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Terrible Ruling Allows Untied To Keep Its Domain But Not Its Soul
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Terrible Ruling Allows Untied To Keep Its Domain But Not Its Soul

Let's jump back in the wayback machine for a moment and discuss Untied, your primary source for customer and employee complaints about United Airlines. When we last wrote about the site in 2012, we first mentioned that Untied.com has been a thing since 1997 before detailing the lawsuit United Airlines filed in Canada after it found that Untied.com had redesigned its parody site to look more like United.com.

Untied, if you are not aware, is a site that started with a single person's complaint about United Airlines customer service before morphing into an aggregator of such complaints from both customers and internal airline staff and former staff. If you want a bible to be written on what United has done wrong in the realm of customer service, you need not worry because Untied.com is that bible. Had this suit been filed in America, it would face a mountain of caselaw suggesting that so-called "sucks sites" are well within the boundaries of protected nominative fair use. It's worth mentioning that Untied doesn't actively attempt to mislead visitors to the site into thinking it's affiliated with the airline. In fact, visitors are shown a popup upon visiting that alerts them to Untied's status as a parody site. Even a cursory glance at the site's contents would confirm that status, as the entire site is dedicated to taking a metaphorical dump on United Airlines' reputation.

Despite the site having existed for so long, and despite the fact that the Streisand Effect exists, United Airlines filed its lawsuit, bringing all manner of attention to Untied that it otherwise would not have had, even as the airline is and has been maligned in nearly every corner of the internet for its laughable attempts at customer service. In its filing, United Airlines insisted that Untied had infringed its trademark rights and copyright rights with the site. It requested an injunction against the site before suggesting that just to make sure the injunction was clear, maybe the court ought to just hand the site over to United Airlines to boot.
"If the Court finds in favour of United Airlines and determines that an injunction should issue, the injunction needs to be clearly understood by the parties, and in particular the Defendant. As such, the Court may need to consider ordering the Defendant to transfer ownership of the domain name and other internet presences to ensure the injunction is clear and will be respected."

Well, the court has ruled on the injunction. The good news is that the court declined to hand over the Untied.com domain to the airline. The bad news is that court does rule that the site is infringing both United's copyright and trademark rights and instead said Untied can only keep its name if it ceases to be Untied at all.
The Plaintiff is entitled to an injunction restraining the Defendant’s use of the United Marks and the copyrighted works. The Court retains jurisdiction over this matter to provide effective relief against the Defendant. The Defendant may retain the use of the domain name www.untied.com – however, this must not be in association with the same services as provided by the Plaintiff.

As the folks who run Untied explain, the entire argument that United Airlines made in this action is that it too provides consumer feedback and complaint services for its own business, which is why it declared the public would be confused by the site. Effectively, this ruling allows Untied to keep its domain, but only if it ceases to be Untied.
Keeping in mind the position argued by United, that one of its "services" is dealing with passenger complaints, this would mean that the injunction would prevent Untied.com from existing as a site hosting passenger complaints against United. I feel that I have no choice but to bring this decision to the Federal Court of Appeal. Even if the wheels of justice are stacked against me as a self-represented litigant, defending myself against a massive corporation with virtually unlimited resources, I don't want to throw in the towel in defeat.

It's nice to see someone want to fight this out, but the focus here also needs to be on what an absolutely atrocious ruling this is from the court. Parody is to be protected on matters of copyright, whereas trademark law is focused on real or potential customer confusion within the marketplace. Again, this suit was filed in Canada, so the exact American standard for fair use doesn't apply, but no serious examination of the Untied.com website would lead to the conclusion that confusion was any issue, only strengthening the stance that the parody status of the site ought to protect it from the copyright claim. To, in the face of all that, first rule otherwise and then make this meaningless concession only adds insult to injury. For United to spend half a decade doing battle with a site that echoes many others' disdain for United's customer service in the name of trying to censor that site makes zero sense from a purely business perspective.

Perhaps, rather than spending half a decade fighting a website about customer service complaints, United Airlines could have spent that time and money providing better customer service and not dragging paying passengers off their airplanes.

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Senator Wyden Argues FCC Is Either Incompetent Or Lying About Alleged DDoS Attack
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Senator Wyden Argues FCC Is Either Incompetent Or Lying About Alleged DDoS Attack

Last week we noted how the FCC was acting incredibly suspicious in regards to its May claim that a DDOS attack, not annoyed John Oliver viewers, brought down the agency's website shortly after Oliver's latest rant on net neutrality. Despite pressure from journalists and several Senators, the FCC is simply refusing to release any data providing the existence of the attack, resulting in many media outlets not so subtly implying that the agency was lying:

"The FCC’s refusal to produce records of any true relevance reflects pressure from the agency’s upper echelon to limit the disclosure of information about the incident to a handful of carefully crafted public statements...It would be hard for a government agency to do more to give off the impression that it was engaged in a cover up. That’s troubling given the rise of questions over the FCC’s integrity.

As we noted last week, there are really only two options here. One, the FCC was attacked coincidentally at the same time John Oliver's program aired, it just failed to do any meaningful written analysis of the attack, and has zero interest in being transparent about it. Two, the FCC made up the attack completely to try to deflate all the talk about the "John Oliver effect" in the press, a misguided continuation of the agency's clear desire to downplay the massive public opposition to Pai's plan to kill net neutrality.

Based on the FCC's other recent behaviors in regards to ignoring comment fraud to this same purpose, it's fairly obvious the latter is a very real possibility. But with the FCC refusing to comply to FOIA requests, it's going to take some notable outside pressure to get to the truth. That's not going to be easy given that despite broad bipartisan support for the rules, ISPs have successfully convinced the public this is a partisan issue, which helps them stall meaningful discourse by bogging the entire process down in thinking-optional partisan patty cake.

Under the din of this dysfunction, Senator Ron Wyden was quick to highlight at the hearing that the FCC doesn't look particularly good here regardless of your political leaning:

"Senator Ron Wyden...stated in an email to Gizmodo that the agency’s response to Gizmodo’s FOIA request raised "legitimate questions about whether the agency is being truthful when it claims a DDoS attack knocked its commenting system offline."

The Oregon senator said it was critical that the agency produce evidence of the attack, if only so independent experts could verify and learn something from it. He continued: "If the FCC did suffer a DDoS attack and yet created no written materials about it, that would be deeply irresponsible and cast doubt on how the FCC could possibly prevent future attacks. On the other hand, if FCC is playing word games to avoid responding to FOIA requests, it would clearly violate Chairman Ajit Pai’s pledge to increase transparency at the FCC."

The FCC's contention is that for fifteen hours after the attack, nobody sent an e-mail, wrote a memo, or documented this supposed attack in any fashion. And again, this lack of transparency about any of this is in stark contrast to FCC boss Ajit Pai's repeated, breathless claims that he was going to bring a new wave of transparency to the agency. This lack of transparency will become increasingly stark as the agency continues to gut popular, meaningful consumer protections -- leaving the only thing standing between you and your carrier's bullshit is an unelected bureaucrat that believes anti-competitive behavior in the telecom sector isn't a real problem.

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Daily Deal: Project Management Professional (PMP) Certification Training
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Daily Deal: Project Management Professional (PMP) Certification Training

Learn how to create, effectively manage and deliver desired results by learning Project Managment skills. For $49.99, the Project Management Professional Training will help you learn the skills needed. It features over 35 hours of training approved by the Project Management Institute. At the end, you will have knocked out the 35 contact hours requirement and be ready to sit for the PMP and CAPM exams (not included in the deal) in order to gain your certification and set yourself apart in the job market.

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Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

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Watchdog Stings Defense Dept., Obtains $1.2 Million In Military Gear With A Fake Cop Shop
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Watchdog Stings Defense Dept., Obtains $1.2 Million In Military Gear With A Fake Cop Shop

The Defense Department's 1033 program allows local law enforcement agencies to buy military equipment. Often, the purchases are made easier with sizable grants, meaning agencies can load up on assault rifles, grenade launchers, armored vehicles, and extra ammo at nearly no cost. (They can also get computers, office furniture, etc. through these grants, but if that were the extent of the program, there would be zero controversy.)

The 1033 program is supposed to be tightly controlled and every acquisition vetted to prevent high-powered military gear from falling into the wrong hands. We've already noted local agencies aren't performing much in the way of oversight, resulting in several agencies receiving suspensions for failing to account for the whereabouts of purchased gear.

The problem, however, isn't just on the receiving end. The Defense Department isn't doing much in the way of due diligence when adding new agencies to the list of military gear purchases. The Government Accountability Office (GAO) performed a sting operation, setting up a fake law enforcement agency to see if it could acquire used military gear. By the end of it, the fake agency had obtained $1.2 million in gear, all without ever having to speak directly with anyone at the Defense Department. From the GAO's report [PDF]:
[O]ur investigators, posed as authorized federal law enforcement agency officials of a fictitious agency, applied and were granted access to the LESO [Law Enforcement Support Office] program in early 2017. In late 2016, we emailed our completed application to the LESO program office. Our application contained fictitious information including agency name, number of employees, point of contact, and physical location. We also created mail and e-mail addresses, and a website for our fictitious law enforcement agency using publicly available resources. All correspondence, including follow-up questions regarding our application, was conducted by email with LESO officials.

The first application was sent back for fixes. The revised application -- still loaded with fake info -- sailed through. It even included fake legal authorization.
LESO officials also emailed us to request confirmation of our agency’s authorizing statute; in response, our investigators provided fictitious authorizing provisions presented as a provision in the U.S. Code. At no point during the application process did LESO officials verbally contact officials at the agency we created—either the main point of contact listed on the application or the designated point of contact at a headquarters’ level—to verify the legitimacy of our application or to discuss establishing a MOU [Memorandum of Understanding] with our agency.

Not only were there no phone calls, there was no attempt by LESO officials to physically verify the existence of this fictitious law enforcement agency.
LESO’s reliance on electronic communications without actual verification does not allow it to properly vet for potentially fraudulent activity. For example, DLA [Defense Logistics Agency] did not require supervisory approval for all federal agency applications, or require confirmation of the application with designated points of contact at the headquarters of participating federal agencies. Additionally, at the time we submitted our application, DLA officials did not visit the location of the applying federal law enforcement agency to help verify the legitimacy of the application.

Since the DoD didn't perform any sort of prerequisite checks, it comes as no surprise it paid little attention to who was receiving the 1033 handouts.
Our independent testing of DLA’s internal controls also identified deficiencies in the transfer of controlled property, such as DLA personnel not routinely requesting and verifying identification of individuals picking up controlled property or verifying the quantity of approved items prior to transfer.

[...]

Using fictitious identification and law enforcement credentials, along with the LESO-approved documentation, our investigator was able to pass security checks and enter the Disposition Service warehouse sites. Personnel at two of the three sites did not request or check for valid identification of our investigator picking up the property.

From the GAO's description, acquiring controlled items appears to be no more difficult than shopping on Amazon.
Our investigators, after being approved to participate in the LESO program, obtained access to the department’s online systems to view and request controlled property. We subsequently submitted requests to obtain controlled property, including non-lethal items and potentially-lethal items if modified with commercially available items. In less than a week after submitting the requests, our fictitious agency was approved for the transfer of over 100 controlled property items with a total estimated value of about $1.2 million. The estimated value of each item ranged from $277 to over $600,000, including items such as night-vision goggles, reflex (also known as reflector) sights, infrared illuminators, simulated pipe bombs, and simulated rifles.

And, to top everything off, the DLA managed to ship this fake agency more items than it actually requested.
Furthermore, although we were approved to receive over 100 items and the transfer documentation reflects this amount, we were provided more items than we were approved for. The discrepancy involved one type of item—infrared illuminators. We requested 48 infrared illuminators but onsite officials at one Disposition Services site provided us with 51 infrared illuminators in 52 pouches, of which one pouch was empty.

The report goes on to note the DLA has never performed its own fraud audits, suggesting it has almost no interest in ensuring military gear only ends up in the hands of approved and thoroughly-vetted law enforcement agencies. Yes, all of this appears to be changing going forward, but considering the 1033 program has transferred billions of dollars of equipment already, there's really no telling how many others have obtained equipment with fictitious entities or simply ended up with a bunch of items they never ordered. That the weapons obtained were only simulators is of little comfort. They're simply modified versions of the real thing which could be made operable again with items obtained from non-government entities.

It's not that the DoD is only a few steps away from being logistically-bulletproof either. The GAO report notes the systems and controls used aren't even adequate -- which would be the minimum needed to ensure control of potentially-dangerous items. When presiding over the distribution of military gear, the DoD needs to implement controls far surpassing "adequate." So far, it can't even meet this very low bar.

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$89 Billion AT&T, Time Warner Merger Approval Looking Likely Despite Trump Pledge To Block Deal
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$89 Billion AT&T, Time Warner Merger Approval Looking Likely Despite Trump Pledge To Block Deal

Needless to say, consumer advocates and smaller competitors aren't too keen on AT&T's $89 billion plan to acquire Time Warner. They argue that AT&T's long history of unethical behavior, empty promises, and anti-competitive shenanigans make it extremely likely the company will use its greater size and leverage to ill effect. They worry that AT&T will make it harder for competitors to license content necessary to compete with AT&T's DirecTV Now streaming service, and arbitrary usage caps and other tricks like zero rating to similarly put competitors at a disadvantage.

Traditionally, these kinds of vertical integration deals aren't blocked because it's harder to clearly prove potential antitrust harm, even if AT&T has a thirty-year documented history of all manner of fraudulent behavior. On the campaign trail, Trump repeatedly promised that this was a deal his administration simply would not allow, given the "concentration of power" the deal would deliver:

"In an example of the power structure I’m fighting, AT&T is buying Time Warner and thus CNN -- a deal we will not approve in my administration because it’s too much concentration of power in the hands of too few.

Trump, of course, said a lot of things on the campaign trail, including promising to break up Comcast's already-completed 2011 acquisition of NBC, something Trump couldn't have done even if he wanted to. And while some thought that Trump's disdain for Time Warner-owned CNN would throw a wrench in the deal works, there's no indication that's going to happen. AT&T has already streamlined its chances for the deal by selling any assets that would have triggered an FCC review, and Trump subsequently appointed a DOJ antitrust boss on record stating he has no problem with the deal.

The fact that Trump's FCC has become a rubber stamp for every shitty idea coming out of AT&T's, Verizon's and Comcsast's collective heads should also likely clue people into which direction deal approval was leaning.

So not too surprisingly, media reports on the progress of the merger talks indicate AT&T's conversations with antitrust officials have shifted from whether the deal will be approved to finalizing what, if any conditions will be affixed to the deal:

"The early-stage discussions suggest that government lawyers have nearly finished their months-long look at how AT&T, the biggest pay-TV distributor, would reshape the media landscape with its bid for the owner of CNN and HBO -- and shows that the sides have moved on to talking about how they can make the merger work without harming rivals."

More accurately, they've moved on to talking about how they can make it appear that the merger could work without harming rivals, since, as we've long documented, the conditions affixed to these kinds of deals are traditionally only theatrical in nature. More often than not, the conditions are proposed by these telecom companies themselves, often requiring that companies do something they'd already planned to do anyway. In AT&T's case, it usually involves fudging their existing broadband deployment numbers, then promising a new broadband expansion that may or may not actually materialize.

We've documented how AT&T in particular is a long-standing professional at making all manner of bullshit promises if their mergers get approved, with regulators never really learning much of anything with hindsight. With Trump being no stranger to flimsy telecom promises of his own (his promise to block this deal being example A), the merger's going to create a wonderful opportunity for bullshit synergies the likes of which we may never see again.

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All Quiet On The Tech Front As The Clock Ticks Down On Section 702 Renewal

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All Quiet On The Tech Front As The Clock Ticks Down On Section 702 Renewal

Things have been mostly quiet as Congress heads towards the possible renewal of Section 702 surveillance powers. The NSA, oddly, made the most noise by dropping its "about" collection because it simply couldn't (or wouldn't) stop harvesting US persons' communications. As usual, privacy activists are sounding the alarm but the general level of noise at the Congressional level is nothing compared to the runup to Section 215's renewal.

Quieter is better for the Trump administration, which has already expressed its desire for a clean reauthorization. There are plenty of surveillance hawks who would rather no one messed with the approval process and a few of those have the power to stonewall any legislative reforms that might make their way to the House or Senate in the coming months.

But the noisiest silence is emanating from the tech sector, whose platforms and services are integral to the NSA's harvesting of internet communications and data.
Facebook, Alphabet's Google, Apple and other major technology firms are largely absent from a debate over the renewal of a broad U.S. internet surveillance law, weakening prospects for privacy reforms that would further protect customer data, according to sources familiar with the matter.

While tech companies often lobby Washington on privacy issues, the major firms have been hesitant to enter a fray over a controversial portion of the Foreign Intelligence Surveillance Act (FISA), industry lobbyists, congressional aides and civil liberties advocates said.

Some of this could be due to the fact that some surveillance activities happen without any direct assistance from these companies. The NSA also pulls communications from internet backbones and taps on transatlantic cables. Speaking up against this surveillance may subject companies to additional demands, rather than allow them to go comparatively unmolested.

Other contributing factors are mostly business-related. Interfering with collections (or their authority) may make the worldwide transmission of internet communications a bit more hazardous, especially if the NSA's collections run afoul of foreign privacy laws.
The companies' relative inactivity is explained by several legal challenges in Europe to an agreement between the United States and the European Union, known as the Privacy Shield, the sources said. The litigation hinges on whether U.S. surveillance practices afford enough privacy safeguards. A coalition of human rights organizations has urged Europe to suspend Privacy Shield unless Section 702 is substantially reformed.

U.S. technology companies have privately bristled at those efforts, three industry lobbyists [said], in part because expectations that 702 reforms will pass Congress are low.

"If you link them and you lose one, you lose both," said one of the lobbyists, who like the others requested anonymity to discuss private conversations with technology companies.

Rather than step into the fight, tech companies are on the sideline, holding their collective breaths. The chances of serious reform are minimal, what with the President preferring a clean re-auth. If the European Union decides the United States isn't taking foreigners' privacy seriously, it may act to block collections by booting American tech companies out or requiring sequestered servers that can't be reached by American surveillance efforts.

Obviously, neither outcome works for the NSA either. It needs as much cooperation as possible from foreign partners in order to elude privacy protections the US extends to other nations' citizens. Casting its net in international waters muddies jurisdictions, as do information-routing efforts like Google's that send communications from server to server based on efficiency, rather than country of origin. Relying on foreign intelligence agencies' intercepts also helps both partners evade local restrictions.

The Fortune article also notes there's a distinct lack of clarity to the Section 702 debate at this point, one that doesn't encourage any company to open its mouth when there's billions of dollars of services on the line. Some privacy activists hope this changes as the debate moves forward, but considering the programs aren't directly affecting Americans (unlike Section 230's domestic collections), it's a harder sell. No one is asking for the collections authorized by this statute to be shut down completely. Even ardent privacy activists admit the programs are more targeted and more respectful of Americans' privacy. The problems lie in its oversight, of which there is very little, and other authorities (Executive Order 12333, for one) that aren't open to debate or periodic renewals.

Despite these possible explanations, the silence isn't exactly heartening. Tech companies made plenty of noise when the Snowden leaks hit, exposing multiple programs that gathered communications from international cables and service providers. But they've said little since, at least in terms of Section 702 programs. Many are fighting for users' privacy in court, but those efforts deal with demands from law enforcement, rather than surveillance programs that bypass regular courts completely. If the level of noise doesn't increase in the next few months, it will probably be safe to assume the companies are more interested in salvaging European relationships than possibly upsetting the NSA's Section 702 apple cart.

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Surveillance Used To Give Poor Students Extra Financial Assistance Discreetly. Is That OK?

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Surveillance Used To Give Poor Students Extra Financial Assistance Discreetly.  Is That OK?

A story about surveillance in China is hardly notable -- Techdirt has run dozens of them. But there are some unusual aspects to this report on the Sixth Tone site that make it a little out of the ordinary:

The University of Science and Technology of China (USTC), in the eastern province of Anhui, collects data from the charge cards of students who frequently eat in the school cafeteria -- usually the cheapest option, thanks to government subsidies -- but spend very little on each meal. The school's student affairs department uses the information for "invisible subsidies," or allowances delivered without drawing attention -- what it calls "a more dignified way for poor students to receive stipends."

According to the post, the program has been running for many years, but only came to light when a former student posting under the name of "Shannon" wrote an account of being selected in 2005 for additional support, published on the site Zhihu, the Chinese equivalent of Quora. His post has received over 45,000 likes so far, and the number continues to rise. As the Sixth Tone story notes, comments on Shannon's post have been overwhelmingly positive:

One comment that received over 3,000 likes read: "The University of Science and Technology of China has really got the human touch -- they are pretty awesome." Another netizen, meanwhile, described the innovative scheme as "the right way to use big data."

This raises a number of questions. For example, does the widespread use of surveillance in China make people more willing to accept this kind of benevolent spying, as here? Or is it simply that its use is felt to be justified because it led to additional funding that was given in a discreet fashion? More generally, how would Chinese citizens feel about this approach being rolled out to other areas of life? Since that's pretty much what China's rumored "citizen score" system aims to do, we might find out, if it's ever implemented.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Alex Mauer Gets Another Game Taken Down From Steam Via DMCA As She Sends Imagos' Lawyer Death Threats

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Alex Mauer Gets Another Game Taken Down From Steam Via DMCA As She Sends Imagos' Lawyer Death Threats

Last month, we discussed a strange spate of DMCA notices going out from Alex Mauer, a video game music composer. Through her DMCA blitz, she managed to get a game removed from Steam, as well as getting several DMCA strikes against several YouTubers that had covered that game, all apparently as a result of a contract dispute she had with Imagos Softworks and her general inability to understand contractual language and copyright law. The tone of that post was justifiably critical, but some are now concerned that there is a well-being issue at hand. For starters, Mauer has now targeted a second game via DMCA takedown and has managed to get Steam to remove the game from its listings.

A copyright claim by a composer with a tendency to attract legal drama has led Steam to remove the game River City Ransom: Underground. The developers are disputing the claim and say they expect the game to be back on Steam at some point in the future.

On Friday, July 14th, Steam removed River City Ransom: Underground due to a Digital Millennium Copyright Act (DMCA) claim filed by composer Alex Mauer. In the claim, Mauer said that music she produced for the game was being used without her permission.

Mauer goes on to note that she doesn't have any documentation of her arrangement with Conatus Creative, developers of the game, but that this actually strengthens her claim, reasoning that if her music appears in the game and there is no written permission, it's copyright infringement. That seemingly sensical stance is rebutted, however, by Conatus, who does claim to have documentation proving its side of the argument.

Let me make it absolutely clear – Alex Mauer’s claim that the game violates her copyright is false. She is a co-creator of the music, with Dino Lionetti and Rich Vreeland. Our written license agreement is with Rich, who subcontracted Alex and Dino. When Rich offered to pay Alex an equal share of the music fee for her contribution to the game soundtrack, she emailed back: “oh that's awesome man i'm all for it thanks!” Rich has shown us the documentation that Alex was paid in full.

Our lawyers advise us that there is no legal basis for Alex’s DMCA take-down claims. That’s undeniable by anyone except Alex. But being legally right is only half the story – as a practical matter, the costs of legal action would put console development plans on hold, perhaps indefinitely. We don’t have any interest in spending our time and our energy dealing with this matter further.

So, we’re swapping out the soundtrack. When it’s completed, we hope that it will delight you, and we hope that you keep taking a chance on independent games, on Kickstarter projects, and on all labors of love. They’re worth it.

If all of that is true, and only one side of this fight is claiming to have documented evidence of their position, you can once again see how reckless abuse of the DMCA system can be undertaken by a party that is blatantly in the wrong as a matter of copyright law, while at the same time forcing their targets into unwanted actions due to the costs of the legal action. This, it goes without saying, cannot be what copyright is supposed to be for. If someone can falsely file DMCA notices with this kind of ignorant alacrity, where the most charitable reading of the situation is that Mauer is flatly confused about copyright and contract law, and where the more realistic reading is that she is running a DMCA extortion program, and there are no serious consequences for that abuse, then the DMCA system is plainly broken.

But there are also more serious accusations flying around as part of this, including the legal staff for Imagos, Mauer's initial DMCA target, being on the receiving end of death threats from her.
After the publication of this story, several people pointed us to a message from Imagos Softworks’ lawyer, Leonard French, claiming that Mauer had sent him death threats. We reached out to Mauer about this and she confirmed that it was true. She said that she had been receiving her own set of threats in the wake of claims by French and other YouTubers, which she reported to the police. “The police told me it was ok for these people to make death threats to me because of freedom of speech,” she said in a private Twitter message. “So my immediate response was to issue death threats to the people who started the defamation crusade against me.”

First, making death threats is a crime, if they are truly serious death threats. I doubt a law enforcement officer told her they are simply "ok because of freedom of speech." And to then take that as a reason to send more death threats in reply is petulant at best.

Regardless, it should go without saying that through punishment or otherwise, Mauer's DMCA abuse needs to stop.

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Lawsuits Pile Up For CenturyLink After Years Of Bogus Fees, Fraudulent Billing

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Lawsuits Pile Up For CenturyLink After Years Of Bogus Fees, Fraudulent Billing

For decades now, broadband ISPs have abused the lack of meaningful competition in the telecom market by not only refusing to shore up historically awful customer service, but by raising rates hand over fist. This usually involves leaving the advertised price largely the same, but pummeling customers with all manner of misleading fees and surcharges that drive up the actual price paid post sale. And by and large regulators from both major political parties have been perfectly ok with this practice, despite it effectively being false advertising.

CenturyLink (combined by the merger of Qwest, CenturyTel and Embarq) has been exceptionally talented when it comes to misleading fees. A few years ago the company began charging its broadband customers an "Internet Cost Recovery Fee," which the company's website explains as such:

"This fee helps defray costs associated with building and maintaining CenturyLink's High-Speed Internet broadband network, as well as the costs of expanding network capacity to support the continued increase in customers' average broadband consumption."

Of course that's what the rest of your bill is supposed to be for, but by breaking out a cost of doing business below the line, CenturyLink can advertise a lower (completely false) rate. That not only helps the company mislead consumers, but makes it harder to compare existing plans -- should you actually have something vaguely resembling broadband competition in your town. In addition to misleading fees like this, CenturyLink has also taken advantage of a lack of competition by imposing arbitrary and unnecessary usage caps and overage fees as well.

But the company has been forced to retreat from both misleading fees and overage fees as it faces a steady stream of lawsuits for its pricing practices. The company was sued back in June after a whistleblower revealed the company was ripping off its customers in yet another way: signing them up for pricey services they never wanted, and never ordered. CenturyLink's problems have only ballooned since, with a growing list of states filing their own suits for what they say is a documented pattern of fraudulent billing:

"I want [CenturyLink] to knock it off,” Swanson said. “It is not OK for a company to quote one price and then charge another for something as basic as cable television and internet service. We want an injunction so the company stops doing this to other people, and hopefully fixes the problem for these people as well.” The lawsuit, filed in Anoka County District Court, accuses Louisiana-based CenturyLink of committing consumer fraud and engaging in deceptive trade practices. It cites 37 specific cases in which people were overbilled by the company and denied the opportunity to reduce those charges — even when they had the original offer in writing."

Again, this has been going on for decades as a direct result of an overall lack of competition in the market. Usually said lawmakers defend their apathy to this problem by insisting the "free market" will somehow magically bring competition to bear on ISPs, culling any bad behavior. The problem, however, is these same lawmakers often simultaneously support ISP-written state level protectionist laws designed specifically to ensure this competition never actually arrives. It's a cycle of dysfunction that we won't be rushing to fix anytime soon, as the current Trump FCC is making fairly clear.

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Senator Wyden Wants To Know How Many Times Americans Have Been Targeted By Executive Order 12333

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Senator Wyden Wants To Know How Many Times Americans Have Been Targeted By Executive Order 12333

That buzzing noise that never seems to leave the Intelligence Community's ears is Sen. Ron Wyden. Wyden's questions -- often unanswered -- are dog whistles for privacy advocates but ear-bleeding tinnitus for agency officials. Persistence is key in Congressional oversight and few are better at it than Wyden is.

For years, Wyden has been asking how many Americans have been hauled in by the NSA's Section 702 dragnet. And for years, the NSA and ODNI have sidestepped the question. The surveillance bosses got close to returning an answer -- right before they announced they were shutting down the collection that netted the most Americans.

Right before Trump was elected, James Clapper finally said he'd cough up the numbers. But with the regime change, the promise is no longer a promise. The NSA may try to keep this buried, using time and distance from the abruptly-abandoned "about" collection to stiff-arm additional requests for domestic surveillance data.

Ever persistent, Wyden has returned with another set of questions [PDF] regarding NSA surveillance. This one pertains to the least-discussed surveillance authorization and the one almost everyone -- including members of oversight committees -- knows nearly nothing about: Executive Order 12333.

Like Section 702, there's a good probability intelligence gathered under this authority is being used by domestic agencies. Backdoor searches of NSA intel have been unofficial common knowledge for years now, so there's very little reason to believe the NSA's most mysterious authority doesn't have its own built-in peepholes for the FBI and other federal agencies.

Wyden is asking for details on this authority, specifically the number of times it has been used to surveil Americans. As he points out, the order allows the deliberate targeting of American citizens with the Attorney General's approval.
Please provide the following information:

1. How many times, in each of the calendar years 2011-2016, has the Attorney General provided this approval?

2. Can the Intelligence Community conduct these searches "for the purpose of targeting a US. person or a person in the United States" without an individual warrant?

3. What limitations and approval requirements would apply to searches for communications that are reasonably likely to be to, from, or about a US. person or a person located in the United States if the purpose of the search is not to "target" that person?

That's the "what." Here's the "why:"
Concerns about warrantless "backdoor" searches for information about Americans are among the reasons I have repeatedly asked the Intelligence Community to publish an estimate of the number of Americans whose communications have been collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA). Concerns about these searches under Section 702 are also why the Intelligence Community now publishes data on the number of these searches, with the notable exception of searches conducted by the FBI.

Executive Order 12333 poses similar, if not greater concerns, given the lack of public awareness of the breadth of that collection, extremely limited oversight, and the vagueness of the procedures governing collection and use. For these reasons, I believe the public has the right both to clarity with regard to those procedures and data related to the frequency with which Americans and individuals in the United States are the subject of these searches.

No sense holding your breath. As much as I appreciate Wyden's effort, the current administration firmly believes surveillance might makes right. The Intelligence Community has been so emboldened by the administration's lack of concern for civil liberties it's already asked to have the "about" collection -- which it shut down voluntarily so it could finally get 702 orders approved by the FISA court -- turned back on.

If any answers do appear, expect them to be vague and deliberately uninteresting. But at this point, it's probably less disappointing to just not expect them at all.

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United Says TSA Wants All Comic Con Comic Books Searched; TSA Says 'Not Us'

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United Says TSA Wants All Comic Con Comic Books Searched; TSA Says 'Not Us'

I thought writing about San Diego Comic Con being censorial assholes would be the strangest story we'd write about Comic Con this year, but leave it to airline security to come up with an even more bizarre story. Apparently United Airlines (because of course it would be United) put up a sign at the airport in San Diego telling people that all books needed to be removed from checked bags. A Twitter user named Adi Chappo tweeted a picture of the sign at the airport:

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United, being United, responded that the TSA was demanding that all comic books from San Diego Comic Con could only go in carry on luggage.

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Chappo asked for more detail and United told him to reach out to the TSA directly.

This wasn't just a one-off either. Another Twitter user posted a Twitter direct message conversation with United, in which it claimed that there was a TSA restriction on any comic books in checked luggage:

Ahaha holy shit the airport is going to be a clusterfuck. #SDCC cc @SD_Comic_Con pic.twitter.com/WIYqSpzlaA

— Amy, stuck @airport (@spooloflies) July 23, 2017


So that's all bizarre enough. I mean, there has been talk about restricting electronics on flights, as well as some talk of sifting through reading materials, but comic books? From San Diego Comic Con? Many people were left wondering what the hell the TSA could be thinking... and that included the TSA. When asked about all of this by reporters, the TSA appeared to be just as confused as everyone else and insisted there was no such restriction:

There is “no restriction on anything related to putting comics or any type of books” in baggage, and TSA never put out any guidance to that effect, she said.

“In fact, they are allowed in both checked and carry-on baggage,” the spokeswoman told Consumerist, adding that there were no delays in the processing of checked bags out of San Diego yesterday.

So, there was either some sort of bizarre miscommunication between the TSA and United, or it was just United being United. Either way when it comes down to a dispute between the TSA and United, it's difficult to bet on which organization is likely to act worse.

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Daily Deal: Final Draft 10

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Daily Deal: Final Draft 10

Final Draft 10 is the standard software for professional screenwriters and studios the world over. It automatically paginates your script to entertainment industry standards and gives you over 100 templates and formatting tools to turn your ideas into real scripts. You can collaborate in real time with a writing partner, outline acts, scenes, and sequences more efficiently, store multiple lines of dialogue in the same script, and more. Final Draft 10 is on sale for $150 (40% off of retail) for a limited time in the Techdirt Deals Store.

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Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

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DOJ Forfeiture Directive Gives Local Law Enforcement A Chance To Dodge State Reform Efforts

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DOJ Forfeiture Directive Gives Local Law Enforcement A Chance To Dodge State Reform Efforts

As threatened during comments to an association of district attorneys, Attorney General Jeff Sessions is bringing back asset forfeiture. Specifically, Sessions is loosening the restrictions placed on federal adoption of local seizures by Eric Holder during the last years of the Obama presidency. Holder's directive prevented local agencies from routing cash or vehicle seizures through the feds to dodge local rules. That's all over now. An order [PDF] and directive [PDF] issued by the DOJ are welcoming local law enforcement agencies to once again skirt restrictive state forfeiture laws by asking the DOJ to "adopt" their seizures.
On July 19, 2017, the Attorney General issued an Order allowing Department of Justice components and agencies to forfeit assets seized by state or local law enforcement (referred to in the order as "federal adoptions"). Under the Attorney General's Order, federal adoption of all types of assets seized lawfully by state or local law enforcement under their respective state laws is authorized whenever the conduct giving rise to the seizure violates federal law.

"Conduct giving rise to the seizure" almost makes it sound as though the federal government is limiting this to criminal asset forfeiture, which comes as the result of a conviction. Nothing could be further from the truth. In practical terms, this allows cops to say they smell the odor of drugs (or ask their dog's opinion) before hauling away an uncharged citizen's personal effects -- mainly cash, since it's easy to carry and difficult to prove its legal origin.

Multiple states have passed legislation curbing civil asset forfeiture. Fourteen states now require convictions before assets can be forfeited. This will no longer be the case. The DOJ is giving local agencies a way to avoid these restrictions by stating anything considered a federal crime (like drug trafficking) can be used as an escape hatch to ensure these agencies keep at least part of the property they've taken.

Sessions is promising this won't be abused. Given Sessions' comments on civil forfeiture, it's hard to imagine a case where he'd consider a seizure abusive, but there is a limited safeguard built into the new directive.
Adoptions of cash in amounts equal to or less than $10,000 may require additional safeguards. Those adoptions will be permissible where the seizure was conducted: (1) pursuant to a state warrant, (2) incident to arrest for an offense relevant to the forfeiture, (3) at the same time as a seizure of contraband relevant to the forfeiture, or (4) where the owner or person from whom the property is seized makes admissions regarding the criminally derived nature of the property. If a federal agency seeks to adopt cash equal to or less than $10,000 and none of these safeguards is present, then the agency may proceed with the adoption only if the U.S. Attorney's Office first concurs.

I wouldn't read too much into this provision. For starters, it includes the word "may" in the first sentence, which means the DOJ will be able to waive these restrictions whenever it feels like it. Seizures can still be effected "incident to an arrest," which further undermines the conviction requirements put in place by fourteen states.

Forfeitures under $10,000 need more protection, not another outlet for abuse disguised as a "safeguard." Most cash seizures are under $10,000. Forfeiture reform laws tend to target those, as they're most often abused. AG Sessions is leaving it up to US Attorneys' offices to make the final determination.

Those over $10,000 tend not to be as much of a problem, but now there won't be any close cases. Federal adoption is pretty much guaranteed, which will encourage law enforcement to spend more time looking for expensive seizables than real criminal activity.

Then there's this statement, made by Sessions in his announcement of the resumption of federal indifference to individual property rights.
Our law enforcement officers do an incredible job. In fact, over the last decade, four out of five administrative civil asset forfeitures filed by federal law enforcement agencies were never challenged in court.

This goes past simple disingenuousness into the land of deliberate obtuseness. The absence of challenges is not the evidence of minimal forfeiture abuse. Fighting forfeiture is expensive and time-consuming. In most cases, it's futile. This is why so many seizures are $1,000 or less. The lower the dollar amount, the less likely it is someone will fight to get it back. As was pointed out by John Jackson on Twitter, this is like saying all fatal shootings by police officers are justified because not a single victim has filed a sustained complaint.

Sessions' forfeiture move isn't exactly being greeted with applause by members of the president's party. Sen. Mike Lee and Rep. Darrell Issa have already made statements condemning the loosening of federal restrictions. These reactions hew closer to the Republican party line -- small government, less regulation. For some reason, though, many conservatives seem to think expansions of government power and regulation is just fine when it comes to law enforcement or national security. This is the only reason the president's AG pick isn't facing more criticism for overriding states' reform efforts.

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Verizon Throttles Netflix Subscribers In 'Test' It Doesn't Inform Customers About

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Verizon Throttles Netflix Subscribers In 'Test' It Doesn't Inform Customers About

So for years Verizon Wireless refused to compete on price, insisting that the company's network was just so incredible, it didn't have to. Then came increased competition from T-Mobile, which forced the company to not only start competing a little more seriously on price, but to bring back unlimited data plans Verizon had spent years telling customers they didn't need. And while Wall Street cries about this rise in competition hurting earnings at least once a week, it has generally been a good thing for consumers.

But there's two things waiting just over the horizon that could ruin everybody's good time. One is a looming merger between Sprint and T-Mobile which would significantly reduce competition in the wireless sector, eliminating much of the pressure on mobile providers to compete. The other is the impending death of net neutrality protections at the FCC, which currently keep these carriers from abusing this lack of competition to drive up costs and hamper content competitors.

But another, important part of net neutrality rules is the requirement that carriers are clear about just what kind of connection you're buying. Last week, Verizon apparently got a running start in being less transparent when it decided to begin throttling its wireless customers without telling anybody. Users at Reddit began noticing that when they streamed Netflix content or accessed Netflix's Fast.com speedtest, their connections were magically limited to 10 Mbps. When they used other companies' speedtests or used a VPN to mask their traffic, they received the full speed of their mobile connections.

To be clear, being restricted to 10 Mbps isn't that big of a deal in and of itself. 10 Mbps is more than enough to stream video at 1080p60 and 1440p30, though users say they're running into buffering at 1440p60 or 4K (not that most users care about 4K content on mobile devices anyway). But it was the fact that Verizon couldn't be bothered to tell anybody this was happening that's raising a few eyebrows. And when pressed, Verizon was only willing to give a rather vague answer about how they were simply conducting "tests" that didn't hurt anybody:

"We've been doing network testing over the past few days to optimize the performance of video applications on our network. The testing should be completed shortly. The customer video experience was not affected."

So while Verizon's throttling shouldn't be construed as the end of the world, you'd probably understand why Verizon, one of the most vocal opponents of net neutrality, would raise a few eyebrows by conducting tests like this without telling anybody. Consumer groups like Public Knowledge were quick to point out that one of the benefits of net neutrality rules is the assurance it gives customers that it can trust what carriers are saying:

"The guidelines distinguishing ‘throttling’ from ‘reasonable network management’ developed as part of the FCC’s investigation into T-Mobile’s Binge On service provided precisely this certainty. Unfortunately, Chairman Pai’s decision to rescind the report and to reopen the net neutrality proceeding have created massive uncertainty and suspicion.

“Before, Verizon could simply point to the FCC guidelines to reassure their customers. Today, we must look to Chairman Pai to tell us whether subscribers have anything more to rely on than Verizon’s promises. Rather than undermining consumer confidence and creating needless confusion, Chairman Pai should end his misguided efforts to roll back the FCC’s net neutrality rules any further."

As the net neutrality protections (and the FCC's authority overall) are slowly but surely gutted, this uncertainty is only going to grow. Carriers will begin pushing to see just what kind of behavior Ajit Pai's FCC will let them get away with, and given Pai is repeatedly on record believing neither net neutrality nor a lack of competition are real problems, there's not going to be much if any regulatory pressure to behave. Combine that in a major reduction in competition from a looming wave of Trump-approved mergers and acquisitions, and there's certain to be less organic market or regulatory pressure to do right by consumers.

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FBI Informant Helped Out In Terrorism Stings While Running A 'Stranded Traveler' Scam

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FBI Informant Helped Out In Terrorism Stings While Running A 'Stranded Traveler' Scam

It's well known many confidential informants are criminals. Acting as informants is supposed to keep their criminal acts to a minimum while providing access to bigger criminal fish. The same goes for undercover officers and agents. Some illegality is presumed but those running CIs are expected to be making the world a better place, not ignoring vast amounts of criminal activity simply because the informant is now on their side. But that doesn't seem to be the case.

The DEA's informant program is being run with almost no oversight, according to an Inspector General's report. Money flowed to informants who were still under federal investigation and no one up top seemed too concerned about the program's bang/buck ratio. The FBI made abusable programs worse by hiding payments to informants and giving them a cut of forfeited property.

It's not that informants can't break the law. In some cases, they must. But the illegal acts must be done with permission and as an integral part of an investigation. But that's not how things work out. Trevor Aaronson of The Intercept tells the story of FBI informant Mohammed Agbareia, who participated in terrorism stings while making a healthy, illegal profit on the side.
According to court records, Agbareia began working for the FBI only after being convicted in U.S. District Court in Alabama for conspiracy to commit wire fraud.

[...]

After pleading guilty to the wire fraud case in March 2006, Agbareia was ordered to report to immigration authorities for possible deportation. But instead of being removed from the United States, Agbareia signed up with the FBI.

The threat of removal and/or the dangling of citizenship is a powerful motivator. This is why multiple federal law enforcement agencies have turned the nation's borders into unofficial recruitment posts.

But old habits die hard. The Intercept reports Agbareia has again been indicted for the same criminal activity.
According to a new wire fraud indictment handed down in Florida on June 27, Agbareia has continued to swindle people with his stranded traveler scheme. He received six Western Union wire transfers from 2012 to 2017 from victims in Texas, Colorado, New York, Ohio, and Germany. Two of the wire transfers — one for $1,414.26 from Berlin and another for $1,000 from Brooklyn — occurred around the time he was working undercover in the FBI’s ISIS sting.

The government is trying to bury this damaging information. It has already asked for evidence of Agbareia's illegal sideline to be placed under a protective order, supposedly for national security reasons. The government is also refusing to turn over information of Agbareia's criminal efforts to one of the accused, despite two of three suspects targeted in the sting having already pled guilty.
Federal prosecutors’ position has been that they do not have an obligation to provide information about the FBI’s informant so far in advance of a trial, since Hubbard’s is not scheduled until October 30. “In a national security case at this point, I mean, we understand our obligations to turn it over, but the trial is in late October,” federal prosecutor Edward Nucci said in the March 14 hearing.

The remaining suspect's defense lawyer has been asking for this information since 2016, pointing out that the proactive nature of sting operations should result in proactive delivery of evidence by the government.

Agbareia is now in the awkward position of having government demands for secrecy work both for him and against him. In the terrorism stings, the government is playing keep-away with anything that might damage his status as a source of evidence. In his wire fraud prosecution, the government is looking to bury info he might use in his defense. National security-related suppression is being asked for in this case as well.
Agbareia’s lawyer, Murrell, noted in a June 30 filing that federal prosecutors haven’t specified the level of classification — top secret, secret, or confidential — the evidence involves, raising questions that the information “is not ‘classified’ simply because it might embarrass law enforcement or in some way hinder prosecution of this or other cases.”

Federal prosecutors have requested Agbareia’s witnesses disclose up front the testimony they intend to offer, giving the U.S. Attorney’s Office an opportunity to agree to the release of “a stipulated, declassified summary of that information.” In other words, federal prosecutors want to use claims of classified evidence to control the information Agbareia can use in his defense

If the government succeeds in this evidence suppression, it might be able to run the prosecutorial table -- convicting a suspected terrorist and the crooked informant it used to rope him in.

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Funniest/Most Insightful Comments Of The Week At Techdirt

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Funniest/Most Insightful Comments Of The Week At Techdirt

This week, our first place winner on the insightful side is a simple anonymous comment, saying something that shouldn't need to be repeated so often but for the weird anti-regulation absolutists who need to be reminded over and over:
Regulation isn't bad. It's a tool. Using the tool wrong is bad; Over-regulating and under-regulating are bad. The government shouldn't control what you see on the Internet (which isn't Net Neutrality, by the way), that would be bad regulation. Being able to enjoy a nice meal without having lethal amounts of harmful chemicals in it is good regulation.

For second place, we head to our post about the dispute between the San Diego and Salt Lake Comic-Cons, where one anonymous outside observer described how it all looks to someone with no horse in the race:
Hello. I'm a random asshole on the internet. :D

As far as I know, I have never had any connection of any kind with either party involved. I've no plans ever to visit the USA, much less either convention in the future. As far as I can recall, I've never so much as visited either of their websites. I have no particular interest in the case participants in any way at all.

They do not exist in my world. While I've heard of Comic Cons, this case is literally the only reason I now know they take place in either city.

Nonetheless, I'm rooting for SLCC. Not because of anything SLCC said, but simply because of what SDCC did.

SDCC started a legal fight on what seems - to the outside eye - to be very questionable grounds.

SDCC engaged in what seems - to the outside eye - to be behaviour designed to silence legitimate reporting.

SDCC has now successfully obtained a court order that seems - to the outside eye - to be little more than poorly-justified censorship.

Don't piss on the planet and tell us it's the Great Flood, SDCC - this is all your own damned fault. If you don't like the world calling you cunts, then stop acting like cunts, you daft fuckers.

It's not exactly rocket science, now, is it?

For editor's choice on the insightful side, we've got a pair of responses to the findings of the oversight board saying that NYPD officers are still violating the public's right to record them. First, we've got Discuss It, who noticed a pattern:
Odd this keeps happening with the people that are supposed to enforce the law. I know that when my employer tells me a policy and I violate it, the least I can expect is time off without pay at best, and termination is more likely.

Odd that a policeman can't grasp the concept. Perhaps they are too stupid to be allowed to carry a weapon. Those things are dangerious and if they can't understand "People can record you" then I would assume they are too stupid to understand the concept of fire lines, back stops, and "What is behind what you shoot at?".

Next, we've got That One Guy with some questions about how exactly this will be fixed:
"It's unrealistic to expect the number of violations to hit zero, but some disciplinary changes need to be made if these policies are going to have much effect on officer behavior."

If by that you mean 'heavily fine all first time violators, along with mandatory 'yes the public can record you, get over it' classes' and 'fire all repeat violators' then yes, this could be cleared up nicely with 'disciplinary changes'. The only way they'll stop is if they personally face penalties for their actions, until then they'll feel free to make up rules and laws on the spot to suit their own whims.

Over on the funny side, our first place comment comes in response to the glorious letter sent by Vincent Malone in response to threats from the Olive Garden over his blog. That letter ended with a request to respond in limerick form, and A Non-Mouse decided to take on that challenge:
There once was a man Branden Forcements
who confused some reviews for endorsements
His threats that came after
caused so much laughter
that perhaps he should seek new employments

In second place, we've got an anonymous comment on our article about the unique copyright story of George Romero's Night Of The Living Dead:
I just wish he’d hurry up and get on with the whole “reanimated corpse” thing, because we’ve been waiting for a couple of days now and I’m starting to think this whole “Romero is the father of zombies” thing doesn’t hold much weight.

For editor's choice on the funny side, we'll start out by throwing in one more limerick, this time from Doug:
Oh Vino, don't know what came over me
I wrote with such haste I just couldn't see
That to eat at our joint
Is kind of the point
Of your whole blog and your joie de vivre

And finally, we've got an anonymous response to our headline asking Is James Woods A Hypocritical Asshole?
This violates Betteridge's law of headlines

That's all for this week, folks!

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This Week In Techdirt History: July 16th - 22nd

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This Week In Techdirt History: July 16th - 22nd

Five Years Ago

This week in 2012, we saw some copyright insanity when BMG issued a YouTube takedown on a Mitt Romney campaign ad for including a clip of Obama singing an Al Green song, and then the next day went on to take down the original clip, because even the President was a pirate in the eyes of the entertainment industry. Thankfully, by the end of the week, YouTube decided the videos were fair use, and restored them. Meanwhile, Viacom was blacking out web clips as part of a spat with DirecTV, leading Jon Stewart to blast them on their own network and get them to reverse the decision for at least some clips. And in New Zealand, the judge in Kim Dotcom's extradition trial spoke out against the TPP and copyright extremism, which forced him to step down from the case (even though the same thing never seems to happen to pro-copyright judges).

Ten Years Ago

This week in 2007, the RIAA finally found itself on the hook for legal fees in one of its aggressive lawsuits, despite its usual strategy of dropping cases whenever that looked like a possibility. The head of an LA news agency who made headlines by being the first person to sue YouTube for copyright infringement decided he might take his misguided fight to Apple as well. The MPAA was speaking out against net neutrality because it might interfere with anti-piracy enforcement, Clear Channel was trying to use the Sirius-XM merger as a reason to get looser restrictions on terrestrial radio ownership, and Microsoft was making promises about future Windows editions as damage control after the poor reception of Vista.

Fifteen Years Ago

This week in 2002, webcasters were appealing the new royalty rates that would cripple them, tech executives were seeking a better starting point for a conversation about piracy with Hollywood, and Universal was doing the kind of thing Universal does and appointing a new "senior vice president of anti-piracy". At least one analyst was looking at broadband adoption in a more positive light than usual at the time, while others were not too sanguine on the future of 3D TV — but we also took a moment to celebrate how it's often unglamorous technology that changes history the most, on the 100th birthday of the air conditioner.

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San Diego Comic Con Gets Gag Order On Salt Lake Comic Con

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San Diego Comic Con Gets Gag Order On Salt Lake Comic Con

As you may know, San Diego Comic Con is going on right now. And, like many techie/geeky people, while I've never attended the show, I always look forward to what comes out of the event. However, SDCC is increasingly looking like a massive censorial bully. A few years ago, we covered what we believed to be a fairly silly trademark dispute that SDCC had filed against the organizers of the Salt Lake Comic Con. We pointed out that trademarking "Comic Con" seemed silly and there was no problem with multiple Comic Con's happily co-existing. And, really, SDCC is the 800-lb gorilla here. It's the dominant comic con and has been for many, many years, as it seems to grow larger and larger. Other cities having their own comic conventions doesn't take away from SDCC (if anything they tend to reinforce the dominance of SDCC).

Last month, in covering some news about the case still going on, we added a long (longer than the post itself...) editor's note about the truly weird situation in which SDCC had sent us a ridiculous subpoena demanding (among other things) any internal documents ever mentioning SDCC and implying that we had some sort of business relationship with the organizers of the SLC event (to be clear, we have zero relationship with anyone involved in either event -- we just found a story written about the case and used that as the basis for our posts on the topic). We pushed back on SDCC and noted that it really appeared that their fishing expedition was an attempt to intimidate the press from reporting on this case. It was... really strange.

And now, with SDCC happening right now, the Hollywood Reporter has the latest on the case, in which SDCC has filed for one of the strangest legal gag orders I've seen in a while. I mean, I've seen these kinds of gag order requests filed by pro se plaintiffs, but rarely by competent lawyers working at giant famous law firms.

You can read the demand for a protective order here or below, and if I had to summarize it, it's basically: "it's no fair that Salt Lake Comic Con is getting good press coverage and we're being mocked, so the court should silence them." I read through the document and I kept expecting more... and... that's really it. They literally complain that they're losing in "the court of public opinion" and argue that it's somehow unfair that one side is talking about this case publicly and they should be barred from any further conversation. And, it gives some more context to the paranoid view that was clear in the subpoena we received: SDCC and/or its lawyers are so focused on the negative press coverage that they seem to assume that something more nefarious is going on... beyond the basic likelihood that lots of people think this lawsuit is over-aggressive bullying by SDCC.

Since the inception of this dispute, Defendants have brazenly engaged in a strategic public campaign to disparage SDCC and “win this case in the court of public opinion.” Defendants’ public campaign has included statements made in numerous press releases, news articles, on websites and on social media including Facebook and Twitter. Indeed, Defendants boast they have secured more than 200,000 media articles reporting on the case that are “favorable” to Defendants.

Um, so? I have no idea what's wrong with someone trying to get their story out when they've been sued -- especially by a much larger entity. While some people choose not to go that path, there's nothing illegal about telling your story when you've been sued -- and nothing wrong with the media picking up on the story. It's news.

SDCC goes on to claim that many of the statements made by the defendants in the case "are misleading, prejudicial, inflammatory or false." If that's the case, then go after them for defamation. Don't ask for a gag order.

Defendants repeatedly litigate their case by using media outlets to mischaracterize the parties’ positions and taint the public’s perception regarding the issues in dispute in this case. Defendants’ media campaign is increasing in intensity as this case nears trial. Defendants’ goal is to win this case by using media outlets to tarnish the reputation of SDCC and taint the jury pool. As Defendant Bryan Brandenburg stated in one of Defendants’ many press releases, “I am asking for support from the community and all the powers of the Universe to bring victory to us in this case.”

The "jury" tainting is the only aspect of any of this that seems to have a kernel of reasonableness -- but seems easily dealt with during jury selection, in which you ask the potential jurors if they're familiar with the dispute. Despite the supposed 200,000 articles on this (more on that in a moment...) I find it hard to believe that the average potential juror has heard about this dispute at all. Hell, we covered it and I had totally forgotten about it until we got that stupid subpoena (it was so ridiculous that I told the process server that he must have the wrong guy when he showed up at my front door).

From here, SDCC's high priced fancy lawyers then admit that this goes against the basic First Amendment protections anyone has... but argues that's fine and dandy because -- *gosh* -- some people are being mean to them online.

It is appropriate, however, to impose greater restrictions on the free speech rights of trial participants (such as parties and their attorneys) than on the rights of nonparticipants. Levine, 764 F.2d at 595. As the Ninth Circuit noted when considering a district court’s order restricting statements of trial participants, “several other courts have considered similar restraining orders. The overwhelming majority of those courts have upheld the restraining orders.” Id. at 596 (citing numerous cases in which restraining order on trial participants were upheld).

Now, it's important to look at the details of the case that they cite as precedent for why they can gag the people they sued: Joel Levine v. US District Court for Central District. First off, that was a criminal case, not a civil one, and it involved the lawyer for one of the people who had been charged with espionage talking to the press, and the court arguing that in certain circumstances, you could issue a very narrow injunction on this type of thing. But there are lots of conditions on that and it's hard to see how those conditions apply to a civil dispute -- and especially one where the civil dispute involves a large organization (SDCC) suing a smaller one (SLCC) and then trying to further silence the small one.

Indeed, the ruling in the Levine case specifically notes that because it's talking about lawyers the standards are different:

As officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice. It is very doubtful that the court would not have the power to control release of information by these individuals in appropriate cases and to impose suitable limitations whose transgression could result in disciplinary proceedings.

But in this case, SDCC is trying to gag the actual defendants, not the lawyers.

Further, the Levine opinion makes it clear that there should be strict scrutiny applied before issuing such a gag order, as it clearly is prior restraint. From the opinion:

Accordingly, the district court's order may be upheld only if the government establishes that: (1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest,... (2) the order is narrowly drawn.... and (3) less restrictive alternatives are not available

And, really, is "people are being mean about us online" really going to qualify as "a clear and present danger or a serious and imminent threat to a protected competing interest"? Come on!

The rest of the request for the gag order is basically "damn, the other side has been effective in telling their story to the press. That's so unfair."

Since the inception of this dispute, Defendants have engaged in a willful, open, and consistent strategy to win this case “in the court of public opinion.” See Edge Decl. Ex. 1, at p. 6. Through numerous press releases, articles, interviews with various media outlets, and the pervasive use of social media, Defendants (most notably Bryan Brandenburg) have been posting material and making statements that are designed to tarnish the reputation of SDCC and thereby influence the public (including the jury pool) regarding who should prevail in this litigation. In many instances, these statements are misleading, prejudicial, inflammatory, or false. Indeed, Defendants have made their strategy and intention clear from the outset. On August 11, 2014, shortly after the dispute between the parties began, Brandenburg commented extensively in an article in Inside Counsel titled “Salt Lake Comic Con founders fight back” with the subtitle “Use the court of public opinion to combat trademark infringement claims brought by the San Diego Comic-Con.” Id. The article paints Defendants as “David” to SDCC’s “Goliath,” and compares SDCC to Superman’s nemesis Lex Luthor. Brandenburg is credited in the article with the following statement “[a]fter consulting with their lawyers, the team behind the Salt Lake Comic Con knew they had strong legal ground to stand on, but they didn’t want to go to court, they wanted to win in the court of public opinion.” Id. (emphasis added). Brandenburg is further quoted as saying “[o]ur strategy was, if we are going to spend legal fees vs. legal fees, we wanted to be creative. We put it out to the public, challenging the cease and desist letter publically.” Id. at p. 7 (emphasis added) (noting “anecdotally, the fans seem to be on the side of Salt Lake’s David rather than San Diego’s Goliath”).

Again, I'm trying to understand what the issue is here. Lots of people involved in court cases look to get support in the court of public opinion, but none of that really matters compared to the court of actual opinion: the court that is hearing the case. And, sure, the jury tainting bit is potentially an issue, but only if you really believe that the entire jury pool is going to be tainted by this. And that seems... difficult to believe.

Of course, the whole "200,000" articles bit is part of the effort to argue that this info is widespread... but the details there are... lacking. It appears the vast majority of those 200,000 are... because the Associated Press wrote about the case and it has 160,000 distribution partners.

Defendants boast that an article written by the Associated Press about this dispute was published in more than 160,000 news outlets worldwide and claim many media outlets have already declared Salt Lake Comic Con the winner in the court of public opinion.

Okay... well, I went looking for the AP stories on the case... and they're pretty damn balanced (as you would expect from the AP). Here's one from 2005 that seems unlikely to bias anyone:

Salt Lake City co-founder Bryan Brandenburg said the trademark announced Thursday will be decisive in the suit, but attorneys for the established San Diego Comic-Con disagree. The case appears headed for trial after settlement talks broke down earlier this month.

And a more recent article:

Settlement talks have broken down between the organizers of two pop-culture conventions in California and Utah known for guests' elaborate costumes, Salt Lake Comic Con officials said Tuesday.

Both sides are asking a judge to decide the contest over naming rights, said Bryan Brandenburg, co-founder of Salt Lake Comic Con.

"They want us to change our name," Brandenburg said. If the federal judge overseeing the case in San Diego doesn't side with either convention, the case could go before a jury later this year. Salt Lake has already spent nearly $1 million legal fees on the case.

Those are both snippets from longer articles, but hardly proof that a jury will be biased.

What about social media? SDCC whines that one of the organizers of the SLC event has 5,000 Twitter followers and the SLCC Twitter feed has 30,000:

Importantly, Defendants’ public campaign is not limited to press releases and contact with news media outlets. Bryan Brandenburg has waged war against SDCC on social media as well. Brandenburg uses his Twitter feed, which has more than 5,200 followers, to comment on the dispute and disparage SDCC. See Edge Decl. Ex. 4. Similarly, Defendants use the Salt Lake Comic Con Twitter feed, which has more than 30,000 followers to comment on the dispute and accuse SDCC of fraud.

I mean, 30,000 Twitter followers is nothing to sneeze at, but... uh... let's take a look at SDCC's Twitter followers, shall we?

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Now, I'm no math genius, but 1.55 million followers seems like... a wee bit more than 35,000 or so. But... but... but, SDCC replies: it's not fair that the SLC guys speak out because SDCC has specifically chosen not to comment:

It is also worth noting that in the face of Defendants’ public attacks, SDCC has exercised incredible restraint and has not responded in kind. SDCC believes this dispute should be litigated and decided in this Court. However, if Defendants’ conduct goes unchecked, SDCC will have no choice but to defend itself publically in order to protect its reputation and set the record straight when Defendants disseminate false or misleading information. This type of public exchange regarding ongoing litigation is not productive or conducive to judicial integrity and SDCC hopes it can be avoided.

Incredible restraint. We're so proud of you SDCC. Of course, it didn't stop you from sending a bogus subpoena to us (and who knows how many other media properties), potentially creating massive chilling effects on media companies reporting on your silly dispute. And, really, what exactly is the problem with responding publicly? If you don't want to, don't. If you do, do. But, if you're just concerned about the outcome of the court case, focus on that, not gagging anyone.

Unfortunately... it appears that the court granted the gag order just days before SDCC was set to start. It does limit the request though, noting that the first two parts of the request would be unconstitutional prior restraint. That covers "any false or misleading statements about SDCC or any of its board members" or "any false or misleading statements about the merits of this dispute." What the judge did grant was a gag order on statements that "accuses, suggests, implies or states that SDCC lied and/or committed fraud," "any statement about the genericness of the term comic con," "any statement about whether the term comic con is descriptive" and "any statement about whether SDCC abandoned any trademark rights."

I have trouble seeing how the first two are unconstitutional prior restraint, but the rest are allowed to be gagged -- especially something as mundane as discussing whether comic con is generic or descriptive. But, really, since the court apparently doesn't want anyone discussing that kind of thing, perhaps go ahead and have a discussion in the comments about that very question. And, in case SDCC's high priced lawyers are looking at this yet again, I'll remind you once again that we have no relationship of any kind with the organizers of the Salt Lake City event. We just don't like big bullies silencing people or filing questionable lawsuits.

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MLB Mulls Over Opposing Trademark For New Overwatch League Logo

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MLB Mulls Over Opposing Trademark For New Overwatch League Logo

It's no secret that Major League Baseball has proven themselves to be happy bullies regarding its trademarks. Between thinking it owns the letter 'W', forgetting that fair use exists, and its decision to bully amateur baseball leagues, the legal staff for MLB has shown that they can produce some really head-scratching moments.

Which brings us to the present, in which Major League Baseball has asked for an extension to decide if it wants to oppose the new logo for Overwatch League, the eSports league dedicated to playing -- you guessed it -- Overwatch.
As noted in a post on the website of law firm Morrison / Lee, the Overwatch League’s logo was approved for a trademark on March 28. Under the standard practice of the U.S. Patent and Trademark Office, this meant that any other parties with trademarks of their own had one month to respond to the logo—either to oppose it outright or to request more time to be able to oppose—before the logo’s trademark would actually be registered. Just one day before the end of that 30-day window, MLB filed for a 90-day extension to investigate the likeness of the OverwatchLeague’s logo to its own and potentially oppose it. Their request was considered valid and they were granted the extension immediately.

The extension expires in mere days, so we're all going to find out very soon if MLB thinks it should oppose the trademark for the following logo, helpfully placed next to the MLB logo so you can decide for yourself how confusing any of this is.

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So, let's just get the obvious out of the way: these logos look nothing alike and will not cause any confusion. Period. Other than having a white outline of a "player" of each sport separating two colors and some words on the bottom, there's nothing even similar here. The colors are different, the outlines are different, the names of the leagues are both different and specifically descriptive. Confusion is simply not going to be a thing in this case.

But let's say you're not convinced. Fine. Please tell me if the following logo also confuses you.

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Of course it doesn't. The NBA uses a logo with the same style and yet MLB is not at their throats over it. That's because this logo style for sports leagues is fairly standard and there hasn't been issues with confusion before.

Perhaps as MLB's legal staff considers whether to oppose Overwatch League's logo, they'll happen to come across this post. If they do, I have but one bit of advice: don't.

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Court Rejects Cell Site RF Signal Map In Murder Trial Because It's Evidence Of Nothing

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Court Rejects Cell Site RF Signal Map In Murder Trial Because It's Evidence Of Nothing

The Maryland Court of Special Appeals has handed down a ruling [PDF] on quasi-cell site location info. The evidence offered by the state isn't being so much suppressed as it is being rejected. The information wasn't obtained illegally and no rights were violated. Rather, the court finds the evidence to be questionable, as in "evidence of what, exactly?" [via EvidenceProf Blog]

The defendant in the case is charged with murder. Bashunn Phillips filed a motion to exclude the evidence, which was granted by the lower court. The state appealed. But there's nothing in it for the state.

The "evidence" -- which is going to carry around scare quotes for the remainder of this post -- doesn't tie Phillips to anything. What was submitted isn't even the equivalent of coarse cell site location info. What the state submitted is something that can easily be obtained without a warrant… because it doesn't actually target any person at all.
Phillips filed a motion in limine on August 7, 2015, seeking to exclude the RF signal propagation map and related testimony. Phillips argued that the method used to create the map was not generally accepted as reliable within the relevant scientific community under Maryland’s Frye-Reed test for admissibility of evidence based on novel scientific methodology. Phillips acknowledged that cell phone tower “ping” evidence is admissible, but drew a distinction between the method used to create the RF signal propagation map and the collection of historical cell phone “ping” evidence.

This is an interesting form of evidence -- something that amounts to cell tower hearsay. It's not like it's much trouble to obtain historical cell site data. This can be done without a warrant in Maryland, despite the recent ruling that requires warrants for Stingray deployment. Historical cell site location data is still a third-party record as far as the federal courts are concerned, so good faith, if nothing else, would have salvaged the warrantless harvesting of this data.

For whatever reason, local law enforcement chose to have the FBI perform a "drive test" of cell towers in the area of the criminal activity, ten months after it happened. Perhaps law enforcement wanted to believe this data would indicate something and allowed itself to be persuaded by pitches like this one, from a company that offers "cell site forensics" to law enforcement agencies.
Cell Site Analysis (CSA) the science of reconstructing the physical movements of a mobile telephone or telecommunication device. The evidence produced from such advanced investigations can be especially powerful in attributing contact between individuals, proximity to a scene of crime, patterns of movement of suspects, and testing the strength of alibi evidence.

These assertions are undermined further down the page when the company explains the limits of drive tests:
How accurate is Cell Site Analysis? This is a common question and there is no short answer. A number of factors come into play, including the type of signalling technology used (GSM/UMTS/CDMA), the local topology (man made or natural obstructions), the height of the antennae, type of CDRs available, physical location of other masts, angling of the transceivers, and degree of network activity (other subscribers). In some instances Cell Site Analysis can be accurate to a few metres, or sometimes a few streets (approximately a postcode).

In other words, most likely not all that accurate. Pinning down a historical cell signal based on a 10-month post facto RF analysis is extremely iffy. Being within a few streets of a committed crime proves nothing. Given the number of variables, these tests are perhaps best left to their original purpose: providing cell service providers info on possible dead zones. That doesn't stop Afentis Forensics from wrapping up this paragraph in an overconfident manner.
However, the technique remains an extremely powerful tool to test an alibi, to show that a number of people were together at a certain time, or to highlight the fact that a suspect was at a crime scene.

The defense in this case pointed out drive tests are indicative of nothing:
Phillips maintained that drive tests are routinely performed by cell phone companies to improve coverage and minimize “dropped calls,” but that they are not generally accepted in criminal investigations. Testifying for the defense, William Folson, accepted as an expert witness “in the field of cellular technology and historical cell site analysis” explained that he “consider[s] [drive tests] a waste of time” because “[t]hey add no value to the historical analysis of a cell phone.” He further testified that the manner in which Special Agent Fennern had performed the drive test was not accepted as reliable in the relevant scientific community. Mr. Folson explained that the RF signal range in December 2013 when the murder occurred would be different than the range in October 2014 when the drive test was conducted because the strength of RF signals fluctuate. Because of this, according to Mr. Folson, a drive test is not representative of the strength of the RF signals on any other date. He also pointed out that drive tests were not peer reviewed, accepted by the scientific community, or used in criminal investigations.

It's almost impossible to find a drive test submitted as evidence in a criminal investigation. Granted, a search for this terminology is bound to miss a few cases, especially those behind the US government's PACER paywall, but the lack of hits suggests this "evidence" is very rarely submitted in criminal trials. What can be found suggests the method used by the FBI agent in this case is completely wrong. Ten months after the fact gives you nothing but garbage.
[T]he coverage area of a cell tower should never be part of an analyst's mapping or court presentations unless that information comes directly from the wireless telephone company in the form of a radio propagation map or in some rare cases, in the form of drive testing that occurred contemporaneous to the date and time of the incident.

Apparently, this "evidence" is a bit more popular in Australia. A paper by a legal aid group discusses several problems with using drive tests/RF signal propagation maps as evidence.
Topography, weather, usage load, broadcast wattage, and overlap of cell coverage entail that to go to point A and make test calls now with the result that some or all of those test calls go through a specified sector of a particular base station does not ‘prove’ that at some other earlier time calls from point A went through that same specified sector. At that other time they may have gone through another sector. When a user places a call, the cell phone connects to the cell site with the strongest signal. Indoor or outdoor use of the phone and cell phone orientation to the user’s head can alter the strength of the signal. These are important considerations when attempting to recreate an alleged past event.

In general it is often easier to be more definitive about the converse proposition, namely that from the Cell ID information it is unlikely that the call was made (or received) outside a specified area. Access from the Telcos to propagation prediction modelling (ie for both ‘dominant’ and ‘possible’ coverage of relevant sectors) is helpful but insufficient to be certain about phone location.

In this context of qualified uncertainty, it is highly misleading to infer positive location with the phrase ‘the Cell ID identified with a call is consistent with the call being made in that location.’

In the Maryland case, the state offered up two witnesses to rebut the "this data doesn't prove anything" defense argument.
Providing a different opinion and testifying for the State, Special Agent Fennern was accepted as an “expert in the field of historical cell site analysis, cellular technology, and [] radio frequency drive testing for cell phone mapping.” Agent Fennern opined that factors such as weather only have a “minimal” impact on radio frequency strength. He also testified that, relying on information provided by cell phone companies, the RF signal strength only varied by five or ten percent.

The State also offered the testimony of T-Mobile employee Stephen Willingham, accepted as an expert in radio frequency engineering. He testified that cell phone companies use drive tests for “competitive analysis reasons.” He explained that when a customer complains about a missed call, a cell phone company will use a drive test to attempt to recreate that dropped call to identify a gap in service. Mr. Willingham testified that, over time, radio frequency “[f]ootprints remain consistent as long as nothing major has changed[,]” referring to the physical layout of the cell site, such as antennas and equipment. He stated that the maximum variation he had seen for a footprint was a quarter mile.

Even if all the variables stay the same, the only thing that can truthfully be said is they're possibly accurate within a quarter mile. If that's the case, it's impossible to claim someone was at the scene of a crime using nothing more than an RF propagation map. And, if the arguments made by the defendant are any indication, the state never bothered obtaining or submitting historical cell site location info (the "ping" evidence).

The appeals court agrees with the lower court's opinion: the state can't show anyone has accepted drive tests as a reliable source of evidence in criminal cases.
After determining that the digital forensic science field is the relevant scientific community, the court found that the State’s experts lacked familiarity with that field and were unable to produce studies or peer-reviewed articles in that field supporting the reliability or general acceptance of drive tests for forensic purposes. The court ultimately concluded that the State did not establish that drive tests as used by the FBI are generally accepted in the digital forensic science community. The court then mused that, even if the drive test were considered generally accepted and reliable, the State’s experts were not qualified to testify because they were not members of the digital forensic science community and failed to satisfy the requirement of Maryland Rule 5-702.

This case is exceptionally weird, considering local law enforcement had help from the FBI. Unless the defendant's provider was extremely proactive in scrapping old location data and/or was unresponsive to subpoenas for call records, the state should have had something better than a drive test to place the defendant at the scene. But this is the only evidence the defendant sought to exclude, which suggests other cell records were never introduced. If so, this is a case where law enforcement had several options, but for some reason chose to use the worst one.

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