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Support our crowdfunding campaign to help us keep covering stories like these! Like many, we wrote about the bizarre filing from San Bernardino County District Attorney Michael Ramos in the Apple/FBI encryption fight -- you know, the one where he speculates randomly that the iPhone might contain evidence of a "dormant cyber pathogen" that is waiting to infect computer systems everywhere? Of course, that was found in his 4 page application to file the full brief, and as far as we can tell, no one else has explored the full 40 page brief that Ramos eventually did file, after magistrate judge Pym granted permission. And, it probably won't surprise you that in a filing that's 10x as long, it's got much more room for crazy arguments, many of which seem to be in the "day is night, black is white" variety. Let's dig in:

Consumer group Public Knowledge has waded into the zero rating debate by filing a formal complaint with the FCC (pdf) over Comcast's use of usage caps to give its own streaming video service a notable advantage in the market. As we've long noted, Comcast hits less competitive markets with usage caps and overage fees its own documents suggest are entirely unnecessary. The company then announced it would be launching a new creatively-named "Stream" streaming video platform that would not count against these usage limitations.

The original Rubik's cube puzzle was invented in 1974, but there were similar puzzles made before -- such as a 2x2x2 cube puzzle and a spherical 3x3x3 puzzle. The patents for these toys have expired, but people playing with these puzzles are still going strong. Speedcubing or speedsolving is a competitive sport, and there are variations on the activity to solve it blindfolded or with feet only or with just one hand. If you have a scrambled Rubik's cube sitting in drawer somewhere, maybe you'll be able to buy a robot to solve it for you soon.

While Id Software is not a complete stranger to lame and opportunistic intellectual property disputes, I have to say the latest dispute involving the video gaming giant has me scratching my head. Via Newsweek, we learn that a small three-person game studio out of Costa Rica, called Green Lava Studios, is being forced to change the name of a port of its PC game, Fenix Rage, for its console release. Have you guessed why yet? No? Well, that's probably because the issue is over Id Software's game R.A.G.E., originally released in 2011. Id Software sent Green Lava Studios a cease and desist letter, citing its trademark on the word "rage" for the purposes of video games.

Mike Masnick took a very in-depth look at the recently declassified legal rationale for warrantless surveillance, authored by torture aficionado John Yoo back in 2002. The long and the short of the letter is this: executive power trumps everything, even the Constitution. The letter was "given" to the FISA court, much in the way an expensive and fragile item is "given" to a toddler. FISC Judge Kollar-Kotelly was allowed to lookat it, but not keep a copy or take notes.

Late last year, we told you about a worrisome effort by the European Commission to saddle the internet with unnecessary regulations. They had released an online "consultation" which was ostensibly part of the effort to create a "Digital Single Market" (a good idea in the world of a borderless internet), but which appears to have been hijacked by some bureaucrats who saw it as an opportunity to attack big, successful internet companies and saddle them with extra regulations. It's pretty clear from the statements and the questions that the Commission is very much focused on somehow attacking Google and Facebook (and we won't even get into the fact that the people who are looking to regulate the internet couldn't even program a working online survey form properly). However, as we noted, Google and Facebook are big enough that they can handle the hurdles the EU seems intent on putting on them: it's the startups and smaller tech firms that cannot. The end result, then, would actually be to entrench the more dominant players.

Global terrorism has accomplished one thing: the continual generation of stupid legislation. Add some panicked law enforcement voices to the mix and some lawmaker is going to feel compelled to throw a Kneejerk Convention.

Support our crowdfunding campaign to help us keep covering stories like these! So, we already wrote about the nutty amicus filing in support of the FBI by San Bernardino's District Attorney, as well as the tons of amicus briefs in support of Apple. However, there are two more amicus briefs that were filed in support of the Justice Department, and we didn't want to leave those out of our coverage either. The main one is a brief from a ton of law enforcement agencies, namely the Federal Law Enforcement Officers Association, the Association of Prosecuting Attorneys, and the National Sheriff's Association.

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Support our crowdfunding campaign to help us keep covering stories like these! In the last week or so, it became quite clear that a fair number of tech companies and organizations in the civil liberties community would file amicus (friend of the court) briefs urging magistrate judge Sheri Pym to side with Apple over the Justice Department and the FBI. However, now that the briefs are in, it's fairly staggering just how many companies, organizations and individuals signed onto briefs supporting Apple. Yes, many of them teamed up and filed briefs together, but it's still a ton. And that's especially true for an issue at the district court level in front of a magistrate judge. Here's the big list put together by Apple, including links to various blog posts and press releases about the filings:

There's been lots of press coverage over the fact that basically a ton of organizations and experts have filed amicus briefs in support of Apple in its legal fight with the FBI/DOJ -- and we'll have a post on that shortly -- but on the flip side, the District Attorney for San Bernardino Country, hilariously arguing that he represents "the people of California" as his client, has filed one of the nuttiest amicus briefs you'll see in favor of the FBI. The full brief application to file a brief is incredibly short and basically makes no actual legal argument pertaining to the actual questions in the case, involving the power of the All Writs Act, or the necessity of Apple's involvement. Instead, it tosses out two insane reasons why it's necessary to get into this phone -- which, again, is the work iPhone of Syed Farook (the DA spells it Sayed) -- both of which are speculative in the extreme:

Multiple Stingray nondisclosure agreements between law enforcement agencies and the FBI have been obtained by FOIA requesters. They all contain the same boilerplate stating that law enforcement officers must do everything up to swallowing their cyanide pills (let suspects walk, route FOIA requests through the FBI, engage in parallel construction, etc.) to prevent information about the technology from making its way into the hands of defendants, judges or peskily inquisitive members of the public.

For a few years now, the city of Portland and the state of Oregon have been jumping through hoops to try and make Portland as attractive as possible for Google Fiber. That has involved rewriting city ordinances so that Google can place its utility cabinets along public rights of way, something previously banned in the city.

I suppose this was inevitable. As video games become more refined as an artform and as those games evince more realistic graphics, animations, and all the rest, I suppose it hadto be that some folks out there would try to pass game footage off as real footage depicting their own power. I just never really thought it would be established nations that otherwise purport to be players on the world stage doing this. Yet, as we have seen done by Egypt, North Korea, and even Russia in the past, so too do we now find that Iran is trying to brag about its own military capability using game footage.

Skipping objects like stones across a calm lake is fun when you're a kid, but it also involves some interesting physics that could be useful for other applications. The Water Bouncing Ball toy can turn anyone into a pretty good "stone" skipper (though, maybe not hitting a record-setting 88 skips). Understanding how objects can skip across water could lead to better ways to travel across water, possibly making shipments cheaper or faster.

Last year, the personal records of 100,000 taxpayers wound up in the hands of criminals, thanks to a flimsy authentication process in the agency's "Get Transcript" application. In short, the IRS used all-too-common static identifiers to verify taxpayer identity (information that could be found anywhere), allowing criminals to use the system to then obtain notably more sensitive taxpayer information and ultimately steal finances. At the time, the IRS breathlessly insisted it would be shoring up its security standards, though it failed to really detail how it would accomplish this.

Some good news for security researchers: the US government's adoption of the Wassenaar Arrangement will no longer treat the tools of security research like crates of machine guns. While exploits and penetration tools can be used by bad people for bad things, they're also invaluable to security researchers who use these to make the computing world a safer place.

We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.

So this is disappointing. While Amazon has come out in support of Apple's fight against the DOJ on backdoors, and its CTO, Werner Vogels just gave an impassioned speech in favor of encryption, the company itself... has removed encryption from its Fire OS 5. This is getting a lot of attention today in response to this tweet from cybersecurity guy David Scovetta:

Last week, we wrote about the exciting decision by President Obama to nominate Dr. Carla Hayden to be the next Librarian of Congress. As we noted at the time, she seemed immensely qualified for the position, having successfully run and modernized the Enoch Pratt Free Library in Baltimore. She also clearly recognized the importance of open access and access to culture. Given the job, there's really no honest reason that people can find to criticize the choice. She seems almost perfectly qualified for the position.

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This week, the Canadian government will begin forcing Canadian cable operators to provide cheaper, more flexible cable TV packages. Under the new CRTC rules, companies must provide a so-called "skinny bundle" of discounted TV channels starting March 1, and the option to buy channels a la carte starting December 1. But while the CRTC's attempt to force innovation on the cable industry may be well-intentioned, it's already clear that Canadian cable operators plan to do everything in their power to tap dance around the requirements.

Mark Twain can be the subject of fascinating discussion for any number of reasons, but around these parts we talk intellectual property. Some years back, Mike wrote about Twain's support for copyright extensions, including when he even went so far as to advocate for infinite copyright. Well, it turns out that Twain's concept of infinite copyright might have been particularly germane to his legacy, as EFF's Parker Higgins takes us on a delightful stroll, over at Fusion, through the historical copyright case concerning the novel Twain might or might not have written...from beyond the grave.

Well here's a surprise. The Wall Street Journal Editorial board, which is notoriously pro-surveillance, has come out with an editorial that argues that Apple is right on encryption and should resist the FBI's demands. I was not expecting that. This is the same WSJ that fought hard against amending the PATRIOT Act, which it insisted was necessary for surveillance. This is the same WSJ that published an editorial calling Ed Snowden a sociopath and arguing for less oversight of the NSA. Hell, it's the same WSJ that a little over a year ago published a piece by former publisher L. Gordon Crovitz, arguing that Apple is crazy for not installing backdoors in its iPhones.

For years incumbent ISPs like AT&T have spent millions lobbying for laws in roughly twenty states prohibiting towns and cities from building or expanding broadband networks -- even in cases of obvious market failure. The laws are pure protectionism, taking the right to make local infrastructure choices out of the hands of local communities -- all to protect companies like AT&T from the faintest specter of competition. And while some states have been waking up to the fact that letting AT&T write protectionist state law hurts consumers and state businesses longer term, Missouri apparently isn't one of those states.

Lots of brands seem to feel trademark infringement should be greeted with the full brunt force of the law -- even though it's rarely anything more than a civil offense. Counterfeited goods are their own issue, with Good Guy ICE on hand to run interference for major studios, the NFL and anyone else with a significant amount of lobbying power. Counterfeiters can end up in jail, but entities that do nothing more than use a trademarked name/logo without permission or in a "confusing" fashion? Not so much.

The history of evolution has been largely erased by time and poor record keeping. Sure, we still have a few genomes that look remarkably similar to ancient organisms, and we can try to make some educated guesses about how life on earth developed. We might even be able to re-animate some extinct animals, but we'll never be able to re-capture the full environment and complex ecology that no longer exists for our most distant ancestors. Still, it's fascinating to study evolution and to try to witness it in action.

A bit of a follow up to yesterday's story about Brazilian law enforcement arresting Facebook vice president for Latin America, Diego Dzodan, because Whatsapp (a Facebook subsidiary) refused to help in a drug trafficking case. This was a ridiculous move by almost any measure: (1) While Whatsapp is a Facebook subsidiary, it's operated independently, so arresting a Facebook exec is like arresting an investor for what one of its companies does; (2) Whatsapp uses strong end-to-end encryption from Open Whisper Systems, the folks who make the gold standard encrypted communication system Signal Private Messenger, meaning that it's impossible for Whatsapp or Facebook to decrypt messages; and (3) jailing unrelated executives over issues like that is just insane.

The DEA's South California wiretap kingdom is crumbling. Run almost solely through a single, very obliging judge and approved by an assortment of DA's office underlings, the wiretap warrants were so toxic the DOJ wouldn't touch them. Local prosecutors would, however, but now they're finding their cases falling apart.

In a comprehensive look at Delaware State Police usage of Stingray devices at DelawareOnline, there's this very darkly amusing factoid. (h/t Nathan Burney via Brad Heath)

As the FCC continues its push to open up the cable set top box market to competition, one of the companies that could benefit the most from such a shift isn't willing to support the initiative. The FCC's plan calls for the cable industry to deliver its existing cable content to third-party hardware, creating a new competitive market and putting an end to the $20 billion in fees consumers pay yearly for often-outdated hardware. But unlike companies like Google and TiVO, Roku isn't supporting the plan, making it clear this week the company doesn't want to upset its friends in the cable industry:

A few weeks ago, Donald Trump's spokesperson claimed that he had "single-handedly brought back free speech." It was an odd thing to say for a variety of reasons. First, the US has really strong free speech protections and they haven't gone away (even if there are some threats to them). That is, free speech doesn't need to be "brought back" because it's already here. Second, Trump himself, just a few weeks earlier was quoted deliberately mocking free speech, claiming that people who support it are "foolish people." And then, of course, there's the fact that Trump has a very, very long and detailed history of both threatening to sue, and actually suing, over the speech of others. As Walter Olson noted:

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With our ongoing crowdfunding campaign concerning our coverage of the encryption fight, EFF Executive Director Cindy Cohn kindly offered to write a plea on our behalf as to why you should fund our efforts.

Congressional hearings involving law enforcement and intelligence folks tend to be fawning affairs, with most of Congress willing to accept whatever these guys have to say. Sure, you'll always have a few people critical of certain aspects, but generally speaking, Congress is especially friendly to the FBI, NSA, CIA, etc. So it must have come as a bit of a shock to FBI Director James Comey that during a long House Judiciary Committee hearing yesterday, they seemed pretty pissed off at Comey's belief that the courts should force Apple to help him open up encrypted iPhones.

At the Mobile World Congress convention in Spain last week, one of the most well-hyped products in convention history was something that doesn't technically exist. Fifth generation wireless (5G) was all the rage at the show, with multiple carriers promising they were in various stages of bringing the new ultra-fast wireless standard to consumers. The problem is that while engineers have a general idea of some of the technologies that may be included in the final standard when approved, nobody actually knows what 5G is yet. And when it does finally get solidified, it's likely to be 2020 or later before actual launches occur.

As Techdirt has reported over the years, views on whether software should be patentable, and if so, to what extent, have ebbed and flowed. In the US, the Supreme Court's decision in Alice v. CLS Bank seems to have established that most software isn't patentable. In the EU, the fate of software patents is less clear. According to the European Patent Convention, patents are not available for computer programs "as such" -- but that metaphysical "as such" rider has allowed thousands of software patents to be issued anyway. Muddying the waters further is the Unified Patent Court, which may or may not come into existence soon, with almost unchecked powers to reshape the patent landscape in Europe. In India, by contrast, the situation regarding software patents has just been clarified, and in a rather dramatic manner. An informative press release from India's Software Freedom Law Centre (SFLC.in) explains that last August the Indian Patent Office published some Guidelines for Computer Related Inventions (CRIs), which would have opened the floodgates to software patents. In response:

Last September, Techdirt reported on the EU's plan to replace the highly-controversial corporate sovereignty provisions in TAFTA/TTIP -- the "investor-state dispute settlement" (ISDS) chapter -- with something it called the "Investor Court System" (ICS). As we reported then, even if ICS addressed all the problems of ISDS -- spoiler alert: it certainly doesn't -- there was a huge backdoor in the form of CETA, the trade deal between the EU and Canada. If CETA includes old-style corporate sovereignty provisions, US companies with subsidiaries in Canada will be able to use CETA to by-pass TAFTA/TTIP's new ICS system completely, and sue EU nations using ISDS with all its widely-recognized faults. In fact, Bernd Lange, the MEP with responsibility for making recommendations on how the European Parliament (EP) should vote on international trade matters, said at the time that he would not support CETA if it included ISDS. The arrival of a new government in Canada while CETA is still undergoing "legal scrubbing" -- checking and tweaking the exact wording -- has given the European Commission the opportunity to re-negotiate the corporate sovereignty chapter in CETA, even though it rather sneakily claimed it couldn't do that. But it turns out it could, and did, in a move that is likely to have important repercussions:

Despite our supposed intelligence, humans don't actually know how our own brains work. But even in our ignorance, we're still developing algorithms and machines that might catch on to how we learn and think. Google's autonomous vehicle project has a pretty good driving record, except that the world is messy, and predicting how human drivers will react isn't always certain -- especially when they drive buses. Our relationship with robots is going to be more and more complex in the next few years. We'll need to recognize when robots are faulty, and that might get harder and harder to do.

It's been no secret that Tidal, Jay-Z's foray into the music streaming business, hasn't exactly had the success it was supposed to have. In the wake of all the angry sentiment about just how much other streaming services were paying musical artists, Tidal positioned itself as artist-friendly, the option for fans that want to make sure musicians get paid. It sounded great, except now Tidal finds itself joining the club of streaming services facing legal action over artist royalties.

Back in December, we noted that, somewhat ridiculously, all of the super popular Whatsapp service (owned by Facebook) was blocked in Brazil, because Facebook refused to reveal information on Whatsapp users as part of a drug trafficking investigation. While the court only allowed the block to last for a little while, apparently things have escalated, with a senior Facebook exec now being arrested for failing to cooperate in this case:

We all know the patent system is riddled with problems, and badly in need of reform. But reform comes slowly — really, really slowly. So some tech companies have been doing what they do best: innovate. They are finding ways to get around the biggest problems of the patent system without waiting on go-nowhere legislative reform efforts. This week we're joined by Julie Samuels, President of the Board at Engine, to discuss the innovation-based approach to navigating the patent system and changing patent culture with a focus on a new paper from Engine and EFF on hacking the patent system. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Google's self-driving cars have driven millions of miles with only a dozen or so accidents, all of them being the fault of human drivers rear-ending Google vehicles. In most of these cases, the drivers either weren't paying attention, or weren't prepared for a vehicle that was actually following traffic rules. But this week, an incident report by the California Department of Motor Vehicles (pdf) highlighted that a Google automated vehicle was at fault in an accident for what's believed to be the first time.

Oh, John Yoo. The former top Bush administration lawyer -- who is already well-known for writing that administration's (totally bullshit) "legal defense" for torture -- has also been an outspoken advocate for NSA surveillance as well. Soon after the Snowden revelations, Yoo defended the NSA arguing that the 4th Amendment shouldn't apply to the NSA because it takes too long. Then, he said that judges shouldn't be allowed to determine if the NSA violated the 4th Amendment because they're too out of touch with the American public. It's long been known that Yoo also was deeply involved in creating the legal justifications for that very warrantless surveillance program he's been defending, and now, finally, years later, the Office of the Director of National Intelligence has released the May 17, 2002 letter that Yoo sent to the FISA Court chief judge Colleen Kollar-Kotelly. You can read it here.

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Williams Lake, British Columbia apparently has a bit of a crime problem. According to CTV News, it consistently ranks towards the top end of the violent crime charts for communities of its size. Early last week, the Royal Canadian Mounted Police released a video of a man pulling a gun on a Williams Lake resident and stealing his bike.

Most people realize that the cable and broadcast industry has worked tirelessly to protect its legacy cash cow from disruption. Dish was forced to make its ad-skipping DVR less useful if it wanted streaming licensing rights. Fox, Disney and Comcast/NBC for years kept Hulu from being too disruptive. ESPN sued Verizon for trying to offer more flexible TV lineups. Apple keeps running face first into broadcasters terrified of real disruption with its own TV plans. That's before you even get to cable companies busy capping and metering usage to hurt streaming services, while zero rating their own services for competitive advantage.

Everybody has obviously been focused on the DOJ's All Writs Act request on Apple in the case involving the San Bernardino attacker's work iPhone, but as we've been covering there are a other cases where the feds have made use of the All Writs Act as well, including a key one in NY in the court of Magistrate Judge James Orenstein that we've been covering for a while now. Orenstein has already expressed skepticism about the government's argument, and now has come out with a well timed order denying it.

For some time now, we've been covering the UK's plan -- led by Home Secretary Theresa May -- to pass a new Snooper's Charter that would increase surveillance powers greatly in the UK. There's been a growing amount of criticism of the plan in the UK, so rather than respond to it, May has simply moved to fast track the bill, officially called the Investigatory Powers Bill. The bill will officially be "published" today on March 1, and then will likely be voted on before the end of April.

This month, we feature yet another patent that takes an ordinary business practice and does it on a computer. Our winner is US Patent No. 8,738,435, titled "Method and apparatus for presenting personalized content relating to offered products and services." As you might guess from its title, the patent claims the idea of sending a personalized marketing message using a computer. Claim 1 of the patent is representative (the claims are supposed to describe the boundaries of the invention). It claims a "method of generating a set of personalized communications … with a computer system." The steps are described at an extremely high level of abstraction, including things such as "accessing a computer-accessible storage medium" using "identifying content to distinguish each person from other persons." The patent plainly proposes using ordinary computers to achieve this task. In fact, the "preferred embodiment of the apparatus" is illustrated in Figure 1 and includes fascinating, non-obvious details like a "display," a "keyboard," and a "mouse or pointing device." Attentive readers have probably already concluded that the claims of US Patent No. 8,738,435 are almost surely invalid under Alice v. CLS Bank, the 2014 Supreme Court decision which held that abstract ideas implemented on a generic computer are not patent eligible. We agree. But this has not stopped a company called Phoenix Licensing, LLC, from suing more than 100 targets with this and other highly questionable patents from the same family (a patent family is the group of issued patents that come from the same application). Phoenix Licensing has filed at least a dozen lawsuits just this month against companies ranging from CVS to Credo Mobile. Unsurprisingly, given that its patents are so vulnerable to challenge under the Alicestandard, it has filed all of these lawsuits in the Eastern District of Texas. Recent data shows that the Eastern District of Texas is much less likely than other federal courts to invalidate patent claims under Alice. This helps explain why a dispute between Phoenix Licensing (principle place of business in Scottsdale, Arizona) and Credo Mobile (headquartered in San Francisco) would end up way out in East Texas. In its complaint against Credo Mobile, Phoenix Licensing boasts that its original 1996 patent application has grown into a patent family of 19 patents with more than 1,500 issued claims. But this is not evidence of inventiveness. Rather, it simply shows that the Patent Office is asleep at the wheel. The Patent Office has allowed Phoenix Licensing's mundane idea -- using a computer to send personalized marketing messages -- to grow like a Chia pet into a thicket of patent claims. We have seen similar strategies from other patent trolls who exploit the permissiveness of the Patent Office to get an absurd number of nearly-identical claims, which can then be used to force defendants to play an expensive game of whack-a-mole in court. This creates enormous settlement pressure. Indeed, most of Phoenix Licensing's cases settle quickly after filing. The Phoenix Licensing story shows that we still need reform both in the courts and at the Patent Office -- to stop abusive patent litigation and to stop these stupid patents from issuing in the first place. Reposted from the EFF Deeplinks Blog