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No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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  • What It Means to Be An NSA "Target": New Information Shows Why We Need Immediate FISA Amendments
  • Thursday, August 08 2013 @ 10:19 PM EDT
  • In plain English: the NSA believes it not only can (1) intercept the communications of the target, but also (2) intercept communications about a target, even if the target isn’t a party to the communication. The most likely way to assess if a communication is “about” a target is to conduct a content analysis of communications, probably based on specific search terms or selectors. And that, folks, is what we call a content dragnet.

    Importantly, under the NSA’s rules, when the agency intercepts communications about a target, the author or speaker of those communications does not, thereby, become a target: the target remains the original, non-US person. But, because the target remains a non-US person, the most robust protection for Americans’ communications under the FISA Amendments Act (and, indeed, the primary reassurance the government has given about the surveillance) flies out the window. If you communicate about a target of NSA surveillance, your citizenship is irrelevant: the only thing standing between you and NSA surveillance is your IP address or the fiber optic path through which your communications flow. - Mark Rumold, EFF

  • Google Adds 79 Cloud And Big-Data Patents To Its Open Patent Non-Assertion Pledge
  • Thursday, August 08 2013 @ 10:08 PM EDT
  • Earlier this year, Google pledged not to sue open-source developers over 10 patents related to MapReduce. Today, the company is expanding this pledge by adding 79 new patents to its Open Patent Non-Assertion Pledge. These patents, Google says, cover software that is “used to efficiently operate data centers, including middleware, distributed storage management, distributed database management, and alarm monitoring.”

    Google acquired these 79 patents from IBM and CA Technologies and include patents that were filed in the U.S., Europe and Asia. They include patents on things like a “method of creating and using notes decision capsules,” a “database table recovery system” and for a “service agent for fulfilling requests of a web browser.” - Frederic Lardenois, TechCrunch

  • NJ Court to Hear EFF Challenge in Shadow of AG Threat to CDA 230
  • Thursday, August 08 2013 @ 09:47 PM EDT
  • A New Jersey federal district court judge on Friday will hear oral arguments in a challenge to an overbroad state law that, if upheld, would threaten to undermine bedrock legal protections for online speech. The legal challenge was brought by EFF on behalf of the Internet Archive, the San Francisco-based online library that regularly makes copies of the entire Internet, and separately by the law firm of David Wright Tremaine on behalf of classified ad site Backpage.com. A temporary restraining order was granted on June 28, barring the new law from going into effect. Friday's hearing will be the first substantive hearing in which the court will hear arguments from both the plaintiffs and the New Jersey Attorney General's office. It also will be the first opportunity for a court to review such a challenge since a coalition of attorneys general petitioned Congress to gut the clear federal statute that prevents states from targeting service providers like the state is trying to do.

    The New Jersey statute (section 12(b)(1) of P.L. 2013, c.51), which attempts to impose criminal penalties on not only sex traffickers who post online prostitution advertisements but also on service providers who carry or disseminate such advertisements, squarely conflicts with section 230 of the Communications Decency Act (CDA) of 1996. CDA 230 bars enforcement of state criminal laws that attempt to place criminal blame on providers for illegal user-generated content....

    The court's ruling on Friday's motions will likely inform a larger "debate" about CDA 230 itself. On July 24, expressing frustration that they could not target service providers directly for illegal trafficking behavior engaged in by their users, 49 state and territory attorneys general asked Congress to simply do away with section 230's protections altogether for not only state anti-trafficking laws but for all state criminal laws. The proposal is spectacularly misguided and would effectively leave Internet regulation in the hands of individual state law enforcement officers and thrust service providers into the role of policing their users' content for fear of state criminal liability. - Matt Zimmerman, EFF

  • Email service Lavabit abruptly shut down citing government interference
  • Thursday, August 08 2013 @ 09:41 PM EDT
  • "I am unaware of any situation in which a service provider chose to shut down rather than comply with a court order they felt violated the Constitution," said Kurt Opsahl, a lawyer with the Electronic Frontier Foundation....

    "It's taking a very bold stand, one that I'm sure will have financial ramifications," Opsahl said.

    "There should be more transparency around this. There's probably no harm to the national security of the United States to have it publicly revealed what are the legal issues here," Opsahl continued.

    Representatives from the NSA, White House, Justice Department and the Office of the Director of National Intelligence did not immediately reply to a request for comment. - Spencer Ackerman, The Guardian

  • Exclusive: IRS manual detailed DEA's use of hidden intel evidence
  • Thursday, August 08 2013 @ 09:28 PM EDT
  • Details of a U.S. Drug Enforcement Administration program that feeds tips to federal agents and then instructs them to alter the investigative trail were published in a manual used by agents of the Internal Revenue Service for two years.

    The practice of recreating the investigative trail, highly criticized by former prosecutors and defense lawyers after Reuters reported it this week, is now under review by the Justice Department. Two high-profile Republicans have also raised questions about the procedure. - John Shiffman and David Ingram, Reuters

  • N.S.A. Said to Search Content of Messages to and From U.S.
  • Thursday, August 08 2013 @ 09:27 PM EDT
  • The N.S.A. is not just intercepting the communications of Americans who are in direct contact with foreigners targeted overseas, a practice that government officials have openly acknowledged. It is also casting a far wider net for people who cite information linked to those foreigners, like a little used e-mail address, according to a senior intelligence official.

    While it has long been known that the agency conducts extensive computer searches of data it vacuums up overseas, that it is systematically searching — without warrants — through the contents of Americans’ communications that cross the border reveals more about the scale of its secret operations. - Charlie Savage, N.Y. Times

  • Edward Snowden’s Email Provider Shuts Down Amid Secret Court Battle
  • Thursday, August 08 2013 @ 09:23 PM EDT
  • Levison posted this message today announcing the shutdown.

    My Fellow Users,

    I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations. I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on–the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.

    What’s going to happen now? We’ve already started preparing the paperwork needed to continue to fight for the Constitution in the Fourth Circuit Court of Appeals. A favorable decision would allow me resurrect Lavabit as an American company.

    This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States.

    Sincerely,
    Ladar Levison
    Owner and Operator, Lavabit LLC

    Defending the constitution is expensive! Help us by donating to the Lavabit Legal Defense Fund here. - Kevin Poulsen, Wired

  • Unusual Law Clerk Hire for D.C. Circuit Judge Janice Rogers Brown
  • Thursday, August 08 2013 @ 03:31 PM EDT
  • Shon Hopwood's unique career in the law has taken a dramatic new turn. The onetime jailhouse lawyer who served time in federal prison for robbing banks has been hired as a 2014 law clerk for Judge Janice Rogers Brown of the prestigious U.S. Court of Appeals for the D.C. Circuit.

    "I'm amazed at the opportunities and second chances I have been given," said Hopwood Wednesday after returning home to Seattle from his interview with Brown on Monday. Hopwood said the judge offered him the job soon after the interview. "I quickly said yes." - BLT

  • Edward Snowden, the Espionage Act and First Amendment Concerns
  • Thursday, August 08 2013 @ 03:31 PM EDT
  • The very breadth of the Espionage Act provisions allows just such abuse and gives officials the incentive to punish its critics while continuing to leak information favorable to it.

    Such one-sided punishments under the Espionage Act undermine the First Amendment's checking function, which assumes that the strongest restraints on government power come from popular opinion. Secrecy about government activities is especially corrosive to the checking function. The public simply cannot have an opinion on government activities when it is unaware of them. The US government can legitimately argue that secrecy of some sort is necessary to its intelligence operations. But when the very constitutionality of those operations is questionable and involves violating the rights of its own citizens, complete secrecy weakens not just the First Amendment but democratic principles as well. Courts faced with individuals criminally charged with leaking information about actual, significant government abuses of power or illegal government activity should account for this important function of the First Amendment.

    None of this means that government employees should have license to freely disclose information that is legitimately kept secret and critical to our national security. The US Supreme Court recognizes that government employees working with national security issues sit in positions of trust that limit their First Amendment right to disclose information. But it also recognizes that arbitrary criminal prosecutions of speech can chill public discussion on important political and social issues. We must come to some sort of balance in determining whether and how to punish public employee disclosures of confidential information while still allowing the checking function of the First Amendment to operate. Absent that balance, government officials have complete power over all debates by allowing favorable leaks while punishing embarrassing or critical leaks. As one court recently noted, once this happens we enter an "Alice-in-Wonderland" world where everything is upside down, "effectively allowing our Government to claim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws." - Christina Wells, U. Mo.-Columbia School of Law, Jurist

  • Judge won’t enforce ‘usurious’ retainer pact, blasts law firm for ‘condescending’ tone of filing
  • Thursday, August 08 2013 @ 02:59 PM EDT
  • Acting Supreme Court Justice Jeffrey Spinner expressed concern about multiple aspects of the retainer at issue in the Suffolk County case, calling it a contract of adhesion. He noted that it applied an 18 percent annual interest rate to balances that were not immediately paid and waived the client's right to appeal any adverse ruling in arbitration.

    The judge also blasted the law firm for the tone of its filings, contending that it used "an unpleasant, somewhat sarcastic and clearly condescending tone throughout, which, counsel is warned, borders upon conduct that may well be sanctionable." - Martha Neil, ABA Journal

  • Hot Startups Tap Google's Legal Talent
  • Thursday, August 08 2013 @ 02:50 PM EDT
  • From the early days, Google's legal department was daring and game to experiment, say current and former attorneys. It attracted -- and sought out -- a certain kind of lawyer. "You had to be somebody who's kind of interested in seeking out the new and coming up with innovative solutions," said Michael Kwun, who worked at Google from 2004 to 2008 and is now of counsel at Keker & Van Nest. "If you're unwilling to live with a certain amount of uncertainty, or more of the mindset of 'that's just not done,' you didn't get hired."

    Macgillivray, Dropbox GC Ramsey Homsany and Michelle Lee, who is opening the Valley's PTO branch, all joined Google in 2003. Nicole Wong, the White House deputy chief technology officer -- once dubbed "the decider" for her work at Google on censorship issues -- joined the team a year later. Pinterest GC Michael Yang came on in 2005, and Square GC Dana Wagner, who had the briefest Google stint among them, was hired in 2007....

    Google GC Kent Walker noted that the company takes pride when attorneys move on to new ventures. "We aspire to be a place where our lawyers get to wrestle with the most exciting questions in information law and go on to do great things, whether at Google or elsewhere," Walker wrote in an e-mail. - Chelsea Allison, The Recorder

  • Patent Troll Dismisses Frivolous Lawsuit and then Donates to Charity
  • Thursday, August 08 2013 @ 01:51 PM EDT
  • Although this was a win for my company, it was only a win because I had Dan Ravicher and his associate from the Public Patent Foundation (pubpat.org) representing me pro bono. It is extremely rare to get this kind of assistance (I know of no one else out there offering to defend small businesses like mine pro bono from patent infringement allegations) and I am very fortunate that someone as talented as Dan agreed to fight these bullies for free. I asked Dan how much this would have cost me:

    “I’ve spent about 200 hours on the matter and Sabrina about another 80. My comparable market hourly rate (partner at a top NYC patent firm) would be $750 and a comparable rate for Sabrina (senior associate at a top patent firm) would be about $500.”

    The total costs to my company would have been $190,000. And that’s just for the initial response to this lawsuit. We hadn’t even gotten to court which would have increased that amount into millions. Remember that it only cost Lodsys about $450 to file the lawsuit. This is why small businesses will usually always settle. It’s just not worth it to fight. And even if you could win and get awarded your attorneys fees and costs, which are very rare, you probably won’t see a dime of that money.

    This is because patent trolls are set up as shell companies without much in assets. Any money that the patent troll receives from all the licensing agreements is immediately distributed to other companies—this includes the law firm representing the patent troll on contingency and the company that originally held the patent. Any money you might be awarded will be long gone by the time it comes to collect.

    Payments are also sent to the troll using overseas bank accounts. This is mainly to avoid paying US taxes, but it could also make it more difficult to follow the money if an investigation was ever brought on. The patent trolls have created an extortion business model that is virtually risk-free–Nothing to lose and everything to gain.

    There is a lot of talk going on about patent reform, but most of the ideas being discussed would not help small companies. In my next article, I’ll discuss solutions to the problem and my visit to Capitol Hill where I was able to share my story to those that might be able to fix our broken system. Hopefully one day tech startups can stop worrying about patent trolls and get back to building cool stuff....

    Support PUBPAT with a donation - Todd Moore

  • Lodsys Agrees to Dismiss Patent Case Against Small Developer for a Charitable Donation
  • Thursday, August 08 2013 @ 01:47 PM EDT
  • But as noted in a blog post today from developer Todd Moore, whose firm TMSOFT is responsible for several dozen iOS and Mac apps, Lodsys has curiously agreed to dismiss its case against him in exchange for an end to the dispute and a mutual charitable donation from the two sides (via @DotComCTO)....

    Moore notes that the only reason he was able to fight Lodsys in court was that he had pro bono assistance from the Public Patent Foundation, with attorneys there estimating that their time spent on the case could normally have been billed at roughly $190,000 even before it headed to trial. He also highlights the ease with which Lodsys is able to file patent lawsuits against small developers and his continuing efforts at supporting patent reform. - Mac Rumors

  • Why Your Cell Phone’s Location Isn’t Protected by the Fourth Amendment
  • Thursday, August 08 2013 @ 01:38 PM EDT
  • Others argue that the Fourth Amendment should apply more broadly to keep the government at bay. Some look to the concurring opinions in the 2012 Supreme Court decision in United States v. Jones, which applied the Fourth Amendment to G.P.S. surveillance. In that case, the police suspected Antoine Jones, a nightclub owner in Washington, D.C., of drug trafficking. The police wanted to track his movements to show his involvement in the crime, so they attached a G.P.S. tracking device to the bottom of a car he drove, and monitored it for twenty-eight days. The court ruled that installing the physical device “searched” the car under the Fourth Amendment. Five Justices added separate views that the twenty-eight days of monitoring was a search, even if no physical installation occurred.

    If tracking the location of a car over time is regulated by the Fourth Amendment, as five Justices suggested in Jones, why shouldn’t tracking the location of calls receive the same treatment? That argument will receive a serious hearing in other cases now pending in the federal courts. - Orin Kerr, New Yorker

  • Google sniffs at MySQL fork MariaDB: Yum. Have an engineer
  • Thursday, August 08 2013 @ 01:32 PM EDT
  • The objective is for MariaDB to remain the kind of open-source project no single company can own. Widenius has said he regrets not taking steps to stop MySQL, his first love, from eventually being owned by a corporation – namely Oracle.

    “That’s the one mistake I made,” Widenius told The Reg in an interview. “Based on the facts I had then, I’d say everything was done right. If I were able to look into the future, I'd have added one thing to the licence: that this licence is GPL but after three years it reverts to BSD, then Oracle wouldn’t have bought Sun because we’d be free within three years and MySQL would be BSD and nobody could take that away.”

    [PJ: So the leopard hasn't changed his spots. He considers getting out of the GPL "freedom". Google has its own purposes, but if you are an individual coder, think twice and check the license. That's my advice, so you can make sure you know what could happen to any code you donate down the road.] - Gavin Clarke, The Register

  • Bill Gates says Google's internet balloons are 'not going to uplift the poor'
  • Thursday, August 08 2013 @ 01:21 PM EDT
  • Bill Gates has questioned whether Google's Project Loon, an effort to bring giant internet-giving balloons to less-developed countries, is really that good of an idea. During an interview with Bloomberg Businessweek, Gates was asked whether he thought bringing internet to parts of the world would help solve problems. "When you're dying of malaria, I suppose you'll look up and see that balloon, and I'm not sure how it'll help you."

    Gates' nonprofit organization, the Bill & Melinda Gates Foundation, has worked extensively to try to rid developing nations of malaria. "When a kid gets diarrhea, no, there's no website that relieves that," he continued, "certainly I'm a huge believer in the digital revolution."

    [PJ: Actually, he's wrong, not that he ever did understand the Internet. Knowledge does save lives. Access to education does help people get out of poverty. And there is a website -- in fact, more than one -- where you can find out a simple way to help your child who has diarrhea. Here's one. And another. And it's not a binary thing. Gates can work to get rid of malaria while Google simultaneously tries to bring internet connectivity to the same people. Why is that a competition requiring a negative remark? Everyone can do what they are good at.] - Aaron Souppouris, The Verge

  • iPhone Loses Ground to Worldwide Leader Android, Windows Phone
  • Thursday, August 08 2013 @ 12:59 PM EDT
  • Apple's share of the worldwide smartphone operating system market declined year-over-year in the second quarter of 2013, while Android and Windows Phone saw "slight increases," according to new data from IDC. - Angela Moscaritolo, PCMAG

  • Amazon is Now Accepting HTML5 Web Apps—Makes it Easy to Reach Kindle Fire and Android Users
  • Thursday, August 08 2013 @ 12:56 PM EDT
  • Starting today, you can submit your web apps and mobile optimized web sites and have them merchandised alongside native apps on Amazon and Kindle Fire in nearly 200 countries worldwide, without any third-party software or doing any native app development. Amazon Web App Resources (http://developer.amazon.com/webapps) provides the tools that you need to optimize your web apps for Kindle Fire and Android devices to sell them in our store, including powerful tools to help you test and debug your web apps and monetize using Amazon’s In-App Purchasing API for JavaScript. Plus, we’ve made sure your web apps achieve native-like performance on Kindle Fire with our new fast web runtime, based on the Chromium engine....

    The new runtime supports the latest HTML5/web features and includes standards-based extensions that give you access to offline storage and location sensors. - Mike Hines, Amazon

  • Declining IP Rights in India Lead to Growing Bi-Partisan Congressional Concern
  • Thursday, August 08 2013 @ 12:42 PM EDT
  • Notably, India is the only country in the study that is not a signatory for any international IP treaties, such as the Patent Law Treaty (PLT) and World Intellectual Property Organization (WIPO) Internet Treaties.

    Newly implemented policies, compulsory licensing practices, and recent court decisions have heightened concern about IPR in India. Congressmen Erik Paulsen and John Larson expressed their worries with India’s intellectual property violations in a letter written to President Obama. Over 170 members of Congress, consisting of a bi-partisan support, signed the letter.

    [PJ: I see. The US can waive Apple's reverse holdup regarding Samsung's FRAND patent, because the US economy needs and wants iPhones. But if India looks at its own national needs with respect to IP, that's not allowed.] - Kiley Ann White, IPWatchdog


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