing, was $1.9 billion.

Some analysts were sceptical over how much demand there would be for English search on Baidu.

"It's a good thing, but I see very minimal impact for Baidu. I don't see a lot English keywords going through Baidu. It goes through Google," said Wallace Cheung, a Hong Kong-based analyst at Credit Suisse.

from AOL News, 2010-Jul-9, by Bruce Schneier:

Opinion: 3 Reasons to Kill the Internet Kill Switch Idea

Last month, Sen. Joe Lieberman, I-Conn., introduced a bill that might -- we're not really sure -- give the president the authority to shut down all or portions of the Internet in the event of an emergency. It's not a new idea. Sens. Jay Rockefeller, D-W.Va., and Olympia Snowe, R-Maine, proposed the same thing last year, and some argue that the president can already do something like this. If this or a similar bill ever passes, the details will change considerably and repeatedly. So let's talk about the idea of an Internet kill switch in general.

It's a bad one.

Security is always a trade-off: costs versus benefits. So the first question to ask is: What are the benefits? There is only one possible use of this sort of capability, and that is in the face of a warfare-caliber enemy attack. It's the primary reason lawmakers are considering giving the president a kill switch. They know that shutting off the Internet, or even isolating the U.S. from the rest of the world, would cause damage, but they envision a scenario where not doing so would cause even more.

That reasoning is based on several flawed assumptions.

Internet Without Borders

The first flawed assumption is that cyberspace has traditional borders, and we could somehow isolate ourselves from the rest of the world using an electronic Maginot Line. We can't.

Yes, we can cut off almost all international connectivity, but there are lots of ways to get out onto the Internet: satellite phones, obscure ISPs in Canada and Mexico, long-distance phone calls to Asia.

The Internet is the largest communications system mankind has ever created, and it works because it is distributed. There is no central authority. No nation is in charge. Plugging all the holes isn't possible.

Even if the president ordered all U.S. Internet companies to block, say, all packets coming from China, or restrict non-military communications, or just shut down access in the greater New York area, it wouldn't work. You can't figure out what packets do just by looking at them; if you could, defending against worms and viruses would be much easier.

And packets that come with return addresses are easy to spoof. Remember the cyberattack July 4, 2009, that probably came from North Korea, but might have come from England, or maybe Florida? On the Internet, disguising traffic is easy. And foreign cyberattackers could always have dial-up accounts via U.S. phone numbers and make long-distance calls to do their misdeeds.

Unpredictable Side Effects

The second flawed assumption is that we can predict the effects of such a shutdown. The Internet is the most complex machine mankind has ever built, and shutting down portions of it would have all sorts of unforeseen ancillary effects.

Would ATMs work? What about the stock exchanges? Which emergency services would fail? Would trucks and trains be able to route their cargo? Would airlines be able to route their passengers? How much of the military's logistical system would fail?

That's to say nothing of the variety of corporations that rely on the Internet to function, let alone the millions of Americans who would need to use it to communicate with their loved ones in a time of crisis.

Even worse, these effects would spill over internationally. The Internet is international in complex and surprising ways, and it would be impossible to ensure that the effects of a shutdown stayed domestic and didn't cause similar disasters in countries we're friendly with.

Security Flaws

The third flawed assumption is that we could build this capability securely. We can't.

Once we engineered a selective shutdown switch into the Internet, and implemented a way to do what Internet engineers have spent decades making sure never happens, we would have created an enormous security vulnerability. We would make the job of any would-be terrorist intent on bringing down the Internet much easier.

Computer and network security is hard, and every Internet system we've ever created has security vulnerabilities. It would be folly to think this one wouldn't as well. And given how unlikely the risk is, any actual shutdown would be far more likely to be a result of an unfortunate error or a malicious hacker than of a presidential order.

But the main problem with an Internet kill switch is that it's too coarse a hammer.

Yes, the bad guys use the Internet to communicate, and they can use it to attack us. But the good guys use it, too, and the good guys far outnumber the bad guys.

Shutting the Internet down, either the whole thing or just a part of it, even in the face of a foreign military attack would do far more damage than it could possibly prevent. And it would hurt others whom we don't want to hurt.

For years we've been bombarded with scare stories about terrorists wanting to shut the Internet down. They're mostly fairy tales, but they're scary precisely because the Internet is so critical to so many things.

Why would we want to terrorize our own population by doing exactly what we don't want anyone else to do? And a national emergency is precisely the worst time to do it.

Just implementing the capability would be very expensive; I would rather see that money going toward securing our nation's critical infrastructure from attack.

Defending his proposal, Sen. Lieberman pointed out that China has this capability. It's debatable whether or not it actually does, but it's actively pursuing the capability because the country cares less about its citizens.

Here in the U.S., it is both wrong and dangerous to give the president the power and ability to commit Internet suicide and terrorize Americans in this way.

Bruce Schneier is a security technologist and author of "Beyond Fear: Thinking Sensibly About Security in an Uncertain World." You can read more of his writing at www.schneier.com.

from TechCrunch.com, 2010-Aug-7, by Vivek Wadhwa:

Why We Need To Abolish Software Patents

During my tech days, I co-authored four software patents. Each cost my startup about $15,000—which seemed like a fortune in those days. I didn't really expect these to give me any advantage; after all if my competitors had half a brain, they would simply learn all they could from my patent filing and do things better. But I needed to raise financing, and VCs wouldn't give me the time of day unless I could tell a convincing story about how we, alone, owned the intellectual property for our secret sauce. We got the financing, and the plaques of the patents looked great in our reception area, so the expense was worth it. But there was definitely no competitive advantage.

Patents make a lot of sense in many industries; they are needed to protect the designs of industrial equipment, pharmaceutical formulations, biotechnology products and methods, biomedical devices, consumer products (toothpaste, shampoo, contact lenses, etc.), advanced materials & composites, and of course, widgets (lighting fixtures & elements, batteries, toys, tools, etc.). But in software these are just nuclear weapons in an arms race. They don't foster innovation, they inhibit it. That's because things change rapidly in this industry. Speed and technological obsolescence are the only protections that matter. Fledgling startups have to worry more about some big player or patent troll pulling out a big gun and bankrupting them with a frivolous lawsuit than they do about someone stealing their ideas.

New research by Berkeley professors Stuart J.H. Graham, Robert P. Merges, Pam Samuelson, and Ted Sichelman highlights the extent of this problem. They surveyed 1332 early-stage technology companies founded since 1998, of which 700 were in the software/internet space. Here is what they found:

Pam Samuelson, one of the co-authors of the report, says that her conclusion from the research is that the world may be better off without software patents; that the biggest beneficiaries of software patents are patent lawyers and patent trolls, not entrepreneurs.

Meanwhile, the U.S. patent system is clogged and dysfunctional. John Schmid, of the Milwaukee Journal Sentinel, analyzed U.S. Patent and Trademark Office data and found that as of 2009, there were more than 1.2 million patents awaiting approval—nearly triple the number a decade earlier. In 2009, the patent agency took an average 3.5 years to deal with a patent request—more than twice the 18-month target. What is most alarming is that the patent office automatically publishes applications on line after the 18 months—outlining each innovation in detail regardless of whether an examiner has begun considering the application. Competitors anywhere in the world can steal ideas. This effectively undermines the entire purpose of the patent system: the patent office is charging applicants serious money for giving it the privilege of giving away their commercial secrets.

To make matters worse, the patent office is rejecting applications at an unprecedented pace—with fewer than 50% being approved, compared to 70% a decade ago. One estimate is that this costs entrepreneurs at least $6.4 billion each year in “forgone innovation”: legitimate technologies that cannot get licensed and start-ups that cannot get funded. So the agency charged with protecting U.S. intellectual property and aiding innovation is often doing the exact opposite.

Brad Feld, managing director at Foundry Group, says that we should simply abolish software patents. He believes that the system has spun completely out of control, with the vast majority of filings not passing the fundamental tests of a patent (that it be non-obvious, novel, and unique innovation). Copyright and trade secrets have historically been the primary protection mechanisms for software intellectual property, and they are still the best solutions. Feld notes that technology companies are now forced to divert huge resources to defend themselves from patent trolls rather than advance their innovations.

The founders of the United States considered intellectual property worthy of a special place in the Constitution—“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” They had the concept right, but they surely never conceived of Amazon.com patenting clicks in an online shopping cart and methods for having an online discussion, or Microsoft patenting methods for activating double click applications with a single click. It's time to do as Brad Feld suggests: simply abolish these abominations.

Editor's note: Guest writer Vivek Wadhwa is an entrepreneur turned academic. He is a Visiting Scholar at the School of Information at UC-Berkeley, Senior Research Associate at Harvard Law School and Director of Research at the Center for Entrepreneurship and Research Commercialization at Duke University. You can follow him on Twitter at @vwadhwa and find his research at www.wadhwa.com.

from the New York Times, 2010-Aug-27, printed 2010-Aug-28, p.B2, by Steve Lohr:

Paul Allen's Company Files Broad Lawsuit Over Patents

A company owned by Paul Allen, co-founder of Microsoft, filed suit on Friday against Google, Apple and nine other companies, contending that their online navigation and viewing technology illegally uses patented inventions created by Mr. Allen's research firm, which is now defunct.

The four patents cited in the suit cover research work done by Interval Research, a Silicon Valley research organization that was founded in 1992 and shut down in 2000. It was financed by Mr. Allen and led by David E. Liddle, a former research scientist at Xerox Palo Alto Research Center in the 1970s. What remains is a licensing arm, Interval Licensing, which is bringing the suit.

The patents, issued from 2000 to 2004, appear to be broad in their application to Internet commerce and Web viewing. They include news alerts, drawing a viewer's attention to a display device and browsing technology for video, sound and text.

The strength of the patent claims, experts say, is not clear. They were developed by a company that invested heavily in research, not merely a patent-buying and licensing firm. But the years when these patents were granted were “deeply problematic” for the United States Patent and Trademark Office, said Josh Lerner, an intellectual property expert at the Harvard Business School.

It was a time when the patent office was inundated with business method and process patents, Mr. Lerner said. These kinds of patents on ideas, he added, were often not fundamentally new, even if they had not previously been patented.

The move by Mr. Allen's company, Mr. Lerner noted, underlines a growing trend in the patent world. “More and more organizations, companies and universities, not just individual inventors, are seeking to monetize their intellectual property, and they are not afraid to go to court to do that,” he said.

Google, in a statement in response to the suit, observed the trend and criticized the drift. “Innovation — not litigation — is the way to bring to market the kinds of products and services that benefit millions of people around the world,” the company said.

The complaint says that Interval Research “served as an outside collaborator to and provided research funding for Sergey Brin and Larry Page's research that resulted in Google,” referring to the search company's founders.

One exhibit in the case is a screenshot from Google's Web page in 1998, “About Google!” It lists Interval Research as one of two outside collaborators — the I.B.M. Almaden Research Center was the other — and as one of four sources of research money; the other three were government agencies.

Besides Google and Apple, the other defendants are AOL, eBay, Facebook, Netflix, Office Depot, OfficeMax, Staples, Yahoo and YouTube.

A spokesman for Mr. Allen, David Postman, said the suit was a step in an effort that had been under way for about four years to try to make money from the intellectual property developed by Interval Research. The research firm, he said, produced nearly 300 patents. Some have been sold, and some have been licensed.

The complaint against the 11 companies is the first suit by Interval Licensing. Interval had held talks with the companies, Mr. Postman said.

“It became clear that these companies were using the technology covered by these patents,” he said. “Interval took this action to protect its investment and intellectual property.”

Today, Mr. Liddle is a partner in a Silicon Valley venture capital firm, U.S. Venture Partners, and he is also on the board of The New York Times Company. He declined to comment on the suit.

from the Wall Street Journal, 2010-Sep-1, by Dionne Searcey:

New Breed of Patent Claim Bedevils Product Makers

Raymond E. Stauffer was shopping at a New Jersey mall when he noticed something peculiar about the bow ties on display at Brooks Brothers: They were labeled with old patent numbers.

Mr. Stauffer, who calls himself a "sharp-dressed man," also happens to be a patent lawyer. He sued Brooks Brothers Inc. in federal court, claiming it broke the law by marking its adjustable bow ties with patents that expired in the 1950s.

He figured the retailer would have to pay a nominal amount for violating a law that bars companies from marking products with erroneous patent numbers.

A federal appellate court ruling on Tuesday breathed new life into his case by upholding his right to sue—and could pave the way for hundreds of similar suits against major companies to move forward. A separate ruling in December raised the stakes in such cases, potentially exposing product makers to huge liabilities.

Already, lawsuits claiming false patent markings have been brought against companies that make turkey pop-up timers, toilet plungers, fabric softener, flashlights, staplers, Frisbees, kites, telecommunications equipment, bubble gum and a toy called The Original Wooly Willy.

Defendants include companies such as Procter & Gamble, Bayer Healthcare LLC, Cisco Systems, Scientific-Atlanta, Merck & Co., Pfizer Inc., 3M Co., DirecTV, Medtronic Inc. Merck said no one was available to comment. The other companies didn't respond to requests for comment.

Marking a tube of toothpaste or paper cup with a patent that is out of date or doesn't exist has been against the law for years. It is considered anticompetitive. Until late last year, the most a violator had to worry about was paying a $500 penalty for misleading the public.

But in December, the Court of Appeals for the Federal Circuit in Washington ruled that defendants could be held responsible for up to $500 per offense.

Lawyers for product manufacturers now fear clients are liable for up to $500 for every tube of mascara or box of garbage bags marked with an expired patent—an error that turns out to be quite common.

In recent months, would-be plaintiffs have been fanning out across retail stores and the Internet searching for expired patent numbers on everything from toothpaste to toilet plungers.

"It absolutely is a startling development in the interpretation of that provision," says Michael C. Smith, a defense lawyer from Marshall, Texas, who is representing Wal-Mart Stores Inc. and mouse-trap maker Kness Mfg. Co. in suits claiming false patent marking. "A lot of these products always have patent numbers on them, and it never occurred to anyone to take them off."

Mr. Smith, who declined to discuss the lawsuits he is handling, says he generally advises clients: "Now is a good time for you to have somebody run down your products" and check their patent numbers.

Patents have a life span of 17 or 20 years. To keep them valid, companies must pay maintenance fees every four years. Once they expire, the holder is expected to remove the numbers from products.

According to Chicago-based merchant bank Ocean Tomo, which tracks patent suits, nearly 350 federal lawsuits have been filed since the December appellate court ruling.

Would-be plaintiffs have been searching retail stores and the Internet for expired patents, then filing lawsuits against product makers. Suits have been filed over allegedly erroneous patent numbers on such products as Etch A Sketch toys, Crest toothpaste, Depend underwear and L'Oréal mascara.

Some of the suits have been dismissed. Many had been stayed, pending the outcome of Mr. Stauffer's case against Brooks Brothers.

On Tuesday, the Federal Circuit Court of Appeals reversed a lower court ruling that had dismissed Mr. Stauffer's case saying he didn't have standing to bring it.

"Every plaintiff who brings one of these cases is a private attorney general who is doing a service to the United States, and I'm doing the same," says Mr. Stauffer, a lawyer in Roseland, N.J.

Brooks Brothers and a lawyer who represents it in the case didn't respond to requests for comment.

The way Mr. Stauffer calculates it, the liability could be huge. Brooks Brothers had erroneously marked 120 different styles of ties, which sell for about $45 to $100 a piece, according to Mr. Stauffer. He says he doesn't know how many individual ties were falsely marked.

"I would have settled this case for $25,000 back in December of 2008," Mr. Stauffer says. "Brooks Brothers, however, seemed eager to want to litigate the case, and I was delighted to give them the opportunity."

So far, none of the suits have reaped the gigantic awards that plaintiffs say could be possible.

But corporations are spooked, according to numerous attorneys who represent manufacturers of consumer products. They are checking the status of patents and scrambling to review the product lines on shelves to be sure labeling is up-to-date. And they are contacting suppliers to make sure their patents are valid.

"These cases have forced companies to spend time, money and resources investigating claims where there really isn't any injury to anybody," says Chicago lawyer Jason C. White, who is defending more than a dozen companies from such suits. "Companies are spending a lot of time investigating this, even ones who haven't been sued. It has captured the attention of a large cross section of corporate America."

Some of the cases have settled because companies fear a bad outcome or don't want to incur large legal fees fighting them.

"You're paying the hostage fee," says Mark Willard, a lawyer who represented hand-tool manufacturer Ames True Temper Co. in a suit involving a shrub rake. "It was manufactured in China using an old mold that still had the expired patent number on it," says Mr. Willard, adding that the company has long had in place a policy of monitoring patents. "This one fell through the cracks."

The company settled the case for an undisclosed amount. Mr. Willard says the suit has cost the company in other ways. Ames had to thoroughly review its inventory to be sure more outdated patents weren't on the market. "They have a very large product line," he says.

One defendant, Solo Cup Co., was accused in a lawsuit of erroneously marking 21 billion items, including lids for Starbucks coffee cups. The company had more than 3,000 molds for its products that were stamped with the erroneous patents, and they had a plan in place to phase out the molds, according to filings in the case. Solo declined to comment.

The suits are affecting how companies tend their intellectual property. Robert Koch, an intellectual-property lawyer in Washington, says he advises his clients to stop marking patents on their products. That would limit companies' ability to seek damages from infringers. But it eliminates having to closely monitor every package and brochure to avoid a lawsuit.

The law on false patent markings is similar to whistle-blower laws. Anyone can file a claim on behalf of the government, and plaintiffs must split any fine award evenly with it. The Justice Department has argued on the side of plaintiffs in some of the claims.

"We do think that these suits have directed industry attention to the need to adopt procedures to assure that patent markings are accurate and to remove the numbers of expired patents from products," says Charles Miller, a Justice Department spokesman. "This should result in more accurate information on products and their packaging, which would be beneficial to consumers."

The people behind the suits say they see themselves as consumer advocates, helping to protect legitimate inventors from giant corporations who are pretending to have patents to keep competitors from stepping on their turf.

"It chills competition, it misleads the public and takes away from the credit patent holders deserve," says Daniel Ravicher, founder and executive director of New York nonprofit Public Patent Foundation, which has filed numerous suits.

Mr. Ravicher says he found one defendant, Johnson & Johnson's McNeil-PPC unit, by perusing his local drugstore shelves, where he found a bottle of Tylenol he says had an expired patent. Johnson & Johnson declined to comment.

L'Oréal USA Inc. has been hit with at least two suits over its Double Extend Mascara. One of the tubes with an expired patent was still on the shelves of a Midtown Manhattan pharmacy last week. L'Oréal declined to comment.

The lawsuits have been filed by relatively few people or entities, many of whom have close ties to plaintiffs' lawyers who work on patent suits. Some are filed in the name of organizations owned by patent attorneys.

One plaintiff, Sarah Tompkins, who has sued more than a dozen companies, is the wife of Allen, Texas, patent lawyer George Tompkins.

Mr. Tompkins says he heard about the December federal-court ruling from lawyer friends. He and his wife then spent hours poring over Internet advertising to check for outdated patents on products, a process that can be relatively simple because patents are numbered chronologically. Patents that start with the number 4, for example, have expired in recent years.

The couple trekked to retail stores to find falsely marked products on shelves. Their lawsuit against multiple companies also contains false advertising claims.

"We decided what companies were doing was wrong, so we filed a lawsuit," Mr. Tompkins says.

from the Wall Street Journal, 2010-May-3:

Free Speech for Some
Unions get a pass from new campaign finance disclosure rules.

Democrats in Congress last week introduced White House-backed legislation that would indirectly reinstate free-speech restrictions that the Supreme Court declared unconstitutional in January. Backers say the measure will force disclosure of corporate money in politics, but the real goal is to muzzle criticism—at least from some people.

The legislation, sponsored by Democrats Charles Schumer in the Senate and Chris Van Hollen in the House, would prevent government contractors and corporate beneficiaries of the Troubled Asset Relief Program from spending money on U.S. elections. It would also ban U.S. subsidiaries of foreign companies from making political contributions if a foreign national owns 20% or more of the voting shares in the company, or if foreign nationals comprise a majority of the board of directors.

The provisions are designed to undermine this year's landmark Supreme Court Citizens United decision, which held that limits on independent campaign expenditures by corporations or unions violate First Amendment free speech guarantees. But, under the bill, unions with government contracts would not be subject to the same restrictions as corporations.

If, as proponents claim, their worry is that a company will use campaign contributions to win government contracts (pay-to-play), why does their bill not show equal concern that labor unions will support candidates with the goal of getting government contracts driven to union companies? The legislation also fails to impose limits on the foreign involvement of unions with global reach, such as the Service Employees International Union or the International Brotherhood of Electrical Workers.

It's no coincidence that the lead authors of these bills are the current head of the Democratic Congressional Campaign Committee (Mr. Van Hollen) and the immediate past head of the Democratic Senatorial Campaign Committee (Mr. Schumer). And it's no surprise that Republicans have been reluctant to sign on. The House bill has two GOP sponsors and the Senate bill has none.

When President Obama berated the High Court earlier this year for its free speech ruling, he was very specific about whose free speech he opposed. "This is a major victory for Big Oil, Wall Street banks, health insurance companies and other powerful interests," said Mr. Obama of the decision, suggesting that despite the good governance rhetoric, this legislation is not about muzzling spenders generally so much as specific spenders who don't always salute the Democratic agenda.

from the Moderate Voice, 2010-Jun-25, by Logan Penza:

The Problem With Regulating Political Speech

In an attempt to overturn the effect of the recent Supreme Court decision in Citizens United v. FCC, House Democrats have passed the DISCLOSE Act. The bill, which faces an “uncertain” future in the Senate, would subject corporations to new limits on issue advocacy, but specifically exempt a few entities hand-picked by House Democrats. In particular, unions would be exempt from the restrictions in the bill as well as various other special interest groups affiliated with Democratic party causes or simply too powerful to risk offending (e.g. the NRA).

This process itself shows the problem with trying to limit the ability of corporations or anyone else to speak out on political issues that affect them. (Contrary to the hyperbolic reports of many critics of Citizens United, the decision leaves in place limits on direct contributions to candidates.) Inevitably, such regulations will filled with custom-fit loopholes allowing allies of whichever party is currently in power to speak freely but attempting to muzzle adversaries. In short, such restrictions are the functional end of the First Amendment because they make speech rights contingent on supporting the party currently in power. At the point that whatever party happens to be in power at the time gets to determine who is allowed to use powerful media outlets and who is prohibited, what we would have would be indistinguishable from how authoritarian governments control access to the media by ensuring that only their supporters are allowed to speak while dissenters are barred. In would have the veneer of the rule of law, but what lay just beneath the surface would be nothing other than raw political coercion.

Because of the clumsiness of its attempt to claim partisan control of the media, the bill will probably die in a filibuster in the Senate. And even if it were passed, the courts are unlikely to allow such a direct attack on dissenting political speech to set a precedent leading to even more partisan restrictions. But the effort alone says very bad things about the attitude of the current Democratic party leadership towards free speech and dissent. In exposing their desire for “free speech for me, but not for thee”, they have permanently forfeited the moral high ground they claimed only a short time ago with the slogan “dissent is patriotic”.

from National Review, 2010-Jun-1, printed 2010-Jun-7, by Bradley A. Smith:

Disclosed Partisanship

In February 1996, then–White House aide and current Supreme Court nominee Elena Kagan co-authored a memorandum to deputy chief of staff Harold Ickes regarding whether President Clinton should support proposed amendments to the McCain-Feingold campaign-finance bill.

The first amendment was to weaken the bill’s ban on “bundling” of contributions. The memorandum’s analysis of the proposal begins: “We have no data on which party benefits more from bundling practices.” The second amendment was to limit out-of-state contributions to candidates. The memo’s analysis begins: “The [limit] may hurt Democratic senatorial candidates.” In other words, the memo evaluated the amendments not on the basis of their benefits or harms to the public, but rather their potential to confer a partisan advantage.

This is not surprising to those who follow campaign-finance-reform efforts closely. A key goal of every “reform” bill has been partisan gain. Fast forward 14 years to January 2010, when the Supreme Court, in an eminently sensible decision in Citizens United v. Federal Election Commission, held that corporations and unions have the right under the First Amendment to speak out in political races. (The government, represented by Kagan, who was then the solicitor general, had argued that it had the power to ban books and movies if they were distributed or produced by corporations, although the solicitor general went to some length to assure the Court that in practice it would not ban books, only “pamphlets.”) The immediate response of the White House and Democrats in Congress was to assess the effect of the decision on their electoral prospects. And they didn’t like the assessment. NPR’s Nina Totenberg summed up the conventional Democratic wisdom on the ruling: “It will undoubtedly help Republican candidates since corporations have generally supported Republican candidates more.”

President Obama proclaimed that the ruling should be overturned because it was a victory for “Big Oil, Wall Street banks, [and] health-insurance companies,” his usual rogue’s gallery. Sen. Chuck Schumer (D., N.Y.) immediately began discussing legislative proposals that would “make [corporations] think twice” before getting involved in campaigns. “The deterrent effect should not be underestimated,” he added. The Washington Post noted that the Democratic proposals “are aimed at preventing corporations from hiding behind trade groups or other organizations in order to fund attack ads on political candidates.”

Rebuffing Republican requests for input into the drafting process, Schumer, the former head of the Democratic Senatorial Campaign Committee, and Rep. Chris Van Hollen (Md.), current head of the Democratic Congressional Campaign Committee, came up with a bill with the gimmicky acronym “DISCLOSE,” which stands for “Democracy Is Strengthened by Casting Light on Spending in Elections.” Critics have more accurately dubbed it “Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections.”

DISCLOSE’s partisanship is apparent in its different treatment of corporations and unions. Every major federal campaign-finance-reform effort since 1943 has attempted to treat corporations and unions equally. If a limit applied to corporations, it applied to unions; if unions could form PACs, corporations could too; and so on. DISCLOSE is the first major campaign-finance bill that has not taken this approach. For example, it prohibits corporations with government contracts of as little as $50,000 from making independent expenditures in elections or engaging in “electioneering communications.” This very low threshold would bar not only large contractors such as Boeing but also thousands of small businesses from exercising the rights recognized in Citizens United. Yet no parallel provision exists for unions that bargain with the government for multimillion-dollar benefit packages. Corporations that received TARP funds are prohibited from spending, but unions at those companies — which in many cases benefited far more from the bailouts than shareholders — are not.

Similarly, DISCLOSE prohibits U.S. corporations with as little as 20 percent foreign ownership from spending on elections, without placing parallel restrictions on unions (and despite the fact that a part of the Federal Election Campaign Act that was unaffected by Citizens United already prohibits spending in U.S. elections by foreign nationals and truly foreign companies). Thus Verizon Wireless, a New Jersey corporation with over 80,000 U.S. employees, is prohibited from making expenditures because the English corporation Vodafone has a minority stake in it. But the Service Employees International Union and the International Brotherhood of Electrical Workers are free to spend to their hearts’ content, even though they have foreign members and directors. (That’s what “International” stands for: SEIU has had members in Canada since 1943. IBEW has been organized in Canada since 1899, and is also in Panama and several Caribbean nations. Both have Canadians on their international executive committees.) Thus the provision not only discriminates against foreign nationals (in violation of the Constitution and countless federal statutes) — something few liberals would support in other contexts, such as limiting the right of foreign nationals to march in protest of government policies, write letters to the editor, or speak out on radio and television — but limits the rights of American shareholders to participate in the political system merely because they own property in association with foreign nationals.

Meanwhile, the disclosure provisions in the bill range from the duplicative to the patently absurd. Federal law already provides that any entity making an independent expenditure of more than $250 must file reports with the FEC that include the name of the spender, the date and amount of the expenditure, the candidate supported or opposed, and a statement that the communication was not coordinated with or authorized by the candidate. Additionally, the spender must disclose the name of any other entity that contributed funds for the communication. For “electioneering communications” — defined in current law as broadcast ads that mention a candidate and are aired within 30 days before a primary or 60 days before a general election — even more information is required, and contributors of $1,000 or more must be reported (although the reporting kicks in only once $10,000 has been spent). Additionally, “527” organizations, such as Swift Boat Veterans for Truth, must report all donors to the IRS, and political-action committees — a category including any group that spends over $1,000 and has as its major purpose influencing elections — must report all of their donors and expenditures to the FEC. Finally, current law requires all ads to include notice of who is paying for them.

Given this, it is obvious that DISCLOSE seeks less to enlighten the public than to bury would-be spenders in regulation and provide politicians with a means for intimidating their donors. DISCLOSE would require, for example, that an organization that makes independent expenditures disclose all of its members and donors contributing over $1,000. It extends this requirement even to an organization that has made no political expenditures in the current cycle but has done so in the past. It thereby provides politicians — in this year’s cycle, endangered Democratic incumbents — a weapon with which to threaten political opponents. The Supreme Court, in a 1958 case called NAACP v. Alabama, held that the government cannot compel groups to reveal their member lists and financial supporters. That may be why DISCLOSE allows groups to avoid such disclosure by establishing “campaign-related activity” accounts, essentially a new type of PAC funded by money solicited specifically to make independent expenditures. But this too runs afoul of the Court: One point of Citizens United was that the government could not require spenders to set up such additional accounts as a condition of political participation.

Some of DISCLOSE’s provisions are outright absurd. It would require that the CEO of a company or organization paying for a broadcast ad appear in the ad and state the organization’s name twice, as well as his name, his title, and his approval of the message. The largest contributor to any ad purchased by an organization, such as a trade association or chamber of commerce, would also have to appear on camera and state the organization’s name three times, as well as his name and title and his approval of the message. These disclaimers, in addition to the existing requirement of a statement as to who is paying for the ad, can take up roughly half of every 30-second commercial. The primary “benefit” to the public is that it will learn that the organization already announced as paying for the ad does, in fact, “approve” of it. We see again that the real purpose is to burden speech — or, as the sponsors wrote in their press release upon introducing the legislation, to “partly restore those limits” struck down as unconstitutional by the Supreme Court.

In fact, in key ways the bill extends the prohibition on corporate expenditures beyond what it was prior to Citizens United. Before the ruling, corporations were prohibited from funding independent expenditures (ads that “expressly advocate” the election or defeat of candidates) at any time, and “electioneering communications” (ads that did not “expressly advocate” election or defeat of a candidate but merely named him or her) within 30 days of a primary or 60 days of a general election. DISCLOSE expands the definition of “electioneering communication” to include any ad mentioning a candidate from 90 days before the primary all the way through the general election. In Illinois this year, that is a twelve-month period beginning in November; in Ohio and Indiana, it runs from the beginning of February through November. In most states, it will run at least six months. Because DISCLOSE prohibits companies with as little as 20 percent foreign ownership, or as little as $50,000 in federal contracts, from running “electioneering communications,” this means that thousands of corporations would be deprived of free speech for as much as a year.

That Congress would respond to a Supreme Court decision affirming corporations’ freedom of speech by restricting that freedom to an even greater extent than it did before the decision is remarkable. The attempt is unlikely to withstand judicial challenge, but, as Senator Schumer made clear early on, he believes the courts won’t have time to rule on the constitutionality of the act before the 2010 election is over.

Whether DISCLOSE passes depends on whether there are any Republican senators gullible enough not to filibuster a law specifically designed to give Democrats an electoral advantage. So far, even John McCain, a supporter of campaign-finance reform, has refused to sign on.

But this is the way of both “campaign-finance reform” and the Obama administration: use the law to silence your opponents. The DISCLOSE Act is a testament to the wisdom of the Supreme Court’s decision in Citizens United. The First Amendment sought to place political speech beyond the government’s control, and we can be glad that it did. Does future Justice Kagan agree?

Bradley A. Smith is the Blackmore/Nault Designated Professor of Law at Capital University Law School, chairman of the Center for Competitive Politics, and former chairman of the Federal Election Commission.

from the Washington Post, 2010-Jun-17, by Cleta Mitchell:

NRA exemption shows campaign disclosure bill's cynical, fatal flaws

The cynical decision this week by House Democrats to exempt the National Rifle Association from the latest campaign finance regulatory scheme is itself a public disclosure. It reveals the true purpose of the perversely named Disclose Act (H.R. 5175): namely, to silence congressional critics in the 2010 elections.

The NRA "carve-out" reaffirms the wisdom of the First Amendment's precise language: "Congress shall make no law . . . abridging the freedom of speech."

Congress can't help itself. Since 1798, with the Alien and Sedition Acts, incumbent politicians have yearned for legal duct tape for their opponents' mouths. The Disclose Act is a doozy of a muzzle.

For its part, the NRA -- on whose board of directors I serve -- rather than holding steadfastly to its historic principles of defending the Constitution and continuing its noble fight against government regulation of political speech instead opted for a political deal borne of self-interest in exchange for "neutrality" from the legislation's requirements. In doing so, the NRA has, sadly, affirmed the notion held by congressional Democrats (and some Republicans), liberal activists, the media establishment and, at least for now, a minority on the Supreme Court that First Amendment protections are subject to negotiation. The Second Amendment surely cannot be far behind.

Since the court's January decision in Citizens United v. Federal Election Commission that corporations cannot be constitutionally prohibited from making independent candidate-related expenditures, Democrats have been hyperventilating at the notion that corporations might spend millions of dollars criticizing them. To foreclose that possibility, the Disclose Act would impose onerous and complicated "disclosure" restrictions on organizations that dare to engage in constitutionally protected political speech and on corporations that dare to contribute to such organizations.

Democrats would effectively neuter the court's decision by requiring the names of multiple donors to be recited in ads (thus shrinking the time spent on actual speech), requiring the CEO of a corporate donor to personally appear in campaign-related ads, expanding the coverage period to virtually the entire election year, and including myriad other rules that the NRA described last month as "byzantine" and an "arbitrary patchwork of reporting and disclosure requirements."

The NRA's wheel-squeaking bought it an exemption from those requirements. Tea Party organizations arising spontaneously since 2009? Out of luck. Online organizations with large e-mail followings but perhaps no formal dues structure? Forget it.

Receiving less attention than the NRA "carve-out" but no less cynical is the bill's sop to organized labor: Aggregate contributions of $600 or more would be disclosed. Why start at $600? Why not $200 or, say, $500? Because most union members' dues aggregate less than $600 in a calendar year and thus members' contributions to labor's campaign-related spending wouldn't need to be disclosed . . . even to the union members whose dues are spent for political purposes.

In Citizens United, the court held that the First Amendment doesn't permit Congress to treat different corporations differently; that the protections afforded political speech arise from the Constitution, not Congress. Otherwise, it would be tantamount to a congressional power to license the speech of some while denying it to others.

The NRA carve-out is a clear example of a congressional speech license.

The ostensible purpose of the legislation is benign "disclosure," upheld in Citizens United as permissible under the First Amendment. Even conservative Justice Antonin Scalia has expressed skepticism about the constitutional infirmity of disclosure requirements in another case argued this term; Scalia intoned in oral argument that "running a democracy takes a certain amount of civic courage."

That's true. Indeed, the law upheld in Citizens United requires all donors to candidate-related expenditures to be publicly disclosed to the FEC in a timely manner.

But the Disclose Act isn't really intended to elicit information not currently required by law. The act serves notice on certain speakers that their involvement in the political process will exact a high price of regulation, penalty and notoriety, using disclosure and reporting as a subterfuge to chill their political speech and association.

It is only disclosure, say the authors. And box-cutters are only handy household tools . . . until they are used by terrorists to crash airplanes.

This is not just "disclosure." It is a scheme hatched by political insiders to eradicate disfavored speech. There is no room under the First Amendment for Congress to make deals on political speech, whether with the NRA or anyone else.

The writer is a partner at Foley & Lardner who works in campaign finance law and is a member of the NRA's board of directors.

from Law.com's Corporate Counsel, 2010-Jul-26, by Joe Mullin:

Patent Litigation Weekly: Wouldn't You Like to Be a Pepper Too?
Poor Little Plano

In a world saturated with bold patent claims it takes a lot to stand out. But a recent press release describing a lawsuit filed by InNova Patent Licensing does that. A press release, written up by The Lanier Law Firm, asserts that a spam-killin' e-mail system described by "revolutionary" patent no. 6,018,761 is "one of the building blocks for all e-mail communication."

Wow! This makes NTP look like a bunch of chumps—they only claim to have invented mobile e-mail. The lead Lanier attorney on the case, Christopher Banys, goes on to state in the press release: "E-mail as we know it would essentially stop working if it weren't for InNova's patents." Hmm... we'll file that comment under "how to imply someone copied you without actually having any evidence of copying or even putting the accusation on the record."

Taking such an expansive view of its "property"—unless your e-mail program doesn't have a spam filter, you're likely to be trespassing yourself—provides InNova no shortage of targets. The suit [PDF] names a who's who of big tech and finance companies as defendants, including AOL, Apple, Google, Yahoo, Ericsson, 3Com, Alcatel-Lucent, IBM, Hewlett-Packard, JP Morgan Chase, Wells Fargo, and Bank of America.

But one surprising name listed in the complaint that really got our attention: Dr. Pepper Snapple Group. Patent infringement suits have expanded into all kinds of different industries in the past few years, but we don't recall having seen many beverage companies hit with one before. What could it be that makes Dr. Pepper so special (besides, of course, its delicious taste and high caffeine count)? Could it be the address of its corporate headquarters, which is located in the Dallas suburb of Plano, just inside the boundary of the Eastern District of Texas?

More defendants have been trying to transfer out of East Texas lately, with some success; but throwing a few East Texas companies into a list of patent defendants sometimes works for plaintiffs trying to stay in their chosen district. That's likely what InNova is up to here.  

There aren't many big corporations headquartered in the small East Texas towns, like Tyler and Marshall, that patent plaintiffs love. So InNova has turned to companies residing in the one one good-sized community within the Eastern District. If this strategy takes off, will Plano become America's unluckiest suburb?

Reading the InNova lawsuit more closely, we find a bunch of other Plano-based defendants that seem more than a little out of place on a list of corporations that regularly appear on the Fortune 100.  Frito-Lay Corp.? Plano headquarters. Wait a sec, where's Frito-Lay parent company? Alas, the much larger New York-based PepsiCo is not on the list.

Rent-A-Center? Plano headquarters. Perot Systems? Plano. J.C. Penney? Plano. Cinemark USA? Plano. Hey, what's Crossmark, Inc., anyhow? Who cares, they're in Plano!

The suit was filed in the federal courthouse in Marshall, not Plano. But intra-district transfers are exceedingly rare. Suing six defendants based just inside the boundary of the Eastern District means the dispute is likely to stay in Marshall. Apparently there's just one place the sword of justice is strong enough to defend inventor Robert Uomini's "revolutionary" invention.

Uomini, by the way, is an interesting guy. The fortune he's seeking by asserting his patent would actually be his second. He landed his first one in 1995 by scoring a $22 million lottery jackpot.

Speaking with a San Francisco Chronicle reporter several years after his big payday, Uomini said the lottery win only ended up being worth $7 million after taxes and delayed payments. "Don't get into the habit of spending, no matter how much it is," he advised future lottery winners. "It is not infinite."

The SF Chron reported:

Uomini divorced last year and said the lottery did contribute in part to his marriage's breakdown. He still works in the field of research mathematics. And yes, he still plays the lottery, odds be damned.

He sure does. The patent lawsuit lottery has decidedly better odds, though, if you can just get a few miles outside Dallas...

from Wired, 2011-Jun-20, by David Kravets:

Righthaven Loss: Judge Rules Reposting Entire Article Is Fair Use

A federal judge ruled Monday that publishing an entire article without the rights holder’s authorization was a fair use of the work, in yet another blow to newspaper copyright troll Righthaven.

It’s not often that republishing an entire work without permission is deemed fair use. Fair use is an infringement defense when the defendant reproduced a copyrighted work for purposes such as criticism, commentary, teaching and research. The defense is analyzed on a case-by-case basis.

Monday’s ruling dismissed a lawsuit brought by Righthaven, a Las Vegas-based copyright litigation factory jointly owned with newspaper publisher Stephens Media. The venture’s litigation tactics and ethics are being questioned by several judges and attorneys, a factor that also weighed in on U.S. District Judge Philip Pro’s decision Monday.

Righthaven has sued more than 200 websites, bloggers and commenters for copyright infringement. More than 100 have settled out of court.

The lawsuit decided Monday targeted Wayne Hoehn, a Vietnam veteran who posted all 19 paragraphs of November editorial from the Las Vegas Review-Journal, which is owned by Stephens Media. Hoehn posted the article, and its headline, “Public Employee Pensions: We Can't Afford Them” on medjacksports.com to prompt discussion about the financial affairs of the nation’s states. Hoehn was a user of the site, not an employee.

Righthaven sought up to $150,000, the maximum in damages allowed under the Copyright Act. Righthaven argued that the November posting reduced the number of eyeballs that would have visited the Review-Journal site to read the editorial.

“Righthaven did not present any evidence that the market for the work was harmed by Hoehn’s noncommercial use for the 40 days it appeared on the website. Accordingly, there is no genuine issue of material fact that Hoehn’s use of the work was fair and summary judgment is appropriate,” Judge Pro ruled.

Marc Randazza, one of Hoehn’s attorneys, said he would petition the judge for legal fees and costs.

The judge also said he took into consideration that only five of the editorial’s paragraphs were “purely creative opinions” of the author.

“While the work does have some creative or editorial elements, these elements are not enough to consider the work a purely ‘creative work’ in the realm of fictional stories, song lyrics, or Barbie dolls,” he wrote. “Accordingly, the work is not within ‘the core of intended copyright protection.’”

Judge Pro, in his fair-use analysis, also found that the posting was for noncommercial purposes, and was part of an “online discussion.”

That said, Pro did not need to decide the fair-use question.

That’s because he also found that Righthaven did not have legal standing to bring the lawsuit, a hot-button topic in the Righthaven litigation.

Pro’s decision came a week after a different Las Vegas federal judge threatened to sanction Righthaven, calling its litigation efforts “disingenuous, if not outright deceitful” when it came to standing. Standing is a legal concept that has enabled Righthaven to bring lawsuits on behalf of the copyrights owned by Stephens Media.

That blistering decision by U.S. District Judge Roger Hunt, the chief judge in Nevada, places into doubt Righthaven’s year-old business model, which is also under a Colorado federal judge’s microscope.

Hunt gave Righthaven two weeks to explain why he should not sanction it for trying to “manufacture standing.” Judge Hunt suggested Righthaven never had standing in any of its cases because Righthaven and Stephens Media had agreed to share the proceeds of any damages awards or settlements, yet Stephens Media kept ownership of the copyright.

Righthaven must own the copyright to sue on its behalf, Hunt ruled in a decision echoed by Judge Pro on Monday.

What’s more, in each of the 200-plus cases Righthaven brought on behalf of Las Vegas Review-Journal articles, Righthaven never disclosed, as required, that Stephens Media had a “pecuniary interest” in the outcome, Hunt wrote.

Many bloggers who settled are mulling their legal options.

Illustration: Electronic Frontier Foundation

from PaidContent.org, 2011-Jan-18, by Joe Mullin:

After 200 Lawsuits Against Sites, Righthaven Targets Online Commenters

So far, the copyright-enforcement venture Righthaven has only made a few thousand dollars per settlement with its publisher targets, according to news reports. To make any real money, Righthaven will have to widen its sights. With its latest move, it appears to be doing just that. Atter suing mostly mom-and-pop web publishers—more than 200 blogs and web sites in all in its 10 months in business—Righthaven last week began suing mere commenters, including Wayne Hoehn, a user who posted an op-ed article at MadJackSports.com (the No. 1 handicapping forum on the web.) Remarkably, MadJack Sports itself was the subject of an earlier Righthaven lawsuit. The website settled the allegations.

The article that Hoehn allegedly copied was an op-ed column called “It's the pensions, stupid,” by Las Vegas Review-Journal columnist and former publisher Sherman Frederick. The R-J was Righthaven's initial client when the company started suing web sites and blogs last year, and the newspaper owns part of Righthaven as well. Frederick, who was a big booster of the Righthaven project when it started, stepped aside as publisher in November, but still writes a column for the R-J.

The same day, Righthaven sued James Higgins, who posted another apparently copied R-J story into a Google Groups news list. These two suits appear to be the first Righthaven suits against individual who don't own their own websites.

Pursuing such defendants suggests a certain desperation by Righthaven. Even when the record companies sued thousands of individual users, they at least had a believable argument that digital piracy was hurting music sales. Righthaven's argument that re-posting text articles does similar harm to newspaper companies—while a debatable and controversial point—at least has some logic to it when the suits are against online publishers. To suggest that online commenters are hurting the newspaper industry seems like a much bigger leap of faith.

Stretch though it may be, it's certainly possible that individual posters might be frightened into paying a few thousand dollars in settlement money to avoid litigation and a heavier penalty. Dozens of web sites have already settled with Righthaven, generally for $5,000 or less, according to the Las Vegas Sun.

Righthaven didn't immediately respond to a request for comment, but the company's outside lawyer in these cases, Shawn Mangano, noted that the piece Hoehn is alleged to have copied is an op-ed, not a news article. “A lot of Righthaven suits have involved copyrighted works that defendants argued were primarily factual in nature,” Mangano said. “You have no such argument with an op-ed piece. We're not just reporting on a shooting.” As to why Righthaven had decided to pursue posters, Mangano said: “I'm not privy to that analysis, and if I were, it would be privileged.”

Righthaven v. Hoehn Complaint [PDF]
Righthaven v. Higgins Complaint [PDF]

from Wired.com, 2010-Jul-22, by David Kravets:

Newspaper Chain’s New Business Plan: Copyright Suits

Steve Gibson has a plan to save the media world’s financial crisis — and it’s not the iPad.

Borrowing a page from patent trolls, the CEO of fledgling Las Vegas-based Righthaven has begun buying out the copyrights to newspaper content for the sole purpose of suing blogs and websites that re-post those articles without permission. And he says he’s making money.

“We believe it’s the best solution out there,” Gibson says. “Media companies’ assets are very much their copyrights. These companies need to understand and appreciate that those assets have value more than merely the present advertising revenues.”

Gibson’s vision is to monetize news content on the backend, by scouring the internet for infringing copies of his client’s articles, then suing and relying on the harsh penalties in the Copyright Act — up to $150,000 for a single infringement — to compel quick settlements. Since Righthaven’s formation in March, the company has filed at least 80 federal lawsuits against website operators and individual bloggers who’ve re-posted articles from the Las Vegas Review-Journal, his first client.

Now he’s talking expansion. The Review-Journal’s publisher, Stephens Media in Las Vegas, runs over 70 other newspapers in nine states, and Gibson says he already has an agreement to expand his practice to cover those properties. (Stephens Media declined comment, and referred inquiries to Gibson.) Hundreds of lawsuits, he says, are already in the works by year’s end. “We perceive there to be millions, if not billions, of infringements out there,” he says.

Righthaven’s lawsuits come on the heels of similar campaigns targeting music and movie infringers. The Recording Industry Association of America sued about 20,000 thousand file sharers over five years, before recently winding down its campaign. And a coalition of independent film producers called the U.S. Copyright Group was formed this year, already unleashing as many as 20,000 federal lawsuits against BitTorrent users accused of unlawfully sharing movies.

The RIAA’s lawsuits weren’t a money maker, though — the record labels spent $64 million in legal costs, and recovered only $1.3 million in damages and settlements. The independent film producers say they nonetheless expect to turn a profit from their lawsuits.

“People are settling with us,” says Thomas Dunlap, the head lawyer of the Copyright Group’s litigation. The out-of-court settlements, the number of which he declined to divulge, are ranging in value from $1,500 to $3,500 — about the price it would cost defendants to retain a lawyer. The RIAA’s settlements, which it collected in nearly every case, were for roughly the same amounts.

But experts say that settling the Righthaven cases, many of which target bloggers or aggregation sites, might not be as easy. The RIAA lawsuits often accused peer-to-peer users of sharing dozens of music files, meaning the risk of going to trial was financially huge for the defendants.

The same is true of the BitTorrent lawsuits. The movie file sharers are accused of leeching and seeding bits of movie files, contributing to the widespread and unauthorized distribution of independent movies such as Hurt Locker, Cry of the Wolf and others.

But each of the Righthaven suits charge one, or a handful, of infringements. Defendants might be less willing to settle a lawsuit stemming from their posting of a single news article, despite the Copyright Act’s whopping damages. “You’d have to go after a lot of people for a relatively small amount of money,” says Jonathan Band, a Washington, D.C. copyright lawyer. “That is a riskier proposition.”

Gibson claims Righthaven has already settled several lawsuits, the bulk of which are being chronicled by the Las Vegas Sun, for undisclosed sums.

One defendant who is ready to settle is Fred Bouzek, a Virginia man who runs bikernews.net, a user-generated site about hardcore biker news. He was sued last week on allegations the site ran a Las Vegas Review-Journal story about police going under cover with the Hell’s Angels.

Even if he had grounds to fight the case, he says it would be cheaper to settle. “The only choice I have is to try to raise money and offer a settlement,” he says.

Bill Irvine of Phoenix says he is fighting infringement allegations targeting AboveTopSecret.com, the site he controls under The Above Network. The site is accused of infringing a Review-Journal article on the Gulf of Mexico oil spill. The site is a user-generated discussion on “conspiracies, UFO’s, paranormal, secret societies, political scandals, new world order, terrorism, and dozens of related topics” and gets about 5 million hits monthly, Irvine says.

Righthaven, he says, should have sent him a takedown notice under the Digital Millennium Copyright Act, because the article was posted by a user, not the site itself.

“In this case, we feel this suit does not have merit,” he says. “We are confident we will have success challenging it.”

Gibson says he’s just getting started. Righthaven has other media clients that he won’t name until the lawsuits start rolling out, he says.

“Frankly, I think we’re having tremendous success at a number of levels,” Gibson says. “We file new complaints every day.”

from the Washington Post, 2010-Sep-13, by Amanda Becker:

Lawsuits allege copyright violations in posting of newspaper's articles on Web sites

An area public affairs shop, a D.C.-based coalition against the taxation of flavored beverages, a former government prosecutor and a nonprofit that promotes government responsibility have all found themselves the target of copyright lawsuits recently brought by a Las Vegas firm that has purchased the rights to articles from a local newspaper there.

Goddard Claussen Public Affairs and Americans Against Food Taxes were named defendants in copyright infringement lawsuits filed last week by Righthaven, a limited liability company headquartered in the desert city.

Since March, the company has brought at least 126 such suits against individuals and entities that have republished articles from the Las Vegas Review-Journal. Earlier claims were brought against former assistant U.S. attorney Thomas A. DiBiase and the Citizens for Responsibility and Ethics in Washington, which reached a settlement with Righthaven in May.

The lawsuits are similar to those brought by the Recording Industry Association of America against individuals who illegally downloaded music and by the District-based US Copyright Group, which targeted those who downloaded movies. But the wrinkle is that Righthaven represents itself, after buying the copyrights from the newspaper.

"This is a new kind of business model," said attorney Kurt Opsahl with the Electronic Frontier Foundation, which has volunteered to coordinate legal teams for some defendants. "Righthaven is purchasing the copyright and they are not owning these copyrights for the purpose of licensing them to others; their core business is filing lawsuits."

Righthaven registered as a limited liability company with Nevada's secretary of state in January. Two months later, the lawsuits began. The group typically buys rights after first determining if it can find possible infringements.

The alleged infringements of the defendants vary. DiBiase posted crime clippings on a Web site he maintains about murder investigations that have proceeded in the absence of a body. CREW used the Las Vegas newspaper's articles as supporting documentation for a report on the most corrupt politicians. But Righthaven attorneys say the usage of the newspaper's material -- even when the defendants cite and link to the original source -- is a copyright infringement that allows them to seek $75,000 in damages and the transfer of domain names.

"I'm not sure the amount sought or settled for is a direct reflection of the quantum of guilt or the egregiousness of conduct," said McDermott Will & Emery Partner Robert W. Zelnick. "But from what I've been reading, many of the parties are settling for a number that's around a few thousand dollars. I think from their perspective, it would cost more to hire a lawyer with expertise to evaluate the claims and pull together defenses."

That was the rationale of CREW, which settled its case with Righthaven for a confidential sum in May. According to the complaint filed in Nevada District Court, Righthaven sought redress for CREW's usage of 12 Review-Journal articles on Sen. John Ensign (R-Nev.), which were republished in their entirety on the watchdog's Web site. CREW Chief Counsel Anne Weismann said that even though she considers the group's usage of the material "benign," it would have considered taking the articles down.

"They didn't ask us to cease and desist, instead they just rushed into a lawsuit," Weismann said. "Had we gotten a cease-and-desist letter, it's quite possible we would have reevaluated based on that. But writing a cease-and-desist letter is not going to lead to money. I think it's pretty clear why that's the course they're not following and it exposes their underlying interest here, which is strictly commercial."

But Righthaven chief executive Steve Gibson said that the resources to generate such cease-and-desists requests, which often prove ineffective, are costly. The decision to forgo such a demand is not an indication that the company will treat every situation similarly, he said. Individuals who posted articles in which they were cited as a source, for example, might be treated differently than those who posted batches of stories on a particular subject wholesale -- but the group intends to go after perceived copyright infringements no matter how innocuous the usage may seem.

"Merely because in a number of cases we don't send any prior notice to the infringer doesn't mean we don't reserve the ability to be both lenient and humane in our approach to addressing the infringement," he said. "We just want folks to understand that infringement that replaces the publisher is not the right thing to do."

from Big Journalism, 2010-Sep-10, by Ron Futrel:

Righthaven Lawsuits: A Chilling Effect on the Blogosphere?

There's new meaning to the word “viral.”

Normally the word is used in a positive sense when something is so popular on the web that it is shared with as many people as possible and “hits” go through the roof. In this case, some are saying viral is an infection emanating from a Las Vegas newspaper and its hired hit men.

The Las Vegas Review-Journal has contracted with a company called Righthaven. Righthaven sues web sites that they say are violating the copyright laws by sharing the R-J stories. No warning, no request to take down the material, no shot across the bow—it's nuclear right out of the box. Virtually every other newspaper across the country asks “offending” web sites to just take down the material, and lawsuits are used only as a last resort.

LasVegasSign

I know, I'm being sued by Righthaven/R-J. My web site, www.LocalsLoveVegas.com is pretty much a hobby with video and news stories about this crazy city. The site is apolitical and focuses on fun things to do in one of the most enjoyable cities on the planet. I didn't know there was a problem until a writer from the competing paper in town, Steve Green, wrote an article about my lawsuit in the Las Vegas Sun.

Even though, as the lawsuit against me acknowledges, I gave full credit to the Review-Journal along with the writer of the story, and a link back to the R-J to read the entire story. They are still suing. The lawsuit is asking for me to pay $75,000, court costs, attorney's fees, and they want my web domain.

Here’s the relevant section of U.S. Copyright Law regarding “fair use:”

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission…

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way an author has expressed himself. It does not extend to any ideas, systems, or factual information conveyed in the work.

sharron angle

At last check, there are around 120 websites being sued, including that of Senate candidate Sharron Angle, who has this little race going on with Harry Reid right now. Apparently her campaign web site linked to an R-J story on its site and Righthaven is smelling blood. The attorneys are offering settlements (NORML — the pot smokin' folks — settled for $2,100) but many of the web sites are fighting this foolishness (yes—again, I'm a bit biased in this case). The Democrat Party in Nevada has also been sued by Righthaven/R-J.

The politics get very dicey in this battle. The R-J is a conservative paper. They have taken a hard line in trying to remove Harry Reid from office in Nevada. In fact, at one point, Reid said he hoped the R-J went out of business. Righthaven has ties that are much more liberal. Steve Gibson, the guy who runs Righthaven, worked with Barack and Michelle Obama at the Sidley Austin LLP law firm in Chicago where Gibson and Michelle worked both worked on copyright and intellectual property law. Independent journalist Fintan Dunne has been uncovering this part of the story. Mutual friends of mine and Gibson's tell me he's conservative. I told you the politics are dicey.

Perhaps green is the color of the politics here. Many have speculated that the entire purpose of these lawsuits is to intimidate small web sites for quick cash. A blog site in Boston run by a lady who loves cats apparently posted an R-J story about a fire in Las Vegas that killed some birds. Like me, she was sued for $75k. Charities and non-profits are on the hit list. Speculation is rampant that this is an example of a dying industry trying for a final desperate grasp at survival. The R-J defends its actions by saying they are preserving the integrity of information that they have worked hard to obtain.

Bottom line, this may be a precedent-setting case about how things can be shared on the internet, but it also raises more questions than it answers. As a journalist, I wonder about a world where you credit another outlet with a story well done, and then they turn around and sue you for using their stuff. Don't laugh—that's part of what's happening here.

What about a restaurant that frames a newspaper article about its establishment and posts it near their entrance, is that copyright infringement or fair use? It's also hard to determine what the financial damages would be for something that is given away for free on the internet. At least when Metallica and the record industry went after those who shared their music, you could quantify the value of a CD. What damage is being done when you share something that anybody can already find for free on the web?

Gibson says other newspapers will be joining the R-J in what some are calling an attack on free speech on the internet. The `net is inflamed with stories on this issue and few are showing any love towards the R-J and Righthaven. I have many friends who are writers at the R-J – I would never give their names — but I have not found a single writer at that paper who is in favor of what management is doing.

from MediaPost.com, 2010-Sep-20, by Wendy Davis:

Judge Says Blogger Sued By Righthaven Might Have Fair-Use Defense

Copyright enforcement outfit Righthaven must have expected that its infringement lawsuits against small publishers and bloggers were sure wins. After all, in many cases the defendants appeared to have violated at least the letter of the copyright law by displaying significant portions of Las Vegas Review-Journal articles on their own sites.

But a federal judge in Nevada just issued a decision indicating that Righthaven might face some obstacles in its litigation campaign -- an initiative that has so far resulted in more than 100 lawsuits against small publishers, bloggers, nonprofits and even political candidates like Sharron Angle. In every known case, Righthaven filed suit without first asking the sites to remove the material.

U.S. District Judge Gloria Navarro on Friday set aside a default judgment that had been entered against blogger Jan Klerks, who publishes a noncommercial site about urban development, www.skyscrapercity.com.

In her eight-page ruling, Navarro wrote that Klerks has at least two meritorious defenses to an infringement action -- that he made fair use of the newspaper's material, and that the newspaper granted him an implied license.

Klerks argued that the paper's practice of encouraging readers to save articles and to share them with others amounts to an implied license to post them. Navarro found Klerks' position on that point strong enough to warrant further proceedings. "The defendant has reasonably asserted that the plaintiff's conduct may have constituted an implied license and that the defendant may have properly inferred that the owner consented to the use, especially in light of the established and accepted custom of users freely and openly sharing certain information posted on the Internet," she wrote.

Navarro also indicated that Klerks has a decent fair-use argument because of the nature of his blog. "Noncommercial, nonprofit activity is presumptively fair," she wrote. "This is because a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create."

Of course, none of that means that Klerks will prevail at a trial. There are other factors that go into determining both fair use and implied licenses. But the ruling, which shows that Navarro is taking Klerks' arguments seriously, could give other defendants additional ammunition against Righthaven.

from PaidContent.org, 2010-Nov-16, by Joe Mullin:

Righthaven's Retreat On `Partial Copying' Cases Shows Firm's Vulnerability

In a sign that Righthaven is on the defensive, the controversial copyright enforcement company has offered to permanently drop one of its lawsuits—provided it doesn't have to pay legal fees to the attorneys defending the website it sued, Democratic Underground. The move shows the startup company's concerns about the potential for mounting legal bills.

If Righthaven were forced to pay legal fees in even one or two of its dozens of cases, it could cripple the firm's chances of turning copyright lawsuits into a for-profit business. News reports say that Righthaven generally gets less than $5,000 per settlement, and copyright defense bills can routinely be in the tens or even hundreds of thousands of dollars.

As part of their argument that attorneys' fees are unwarranted, Righthaven promises in the same 26-page motion that it won't file any more lawsuits unless the defendant has copied at least 75 percent of the text of an article that Righthaven owns the copyright to. Even though the partial-copying suits represent a small part of Righthaven's overall campaign to make money off infringements of newspaper copyrights, those suits have engendered controversy.

Righthaven was formed earlier this year in Las Vegas as a company that enforces newspaper copyrights. It has filed more than 150 lawsuits to date, mostly based on copyrights it acquired from the Las Vegas Review-Journal newspaper. The R-J also is part owner of Righthaven. In court papers, Righthaven lawyer Joseph Chu said that of the 69 Righthaven copyright lawsuits still pending, only four involve copying of less than 75 percent of the article.

Among those four is the one lawsuit that Righthaven has already flatly lost—Righthaven v. Realty One, which is against a real-estate broker who reproduced eight sentences from a 30-sentence news article. A Nevada federal judge on Oct. 20 deemed that “fair use” and thus legal [PDF].

Another partial-copying suit is the one against Democratic Underground, which involves a user who copied five sentences from an article called “Tea Party power fuels Angle,” which is more than 50 sentences long.

Generally, when defendants win in U.S. courts, they aren't able to recoup their legal fees unless the plaintiff filed a frivolous lawsuit or engaged in some type of misconduct. But the Copyright Act is different because it has special provisions making it easier for parties to win attorneys' fees. In the case against Righthaven, Democratic Underground is being defended by experienced copyright lawyers from the Electronic Frontier Foundation.

Separately, the Review-Journal's upper management is getting a major shakeup, as Sherman Frederick—who endorsed the Righthaven approach to copyright enforcement—has stepped down as publisher and CEO of Stephens Media Group, which owns the R-J. Frederick will continue on as a columnist and consultant to the R-J. Speaking to the Las Vegas Sun, Righthaven CEO Steve Gibson said Frederick's departure from the publisher's role “in no way diminishes the Righthaven business model.”

from the Wall Street Journal, 2010-Sep-17, by Justin Scheck and Stu Woo:

Lars Johnson Has Goats on His Roof and a Stable of Lawyers to Prove It
Having Trademarked the Ungulate Look, Restaurateur Butts Heads With Imitators

SISTER BAY, Wis.—Lars Johnson is proud of his restaurant's Swedish-meatball sandwich and pickled herring. But the signature offering at his Al Johnson's Swedish Restaurant isn't on the menu; it's the goats grazing on the grass-covered roof.

Any other business thinking of putting goats on the roof will have Mr. Johnson's lawyers to contend with.

Some patrons drive from afar to eat at the restaurant and see the goats that have been going up on Al Johnson's roof since 1973. The restaurant 14 years ago trademarked the right to put goats on a roof to attract customers to a business. "The restaurant is one of the top-grossing in Wisconsin, and I'm sure the goats have helped," says Mr. Johnson, who manages the family-owned restaurant.

So when a tourist spot 750 miles away decided to deploy a rooftop-caprine population, Mr. Johnson made a federal case of it.

Last year, he discovered that Tiger Mountain Market in Rabun County, Ga., had been grazing goats on its grass roof since 2007. Putting goats on the roof wasn't illegal. The violation, Al Johnson's alleged in a lawsuit in the U.S. District Court for the Northern District of Georgia, was that Tiger Mountain used the animals to woo business.

The suit declared: "Notwithstanding Al Johnson's Restaurant's prior, continuous and extensive use of the Goats on the Roof Trade Dress"—a type of trademark—"defendant Tiger Mountain Market opened a grocery store and gift shop in buildings with grass on the roofs and allows goats to climb on the roofs of its buildings."

Al Johnson's "demanded that Defendant cease and desist such conduct, but Defendant has willfully continued to offer food services from buildings with goats on the roof," the suit continued.

Danny Benson, the offending market's owner, says that "legally we could fight it, because it is ridiculous." But it would have been too expensive to fight, he says. He considered replacing his goats with pigs before deciding their heft and tendency to "root around" would pose a danger to people below.

Earlier this year, Mr. Benson agreed to pay Al Johnson's a fee for the right to use roof goats as a marketing tool in Georgia, South Carolina, North Carolina and Tennessee.

Al Johnson's is on constant lookout for other cloven-hooved intellectual-property violations. Mr. Johnson says the restaurant's Milwaukee law firm has sent letters to other alleged offenders, such as a gift shop in Wisconsin with a fake goat on its roof. It removed the ersatz ungulate.

In July, Virginia news outlets reported that goats on a hillside routinely hopped onto a platform under a billboard advertising two International House of Pancakes restaurants. Drivers pulled over to snap pictures, and one IHOP manager was quoted saying he enjoyed the publicity. Mr. Johnson says his lawyer is monitoring the situation in case "they take it a step further." Lisa Hodges, who manages one of the restaurants, says she doesn't plan to intentionally use the goats for marketing. "We can't help it that they climb up there," she says.

Any business that sells food and uses goats to lure customers may be violating the trademark, says Lori Meddings, the restaurant's lawyer. "The standard is, is there a likelihood of confusion?" she says.

Al Johnson, Lars's late father, opened the Swedish restaurant with a partner in 1949 in a former grocery store in this tourist town on Lake Michigan. In 1973, he imported a wooden building from Norway to replace the old structure, and covered it with a traditional sod roof.

Al Johnson's best friend, Winky Larson, brought him a goat named Oscar as a gag gift that year, the Johnson family says. Someone then put Oscar on the roof, where he attracted passersby, inspiring the family to accumulate a herd.

Two decades later, the business was booming. Summer tourists packed the restaurant, says Mr. Johnson, making it one of the largest U.S. importers of lingonberries. The family in 1996 registered the "Goats on the Roof" trademark. Mr. Johnson, whose father died in June, recalls his lawyer telling him: "Lars, you have something very valuable here."

The goat value was clear on a recent Saturday morning at Al Johnson's. Diners ate Swedish pancakes and meatballs as a red pickup arrived with four bleating passengers: Buckshot, Charlotte, Copper and Flipper.

Mr. Johnson's 15-year-old son, Bjorn, guided the goats up a staircase onto the roof. A herd of tourists congregated below.

The young Mr. Johnson said he worries that a goat will fall into a group of observers, as Buckshot did last year after stretching too far to munch on a cedar tree. Nobody was harmed, and the goat appeared to have fully recovered as he chewed a reporter's shirttail.

Inside the gift shop filled with goat-theme merchandise, Jim Miller, a 67-year-old tourist from Racine, Wis., was softly singing "The Lonely Goatherd" from "The Sound of Music."

The Al Johnson's goat trademark doesn't apply beyond U.S. borders, where roof goats also have marketing cachet.

The Goats on the Roof Coffee Shop in Northumberland, England, opened in July with the help of a government grant. "It's such a unique selling point," says Nina Remnant, proprietor of the cafe, which advertises Bagot goats on its roof.

British Columbia appears to be a hotbed of goat-roofed businesses. The Old Country Market in Coombs, British Columbia, has had the critters on its peaked roof since the 1970s. The market calls itself the "Home of the Goats on the Roof."

Arthur Urie, the market's general manager, says he considered trademarking "goats on the roof" in Canada but decided not to. He isn't concerned about the other roof-goated businesses, he says, because his has "a lot more to offer than what's on the roof."

As for Al Johnson's, he adds, "our goats are bigger than their goats."

from ArsTechnica.com, 2010-Jun-17, by Matthew Lasar:

Study: net neutrality could lead to "devastating" job losses

If you're looking for the Armageddon version of net neutrality analysis, search no further than a  new study released by New York Law School's Advanced Communications Law & Policy Institute. The assessment, titled Net Neutrality, Investment & Jobs, damns the Federal Communications Commission's proposed net neutrality rules as "destabilizing" and suggests they could "place the nation's economy at even greater risk."

The passage of such rules "could have devastating impacts across the ecosystem between 2010 and 2015," warn authors Charles M. Davidson and Bret T. Swanson. The assessment comes as the FCC released a Notice of Inquiry on its new Open Internet proposals on Thursday, and AT&T's threat that such proposals could cause it to downgrade its investment in its U-Verse IP-video network.

How devastating would this impact be? The paper claims that wireless and wireline broadband could suffer huge investment losses as a consequence of the rules. A ten percent drop in investment could rob the United States of 502,000 jobs with a $62 billion impact on its Gross Domestic Product. Three times that decline could punish the economy with a loss of 604,000 jobs and $80 billion in GDP loss.

"Despite FCC assertions to the contrary, history suggests that the Commission is incapable of micromanaging a dynamic sector via regulatory fiat and that such action results in consumer welfare and economic losses," the study asserts.

Apocalypse times three

Ars readers who dislike the dispassionate tone associated with most economics papers will find this one refreshing. Its subheadings include the following: "Apocalypse Now? Assessing the Impact of Proposed Net Neutrality Rules on Investment & Jobs in the Broadband Ecosystem." The question, of course, is how the study's authors came up with those half-a-million job-loss estimates.

First, the agency's proposals could block "voluntary partnerships and transactions with upstream providers of content, applications, and services," the document warns. Indeed the FCC's net neutrality plan, as released late last year, worried out loud where the freedom to cut these kind of deals could go.

"A broadband Internet access service provider that is also a pay television provider could charge providers or end users more to transmit or receive video programming over the Internet in order to protect the broadband Internet access service provider's own pay television service," the document speculated. "Alternatively, such a broadband Internet access service provider could seek to protect its pay television service by degrading the performance of video programming delivered over the Internet by third parties."

But Net Neutrality, Investment, and Jobs argues that as more video watching migrates to the Web, companies and investors will need to find "new hybrid business models to successfully manage this historic transition." Internet video doesn't pay yet, the paper contends. Video accounts for 73 percent of consumer Internet traffic, but just 8 percent of consumer Internet revenue. So new revenue models will have to be found—a prospect supposedly foreclosed by the agency's proposed rules.

Second, net neutrality could block needed Quality of Service techniques to manage user traffic, especially when it comes to handling latency-sensitive services and video. The survey notes the ongoing AT&T/iPhone network traffic malaise, then quotes a sympathetic assessment of the problem:

Unless a long-term plan is put in place that addresses and manages the traffic at a very granular level, the cost incurred due to an explosive demand will become unsustainable by 2013. At that point the revenue being generated could fall below the cost of sustaining such traffic. However, if the operators attack the problem using several different strategies, the growth can be managed and brought in line with the technology evolution such that the industry can take advantage of the falling per megabit costs.

Restricting experimentation on business models for network management "would exacerbate existing problems and allow a tiny number of users and applications to completely dominate the network, degrading service and value for other users," the report fears. And if various cybersecurity technologies which employ network management are also hamstrung, "then these technologies will become vastly more expensive to deploy and will therefore be less widely used."

Negative shocks

So how does the study extrapolate half-a-million jobs from these negative prospects? It takes existing projections of broadband related job growth, then plugs in the "negative shock" of net neutrality rules along four percentage tiers of possible investment decline: ten percent, twenty, third, and a "severe wireless drop." Bottom line: the prospect of 100,000 to 200,000 lost jobs each year over the next five years, with negative ripple effects in the healthcare and energy sectors.

Why would those seemingly nice people at the FCC put the nation in such economic jeopardy? In the face of overwhelming industry opposition to the Commission's Open Internet proposals, the Commission has "panicked," the report asserts, and is now resorting to the implementation of "century-old common carrier requirements" on broadband. "Such actions reflect only a selfish determination to consolidate regulatory power within an agency that has proven time and again to be incapable of micromanaging a dynamic sector like broadband," the report concludes.

Study author Charles Davidson is the director of New York Law School's Advanced Communications Law & Policy Institute. Bret Swanson runs the Entropy Economics research firm.

from National Affairs, 2010-Winter, by Bradley A. Smith:

The Myth of Campaign Finance Reform

March 24, 2009, may go down as a turning point in the history of the campaign-finance reform debate in America. On that day, in the course of oral argument before the Supreme Court in the case of Citizens United v. Federal Election Commission, United States deputy solicitor general Malcolm Stewart inadvertently revealed just how extreme our campaign-finance system has become.

The case addressed the question of whether federal campaign-finance law limits the right of the activist group Citizens United to distribute a hackneyed political documentary entitled Hillary: The Movie. The details involved an arcane provision of the law, and most observers expected a limited decision that would make little news and not much practical difference in how campaigns are run. But in the course of the ­argument, Justice Samuel Alito interrupted Stewart and inquired: "What's your answer to [the] point that there isn't any constitutional difference between the distribution of this movie on video [on] demand and providing access on the internet, providing DVDs, either through a commercial service or maybe in a public library, [or] providing the same thing in a book? Would the Constitution permit the restriction of all of those as well?" Stewart, an experienced litigator who had represented the government in campaign-finance cases at the Supreme Court before, responded that the provisions of McCain-Feingold could in fact be constitutionally applied to limit all those forms of speech. The law, he ­contended, would even require banning a book that made the same points as the Citizens United video.

There was an audible gasp in the courtroom. Then Justice Alito spoke, it seemed, for the entire audience: "That's pretty incredible." By the time Stewart's turn at the podium was over, he had told Justice Anthony ­Kennedy that the government could restrict the distribution of books through Amazon's digital book reader, Kindle; responded to Justice David Souter that the government could prevent a union from hiring a writer to author a political book; and conceded to Chief Justice John Roberts that a corporate publisher could be prohibited from publishing a 500-page book if it contained even one line of candidate advocacy.

In June, the Court issued a surprising order. Rather than deciding Citizens United, the justices asked the parties to reargue the case, specifically to consider whether or not the Court should overrule two prior decisions on which Stewart had relied: Austin v. Michigan Chamber of Commerce, a 1990 case upholding a Michigan statute that prohibited any corporate spending for or against a political candidate, and McConnell v. Federal Election ­Commission, the 2003 decision that upheld the constitutionality of the 2002 McCain-Feingold law. The Citizens United case was reargued on September 9, and a decision is pending. But however the Court rules, the debate over campaign-finance laws appears to have suffered a shock.

To anyone following the evolution of the campaign-finance reform movement, it should have been obvious that book-banning was a straightforward implication of the McCain-Feingold law (and the long line of statutes and cases that preceded it). The century-old effort to constrict the ways our elections are funded has, from the outset, put itself at odds with our constitutional tradition. It seeks to undermine not only the protections of political expression in the First Amendment, but also the limits on government in the Constitution itself — as well as the understanding of human nature, factions and interests, and political liberty that moved the document's framers.

By putting the point so bluntly before the Supreme Court, ­Malcolm Stewart may have inadvertently set off a series of events that could, in time, erode the claim to moral high ground upon which the ­campaign-finance reform movement has always relied. At the very least, his frankness invites us to consider the origins and consequences of that movement — and the implications of its efforts for some cherished American freedoms.

THE MISCHIEFS OF FACTION

Concerns about the political influence of the wealthy have never been far from the surface of American political life. The effort to restrict political spending — with the twin goals of preventing corruption and promoting political equality — began in earnest in the late 19th century. But in order to understand that movement and the intense debate it spawned, it is necessary to look back even further — to the founding of the American republic.

Figuring out how to keep special interests under control was a dilemma at the core of the Constitutional Convention. James Madison's most original contribution to political thought may well be his effort, in the Federalist Papers, to demonstrate how the new Constitution would ensure that private interests could not seize control of the government and use its power for their private benefit. Federalist No. 10 in particular addressed the tendency toward, and the dangers of, a government controlled by what Madison termed "factions."

In that essay, Madison recognized that there will always be individuals and interests seeking to use the government to their own ends. His entire approach to government, after all, was based on the notion, expressed in Federalist No. 51, that government is "but the greatest of all reflections on human nature" — and that by nature, men are not angels. Because partiality, the ultimate cause of faction, was "sown into the nature of man," Madison argued in No. 10, the causes of faction could not be controlled in a free republic — at least not without "destroying the liberty that is essential to its existence." This, he quickly added, would be a cure "worse than the disease." Madison's approach to the problem was therefore not to limit the emergence of factions, but to control their ill effects and, where possible, even to harness them for good.

To achieve this end, the Constitution relied on three primary devices. One was the separation of powers within the federal government. In three of the Federalist Papers — Nos. 47, 48, and 49 — Madison elaborated at length on how the separation of powers would protect liberty and, by implication, prevent "factions" (what we would call special interests) from gaining control of the government. The other two devices, federalism and the idea of enumerated powers, were to work in tandem. The creation of separate spheres of action for the various state and federal governments — and the sheer size of the republic — would make it difficult for factions to gain control of the levers of power. ­"­[T­]­he society itself will be broken into so many parts, interests, and classes of ­citizens," wrote Madison in Federalist No. 51, "that the rights of ­individuals, or of the minority, will be in little danger." Because the federal government would concern itself only with matters of "great and aggregate interests" — such as national defense, foreign policy, and regulation of commerce between the states — factions would be limited to minor squabbles of local concern, where they could do relatively little harm. The idea, then, was not to limit the freedom of factions, but to divide and limit the power of government itself so that factional interests could not dominate American politics. And the very fact of the multiplicity and diversity of factions would be a limit on the power of governing majorities.

Of course, a fourth bulwark was soon added: the Bill of Rights, and in particular the First Amendment. The First Amendment was in part a reflection of Lockean principles of natural rights. In Cato's ­Letters — which constitutional historian Clinton Rossiter has called "the most popular, quotable, esteemed source of political ideas in the colonial period" — John Trenchard and Thomas Gordon wrote that freedom of speech was "the right of every man." But the First Amendment guarantees of free speech, assembly, and press were not seen purely as protections against government encroachment on natural rights. Rather, as political scientist John Samples notes, the founders believed that "the liberty to speak would force government officials to be open and accountable." During the crisis over the Alien and Sedition Acts in the early years of the new republic, Madison himself noted that the "right of freely examining public characters and measures, and of communication...is the only effectual guardian of every other right." As Samples argues, these founders realized that for "knowledge to inform politics and decision making, it must be publicly available. If the government suppresses freedom of speech, it prevents such knowledge from becoming public." Thus, freedom of speech was seen as both an individual liberty and a means of advancing the public interest.

Despite these protections, spending on political campaigns was often a source of concern in antebellum America, especially after the rapid expansion of the franchise and the rise of mass campaigns for the presidency and other offices. In 1832, the Bank of the United States spent approximately $42,000 — the equivalent of about a million ­dollars today, in inflation-adjusted terms — to try to defeat Andrew Jackson, who was seeking to revoke the bank's charter. With the growth of industry in the aftermath of the Civil War, political spending began to rise ­rapidly — and corporations became an important source of campaign funding. It has been estimated that by the campaign of 1888, the national Republican Party and its state affiliates were receiving 40 to 50% of their campaign funds from corporations (which benefited from high tariffs supported by the GOP). Democrats, though usually poorer, had their own financial titans — such as banker August Belmont and later his son, August Belmont, Jr., who could be counted on for at least $100,000 (nearly $2 million in inflation-adjusted terms) in just about every campaign in the last half of the 19th century.

But even as money was becoming more important to campaigns, the Constitution's limits on government power (which, in the view of the framers, would also limit the power of factions to manipulate public policy) began to fall out of favor in some important quarters. Beginning in the late 19th century, the influential Progressive movement launched a sharp critique of the founders' notions of enumerated powers and limited government, and even federalism and the separation of ­powers. Progressive theorists such as Herbert Croly and Columbia University law professor Walter Hamilton railed against the constraints that the Constitution placed on government power. ­Hamilton argued that the Constitution was "outworn" and "hopelessly out of place." Croly argued for the need to "overthrow" the "monarchy of the ­Constitution." ­Eltweed Pomeroy — a New Jersey glue manufacturer who became prominent as an author and the leader of the National Direct Legislation League — argued that "representative government is a failure," and sought ways to bypass the checks and balances of the constitutional ­system. In short, the Progressives' goal was a more energetic, less restrained government, which they believed was necessary to meet the demands of a modern industrial society.

It was in this context of hostility to federalism, checks and balances, and limited government that the modern drive to restrict political speech emerged. It started not as an effort to protect our constitutional arrangements from factions that would overpower them, but rather an effort to overcome our constitutional limits on the power of ­government. It was also intended to overcome the loud, messy, unpredictable democratic process, so as to empower a more "elevated" vision of government.

At the 1894 New York state constitutional convention, the progressive Republican icon Elihu Root called for a prohibition on corporate political giving. "The idea," said Root, "is to prevent...the great railroad companies, the great insurance companies, the great telephone ­companies, the great aggregations of wealth from using their corporate funds, directly or indirectly, to send members of the legislature to these halls in order to vote for their protection and the advancement of their interests against those of the public." Root explained that he was concerned about "the giving of $50,000 or $100,000," amounts equal to roughly $1.2 or $2.4 million today. His effort ultimately failed to change the laws in New York — but it did effectively launch the modern movement to limit campaign contributions and speech.

THE PARTY OF SELF-INTEREST

At the same time that R